Justice Committee on April 17th, 2023

[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.

[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]

Thank you, Minister. I appreciate your timeliness on this.

I will begin the first round with Mr. Genuis, for six minutes.

[Garnett Genuis, Conservative, Sherwood Park—Fort Saskatchewan, AB]

Thank you, Mr. Chair, and thank you, Minister.

I think it's important to underline where the debate on this bill is in this Parliament. Nobody in any of the opposition parties, I think, disputes the urgency of the humanitarian crisis or the need for legislative action. In fact, the issue has been the significant delays from the government side in moving this forward, with concerns about whether the regime will work effectively for the organizations that need to use it.

At the time Kabul was falling, your government, instead of attending to the situation, was calling an election. We had an Afghanistan committee that called for these changes a year ago. We haven't seen anything on it until now. We had a motion at the foreign affairs committee, which I moved in the fall, and a second motion at the foreign affairs committee earlier in the spring.

You're going to have strong agreement that action is required and, I think, in principle with the legislation moving forward. I wish the government had acted earlier, and I remain concerned about the effectiveness and the efficiency of the regime in helping organizations get the aid to where it needs to go.

I want to ask specifically how long you expect it to take to approve these kinds of applications. Can we expect that all of the enabling regulations and processes will be in place to allow humanitarian organizations to rapidly deliver the aid that's needed once this legislation passes? In particular, by the time we come near another winter in Afghanistan, will the legislation not only be passed but have its exceptions granted so that it can be used?

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

First, Mr. Chair, through you to Mr. Genuis, I share the concern and the sense of urgency in aiding the people of Afghanistan, who, as I pointed out in my introductory remarks, have been subject to human rights violations, oppression, torture and killings, and these disproportionately towards women and girls and religious minorities.

That is precisely why, as part of the bill, we contemplate having a streamlined process, one that will efficiently work with organizations that have put themselves forward as candidates for authorizations to deliver this aid, but with the requisite security checks that are required both to protect the integrity of the program and to guard against any potential risks that may flow where the funds to a de facto regime like the Taliban authority, which is listed under the Criminal Code as a terrorist entity, may inadvertently benefit.... We need to strike that balance and to do it in a way that promotes transparency and accountability, but with a sense of urgency that I think all Parliamentarians are united behind in getting that aid to Afghanistan.

[Garnett Genuis, Conservative, Sherwood Park—Fort Saskatchewan, AB]

Thank you, Minister.

I won't repeat the question around what you expect to be the specific timeline, as I'm quite tight for my own timeline for questions, but if you can follow up in writing or your officials can follow up with an estimate of the turnaround time that organizations could expect in terms of applications.... I know you strike a balance, but we would like you to try to quantify what exactly that balance would be.

I have another specific question. Would this legislation apply only in the case of areas controlled by listed terrorist organizations? What I'm hearing from some of the stakeholders is that it doesn't appear to apply only to territory controlled by listed terrorist organizations.

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

Well, certainly that is our top priority, and those organizations that have been listed as terrorist entities under the Criminal Code meet that definition and, by extension, pose a risk and a threat to Canadian interests both here and abroad, as well as to the people where they may be operating, and certainly within the geographic areas that we are trying to get aid to.

I would submit, Mr. Genuis, that through that lens it is important that as we receive applications, and as we screen both the principal sponsors of those applications and the activities that will be authorized under the regime, we look at all the circumstances—

[Garnett Genuis, Conservative, Sherwood Park—Fort Saskatchewan, AB]

Okay, but if I can zero in on the specific question, is the intention of this legislation to deal only with situations in which territory is controlled by a listed terrorist organization, or is it intended to apply to cases of organizations that are concerning from a certain perspective for whatever reason but not listed as terrorist organizations?

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

As I was saying towards the end of my answer, the primary focus is to make the assessment through—

[Garnett Genuis, Conservative, Sherwood Park—Fort Saskatchewan, AB]

I'm not asking what the primary focus is. Is the intention of the legislation to apply only to listed organizations, or is it to apply to organizations that are not listed?

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

Mr. Genuis, if you'll allow me to finish my answer, I think it will be responsive to the point you're making.

[Garnett Genuis, Conservative, Sherwood Park—Fort Saskatchewan, AB]

Okay. Answer quickly, please, as I want to get one more in before I'm out of time.

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

We are making this assessment primarily through the listing of terrorist organizations as defined under the code, but the security review will look at all the factors on the ground to assess and be sure that we are able to mitigate against those risks. I think you will agree that yes, for example, while in Afghanistan, we will be making these assessments on the basis of the reality that the Taliban are the controlling authority in that region, but we will look holistically at all of the threats that are in play on the ground.

[Garnett Genuis, Conservative, Sherwood Park—Fort Saskatchewan, AB]

Sorry, I want to get to one more question.

Respectfully, I don't think that's a very clear answer, but I would welcome a follow-up in subsequent rounds or in writing.

This bill contemplates other organizations being listed and the implications there. Could you give us an update on the government's considerations around listing the Wagner Group as a terrorist organization?

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

Well, first I would say we're vigilant about making sure we list entities that meet the definition, and we rely on our non-partisan, professional public servants to provide us with the best possible advice on that exercise. Where appropriate, we move expeditiously to ensure that we are listing those organizations so Canada is not a safe haven either for the flow of terrorist funds or for any terrorist activity.

[The Chair, Liberal, Randeep Sarai]

Thank you.

Thank you, Mr. Genuis.

The next round of six minutes goes to Mrs. Brière.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

Thank you, Mr. Chair.

Good afternoon, Mr. Minister. I am always happy to have you with us.

What's happening over there is awful. The situation for women and other vulnerable people that you mentioned is very difficult when it comes to health care, safety and, of course, education. It's a humanitarian crisis we don't talk enough about.

It's also important to enhance Canada's ability to provide humanitarian aid. In developing the new rules, did you speak to non-governmental organizations to ensure that their methods are taken into account? I want to make sure that compliance with the new measures will not result in additional, more burdensome work for them.

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

I'd like to thank my colleague for her question, Mr. Chair.

First, I want to emphasize that the process the government is putting in place with this new regime is very efficient. We need to make this process a priority because of the situation on the ground in Afghanistan. The situation is very difficult and serious for women and girls, as well as for religious minorities. So we're going to work closely with the organizations seeking to provide services on the ground. We know it's urgent that we act now.

Secondly, we consulted with NGOs and will continue to do so to find solutions to existing challenges so they can deliver essential services.

The last thing I want to emphasize is that the plan is flexible. We can provide assistance in terms of food services, temporary housing, physical and mental health services, education services, as well as programs to protect people's rights. Finally, we can facilitate the settlement of people through our immigration programs.

The parameters are very flexible and they respond directly to the feedback we received from organizations.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

Thank you very much.

You chose to go with a method that will require an exemption.

Why didn't you choose a full exemption rather than forcing agencies to apply for an exemption?

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

That's a very good question.

I know that a few committee members and many other parliamentarians have suggested the full exemption solution. However, the government chose to introduce a bill that fosters transparency, reliability and integrity in a program that includes a review process to ensure the safety of the organizations and of the people who we want and will want to help, while also retaining the flexibility we need.

In the government's view, this bill strikes a balance between all the priorities.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

I see.

Did you draw inspiration from existing legislation? For example, do other countries use this method?

[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.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

I see.

What aspects of national security were considered in drafting this bill?

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

Mr. Chair, my colleague raises a very important issue.

The situation in Afghanistan is truly complex. There is a terrorist organization there to which the Criminal Code applies because it poses significant risks to Afghans. If no security system is in place, that creates many opportunities to divert or use Canadian government funds to finance terrorist activities.

We don't want that to happen. That's why we have come up with a mechanism that protects the integrity of the program and the authorization process, but still retains the flexibility to provide all the assistance people need on the ground.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

Thank you.