Bill C-41

An Act to amend the Criminal Code and to make consequential amendments to other Acts

This enactment amends the Criminal Code in order to create a regime under which the Minister of Public Safety and Emergency Preparedness may authorize an eligible person to carry out, in a geographic area that is controlled by a terrorist group and for certain purposes, activities that otherwise would be prohibited under paragraph 83.03(b) of that Act (which becomes subsection 83.03(2)). It also makes consequential amendments to other Acts.

[Martin Fischer]

If I can just throw some of that question back to the government, because it's ultimately.... The bill we have before us is the bill that we have before us for reasons that we heard on Monday, from both Minister Mendicino and the officials. If there's a legal as well as a political way to insert that exemption, by all means, do so. I don't think anybody at this table is going to say, “Don't do that.”

What we're saying, though, is that it shouldn't be the litmus test of whether this particular.... A fine-tuned version of Bill C-41 should proceed. Just to reiterate, we also have the position that the two aren't mutually exclusive. You can do them in a sequenced kind of way.

Really, Ms. Damoff—we know each other well—it's a matter of what the government intends to do. I think we would strongly support what MSF and others said during the first session, which is that, yes, if there's a way to do this, if it's ruled within scope during the amendment process, then by all means, please do it, but we would also urge—to turn to opposition—that it is not the litmus test of the bill. There are other ways to improve the bill as it stands that make it fit for purpose.

As Amy said, if that is done, we should still proceed while seeking the long-term commitment and working towards an improved framework that includes an exemption. I hope that's clear.

[Amy Avis, Chief of Emergency Management and General Counsel, Canadian Red Cross]

Thank you for the opportunity to speak with you this evening.

A core belief of the Canadian Red Cross as well as of our sector partners is that no one should be blocked from receiving humanitarian assistance on the basis of location. We believe that Bill C-41 is a critical step forward in a longer-term journey to protect the provision of neutral and impartial humanitarian assistance. If implemented, put simply, it will enable Canadian aid organizations to resume operations in Afghanistan and conduct its operations in complex contexts across the globe.

I would like to focus on four recommendations today. The first is expediency. The second is alignment of the amendments to the purpose of the bill. The third is ensuring that the authorization regime is fit for purpose, and the fourth is the commitment to the longer-term journey that my colleague referred to.

In terms of expediency and implementation, all of us are aware of the staggering need for humanitarian assistance in Afghanistan. No one would like to see a second anniversary come to pass while Canadian aid organizations desperately want to deploy their resources, Canadian expertise and support to those who desperately need it. These programs are vital for improving access to health care and other life-saving assistance, in particular for women and girls.

My second submission is with regard to alignment of the amendments to the bill. We heard many discussions earlier this evening in terms of recommendations, and we agree with a lot of them that have been discussed.

What we would say is that the bill is intended to address an exceptional set of circumstances and rare contexts in which interaction with a terrorist entity is wholly unavoidable. It isn't about just the context of Afghanistan; it is around narrow, exceptional circumstances globally. To better support this intent, one of our strongest recommendations is to use the language of “substantial” control rather than “sufficient” control.

Finally, although there's a need for further clarity in the language of the bill, any revision must guard against the unintended consequence of increasing the breadth of application of the authorization regime.

This brings me to my third point: ensuring that the authorization regime itself is fit for purpose.

The coalition has chosen to focus on the implementation of the authorization regime because we feel as though this is where the rubber is truly going to hit the road. Beyond amendments to the bill itself, this is something that we can't lose sight of. We believe it has to be clear, fair, consistent, practical, expedient, reasonable and resourced. It also has to keep pace with operational realities.

The last is the most important, and I see my time is up, so I will be brief. It's the commitment to the longer-term journey. This is the step, the building block. It isn't everything. As long as we're committed to the longer-term journey that needs to be taken forward to systematize the provision of neutral and impartial humanitarian assistance, we strongly support the recommendations of this bill.

[Martin Fischer, Head of Policy, World Vision Canada]

Thank you, Chair.

Honourable members, thank you for inviting us to appear today on your deliberations on Bill C-41.

My name is Martin Fischer. I'm the head of policy for World Vision Canada, and I'm joined by my colleague, Amy Avis, who's the chief of emergency management at the Canadian Red Cross and also a much more qualified lawyer than I will ever try to be.

We're joining you from Ottawa, which is on the unceded territory of the Algonquin Anishinabe people.

Our organizations are both members, as Usama has mentioned, of the #AidForAfghanistan coalition, a diverse group of Canadian humanitarian aid, human rights and women's rights organizations that have operated in Afghanistan for decades. Today we're speaking to a submission that was jointly prepared by eight organizations.

I want to emphasize that over the past months, and in fact longer than a year, we've closely engaged with parliamentarians from all parties and many of you around a table, as well as officials and ministerial staff from many departments, and that dialogue has been exceedingly constructive throughout. Thank you for that.

Before Amy details some of the legal considerations of our submission, I want to stress three points regarding Bill C-41.

First, as you progress through these deliberations, you'll hear, as you have, a spectrum of views on Bill C-41. We believe that with some fine tuning, it is a critical step forward in a longer-term journey to ensure that Canadian humanitarian organizations as well as those delivering other services in these difficult contexts can operate in a neutral, impartial and independent manner in the most difficult and exceptional circumstances.

Second, Bill C-41 applies to a very narrow, exceptional set of contexts in which interaction with the terrorist group's exercise of control over territory is wholly unavoidable.

Third, while Bill C-41 is not specific to just Afghanistan, it can enable us to resume work in that particularly challenging context, hopefully in the very short term. We cannot lose sight of the severity of the humanitarian crisis there and the obligations that Canada and Canadians have to help.

I'd like to turn it over to Amy now. She will outline some of our legal perspectives and recommendations contained in this submission.

[Usama Khan, Chief Executive Officer, Islamic Relief Canada]

Thank you so much, Mr. Chair and members of the committee.

My name is Usama Khan. I'm the chief executive officer at Islamic Relief Canada, which is a member of the Humanitarian Coalition.

Since 1999, Islamic Relief globally has been operational in Afghanistan, and throughout the current last two years as well. Recently, the UNDP selected Islamic Relief as an implementing partner for a $22-million project, recognizing that it can deliver in Afghanistan in an effective, transparent and accountable way.

I want to start off by acknowledging how proud I am of the Aid for Afghanistan coalition, which includes the Red Cross, World Vision and many other agencies that come together and encourage legislative change on this important area. I also must acknowledge that I think we're here speaking about this today because of public mobilization and the tens of thousands of people across the country who are interested in Canada's position on this. For me, that is the true power of democracy.

With the current language in Bill C-41, we feel there are some unintended consequences that may actually move us backward instead of forward. Continuing on the discussion from the last session, I want to add a few perspectives from our experience in working in Afghanistan.

On the question of how much aid or how many taxes go to countries, I know a figure of 70% was raised as a hypothetical scenario in the question-and-answer period. Maybe I can give some tangible examples from this crisis.

In the summer of 2021, when the Taliban took over the government, we wanted to understand our risk appetite as Islamic Relief, so we figured out and calculated what the taxes were. They were around 3%. This is what we did at Islamic Relief. The U.K. and the U.S., our counterparts, do have broader humanitarian exemptions, and we wanted to continue helping the people of Afghanistan with Canadian donor funds that our donors from across the country wanted to give for Afghanistan, so we carved out the 3% that was for government taxes, and our counterparts in the U.K. subsidized that portion. As a result, no Canadian funds were being used that went to the government.

That is just to give an example that agencies like Islamic Relief have very robust anti-diversion policies and anti-bribery policies, and to give them the space to make those operational decisions on the ground that will be reasonable and accountable....

First, I think that placing the additional administrative burden on charities as part of the authorization regime would be onerous. The onus should be on the government to decide which organizations are listed, and not on the charities to do that themselves.

Second, I want to spend a few moments on the process of the authorization regime, particularly around the risks of terrorism financing. In terms of the securitization of humanitarian aid, Canada's updated inherent risk assessment for money laundering and terrorism financing was released a few weeks ago. It mentions that “the government must be vigilant to avoid systemic and unconscious bias influencing how it is applied.”

There's some language in the bill with respect to what we heard about the vague word “links”, which I think now or in the future could be used as a political tool and could be used to have a chilling effect on the humanitarian sector. I think it's important that we look at the oversight, transparency and accountability measures that would be in place as part of the authorization regime in approving these things.

In conclusion, this is an important step and this discussion is an important step, but we want to make sure that the unintended consequences don't outweigh the benefit that we're trying to achieve.

Thank you so much.

[Shabnam Salehi, As an Individual]

Dear Mr. Chair and members of the committee, I am honoured to have the opportunity to express my opinion regarding Bill C-41.

I am Shabnam Salehi. I was the women's rights commissioner at the Afghanistan Independent Human Rights Commission, and besides that, I was a lecturer at Kabul University. Now I am a visiting lecturer at the University of Ottawa.

In my opinion, the bill will grant the Canadian government the necessary permission to effectively address the ongoing crisis in Afghanistan.

As you all are aware, Afghanistan is facing a humanitarian crisis that is affecting millions of people. According to OCHA, 28.3 million people have been found to have severe food insecurity, and nearly 19.9 million people suffer from acute hunger. According to the UNDP, as of mid-2022, almost 97% of Afghans were living below the World Bank's $1.90-per-day international poverty threshold.

Additionally, poverty in Afghanistan is likely to become even worse. Before August 2021, Afghanistan's economy was 75% dependent on foreign aid. According to the World Bank, a rapid reduction in international grant support, loss of access to offshore assets and disruption in financial linkages are expected to lead to a major contraction of the economy, increasing poverty and macroeconomic instability.

The de facto authority has been continuing to engage in discriminatory actions against women, exemplified by the Taliban's unjustified ban on girls' education. This ban is a result of the Taliban's extremist ideology, which promotes gender apartheid and seeks to exclude women from social life. The Taliban gradually enforced the bans through a series of decrees, starting with prohibiting male teachers from educating girls, followed by the implementation of gender-segregated classes and, ultimately, the closure of secondary education for girls. Additionally, the Taliban limited women's ability to choose certain academic fields and eventually prohibited female university students from pursuing higher education. This further exacerbated the issue, as women were prohibited from working, including in UN agencies. As of the beginning of this week, the Taliban has extended this crackdown on women's education by closing primary schools in four provinces of Afghanistan.

Canada faces a crucial decision: whether to permit the oppressive regime in Afghanistan to continue its discriminatory practices or to take affirmative action to counter its suppression, specifically by empowering the people of Afghanistan, especially women. If Canada opts for the latter, I think the proposed bill allows a blueprint for implementing, executing and assisting the response under the current regime. I believe this bill will present a viable path forward by providing a plan to support the Afghan people, particularly women.

My request to the committee is to ensure that the bill prioritizes the empowerment of women, social mobilization and civil movements as a means of confronting the discriminatory policies imposed by the regime. To achieve this, I propose that the bill strongly emphasize the distribution of aid towards women's empowerment, the protection and promotion of human rights, and widespread social mobilization.

To achieve this mission, I believe that subsequent legislation, policies and programmatic interventions would align Canadian diplomatic and humanitarian assistance with that of other allies to accelerate pressure on the regime to change its discriminatory policies. This will provide Canada with the opportunity to actively engage in the process of empowering and supporting the people of Afghanistan towards a positive change that aligns with Canada's core interests and international commitments.

By working in co-operation with other allies, Canada can pool resources and efforts towards a shared goal of creating a more just and equitable society in Afghanistan. This will also provide an opportunity for Canada to showcase its leadership in promoting human rights and gender equality globally.

Thank you so much.

[The Chair, Liberal, Randeep Sarai]

I call the meeting back to order.

We are back to continue our study on Bill C-41.

We now have Shabnam Salehi, as an individual. We have Usama Khan, chief executive officer of Islamic Relief Canada. Welcome.

From World Vision Canada, we have Martin Fischer, head of policy. We also have Amy Avis, chief of emergency management and general counsel. I think they will be sharing their time.

We don't have anybody online. It is all in person.

We'll begin with Shabnam Salehi for five minutes.

[Tako Van Popta, Conservative, Langley—Aldergrove, BC]

Okay, thank you.

Mr. Belliveau, I'll direct my very short question to you, for a short answer.

Concern has been expressed that the government has been slow in rolling out Bill C-41. We knew there was a humanitarian crisis in Afghanistan and in other places as well.

Has your organization been adversely affected in any way by that delay? Have you been prevented from doing some important work you typically would have done, had Bill C-41 been in place a year ago?

[Claude Maon]

Thank you.

I also want to mention something on security for Ms. McPherson about undermining the principles that I just mentioned, impartiality and neutrality. These are the principles that grant an access to a population, and they're also the principles that grant us protection under the Geneva Conventions. This authorization process would further increase security risks for MSF in the field, because those fields are volatile contexts. In these contexts, we—MSF— would be wrongly presented as agents of the Canadian state. It would be wrong, because we are neutral and impartial. Through that authorization process, we would appear as agents of a country—a state—that has maybe publicly designated some non-state armed groups as terrorists or called for their arrest.

At the same time, Bill C-41's proposal would also give its approval stamp to impartial humanitarian organizations such as MSF to carry out, or not, their activities in territories controlled by those very same armed groups, so attacks could actually also target humanitarian personnel who are with organizations that have so far appeared as neutral and impartial but may no longer appear as such and through the authorization process implementation would rather be presented as being linked to state diplomacy or politics. This would also be a massive risk for humanitarians, including Canadian humanitarians.

[Joseph Belliveau]

With MSF, as with any organization, we have a duty of care to staff. The way that the authorization regime is set up in Bill C-41 poses risks to individuals. The sharing and the providing of personal data and information in such a way that we don't know how that information will be used, where it will be stored or how many agencies will have access to it will pose at least unknown risks to our staff.

We know from just the feedback we've had since Bill C-41 came out that staff working for MSF will be deterred from wanting to continue to work for the organization, because they don't know where their personal data will be stored or what purposes it will be used for.

[Heather McPherson, NDP, Edmonton Strathcona, AB]

Thank you, Mr. Chair.

Five minutes is very short.

First of all, I'd like to thank our witnesses for being with us today. Certainly, I'd like to thank you, Dr. West, for the work you do and for raising in particular the humanitarian context in which these things are happening. I think sometimes that does get lost when we start to talk about the laws. We are not doing this in any context. This is not happening in contexts in which it is easy to work. This is happening in contexts that are very difficult, so thank you.

I'm going to start by asking some questions of MSF, which was the very first organization I ever volunteered with, so it has a special place in my heart. I was 19, so it was a very long time ago.

I read the brief you provided to the committee. In your brief, you refer to the fact that the current authorization regime in Bill C-41 may also pose security risks to Canadian humanitarian staff working for organizations like MSF. You spoke a little about that in your testimony. Can you elaborate on that for me, please?

[Joseph Belliveau]

I think it's pretty clear from what we've been saying so far that we think that an exemption is possible. That is the way to go. We think that it could be expedited relatively simply.

If you back up a little bit, you will see that this problem has existed since the Anti-terrorism Act was put in place in 2001. It created this ambiguity.

Already then, there wasn't an exemption carved out for humanitarian action, so for all of these years, humanitarian actors were left questioning whether or not they might run afoul of the Criminal Code. Now the stakes are raised. The government has come forward and said that it thinks it has a solution here. It doesn't think Bill C-41 is the right solution, but it does feel that we could introduce language within Bill C-41 that would actually clarify, all the way back to the Anti-terrorism Act, that we respect IHL—which Canada clearly does—and that when humanitarians are operating in an IHL context, they will not run afoul of the Criminal Code.

[Alexis Brunelle-Duceppe, Bloc, Lac-Saint-Jean, QC]

Thank you, Mr. Chair.

I'd like to thank all the witnesses who are here, either virtually or in person.

The first disappointment with Bill C‑41 is that it took far too long to introduce. On that, we can all agree. Many members of the government and the opposition have worked very hard on this issue, but it's taken too long.

Now that the bill has been introduced, it's not sitting well with everyone, especially not the humanitarian organizations. So here we are in a bit of a cul-de-sac.

Personally, I definitely want to see this resolved as quickly as possible. I think the main goal of members here is to as quickly as possible get humanitarian aid to Afghanistan and other parts of the world where terrorist entities control areas.

We have two options: Either we decide to address the bill's technicalities and the way it's put together, or we change it completely and apply for a humanitarian exemption.

What do you feel is more important? Is it coming to a quick conclusion so we can vote on the bill? Should we instead change the bill outright and fight as long as possible for a humanitarian exemption?

Mr. Belliveau, perhaps you want to answer this question?

[Joseph Belliveau]

Sure.

I think there's a high risk of politicization on both sides of the fence.

There's a high risk on this side. Once you start this authorization process and have to submit all of this information to all of these government agencies, there is a risk, either now or in the future, that it could be used for purposes beyond the scope of what Bill C-41 is about.

On the other side of the fence, it's the way we get perceived. We depend on being perceived as neutral and consistently impartial. If we're perceived as not holding up to those principles, then we're not going to be able to negotiate our access in places where—listed or otherwise—armed groups are operating.

In sum, you could get politicization on both sides.

[Joseph Belliveau, Executive Director, Doctors Without Borders]

Thank you, Mr. Chair.

For the past 52 years, and today in over 70 countries, Doctors Without Borders or Médecins Sans Frontières, MSF, has alleviated suffering through medical care consistent with the fundamental principles of humanitarian aid: humanity, impartiality, neutrality and independence, and in line with medical ethics. MSF has no other purpose than fulfilling this social function.

Here in Canada, more than 180,000 Canadians support MSF, based on their trust and confidence in what we do. This has allowed us to send 267 Canadians and more than $84 million to our programs around the world in 2022.

Principled humanitarian work is recognized and protected by international humanitarian law, or IHL. Humanitarian organizations, such as MSF, providing essential services impartially with no commercial, political or other objective must be afforded the protection of IHL. Under IHL, humanitarian assistance cannot be considered support for any party to a conflict, even one deemed “terrorist”. In other words, providing humanitarian aid cannot be considered a crime.

IHL is integral to Canadian law. As party to the Geneva Conventions, Canada has an obligation to uphold IHL and must, according to recent United Nations Security Council resolutions, ensure that domestic counterterror legislation is compatible with IHL.

Canada's Supreme Court has similarly affirmed that the Criminal Code must be interpreted such that “innocent, socially useful or casual acts” with no criminal intent are not criminalized.

MSF acknowledges that Bill C-41 aims to facilitate rather than curtail humanitarian action. Unfortunately, Bill C-41 and the counterterror parts of the Criminal Code it relates to are, in their current formulation, inconsistent with IHL and Canadian law and will undermine Canadian humanitarianism.

Bill C-41 would require humanitarians to seek case-by-case permission for what they already have the legal right to do under IHL, but this is not simply duplication: The process itself in which authorization would be required from at least two ministries and up to nine governmental agencies would severely erode the practical agility, as well as the principles enshrined in IHL, that enable effective humanitarian aid delivery. Bill C-41's potentially onerous authorization process would divert humanitarian resources and delay our responsiveness in emergencies like the recent Syria-Turkey earthquake, where lives hang in the balance and every hour counts.

The process would also create an intelligence windfall for Canadian security agencies, including access to employee personal data that these agencies would otherwise not have reason to collect, data that could be used for purposes beyond the scope of Bill C-41. This would deter Canadians from working for humanitarian organizations.

Further, by placing humanitarians under unprecedented government scrutiny and control, Bill C-41 would compromise our independence as well as the neutrality upon which we depend to negotiate access and gain security assurances from armed groups. Moreover, denying authorization or directing where and what activities are permitted would profoundly undermine the fundamental principles of humanity and impartiality that guide our response on human needs alone.

Bill C-41 in its current form would embed a presumption of criminality in the Criminal Code, including for humanitarian action, by shifting the burden of proof of non-criminality onto the humanitarian actor. MSF believes this must and can be changed through a standing humanitarian exemption, clarified through relatively straightforward amendments to Bill C-41 that would effectively remove humanitarian action from the scope of criminality within the Criminal Code. A standing exemption would be consistent with IHL, UN Security Council resolutions, other states' counterterror laws, Canadian common law and Canada's reputation for humanitarianism.

Members of the committee, MSF worked in Afghanistan before the Taliban takeover, and continued after the takeover, on the same basis on which we work all over the world in places where state and non-state armed groups operate—the basis of international humanitarian law. MSF's purpose is solely humanitarian. For this we should neither be criminalized nor subject to the burden of continually seeking authorization for doing precisely what we exist to do.

Thank you.

[Dr. Leah West, Assistant Professor, Norman Paterson School of International Affairs, Carleton University, As an Individual]

Thank you for having me.

I'd like to begin by saying that I am strongly in favour of amendments to the Criminal Code to facilitate the funding and delivery of humanitarian aid and development assistance in areas that may be controlled by entities listed by the international community or the Canadian government as terrorists. The listing of terrorist entities by both the UN and in Canada is a political process. That process should not condemn those who live under these regimes to suffer from starvation or lack of medical care and education.

I believe that Bill C-41 is an honest attempt to strike a balance between the need to ensure terrorist organizations do not benefit from the funds brought into these areas of control by NGOs and government agencies and the need for NGOs and agencies to provide humanitarian and development assistance. However, I think a few amendments are required to better strike that balance.

First, I believe the bill should include a humanitarian exception to the current subsection 83.03(b) of the Criminal Code, as recommended by the Standing Senate Committee on Human Rights. Specifically, this exemption could mirror the language already in the definition of “terrorist activity” in section 83.01 of the Criminal Code by stipulating that subsection 83.03(2) does not apply to the provision of humanitarian assistance during an armed conflict and that at the time and the place of its provision is in accordance with customary international law or conventional international law applicable to the conflict.

For those activities that do not fall within this exception—for example, education and other development-type aids that do not meet the definition of “humanitarian assistance” under international humanitarian law—organizations could apply for an authorization as set out in the draft bill. This amendment would ensure that the direst needs of populations subject to an armed conflict could receive the most critical aid from humanitarian organizations without the added burden of those organizations seeking an authorization from the Government of Canada.

Second, under the authorization regime, the factors that the ministers of public safety may consider in their security reviews are vague and raise concerns under section 2 of the charter, namely subsection 2(d), which protects freedom of association.

Specifically, as Ms. Davis mentioned, proposed paragraph 83.032(10)(a) currently states the factor the minister may consider is “whether the applicant or any person who is to be involved in carrying out the activity proposed in the application has any links to a terrorist group”. It is notable that the term “links” is not used elsewhere in Canadian law to capture personal relationships, but rather it is used to describe a physical connection or to describe a means of communication, such as a video link.

This novel use of this vague term in this context poses a number of concerns. First, conceivably, the term “links” captures any form of personal connection, however remote, between anyone within the organization and those who may assist the organization in providing aid. I have met with ISIS members in detention and worked with their families to advocate their release. Am I linked to ISIS?

Humanitarian organizations often need to have relationships with all parties to a conflict to do their jobs. It is literally part of the mandate of the International Red Cross and Red Crescent.

I also served in Afghanistan, and I know that for a time, almost everyone in Afghanistan had some sort of link to someone in al Qaeda or Taliban to some extent. We're talking about places like Somalia, Yemen, Afghanistan, and potentially Syria and Nigeria. This is not a bill designed for authorizing activities in environments like the one here in Canada, where connections to members who may be affiliated with terrorist organizations are a rarity.

Lastly, the charter protects freedom of association. It is for this reason that we do not criminalize mere membership in a terrorist organization in Canada. Denying an authorization on the basis of mere association with a terrorist group means criminalizing the work of humanitarian organizations in places like Afghanistan, where their work is most desperately needed.

For this reason, I believe that this paragraph should be struck from the legislation.

These two amendments would ensure a more equitable balance between security and the humanitarian needs of affected populations. Ultimately, however, the success of this authorization regime will be entirely dependent on the transparency of the process and ensuring that there are sufficient resources to process applications quickly and fairly.

Thank you for your time. I look forward to your questions.