Parliamentary Committee Notes: Clause By Clause Analysis

Clause 1 (Section 83.03 of the Criminal Code is replaced)

Present Section

Providing, making available, etc., property or services for terrorist purposes

83.03 Every person is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years who, directly or indirectly, collects property, provides or invites a person to provide, or makes available property or financial or other related services

  1. intending that they be used, or knowing that they will be used, in whole or in part, for the purpose of facilitating or carrying out any terrorist activity, or for the purpose of benefiting any person who is facilitating or carrying out such an activity, or
  2. knowing that, in whole or part, they will be used by or will benefit a terrorist group.

Proposed Section

  1. Section 83.03 of the Criminal Code is replaced by adding the following reformulated sections referring to 83.03(1) and 83.03(2):

Providing, making available, etc., property or services for terrorist purposes

83.03 (1) Every person is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years who, directly or indirectly, collects property or provides, invites a person to provide or makes available property or financial or other related services, intending that they be used, or knowing that they will be used, in whole or in part, for the purpose of facilitating or carrying out any terrorist activity, or for the purpose of benefiting any person who is facilitating or carrying out such an activity.

Providing, making available, etc., property or services — use by terrorist group

83.03 (2) Every person is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years who, directly or indirectly, collects property or provides, invites a person to provide or makes available property or financial or other related services, knowing that, in whole or part, they will be used by or will benefit a terrorist group.

Subject and Effect

Currently, section 83.03 contains two separate offences. Paragraph 83.03(a) makes it an offence to provide or make available property intending that it be used for the purpose of facilitating or carrying out a terrorist activity, etc. Paragraph 83.03(b) makes it an offence to provide property knowing that it will be used by or will benefit a terrorist group. Paragraph 83.03(b) is broader than paragraph 83.03(a) because it does not require a purpose to facilitate or carry out a terrorist activity.

This proposed change would divide up what is currently two subparagraphs having one chapeau into two subsections independent of each other.

Reason for Change

This change would create a clear separation between these two terrorist financing offences. This would make it easier for people, when reading the proposed Bill, to understand that the proposed authorization regime does not apply to what is in proposed subsection 83.03(1) (currently paragraph 83.03(a)), only to the proposed offence in subsection 83.03(2) (currently paragraph 83.03(b)).

Clause 1 (Subsection 83.03(3) of the Criminal Code - Exception)

Present Section

None

Proposed Section

Exception

83.03(3) Subsection (2) does not apply to a person who carries out any of the acts referred to in that subsection under and in accordance with an authorization granted under section 83.032.

Subject and Effect

The exception would make it clear that under certain prescribed circumstances, an eligible person would be authorized by the Public Safety Minister to carry out activities that may have otherwise risked contravening proposed subsection 83.03(2).

Reason for Change

This exception would carve out from the scope of the offence in subsection 83.03(2) those who receive an authorization to engage in activities for certain purposes, subject to the terms and conditions set out in the authorization. Proposed subsection 83.03(2) would continue to make it a crime to directly or indirectly, collect property, or provide, invite a person to provide, or make available property or financial or other related services, knowing that, in whole or in part, they will be used by or will benefit a terrorist group (currently in paragraph 83.03(b)).

Canadians and Canadian organizations wishing to operate in geographic areas controlled by a terrorist group would know that certain payments such as taxes or operating fees will be used by or will benefit the terrorist group. This includes Afghanistan where the Taliban, a terrorist group listed under the Criminal Code, is the de facto national authority. As a result of this legal risk and in the absence of an authorization regime in the Criminal Code, it has been difficult for Canadian organizations and Government of Canada officials to continue much-needed operations in Afghanistan.

This exception would bring the terrorist financing offence in subsection 83.03(2) in line with reforms made by other countries. Especially since the adoption of the United Nations Security Council Resolution (UNSCR) 2615 in December 2021, like-minded democracies have amended or interpreted their anti-terrorism legislation to include mechanisms to facilitate needed humanitarian assistance or other activities that support basic human needs to vulnerable people in Afghanistan. Most recently, UNSCR 2664 expanded the exception for facilitating these activities to all other UN sanctions regimes, including, at least temporarily, its sanctions against Al-Qaida and Da'esh.

Related Clauses

Clause 1, in section 83.032

Clause 1 (Section 83.031 of the Criminal Code – Definition and Designation)

Present Section

None

Proposed Section

Definition of Public Safety Minister

83.031 (1) In sections 83.032 to 83.0392, Public Safety Minister means the Minister of Public Safety and Emergency Preparedness.

Designation

83.031 (2) Any Minister referred to in any of sections 83.032 to 83.0392 may designate a person to exercise a power, or perform a duty or function, conferred on that Minister under those sections.

Subject and Effect

In sections 83.032 to 83.0392, Public Safety Minister would mean the Minister of Public Safety and Emergency Preparedness and refers to their legal title pursuant to the Department of Public Safety and Emergency Preparedness Act. Subsection (2) would clarify that the Public Safety Minister, the Minister of Foreign Affairs, or the Minister of Immigration, Refugees and Citizenship, may designate a person to exercise a power, or perform a duty or function, conferred on that Minister under those sections.

Reason for Change

Section 83.031 would add clarity to the Public Safety Minister's title and authorize the exercise of designating powers conferred on the Ministers named in Bill C-41 to an appropriate person appointed to serve, in the departments or ministries over which each of the Ministers preside.

Related Clauses

Clause 1, in section 83.032

Clause 1 (Section 83.032 of the Criminal Code – Authorization, Control, Limitation and Eligible Person)

Present Section

None

Proposed Section

Authorization

83.032 (1) On application, the Public Safety Minister may authorize an eligible person to carry out, in a specified geographic area that is controlled by a terrorist group, a specified activity that would otherwise be prohibited under subsection 83.03(2) — or a specified class of such activities — for any specified purpose from among the following:

  1. providing or supporting the provision of humanitarian assistance, including assistance for the purpose of saving lives or alleviating the suffering of a population that is affected by a crisis or that has immediate and acute needs;
  2. providing or supporting the provision of health services;
  3. providing or supporting the provision of education services;
  4. providing or supporting the provision of programs to assist individuals in earning a livelihood;
  5. providing or supporting the provision of programs to promote or protect human rights;
  6. providing or supporting the provision of services related to immigration, including services related to the resettlement of individuals and the safe passage of individuals from one geographic area to another; and,
  7. supporting any operations of a federal minister or a department or agency of the Government of Canada that are conducted for a purpose other than one set out in any of paragraphs (a) to (f).

Control

83.032 (2) For the purposes of this section, a terrorist group controls a geographic area if the group exerts sufficient influence over the area such that the carrying out, in the area, of an activity involving property or financial or other related services could reasonably be expected to result in the terrorist group using or benefiting from the property or services, in whole or in part.

Limitation

83.032 (3) The Public Safety Minister must not, under subsection (1), authorize the making by a federal minister or a department or agency of the Government of Canada of a grant or contribution that is for the purpose of supporting any operations referred to in paragraph (1)(g).

Eligible persons

83.032 (4) A person is eligible to be granted an authorization if they are in Canada or are a Canadian outside Canada.

Subject and Effect

Paragraphs 83.032 (1) (a) – (g) sets out the specified purposes that could be authorized by the Public Safety Minister to facilitate the delivery of humanitarian aid and other needed activities.

Section 83.032 (1) would also restrict the reach of the regime to the issuance of authorizations to cover activities in geographic areas controlled by a terrorist group. A terrorist group is defined under section 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, and includes an association of such entities.

For the purposes of this authorization regime, under subsection 83.03(2), 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.

Paragraph (1)(g) under section 83.032 would capture other activities to support Government of Canada operations that may meet the overall objectives of the Bill in the future, but which, at this time, have not been specifically listed in the paragraphs (a) to Subsection 83.032(3) would limit these activities supporting the operations by the Government of Canada by excluding those enabled by government transfer payments including a grant or contribution.

Transfer payments are defined as a monetary payment, or a transfer of goods, services or assets made, on the basis of an appropriation, to a third party, including a Crown corporation, that does not result in the acquisition by the Government of Canada of any goods, services or assets. Transfer payments are categorized as grants, contributions and other transfer payments. Transfer payments do not include investments, loans or loan guarantees.

A person would be eligible under 83.032(4) 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 any structured association of persons. A Canadian is defined in subsection 83.01(1) to mean a Canadian citizen, permanent resident as defined under the Immigration and Refugee Protection Act, or a body incorporated federally or provincially.

Reason for Change

The new authorization regime and the specified purposes that it permits would fill an identified gap in the criminal law with respect to creating specific exemptions for international assistance, immigration, and related operational purposes. The proposed legislation would ensure Canadian organizations that are granted an authorization can operate in geographic areas controlled by a terrorist group, without risk of violating the Criminal Code terrorist financing offence. To ensure that the kinds of activities that could be shielded from criminal liability are clear and transparent, section 83.032(1) identifies specific purposes in relation to which specific activities or classes of activities can be carried out.

The listed “purposes” correspond with the recommendations of the Special Committee of Afghanistan in their report, Honouring Canada's Legacy in Afghanistan: Responding to the Humanitarian Crisis and Helping People Reach Safety. The list of purposes provides flexibility for an immediate and effective crisis response.

While the situation in Afghanistan has prompted this effort, the authorization regime would not be restricted to the current situation in Afghanistan and the reliance on the definition of “terrorist group” and “control” would allow the Public Safety Minister to grant an authorization to an eligible person in any geographic area that is controlled by a terrorist group, to undertake activities for a certain purpose, to respond to similar situations in the future.

The restriction in subsection 83.032(4) would exclude from the scope of permitted activities in support of government operations any grants or contributions, or other transfer payments. The intent would be to ensure that the exemption set out in paragraph 83.02(1)(g) is restricted to activities in support of core government operations.

Related Clauses

Clauses 1, in subsections 83.02(2) and (3)

Clause 1 (Subsections 83.032(5), (6), (7), (8) of the Criminal Code - Referral)

Present Section

None

Proposed Section

Referral

83.032 (5) The Public Safety Minister may consider an application only if it has been referred to them by

  1. the Minister of Citizenship and Immigration, if the application is in respect of only the purpose set out in paragraph (1)(f);
  2. the Minister of Foreign Affairs, if the application is not in respect of the purpose set out in paragraph (1)(f); or
  3. both of those Ministers, if the application is in respect of two or more purposes set out in subsection (1), at least one of which is the purpose set out in paragraph (1)(f).

Conditions of referral

83.032 (6) The Minister of Foreign Affairs, the Minister of Citizenship and Immigration or both of those Ministers, as the case may be, may refer an application if they are satisfied that

  1. the application meets any requirements set out in the regulations;
  2. the geographic area identified in the application is controlled by a terrorist group;
  3. the activity proposed in the application is to be carried out for any of the purposes set out in paragraphs (1)(a) to (g);
  4. that activity responds to a real and important need in that geographic area; and
  5. the applicant is capable of administering funds, and reporting on that administration, in a manner that is transparent and accountable, in circumstances in which a terrorist group may use or benefit from property or financial or other related services.

Deemed withdrawal

83.032 (7) An application may be deemed to be withdrawn by the Minister or Ministers who may refer it if the applicant has, within 60 days after the day on which the request is made, failed to comply with a request to provide information that ought to have been included in the application.

Assessment

83.032 (8) The Minister who refers an application must, as part of the referral, set out their assessment of how the application meets the conditions set out in paragraphs (6)(a) to (e).

Subject and Effect

Section 83.032(5) would set out the process for assessment of applications, whereby the Ministers of Foreign Affairs and/or Immigration, Refugees and Citizenship would provide referrals of applications prior to consideration by the Public Safety Minister.

Section 83.032(6) would set out criteria that must be assessed by the Ministers of Foreign Affairs and/or Immigration, Refugees and Citizenship prior to a referral to the Minister Public Safety, or a rejection notice to the applicant. The role of the Minister of Immigration, Refugees and Citizenship in the authorization regime would be to conduct a first phase assessment of applications related to immigration activities, including safe passage. The Minister of Foreign Affairs would assess all other applications that fall under the scope of this regime. Where an application includes both immigration processing and another purpose falling within the scope of the regime, both Ministers would assess that application.

This assessment would consider the conditions of referral including an assessment that the application is complete and meets all regulatory requirements; that the geographic area is controlled by a terrorist group; and that the proposed activity or class of activities corresponds to the scope of permissible purposes laid out in paragraphs 83.032(1)(a) - (g). In their assessments, the Ministers of Foreign Affairs and/or the Minister of Immigration, Refugees and Citizenship would also have to be satisfied that the need for the activities stated in the application responds to a real and important need in the stated area; and, that the applicant is capable of administering and reporting on funds in a transparent and accountable manner, in circumstances in which a terrorist group may benefit from property or financial or other related services.

Reason for Change

Subsections 83.032(5) and (6) would set out the explicit and relevant decision-making considerations that would be relied on in the first phase “need and capability” assessment of applications.

The Minister of Foreign Affairs' expertise in international assistance and other activities, and the Minister of Immigration, Refugees and Citizenship's expertise in immigration, including resettlement and safe passage, would be important in assessing applications. The decision of the Public Safety Minister on whether to issue or deny an authorization would be based on whether the benefits of carrying out of the proposed activity outweigh the risk of terrorist financing.

The Public Safety Minister would take into account the assessment of information provided in the referrals from the Ministers of Foreign Affairs and/or Immigration, Refugees and Citizenship in the ultimate benefit / risk analysis.

Subsection 83.032(7) would provide that an application may be deemed withdrawn if the applicant fails to comply with a request to provide information within 60 days.

Subsection 83.032 (8) would set out that the Ministers of Foreign Affairs or Immigration, Refugees and Citizenship would assess how the application meets the conditions set out in paragraph 6(a) to (e) in their referral to the Public Safety Minister.

Related Clauses

Clause 1, subparagraph 83.032(9)(b)(i)

Clause 1 (Subsections 83.032(9), (10), (11), of the Criminal Code – Public Safety Minister Conditions for Grant of Authorization including Security Review)

Present Section

None

Proposed Section

Conditions for grant

83.032 (9) The Public Safety Minister may grant the authorization under subsection (1) if they are satisfied that

  1. there is no practical way to carry out the activity proposed in the application without creating a risk that, in whole or in part, a terrorist group will use or benefit from the property or financial or related services at issue; and
  2. the benefits of carrying out of that activity outweigh that risk, taking into account
    1. the referral of the Minister of Foreign Affairs, the Minister of Citizenship and Immigration or both of those Ministers, as the case may be,
    2. the security review conducted by the Public Safety Minister under subsection (10),
    3. any mitigation measures to minimize that risk, and any other terms and conditions, that may be included in the authorization, and
    4. any other factor that the Public Safety Minister considers appropriate in the circumstances.

Security review

83.032 (10) In conducting a security review, the Public Safety Minister must assess the impact of granting the authorization on the financing of terrorism, and in doing so may consider, among other factors,

  1. 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;
  2. the likelihood that the applicant or any person who is to be involved in carrying out that activity will be acting for the benefit of, at the direction of or in association with a terrorist group in carrying out the activity; and
  3. whether the applicant or any person who is to be involved in carrying out that activity is being or has been investigated for having committed a terrorism offence or has ever been charged with a terrorism offence.

Additional information

83.032 (11) The Public Safety Minister may request that the applicant provide any additional information in respect of the application in the form and manner, and within the period, that are specified by that Minister. If the applicant fails, without reasonable excuse, to provide the information within the specified period, that Minister may deem the application to be withdrawn.

Subject and Effect

Subsection 83.032(9) would outline the conditions that need to be met for the Public Safety Minister to grant an authorization. Each application would be evaluated according to whether the benefit and importance of the activity(ies) outweighs the risk of terrorist financing and security as stipulated in paragraphs 83.032(9)(a) and (b).

As part of the Public Safety Minister's assessment, paragraph 83.032(9)(a) would require that the applicant adequately demonstrate the need for an authorization and the potential risk of benefitting with property or financial or related services a terrorist group associated with the activity(ies) for the permitted purposes cannot be eliminated.

Subparagraph 83.032 (9)(b)(i) would refer to the initial phase assessment conducted by the Minister of Foreign Affairs and/or the Minister of Immigration, Refugees and Citizenship, who refer an application for an authorization, after first being satisfied that certain conditions have been fulfilled concerning the purpose and need for the activity and the capability of the applicant to administer and report on funds, amongst other criteria set out in subsection 83.032(6).

Once an application is referred, the Public Safety Minister would conduct a security review to assess the impact of granting the authorization on terrorist financing pursuant to subsection 83.032(10). This security review would examine a number of factors including whether the applicant or any persons, including organizations involved in the authorization or proposed activity has any links to terrorist groups, whether there is a likelihood that the applicant or any person who is to be involved in carrying out the activity would be acting on behalf of, for the benefit of, at the direction of, or in association with a terrorist group in carrying out the activities, and whether they have been investigated for having committed or charged with a terrorism offence.

The Public Safety Minister could request additional information within a specified timeframe and could deem the application withdrawn pursuant to subsection 83.032(11), if the applicant fails to provide the information without reasonable excuse.

The results of the security review would form part of the assessment of the risk of terrorist financing that would be weighed against the benefits as stipulated in paragraph 83.032(9)(b). Additionally, subparagraphs 83.032(9)(b)(ii) and (iii) would allow the Public Safety Minister to factor in adequate risk mitigation measures to minimize the risk of property or financial or other related services being directly or indirectly used by or benefitting, a terrorist group.

Reason for Change

A terrorist group acting as a de facto national authority or which is in control of an area could benefit directly or indirectly through taxation or licensing fees and that this cannot be avoided if Canadians / Canadian organizations are delivering humanitarian and other needed activities in that area. Of foremost concern is benefitting a terrorist group via diversion. That could result from someone with bad intentions knowingly redirecting funds from a humanitarian purpose, for example, to a terrorist group. Or it could result from situations such as an innocent organization with insufficient due diligence processes unknowingly having their funds used by a terrorist group. Minimizing the benefit to the terrorist groups is a key element of this regime and subsections 83.032(10) and (11) would create an effective framework of checks and balances, including a compulsory security review before an authorization is granted. The review would also ensure that the Public Safety Minister would grant authorizations to organizations and individuals who not only intend but have the capacity to carry out specified activities, in a specified geographic area that is controlled by a terrorist group.

The security review would assess the risk of terrorist financing which would be one factor to weight against the benefit of the proposed activity. This would build an oversight mechanism into the regime so that it is clear the Government of Canada has given appropriate consideration to what is being authorized.

Related Clauses

Clause 1, in subsections 83.03(3), 83.02(1), 83.03(6)

Clause 1 (Subsections 83.032(12), (13), (14), of the Criminal Code – terms and conditions, third party involvement and period of validity)

Present Section

None

Proposed Section

Terms and conditions

83.032 (12) The Public Safety Minister may make the authorization subject to any terms and conditions that, in their opinion, are required.

Third party involvement

83.032 (13) An authorization applies not only to the person to whom it is granted but also to any other person involved, directly or indirectly, in carrying out a specified activity in accordance with the authorization.

Period of validity

83.03 (14) An authorization is valid for the period of not more than five years that is specified in the authorization.

Subject and Effect

Under subsection 83.032(12), the Public Safety Minister may also impose terms and conditions intended to mitigate the risk of diversion of these funds and terrorist financing, in respect of any person to whom the authorization applies.

Subsection 83.032(13) provides that the authorization will apply to the applicant / applicant organization, as well as third-party providers acting on their behalf.

Under subsection 83.032(14), authorizations would be valid for a period of up to 5 years.

Reason for Change

Subsection 83.032(12) would ensure that conditions can be imposed so that activity(ies) would be carried out in accordance with adequate risk-mitigation measures.

Section 83.03(13) recognizes that governmental and non-governmental organizations work with an array of implementing partners and service providers in achieving their objectives. Third parties, including sub-implementing partners, would be covered under the same authorization.

Related Clauses

Clause 1, subsections 83.032(1)(2)(4)

Clause 1 (Subsection 83.032(15) of the Criminal Code – Decisions of the United Nations Security Council)

Present Section

None

Proposed Section

Decisions of the United Nations Security Council

83.032 (15) In the case of an activity proposed in an application in the course of which property or financial or other related services will be used by or will benefit a listed entity that is subject to a sanctions regime established by the Security Council of the United Nations, the Public Safety Minister may authorize the carrying out of that activity only if the Minister of Foreign Affairs confirms that

  1. the Security Council did not intend that the activity be prohibited;
  2. the Security Council or a Committee established by the Security Council has approved the activity in advance; or
  3. in the opinion of the Minister of Foreign Affairs, there is no obstacle in international law to granting the authorization.

Subject and Effect

It is possible that an activity that could be authorized pursuant to Bill C-41 would violate United Nations (UN) sanctions prohibitions if it would involve an entity sanctioned by the UN. In the case of persons (whether individuals or entities) sanctioned by the UN and listed in Canada under the Criminal Code, subsection 83.032(15) would create a process to ensure coherence between the two regimes. This process would provide that, prior to the Public Safety Minister granting the authorization for activities that could benefit an entity subject to UN sanctions, the Minister of Foreign Affairs would confirm:

Reason for Change

As a UN Member State, Canada has an international legal obligation to implement United Nations Security Council sanctions resolutions into Canadian law and does so largely via the United Nations Act and its regulations. These regulations contain a process for permitting activities which would otherwise be prohibited by the sanctions regime, including where the United Nations Security Council has granted prior approval to these activities.

Certain entities sanctioned by the UN are listed under the Criminal Code's terrorist entities list instead of under the United Nations Act. In such cases, it would be possible that applicants seeking to undertake a prohibited activity may require both a Criminal Code authorization and confirmation that the Security Council did not intend that the activity be prohibited or that the Security Council, the relevant UN Committee has approved the activity in advance, or that there is no obstacle in international law to granting the authorization.

For this reason, subsection 83.032(15) would ensure coherence between the Criminal Code authorization regime and Canada's international sanctions obligations imposed by the United Nations Security Council by ensuring that sanctions implications are properly assessed and addressed prior to the granting an authorization.

Related Clauses

Clause 1, subsections 83.03(3), 83.032(1)

Clause 1 (Subsection 83.032(16) of the Criminal Code – Statutory Instruments Act)

Present Section

None

Proposed Section

83.032 (16) The Statutory Instruments Act does not apply to an authorization.

Subject and Effect

Subsection 83.032(16) would create an exemption from publication for authorizations that would otherwise be required to be published in the Canada Gazette.

Reason for Change

Authorization holders would be exempt from having the fact that they or their organizations had been granted an authorization published that would otherwise be required by the Statutory Instruments Act, since publishing the relevant information, including the names of individuals or organizations coordinating humanitarian and international activities in a geographic area that is controlled by a terrorist group, could pose an unnecessary and grave threat to the safety of personnel.

Related Clauses

Clause 1, subsections 83.03(3), 83.032(1)

Clause 1 (Subsections 83.033(1), (2) of the Criminal Code – Notice of Refusal, Waiting Period, and Re-application)

Present Section

None

Proposed Section

Notice of refusal

83.033 (1) The Public Safety Minister, the Minister of Foreign Affairs or the Minister of Citizenship and Immigration, as the case may be, must give notice of a decision to refuse an application made under section 83.032 to the applicant within a reasonable time.

Waiting period — new application

83.033 (2) An applicant whose application is refused is not permitted to make a new application in respect of the same activity until the end of the 180th day after the day on which the notice is given, unless the Minister who gave the notice is satisfied that there has been a material change of circumstances.

Consideration of new application without referral

83.033 (3) If the Public Safety Minister gave the notice and is satisfied as described in subsection (2), that Minister may consider the new application without it having been referred under subsection 83.032(5). In that case, that Minister may take into account the referral of the previous application for the purposes of subparagraph 83.032(9)(b)(i).

Subject and Effect

Applicants that are rejected would not be permitted to reapply in respect to the same proposed activity for 180 days. There could be circumstances where matters evolve and a material change in circumstances occurs within the 180 day waiting period, the Minister who issued the notice of refusal could waive the waiting period.

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

Reason for Change

The rules set out in section 83.033 would provide clear guidance on the refusal and re- application process for Canadians and Canadian organizations and may be supplemented by regulations or operational policy.

Related Clauses

Clause 1, in subsection 83.032(1) and (9)

Clause 1 (Section 83.034 of the Criminal Code – Additional Security Reviews)

Present Section

None

Proposed Section

83.034 At any time during the period of validity of an authorization granted under section 83.032 or renewed under section 83.035, the Public Safety Minister may conduct additional security reviews under subsection 83.032(10) in respect of any person to whom the authorization applies. For the purpose of those reviews, that Minister may request that the person to whom the authorization is granted provide any additional information in the form and manner, and within the period, that are specified by that Minister.

Subject and Effect

Persons, including organizations, in receipt of an authorization could be subject to periodic security reviews in addition to any regular reporting and monitoring requirements. New information submitted as part of these reporting requirements could be assessed to further determine if an organization has, for example, links to a terrorist group or was acting on behalf of one; or, if there are new facts that demonstrate that an organization is not sufficiently capable of carrying out stated activities without undue risk.

Any applicant subject to additional security screening would be required to provide the requisite information to the administering departments to facilitate the review. The applicant would be required to collect, to the best of their or the organization's ability, all required information pertaining to the person granted the authorization, including their affiliates or intermediaries that would be implementing the spectrum of authorized activities.

Reason for Change

Terrorist financing remains a criminal offence and authorizations would only shield applicants from criminal liability for providing an unavoidable benefit to a terrorist group associated with activities carried out for specific purposes, which would be authorized subject to strict terms and conditions. An authorization would not excuse efforts to deliberately leverage the authorization to provide a benefit to a terrorist group beyond what is unavoidable. Activities that are aimed to directly benefit a terrorist group and support terrorist activities would remain criminal and section 83.034 would provide an important safeguard to address ongoing developments in order to mitigate the risk of terrorist financing or diversion from activities cover by the authorizations.

Related Clauses

Clause 1, in subsection 83.032(10)

Clause 1 (Section 83.035 of the Criminal Code – Renewal of Authorizations)

Present Section

None

Proposed Section

Renewal of authorization

83.035 (1) The Public Safety Minister may renew an authorization granted under section 83.032 for successive periods of not more than five years each on application, for each renewal, made within any period set out in the regulations and before the authorization expires.

Exception

83.035 (2) Despite subsection (1), if an application for renewal is made after the authorization expires, the Public Safety Minister may renew the authorization if, in that Minister's opinion, there are exceptional circumstances that justify why the application for renewal was not made before it expired.

Subject and Effect

An authorization holder would be able to apply for a renewal of the authorization. Requests to extend the duration of an authorization would be assessed and decided by the Public Safety Minister.

Renewed authorizations would be valid for up to 5 years. An authorization that has expired would require a new submission; however, a renewal application of an expired authorization could be considered where the applicant can satisfy the Public Safety Minister that there are exceptional circumstances as to why the renewal application was not made before expiry of the authorization.

Reason for Change

An authorization that had expired, would no longer be valid. Any transactions that occur without a valid authorization would be subject to proposed subsection 83.03(2) of the Criminal Code. Organizations would be encouraged to submit requests for renewal prior to the expiry of the authorization and within any time period set out in regulations, any operating policy or the authorization itself.

Related Clauses

Clause 1, in subsection 83.032(14)

Clause 1 (Section 83.036 of the Criminal Code – Amendment to authorizations)

Present Section

None

Proposed Section

Amendment to authorization

83.036 (1) The Public Safety Minister may amend an authorization granted under section 83.032 or renewed under section 83.035, including any terms and conditions included in it.

Exception

83.036 (2) Despite subsection (1), the Public Safety Minister is not permitted to amend an authorization if the amendment would be so significant as to change the essential nature of the authorization, including if the amendment would replace a purpose set out in subsection 83.032(1) and specified in the authorization or add another such purpose.

Supporting information

83.036 (3) The person to whom the authorization is granted must provide to the Public Safety Minister any information specified by that Minister in support of the amendment.

Subject and Effect

Section 83.036 provides that the Public Safety Minister would be able to amend a new or renewed authorization. Full supporting information would have to accompany any request for an amendment. Guidance documents and regulations would provide details on the process for requesting amendments to the granted authorization.

Section 83.036(2) would require that where the essential nature of an authorization has changed (that is, the authorization holder wishes to also carry out activities for a different purpose other than the one for which the authorization was granted), a new application would be required. If the changes in activities would be significant, but for the same purpose, and not covered substantively in the authorization, a new authorization could also be required.

Authorization holders would be responsible for identifying any amendments to an authorization that may be deemed necessary and would have to submit an application or amendment request accordingly.

Reason for Change

Section 83.036 would provide flexibility by recognizing that projects and operating conditions change and that a new application would not always be warranted. Where changes are substantial, a new application and assessment would be required to ensure that appropriate new assessments would be complete to inform the Minister's decision.

Related Clauses

None

Clause 1 (Section 83.037 of the Criminal Code – suspension and revocation)

Present Section

None

Proposed Section

Authorization — suspension and revocation

83.037 The Public Safety Minister may, at any time after granting an authorization under section 83.032, suspend or revoke it or restrict its scope if

  1. a person to whom the authorization applies fails to comply with the authorization, including any terms and conditions included in it;
  2. the person to whom the authorization is granted fails, without reasonable excuse, to comply with any reporting requirements or to provide any information requested under section 83.034; or
  3. the Public Safety Minister is no longer satisfied that the condition set out in paragraph 83.032(9)(b) is met.

Subject and Effect

The Minister could, at any time, suspend, revoke, or further restrict an authorization for failure to comply with the authorization or its reporting requirements, as well as in circumstances where there is a material change in the balance of the risk of terrorism financing versus the benefit(s) of the activity. This could include circumstances where any adverse information may be found during an additional security review.

Reason for Change

Section 83.037 would provide a means to address non-compliance and address elevated risk levels should the cumulative incidental benefit to a terrorist group be deemed too significant. This would include situations where the Minister is no longer satisfied that the benefits of carrying out of the proposed activity outweigh the terrorist financing risk. The Public Safety Minister could also restrict the scope of an authorization as necessary to counteract the risk(s) of terrorist financing.

Related Clauses

None

Clause 1 (Section 83.038 of the Criminal Code – assistance to Public Safety Minister)

Present Section

None

Proposed Section

Assistance to Public Safety Minister

83.038 The following entities may assist the Public Safety Minister in the administration and enforcement of sections 83.031 to 83.0392, including by collecting information from and disclosing information to that Minister and each other:

  1. the Canadian Security Intelligence Service;
  2. the Royal Canadian Mounted Police;
  3. the Communications Security Establishment;
  4. the Department of National Defence;
  5. the Canadian Armed Forces;
  6. the Department of Foreign Affairs, Trade and Development;
  7. the Canada Revenue Agency;
  8. the Canada Border Services Agency;
  9. the Department of Citizenship and Immigration; and
  10. any other entity prescribed by regulation.

Subject and Effect

The persons or entities listed by section 83.038 could assist the Public Safety Minister in the administration and enforcement of this authorization regime including by sharing information with the Minister and each other: The Canada Revenue Agency would only disclose taxpayer information for the purposes of a security review.

Reason for Change

Section 83.038 would create the necessary authorities to allow for the disclosure of information by departments and agencies listed in this section, in support of the operations and administration of the authorization regime.

Related Clauses

Clauses 3, 4, 5, 6

Clause 1 (Section 83.039 of the Criminal Code – Judicial review and protection from disclosure rules)

Present Section

None

Proposed Section

Judicial review

83.039 (1) The rules set out in subsection (2) apply to judicial review proceedings in respect of decisions made by the Public Safety Minister, the Minister of Foreign Affairs or the Minister of Citizenship and Immigration under sections 83.032 to 83.038.

Rules

83.039 (2) The following rules apply for the purposes of subsection (1):

  1. at any time during the proceeding, the judge must, on the request of the relevant Minister, hear submissions on evidence or other information in the absence of the public and of the applicant and their counsel if, in the judge's opinion, the disclosure of the evidence or other information could be injurious to international relations, national defence or national security or could endanger the safety of any person;
  2. the judge must ensure the confidentiality of the evidence and other information provided by the relevant Minister if, in the judge's opinion, its disclosure would be injurious to international relations, national defence or national security or would endanger the safety of any person;
  3. the judge must ensure that the applicant is provided with a summary of the evidence and other information available to the judge that enables the applicant to be reasonably informed of the reasons for the relevant Minister's decision but that does not include anything that, in the judge's opinion, would be injurious to international relations, national defence or national security or would endanger the safety of any person if disclosed;
  4. the judge must provide the applicant and the relevant Minister with an opportunity to be heard;
  5. the judge may base their decision on evidence or other information available to them even if a summary of that evidence or other information has not been provided to the applicant;
  6. if the judge determines that evidence or other information provided by the relevant Minister is not relevant or if the relevant Minister withdraws the evidence or other information, the judge must not base their decision on that evidence or other information and must return it to the relevant Minister; and
  7. the judge must ensure the confidentiality of all evidence and other information that the relevant Minister withdraws.

Protection of information on an appeal

83.039 (3) Subsection (2) applies to any appeal of a decision made by a judge in relation to the judicial review proceedings referred to in subsection (1) and to any further appeal, with any necessary modifications.

Definition of judge

83.039 (4) In this section, judge means the Chief Justice of the Federal Court or a judge of that Court designated by the Chief Justice.

Subject and Effect

If an initial assessment of an application did not lead to a referral to the Public Safety Minister, the Ministers of Foreign Affairs or Immigration, Refugees, and Citizenship would inform the applicant of the results of their assessment. If an application for an authorization that was referred to the Public Safety Minister for decision was denied, Public Safety would inform the applicant of the decision rendered. If an application for an authorization was denied at any stage, an applicant could seek judicial review of the decision to deny the application (subsection 83.039(1)).

The rules set out in section 83.039(2) would create a regime, that would be relied upon at the judicial review stage, for the use and protection from disclosure of sensitive information that could be injurious to national security, international relations, or national defence, or could endanger the safety of any person. In the case of a judicial review of a decision flowing from this regime, a designated judge of the Federal Court would examine in private, evidence or information used, where the disclosure of the information would be injurious to national security, international relations, or national defence, or endanger the safety of any person. The judge would be permitted to rely on such information, in arriving at a decision, even where the information has not been disclosed to the applicant.

Section 83.039(3) would provide that the same rules apply to any appeal of a decision made by a judge regarding judicial review proceedings.

Reason for Change

Section 83.039 would protect the disclosure of information that would be injurious to national security, international relations, or national defence, or endanger the safety of any person used to formulate decisions on the issuance of an authorization because the release of the information would be contrary to the public interest and that protection from disclosure is therefore necessary.

Related Clauses

None

Clause 1 (Section 83.0391 of the Criminal Code – Regulation-making authority)

Present Section

None

Proposed Section

Regulations

83.0391 The Governor in Council may, on the recommendation of the Public Safety Minister, make regulations

  1. respecting applications for authorization referred to in subsection 83.032(1);
  2. respecting the granting, renewal, amendment, suspension, revocation or restriction of the scope of authorizations by the Public Safety Minister for the purposes of sections 83.032 and 83.035 to 83.037;
  3. respecting reporting by the person to whom an authorization is granted under section 83.032 for the purpose of ensuring compliance with the authorization and with any terms and conditions included in it under subsection 83.032(12); and
  4. prescribing any other entity for the purpose of paragraph 83.038(j).

Subject and Effect

The regulation-making authority found in section 83.0391 would provide that regulations be made to address, for example, additional requirements pertaining to the application process, including granting, renewing, amending, suspending, revoking, restricting and reporting, monitoring and compliance requirements.

Reason for Change

Regulations, if enacted, would support the implementation of the authorization regime by providing clarity to potential applicants regarding its operation.

Related Clauses

None

Clause 1 (Section 83.0392 of the Criminal Code – Annual report and five year review)

Present Section

None

Proposed Section

Annual report

83.0392 (1) The Public Safety Minister must prepare and cause to be laid before the each House of Parliament, within 180 days after the first day of January of every year, a report on the operation of sections 83.031 to 83.0391 for the previous calendar year.

Comprehensive review and report

83.0392 (2) A comprehensive review of sections 83.031 to 83.0391 and their operation must be conducted by the Public Safety Minister no later than the fifth anniversary of the day on which this section comes into force. The Public Safety Minister must cause a report to be laid before each House of Parliament within 180 days after that fifth anniversary.

Subject and Effect

The Public Safety Minister would have to table an annual report on the operation of the authorization regime in both Houses of Parliament within 180 days of January 1st each year.

The Public Safety Minister would also have to conduct a comprehensive review of the authorization regime no later than five years of the coming into force of the legislation. A report on the results of the review would have to be laid before each House of Parliament within 180 days after that fifth anniversary.

Reason for Change

Section 83.092 would ensure Government accountability and transparency for the operation of the proposed authorization regime in two ways. First, it would compel the Public Safety Minister to table an annual report on the operation of the authorization regime. Federal lead departments would monitor activities and collect data on authorizations and provide that information to the Public Safety Minister to ensure a comprehensive annual report. Secondly, it would compel the Public Safety Minister to conduct a comprehensive review of the regime no later than five years after its coming into force and to publish the results of that review no later than six months after that date.

The bill would come into force on Royal Assent.

Related Clauses

None

Clause 2 (Section 183 of the Criminal Code – definition of offence)

Present Section

(xii.2) section 83.03 (providing, making available, etc., property or services for terrorist purposes),

Proposed Section

Clause 2 Subparagraph (a)(xii.2) of the definition offence in section 183 of the Act is replaced by the following:

(xii.2) subsection 83.03(1) (providing, making available, etc., property or services for terrorist purposes),
(xii.21) subsection 83.03(2) (providing, making available, etc., property or services — use by terrorist group),

Subject and Effect

Section 183 of the Criminal Code, which lists the offences for which a wiretap can be obtained, includes a reference to section 83.03. Section 83.03 currently includes the offences set out in paragraphs 83.03(a) and (b).

The proposed amendment would replace the reference to section 83.03 with specific references to these two offences that are proposed to be in separate and independent subsections, these being subsections 83.01(1) and (2).

Reason for Change

This change would be made to reflect the changes proposed in the Bill to divide current paragraphs 83.03(a) and (b) into two separate independent subsections.

Related Clauses

None

Clause 3 (Consequential amendments to the Canada Business Corporations Act)

Present Section

  1. section 83.03 (providing, making available, etc., property or services for terrorist purposes);

Proposed Section

CLAUSE 3 Paragraph 1(e) of the schedule to the Canada Business Corporations Act is replaced by the following:

  1. subsections 83.03(1) and (2) (providing, making available, etc., property or services for terrorist purposes and providing, making available, etc., property or services — use by terrorist group);

Subject and Effect

This is a consequential amendment to reflect the retitling and renumbering of offences under subsection 83.03 of the Criminal Code in a schedule that references this subsection under the Canada Business Corporations Act (CBCA).

Reason for Change

Under the CBCA, an investigative body may make a request for information within a corporation's register of individuals with significant control only if it has reasonable grounds to suspect that the copy of the corporation's register or the specified information in the register would be relevant to investigating an offence referred to in the Act's schedule. Reflecting the renumbering and retitling of subsection 83.03 of the Criminal Code in the CBCA schedule maintains current law and policy.

Related Clauses

None

Clause 4 (Consequential amendments to the Excise Tax Act)

Present Section

Disclosure of personal information

(5) An official may

  1. provide confidential information:
    (xiv) to a person who is employed in the service of, who occupies a position of responsibility in the service of, or who is engaged by or on behalf of, the Canada Mortgage and Housing Corporation, solely for the purposes of the formulation or evaluation of policy for the Rental Housing Benefit Act;

Proposed Section

Clause 4 Paragraph 295(5)(d) of the Excise Tax Act is amended by striking out “or” at the end of subparagraph (xii), by adding “or” at the end of subparagraph and by adding the following after subparagraph (xiii):

(xiv) to an official solely for the purposes of a security review under subsection 83.032(10) or section 83.034 of the Criminal Code, if the information can reasonably be considered to be relevant to the security review;

Subsection 295(5) of the Excise Tax Act authorizes the communication of confidential information obtained under the Excise Tax Act to specified persons for specific purposes.

Reason for Change

New subparagraph 295(5)(d)(xiv) is added so that confidential information may be provided to an official, solely for the purpose of a security review under the proposed authorization regime under the Criminal Code. This amendment will enable the Canada Revenue Agency to provide relevant information to an official, in respect of a person that is an applicant or any person who is to be involved in carrying out activities permitted under the proposed authorization regime.

This amendment is similar to consequential amendments being made to Part XV of the Income Tax Act (in relation to income tax) and the Excise Act, 2001 (in relation to excise duties on tobacco, cannabis, vaping and alcohol products).

Related Clauses

Clauses 1, 5, 6

Clause 5 (Consequential amendments to the Income Tax Act)

Present Section

Where taxpayer information may be disclosed

(4) An official may

  1. provide taxpayer information
    (xxii) to a person who is employed in the service of, who occupies a position of responsibility in the service of, or who is engaged by or on behalf of, the Canada Mortgage and Housing Corporation, solely for the purposes of the formulation or evaluation of policy for the Rental Housing Benefit Act;

Proposed Section

Clause 5 Paragraph 241(4)(d) of the Income Tax Act is amended by striking out “or” at the end of subparagraph (xxi), by adding “or” at the end of subparagraph (xxii) and by adding the following after subparagraph (xxii):

Subject and Effect

Subsection 241(4) authorizes the communication of taxpayer information obtained under the Income Tax Act to specified persons for specific purposes.

Reason for Change

New subparagraph 241(4)(d)(xxiii) is added so that taxpayer information may be provided to an official, solely for the purpose of a security review under the proposed authorization regime under the Criminal Code. This amendment will enable the Canada Revenue Agency to provide relevant information to an official, in respect of a person that is an applicant or any person who is to be involved in carrying out activities permitted under the proposed authorization regime.

This amendment is similar to consequential amendments being made to Part IX of the Excise Tax Act (in relation to the Goods and Services Tax/Harmonized Sales Tax) and the Excise Act, 2001 (in relation to excise duties on tobacco, cannabis, vaping and alcohol products).

Related Clauses

Clauses 1, 4, 6

Clause 6 (Consequential amendments to the Excise Act, 2001)

Present Section

Disclosure of personal information

(6) An official may

  1. provide confidential information
    (xiv) to a person who is employed in the service of, who occupies a position of responsibility in the service of, or who is engaged by or on behalf of, the Canada Mortgage and Housing Corporation, solely for the purposes of the formulation or evaluation of policy for the Rental Housing Benefit Act;

Proposed Section

Clause 6 Paragraph 211(6)(e) of the Excise Act, 2001 is amended by striking out “or” at the end of subparagraph (xiii), by adding “or” at the end of subparagraph and by adding the following after subparagraph (xiv):

Subject and Effect

Subsection 211(6) of the Excise Act, 2001 authorizes the communication of confidential information obtained under the Excise Act, 2001 to specified persons for specific purposes.

Reason for Change

New subparagraph 211(6)(e)(xv) is added so that confidential information may be provided to an official, solely for the purpose of a security review under the proposed authorization regime under the Criminal Code. This amendment will enable the Canada Revenue Agency to provide relevant information to an official, in respect of a person that is an applicant or any person who is to be involved in carrying out activities permitted under the proposed authorization regime.

The changes to the Excise Act, 2001 would automatically update the information sharing rules for the fuel charge under Part 1 of the Greenhouse Gas Pollution Pricing Act, for the Underused Housing Tax Act and for the Select Luxury Items Tax Act, as those Acts refer to subsection 211(6) of Excise Act, 2001.

This amendment is similar to consequential amendments being made to Part XV of the Income Tax Act (in relation to income tax) and Part IX of the Excise Tax Act (in relation to the Goods and Services Tax/Harmonized Sales Tax).

Related Clauses

Clauses 1, 4, 5

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