Justice Committee on April 24th, 2023

[The Chair, Liberal, Randeep Sarai]

I call this meeting to order.

Welcome to meeting number 60 of the House of Commons Standing Committee on Justice and Human Rights. Pursuant to the order of reference of March 27, 2023, the committee is meeting to begin 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 using the Zoom application. I'd like to make a few comments for the benefit of the witnesses and the members. I don't think there is anyone on Zoom. No, so we'll skip that. I think all of you are familiar with microphone issues and how to get your translation services.

On our agenda today, we'll be proceeding to the clause-by-clause study of Bill C-41. If time permits, we'll try to begin our study in camera of the draft report on extradition. If it isn't possible, we will continue doing that on Wednesday.

Before I begin the business of today, I want to wish Ms. Dhillon a happy birthday. It's her birthday today, so happy birthday, Ms. Dhillon.

[Some hon. members]

Hear, hear!

[The Chair, Liberal, Randeep Sarai]

Going back to our first item of business today, we will have officials with us. We have Mr. Gilmour, Mr. Brookfield, Mr. Bilodeau, Ms. Loten and Ms. Beattie. They are here to provide answers on technical questions for our study today.

Welcome to all of you, and thanks for being with us today.

I would like to provide members of the committee with some reminders about the clause-by-clause process. Members should note that any new amendments must be submitted in writing to the clerk of the committee. During debate on an amendment, members are permitted to move subamendments. Those subamendments must be submitted in writing. They do not require the approval of the mover of the amendment.

That concludes it. We will continue with clause-by-clause.

(On clause 1)

The chair calls clause 1. I believe we have NDP-1.

Ms. McPherson, you have the floor.

[Heather McPherson, NDP, Edmonton Strathcona, AB]

Thank you, Mr. Chair.

We've brought forward a recommendation for clause 1. We've sent it to everyone, of course. It replaces line 8 on page 1 with the following: “10 years who, directly or indirectly, wilfully and without lawful justification or excuse, collects property or”. It will also replace line 18 on page 1 with the following: “years who, directly or indirectly, wilfully and without lawful justification or excuse, collects property or pro‐”.

The reason we've done this is that we've asked the sector and they have recommended that we insert this wording, which reflects the lawful justification of performing humanitarian activities as per international humanitarian law in territories that have been controlled by a terrorist group and which would allow for coherence and uniformity with the other the provisions of the terrorism section of the Criminal Code.

Basically, what we are doing is inserting that language.

[The Chair, Liberal, Randeep Sarai]

Shall amendment NDP-1 carry?

(Amendment agreed to)

For NDP-2, I believe a new version was circulated earlier today with the reference number 12356266, which is the version the committee will now consider.

If NDP-2 is adopted, several instances of the words “terrorist group” in the bill would be changed to “listed entity”. Members may want to remember this when considering subsequent amendments that use either term to ensure consistency throughout Bill C-41.

Go ahead, Ms. Damoff.

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

This is directed to officials.

Can you please give us the difference between a listed entity and a terrorist group? Why is it defined as a terrorist group and not just a listed entity?

[Richard Bilodeau, Director General, Department of Public Safety and Emergency Preparedness]

Thank you for that question. Maybe I'll start and give an opportunity to my colleagues to weigh in.

“Terrorist group” is defined in the Criminal Code. A listed terrorist entity is a terrorist group that has been listed as per the Criminal Code and has gone through the listing process through the government. A way to put it is that a listed entity is a terrorist group, but a terrorist group isn't necessarily a listed entity.

One of the things to consider here is that the use of the “terrorist group” in the amendment is intentional to capture the correct offence that currently exists in the Criminal Code, where it is a criminal offence to knowingly provide benefit to a terrorist group. Therefore, in changing it to “listed entity”, one of the considerations is how that would potentially significantly restrict the scope of the offence just to focus on listed entities as opposed to a terrorist group, which is currently what is in the Criminal Code.

Robert, do you want to weigh in on that?

[Robert Brookfield, Director General and Senior General Counsel, Criminal Law Policy Section, Department of Justice]

I would like to briefly elaborate.

The two definitions of terrorist group are “a listed entity” or “an entity that has as one of its purposes or activities facilitating or carrying out any terrorist activity”. For example, if there were a hateful group, a white power group, that does a terrorist act but is fundraising for various purposes, including perhaps its publications, the day after the terrorist act, it would probably not have been listed yet, because there would not have been time to do so.

Right now, as the law stands, it would be against the Criminal Code, potentially, to give money to that organization because it is a terrorist group, albeit unlisted. The effect of this amendment would be to remove that potential liability.

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

It would then severely restrict what would fall under the umbrella of this bill. It would only be those that are listed entities and not the second group you described.

Is there a reason we didn't use that particular wording in the bill, a listed entity, or the second part you used, which is in the Criminal Code?

[Robert Brookfield]

To clarify, the first part of the amendment doesn't just amend the ability to issue authorization. It also amends the crime itself. The crime itself would essentially be more limited, such that, whether in Canada or abroad, an individual who gives money to an organization that carries out terrorist activities would not be prohibited, as long as it's only giving it to the organization and not knowingly for a terrorist purpose. That's in proposed subsection 83.03(1) as the present Bill C‑41 will provide, and that stays in.

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

I may have another question, but I'll leave it for now.

[The Chair, Liberal, Randeep Sarai]

Ms. McPherson.

[Heather McPherson, NDP, Edmonton Strathcona, AB]

My concern with this, of course, is that basically what I'm hearing, and correct me if I'm wrong here, is that we are expecting that the government can't move fast enough to necessarily add an organization as a listed entity, but we are expecting CSOs or organizations to be able to respond to that without being able.... I guess what I am hearing is that we're expecting them to be faster and more mobile.

How on earth would organizations know if they were breaking the law if there is no way for...? One of the things I'm really concerned about with this whole legislation is that we're making some assumptions about who's involved in international development and who's involved in projects abroad. They are not all large organizations. They're following along with every single thing that the government does. They are not organizations that necessarily even interact with the federal government, but would still be held accountable to this law.

How on earth would they know if their organizations are at risk of breaking the law?

[Richard Bilodeau]

I can take that in two parts.

The amendment that's being discussed right now would very much restrict the scope of the offence, so that's the first thing. Leaving aside the authorization regime, the amendment to the offence would take the offence from financing terrorist activities to a terrorist group, and limit that offence to listed terrorist entities.

Even if we could do it within a matter of weeks, there would still be a period of time where there would currently be an offence, but no longer if the amendment was made to the provisions. A lot of NGOs that are operating in this space know the areas in which they operate, and they have information about that.

[Heather McPherson, NDP, Edmonton Strathcona, AB]

That's not the case for all of them.

[Richard Bilodeau]

Absolutely. I concur that there are larger ones that are more familiar with some areas, but to that extent, there are resources out there that are available. We are as a government able to provide information if asked, and people engage with us as well.

[Heather McPherson, NDP, Edmonton Strathcona, AB]

What resources are available out there for this particular thing, if this legislation hasn't been passed yet?

[Richard Bilodeau]

I will turn that over to my colleague, because she is the counterterrorism expert.

[Jennifer Loten, Director General, Bureau for International Crime and Terrorism, Department of Foreign Affairs, Trade and Development]

You're quite correct. The legislation has not yet been passed. We certainly hope to be able to provide some guidance in its applicability. We need to see how this is going to play out.

I'd like to point out that one of the challenges in restricting this applicability to just organizations that are listed means there is no protection from liability if you are engaging with an organization that, for a variety of reasons, can't be listed under the Canadian Criminal Code, and there are some organizations out there.

I take your point that this could be difficult for smaller organizations, but I expect they would be in contact with us by virtue of the application process. I hope we would be able to provide them.... They'll have to apply. We've talked about this before. There's going to be a Government of Canada website, and they would have to apply and they would notify. There's going to be a single-window application process, and we spoke about this last time.

[Heather McPherson, NDP, Edmonton Strathcona, AB]

However, they won't know when to apply, because they won't know which areas are being run by a terrorist group.

Let's say Nicaragua, and I'm picking a name totally at random. One day to the next, it changes within the mind of the Government of Canada. Any organizations working in Nicaragua aren't going to know that, so how are they possibly going to understand they are now breaking the law? The onus has now been put on small and medium-sized organizations, when the onus rightly belongs on the government to provide that information.

[Jennifer Loten]

Right. I think what we're doing here is constructing this as broadly and as flexibly as we can, so that we can respond to those sorts of evolving situations. Organizations bear a certain amount of responsibility for where they operate. I think we can all agree that's sensible. We're encouraging organizations to operate internationally where they can handle themselves. Where they need support, we help to provide it.

They will have to be able to respond to changing circumstances. I think we all do that. If the situation changes—and Nicaragua is a great example because it's a volatile place at the moment—I think they would need to be able to look at what they're doing and where they're engaging and seek guidance where we can provide it.

[Heather McPherson, NDP, Edmonton Strathcona, AB]

Monday they're allowed to work, and Thursday they're not allowed to work. However, there's no way the government has an obligation there. It's an obligation on the organization to continually keep track of what the government is thinking, not through a way that will be publicly expressed in any way but just sort of by sensing it.

[Jennifer Loten]

The government is not the one requiring them to seek a licence. We're providing this as an opportunity to allow them to continue operating in an area where they may encounter liability. They would need to make that decision, and they would need to seek independent legal advice. We can't provide legal advice, and we're not requiring organizations to seek this licence. It would be something that they would be able to pursue should they deem it necessary.

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

On a quick point of order, Mr. Chair.

I didn't hear the interpretation of two of Ms. McPherson's questions. I only heard the answers. I know we're all intensely engaged in this discussion, but I would ask my colleagues to be mindful of how fast they are talking, so that our esteemed interpreters can do their job. That way, the francophones watching us can also hear everything that's going on.

[The Chair, Liberal, Randeep Sarai]

Thank you, Mr. Brunelle-Duceppe.

Now we have Mr. Genuis.