2024 Comprehensive Review Report of the Minister of Public Safety Concerning Criminal Code sections 83.031 to 83.0391 and their operation: A Regime to Authorize Certain Activities in a Geographic Area that is Controlled By a Terrorist Group
December 9, 2024

Table of Contents

Introduction

Canada's strong anti-terrorist financing Criminal Code provisions play an important role in supporting Canada's counter-terrorism efforts, including countering the evolving threat of terrorism, addressing domestic security considerations, and meeting international obligations to prevent and suppress terrorist financing. The Taliban takeover of Afghanistan in August 2021 highlighted the limitations that the Criminal Code terrorist financing provisions placed on the Government of Canada, Canadian charities, not-for-profit organizations, Canadian banks, and civil society to deliver international assistance or facilitate safe passage out of areas controlled by a terrorist group, and prompted a re-evaluation of Canada's anti-terrorist financing provisions.

In June 2023, Bill C-41, An Act to amend the Criminal Code and to make consequential amendments to other Acts, received Royal Assent, thereby amending the terrorist financing provision to include a distinct exception for humanitarian assistance as well as a process to facilitate the delivery of specified activities under a certain scope of eligible purposes in a geographic area that is controlled by a terrorist group via an authorization regime. These activities would otherwise be prohibited under subsection 83.03(2) of the Criminal Code due to an unavoidable and incidental benefit that may accrue to a terrorist group. To operationalize this, Public Safety Canada (PS), in concert with assisting departments and agencies, publicly launched the Authorization Regime on June 19, 2024.

The review of these applications balances the need to maintain the strong anti-terrorist financing provisions included in the Criminal Code and supporting the national counter-terrorism efforts included in PS's mandate with the imperative to facilitate the delivery of needed activities. It includes a robust system of checks-and-balances, including a national security review of each application, and imposes reporting requirements on authorization holders to mitigate the risk of terrorism financing.

The Minister of PS is required, pursuant to section 83.0392(2) of the Criminal Code, to produce and table a report in Parliament within 180 days after the first anniversary of the legislation coming into force and every five years thereafter. The 2024 Comprehensive Report covers the period from June 20, 2023 to June 19, 2024. The Comprehensive Review and subsequent report takes stock of the activities undertaken in the lead-up to the launch, identifies challenges and areas of focus to address these challenges, and outlines the path forward to support the administration of the Regime. Additionally, to provide the most meaningful assessment in light of the recent public launch of the Authorization Regime, this report also considers progress and experience up to and including October 2024.

The 2024 Comprehensive Review Report is organized in the following manner:

Section I – Overview of Sections 83.031 to 83.0391 of the Criminal Code and Reporting Requirements under Subsection 83.0392(2) and (3)

Subsection 83.03(3) of the Criminal Code created an Authorization Regime permitting the Minister of PS, or a designated authority, upon a referral from the Minister of Foreign Affairs and/or the Minister of Immigration, Refugees and Citizenship Canada (IRCC) (or appointed delegate authority), to grant an authorization to eligible persons to shield from criminal liability needed activities in a geographic area that is controlled by a terrorist group and, for certain purposes, specific activities that would otherwise be prohibited under subsection 83.03(2) of the Criminal Code. These activities are limited to health services, education services, programs to assist individuals in earning a living, human rights programs, immigration and safe passage related services, and other operations of the Government of Canada, including consular assistance.

While the takeover of Afghanistan by the Taliban prompted the legislative change, the provisions are not restricted to Afghanistan and apply to other geographic regions controlled by a terrorist group.

In order to assist potential applicants in determining whether an authorization is required to carry out an activity or class of activities in a given geographic area, potential applicants may elect to submit a request to the Minister of PS, or a designated authority, who, per subsection 83.032(2.1) of the Criminal Code, must provide them with written information about whether an authorization is required. Potential applicants are encouraged to seek legal advice with regard to decisions on whether to make an application.

Applications for authorizations are assessed on a case-by-case basis, with the aim of balancing the risk of terrorist financing with the benefit of the proposed activity. The Minister of Foreign Affairs, the Minister of IRCC (or appointed delegate authority), or both of those Ministers, as the case may be, may refer an application if they are satisfied that it meets the statutory criteria for referral to Public Safety, including: that the application meets any requirement set out in regulations (if/once developed), that there is terrorist control of the geographic area, that the purpose and scope of activities are eligible, that the activity responds to a real and important need and that the applicant has the capacity to administer funds and report on that administration in a high risk environment. Following the referral of an application by the Minister of Foreign Affairs and/or the Minister of IRCC, the Minister of PS will conduct a final assessment and issue a decision. As part of this assessment, and pursuant to subsection 83.032(10) of the Criminal Code, the Minister of PS must conduct a security review, working with security and intelligence partners and assisting departments or agencies listed in 83.038(1) to weigh the impact of granting the authorization against the assessed risk of terrorist financing, among other factors.

If granted, an authorization will then serve to shield authorization holders from criminal liability related to the terrorist financing offence in 83.03(2) of the Criminal Code. The Minister of PS may make the authorization subject to any terms and conditions they deem required.

As a measure of accountability, pursuant to subsection 83.0392(2) and (3), the Minister of PS must conduct a Comprehensive Review of sections 83.031 to 83.0391 and their operation, and table a report in Parliament on the Comprehensive Review within 180 days of the first anniversary of the legislation coming into force. Should the report identify any deficiencies, the report must include a plan to remedy those deficiencies – including any proposed legislative amendments – and a timeline for its implementation.

The Minister of PS is required to conduct another Comprehensive Review of sections 83.031 to 83.0391 of the Criminal Code, no more than five years following the date on which this section came into force.

Section II – Review of Sections 83.031 to 83.0391 of the Criminal Code and their Operation

Sections 83.031 to 83.0391 of the Criminal Code outline the scope and operation of the Authorization Regime, including general processes, eligibility criteria, definitions, Ministerial obligations and limitations, conditions for the granting of an authorization, and other pertinent information.

During the period of June 20, 2023 to June 19, 2024, PS, in collaboration with assisting partners, completed a number of tasks in support of the launch of the Authorization Regime. The following section highlights these accomplishments, and identifies a number of challenges that were met throughout the review period in question. Where relevant, additional activities and updates which fall outside of the review period identified above, including those which have occurred since the public launch of the Authorization Regime, are also referenced below in order to provide additional clarity and to better contextualize the achievements and milestones of this initiative.

Accomplishments

Online Application Interface

A secure online application interface and case management tool, developed and hosted by Global Affairs Canada (GAC), was launched on June 19, 2024, to facilitate the application process. This robust tool includes a secure online interface to receive sensitive and personal application information and a streamlined approach to the intake, triage, and processing of applications. PS, GAC and IRCC solicited stakeholder feedback in November 2024 in order to, amongst other things, capture the user experience to date, and to use this feedback to improve the overall client experience. As of October 2024, 100% of all applications have been submitted via the online interface.

Operational Policy Guidance

Developed by PS, GAC, IRCC and the Department of Justice—in consultation with other government departments and stakeholders—as a guide for potential applicants, Operational Policy Guidance materials were published to the PS website on June 19, 2024, in tandem with the launch of the Regime.

These guidance materials detail the Regime's requirements and procedures, including process-related instructions for applicants and an overview of the types of reporting and compliance requirements. Throughout its development, stakeholders submitted detailed feedback on numerous subsections of the document; in particular, on the subject of the humanitarian exception carve-out of the legislation. One consistent recommendation has been that the Government of Canada provide additional guidance about the distinction between the humanitarian exception and the scope of the Authorization Regime, which was addressed with detailed, non-binding examples developed and included in the guidance document. PS worked closely with GAC to review the feedback and tailor the Operational Policy Guidance to reflect this and other concerns of stakeholders.

Staffing/Resources

During the reporting period, dedicated resources to fund the implementation and administration of the Authorization Regime were sought and confirmed by the Treasury Board of Canada on December 7, 2023 for fiscal years 2023/24 and 2024/25.

Stakeholder Engagement

PS, alongside partner departments and agencies, held a number of stakeholder engagement sessions during the review period in question. These sessions included individuals and organizations representing a variety of non-governmental organizations (NGOs) and not-for-profit organizations interested in learning about the Authorization Regime and who had expressed an interest in applying for an authorization. PS and assisting departments and agencies hosted informational briefings for stakeholders in July 2023 and March 2024, and sought stakeholder input on key public-facing documents, including the Operational Policy Guidance document and the application form in August 2023. The feedback received was collected by assisting partners, and integrated into these documents where possible to enhance their accessibility, relevance and usability. Following the June 2024 public launch of the Authorization Regime, a stakeholder engagement session was held on November 19, 2024 in order to provide additional clarity about the application process and respond to questions about the Authorization Regime.

Authorization Requirement Inquiry

During the drafting of the legislation, stakeholders had expressed a desire to include a mechanism that would allow potential applicants to submit requests for additional information regarding the requirement of an authorization, based on the specific activity(ies) and geographic location(s) proposed. The legislation was amended to include this mechanism under subsection 83.032(2.1) of the Criminal Code. Following consultations with federal partner departments/agencies, the "Authorization Requirement Inquiry" mechanism was created to satisfy this statutory requirement. This optional mechanism became available to all potential applicants on June 19, 2024, in tandem with the launch of the Regime. Given current global dynamics and the ever-evolving terrorism landscape, this process will enable prospective applicants to more confidently discern whether an Authorization is necessary for the delivery of their intended activities.

Publication of the first Annual Report

PS tabled the 2023 Annual Report in March 2024, which provided an overview of the Authorization Regime during the period of June 20, 2023 to December 31, 2023. The report outlined the progress achieved to date to operationalize the Regime, including the efforts carried out by partnering departments and agencies, as well as a timeline for the activities to launch and report on the program in the coming year.

To support the development of the Annual Report, PS took stock of the activities and progress towards the implementation of the Regime up until December 2023 and identified any outstanding activities requiring completion to support the launch and operations of the Regime going forward. While PS and assisting partners successfully completed many of the action-items and next steps identified in the Annual Report, areas requiring further attention to support the Authorization Regime moving forward are highlighted in this Comprehensive Review.

Challenges

Challenge 1: Improved guidance

To support launching the Authorization Regime by Spring 2024, PS and assisting partners focused efforts on developing internal operational policies and guidelines for the regime as well as external guidance on the application process for the public.

These initial guidance tools, such as the Operational Policy Guidance, enabled the Government of Canada to begin administering the Authorization Regime in Spring 2024. However, the process of reviewing applications since the public launch of the Authorization Regime has since highlighted the need for additional guidelines and additional clarity with respect to the application process.

Remedy 1: Regulations

Per section 83.0391 of the Criminal Code, the Governor in Council may, on the recommendation of the Minister of PS, make Regulations respecting the Minister's authorities for the Authorization Regime.

Regulations would help to define the rules and scope of operations for the Authorization Regime under the Criminal Code. For instance, Regulations could provide clarity regarding the processes for obtaining and maintaining an authorization, such as:

The establishment of Regulations would be complemented by the development of additional agreements, where appropriate, between assisting departments and agencies in order to maintain clear but flexible guidelines. These arrangements will provide partners with the tools needed to work efficiently through the lifecycle of the application process.

Resources will be dedicated to the development of Regulations for the Authorization Regime in FY 2025/26, of which the resulting impacts will be considered as part of the 5-Year Comprehensive Review in 2029.

Challenge 2: Program development in an evolving national security landscape

PS recognized the importance of launching the program as quickly as possible, but first ensured that robust measures were in place to support the administration of the Authorization Regime, meet the rigor of the statutory requirements, reflect the coordination between partnering government departments, and integrate the necessary security and privacy measures to safeguard information to balance strong anti-terrorist financing provisions included in the Criminal Code and to advance national counter-terrorism efforts included in PS's mandate activities.

Remedy 2: Support, collaborate, coordinate

Since the launch of the Regime, PS has continued to prioritize staffing and has filled approximately 75 percent of the available positions for the Authorization Regime Unit. Staffing efforts will remain a priority as PS enters the last quarter of the 2024/25 fiscal year. GAC stood up a dedicated unit as well as supporting positions across the Department in 2023 with temporary funding identified until the end of the 2024/25 fiscal year, establishing a front-facing team to develop the IT online interface and to process inquiries and applications. Moreover, in light of the current funding ending in March 2025, PS is working to secure ongoing funding to support the continued operation and administration of this Regime by PS, GAC and RCMP. Securing this funding will ensure PS and assisting departments and agencies are able to continue meeting statutory obligations beyond the 2024/25 fiscal year.

Efforts to develop and implement needed policies and materials to support the operations of the Authorization Regime continue to be bolstered by strong inter-departmental coordination. Partner departments and agencies continue to work in close coordination to enhance and improve upon the delivery of this program. Continued coordination between partners also supports the need to increase public awareness about the Authorization Regime and ensure that potential applicants are aware of the initiative and available resources.

The Minister of PS is required to conduct a Comprehensive Review of sections 83.031 to 83.0391 of the Criminal Code, no more than five years following the date on which this section came into force. This five-year review will evaluate the effectiveness of the policies and procedures developed to support the Authorization Regime and will use lessons learned during this time to refine and enhance the continued operations of this initiative. This review may also include an in-depth analysis to identify any gaps in the legislation which may be impacting the delivery of certain types of international assistance activities. Analysis will be undertaken on an on-going basis of any emerging issues regarding the effectiveness of the Regime.

Section III – Looking Forward: The Ongoing Administration of the Authorization Regime

Following the public launch of the Authorization Regime on June 19, 2024, PS and assisting departments and agencies continue to work closely to support the administration of the program, including the assessment of internal and external applications. To date, the Authorization Regime has received 12 applications. PS has received five referral packages, all of which are sponsored by GAC. PS is working with its security partners to review the referral packages and continues processing the applications. Of the remaining seven, one has been withdrawn by the applicant, and six are undergoing the initial assessment by the Minister of Foreign Affairs and/or the Minister of IRCC (or appointed delegate authority) to confirm whether the applications meet the criteria outlined in statute.

Alongside ongoing case management, PS and assisting departments and agencies are actively working to ensure that potential applicants have access to the necessary resources to submit an inquiry and/or an application for authorization, and that the application and review process is clear and user-friendly. To this end, service standards will be developed to reinforce Government accountability and increase transparency of the Authorization Regime. Ongoing dialogue and engagement with stakeholders will also ensure that the perspectives of relevant partners can be taken into consideration as this program evolves.

To further support transparency and to meet its legislative requirements, PS will also prepare and publish the 2024 Annual Report on the Authorization Regime, which will provide thorough reporting on the operations of the Regime throughout 2024, including total applications received and processed. Recognizing that limited data was available for reporting on the operation of sections 83.031 to 83.0391 of the Criminal Code as part of this Comprehensive Report, PS will also seek to broaden the scope of the 2026 Annual Report to include an overview of the challenges encountered since the launch of the Regime, and how the Government is actively working to address these challenges.

Finally, as noted in Section II and to address deficiencies identified as part of the 2024 Comprehensive Review, PS will continue to prioritize efforts to staff the remaining positions in the Authorization Regime Unit and secure ongoing funding for all implicated Departments past 2024/25 to enable and advance the operations of the Regime. In the longer-term, PS aims to develop Regulations respecting the Minister's authorities pertaining to the Authorization Regime under the Criminal Code, to support and facilitate the effective administration of the Regime.

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