Parliamentary Committee Notes: Questions and Answers

Timing

Q1. The Taliban took over Afghanistan more than a year ago, why did this regime take so long to put into place?

A1. Amendments to the Criminal Code require the input and considerations of many departments and agencies across the Government of Canada. Extensive consultations were undertaken to ensure the legislative amendments were sufficient to address foreign and international policy objectives and commitments of the Government as a whole.

Moreover, it was imperative that the regime considers the risks associated with authorizing activities that would benefit a terrorist group. The document was well studied by the Justice and Human Rights Committee in the House of Commons where 9 amendments were carried to further strengthen the bill. We believe that we have achieved the right balance that to be able to deliver on commitments and help those in need, while not helping the Taliban or weakening our terrorist financing offence.

Q2. When will the regime come into effect?

A2. Once the Bill has been granted royal assent, it will become law and come into force on that day. The authorization regime will also be in effect. Operational policy will provide detailed guidance on application requirements to prospective applicants. It will also cover reporting and compliance measures, amongst other things.

Regulations

Q3. What will be in regulations?

A3. Regulations, when enacted, could address additional requirements pertaining to applications, including specifications concerning the granting or renewing of an authorization.

Regulations would also address the means through which the Public Safety Minister must, at the request of an eligible person or an organization, provide to that person or organization information in writing about whether an authorization is required to carry out an activity or a class of activities in a given geographic area.

Regulations could also address conditions relating to the authority of the Public Safety Minister to amend, suspend, revoke or restrict granted authorizations including their scope or terms and conditions. Regulations may also clarify conditions relating to reporting requirements, and could also add to the list of departments and agencies that are authorized to assist the Minister of Public Safety in the administration of the regime.

Bill C-41 will come into force once royal assent has been granted. Regulations will be finalized likely in the Fall. Operational guidance will provide process related instruction for applicants concerning aspects of the regime and will be made public at the time of implementation.

Rationale For The Need For An Authorization Regime

Q4. Why is the Taliban still a listed terrorist entity and would delisting have solved the issue?

A4. The Taliban has been listed as a terrorist entity under the Criminal Code since 2013 and continues to meet the definition of a terrorist group as described in the legislation.

Delisting the Taliban is not a viable option to address this issue because the definition of “terrorist group” within the Criminal Code is not restricted to only those entities listed in the Criminal Code. It also applies to an entity that has as one of its purposes or activities facilitating or carrying out any terrorist activity.

Q5. The GoC did not propose a humanitarian carve-out originally but now there is one through NDP-3. Why was a carve-out not the approach from the start?

A5. The proposal as captured in the Bill presented a balance between facilitating the delivery of international assistance and mitigating abuse by nefarious actors or organizations with links to terrorist groups.

From a policy perspective, a statutory carve-out would not provide the same security checks and balances and would risk greater abuse of the provision. Terrorist entities can exploit international aid to support their own organizations and operations. This is an important consideration given the vast amount of aid being delivered, and the use of intermediaries or third party suppliers by many Canadian registered charities. That said, the government has heard from Canadian NGOs and acknowledges that a humanitarian exemption is desired to facilitated the circumstance where NGOs are aiming to provide critical assistance in the form of humanitarian aid in time-sensitive circumstances. Not only will there not be a wait involved in obtaining an approval but the work associated with submitting an application for authorization will not have to be undertaken.

In addition to a defined exemption in law for humanitarian aid, the authorization regime would cover certain other international development assistance purposes, including development assistance involving women and girls or human rights programming, to provide a range of activities that would take vulnerable populations from a phase of immediate crisis to longer-term sustainability. An authorization regime provides the additional flexibility to consider a wider range of activities beyond just humanitarian assistance(e.g. targeted development assistance and safe-passage related).

Q6. Why are certain activities deemed at risk of violating the Criminal Code illegal and when does an organization apply for an authorization?

A6. Conducting or supporting activities for the purposes laid out in Bill-C41, such as, humanitarian, education, health services, livelihoods, human rights and immigration processing, including safe passage, are not illegal, but providing even an incidental, indirect, and/or unavoidable benefit to a terrorist group from these activities, risks violating 83.03 (b) of the Criminal Code.

In circumstances where Canadian individuals and organizations are engaged in carrying out the specified activities in a geographic area controlled by a terrorist group, an authorization under this authorization regime may be required to shield them from criminal liability with respect to the terrorist financing offence in section 83.03. Due to Amendment NDP-3, an authorization will not be required by NGOs where the activity is categorized as humanitarian.

Q7. What are examples of direct or indirect benefit to a terrorist group?

A7. Delivering aid, supporting immigration and safe passage, and resettlement of Afghans seeking to come to Canada could include payment to local personnel for their services, transportation costs, taxes and potential government fees. Funds paid for these activities could reach the Taliban, directly or indirectly by way of taxation, at Taliban check points and/or through government fees. Transactions involving the facilitation of any contract payments for things such as office spaces for charitable organizations, transportation costs, airport and airline fees, as well as utilities and taxes paid to the de facto national authority of Afghanistan, would be considered as a transaction providing a benefit to a terrorist group.

Q8. Why would the attorney general not exercise his/her power to issue a statement that he would not consent to a prosecution of someone giving humanitarian aid, since such consent is required under section 83.24 of the Criminal Code? Or why doesn’t the government orchestrate the non-prosecution agreements that are quite common in the corporate world? These would be quicker than amending the legislation.

A8. There are several separate issues at play.

First, all terrorism offences, including the terrorist financing offence at issue, are offences over which the federal Attorney General and the provincial Attorneys General have concurrent jurisdiction. As a result, even if the federal Attorney General issued such a statement, it would only apply to the federal prosecutors and would not prevent provincial Attorneys General from giving their consent to prosecute. Moreover, any decision not to prosecute in such cases likely would have to be based on guidelines to ensure that the decision not to prosecute is exercised properly. It would take time to develop such guidelines and such guidelines could not be imposed on the provinces.

Second, the non-prosecution agreement that is being refer to is called a remediation agreement in the Criminal Code. The remediation agreements are recent in Canada and when the remediation agreement regime was created in the Criminal Code, it specifically excluded some offences, including those committed for the benefit of, at the direction of, or in association with a terrorist group, due to the extreme seriousness of those offences. Furthermore, even if remediation agreements were available as a tool for prosecutors in instances such as the current situation in Afghanistan, the agreements would not provide any exemption from criminal liability for the non-governmental organizations wishing to deliver humanitarian aid as one must first be investigated and charged before the remediation agreements can be negotiated.

Key Components of Bill C-41

Q9. Why is the regime limited to activities within these purposes set out in the Bill?

A9. Any form of exemption to the existing terrorist financing prohibitions could enhance the risk of terrorism financing and in order to mitigate this risk we must have well-thought restrictions on the scope of the permissible activities. This risk becomes greater the broader the scope of the exemption that is proposed.

The scope of activities (e.g. humanitarian, health, education, livelihoods, human rights and safe passage) encompass the responses deemed by the World Bank, Asian Development Bank and United Nations partners as those that provide the most vulnerable with basic needs and life-saving support. They also correspond with the recommendations of the Special Committee of Afghanistan in their report, and align with the United Nations exemption for humanitarian purposes and the schemes of Canada’s Five Eyes partners.

Q10. The scope of the proposed regime seems restrictive compared to Canada’s allies. Will it facilitate fulfilling Canada’s commitment to support the Afghan people, and pursue such activities in other contexts as needs arise?

A10. What is being proposed in the Bill provides a balance that would achieve these very important international policy and resettlement goals while managing the potential terrorist financing risk through the checks and balances in the regime. As our allies have had to implement new mechanisms to adapt to this crisis, our proposed authorization regime is flexible enough to respond to similar crises in the future.

It is important to note however, that each country uses a combination of sanctions and legislative means to designate entities that is unique to their domestic framework and therefore an exact comparison to the Criminal Code is not always possible.

Bill C-41 is largely aligned and even goes beyond what some of our like-minded partners are doing. It will allow Canada to continue to participate in international aid efforts and other forms of international assistance. It is important to note however, that each country uses a combination of sanctions and legislative means to designate entities that is unique to their domestic framework and therefore an exact comparison to the Criminal Code is not always possible.

Furthermore, with a humanitarian exemption, the regime will be significantly less restrictive than previously envisioned. In addition to this, where applications are required and submitted, in the event that an authorization is not granted, they may now reapply after 30 days rather than 180 days (NDP-9)

Q11. What are these amendments to the Income Tax Act, Excise Tax Act, and Excise Act, 2001?

A11. Generally, taxpayer information is information that is collected or prepared pursuant to a tax statute or taxation authority. The proposed amendments would allow the Canada Revenue Agency (CRA) to provide taxpayer information to a government official solely for the purposes of a security review under the proposed authorization regime.

The CRA would be limited to providing taxpayer information that is considered relevant to the conduct of a security review.

Q12. Who will be eligible to apply to this regime?

A12. A person is eligible to apply for and be granted an authorization if they are a person in Canada or a Canadian outside Canada. Under section 2 of the Criminal Code, a person is defined to include an organization and an organization is defined to mean not just a corporation but a structured association of persons. A Canadian is defined in subsection 83.01(1) to mean a Canadian citizen, permanent resident or a body incorporated federally or provincially.

An authorization applies, in addition to the individual or organization named in it, to any other person involved in carrying out an activity in accordance with the authorization. An application may be jointly made by eligible persons or organizations where they are working together on the same activity(ies).

Where organizations are implementing programming or activities on behalf of a Government department, the Government department would be responsible for getting any needed authorizations. Third parties, including sub-implementing partners, would also be covered under the same authorization. Applications can also be made jointly if deemed necessary.

Q13. If an organization applies for an authorization, does it apply to all individuals in that organization? Is it project-specific?

A13. Authorizations will be tied to project activities and will cover the specific activity(ies) from the application as well as individuals within the applicant organization involved in the implementation of the activity(ies). In addition to the person named in an application, authorizations will cover third parties involved in carrying out an activity in accordance with the authorization. Third parties will also be subject to the security review.

Q14. Can an organization amend or extend the duration of its authorization?

A14. An authorization holder will be able to apply for an amendment or the renewal of the authorization. Requests to amend or extend the duration of an authorization will be assessed and decided by the Minister of Public Safety. Amendments can be made to any granted or renewed authorization, except if the proposed change alters the essential nature of the application, including a change to the nature or scope of the activities being authorized. If the essential nature of an authorization has changed, a new application would be required.

Applications for renewal must be submitted prior to the expiry of the authorization, unless there is an exceptional circumstance that justifies why the application for renewal was not made before expiry of the authorization.

Q15. If an application is rejected, why does the organization have to wait 30 days to submit a new application?

A15. Applicants that are rejected would not be permitted to reapply in respect to the same proposed activity for 30 days unless a material change in circumstances occurs within the 30 day waiting period. In these circumstances the Minister who issued the notice of refusal may waive the waiting period.

If it was the Public Safety Minister that gave the notice and is satisfied that there was a material change in circumstances, that Minister may consider the new application without it having to first be referred by the Ministers of Immigration, Refugees and Citizenship or Foreign Affairs.

It is of note that the 30-day waiting period has been reduced from the original 180-day period. In this authorization scheme, the Government will engage the applicant to ensure it participates fully in the process in advance of an authorization being issued. This could include the imposition of mitigations or terms and conditions to address risk. Where applications would be denied, it is anticipated that this would occur due to the gravity of the findings of the security review that would not be reasonably address in a shorter timeframe. In addition, the authorization scheme allows an applicant to make a new applications, with new information in the event that circumstances have changed, prior to the 30 day waiting period.

Q16. What recourse does an organization have if their application is refused?

A16. The decisions made by the Minister of PS, the Minister of Foreign Affairs and the Minister of Immigration, Refugees and Citizenship are subject to judicial review. If an applicant disagrees with a decision, they may choose to undertake a judicial review proceeding. Otherwise, an organization will have the ability to re-apply after 30 days, or sooner should there be a material change in circumstance.

An amendment (NDP-13) was also passed allowing the appointing of an amicus curiae who is appointed in respect of the proceeding to participate in a hearing under paragraph (a) of 83.039(1) of Judicial Review to review the evidence or other information that is the subject of the hearing.

Q17. Can an authorization holder lose their authorization? How is an organization expected to disengage after potentially having their authorization revoked and while committing to complex project activities abroad?

A17. The Minister of PS may suspend, revoke or restrict an authorization at any time. This may happen if the applicant fails to comply with the authorization, including its terms and conditions and reporting requirements, or if the Minister of PS determines that the benefit of the proposed permitted activity no longer outweighs the risk of terrorist financing. Regulations could stipulate how this process would occur to ensure that organizations working abroad could have a practical evacuation plan and enough time to disengage and wind down their operations. That said, the intent is to consider the entirety of circumstances and conditions. In other words, if for example, derogatory information surfaces concerning an individual involved in the activities, this will not necessarily lead to a revocation as opposed to enhanced mitigation measures to minimize risk.

Q18. What criteria should be considered when deciding whether or not to apply when operating in geographic areas controlled by a terrorist group?

A18. While the dire situation in Afghanistan currently represents a geographic area controlled by a terrorist group, the authorization regime proposed by this bill is not restricted to Afghanistan. The proposed amendments intend to address the fact that the current terrorist financing offence in section 83.03 of the Criminal Code could have an effect of impeding legitimate humanitarian and other forms of international assistance in various parts of the world. A terrorist-controlled area could be an entire country or a region.

For the purposes of this authorization regime, a terrorist group controls a geographic area if it exerts sufficient influence over the area, such that the carrying out of an activity in the area could reasonably be expected to result in the terrorist group using or benefiting from any property or financial or other related services linked to that activity.

An applicant must include a clear description of the reason or rationale for which an authorization is being requested as part of their application. This includes information regarding why the likely risk of benefitting a terrorist group cannot be eliminated due to the proposed activity being delivered in a region controlled by a terrorist group.

Since global terrorism threats and patterns shift, applications for an authorization will be assessed against the facts and information provided in each application. As part of the first phase of the application’s review, Global Affairs Canada and Immigration, Refugees and Citizenship Canada will assist the applicant with this determination.

Moreover, the original bill was amended (CPC-1.01) by the House of Commons to reduce the burden on international assistance actors having to determine themselves which geographic areas are controlled by a terrorist group.

As a result of this amendment, the Public Safety Minister will provide written information as to whether an authorization is required, at the request of an applicant. This amendment considers the dynamic nature of terrorism and allows for most up to date assessment of terrorist groups and their control of geographic areas.

Q19. What is a terrorist group?

A19. A terrorist group is defined in subsection 83.01(1) of the Criminal Code as (1) an entity that has as one of its purposes or activities facilitating or carrying out any terrorist activity, or (2) a listed entity as also defined in subsection in 83.01(1) to mean an entity listedunder section 83.05, and, for both, includes an association of such entities. “Terrorist activity” is also a defined term in the Criminal Code.

According to this definition, a listed entity is a “terrorist group”; however, not all terrorist groups are necessarily “listed entities” because the Criminal Code’s definition of a terrorist group is not restricted to only those entities listed in the Criminal Code.

Q20. Will the Government provide a list of geographic areas controlled by a terrorist group?

A20. The government cannot determine all areas controlled by a terrorist group as global terrorism is dynamic and there can be sharp rises and falls in terrorism in many countries during a short period. Furthermore, conducing activities such as, humanitarian, education, or health services, for example are not illegal in themselves. It is a key component of the application that the organizations describe why an authorization is required and why there is no alternative that would eliminate the risk of benefiting a terrorist group. This is a condition that the Ministers of Foreign Affairs and Citizenship and Immigration must be satisfied has been met prior to referring the application to the Public Safety Minister (subsection 83.032(6)).

The Government cannot proactively maintain a list to label certain regions as being controlled by a terrorist group as this can also be misinterpreted in other contexts and can lead to foreign policy repercussions.

As an alternative, the original bill was amended (CPC-1.01) by the House of Commons to reduce the burden on international assistance actors having to determine themselves which geographic areas are controlled by a terrorist group.

As a result of this amendment, the Public Safety Minister will provide written information as to whether an authorization is required, at the request of an applicant. This amendment considers the dynamic nature of terrorism and allows for most up to date assessment of terrorist groups and their control of geographic areas.

Q21. Will authorization holders be publicly listed?

A21. No, a list of authorization holders will not be published. Publishing the names of individuals or organizations coordinating humanitarian activities, human rights programming, the delivery of basic services and activities supporting immigration including safe passage in a specified geographic area that is controlled by a terrorist group could pose an unnecessary and grave threat to the safety of personnel. In Afghanistan, for example, there are reports of humanitarian workers, service providers, and human rights defenders being actively targeted by the Taliban regime for carrying out the activities listed in 83.032 of the bill. Therefore, the names of individuals or organizations who are granted authorizations will not be made publicly available. Each organization may exercise its discretion to determine whether they will publicly share the status of their authorization during the delivery of activities. However, an annual Government of Canada report will be tabled in Parliament to provide information regarding the operation of the authorization regime.

Q22. What if the applicants have a project longer than a few years? Should approvals be provided for a standard five-year term to support the operational realities of aid organizations?

A22. According to Bill C-41, an authorization may be granted for a period of up to five years. Applicants who seek a longer term than five years, would need to reapply to renew the authorization before the authorization expires. There is no limit on the number of renewals that can be obtained.

The duration of an authorization will in part be influenced by the level of risk determined by the security review. As much as possible, and without compromising necessary safeguards to mitigate risk, the process will consider the operational realities and/or applicant aid organizations.

Process

Q23. Will the general administrative and application requirements be overly burdensome especially on smaller organizations? Will there be more scrutiny for the small or diaspora-led organizations?

A23. Interested individuals or organizations will be required to submit an application to the Government of Canada that will not exceed what would already be required for a funding proposal, for example.

As per the Bill, information demonstrating the following components would be required:

Like any legislative or regulatory regime, there is a process to be followed and requirements to be met to ensure that all actors are abiding by the law. All applications will be assessed according to the law and these assessments will aid the Minister of Public Safety in decision to grant or deny the authorization.

Q24. Why organizations such as Doctors Without Borders, Amnesty International and even the Red Cross, which are recognized around the world, must prove that they are legitimate before they can intervene in a country where millions of people are suffering?

A24. The proposed criteria for the authorization are set to balance the achievement of the very important international policy and resettlement goals while managing the potential terrorist financing risk through the checks and balances in the regime. Canada’s counter terrorist financing laws have to be amended in a non-discriminatory way to shield all successful applicants from the provisions of these laws in the situations where the need is palpable. The regime is not requiring organizations to prove their legitimacy, but is instead cognizant of the fact that organizations are operating in an environment where a heightened risk of terrorist financing exists, through payment of unavoidable fees as well as through the potential abuse of the situation by nefarious actors. The intent of the security review is to ensure that any benefit provided to a terrorist group is minimized and only covers incidental costs.

Q25. What happens if an organization is receiving funding from a Government department for activities related to international assistance, do I have to apply for an authorization?

A25. Where organizations are implementing programming or activities on behalf of a Government department, the Government department would be responsible for getting any needed authorizations. Third parties, including sub-implementing partners, would also be covered under the same authorization.

It is up to the Canadian person or organization to determine whether an authorization is required for them to carry out their activity without contravening section 83.03 of the Criminal Code.

Q26. Will international based organizations need to be granted an authorization before they will be allowed to carry out activities on behalf of Canada in Afghanistan?

A26. International based organizations are generally not subject to Canadian jurisdiction for activities that are carried out outside of Canada. The decision to apply for an authorization would be made by the organization itself, on the basis of their analysis that their proposed activities could contravene paragraph 83.03 (b) of the Criminal Code.

Programs funded by the Canadian government that contributed to such organizations may require an authorization.

Q27. Will there be an application fee to apply for an authorization?

A27. No. The delivery of humanitarian aid or other forms of international assistance is a foreign policy objective of the Government of Canada. The Government of Canada assumes the costs associated with the issuance of authorizations.

Q28. What are the expected service standards for the processing of authorization applications?

A28. The length of time to process an application may vary depending on a number of factors, including the nature of the activities and authorization sought. The Government of Canada is working to ensure the process is as timely and streamlined as possible

Q29. This proposed authorization regime is and will be overseen and the Public Safety Minister but will be tied to foreign aid, international aid and foreign policies. What are the complexities of this arrangement?

A29. The roles of the Public Safety Minister as well as the Minister of Foreign Affairs and the Minister of Immigration, Refugees and Citizenship under the proposed authorization regime are defined in Bill C-41.

It is important to note that the intent is to implement as efficient and effective of an approval process as possible in light of the dire needs in certain geographic regions. Clear operational guidance will be published once the Bill receives Royal Assent and the regime is in force to ensure predictable requirements and procedures.

Despite the set roles of each Minister based on their area of responsibilities, the authorization regime will appear as a Government initiative to the applicant.

The primary role of the Minister of Immigration, Refugees and Citizenship in the authorization regime will be to conduct an initial assessment of applications related to immigration processing and safe passage. The Minister of Foreign Affairs will assess all the other applications that fall under the scope of this regime.

This assessment will consider the conditions of referral as laid out in the Bill:

Based on the outcome of the assessment, the Minister(s) will either: (1) refer the application to Public Safety for security assessment and subsequent final decision by the Minister of PS, or (2) issue a rejection notice to the applicant.

Once the Public Safety Minister receives a referral they will initiate a security review to assess the risk of terrorist financing. This review may examine a number of factors including whether the applicant or any persons or organizations involved in the authorization or proposed activity has any links to terrorist groups, the likelihood that they will be acting on behalf of or in association with a terrorist group in delivering the activities, and whether they have been investigated, charged or convicted for a terrorism offence.

The Minister of Public Safety will then make a decision based on whether they determine that there is no alternative to providing the proposed activity; and, whether the benefit of the activity outweighs the risk of terrorist financing.

Applicants will also be required to maintain safeguards to administer funds and to mitigate the risk of diversion of these funds and terrorist financing.

Security Review

Q30. The Afghan diaspora in Canada have expressed concern that any form of exemption would allow the Taliban to unduly benefit from international aid. How does Bill C-41 mitigate for this?

A30. Bill C-41 recognizes these risks and implements a requirement for a security review as well as other safeguards.

Furthermore, the Minister of Public Safety has the ability to suspend, revoke, restrict or amend any issued authorization at any time should the risk / benefit balance change.

Q31. What mechanisms are in place to prevent terrorist financing under this authorization regime?

A31. A strong system of checks and balances has been built into the authorization regime.

In applying for an authorization, an applicant(s) under the authorization regime must demonstrate their capacity and the capacity of their affiliates to administer funds in a transparent and accountable way in an area where terrorist groups exert sufficient influence and where there is an increased risk of terrorist financing.

Each application will undergo a compulsory security review before an authorization is granted, with follow-up assessments as deemed necessary by national security agencies.

Authorizations will also be subject to stipulated mitigation measures or terms and conditions if required, in respect of any person to whom the authorization applies.

Authorizations will require organizations to report on their activities, including any use of funds that could benefit a terrorist group. Public Safety Canada will monitor and assess compliance requirements to ensure that entities in receipt of authorizations are acting in a manner consistent with it.

In addition, any indication of possible diversion of funds by organizations beyond what is strictly necessary for the delivery of the stated activity for which the organization has received its authorization will lead to a review and a possible suspension or revocation of an authorization.

Furthermore, the Minister of PS can suspend, revoke, or further restrict an authorization on non-compliance with the authorization’s terms and conditions, the reporting requirements, or if the Minister is no longer satisfied that the benefits of carrying out of the proposed activity outweigh the terrorist financing risk.

Information received through reporting and compliance measures, as well as any new information required, would facilitate these updates. The Minister of PS may also amend a granted authorization by adding conditions necessary to counteract the risk(s) of terrorist financing.

Finally, should the cumulative benefit to a terrorist group be deemed to be too significant, the Minister of PS has the ability to revoke the issued authorization/s to satisfy counter-terrorist financing objectives.

Q32 What mechanisms are in place to prevent terrorist financing for aid that will be delivered under the exemption?

A32 There are no mechanisms for security reviews for the exemption. Rather, the exemption would create a defence to the terrorist financing offences in proposed section 83.03 of the Criminal Code for those providing or assisting in the provision of humanitarian assistance in accordance with international law without the need to seek an authorization from the Public Safety Minister.

Q33. How will the Government ensure that the security review requirement will not lead to Muslim charities being disproportionately scrutinized and / or have the process forge arbitrary connections between Canadian Islamic charities and terrorist entities?

A33. The security review will apply to all applicant organizations as its purpose is to provide a risk determination to help inform the Public Safety Minister.

The criteria that the security review will assess is set out in 83.032(10) of the Bill in order to allow the regime to be as clear and predictable as possible, while allowing the Government to be responsive to the complex realities of these geographic regions.

The intent of the security review is to objectively determine the impact of granting the authorization on terrorist financing. It will consider whether the applicant or any person who is to be involved in carrying out the activity proposed in the application has any links to a terrorist group. It will also consider the likelihood that the applicant or its partners would be acting at the direction of or in association with a terrorist group in carrying out the activity. The security review would also assess whether any person that would be covered by the authorization or involved in carrying out the activity is being or has been investigated for, or charged with a terrorism offence.

The intent is not to draw tenuous links between any applicant organizations and a terrorist group. The review will be based on factual information and will consider the context of the activities and the complex realities of the operating environment. This includes the potential to impose mitigation measures or conditions where risks are identified in cases, rather than to issue a denial.

Where there is a decision to deny an authorization it will be based on facts established through the security review process. An unsuccessful applicant can appeal to the Federal Court to judicially review the Public Safety Minister’s decision.

In all cases, authorizations issued would only shield applicants from criminal liability for knowingly providing an unavoidable benefit to a terrorist group in order to carry out permitted activities. An authorization cannot be used to knowingly benefit a terrorist group beyond what are such unavoidable benefits. Such activities if undertaken would remain criminal.

Where the exemption is applicable, this would be equally applicable without discrimination to every NGO engaged in the relevant humanitarian aid activities, regardless of size, popularity, religious affiliation, or degree of experience.

Reporting

Q34. Once an authorization is granted, when does an organization need to notify the Government of any updates?

A34. Each authorization will stipulate reporting and compliance conditions that will enable the Government to monitor the spectrum of activities undertaken against those proposed in the authorization. As part of their obligations, authorization holders must keep accurate, complete, and readable records, on paper or electronically, of any activity(ies) purporting to have been permitted under an authorization. Regular reporting could require that authorization holders submit information on property transfers, parties involved in the transactions, description of goods and services involved, etc.

Proposed section 83.036 provides the Public Safety Minister the authority to amend the authorization granted, including any terms and conditions attached. The exception is where the change to the authorization would be so significant to modify the essential nature of it, including if the change would replace or add to any of the activities already authorized.

Guidance documents and regulations will provide detailed guidance on reporting and compliance requirements, as well as the process for requesting amendments to the granted authorization.

Q35. How often will reporting be needed and will the Government monitor compliance?

A35. The Minister of PS may include a requirement to regularly report on the status of activities under the terms and conditions of an authorization. Requests for updates from Public Safety may vary based on the nature of activities and the assessed risk of terrorist financing. Periodic updates may also be requested as activities and actors change or if Government of Canada information indicates a requirement for an update. The Governor in Council may also issue regulations regarding reporting requirements.

Other

Q36. Are personal remittances allowed under this authorization regime in a specified geographic area that is controlled by a terrorist group?

A36. No, the scope of permitted purposes under the authorization regime does not include personal remittances. Individuals sending personal remittances to Afghanistan risk being charged under section 83.03 of the Criminal Code if funds are used to finance terrorist groups, e.g. by way of taxes, fees, etc.

Q37. Canada Revenue Agency is being investigated by the National Security and Intelligence Review Agency (NSIRA) for allegations of bias and Islamophobia by the Muslim-led charities. How is this regime going to make sure that the same mistakes are not repeated?

A37. All applications would be reviewed and assessed according to the law, regulations and the operational policy. If Bill C-41 becomes law, the Ministers of Foreign Affairs and/or Immigration, Refugees and Citizenship will conduct ‘need and capability’ assessment(s) prior to the referral of the application to the Minister of Public Safety. The security review and the ‘need and capability’ assessment will inform the decision of the Minister of Public Safety to grant or deny the application will be substantiated by facts and will consider the context.

The authorization will be set based on the findings of the security review and the ‘need and capability’ assessment not on the fact that the organization is Muslim-led.

Under the humanitarian exemption, all NGOs engaged in exempt activities should be treated the same. An NGO will or will not be protected by the exemption by virtue of their activity.

Q38. What are the privacy provisions for the applications, particularly when it comes to personal data provided to departments such as CRA or CSIS?

A38. The information supplied by the applicants will be collected and stored in accordance with the rules and regulations set out by the Privacy Act, and any other applicable laws and policies.

This assures that all information submitted by applicants would be protected and would only be used in accordance with the requirements in the Privacy Act.

Moreover, an amendment by the House will further restrict the use of applicant information (NDP-10). Where section 83.034 provides that the Public Safety Minister can request additional information to conduct security reviews, this request must now only relate to the authorization or its renewal.

Where section 83.038 provides that prescribed departments can collect and disclose information in assisting the Public Safety Minister in this regime, this information can now only used for the administration and enforcement of the regime and that Minister must ensure that the assisting entities comply.

Q39. With staff at many departments already over-worked and over-burdened, how will the government assure processing will be timely given the urgency of these humanitarian crises?

A39. Budget 2023 provides additional funding for Public Safety Canada, the Royal Canadian Mounted Police, and the Communications Security Establishment, which will support the implementation of a mechanism under these proposed amendments aimed at enabling humanitarian aid and other international assistance in regions controlled by terrorist groups.

New resources are anticipated to both fund new positions in the respective departments, as well as to support the development of an IT solution to ensure efficient processing of applications and authorizations.

Further, the humanitarian exemption created by NDP-3 now removes the need for NGOs engaging activities considered humanitarian aid to submit an application and gain authorization.

International Assessment

Q40. What are Canada’s allies doing to reduce terrorist financing risks while providing humanitarian assistance to Afghanistan?

A40. Many of Canada’s allies have legislated either through statute or regulations, exemption provisions for humanitarian assistance within their sanctions regimes. Several of Canada’s close allies have licencing regimes permitting transactions with designated entities.

Australia’s sanctions-permit regime allows for the delivery of humanitarian and other activities that support basic human needs in Afghanistan. The Government concluded that a section of its Charter of the United Nations Act 1945 allowed the Minister of Foreign Affairs authority to grant permission to engage in activities in Afghanistan that would otherwise be prohibited under Australian sanctions law. Activities which cannot be authorized include supplying arms, and the provision of technical, financial or other assistance or training.

The United States (US) and the United Kingdom’s licensing regimes applicable to Afghanistan are similar in that they provide two types of licences. These include Specific Licenses issued to a specific individual involved in a particular transaction or set of transactions, and General Licenses which can apply to a wider class of persons. In addition, the US has recently created General Licences for the delivery of humanitarian and other basic human needs with regard to other entities under United Nations sanctions in order to implement UNSCR 2664 adopted this past December by the United Nations Security Council.

New Zealand has a statutory carve out in its Terrorism Suppression Act that excludes humanitarian support to satisfy basic needs from its “material support of terrorism” offences. It also allows the Prime Minister to authorize exemptions beyond that.

European Union’s humanitarian aid in Afghanistan is exclusively channeled through our humanitarian partners on the ground. The funding strictly adheres to the humanitarian principles of independence, impartiality and neutrality to ensure it reaches Afghans most in need. The 2022 funding aims to ensure the provision of critical relief assistance to the most vulnerable, including women and girls, and victims of natural hazards.

Amendments

What are the amendments passed in the House of Commons that altered Bill C-41?

In its study of Bill C-41 the Committee on Justice and Human Rights supported certain amendments as informed by the views of NGOs.

Where section 83.03(b) of the Criminal Code does not provide for any lawful justification or excuse to avoid the wrongful criminalization of conduct that should not fall within the criminal offence.

To address the desire for a permanent standing humanitarian exemption to provide certainty to humanitarian actors.

Amended (CPC-1.01) to reduce the burden on international assistance actors having to determine themselves which geographic areas are controlled by a terrorist group.

This amendment considers the dynamic nature of terrorism and allows for most up to date assessment of terrorist groups and their control of geographic areas.

Amended (NDP-9) to shorten waiting period for re-application (180 to 30 days).

To restrict Restricting the use of applicant information (NDP-10).

An amendment (NDP-13) was carried to explicitly allow (rather than relying on existing court discretion) an amicus curiae to participate in private proceedings and to review evidence that is the subject of the hearing was carried.

An amendment to shorten the submission time for the Public Safety Minister’s annual report to Parliament from 180 days to 90 days after the 1st day of January (NDP-14).

The requirement to undertake a comprehensive review of the operation of the authorization regime was amended (CPC-3) to have to occur within the first year (instead of the fifth year) of this section coming into force and every five years subsequently.

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