Justice Committee on April 19th, 2023

[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.

[Jessica Davis, President, Insight Threat Intelligence, As an Individual]

Thank you very much for the invitation to appear here today.

I want to start by sharing some information on why I think these changes are important. I then have a few amendments to offer. I'll conclude with a comment about a lingering issue that these changes raise that specifically relates to our listing of terrorist entities.

As we all know, these amendments come about because of the situation in Afghanistan, but they have much broader implications globally. I estimate that about 8% of countries worldwide have terrorist groups in them that control territory to some extent—not the full country, of course, but some element of it where aid groups might want to operate. This legislation will, of course, enable activities by Canadian organizations in these regions, which in turn can help increase stability and provide alternatives to engagement in violence for the people in those countries.

It's important here that this amendment be calibrated to the current threat of terrorist financing. My research shows that 42% of terrorist groups around the world use taxation activities, including taxation of aid organizations and humanitarian activities, to finance themselves. This is not a rare activity.

This is part of the reason that a broad humanitarian carve-out, as some have proposed, is much too broad, in my view. It would create many opportunities for terrorist groups to exploit Canadian organizations and profit from their aid activity.

The current amendments allow Canada to calibrate its aid and foreign policy to take into consideration the types of terrorist groups operating in particular regions, the activities that they're undertaking and their international security threats. This essentially will allow Canada to calibrate and turn up and down the dial on international aid according to the security situation, and calibrate our foreign policy.

While I do offer broad support for this amendment, there are a few areas that I think need further attention.

First, I think it would be very beneficial for Global Affairs Canada to create a list of countries and geographic areas where terrorist groups control territory, and provide it publicly. This would allow aid organizations to immediately be able to determine if their activities fall under the scope of this legislation and require an exemption.

I don't think that this is more work, because Global Affairs is likely going to have to do this kind of work anyway to effectively evaluate the applications that come through. They'll have to have a list already of where terrorist groups are controlling territory. Of course, there are political sensitivities around this, but I'm confident that Global Affairs can word this in a way that minimizes some of those issues.

My second issue relates to the security review, specifically proposed paragraph 83.032(10)(a), where the language is around “links to a terrorist group”. This wording is far too vague. “Links” is a term that's neither defined in law nor a good analytic term. If the drafters of the language have something specific in mind, they should include that here; otherwise, the line should be struck because it's not clear if “links” means something as vague as someone having known a convicted terrorist on one or two or occasions or if it's a much broader association. Specificity is going to be really key here.

The third issue I see is that FINTRAC, our financial intelligence unit, isn't in the list of entities that may provide assistance to the Minister of Public Safety. This is quite a curious omission, given FINTRAC's role in countering terrorist financing. I suggest that they be included, either in the legislation itself or at least in the regulations.

Further, it would be prudent to specify that FINTRAC's assistance relates specifically to its strategic analysis capabilities. This is part of section 58 of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, which specifically allows FINTRAC to provide information on the nature and extent of terrorist financing activities inside and outside of Canada. It differentiates it from its more technical disclosures in section 55.

Finally, I want to address one last thing. The amendments as proposed talk about terrorist “groups”, not listed terrorist “entities”. This language has not been lost on members of this committee. This language is a necessary inclusion because there are many terrorist groups operating around the world that are not listed entities in Canada, but I think it's important to be clear here. This language about “groups” is partly necessary because our process for listing terrorist entities is broken. It's not transparent. There is no identified methodology that Public Safety Canada uses to nominate groups to that list, and the public information provided to support those listings is the weakest among all the Five Eyes.

Canada should reform the listing process with an eye to making it more robust—robust enough to support these amendments to the Criminal Code and not necessitate the inclusion of the word “groups”. Instead, we could use the word “entities”. The word “groups” is far too broad to be useful. We should be able to rely on our list of terrorist entities, but we can't right now because it's not inclusive or responsive enough to geopolitical realities.

Thank you again for the opportunity to be here today. I look forward to taking any questions you have.

[The Chair, Liberal, Randeep Sarai]

Thank you, Ms. Davis.

Now we'll go to Dr. West for five minutes.

[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.

[The Chair, Liberal, Randeep Sarai]

Thank you, Professor West.

I didn't outline earlier that I usually give a 30-second cue card, but you guys have been four seconds under every time. Thank you. Then, for those who don't know, I have an out-of-time card just to wrap things up in time.

Next we'll go to Doctors Without Borders, and I'll let you figure out which of you will speak. I'm sure you have it allotted.

The floor is yours.

[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.

[The Chair, Liberal, Randeep Sarai]

Thank you.

We will now go to our first round of questions. I'm going to condense them from six minutes to five minutes for the first round and to four minutes for the second round in light of the pending votes.

We will begin with Mr. Genuis for five minutes.

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

Thank you, Chair.

Thank you to the witnesses.

I'm really interested in trying to understand this, but I have yet to hear a substantive argument against just a clear, simple humanitarian exemption. The most I have heard is people saying that the government wasn't going to do that.

Ms. Davis, I think on the panel you expressed the view that exemption would not be a good idea. Could you give us your thoughts specifically on why?

[Jessica Davis]

What my research shows and what I have done in practice demonstrate that terrorist groups around the world raise money from a variety of different activities, but one of the ways they do it is by taxing aid organizations that operate in their area. That could look like acquiring resources from them. It could look like taking a certain percentage of the money that comes into the country.

Part of my concern with not having a broad humanitarian exemption here is a complete inability to calibrate that. We don't have the ability to help aid organizations, for instance, prevent that from happening. We don't have a way to understand how much money or how many resources are going to terrorist organizations when they operate—

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

I will just jump in because of time, and I'm interested in hearing more from you on this.

Could we not prescribe certain kinds of calibration as part of that exemption, saying that under these specified circumstances, you can go ahead, and that if you're being charged an effective tax rate over such-and-such, you can't? Whatever the rules should be, could we not establish those rules in law, rather than basing them on a potentially shifting and inconsistent authorization regime?

[Jessica Davis]

You could technically do that, but the problem with terrorist organizations is that they change those rules quite often. It's really difficult to know when it is going to be 20% in one situation and 60% or 5% in another situation. They really shift around quite a lot, and every situation is really different as well. Twenty per cent might be really important in Somalia; 5% might be important in Afghanistan.

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

It seems that you could still have, in a flexible way, some of those things defined in regulation but still work from the principle of broader inclusion rather than individual authorization.

[Jessica Davis]

I think it makes sense in regulation, but maybe not in the legislation itself, because the regulations would be easily updated.

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

Both you and Ms. West referenced other countries that would be captured by the regime. Could you give us your list of the 8% that you think would be captured?

[Jessica Davis]

It's 8% of countries worldwide, and I don't have the list in front of me. It would be Nigeria, Yemen, Somalia, Afghanistan and parts of West Africa where terrorist groups are controlling territories. It's quite an extensive list at this point.

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

Ms. West, in terms of the list of countries, do you agree with that? Is there anything you want to add?

[Dr. Leah West]

No. I would defer to Ms. Davis, especially on this point.

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

Would either of the other two witnesses be interested in responding to some of the points made with respect to the possibility of a humanitarian exemption that provides space in regulation for defining how that would be defined or not defined, but errs on the side of saying humanitarian activity would be allowed, provided that efforts are made to minimize dollars to terrorist organizations?

[Joseph Belliveau]

I think the starting point here is that international humanitarian law already gives protection and already says that when you're operating in an area where there are armed groups, whether deemed terrorist or otherwise, and even in situations where you might have to pay these sorts of administrative fees, landing fees or whatever it might be, this kind of activity is authorized because the humanitarian imperative exists and we need to be able to respond to it.

[Dr. Leah West]

I would 100% agree with that. If you're going to provide a humanitarian exemption based on consistency with international law and then put domestic regulation on top of how you're interpreting international law, it doesn't make a lot of sense to me.

If it's going to be lawful because it's lawful under international law, then that should be the limit.

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

The definition of “terrorist group” in the Criminal Code, as I understand it, does not clearly exclude state actors. Some might argue, for instance, that Iran is a terrorist-controlled territory.

Is it clear in the way the law is currently written whether or not it would apply when the government of a state is not a listed entity but has the attributes of a terrorist group?

[Dr. Leah West]

I would say that the legislation would apply in those contexts, but then you're asking the humanitarian organizations to make that determination, which, as I think MSF mentioned, goes against their rule of remaining impartial and neutral.

[The Chair, Liberal, Randeep Sarai]

Thank you.

Thank you, Mr. Genuis.

Ms. Damoff, the floor is yours for five minutes.

[Pam Damoff, Liberal, Oakville North—Burlington, ON]

Thank you, Chair, and thank you to all our witnesses for being here.

To Dr. Belliveau in particular, thank you for the work that you and MSF are doing in saving lives, not just in Afghanistan but around the world. We all appreciate it.

We're really challenged with this. Mr. Brunelle-Duceppe and I both sat on the special committee for Afghanistan and struggled with the fact that the Taliban is listed in our Criminal Code. It's been mentioned before that there was a blanket exemption given in other countries. Our understanding was that we were unable to do that because of the way the Taliban is listed.

Just today there is an article stating that the U.S. Afghanistan watchdog testified before Congress that he can't guarantee that U.S. aid is not going to fund the Taliban, so trying to strike that balance....

Ms. Davis, I saw you shaking your head when I talked about the Criminal Code. Could you maybe explain and talk a little bit about the challenges that we have in trying to get this exemption to get aid into Afghanistan?

[Jessica Davis]

When we do a comparison with other countries, it's important to remember that not every country....

All of the listing processes are quite different. The United States doesn't have the Taliban listed in the same way that we do, so they can apply broader exemptions in a different way. I think your point is exactly right, though: There's no way to guarantee that money or resources going into Afghanistan are not going to the Taliban. In fact, I would say that the opposite is true. I can almost guarantee you that there is money and aid going to the Taliban, because that's how they operate. It's really about striking the balance between how much we think is appropriate and how much isn't, which is part of why I was talking about calibrating our foreign policy. Sometimes we might find that to be acceptable; other times we might not, depending on how the terrorist group is operating internationally.

If the Taliban starts having external attack capabilities and aspirations, we might want to turn the dial down on how much aid is going to that country.