Justice Committee on April 17th, 2023

[Jennifer Loten]

We're asking them to seek protection from criminal liability from the Canadian Criminal Code, and that's the other point that I'd like to raise.

You mentioned that there's already protection that exists under international law. As far as humanitarian assistance is concerned and as far as UN international law is concerned, the Canadian Criminal Code—and we can't get around this—criminalizes any activity that might provide a benefit to a terrorist organization—

[Heather McPherson, NDP, Edmonton Strathcona, AB]

Unless you did a humanitarian carve-out....

[Jennifer Loten]

We aren't able to do that, though, without limiting the kinds of activities that would be subject to that legal provision, so even if you're not doing.... For example, we did a lot of work on education in Afghanistan. That's not protected under the humanitarian carve-out, so if a Canadian organization were to continue to engage in that activity, it would still be liable—criminally liable—within Canadian law, and we want to avoid that.

We want to be able to continue to do things that exceed what would normally be considered humanitarian assistance, and we don't want to presuppose where this kind of situation may go 10 years down the line, so we're trying to make this broad and flexible. I know it seems like it's complicated and unnecessary, but as to the point about information that we already have, we have that for organizations that the Government of Canada already funds, but we don't have it for organizations that are operating on their own behalf.

It is not our intention, it is not our job, and it is not our mandate to control what Canadian organizations do, but as the Government of Canada we have to make sure that none of those activities contravene elements of the Canadian Criminal Code that have nothing to do with humanitarian assistance.

That's where I think we're trying to make this open-ended and broad. I totally understand that looking at this from the outside, it seems like we're adding layers of complication—

[Heather McPherson, NDP, Edmonton Strathcona, AB]

To be perfectly honest, I'm not looking at it from the outside; I'm speaking to the experts within the field who are doing this important work. In fact, I would say that perhaps you're looking at it from the outside.

Realistically, we see that other countries—and I know you've used the United States as an example—with very similar legal systems to ours have chosen a humanitarian carve-out. That is very, very possible for Canada to do, and we could carve out for development organizations as well.

It's a choice you have made, directing the government, to make this very, very onerous. I'm not certain it will adhere to international humanitarian law. There will be a point at which the government will have to defend itself, and I don't think it's defensible, which makes it very difficult for all of us, as parliamentarians, to vote for legislation.

It's the same situation that I was talking about to the minister. You've put us in a situation whereby, 18 months into a crisis, with millions of people's lives at risk, we either take broken legislation that won't do what we need it to do, or we let people continue to starve. That is an untenable place to put any parliamentarian. It's obscene.

[Jennifer Loten]

Well, right, and with all due respect, we have continued to provide humanitarian assistance throughout....

I will defer to my Justice colleagues on whether or not this matches international law. What this provides is an enabling function for Canadian organizations, to allow them to operate where otherwise they would violate the Canadian Criminal Code. There's no denying that. It's not an option. That's a piece of Canadian law, and we have to address it as a reality. What we collect from organizations is the information we will use. We need additional information from organizations that we don't fund.

Again, we are as committed as you are to making this as streamlined an operation as possible.

[Heather McPherson, NDP, Edmonton Strathcona, AB]

Then make it [Inaudible—Editor]

[The Chair, Liberal, Randeep Sarai]

Thank you, Ms. McPherson.

We'll next go to Mr. Van Popta for five minutes.

[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?

[Robert Brookfield]

Well, the short answer is that I'm not sure where that information came from, but it's not correct, unfortunately. The power in section 83.09, as my colleague can elaborate on if you'd like, is dealing with.... I'm just looking at it now to make sure I cite it correctly:

to carry out a specified activity or transaction that is prohibited by section 83.08

Section 83.08 is not the provision that is at issue with activities that are involved here. This is subsection 83.03(b), which is the area of concern. There is no power in the legislation presently to do that.

[Glenn Gilmour, Counsel, Criminal Law Policy Section, Department of Justice]

To add to what my colleague said—and, in fact, what my boss said—section 83.08 essentially freezes property owned or controlled by a terrorist group. It makes it essentially a crime for someone to deal in property that's owned or controlled by a terrorist group. Section 83.09 allows for the Minister of Public Safety to authorize the release of property that has been frozen, subject to terms and conditions that the minister wishes to impose.

Here you're talking about a different situation. At this point in time, the property is not owned or controlled by the terrorist group; you're providing property that could go or would go to the terrorist group. Section 83.09 would simply have no application to the offence in what is currently subsection 83.03(b), which makes it a crime to provide property directly or indirectly, knowing that it will be used by or will benefit a terrorist group. It's a completely different situation.

[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?

[Jennifer Loten]

In the application process, applications are presented to the Government of Canada. Depending on the nature of the activity that they're requesting an authorization for, it would be deferred to Global Affairs in the first instance, or to IRCC if it is about safe passage.

The reason is that Global Affairs and IRCC are better able to assess the preparedness of the organization and the validity of the application. It's entirely separate from the assessment that Public Safety will lead on, which has to do with national security.

It's a question of using the right tools within the Government of Canada's tool box to respond to the request that's being made by the entity in question. Hopefully, we can provide that answer very quickly for organizations that we know very well.

[Selena Beattie, Director General, Policy and Outreach Branch, Afghanistan Sector, Department of Citizenship and Immigration]

I would add also that this is a measure to streamline.

You would imagine that there would be a consultation by the Minister of Public Safety with the ministers of GAC and IRCC to get their perspectives. Having the application go first to those ministers eliminates one of the ping-pongs and is part of the streamlining in order to have a more efficient system.

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

My next question would take a few minutes.

[The Chair, Liberal, Randeep Sarai]

Thank you, Mr. Van Popta. You're always very timely and efficient.

Next is Ms. Diab for five minutes.

[Lena Metlege Diab, Liberal, Halifax West, NS]

Thank you very much, Mr. Chair.

Thank you to our witnesses for being here. It's not every day that we have such experts from so many different departments from the Government of Canada. We really value the expertise that you bring to the table.

This is quite complicated. We know from what the minister said that the bill is crucial to bring aid to the humanitarian crisis in Afghanistan. We also know that it's not just Afghanistan. There are many parts of the world that could and do require humanitarian aid.

We also know that we have to balance. Canada, in my opinion, is known very much for its international development and aid for countries around the world. We have to balance and mitigate the risk of potential terrorist groups—known and unknown. We know they exist everywhere.

This is all new to me. I didn't sit on any of the other committees that predated this.

There's been a lot of talk of the bill that is proposed before us versus another alternative that Ms. McPherson and perhaps others have talked about.

In as simple, non-legalese language as possible, can you explain the difference and explain how you believe you've arrived at the right mix?

I don't know who to ask. Perhaps I'll go to Public Safety first.

[Sébastien Aubertin-Giguère]

In very broad terms, what we're offering is a regime that offers the best balance between the need to protect against known terrorist financing and the degree of humanitarian assistance in development aid.

If we were to simplify to the extreme, having a humanitarian carve-out would not provide the full flexibility that this regime will offer, because it also includes developmental assistance and safe passage. To build all of these elements into a carve-out would be a risk for the Government of Canada that would be difficult to manage.

The balance of that is having the right controls in place, making sure that the organizations operating in that environment have the right protection against the potential criminal liability under the Criminal Code that exists right now, and making sure the government has the right assurance that the money will not be flowing to terrorist organizations.

[Lena Metlege Diab, Liberal, Halifax West, NS]

I'm going to ask about the marrying or the bringing together of the three departments here—IRCC, Global Affairs/Foreign Affairs and Public Safety—because it's not simply humanitarian aid. It could be allowing people to come. We've just welcomed 30,000 refugees from Afghanistan. We'll certainly welcome many others from other countries in the years ahead.

How do you intend to have these departments work together in order to facilitate that? Can you help us out in trying to understand that it's not really complicating the system by having all these departments intertwined in each other's business?

[Jennifer Loten]

I guess my quick answer to that would be that we work together all the time. The Government of Canada operates through a series of interdepartmental committees. They help us to bring the expertise that we need to the table, when necessary, and to provide evidence-based and informed information up to ministers, who make decisions. It's not a new development at all. I can think of three within my own area, in counter-terrorism and crime, that depend entirely on interdepartmental collaboration. It works very smoothly.

[Lena Metlege Diab, Liberal, Halifax West, NS]

In deciding to grant an authorization, we heard that the Minister of Public Safety must consider any mitigating measures to minimize the risk of benefiting a terrorist group. Can you give me some examples, or terms or conditions of how that risk can be minimized?

[Sébastien Aubertin-Giguère]

There's a broad spectrum of mitigation. One of them could be the frequency of controls. Another one could be some transparency in the flow of monies. It could be limiting the operational area where they will be deployed. There is actually quite a long list.

[Lena Metlege Diab, Liberal, Halifax West, NS]

Would anyone else from any of the other departments like to add anything on any of the questions I've asked to help shape a bit more this discussion around the table, as we come near to our hour?

We're actually out of time. Thank you very much. It's much appreciated.

[The Chair, Liberal, Randeep Sarai]

Thank you, Ms. Diab.

We'll next go, for our last round of two and a half minutes, to Monsieur Brunelle-Duceppe, and then Ms. McPherson.

[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.

[Jennifer Loten]

I want to say that, first of all, that's completely normal. All projects supported by Global Affairs Canada must meet those criteria. The capacity to administer funds and report on them is a completely normal criteria. Nothing has changed.

In the case of other criteria, Public Safety Canada will conduct a follow‑up.