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.

[The Chair, Liberal, Randeep Sarai]

I'm calling the meeting to order.

Welcome to meeting number 59 of the House of Commons Standing Committee on Justice and Human Rights. Pursuant to the House order of March 27, 2023, the committee is continuing its study of Bill C-41, an act to amend the Criminal Code and to make consequential amendments to other acts.

Today's meeting is taking place in a hybrid format, pursuant to the House order of June 23, 2022. Members are attending in person in the room and remotely by using the Zoom application.

I won't go into Zoom, because I think it's only our analysts online right now, so I think we should be—

Oh, and we have one panellist, so I will go through the Zoom.

Please wait until I recognize you by name before speaking. For those participating by video conference, click on the microphone icon to activate your mike, and please mute yourself when you're not speaking. With regard to interpretation for those on Zoom, you have the choice, at the bottom of your screen, of floor, English or French. Those in the room can use the earpiece and select the desired channel.

I will remind you that all comments should be addressed through the chair. If members in the room wish to speak, please raise your hand. Members on Zoom, please use the “raise hand” function. The clerk and I will manage the speaking order as best we can, and we appreciate your patience and understanding in this regard.

For the first hour of this meeting, we have, as individuals, Jessica Davis, president, Insight Threat Intelligence, and Dr. Leah West, assistant professor from the Norman Paterson School of International Affairs at Carleton University.

From Doctors Without Borders, we have Joseph Belliveau, executive director, and I think we have Claude Maon via video conference.

Welcome to you all. You will have five minutes as individuals, and the Doctors Without Borders group will have five minutes. Then we will commence questions right after that.

I will go to Jessica Davis for five minutes.

[The Chair, Liberal, Randeep Sarai]

I want to thank everyone. That concludes our round of questions.

Thank you to all the witnesses.

I have just two items of business left.

There is a motion for a deadline to submit amendments for the purpose of the clause-by-clause study of Bill C-41, an act to amend the Criminal Code and make consequential amendments to other acts. It is “that...the deadline to submit amendments be Thursday, April 20, at 5 p.m.”

Is there someone proposing the motion?

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

Thank you, Mr. Chair.

As I don't have a great deal of time available to me, I will ask more technical questions.

Under Bill C‑41, it's up to the Department of Foreign Affairs or the Department of Citizenship and Immigration to determine if "that activity responds to a real and important need in that geographic area" under the control of a terrorist group. It will also be up to them to determine if "the applicant is capable of administering funds, and reporting on that administration, in a manner that is transparent and accountable".

Personally, I want to know which criteria will be used to determine if objectives are being met.

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

Thank you. That's a good answer.

There has been quite a bit of evidence about the process that has been proposed under Bill C-41. If my understanding is correct, it is that an applicant for an exemption would have to go first to the Minister of Foreign Affairs and/or the Minister of Immigration.

I'm not quite clear on what the process is. Why does it have to be that process, if ultimately the decision is going to be in the hands of the Minister of Public Safety? Why not go to the Minister of Public Safety immediately, to speed up the application process?

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

Thank you to all of the witnesses for being here—all experts in their field.

We're talking about Bill C-41, which would open the door for humanitarian aid by Canadian organizations that are otherwise prohibited from doing work in certain areas of the world on account of Canada's strict anti-terrorist laws.

Now, generally we agree with that. However, as you heard from a number of the questioners, there is deep concern about the government's apparent slow reaction to a crisis, particularly in Afghanistan.

I'm looking at the report of the special Afghan committee, which was issued some time in June 2022, and particularly at evidence by Michael Messenger on March 31, 2021. More than a year ago, this is what he had to say: “Based on external legal advice, our understanding is that the Minister of Public Safety could provide an exemption to the restrictive provisions through section 83.09 of the Criminal Code.” That's existing legislation. He went on to say, “In fact, we believe he and his department have an urgent obligation to do so.”

My question is, why wasn't section 83.09 used? Would it have been sufficient? Did World Vision even make an application for exemption at that time?

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

So we're going to have to wrap our minds around it, but I understand. As I said, it's not at all a question to put anyone on the spot; rather, it's for us to gain some understanding.

I posed the question to all the ministers. They all said it was really complicated and complex, and that's why it took time to come up with Bill C‑41. That means there were other options on the table. If this bill had been the only option, it would have been written a long time ago and we would not have waited all this time.

You participated in those conversations. What other options did different departments put on the table to tackle the problem?

[Robert Brookfield]

As a technical point, I would note that at issue is 83.03(b), which prohibits providing information to a terrorist group. A terrorist group then includes both listed and unlisted terrorist groups.

The goal of Bill C-41 is to allow entities or organizations, if they wish to apply to be exempted from potential criminal liability from that provision, to seek an exemption. There is authorization, and that would apply to any group they are concerned that they might be dealing with, whether listed or unlisted.

[Anju Dhillon, Liberal, Dorval—Lachine—LaSalle, QC]

I also understand that a Bill C-41 charter statement was tabled on March 21 and is available on the Department of Justice website. Can you please confirm that?

[The Chair, Liberal, Randeep Sarai]

Thank you, Ms. McPherson.

I want to thank Minister Mendicino for taking the time to explain and answer questions on Bill C-41.

I'm going to ask the representatives from the department to stay back.

We'll suspend for a few minutes.

[Larry Brock, Conservative, Brantford—Brant, ON]

Thank you, Chair.

Thank you for your attendance, Minister and department officials.

I want to continue the discussion or the Q and A that Ms. McPherson finished off with. One of the questions I was going to ask is how this particular piece of legislation was framed in terms of how other democratic nations across the world have dealt with this humanitarian crisis. I get the impression, when I listen to how her question is framed and, Minister, to your responses, that Bill C-41 appears to be an outlier in the sense that other nations are currently providing humanitarian exceptions and getting humanitarian aid to Afghanistan a hell of a lot quicker than Canada is. Is that a fair assessment?

[Marco Mendicino, Liberal, Eglinton—Lawrence, ON]

Again, I say this with respect, but I am not here to defend the position of the United States or any other country. I am here to articulate the rationale for Bill C-41, and I think the government has put forward a reasonable and compelling case.

[Heather McPherson, NDP, Edmonton Strathcona, AB]

Thank you very much, Mr. Chair. It's nice to be in your committee today.

Thank you for being here, Minister.

Thank you, all of you, for being here and providing your testimony.

I have to say that I worked for about 20 years in the non-profit international development and humanitarian sector before I became a politician, so after 18 months of waiting for this legislation, I was expecting something good. Unfortunately, that's not what I see with Bill C-41, so forgive me, but I will speak with my international development hat on today.

You spoke about the balance needed between preventing funding going to terrorists versus helping humanitarian.... With all due respect, Minister, you got the balance wrong on this one. I say this for a number of different reasons.

First of all, we're creating barriers to humanitarian aid. I wrote to you immediately when this legislation came forward, and I didn't get much of a response. I outlined exactly why this legislation doesn't do what you think this legislation should do. I have lots of concerns about how it will be implemented and how we are going to get an overstretched and under-resourced Global Affairs Canada to do this work.

Ultimately, what this does is interfere with international humanitarian law. You talked about the balance. You talked about how this was the best thing you thought could happen.

Why do you think the Canadian government felt that this was the best thing to happen, when we look at governments like Australia, the EU, New Zealand, Switzerland, the U.K. and the United States, and they all listened to the experts in their field? They listened to the experts who do this work, who asked for a humanitarian carve-out.

Why did Canada choose to not go with a humanitarian carve-out when, very clearly, other countries did? I think we all know that other countries know exactly what they are doing on the ground. They have respect for humanitarian assistance. They have respect for anti-terrorism legislation.

However, Canada is the only one that put barriers up for humanitarian organizations, instead of making it easier for them to be on the ground, doing the work and helping Afghans.

[Marco Mendicino, Liberal, Eglinton—Lawrence, ON]

Yes.

There are other mechanisms and opportunities, but I'd like to emphasize—this is the key point—that the government is getting its information from our discussions with organizations and human rights lawyers.

We believe that Bill C‑41 strikes a very good and effective balance that fosters transparency and integrity, as well as the values of safeguarding human rights.

[Marco Mendicino, Liberal, Minister of Public Safety]

Thank you very much, Mr. Chair and colleagues.

By way of some housekeeping, I am very pleased to be joined by a number of colleagues, as you pointed out, Mr. Chair, from my department of Public Safety, from Global Affairs, from Immigration, Refugees and Citizenship Canada and, of course, from Justice. I am seated next to Monsieur Aubertin-Giguère, who is one of our officials from Public Safety.

I think you also said that I was the Minister of Public Safety and Emergency Preparedness. I know our colleague, Minister Bill Blair, might take some umbrage at that. I say that with a bit of a smile. He's doing a very able job at emergency preparedness, in his capacity as minister of that portfolio.

On to the subject matter before us, I am very pleased to be able to discuss Bill C-41 with all of you, which is an act to amend the Criminal Code and to make consequential amendments to other acts.

Colleagues, as you will know, Bill C-41 creates an authorization regime to facilitate the delivery of international assistance in geographic areas controlled by a terrorist group as defined in the Criminal Code.

As you all know, and given the state of affairs in Afghanistan and other troubled regions of the world in which there are conflicts, this bill is crucial.

Allow me to explain. As I implored all members when our government tabled this legislation, there is a humanitarian crisis in Afghanistan. After four decades of conflict, political and economic instability and a global pandemic, the Taliban's takeover in August 2021 exacerbated an already dire situation.

Under the Taliban regime, we have seen violence, the erosion of fundamental human rights, and the brutal assault, torture and killing of women, girls and religious and ethnic minorities.

They require help with such basic aspects of life as food, health care, shelter, protection and education.

Canada continues to do everything in its power to assist the people of Afghanistan. I would note that our ambitious commitment to welcome at least 40,000 Afghan refugees has hit a significant milestone. Very recently, we just welcomed the 30,000th Afghan refugee on Canadian soil. That is something that I think ought to be celebrated, as those individuals will now have the chance of a better life.

Currently, the Criminal Code contains strong counter-terrorism financing provisions. Specifically, under paragraph 83.03(b), it is prohibited to directly or indirectly provide or make property available knowing it could be used by or will benefit a terrorist group.

These provisions have a significant impact on Canada's ability to deliver aid and other forms of international assistance, including in Afghanistan. That's because, although the Taliban is the de facto authority of Afghanistan, it remains a listed terrorist entity under Canada's Criminal Code. As such, aid delivery has the potential to benefit the Taliban, thereby contravening the Criminal Code.

Canadian organizations, including non-profit aid groups and departments of the Government of Canada, risk inadvertently breaking the law if they attempt to provide aid within Afghanistan. Bill C-41 will provide clarity and assurance for Canadian organizations that they are not committing a terrorism offence when acting within the scope of the authorization that is contemplated within the bill.

I would note that the authorization regime would not be restricted to Afghanistan, but would apply to any geographic area controlled by a terrorist group in order to be able to respond to similar situations.

Mr. Chair, our government considered all possible remedies, including the possibility of a humanitarian exemption to the existing law; however, a statutory carve-out would not provide, in our submission, the same security checks and balances, and it would risk greater abuse of the provision. The approach outlined in Bill C-41 best mitigates those risks by potential terrorist actors.

Banks and financial institutions have also called for these security measures.

Allow me to outline the bill's extensive guardrails. This begins with collaboration across various portfolios, some of which are represented at the table with me today. The Minister of Foreign Affairs and/or the Minister of Immigration, Refugees and Citizenship would first refer applications to me in my capacity as the Minister of Public Safety.

Moreover, the referring minister would also need to be satisfied that the applicant is capable of administering funds in high-risk environments, and effectively reporting on that administration.

Once a referral has been received, the national security community would conduct a security review to assess the impact of granting the authorization on terrorism financing.

This process would consider whether the applicants have links to terrorist groups or activities. The authorization could be granted once I am satisfied, in my capacity as the Minister of Public Safety, that there is no practical way of undertaking the proposed activity without a risk of terrorist financing and that the benefits outweigh the associated risks.

The assessment will take into account the referral received from the Minister of Foreign Affairs or the Minister of Immigration, the security review findings, the measures to mitigate risks, and any other factors considered appropriate. If an application is refused, those applicants would be able to seek recourse through judicial review.

Authorizations would be granted for a period of up to five years and would apply to any person or organization involved in carrying out the authorized activity.

Authorizations may be revoked if the applicants fail to comply with the conditions and terms that are set out within it. The Canadian Security Intelligence Service, the RCMP, the Communications Security Establishment and the Canada Revenue Agency will also be involved in security reviews.

To ensure that the authorization regime is held accountable, as Minister of Public Safety I would provide an annual report on the regime and conduct a comprehensive review within five years of the bill's coming into force.

The bill sets forward clear operational guidance, and the application process is free.

Let me be clear. Terrorist financing remains a criminal offence and a serious threat to our interests both domestically and abroad, and authorization would not shield efforts to benefit a terrorist group. Such activities would remain criminal.

It is vital that Canada continue to provide international assistance in Afghanistan, as well as in other regions where there is protracted conflict. To facilitate this and prepare for future situations posing similar constraints, the proposed amendments to the Criminal Code are critical. It is transparent and charter-compliant, and the provisions that are set out in this bill are in accordance with the law.

Bill C‑41 would help address immediate needs in Afghanistan, and also adapt to future needs.

Today and throughout our history, Canada continues to help the global community.

I want to thank you, Mr. Chair, for the opportunity to provide some prefacing remarks. I also want to take a moment to thank all the members of this committee for their advocacy and their leadership in bringing this important issue to the fore. We now have an opportunity to remedy some of the constraints that have previously prevented Canada from doing more to help the people of Afghanistan and other vulnerable individuals who have come under the thumb of autocratic and oppressive regimes.

I now look forward to your questions and comments.

Thank you.

[The Chair, Liberal, Randeep Sarai]

I call this meeting to order.

Welcome to meeting number 58 of the House of Commons Standing Committee on Justice and Human Rights.

Pursuant to the House order of March 27, 2023, the committee is beginning its study on Bill C-41, an act to amend the Criminal Code and to make consequential amendments to other acts.

Today's meeting is taking place in a hybrid format, pursuant to the House order of June 23, 2022. Actually, everyone is attending in person today, so I won't go through the hybrid format.

For the minister and anyone who's new—I think we have a lot of new members today—I use cue cards. When you're down to 30 seconds, I will raise the yellow cue card. When you're out of time, I'll use the red. I will ask you to wrap up with that, so I don't have to interrupt you.

We are pleased to welcome the Minister of Public Safety and Emergency Preparedness, the Honourable Marco Mendicino. Welcome, Minister.

Today we also have, from Public Safety, Sébastien Aubertin-Giguère, assistant deputy minister of the national and cyber security branch. From the Department of Justice we have Robert Brookfield, director general and senior general counsel of the criminal policy section, and Glenn Gilmour, counsel of the criminal law policy section. From Immigration, Refugees and Citizenship Canada we have Selena Beattie, director general of policy and outreach for the Afghanistan sector.

I think we might have some others as well. We welcome you and are glad to have you here.

Minister, you'll have the floor for 10 minutes, as usual. Your opening remarks will be followed by questions from the members of the committee.

The floor is yours.