Parliamentary Committee Notes: Overview Deck (for background)

Introduction

• Paragraph 83.03(b) of the Criminal Code makes it a criminal offence to collect property, or provide, invite a person to provide, or make available property or financial or other related services, directly or indirectly, knowing that it will be used by, or benefit, a terrorist group.
• Payments, including taxes, made to the de facto national authority in Afghanistan would inevitably be used by and/or benefit the Taliban:
  • Canadian organizations delivering assistance are at risk of contravening the Criminal Code;
  • Organizations are calling for permanent and well-framed humanitarian exemptions to be included in the relevant sections of the Criminal Code.
• Thus far there were no exemptions but Bill C-41 seeks to rectify this.
• Responds to the House of Commons Special Committee on Afghanistan and the Standing Senate Committee on Human Rights recommendation that the Government urgently introduce legislation to create an explicit humanitarian exemption to the Criminal Code to section 83.03(b).

Summary

Bill C-41 would:

• Amend the Criminal Code by creating a regime permitting the Minister of Public Safety (PS) to grant an authorization under which an eligible person (including organizations) may carry out, in a geographic area controlled by a terrorist group activities for certain purposes that otherwise would be prohibited under paragraph 83.03(b);
• Amend the Criminal Code to create a humanitarian assistance exemption from the terrorist financing offences in section 83.03 for the sole purpose of carrying out humanitarian assistance activities conducted by impartial humanitarian organizations in accordance with international law while using reasonable efforts to minimize any benefit to terrorist groups and to delete the possibility of people otherwise applying for an authorization for humanitarian assistance;
• Make related consequential amendments to other acts; and
• Permit the Governor in Council to issue regulations in respect to the authorization regime.

JUST Committee review and amendments

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.
  • An amendment (NDP-1) to add the words “wilfully and without lawful justification or excuse” to paragraphs 83.03(1) and (2).
• Address the desire for a permanent standing humanitarian exemption to provide certainty to humanitarian actors.
  • An amendment (NDP-3) to , as noted previously, create a humanitarian assistance exemption from the terrorist financing offences in section 83.03 for the sole purpose of carrying out humanitarian assistance activities in accordance with international law and to delete the possibility of people otherwise applying for an authorization for humanitarian assistance. 
• 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.
  • 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.
• Amended (NDP-9) to shorten waiting period for re-application (180 to 30 days).
• Restricting 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 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 only used for the administration and enforcement of the regime and that Minister must ensure that the assisting entities comply. 
• 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.
• 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).
  • Will publish the number of requests, authorizations and denials.
  • Requires that the unredacted report be provided to the National Security and Intelligence Committee of Parliamentarians as well as the National Security and Intelligence Review Agency.
• 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.
  • The report of which must be laid before Parliament within 180 days after that first year and every five years thereafter, must also include a plan and timeline to remedy any deficiencies.

An Important Balance: The Implementation

As captured in Bill C-41:

• A humanitarian assistance exemption from the terrorist financing offences in section 83.03 for the sole purpose of carrying out humanitarian assistance to address the urgency of humanitarian crises.
• Authorization Regime will present a balance between shielding from criminal liability for unavoidable risk of terrorist financing while mitigating abuse.
• The scope of what can be authorized considers a range of specified activities from key development assistance activities including the need to support women and girls and their safe and meaningful participation in society.
• It also removes a barrier for activities to support immigration including resettlement and safe passage of Afghans.
• A person is eligible to be granted an authorization if they are in Canada or a Canadian outside Canada.
• At the request of an eligible person, the Public Safety Minister must provide information whether or not an authorization is required.

Scope and Purpose

• Exemption for humanitarian assistance activities conducted under the auspices of impartial international humanitarian organizations (e.g., food, shelter, hygiene, protection, response to natural disasters, etc).
• Authorizations can be granted for a class of activities for any specified purpose from the following:
  • Health services (e.g., immunization, maternal and childcare services, disease outbreak monitoring and response)
  • Education services (e.g., education materials, literacy training)
  • Programs that support earning a livelihood (e.g., provision of small-scale agricultural inputs to assist vulnerable farmers, support to women-led businesses)
  • Human rights programming (e.g., support for human rights defenders and women’s rights groups)
  • Immigration services, including resettlement and safe passage (e.g., transportation, accommodations)
  • Activities to support federal ministers or GoC departments or agencies to conduct critical operations other than those outlined above.

Conditions for Referral: Assessment of Benefit

• The Public Safety Minister will consider applications referred to him/her by the Minister of Foreign Affairs and/or the Minister of Immigration, Refugees and Citizenship (IRC).
• For an application to be referred, the Minister of Foreign Affairs and/or IRC must be satisfied that the application:
  • Meets any requirements set out in regulations;
  • Proposes activities that will occur in a geographic area controlled by a terrorist group and align with the specified purposes under the regime;
  • Proposes activities that respond to a real and important need in the geographic area; and
  • Is made by an applicant capable of administering funds, and reporting on that administration, in a transparent and accountable manner.

Security Review: Assessment of Risk

• After receiving a referral, the Public Safety Minister will conduct a security review to assess the impact of granting the authorization on terrorism financing and other security considerations before granting an authorization.
• The security review will assess, among other factors:
  • Whether the applicant or any persons involved with the proposed activity have any links to terrorist groups;
  • The likelihood that the applicant or any persons involved in the proposed activity, will be acting on behalf, at the direction, or in association with a terrorist group in carrying out the activity; and
  • Whether the applicant or any persons involved in carrying out the proposed activity is or has been investigated, charged or convicted of a terrorism offence.
• The Public Safety Minister may request that the applicant provide additional information within a specified period. The application may be deemed to be withdrawn if the applicant fails to do so, without reasonable explanation.

Granting Authorizations: Need & Risk / Benefit Assessment

• The Public Safety Minister may decide to grant an authorization if they are satisfied that:
  • There is no practical way of carrying out the proposed activity without creating a risk of terrorism financing; and
  • The benefits of the proposed activity outweigh that risk.
• The risk/benefit assessment will consider:
  • The referral of the Minister of Foreign Affairs and/or IRC on the need for the proposed activity in the specified region, and the capability of the applicant to manage funds in circumstances involving terrorist groups, amongst other things;
  • The security review findings;
  • Any measures to mitigate risk and any other terms and conditions, that may be included in the authorization; and
  • Any other factors considered appropriate.

Refusal of Authorizations and Recourse

• The Public Safety Minister, the Minister Foreign Affairs and/or the Minister of IRC must give notice of a decision to refuse an application within a reasonable time.
  • An applicant whose application was refused is not permitted to make a new application for the same proposed activity for 30 days.
• The decisions made by the Public Safety Minister, the Minister of Foreign Affairs and the Minister of IRC are subject to judicial review.
  • Proceedings may not disclose information that is injurious to international relations, national defence or national security or could endanger the safety of any person if disclosed. Such information will be reviewed in private by a designated judge. However, the judge may allow an amicus curiae to participate and to review the evidence and other information.

Granted Authorizations & Renewal

• A granted authorization:
  • Is valid for a period up to 5 years, as specified in the authorization;
  • May be subject to additional security reviews;
  • May be subject to any terms and conditions;
  • Applies, in addition to the person named in it, to any other person involved in carrying out an activity in accordance with the authorization;
  • Does not guarantee that financial institutions will facilitate financial flows to Afghanistan but may help those institutions in deciding whether or not to facilitate that flow.
• To renew the authorization, applicants must apply prior to the expiry of an authorization and in accordance with regulations.
  • If an authorization has expired, the Public Safety Minister may renew the authorization if there are exceptional circumstances.

Amendment, Revocation & Suspension

Amendment

• On request of the applicant, the Public Safety Minister would be able to amend any granted or renewed authorization except if the proposed modification alters the essential nature of the application, including if it would change the purpose for which it was granted.

Revocation and Suspension

• Granted or renewed authorizations may be revoked, suspended, or restricted in scope, at any time, by the Public Safety Minister, if:
  • The applicant fails to comply with the authorization or its terms and conditions;
  • The applicant fails to comply with reporting requirements or does not provide requested information; or
  • The Public Safety Minister determines that the benefit of the activity no longer outweighs the risk of terrorist financing.

Assistance & Information Sharing

• To administer and enforce the regime, the following persons or entities may provide assistance, including collecting information from, and disclosing information to, the Public Safety Minister and each other:
  • Canadian Security Intelligence Service;
  • Royal Canadian Mounted Police;
  • Communications Security Establishment;
  • National Defence and Canadian Armed Forces;
  • The Department of Foreign Affairs, Trade and Development;
  • Canada Revenue Agency (taxpayer information may be shared only for the purpose of security reviews);
  • Canada Border Services Agency;
  • Immigration, Refugees and Citizenship Canada; and,
  • Any other person or entity prescribed by regulation.
• Any collected or disclosed information would have to be used only for administration and enforcement of the Authorization Regime.

Accountability

Annual Report

• Each year, the Public Safety Minister must table within 90 days after the first day in January an annual report before Parliament on the operation of the authorization regime.
  • Will set out the number of applications for authorization made, approved or refused.
  • An unredacted report will be forwarded to the National Security and Intelligence Committee of Parliamentarians (NSICOP) and to the National Security and Intelligence Review Agency (NSIRA).

ComprehensiveReview

• Within the first year and every 5 years thereafter of this bill coming into force, the Public Safety Minister must conduct a comprehensive review of the authorization regime and table a report before Parliament within 180 days.
  • Any identified deficiencies will be accompanied by a proposed remedy, including potential legislative amendments and the timeline for implementation.

Questions?

Date modified:

2023-09-15