Justice Committee on April 19th, 2023

[The Chair, Liberal, Randeep Sarai]

Thank you, Mr. Khan.

Next we'll go to Mr. Fischer and Ms. Avis. You can split your time as you wish.

[Martin Fischer, Head of Policy, World Vision Canada]

Thank you, Chair.

Honourable members, thank you for inviting us to appear today on your deliberations on Bill C-41.

My name is Martin Fischer. I'm the head of policy for World Vision Canada, and I'm joined by my colleague, Amy Avis, who's the chief of emergency management at the Canadian Red Cross and also a much more qualified lawyer than I will ever try to be.

We're joining you from Ottawa, which is on the unceded territory of the Algonquin Anishinabe people.

Our organizations are both members, as Usama has mentioned, of the #AidForAfghanistan coalition, a diverse group of Canadian humanitarian aid, human rights and women's rights organizations that have operated in Afghanistan for decades. Today we're speaking to a submission that was jointly prepared by eight organizations.

I want to emphasize that over the past months, and in fact longer than a year, we've closely engaged with parliamentarians from all parties and many of you around a table, as well as officials and ministerial staff from many departments, and that dialogue has been exceedingly constructive throughout. Thank you for that.

Before Amy details some of the legal considerations of our submission, I want to stress three points regarding Bill C-41.

First, as you progress through these deliberations, you'll hear, as you have, a spectrum of views on Bill C-41. We believe that with some fine tuning, it is a critical step forward in a longer-term journey to ensure that Canadian humanitarian organizations as well as those delivering other services in these difficult contexts can operate in a neutral, impartial and independent manner in the most difficult and exceptional circumstances.

Second, Bill C-41 applies to a very narrow, exceptional set of contexts in which interaction with the terrorist group's exercise of control over territory is wholly unavoidable.

Third, while Bill C-41 is not specific to just Afghanistan, it can enable us to resume work in that particularly challenging context, hopefully in the very short term. We cannot lose sight of the severity of the humanitarian crisis there and the obligations that Canada and Canadians have to help.

I'd like to turn it over to Amy now. She will outline some of our legal perspectives and recommendations contained in this submission.

[Amy Avis, Chief of Emergency Management and General Counsel, Canadian Red Cross]

Thank you for the opportunity to speak with you this evening.

A core belief of the Canadian Red Cross as well as of our sector partners is that no one should be blocked from receiving humanitarian assistance on the basis of location. We believe that Bill C-41 is a critical step forward in a longer-term journey to protect the provision of neutral and impartial humanitarian assistance. If implemented, put simply, it will enable Canadian aid organizations to resume operations in Afghanistan and conduct its operations in complex contexts across the globe.

I would like to focus on four recommendations today. The first is expediency. The second is alignment of the amendments to the purpose of the bill. The third is ensuring that the authorization regime is fit for purpose, and the fourth is the commitment to the longer-term journey that my colleague referred to.

In terms of expediency and implementation, all of us are aware of the staggering need for humanitarian assistance in Afghanistan. No one would like to see a second anniversary come to pass while Canadian aid organizations desperately want to deploy their resources, Canadian expertise and support to those who desperately need it. These programs are vital for improving access to health care and other life-saving assistance, in particular for women and girls.

My second submission is with regard to alignment of the amendments to the bill. We heard many discussions earlier this evening in terms of recommendations, and we agree with a lot of them that have been discussed.

What we would say is that the bill is intended to address an exceptional set of circumstances and rare contexts in which interaction with a terrorist entity is wholly unavoidable. It isn't about just the context of Afghanistan; it is around narrow, exceptional circumstances globally. To better support this intent, one of our strongest recommendations is to use the language of “substantial” control rather than “sufficient” control.

Finally, although there's a need for further clarity in the language of the bill, any revision must guard against the unintended consequence of increasing the breadth of application of the authorization regime.

This brings me to my third point: ensuring that the authorization regime itself is fit for purpose.

The coalition has chosen to focus on the implementation of the authorization regime because we feel as though this is where the rubber is truly going to hit the road. Beyond amendments to the bill itself, this is something that we can't lose sight of. We believe it has to be clear, fair, consistent, practical, expedient, reasonable and resourced. It also has to keep pace with operational realities.

The last is the most important, and I see my time is up, so I will be brief. It's the commitment to the longer-term journey. This is the step, the building block. It isn't everything. As long as we're committed to the longer-term journey that needs to be taken forward to systematize the provision of neutral and impartial humanitarian assistance, we strongly support the recommendations of this bill.

[The Chair, Liberal, Randeep Sarai]

Thank you, Ms. Avis. Thank you, Mr. Fischer.

Members, the bells have started ringing. If I have consent to go until 6 p.m., you'll have about 10 minutes if you want to go in person. There are some members who want to vote in person. We'll resume 10 minutes after the result is reported, if that's okay.

Do I have the consent of the committee?

[Some hon. members]

Agreed.

[The Chair, Liberal, Randeep Sarai]

We'll come back after that time—10 minutes—and we'll start right away. We have services until 7 p.m., just so you know.

We'll go to our first round of five minutes, beginning with Mr. Genuis.

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

Thank you, Chair.

What we've heard so far today is that international humanitarian law should already oblige a general exemption for politically neutral activity. Mr. Khan spoke about a workaround involving money donated from other sources. That may not be an option that works for every organization.

I'm curious. To the folks at Islamic Relief and World Vision, what's your view on the proposition that you may already have the legal authority to proceed, based on international humanitarian law? Is it just a matter of not wanting the legal headache of potential prosecution, given the ambiguities?

[Usama Khan]

Thank you for the question.

From our perspective, it's important that we understand that each agency makes its own legal and risk analysis and assessments.

Even though Islamic Relief was still doing projects in Afghanistan, for us it's important that a lot of our colleagues in the sector have funds available for Afghanistan. However, because of the risk of prosecution and their own risk assessment, they weren't proceeding.

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

Right. Is it fair to say that although the law may be on your side in general, there is some risk of prosecution, and that risk is unacceptable for...? Understandably, people who are involved in humanitarian work don't want to take on the risk of being prosecuted.

[Martin Fischer]

There are two points.

As Usama said, every organization has a different risk appetite and arrives at conclusions regarding risk in a different way. For World Vision Canada, there was a decision that we wouldn't find workarounds, either any through our global partnerships or any other way, so we halted both publicly and privately funded activities in Afghanistan, while the World Vision partnership—which is funded in a sort of pooled funding mechanism—was able to continue.

To the second point, it's really important to distinguish between activities that are protected, as MSF and others pointed out, under IHL.

It's not the full spectrum of activities that are delivered in these kinds of contexts. Proposed subsection 83.032(1), which lists the activities proposed in the bill, arguably provides a full spectrum of activities that you would do that aren't just the more narrowly defined life-saving humanitarian activities protected under IHL.

What we're saying is that in the case of World Vision Canada, we want to be able to continue work that is focused on educating children and focused on advancing the rights of children, which is work that doesn't have those IHL protections. Without the bill, we wouldn't be able to continue to do that.

I don't think it's binary. You shouldn't be saying that this is an either-or choice. You can arguably do both. That's why the conversation around a pure humanitarian exemption is important to have. We would submit that the list of activities is a really core thing. With anybody who has engaged with us over the last year, it was a key argument that we made.

We cannot just focus on.... We should be more exhaustive in what we are able to do.

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

I think that's an important distinction. Maybe groups that are engaged in emergency humanitarian relief have greater, clearer protection from international law and may feel that they are taking on less risk, but if you're involved in longer-term, development-oriented activities....

Ms. Salehi, thank you for your testimony. I want to get your perspective.

There will be some people who are afraid that the engagement involved in delivering aid will provide some legitimization to the Taliban. Of course, the Afghan people are the primary victims of the Taliban.

What do you think the people of Afghanistan would want us to be doing in terms of that potential balance between allowing aid to come in, but also not wanting to contribute in any way to the legitimization of this group, which is not a legitimate government and should not have the power that it does?

[Shabnam Salehi]

Thank you.

I think we have a core principle for humanitarian aid that neutrality and impartiality are part of. Since we have this principle, I don't think that under this principle it can be channelled towards legitimacy. If we try to see that in black and white, there is no black and white. We can't decrease the regime's role to zero.

In any situation, even in the ideal situation, the regime will benefit from some of the aid, no matter the tax style. The Taliban now are using different tools.

For this instance, I think there's a different mechanism. For example, the UN is a great mechanism, because somehow they are not providing taxes, so they are not giving taxes. I think there are different ways that we can adopt. By adopting these ways, we can decrease the role of the regime, but we can't bring their role to zero.

[The Chair, Liberal, Randeep Sarai]

Thank you.

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

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

Thank you, Chair.

Thank you to all of you for being here today, and thank you for the work you're doing. I do have to give a special shout-out to Islamic Relief, which has its head office in Burlington, Ontario.

We had a lot of conversation—some of you were here for it, I think—during the first panel about the blanket exemption for humanitarian aid.

Mr. Fischer, thank you for explaining a bit of the difference between life-saving humanitarian aid and broader development aid.

Do you see a world in this bill where there's an exemption for humanitarian aid while still allowing groups like yourselves to apply for an authorization to do the work, or for a group like Canadian Women for Women in Afghanistan, who've been operating in Afghanistan for decades and doing really good work?

[Martin Fischer]

I'll throw that to Amy.

[Amy Avis]

I think that is a really important clarification. I would say that there's IHL, then there's life-saving assistance, and then there are the activities of the bill. The coalition is looking at that broader piece.

The other thing we would put forward is in terms of what we would.... You won't find the sector disagreeing on the outcome; I think we just disagree on the process and the time frame. I think what we would put forward is that we'd like to see the language of the bill go forward so that we can resume our operations that are critical and life-saving, and then we'd like to have commitment to the journey, which would be beyond IHL and then beyond development, and then ultimately looking beyond an authorization regime.

[Martin Fischer]

If I can just throw some of that question back to the government, because it's ultimately.... The bill we have before us is the bill that we have before us for reasons that we heard on Monday, from both Minister Mendicino and the officials. If there's a legal as well as a political way to insert that exemption, by all means, do so. I don't think anybody at this table is going to say, “Don't do that.”

What we're saying, though, is that it shouldn't be the litmus test of whether this particular.... A fine-tuned version of Bill C-41 should proceed. Just to reiterate, we also have the position that the two aren't mutually exclusive. You can do them in a sequenced kind of way.

Really, Ms. Damoff—we know each other well—it's a matter of what the government intends to do. I think we would strongly support what MSF and others said during the first session, which is that, yes, if there's a way to do this, if it's ruled within scope during the amendment process, then by all means, please do it, but we would also urge—to turn to opposition—that it is not the litmus test of the bill. There are other ways to improve the bill as it stands that make it fit for purpose.

As Amy said, if that is done, we should still proceed while seeking the long-term commitment and working towards an improved framework that includes an exemption. I hope that's clear.

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

You were the first one who brought this to my attention shortly after I was elected, so we have come to know each other very well over the years.

Have you submitted to the committee all your recommendations? We'll be taking a look at those, but I think all of us want to get this done quickly, because we want you to be able to deliver aid. I know that we heard earlier that MSF has still been operating and Islamic Relief is operating, but I also know that there are many organizations that are not, and people are dying because that aid isn't getting there.

[Martin Fischer]

I think there's one important consideration. We said that while the bill is not about Afghanistan, it really is, in the very short term, and I think an additional factor as you deliberate is that in our experience, there are very few contexts that garner support from Canadians who are willing to stand up and be generous in the way that Afghanistan does.

I think it's not just about whether we are able to continue doing our work; it's also whether Canadians and Canada as a whole stand behind the commitment and the responsibility they have because of our engagement towards Afghanistan. It's difficult to separate the two. It's difficult to not place it into a broader Canadian context while also continuing to have these more abstract conversations around IHL and how Canada can move towards a more comprehensive and robust regime more broadly.

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

Okay. I'm going to end it there because I won't have to time for an answer to a question.

[The Chair, Liberal, Randeep Sarai]

Thank you.

Next we'll go to Monsieur Brunelle-Duceppe for five minutes.

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

Thank you, Mr. Chair.

Thank you to everyone for being with us.

I believe that the Canadian Red Cross was consulted in the drafting of this bill. That's what the minister told us.

Do you feel that your voice was heard enough during consultations with the minister?

[Amy Avis]

What I would say is that we feel well heard and we had lots of persistent engagement over the last year, in particular in the broad discussion of activities aligned to many of the recommendations that the sector and coalition made. We feel as though it's been a really constructive dialogue in terms of the language of the bill.

I don't know if my colleague Martin would like to add anything on behalf of the coalition.

[Martin Fischer]

I pulled up the list of meetings that World Vision registered over the last 18 months. It's unlike anything that we've ever done on any other bill, and this is across all parties and across departments.

There are limitations, obviously, once legislation gets tabled and once it gets drafted. Would we have liked to have been brought into the room at some point? Of course, but we also realize that there are limitations around cabinet confidentiality, and in this particular bill there are security limitations.

To Amy's point, there's a lot of language in the bill that came from submissions that we previously put in, and we feel heard.

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

Has the Minister of Public Safety contacted you directly to consult on Bill C‑41?