Justice Committee on April 19th, 2023

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

Yes, but having said that, even if it is not external, when I look at what's going on in Afghanistan, it's horrific. It's one of the worst in the world right now in terms of the millions of people there.

My other concern is something that Ms. McPherson brought up at our last meeting: How do we ensure that this legislation is not politicized? How do we ensure that a government can't say they're going to make sure to include Gaza, just as an example, and they're going to ask you to apply, and then they're going to sit on your application for two years so that you're unable to deliver aid? It could be Nigeria.

Through you, Mr. Chair, Ms. McPherson listed a number of countries. Is there anything that we can change in this legislation to ensure that it can't be politicized?

All of you can respond.

[Dr. Leah West]

All listing regimes are political processes. In Canada, it's a decision by the Minister of Public Safety that recommends it to the GIC. It's not a legal decision, in a sense; it is a political process. It's the same within the United Nations. You're asking humanitarian organizations to recognize the political listing of a terrorist organization by the Government of Canada and then apply to nevertheless go and do their otherwise lawful activity in those regions.

I don't think that there's a way around it, except for saying that those humanitarian organizations can continue to do their lawful activity under international law, which is why I think that an exemption for humanitarian assistance that complies with IHL—that's neutral and impartial—is permitted under the Criminal Code.

Listing is inherently political, so any recognition of a listing is going to legitimize that political process.

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

This legislation goes further than just listed entities, right?

[Dr. Leah West]

It does, and that's another problem, because you're asking a humanitarian organization to apply contested facts to our Criminal Code definition and to come to a decision about whether or not they think that the organization controlling the area they're working in is a terrorist group, which is a challenging process even for the RCMP.

I think that request is also a bridge too far, and I would like to see the legislation specify only those that are listed entities, again because I think putting that request on humanitarian organizations is asking them to make a determination about whether a group in a controlled area is terrorist.

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

Does either of the other witnesses want to...? I only have a few seconds.

[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.

[The Chair, Liberal, Randeep Sarai]

Thank you. Thank you, Ms. Damoff.

Next we'll go to Monsieur Brunelle-Duceppe.

[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]

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]

I totally agree with what you're saying, but I have to be a killjoy. Since we're members from different parties, we may not agree on this. The problem I'm thinking of is that I certainly wouldn't want to see any sustained filibustering on this committee in the event that, say, the opposition agreed on what you just said to us, but on the government side the Minister of Public Safety would find our way of amending the bill unacceptable and decide to block the process. Until we can find common ground, people won't get the help they need. Getting aid through is the main objective of this bill, but that won't happen if we can't get it through.

Can the committee members make some concessions and manage to balance out this bill to get a deal as quickly as possible? As I say, that's my main objective. As a parliamentarian, I'm trying to see what's acceptable to humanitarian organizations to get this bill passed as quickly as possible.

Could we get there, for example, by way of exemptions for NGOs that are already recognized and credible, that have some breadth and are already on the ground? Could we have a list of NGOs that would already be exempted? Would it be possible to propose that to the government and put it in the bill, or does that seem impossible to you?

[Claude Maon, Legal Director, Doctors Without Borders]

May I speak?

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

Of course, everyone can answer the question.

[Claude Maon]

Thank you for your question.

I understand your concern and your desire to move forward. That said, I'd like to come back to what you said about the various lists of organizations and what already exists.

The important thing we need to do here today is distinguish between the different types of organizations involved.

For example, you have so‑called impartial humanitarian organizations, such as Doctors Without Borders and the International Committee of the Red Cross, which act in accordance with their mandates under international humanitarian law. International humanitarian law aims to limit the effects of war on humanitarian grounds by reconciling military necessity with humanitarian imperatives. The provisions of the Geneva Conventions, conventional international humanitarian law and customary international humanitarian law give impartial humanitarian organizations the right to offer services to parties to the conflict, to enable them to deploy humanitarian and medical assistance.

Observance of the humanitarian duties and principles of impartiality and neutrality by impartial humanitarian organizations also gives them rights, namely the assurance of protected status to enable humanitarian assistance. As long as these humanitarian organizations remain neutral and impartial, they enjoy the protection afforded to them under humanitarian law.

Doctors Without Borders and the International Committee of the Red Cross have very special status. We are perpetually committed to maintaining it by imposing on ourselves observance of these fundamental principles, in our charter, in the management of our operations, in our communications and in our funding sources. Our identity, legitimacy and legality are at stake, but so is our protection in the field, since we risk our lives if we don't stick to these principles.

Of course, there are also other types of organizations, such as development assistance or peacebuilding organizations, that have other activities to promote other principles. These organizations do not necessarily serve the same needs and are not necessarily bound by the same obligations under international humanitarian law.

[The Chair, Liberal, Randeep Sarai]

Thank you, Ms. Maon.

Next we'll go to Ms. McPherson for five minutes.

[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]

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.

In your brief to the committee, you make a strong case for a permanent standing humanitarian exemption. We within the NDP will be bringing forward a recommendation or an amendment to do that. You have provided the draft language for that.

My understanding is that this is something the International Committee of the Red Cross has also called for. Can you talk about other organizations that have been supportive of this amendment?

I should also mention, by the way, Dr. West, that your amendment to the language on the terrorist entities is something that we also will be bringing forward.

[Joseph Belliveau]

Claude, do you want to speak on the ICRC and maybe others?

[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.

[Heather McPherson, NDP, Edmonton Strathcona, AB]

Just to clarify, what you're saying is this: Not only will it put individuals at risk because they will be associated as an agent of the state; it may also, I assume, impact the ability of humanitarian organizations to get to locations in the first place.

[Claude Maon]

Absolutely.

[Heather McPherson, NDP, Edmonton Strathcona, AB]

Thank you very much.

I have one other question for you.

Can you explain the difference between exclusively humanitarian organizations, with activities covered within the legal framework of IHL, and those with mandates to do other things, such as development or peacekeeping work, that are not covered by IHL?

I don't think this committee has a strong understanding of that.

[Claude Maon]

I can talk about it, indeed. I think this will have a little of the same sense as my answer to the previous question.

We understand there are very specific organizations that are considered to be neutral and impartial, such as MSF and ICRC, because they are acting under the mandates confirmed by international humanitarian law.

Not all organizations working for peace building or humanitarian aid development are answering to IHL requirements. To be active under IHL and to be under the Geneva Convention or customary law, humanitarian organizations need to respect those principles of impartiality. Because of that, you are allowed to make offers of service to parties in a conflict, which are free to accept them or not. The only reason for refusing—except there would be no need—would considering this organization not to be impartial.

[The Chair, Liberal, Randeep Sarai]

Thank you, Ms. Maon. Thank you, Ms. McPherson.

We'll now go to a round of four minutes, starting with Mr. Van Popta.

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

I'm going to share my four minutes with my colleague Mr. Genuis. He'll start off.