Justice Committee on April 24th, 2023

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

They could be working in an area and unable to get an authorization. We're only talking about development assistance now, because the humanitarian assistance has been carved out.

For development assistance, somebody is building a school somewhere. What you're saying is that this would mean the organization would not be able to get an authorization where they would be currently?

[Robert Brookfield]

That's correct for any of the purposes of proposed paragraphs 83.032(1)(b) through (g) of that provision, including not just non-governmental organizations but also, for example, the Canadian government and Canadian government officials.

[The Chair, Liberal, Randeep Sarai]

Ms. McPherson.

[Heather McPherson, NDP, Edmonton Strathcona, AB]

Perhaps I'm incorrect on this, but my understanding is that the authorization would not be required, because, frankly, if it is not substantially controlled by terrorism, the organizations wouldn't be at risk of being charged with this. Otherwise, what you're saying is that we won't have a list and we won't know anywhere, but if there is any terrorist activity at all in a country, then they have to apply for an exemption. However, that's impossible because that's every country that international development works in.

I can't really even think of a country where people are doing development work that doesn't have a terrorist bit to it, however small. Realistically, we wouldn't have to have the authorization, because it is not substantially run by that.

Of course, it limits the minister, but he shouldn't have a role in this anyway. He should be limited.

[Robert Brookfield]

I take your point, and I'm certain there are some organizations and their legal advisers who take the view that this authorization would not be required. If Parliament chooses to pass the legislation, then that is its prerogative.

My point would be that, if you are an organization or a government entity that wishes to secure protection for yourself from the potential liability of existing provisions, specifically proposed subsection 83.03(2), because you are concerned that you are giving, indirectly or directly, property to a person who is, let's say, a terrorist group.... In other words, you know that the organization might use “in whole or in part, for the purpose of facilitating or carrying out any terrorist activity, or for the purpose of benefiting any person who is facilitating or carrying out such an activity”.

In other words, you know the organization is doing terrorist events, and you're concerned that you're somehow giving funds to them that could violate the substantive provision, which is proposed subsection 83.03(2), then the scope under which you could apply would be more limited. Perhaps you don't need to. Perhaps there is consensus amongst relevant organizations, including the Canadian government, that you're not required to do that. You'll be safe from doing so, whether in Canada or abroad.

I'm simply pointing out that that is the effect of the amendment.

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

I appreciate your point, Mr. Brookfield. I'm open to reconsidering what I said previously.

I think this is a challenge with all of these amendments. As I understand it—and you can please jump in afterwards—there's certain activity right now that is permitted and certain activity that is prohibited. This introduces a third category, which is activity that is permitted if authorized.

If we narrow that authorization regime, we're only helping these humanitarian organizations if in the process of doing so we clarify that activity that no longer requires authorization is permitted. However, if we narrow it in a way that says activity that no longer requires authorization is necessarily prohibited, then we're not making anyone better off. I think if we're putting forward amendments that have the effect of narrowing the authorization regime, we also have to have language that clarifies what happens in cases where that authorization is no longer available.

Is it necessarily permitted or necessarily prohibited?

I think we have to be very careful about that. That is why, again, we've put forward language that says that the government has to provide guidance about areas where this applies, and that the organizations who, in good faith, follow that guidance won't be prosecuted. I think without clarifying that people won't be prosecuted if they listen to the direction they are given, we may create more problems than we solve.

I would welcome your feedback on that.

[Robert Brookfield]

I would just say that I agree with your point. I think from a legal perspective it does narrow the ability to authorize. I think part of the argument—and I don't want to speak for others—may be that, in highlighting the risk, the authorization regime might create greater concerns. I think some organizations have said that.

From a purely legal perspective I will say this does narrow the ability to issue exceptions to the existing law. It does not affect the existing law, the existing obligations.

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

Right. It doesn't permit anything that's currently prohibited. It just narrows the ability of the minister to issue authorizations.

To the point that they shouldn't need authorizations if something should be permitted, that's why we supported the humanitarian exemption. It was because we wanted to say that certain activities shouldn't require authorization; they should just be permitted. If the effect of an amendment is to leave open the question of when it's no longer authorized if it will therefore potentially remain prohibited, that doesn't help the problem. That's the dilemma.

[The Chair, Liberal, Randeep Sarai]

Ms. Damoff, go ahead.

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

Yes, I apologize that I didn't have this before to be able to go through it.

Just based on what you're saying—and I'm not a lawyer—the terrorist-financing law does not change. This amendment, though, would limit the number of authorizations. It would theoretically limit the ability of the minister to issue authorizations. The group would be in limbo, basically, outside of the law. A group would be outside of the existing terrorist-financing law while, at the same time, unable to apply for the authorization for development assistance.

Am I getting that correct?

[Robert Brookfield]

Potentially you are, although I believe my colleague has more to add from a practical perspective.

[Richard Bilodeau]

I guess it depends on the delta between “control” and “substantially control” and how that is interpreted on a case-by-case basis.

[Jennifer Loten]

I just want to jump in and clarify one thing. Ms. McPherson is 100% correct. None of these activities is prohibited. Humanitarian assistance, development assistance and all of that can continue and should. The law against terrorist financing remains in place. Channelling funds to a terrorist organization will always be illegal.

The intention of this amendment is that, where an organization or a government actor finds themselves in a situation where payment to a terrorist organization cannot be avoided—airport fees, taxation, other service fees because an organization is substantially or fully in control, and I absolutely defer to my colleague from Justice on the use of the word “substantially”—they will not be held liable for payments they cannot avoid.

It's not about saying what someone can and cannot do in a country. It simply says we will protect them. For that reason, I would suggest that it's in everyone's interest to make this as broad and applicable as possible so that cases can be assessed, and there's enough scope to provide authorizations as broadly as we possible can.

[The Chair, Liberal, Randeep Sarai]

Go ahead, Ms. McPherson.

[Heather McPherson, NDP, Edmonton Strathcona, AB]

My big problem with this.... We've gone down a road that I think is not correct. I think the reason for that is that we are making providing international development a crime that we need an exemption from.

We are saying that international development organizations require an exemption, when they shouldn't require an exemption to do their work. They should get to do their work and, in very strange circumstances—like with the Taliban in Afghanistan—they should require an exemption. I would suggest that, in almost all cases, organizations should not have to apply to do the work that they do.

What we're doing here is saying that this narrows the scope of when you need to apply. Absolutely. I don't think any organization should have to apply. I think they should be exempt. Every one of these organizations is, in fact, trying to do life-saving work around the world. From my perspective, we're thinking about this the wrong way. We're thinking about how to protect against funding terrorists, and we're not thinking about the fact that these organizations.... Not every organization has to prove that it is going into these communities for the right reasons and doing the right thing.

I will give you another example. I was thinking. I literally can't think of a country where international development happens where there isn't some terrorist activity.

Let's use Mozambique. It's one of the biggest recipients of Canadian aid. It's one of the biggest recipients of Global Affairs aid. There is terrorist activity happening right now in Mozambique. That means any organization that wants to work in Mozambique now needs to apply for this.

That is not what this bill was intended for. This bill was intended for situations like Afghanistan's, where we have a terrorist organization running the country and substantially controlling the country. If we start applying this to every country where terrorism is happening, we can't have development work in Canada because we have Canadian organizations that are involved in terrorism in this country. It's absurd.

We're thinking about this the wrong way, I think. We're weaponizing it and making it a crime to provide international development. That's not what this bill was intended to do.

[The Chair, Liberal, Randeep Sarai]

Go ahead, Mr. Genuis.

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

I'm trying to work through this. I see things a bit differently, insofar as I think this legislation as currently written applies to cases where areas are controlled by terrorist organizations, such that international development organizations must inevitably deal with them in some way before delivering that aid. It's not about whether a terrorist organization is operating in the country.

In the example of Mozambique, if there is a particular locality where it is impossible to deliver development assistance without in some way interacting with or paying tolls to a terrorist organization, that would be the case where an authorization would be required. It's not just because they're present in the country.

I think the point from officials is that, if we say that the authorization regime is only available in cases where there is substantial control by terrorist organizations, it may mean that an organization that wants to deliver development assistance to that narrow locality in Mozambique can't even apply for authorization. It may mean that they just can't do the work, period, because they have to interact with terrorist organizations to do the work. They can't apply for authorization, so they can't do the work.

My argument would be let's create an obligation for the government to provide information for organizations to use, but let's also create broad parameters in which the authorization regime can be used, while trying to provide as much clarity as possible to development organizations about when they do and don't need it. The point is that you don't need authorization to work in a country where there's a terrorist organization or terrorist activity. My sense is that you need authorization outside of the humanitarian exemption if you're going to a place....

I think Nigeria is a logical example. Nigeria has certain spaces which are, unfortunately, not under the effective control of the central government, but the country is substantially controlled by the central government. If you're trying to deliver development assistance to two areas that require some interaction with a terrorist organization, you would need the authorization regime in order to do that. If the authorization regime was not available to you, you just couldn't do it.

Our goal should be to offer more space for development organizations and not less.

I hear in Ms. McPherson's comments a broader critique of the bill, which I'm sympathetic to. In the spirit of trying to work with what we have, upon reflection, I don't think that this amendment actually makes the existing bill better. I think it may narrow its usability by humanitarian organizations.

[The Chair, Liberal, Randeep Sarai]

Mr. Genuis, are you withdrawing your subamendment then?

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

No, I can't withdraw it anyways, and I'm happy to leave my subamendment on the table. I think the subamendment improves the amendment, but I still don't think I'll support the amendment.

[The Chair, Liberal, Randeep Sarai]

Shall we go to a vote?

Go ahead, Ms. McPherson.

[Heather McPherson, NDP, Edmonton Strathcona, AB]

Thank you.

I would just like to point out that this is something that the sector has asked for writ large. Aid for Afghanistan has asked for this. They are the experts in this field. They are the experts in providing international development around the world. We are not the experts. In fact, we are being given a public safety argument, and I would just suggest that this is why we need to listen to experts. This is why this amendment is here.

[The Chair, Liberal, Randeep Sarai]

Shall Mr. Genuis' subamendment to NDP-3.1 carry?

(Subamendment agreed to on division)

(Amendment as amended negatived: nays 9; yeas 2)

Mr. Genuis, do you want to move CPC-1?

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

I will move CPC-1.

Unless there is a ruling from the chair, I will proceed.

[The Chair, Liberal, Randeep Sarai]

There is a ruling. Bill C-41 amends the Criminal Code to create a regime under which the Minister of Public Safety and Emergency Preparedness may authorize an eligible person to carry out, in a geographic area that is controlled by a terrorist group and for certain purposes, activities that otherwise would be prohibited.

The prohibited activities within the scope of the bill are set out in existing paragraph 83.03(b), which becomes new subsection 83.03(2), of the code and specifically concern the collection or provision of property or services for use by a terrorist group.

The amendment proposes to allow the minister to authorize an eligible person to carry out activities that would otherwise be prohibited under the other provisions of part II.1 of the Criminal Code in a geographic area that is controlled by a terrorist group.

As House of Commons Procedure and Practice, third edition, states on page 70, “An amendment to a bill that was referred to committee after second reading is out of order if it is beyond the scope and principle of the bill.” In the opinion of the chair, allowing exceptions to prohibited activities under the whole of part II.1 of the Criminal Code is beyond the scope of the bill; therefore, I rule the amendment inadmissible.

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

I will challenge the chair.