THE STANDING SENATE COMMITTEE ON HUMAN RIGHTS
EVIDENCE
OTTAWA, Monday, December 5, 2022
The Standing Senate Committee on Human Rights met with videoconference this day at 4:05 p.m. [ET] to examine such issues as may arise from time to time relating to human rights generally; and, in camera, to consider a draft agenda (future business).
Senator Salma Ataullahjan (Chair) in the chair.
[English]
The Chair: Honourable senators, welcome to this meeting of the Standing Senate Committee on Human Rights. I am Salma Ataullahjan, senator from Toronto and the chair of this committee.
I would like to introduce the senators who are members of this committee and participating in this meeting: Senator Hartling from New Brunswick, Senator Manning from Newfoundland and Labrador, Senator Omidvar from Ontario, Senator Pate from Ontario, Senator McPhedran from Manitoba and Senator Miville-Dechêne from Quebec.
Given the urgency of the humanitarian situation in Afghanistan, the committee decided to proceed with a spot study on Canadian humanitarian assistance to Afghanistan under its general order of reference. The study will focus on terrorism financing provisions under the Criminal Code and the extent to which those provisions are affecting the delivery of humanitarian assistance to the vulnerable people in Afghanistan.
I want to take this opportunity to welcome Senator Audette from Quebec, who has joined us.
Let me provide some details about our meeting today. This afternoon, we shall have two 45-minute panels, followed by a one-hour panel with department officials. In each panel, we shall hear from the witnesses, and then senators will have a question-and-answer session. At the conclusion of the public portion of our meeting, the committee will hold a short in camera meeting to discuss future business.
Now, I will introduce our first panel of witnesses. Each witness has been asked to make an opening statement of five minutes. I wish to welcome our first witnesses, joining us by video conference today: Sujit Choudhry, Head of Chambers, Haki Chambers Global; and Kent Roach, Professor, Faculty of Law, University of Toronto. I now invite Mr. Choudhry to make his presentation, followed by Professor Roach.
Sujit Choudhry, Head of Chambers, Haki Chambers Global, as an individual: Thank you, and good afternoon. I practise constitutional law and international law, both in Canada and globally. I’d like to thank the Standing Senate Committee on Human Rights and its chair, Senator Ataullahjan, for the opportunity to address the legal barriers on Canadian organizations to deliver humanitarian aid to Afghanistan.
On May 4 of this year, I, along with Professors Roach, Phoebe Okowa and Audrey Macklin, provided a written legal opinion to Attorney General Lametti on whether the payment of regular taxes or fees to governing authorities in Afghanistan by employees of humanitarian actors and/or by organizations that are funded by Canada to extract individuals from Afghanistan would violate subsection 83.03(b) of the Criminal Code. That opinion has been entered into evidence before the committee.
It is our understanding that the concern has been raised that the simple payment of regular taxes or fees to Afghan authorities — a routine, compelled and inescapable activity for individuals living under a governing authority — would constitute the provision of property or financial services to the Taliban with the knowledge that they would benefit the Taliban, in violation of subsection 83.03(b).
In our opinion, this conduct would not violate subsection 83.03(b) for the following three reasons: First, foreign governments cannot be a terrorist group under the Criminal Code, which means that taxes or fees paid to foreign governments cannot violate the code; second, if foreign governments can be a terrorist group, the payment of taxes or fees to the Taliban would not violate subsection 83.03(b); and third, if paying taxes or fees to the Taliban violates 83.03(b), it would have the absurd consequence of rendering inadmissible to Canada precisely the Afghans whom the Canadian government has pledged to resettle under the Immigration and Refugee Protection Act.
Today, I will be speaking to the first and third points and Professor Roach will speak to the second.
Section 83.03(b) prohibits the provision of property or financial services to a terrorist group. The Criminal Code defines a terrorist group as an entity, which is a person, group, trust, partnership or fund or an unincorporated association or organization. A group or entity does not include governments, let alone foreign governments.
The exclusion of foreign governments from the definition of a terrorist group is supported by the use of the term “government” in the Criminal Code. The term “government” refers to both Canadian and foreign governments interchangeably. The Criminal Code clearly differentiates between government and entities that can constitute a terrorist group. It follows that taxes or fees paid to a foreign government do not violate 83.03(b).
The Criminal Code does not define what constitutes a foreign government. That term fails to be interpreted in accordance with its meaning under the rules of customary international law.
Under customary international law, the criterion for the existence of a government is effective control and not democratic legitimacy. The question of whether the Taliban is the government of Afghanistan under customary international law is to be determined by objective criteria. These criteria include whether the Taliban are in effective control of Afghanistan, whether they enjoy habitual obedience or acquiescence of the population, whether there are any rival governments and what dealings there are, if any, between the Taliban and foreign states.
On the basis of the evidence available to us at that time, it was our opinion that the Taliban are the government of Afghanistan, and that remains our opinion. They are in effective control of Afghanistan and enjoy habitual obedience or acquiescence of a significant proportion of the population. There are no rival governments. Moreover, there have been dealings between foreign states and the Taliban.
Most states no longer formally recognize foreign governments. Canada itself issued a statement abandoning the formal recognition of governments in 1988. Nonetheless, Canada has relied on non-recognition of the Taliban as one basis for its interpretation of section 83.03(b).
I note that in October 2022, it came to light that Canadian diplomats had appropriately been interacting with the Taliban on humanitarian issues since August 2021. If Canada deals with the Taliban as a government, it follows that the Taliban is a government under the Criminal Code and cannot simultaneously be a terrorist group. Taxes or fees paid to it do not violate section 83.03(b).
The Canadian government has publicly committed to resettling thousands of Afghans from inside of Afghanistan because they are at risk of persecution by the Taliban. If it is correct that an individual violates section 83.03(b) by paying taxes or fees to the Taliban, vast numbers of persons in Afghanistan will breach that provision on an ongoing basis.
The absurd consequence of the preferred interpretation would be that precisely the Afghans whom the Canadian government has pledged to resettle because of the risk they face from the Taliban could be inadmissible to Canada under section 36(2)(c) of the Immigration and Refugee Protection Act, or IRPA, which renders inadmissible to Canada foreign nationals on the basis of criminality. Section 83.03(b) should be interpreted to avoid this absurd result. Thank you.
The Chair: Thank you, Mr. Choudhry.
Kent Roach, Professor, Faculty of Law, University of Toronto, as an individual: Thank you very much for this kind invitation. Just to elaborate, a purposive and Charter-compliant interpretation of section 83.03(b) should exempt humanitarian organizations who only pay taxes to the Taliban and have no intent or knowledge about any possible use of these funds for terrorism. If contrary to this primary submission, I would say that section 83.03(b), if it is broad enough to capture humanitarian aid, then it should be repealed or struck down by the courts as overbroad.
Section 83.03 was enacted after 9/11 to give effect to UN Security Council Resolution 1373 aimed at stopping terrorism financing of the kind that Osama bin Laden provided to al Qaeda. The payment of taxes, in my view, is not the type of provision of property or financial services targeted by section 83.02(b), which is a very serious offence, subject to 10 years imprisonment.
Assuming that the Taliban government can be listed as a terrorist group — and my colleague has told you that it cannot — the payment of tax should not be interpreted by either the Attorney General of Canada or the courts as a form of direct or indirect provision of property, financial or other related financial services that violate the code. Moreover, it should be interpreted in light of the Supreme Court of Canada’s leading decision in R. v. Khawaja that excludes conduct in the ambit of terrorism offences that has the negligible risk of enhancing the ability of a terrorist group to carry out or facilitate a terrorist activity.
Now, I recognize that section 83.03(b) is wider than any of the other financing provisions used in the code. In my view, this renders the provision constitutionally suspect should it be applied to the provision of humanitarian aid. It is my opinion that courts would likely read in a terrorism-related purpose into section 83.03(b) to cure its overbreadth in relation to the legitimate and intended purpose of prohibiting the intentional financing of terrorism. Such concerns should influence the exercise of the Attorney General of Canada’s prosecutorial discretion and the needed pre-charge approval to lay this charge.
Finally, to conclude and to reiterate, my primary position is that amendments to section 83.03(b) are not needed to allow humanitarian aid in Afghanistan. In the alternative — and unfortunately it would be too late for many — specific amendments could be made to allow humanitarian aid, as has been done in Australia and the U.K. However, if those alternatives were necessary — and it is our position that they are not if you give it a purposive and Charter-compliant interpretation — I would also recommend that serious consideration be given to repealing section 83.03(b) on the basis that it is overbroad to the legitimate purposes of preventing terrorism financing. Thank you very much.
The Chair: Thank you. We’ll now proceed to questions from the senators. I generally don’t like to ask a question right at the beginning, but Mr. Choudhry, I would like to ask you, in your opinion, are the Taliban suffering because NGOs on the ground are not providing them aid? We’re actually harming the very people we want to help.
Mr. Choudhry: Senator, if I could rephrase your question, I think the question is are ordinary Afghans suffering, and I think the answer is correct. It leads me to this point, that whatever our political disagreements might be with the Taliban, whatever our views might be of its treatment of women, of its disregard for human rights and democracy, whatever our views might be of the fall of the government of Afghanistan, the people of Afghanistan should not be a casualty of that political disagreement.
The focus of our letter, and really the focus of our testimony, is on humanitarian assistance to make sure that the people of Afghanistan aren’t victims of this political disagreement and that humanitarian aid isn’t criminalized by organizations that simply want to help to prevent widespread famine in the months to come, which is a real risk.
The Chair: Thank you.
Senator McPhedran: Thank you to this committee for initiating this discussion today. I think it’s crucial.
I am very heartened by the conclusion of both of our expert witnesses, and I just want to make sure that I’ve understood it correctly. In your expert opinions, there is actually not a need for an amendment in order for humanitarian aid to flow to Afghans in desperate straits. We all know that in August 2021, when Kabul fell and the Taliban officially retook the country, that it was described by virtually every source as the largest humanitarian disaster in the world at that time, and we all know that it’s only gotten worse.
If I’m correct in understanding what you’ve said, may I ask you for your sense of why the Government of Canada would be continuing to take the position that they first need to amend the legislation? How is it that what sounds like a legal opinion has dictated everything that this government is currently doing to block humanitarian aid?
Mr. Roach: Thank you for that question, Senator McPhedran. I do believe, although we have not seen the actual legal opinion, that it is a legal opinion that is blocking the government. But as we tried to do — and this opinion was prepared some months ago in recognition of the urgency of the situation — we have tried to make arguments that the Khawaja case is quite relevant, as well as the ability of the Attorney General of Canada to approve any terrorism prosecution before it is started. It may be — and I’m only speculating — that the government’s legal advisers are looking at other countries that have crafted exemptions, but it’s important to note that the government has generally been quite proud of the Anti-terrorism Act, 2001, and it has been upheld by the Supreme Court on a number of occasions.
The Supreme Court has also been very careful to say that it does not apply to conduct that presents a negligible risk of enhancing an ability to carry out acts of terrorism. In my view, section 83.03(b) sticks out like a sore thumb. Either it has to be read down through interpretation or, in my view, it is vulnerable to a Charter challenge. Now, obviously, waiting for either a successful Charter challenge, which could go all the way to the Supreme Court before it was finally decided and, in my judgment, likely to be successful; or even an amendment takes much time.
This is a case where, perhaps, an overly cautious legal opinion has slowed down the need to give much-needed humanitarian assistance. Although I’m not an expert on humanitarian assistance, I do know that some humanitarian groups that operate in Canada are simply going through their American arms in order to get humanitarian assistance to Afghanistan. To me, that seems beyond tragic and beyond ironic, given that the provision of humanitarian aid is essential to maintaining peace. Even Security Council Resolution 1373, where this all started, was very much tied not to providing funds for humanitarian reasons but to stop — legitimately, I would add — providing funds —
The Chair: Thank you, Professor Roach. I’m sorry, I have a list of senators. Senators, I just want to remind you that we have four minutes for questions and answers, and I can always put you on second round.
Senator Omidvar: Thank you to our witnesses for being here. This is not a new issue for senators. We have raised questions in the Senate. We have written letters to Minister Lametti. We continue to be told that the government is seized with the issue. I’m not quite sure how you can be seized with the issue for eight months and not provide any action.
Am I correct in hearing you say that amendments are not needed and that the Government of Canada could choose to craft an exemption to section 83.03(b) like some of our like-minded jurisdictions have done? In that exemption, would that be Afghanistan-specific or broader with respect to humanitarian aid to conflicted regions?
Mr. Choudhry: Maybe Professor Roach can speak to the exemptions in Australia and U.K. legislation because it would be useful for the senators to be aware of that.
Mr. Roach: Yes. In both of those countries, there are exemptions for providing aid of a humanitarian nature. I imagine that would be one model.
I want to make it clear that our primary position is that if this law is properly interpreted, no exemption is necessary. The issue of exemption is not an easy one, because we know that in some cases, a group that is classified as a terrorist group also provides humanitarian assistance. Although Australia and the U.K. have legislated humanitarian exceptions that do not apply specifically in Afghanistan but seem to me to be quite general, I think they also beg some questions. It’s better simply to recognize that the legitimate ambit of the offence as it exists should not extend unless there is some nexus to terrorist activity.
The Chair: Mr. Roach, am I hearing correctly that you’re saying Ottawa is misinterpreting its own laws?
Mr. Roach: In my view, yes, although it wouldn’t be the first time that we disagreed with interpretations given by government lawyers. One of the concerns is whether the government is taking a very risk-averse interpretation of this provision. Private prosecutions are not allowed for terrorism crimes. They’re not allowed for hate propaganda crimes because there’s a sense that there has to be a government decision.
I find it difficult to understand, frankly, why the government seems to have taken the position that it does. Now, of course, you will be hearing from government representatives who get the last word, so you can make up your own minds.
[Translation]
Senator Audette: My question is for Mr. Roach.
You mentioned specific amendments to allow direct assistance for Afghans in Afghanistan. Could you elaborate on that procedure or that amendment? Maybe you did in your opening remarks, but I want to make sure I understand.
[English]
Mr. Roach: Thank you, Senator Audette. If you went the legislative route, you could look at exemptions. The Australian law, for example, exempts from a terrorism participation offence an association that is only for the purpose of a humanitarian nature. Similarly, the British legislation exempts providing aid for a humanitarian nature.
But again, I would argue that if you go back to the Khawaja decision, the unanimous decision of the Supreme Court of Canada in giving both a purposive and a Charter-compliant interpretation to the law, such an amendment may not be necessary. If the government digs in its heels — which, to an extent, it probably already has — it might be that you want to look at an exemption of that nature.
But our primary position is that, on the law as it is written now, given the Khawaja case, it should not be interpreted to apply to giving humanitarian aid where there is no nexus, no knowledge and no intent in relation to an actual terrorist activity.
Senator Pate: My question is for both of you. Regarding the letter that was written on May 4 to Minister Lametti, what response, if any, have you received?
Mr. Choudhry: We’ve certainly had an exchange of views, I would say, with the Department of Justice. I would say that exchange of views was disappointing.
To give you some context, the four of us who wrote that letter came together quickly; we wrote it in three days. We’re fairly strong-minded, independent lawyers, and we had no great difficulty coming to our conclusion, and we were very firm in our view. We didn’t think it was even a close call, to be blunt. There are many issues in Canadian public law that are close calls, but in our respectful view, this is not one of them.
We shared that letter in May. We think, at that point, the government had a choice: It could either have reversed its legally incorrect decision of the code — and I note again that, notwithstanding Canada’s position that the Taliban is a terrorist group and not recognized as the government of Afghanistan, since August 2021, in Qatar and elsewhere, our diplomats have appropriately been interacting with the Taliban on humanitarian issues. If they do that, then in our view, that blows apart the objection that the Taliban is not an entity that can be treated as a government, because the executive branch of the Canadian government is doing so.
But the other option at that juncture would have been to bring forth legislation on an emergency basis through an all-party consensus, to be passed on an expedited basis by both the House of Commons and the Senate. That certainly is an option before us, although I agree 100% with Kent Roach that our principal position is that such an amendment is not necessary. If the government’s position is that it is necessary, then let’s get on with it and get it done as soon as possible, because winter is here in Afghanistan. After 20 years of commitment to the people of Afghanistan, we certainly should not leave them to starve because of our disagreement with their government.
Senator Pate: Thank you. Is there anything you’d like to add, Professor Roach?
Mr. Roach: No, I completely agree with my colleague.
[Translation]
Senator Miville-Dechêne: It all seems Kafkaesque to me, as we have people who need help, on the one hand, and on the other hand, we have a government that says that it is too dangerous and that the Criminal Code does not allow it. We can’t find a short-term solution to help these people, even though we participated in a war for years to help an entire people.
So is there another reason why the government is not prepared to act? I’m not an expert on this, but is because the authorities are afraid that the humanitarian aid will end up in the hands of the Taliban in the government and help the Taliban stay in power? Is that one of the reasons? Has it been brought up? Does it make sense?
[English]
Mr. Roach: Thank you, senator.
I guess it does seem a bit Kafkaesque, given that it really raises the issue of why you would ever prosecute someone for providing humanitarian aid that has the incidental effect of providing funds for the Taliban government.
I think the government has put a lot of stock in the fact that after 9/11 we did not go as far as some of our allies in enacting a broad-terrorism law. As I said, this provision really sticks out in its breadth. That raises two issues to me. There are basically two ways in our system that an overbroad law can be trimmed. One is through interpretation, and the Supreme Court of Canada has demonstrated a real preference for using interpretation when it comes to the anti-terrorism law. As I said, it has done so with the Khawaja case, and it did so in a number of other cases dealing with investigative hearings under the Anti-terrorism Act, or ATA. Alternatively, you can strike down a law.
It’s also important to know that the court is very unrelenting in its interpretation of what is over-broad. You don’t have to prove to establish a violation of section 7 that every application of the law is over-broad; you only have to prove that one application is, in which case it then passes to the government to justify a limit on the section 7 right as fair, reasonable, necessary and proportionate. That has actually never happened in the history of the Charter of over 40 years.
I guess those are questions that you will be able to address to the government witnesses who will appear after us.
Senator McPhedran: I can’t resist noting that I’m a former student of Professor Roach. It’s lovely to have you with us. Mr. Choudhry, thank you for all your very good work as well.
I need to put my question into context. All of the ministers who could be answering these questions have been too busy to come to this committee today, and so we will be faced with civil servants who actually can’t answer the questions we’re discussing here. I think that needs to be on the record.
I also want to put into context that we are very close now to adjourning Parliament for the winter period. It is hovering at just above zero degrees in Kabul right now. The temperature predictions are that it will stay that cold and will only get colder. Parliament is not likely to come back for four, perhaps five, weeks, and that will be toward the end of January.
In your circles, have you heard of any movement by this government to do something, either to adjust the opinion or move with this emergency legislation that is so desperately needed? Any rumours, any idea?
Mr. Choudhry: Senator McPhedran, if I were asked, I would propose a double-barrelled approach along the lines of what you stated.
First, I would invite the Government of Canada to issue a formal legal opinion that is consistent with ours that the code, properly interpreted, doesn’t criminalize the payment of fees by humanitarian organizations to the Taliban. But that would be bundled with a commitment to introduce narrowly targeted legislation to address this issue as a matter of the highest priority when Parliament reconvenes after Christmas, and to seek all-party agreement on it.
But I do think that some type of a statement that in fact this view is not correct would be a welcome development because it would avoid the perversity of what Professor Roach has indicated, which is that Canadian organizations are working through their counterparts or limbs in other countries to deliver aid to people in need.
Senator McPhedran: Facing potentially five weeks if immediate action is not taken now along the lines of what has been laid out, the World Food Programme has already told us that there are at least one million Afghan children on the brink of starvation. This will only get worse in the five-plus weeks of the adjournment.
I would like to ask both of our experts: What kind of timeline do you think is reasonable here for the government, if indeed there were a will to take action?
Mr. Roach: Thank you, Senator McPhedran. As has been noted, the government has been seized with this issue for a while. I had forgotten our opinion was as early as May. It seems to me that’s why I haven’t really focused on the humanitarian exemption, because I just don’t think it is possible, even with the greatest of cooperation and speed, to get this exemption passed.
I would also bring up that part of the architecture of the Anti-terrorism Act is 83.24, which says that no proceedings in respect of a terrorism offence, which includes this, shall be commenced without the consent of the Attorney General. I also think that some sort of a statement about why the Attorney General would not consent to the prosecution, someone giving humanitarian aid, this is also something that could be done, frankly, much quicker than legislation.
If the government didn’t want to withdraw the legal opinion, it could also make a decision that it simply would not prosecute. Non-prosecution agreements, as you know, are quite common in the corporate world, and I think there’s no particular reason why there could not be some similar statement made in the humanitarian and human rights world.
Senator Omidvar: You’ve given us three options. One, an amendment is not needed; two, exemptions can be crafted; and three, the government could agree to non-prosecution agreements. You’re talking about a statement, both our witnesses are talking about statements. The Senate human rights report spot study on this possibly could be that powerful statement.
I’m struggling with my own conclusion to this, and I’d like your response. This is really not a matter of legislation or even policy. It’s a matter of communications. It appears to me that the government is concerned that aid to Afghans will be interpreted as aid to the Taliban, and therefore, they would be in the crosshairs of public and global opinion. That’s not a question. I just want you to respond to that.
Mr. Choudhry: Senator, I think there is unreasonably written legal opinion that is at the root of this. It’s deeply regrettable and we think it’s wrong. I reiterate that there are many issues in Canadian public law on which there’s room to disagree. In our respectful view, this is not one of them. This opinion, which we have not read but the results of which we are familiar with, is simply incorrect as a matter of law.
If I could add one thing to what Professor Roach said, because I think it’s quite important. Section 83.24 says that:
Proceedings in respect of a terrorism offence or an offence under section 83.12 shall not be commenced without the consent of the Attorney General.
What Professor Roach says is eminently sensible and practical — that it would be entirely appropriate for the committee to address to the Attorney General a request that he exercise his power under 83.24 not to prosecute humanitarian organizations operating in Afghanistan who might otherwise run afoul of 83.03(b). That strikes me as a very positive step. It’s a step that could be taken right away. And it picks up on Senator McPhedran’s question, which was what we can do now, given that the Parliament is about to head into recess.
Senator McPhedran: In the short time that we have, we’ve established that there can be action. It is possible to rectify this horrendous situation.
Nobody has mentioned morality here, but this is highly questionable of the Government of Canada on a moral basis as well as in a legal and political basis. My question is this: Is there any good reason for the inaction that we are seeing?
The Chair: I will ask my question too. The House Committee did look at this issue, and there were several legislative options to address barriers to humanitarian aid and those were recommended during the committee study. What was the government’s response? I want to know because it can be a matter of record.
I am someone who is familiar with and travelled extensively in Afghanistan, and I know how brutal the winters are in Kabul, so we talk about children starving, but we also talk about most of them do not have warm clothing, not even shoes. I go back to Peshawar, and I get news constantly. I’m constantly asked about this. Why?
I think Senator McPhedran nailed it. She said why is there a lack of will on the part of this government to move forward with this?
Mr. Choudhry: I can’t answer questions that are better answered by the government witnesses. I’ve provided this document to the clerk and I would hope that it be put into the record as well, as evidence. I provided a PDF of the government’s response to the report of the Special Committee on Afghanistan. Senator, I would refer you to the government’s response to recommendations 9, 10 and 11. In those responses, the Government of Canada says that legislative options should be looked at in response to precisely the same concerns being raised today in this committee. The government made that commitment. That report, as you know, was delivered months ago. Why there hasn’t been any concrete initiatives taken since then, I can’t answer.
The Chair: They made a commitment that they have not kept. Thank you.
Mr. Choudhry: Yes.
Senator Omidvar: I just wanted to say that the government agreed with almost all the recommendations of the House committee and clearly has not acted on them.
The Chair: I think we wanted that on the record. They agreed with the recommendations, but they have not done anything on it.
Senator McPhedran: I asked the question whether anybody could think of any good reason for this inaction, and no one has come up with a good reason for this inaction.
The Chair: Maybe there isn’t a good reason, Senator McPhedran.
I want to thank the witnesses. Your testimony will greatly help us when we finish this study and put out a strong letter or recommendation. I think that’s for the senators to decide. Let’s see what happens with our study. I want to thank you.
I shall now introduce our second panel of witnesses. Each witness has been asked to make an opening statement of five minutes. We shall hear from all the witnesses and then turn to questions from the senators.
On behalf of the Aid for Afghanistan campaign, joining us by video conference, we have Amy Avis, General Counsel, Canadian Red Cross; at the table with us today we have Martin Fischer, Head of Policy, World Vision Canada; joining us by video conference from the Afghan Women’s Organization Refugee and Immigrant Services, we have Asma Faizi, President, and Adeena Niazi, Executive Director.
I now invite Ms. Avis and Mr. Fischer to make their presentations, followed by Ms. Faizi and Ms. Niazi. Witnesses, can you please make sure your phones are off? In the previous panel, someone’s phone kept ringing and it makes it difficult for our interpreters to hear. Thank you.
Martin Fischer, Head of Policy, World Vision Canada: Honourable senators, thank you for inviting us to contribute to your deliberations on the barriers affecting the delivery of humanitarian assistance in Afghanistan; assistance that is desperately needed and barriers that should and can be overcome, as our recommendations will highlight. I’m sharing my time with my colleague, Amy Avis, General Counsel for the Canadian Red Cross.
Both of our organizations are part of the Aid for Afghanistan campaign effort that brings together 18 Canadian humanitarian and human rights organizations who were active in Afghanistan before the Taliban took power and are keen to resume their work. We have designated funds on hold, materials and staff that stand ready to help but cannot. We’re turning away Canadians who are looking to donate and engage, and as part of the campaign, close to 10,000 Canadians have signed a petition urging the Canadian government to remove all legal barriers preventing us from supporting our work on the ground.
You’ve heard about the deteriorating humanitarian situation in Afghanistan. One year on from momentous political change, hard-won development gains are clearly showing signs of erosion, and the situation for Afghans has never been more precarious. Political events coupled with the impacts of decades of conflict, cyclical natural disasters and increasing severity of climate-related shocks, as well as the compounding socio-economic effects lingering from the COVID-19 pandemic, are testing the resilience of Afghan communities, perhaps now more than ever. Families are being pushed to the brink, and child survival is at risk.
Senators, rather than repeating the staggering figures of humanitarian needs, allow me to read into the record one short story. Seven-month-old Miriam is severely malnourished and emblematic of how gaps in maternal, newborn and child health disproportionately impact children. Due to the lack of food and limited access to health services in their village, Miriam’s family has already lost one child due to malnutrition. Now, family members are losing hope that Miriam will survive. She is very weak and cannot move a lot, says her mother. There are eight more villages neighbouring Miriam’s village of 7,000 people, and none of them currently have access to health care services, posing a great risk to the survival of children experiencing acute malnutrition. The maternal and infant mortality rates in the area are also very high. Miriam’s mother adds that it takes us around four hours to take a villager to see a doctor because we do not have any clinic or even a drugstore in our village.
That’s the situation we’re facing and that’s the situation we’re looking to address once these barriers are removed.
Amy Avis, General Counsel, Canadian Red Cross: Honourable senators, Canadian humanitarian organizations are still unable to support ongoing work in Afghanistan. The position of the Canadian Red Cross and our sector partners is that there should be no limitation on the basis of geography for populations impacted by a humanitarian crisis. Impartial, life-saving humanitarian assistance must always be protected to ensure that it reaches those who need it most.
The barriers we are facing are twofold. Canadian aid organizations are unable to work in Afghanistan without fear of criminal prosecution or other penalties due to what the Canadian Red Cross and other sector partners believe is an overly restrictive interpretation of the Criminal Code and sanctions that do not have an express carve out for humanitarian action and life-saving aid, which does not align to that of other G7 nations. While the Red Cross recognizes states’ authority and need to take measures to prevent and respond to terrorist activities and other fund diversion, it is also imperative that humanitarian action not be impeded. Further, we respectfully submit that many Canadian aid organizations are well experienced at working in complex contexts and have effective controls and strong local partnerships. The implication of those barriers, as shared very well by Martin Fischer, are that our shipments are paused, supplies are ageing in warehouses and organizations remain unable to continue to support critical programming.
Given the increasingly dire situation in Afghanistan, which is disproportionately affecting women and girls, we urgently ask the committee to consider the following recommendations:
That the sanctions regulations be revised to be brought in line with the UN Security Council Resolution 2615; that there be clarification and communication about the inapplicability of the Criminal Code to impartial humanitarian action; and that, to guard against this for future contexts, the Criminal Code be amended in order to allow for the inclusion of standing, well-crafted humanitarian carve outs.
Thank you for your time.
The Chair: Thank you. I will now turn to Ms. Faizi and Ms. Niazi for their statements.
Adeena Niazi, Executive Director, Afghan Women’s Organization Refugee and Immigrant Services: Thank you, Madam Chair and committee members, for the opportunity to allow Ms. Faizi and I to appear in front of you today.
For over 30 years, the Afghan Women’s Organization Refugee and Immigrant Services, known as the AWO, has served our population, especially for those affected by war and persecution, with a special focus on women and their families. We have also sponsored thousands of Afghan refugees from across the world.
AWO was founded and led by Afghan women refugees and is a loyal advocate for refugee rights. It has also led similar educational projects for refugees in Pakistan and also inside Afghanistan, including a home-based underground school during the fall to the Taliban in the 1990s.
Currently, AWO is running education for all girls in Kabul.
Given the longstanding commitment and deep connection of our organization with the Afghan population in Canada and in Afghanistan, AWO is in a unique position to speak on the pressing issues that Afghans are facing at this time of crisis, including the barriers, which have been spoken about, that exist in the delivery of humanitarian assistance to Afghanistan.
We thank the Government of Canada for this longstanding and continued support to ensure stability and humanitarian rights in Afghanistan, as well as its investment in the areas of health, education and women’s rights in Afghanistan. However, we are gravely concerned that Canada’s investment in Afghanistan is severely threatened by the crisis that is happening right now. The humanitarian situation on the ground is much worse than we hear on the news. We receive calls from the people in Afghanistan every day, and the suffering of the people is heartbreaking.
Currently, there are more than 35 million displaced Afghans, and 80% of them are women and children. Starvation and winter make it very hard for them, in addition to not having a home or shelter. More than 24 million people are dependent upon their life savings and international assistance, and at least 1 million children are at risk of starvation.
Now, I will turn to Ms. Faizi to talk about our calls for action.
Asma Faizi, President, Afghan Women’s Organization Refugee and Immigrant Services: Thank you, Madam Chair and the committee members.
We have three calls for action. First, Canada should urgently remove current legislative barriers to humanitarian assistance that currently inhibit humanitarian organizations to deliver aid in Afghanistan. As an Afghan Canadian lawyer, I’m concerned about the negative effects that sanctions regimes and Canada’s counterterrorism legislation are having on Afghans who most need humanitarian protection and assistance, and that instead of alleviating human suffering, they are causing more suffering.
Due to those barriers, we just heard that support from Canadian humanitarian organizations have been on hold at this crucial time. As Ms. Niazi mentioned, we have an all-girls orphanage in Afghanistan, and we are concerned about how to support them.
As part of Canada’s Feminist International Assistance Policy, undertaking certain risks is acknowledged as fundamental to achieving its vision of meaningful social change. For that reason, more responsive, efficient and effective funding mechanisms and approaches are needed. We don’t understand why it’s taking so long to develop exemptions or other workarounds in light of the severity of the crisis in Afghanistan and the disproportionate impact it is having on women and children. Surely, Canada’s laws aren’t that much more complicated than those of all other major donors in Afghanistan, including the U.K., Australia, the U.S. and the EU, all of which have put forward exemptions or put in place other workarounds, some of them for more than a year now.
Further, to ensure that Afghans have the tools and resources they need, it’s imperative that Canada increase its financial commitment to at least $250 million for 2023 to reflect the drastically escalating needs.
Second, in addition to removing Canada’s restrictions, Canada needs to work with the international community to remove other restrictions, with a long-eye view that aid should be given that opens up a pathway for reviving the economy and addressing needs beyond preventing academic collapse. Humanitarian actions cannot be segregated from the needs of the rest of the economy. Afghanistan needs a viable economy, with support from both the public and private sector, because humanitarian assistance alone will never be sufficient or sustainable.
Finally, Canada should work with Afghans and the diaspora to ensure that Afghan voices and local communities are meaningfully engaged and considered when making decisions regarding distribution of aid, which is consistent with Canada’s feminist foreign affairs practices and international assistance policy. Once legislative barriers are removed, we need to ensure the accountability that aid assistance reaches the most vulnerable. Therefore, funds should only be allocated to NGOs and multilateral organizations that are independent, transparent and provide monitoring and reporting.
Thank you.
The Chair: Thank you very much for your presentations. We will now proceed to questions from senators.
Senators, I just want to remind you that we have four minutes for questions and answers. I can always put you on second round.
Senator Omidvar: Thank you so much to all our witnesses for being here today. The Red Cross, World Vision and the Afghan Women’s Organization are valued partners of Global Affairs Canada, and I suspect that our government couldn’t deliver on its international humanitarian objectives without partnership with your organizations.
Can you tell me what they have communicated to you? I’m sure you’ve had lots of back and forth with them trying to get an explanation. What information do you have from the department?
Mr. Fischer: Thank you, senator.
Maybe I can take a long view back to how this all began in the fall of last year. Every year, Global Affairs has a round of proposals, submissions and calls for chronic humanitarian emergencies. Afghanistan is obviously on the list of those. It was certainly on the list after the fall of the government.
From our perspective, the first time this became an issue from the Global Affairs side was when proposals were being developed for that chronic round in the fall of 2021. At least from our side, World Vision communicated to us that Afghanistan needed to be removed from a multi-country proposal and the funds should be reallocated. That was the first communication, I think, from Global Affairs to us as an implementing partner.
If I summarize the engagements we’ve had over the year and echo Mr. Choudhry and Mr. Roach’s frustrations, there has been a lot. There have been communications with the Minister of Public Safety, the Minister of Justice, the Minister of International Development, the Minister of Foreign Affairs and the Prime Minister’s Office over that duration as various constellations of a coalition.
The response has always been continued escalation of the following: “We are seized of it. We are working on something; we want to work on something.” Now, as we are reaching the winter, as Mr. Choudhry has said, there’s a little bit more communication that perhaps something might be imminent. We’ve heard that before as well.
Normally, you don’t hear humanitarian organizations come to committees and express a degree of frustration, but I think it’s fair to express a high degree of frustration, and we’re not quite sure where to target that frustration. I think we have had constructive engagements with all those folks we’ve engaged with. I cannot assume that anybody is not acting in good faith.
I think we have similar questions as Mr. Choudhry: What does it take and what is the barrier?
Senator Omidvar: Is this the first time that you have experienced the anti-terrorism code being interpreted in this way to prevent your delivery of humanitarian aid to conflicted parts of the world?
Ms. Avis: It’s fair to say that we’ve never encountered it as a barrier. I think it’s important to also talk about the sanctions regime because I think that the two together have made an unprecedented challenge for Canadian aid organizations. I think that’s what makes this context in Afghanistan unique.
Senator McPhedran: Thank you very much. I will ask each of the witnesses to respond to this. Before I do, I just want to acknowledge the work, the dedication and the fact that you’re here today, the tenacity that you all bring to this. In particular, Adeena Niazi. I remember when you were taking money into Afghanistan under a burka, and the situation is even worse now. It’s hard to believe that I’m saying those words 20-plus years later.
My question to all of you: In all of your communications, in all of your meetings, is there one good reason that you’ve been given by the Government of Canada representatives — cabinet ministers, all the way through the system — why we’re in this situation today facing six million people on the brink of starvation, including more than one million children?
Ms. Faizi: We’ve had a number of meetings, and what we repeatedly get told is that we understand that there’s a problem, there’s an acknowledgement there’s a problem and that they’re working on it. As Mr. Fischer indicated, “The solution is imminent,” is what we keep hearing, and we’ve been hearing that for months.
You asked about morality. At what point does the situation in Afghanistan — which is already unprecedented — need to get worse before our government gets its act together and actually does something?
As Mr. Fischer mentioned, this issue has been raised with the government since September 2021. The special House committee had extended studies, lots of witnesses provided evidence. There was a report that acknowledged the urgency of the situation. In June, there was a meeting we had with the Minister of International Development. At the end of June, we were told they were aware, they were going to do something. We got the response from the government in October 2002 agreeing to those recommendations, and here we are in December and nothing has been done.
Ms. Niazi: If I can add, I don’t see any reasons that we can justify the starvation of children at this moment when they are frozen to death without shelter. I don’t see any justification for us to be limited in providing services to the girls’ orphanage who depend on our donations.
Now, we haven’t paid the rent to the landlord, and the landlord, of course, is a generous person; he could throw us on the street. So I don’t think anything justifies this situation.
Thank you for your comment and thanks for your support for standing beside us for many years.
Yes, during the period in the 1990s when the Taliban were there, I could go with a burka across the border. Now the Pakistani border is closed. We cannot go like that. I used to go that way to enter Afghanistan. Now we cannot even go in person to Afghanistan to meet them, to provide something locally. The barriers are even worse than they were before.
Senator McPhedran: Thank you.
The Chair: Mr. Fischer, would you like to add something to that?
Mr. Fischer: I can speak for World Vision and other humanitarian organizations. There are controls in place that we all have put in place that prevents precisely and mitigate the risks that are laid out in funds doing things and supporting individuals that they’re not supposed to support. As Ms. Avis has said, while we have operated in similar challenging contexts where you perhaps bump up against these rules, we have not encountered a similar interpretation that has a chilling effect.
I think that’s important for two reasons. Registered charities have very clear financial reporting obligations to the CRA. We’re not talking about unregistered charities being allowed to do these kinds of activities that are specifically spelled out in various international and legal doctrines.
The larger and certainly medium-sized humanitarian organizations, the checks and balances we have in place, from memoranda of understanding to very clear beneficiary lists, to screenings, to third party screenings, the list goes on and on. We know how to do this and we know how to mitigate risks. All we’re asking is for the government to follow their talk and allow us to do things that we’re doing in similar contexts as well. This is not new to us. The challenge is new, but the situation and the risk mitigation we have in place are not new to us.
[Translation]
Senator Audette: Across the planet, every time we hear — in the media, in the news, or through our connections and friends — about women disappearing and how women’s rights are being violated or they are being prevented from accessing a right that I believe is normal, which is the right to an education, it makes me react.
The work you do is precious. It is important and you put energy into it. Unfortunately, I don’t have your expertise, so I’d like you to give us some details about the suffering and difficulties that Afghan women are experiencing right now. Can you tell us how your work has been affected by the suspension of government assistance?
You have an opportunity to guide us and propose actions and recommendations; I would like to hear from you on that, as well.
[English]
Ms. Faizi: As Senator McPhedran mentioned, the situation has gotten worse than the last time the Taliban were around. Women are facing restrictions on many fronts, starting with education, as mentioned. Girls are banned from going to school once they reach the age of 12. This effectively bans girls from higher education. You can’t have a gap and enter high school afterwards or anything. It’s effectively ensuring that women stay home after the age of 12. This situation can be found in no other country in the world.
The women that are currently in post-secondary education are being restricted in terms of the majors they can take. They’re being restricted from taking majors in the areas of journalism, engineering and economics. These are deemed not to be appropriate for them, or something they cannot handle.
The only options they have are essentially literature or some other option, and again, those for the few who are in post-secondary education right now.
There are barriers to health. A few were mentioned by Mr. Fischer in terms of access to health care, given their restrictions on movement for women. They’re not able to leave their home unless they have a male relative escorting them. A lot of these clinics have essentially closed down so they need to travel quite a way to get to these locations. They’re facing access to health care, which is another barrier they’re facing along with scarcity of food, clean water and hygiene products. A lot of our people are in desperate situations and are forced to sell their assets and make other desperate decisions that impact their dignity.
In terms of employment, women have been barred from working in most government institutions. In some cases, women have been told to select a male relative to come and replace them. How does that work in a society? In a place where someone has probably worked for 20 years, to just say to get them to replace someone.
In May 2022, there was an order that all female presenters and reporters on TV were to cover their faces on air. Women can no longer hold political office. Obviously, getting to work has become more difficult for those lucky to have these jobs. I’m not even talking about the security situation. There are restrictions on their freedom of movement, expression and peaceful assemble, and they’re being banned from holding protests. They’re being detained and beaten.
The situation is extremely dire, but the most dire situation right now is the humanitarian aspect. They need food, water and shelter. Once we get over and are able to have sustainability there, then I think we can move on and talk about other development opportunities that should be open to them.
Senator Miville-Dechêne: I have a question for the Red Cross and World Vision. I’m trying to understand. Right now the Canadian branches of those two charities are not on the ground at all in Afghanistan. I’m a little confused, because it seems to me the Red Cross said that there were some shipments on pause. Do you have a skeleton crew there or nobody?
I’m trying to get a sense — because, obviously, the humanitarian needs are absolutely enormous. What was your contribution before all that happened? Can you measure how important Canadian humanitarian aid is among all others? We’re not such a huge country. I’m not saying the needs are not enormous, I’m just asking, what do you think has been taken away from those women and children?
Mr. Fischer: Thank you, senator. I think most of the humanitarian organizations operate in what’s called either a federated or a partnership model. In World Vision’s case, you have World Vision Canada, World Vision United States, World Vision Germany and then, obviously, World Vision Afghanistan as the implementing partner or as the field office. The way that World Vision Afghanistan is able to operate is by pooling funds from the different, what we call, support offices. Right now, we would have funds both private and public from other countries that have been able to overcome the legal barriers in their contexts. In some contexts, really quickly. I think the U.S. was issuing what they called general licences to the humanitarian partners. That’s how our field offices are still able to operate.
For the Canadian partners, it means that we’re not able to engage — and this gets to your second question — Canadians for private fundraising. It’s kind of a hypothetical, what we would be able to raise, but I think given the extreme humanitarian situation, you’re likely to see large multi-partner appeals that go over the duration of many months that are able to raise in the millions.
On the contractual side, I have a list of things that we had to stop, so it’s hard to say how much is actually being left on the table from the Government of Canada because they have also not been able to launch an appeal with their Canadian partners that would see the infusion of additional funds. While I think it is important — I give the government credit on one thing — that they have ponied up more money, sure, but none of that money has been able to be funnelled through Canadian partners.
Ministers are correct when they say they are increasing their funds. That’s true, but it’s not going through Canadian partners. Most importantly, we’re not able to engage Canadians. We know Afghanistan is one of the very few places for which, when we launch appeals, there’s a tremendous outpouring of solidarity and compassion. Not to be able to do that as the situation increasingly deteriorates is not just frustrating, it’s heartbreaking.
Ms. Avis: If I can add to that briefly, as Martin said, Canadian organizations can’t act without fear of criminal prosecution. Everyone who is doing so has that fear.
The other thing I would add in terms of the implications, as shared by my other colleagues testifying today, is that it forced us to not be able to pay amounts owing, pay rent and help programming that is live. There are huge implications to the fact that we weren’t able to do a responsible handover or exit.
The third thing I would say is that with the way the rules work, it matters where the money begins and where it ends. We’re not able to work multilaterally. We’re not able to use our money through our federated partners. For the Canadian Red Cross, we have a 10-year partnership with the Afghan Red Crescent Society on the ground, and we’ve been unable to undertake or continue to undertake programming. Most notably for the testimony tonight, it is around providing midwives in remote and rural areas for women and children. That critical programming and Canada’s unique expertise in certain areas such as health, we are not able to provide because it’s completely halted.
Senator Miville-Dechêne: Thank you.
Senator Hartling: Thank you very much for being here and for your testimony. The more and I hear, the angrier I’m getting. I’m feeling very frustrated, as I’m sure you are. Thank you for pushing this forward and trying to make a change.
It seems like the government of Canada has totally abandoned the Afghan people, especially the women and girls, but also your humanitarian efforts. This seems so tragic and desperate. What needs to happen immediately? Can our committee do something? Who else can do something move forward? It looks like you’ve done a lot of things to try to move things forward without help. Just tell us a little more about whether we can do something. Who else can do something and make things move now? Because it needs to happen now.
The Chair: Senator Hartling, we’ve heard that the government is “seized” with this issue since last year. I shudder to think what happens when they’re not seized with an issue. What happens to that issue? Mr. Fischer?
Mr. Fischer: I hate to get into advocacy strategy in a public hearing, but many of us have been doing this for many years, and I have yet to encounter a situation where the discrepancy between the rhetoric and the reality is so stark. I have yet to encounter a situation where the willingness, certainly, of the public servants as well as ministerial staff to engage is there. They’re willing to hear solutions. We have brought forward solutions. The solution really is a political one. It’s not that the solutions are not on the table. Mr. Roach and Mr. Choudhry presented them. Ms. Avis and lawyers from our organizations have crafted proposed language for changes. Senators here have written op-eds and rang the alarm bells. Of all the tactics you could come up within an advocacy strategy, they’ve all been deployed. So the answer needs to be a political one.
An issue rarely follows ministers and the Prime Minister around the globe when they travel. Prime Minister Trudeau was asked about this on Friday in Vancouver at a press conference. I remember when Minister Joly was asked about this at a summit in Rwanda. That doesn’t happen often. It’s not that there are not enough people ringing the alarm bells. The answer is not simple, but it’s straightforward. Perhaps there needs to be political will to overcome what has been frequently been described as an overly restricted interpretation of our own laws that are having real impact on people’s lives. The most vulnerable people, women and girls, that our Feminist International Assistance Policy purports to champion.
Senator Pate: I don’t have a question, it’s more about whether there is anything further that any of you would like to add to make sure it’s put on the record. What are some of the strongest recommendations beyond some of the obvious ones we’re hearing that we could be making as a committee?
The Chair: Is that question directed at anyone or everyone?
Senator Pate: Everyone.
The Chair: Ms. Avis, would you like to start first?
Ms. Avis: Sure.
I will echo the fact that we’re looking for some sort of a positive signal that we can undertake action and that there is no fear of criminal prosecution.
In the absence of and in addition to that, we are, for Afghanistan and in other contexts, seeking clarification to the Criminal Code. One thing that could come from this year is that, hopefully, we’re never in this situation again. Therefore, we welcome any clarity to the Criminal Code.
We also recognize the fact that there’s a multi-departmental situation and that we’re talking about a really complex regime. So we are thankful for the conversations we’ve had over the last year. We remain optimistic that solutions will be implemented soon.
The Chair: Ms. Faizi, would you like to respond to that question briefly?
Ms. Faizi: Much has already been said. We hope it will not take longer for a solution to be put in place.
I once again emphasize the moral obligation here, because this is about the dignity of the people of Afghanistan; it’s the dignity of our people. The stats from last year that we were quoting to the ministers and the people we have met have increased by a staggering amount this year. It’s the second winter that our people are facing, yet here we are talking about the same situation.
The situation, as Ms. Niazi mentioned, is more dire than what we see in the media, and we’re seeing less and less of it in the media. That’s also disheartening for us.
Please don’t forget our people, at the very least the children, who are in such a dire situation. Every time we come to these meetings, it’s hard for we Afghans because of the trauma we go through just looking at these statistics and how much they change for the worse daily and monthly.
We need the government to do something soon.
The Chair: Before I go to second round, I have a comment.
As a new senator in 2011, we had the same discussion we’re having now. As Canada was getting ready to pull out of Afghanistan, I was very concerned about the rights of Afghan women, the gains they had made and what would happen to them. A decade later, we’re having the same discussion.
I have to speak of my colleagues Senators Omidvar and McPhedran who have continued to raise the issue in the Senate. We have asked the questions, and we have made statements. For me, it’s been almost a decade since anything happened in Afghanistan. As an ethnic Pashtun who is basically divided by a border — the same people — my heart bleeds for the children of Afghanistan.
Do you think the world has forgotten about Afghanistan? It’s certainly out of the headlines.
We also know that various governments have had conversations with the Taliban. As chair of the Canada-Afghanistan Parliamentary Friendship Group, we were told in June by some of the female MPs that the Taliban were coming and that they needed to help us. That was the cry that went out to all the governments, yet everybody ignored them. Everybody is staying silent now. Why? Why is there this lack of empathy for the women and children of Afghanistan? It’s a difficult question.
Ms. Faizi said that it’s bad but it’s going to get worse. We want it here on the record this lack of — I don’t know what to say — interest or movement on this file. What does it mean for women and children in Afghanistan? And I’m sorry; you just teared up talking about it, and I’m putting you in a difficult position.
But we are doing this because we want some movement. We want things to change.
Ms. Niazi: We have to remind the Government of Canada, because the Afghans are victims. They are victimized by the Taliban and also the international community, especially by our government in Canada that is depriving them of receiving aid in Afghanistan.
They have not thrown out the Taliban. It was not the choice of the people of Afghanistan to bring Taliban. There were some international agreement that the Taliban came back to power.
So why are we victimizing the poor people of Afghanistan? Forget even about the aid that we are expecting the Government of Canada on a humanitarian basis to provide to Afghanistan. The public — we have a good amount of donations from the public sitting in our organization. We are unable to deliver that aid to Afghanistan, to the people who are starving now and who are in great need.
The moment at which we are now sitting is the early morning in Afghanistan. We know at this moment that people are freezing to death. This is a humanitarian issue. The question of moral obligation came repeatedly.
Also, as a human being, we cannot see children starving because a terrorist government has been imposed upon them. It’s not the fault of the people of Afghanistan. That is very sad to be ignored.
The Chair: Thank you.
Ms. Faizi, would you like to add anything to that?
Ms. Faizi: It was beautifully put.
Every time we have to prepare for these things, we need to essentially look at what’s happening, get reports on what’s happening, see pictures of what’s happening and talk to people on the ground about what’s happening. For us as an Afghan organization, for us as Afghans, and for all Afghans in Canada and abroad, we undergo trauma every time. We talk to our families. Every time we watch television and the Afghan news, and we see what’s happening.
We keep saying it’s worse than what you see in the media, and we’re not seeing as much in the media, in any event. So we want to implore to this committee the gravity of the situation and the reason that our number one request since the beginning of the Taliban taking over Afghanistan has been humanitarian. Since August of last year, it’s been humanitarian. We continue to ask for that, and we hope this committee will help bring some urgency to this issue, as well as action and change as a result of these hearings.
The Chair: Thank you.
Mr. Fischer, my question is for you: Has the world forgotten about Afghanistan and moved on to other headlines?
Mr. Fischer: Perhaps.
The question might be reframed. I can’t speak with as great a degree of personal inflection on this as my colleagues can, but if I can get political for a second, if you rewind the clock to the fall of 2021, COVID was still there. Then winter of 2022 in Ottawa, it was a bad time for all the ministers implicated in a possible solution around the convoy and the occupation. We expressed that degree of empathy and compassion toward our colleagues. People are only people; they can only deal with so many different issues at one given time.
Then, obviously, there is Ukraine.
The challenges and the bandwidth capacities that any government has are limited. Now, we have Iran. I know there are conversations, and obviously those are political ones, about the listing and delisting of Iranian entities under the code. I would argue that’s a political distraction to a very real human tragedy that is unfolding in Afghanistan.
If anything, Senator McPhedran, I once had a conversation with you, and you said that I’m a “feminist warhorse.”
Senator McPhedran: An old feminist warhorse.
Mr. Fischer: It was an intentionally selective quote.
There are few governments in the world that walk the talk of feminist values. We were all excited in 2015 and 2016 when Minister Bibeau unveiled the Feminist International Assistance Policy, or FIAP, followed by feminist foreign policy that was still on the policy weighting, but the ideals were there.
There’s clear articulation, I think Ms. Faizi said, in the FIAP that says that reasonable, calculated risks need to be taken to pursue the objectives of the FIAP. If ever there was a time to take those risks by a government that flies around the world and says it is feminist, it’s now. To transfer the risk onto organizations that are operating in many difficult contexts just flies against the values of the FIAP and against the values that we all uphold as Canadians. I could go on and on about expressing personal and organizational frustration as an external partner who works with Afghans on the ground, that can’t even get close to expressing the personal and collective frustration that Afghan Canadians and the Afghan diaspora have around the world when they have a simple problem taking so long to find, what seems to us in the collective, advice that others have given the government to be simply overcome. I’ll stop there.
The Chair: Thank you. If you don’t implement that agenda and the laws that you have in place, then it’s just a useless piece of paper.
Senator Omidvar: I think we all hear, appreciate and understand the urgency that is in play at this point in Afghanistan. We need action today. We needed action yesterday. The situation is beyond urgent.
Let me ask all of you this question. We heard from Professors Roach and Choudhry that there are three solutions. One is for the government to interpret its own law appropriately and stop misinterpreting it. The second is to table a carve out as an exemption to the law to enable humanitarian aid organizations to function without fear of prosecution in Afghanistan; and the third is to exercise the power of non-prosecution agreements.
From your view, all of you, which solution will get us to the end goal soonest, which is to deliver aid to the people of Afghanistan, particularly the women and children?
Ms. Avis: I think that another critical point that we would need to highlight is the sanctions regime. That also has to be addressed in order for us to ensure that we remove all the barriers. We again would like to see that aligned with the UN standard.
With regard to those solutions, I think we can’t speak to the speed of the implementation. I think they all would be effective for addressing some of the barriers. Ultimately, we’re looking for a positive signal that the government wishes the Canadian aid organizations to operate in Afghanistan. That could come in the form of any of the solutions you enumerated. No matter what, we should look to amend the Criminal Code because it will guard against us being in this context in the future.
Senator Omidvar: Amend the Criminal Code?
Ms. Avis: Yes, through a humanitarian exemption.
Senator Omidvar: Carve out, yes. Thank you.
Mr. Fischer: I don’t have anything further to add. Ms. Avis is the legal counsel on this one.
Ms. Faizi: I think Adeena and I would echo what Amy mentioned. At the end of the day, the quickest solution is the one that we’re looking for, whichever way; whether it’s to request for the minister, again, to address the issues under the Criminal Code under section 83.24, to use his powers under that provision, or to essentially acknowledge that no exemption is necessary for the Criminal Code and also to address the issues that Amy mentioned about the sanctions regime. The sooner we can get something, the better. That’s what we’re looking for, the quickest solution.
Senator McPhedran: My question is going to try to link the massive humanitarian crisis inside Afghanistan with what I think is pretty clearly now a crisis for those who either have been approved to come to Canada and are still trying to. The connecting theme for me is broken promises; what that means for Canada in the international community increasingly making big promises and breaking them. As Senator Omidvar and Ataullahjan have mentioned, many of us senators work with a whole network. You know this because we work with you. We are seeing cancellations of special immigration measure approval.
If we do a gender-based analysis of what’s happening here inside the country in terms of humanitarian aid completely consistent with the Feminist International Assistance Policy promised to the world, and what we’re seeing in terms of the broken promises, including in some cases that we’re working on, of women who received approval and they have just recently, in the last few days, received a cancellation of that.
I understand; you can’t be as forceful as we are being. You have relationships you have to protect. There is a tremendous vulnerability of all of your organizations to the Government of Canada.
But in this continuum that I’m describing, inside the country, coming out of the country, and hopefully being able to come to Canada, as promised, are you seeing a disconnect here? Are you seeing, in fact, a connect where there appears to be a dual purpose to the breaking of these promises?
I’m mystified, seriously. I don’t know why this government is behaving in this way. If there is a way, without jeopardizing the relationships you have to protect that you can help us understand what is going on here?
Mr. Fischer: I appreciate the caveat, Senator McPhedran. I wish I could answer what’s going on here. But I think what I can put on the record is that there’s a political and collective moral obligation to address those promises. Canadians well remember our western allies’ history in Afghanistan. Those were commitments that were made out of that history. It’s not a place that we didn’t invest in politically or militarily with our soldiers’ lives. Out of that comes an obligation that perhaps we shouldn’t even have to articulate because there’s a humanitarian imperative.
That’s what I can articulate. Our organizations have a humanitarian imperative to act in neutral, impartial and an independent manner. We provide aid based on need, not based on political affiliation. We don’t discriminate against or favour in any of those situations. That’s all we’re asking. We’re asking for the Government of Canada to remove barriers to allow us to do our job, that perhaps there are obligations that we’re not able to meet because of barriers that are there, that collectively we’ve heard that it’s hard to understand why they continue to remain.
This is not something that we don’t bump up against time and again. But perhaps I would argue, to answer your question, is that there’s a special responsibility from the Government of Canada toward Afghanistan and toward Afghans to fix this and to allow those organizations and Canadians that look to help to do so.
Ms. Faizi: We’re all complicit in what’s going on inside Afghanistan, not just in Canada but the international community. We need to take responsibility for that. What makes it worse in Canada is that they raise the hopes of many people, of the people who received these emails or the examples that you’re giving of people who were accepted and now their applications are being rejected. It makes it even worse, because not only did you raise their hopes in thinking that they’re going to come and potentially have a better life, particularly when they’re at risk and they were identified as being at risk when they were given those approvals, to then leave them behind.
Not only are you leaving them behind, but you’re leaving them in a country where the international community has not only put sanctions, frozen its assets, it’s contributing to the entire collapse of its economy and infrastructure, no private sector, no public sector infrastructure.
On top of that, for Canada, we’re not even going to allow our Canadian aid organizations to carry on the work that they’ve been doing for the past 10, even 20 years in Afghanistan.
Ms. Niazi: If I could add to the question of migration, we have to remember that Afghans are leaving Afghanistan, going to the neighbouring countries. The persecution, torture and even being put in jail continues in the second country. They are not safe in the second country. We are also sponsoring refugees from overseas who are not even getting an interview after more than eight or nine months. These are the special, urgent Afghan cases.
There is also a direct connection between the lack of humanitarian assistance to Afghanistan, the migration of a large number of Afghans and also the crime and the insecurity in Afghanistan. Some of the Afghans, out of starvation, might join ISIS. ISIS is a big threat in Afghanistan. We are talking about the Taliban. Of course the Taliban is a big risk, but there are also other terrorist organizations acting in Afghanistan. We are closing our eyes, and we don’t look at them. Afghans are joining them because of lack of support. They say their children are starving and that they have no other option but to go to some of the terrorist organizations where they get funding and are financed by them.
With migration, I know many Afghans who were in Western countries who had good jobs, but once they felt it was secure in Afghanistan, they went back to Afghanistan. They wanted to contribute and rebuild their country. Now, even those who are very connected with the country and never wanted to leave, they are leaving. One of the things is a lack of jobs, a lack of support, and for women and others, there’s the question of security.
The Chair: Thank you. I want to thank all the witnesses for your presentations. Your help is greatly appreciated as we move forward in this study. Ms. Niazi, you raised a valid point — one that I’ve been aware of for a few months — about the resurgence of ISIS/Daesh in Afghanistan. They have also recently carried out attacks in neighbouring countries. They have been very emboldened. Let’s get on with this. What’s holding us back? All the witnesses whom we have heard from today — there’s nothing holding us back. Hopefully, something will come of this study. Maybe I’m an optimist. Thank you very much.
Honourable senators, I shall now introduce our last panel. We’ll hear from them and then turn to questions from senators. We have the pleasure to welcome to the table, from Justice Canada, Criminal Law Policy Section, Robert Brookfield, Director General and Senior General Counsel; and we have Glenn Gilmour, who is Counsel. From Global Affairs Canada, we have Nancy Segal, Acting Director, Crime and Terrorism Policy Division; and Marie-Louise Hannan, Director General, South Asia. From Public Safety Canada, we have Sébastien Aubertin-Giguère, Acting Assistant Deputy Minister.
I want to take this opportunity to welcome all of you and thank you for being here.
Sébastien Aubertin-Giguère, Acting Assistant Deputy Minister, Public Safety Canada: Good afternoon. I’m pleased to join you here on the traditional unceded territory of the Anishinaabe Algonquin. Thank you for the invitation to appear today to talk about Canadian humanitarian assistance to Afghanistan.
I’m joined today by my colleagues from Global Affairs Canada and the Department of Justice.
Let me start by saying that the Government of Canada remains deeply concerned by the critical and worsening humanitarian situation in Afghanistan. Canada is committed to the Afghan people and we will continue to do all we can to support them.
Canadian and international aid has helped a generation of Afghans advance their human rights, to participate in a more inclusive society and achieve a higher standard of living with reduced infant mortality, extended life expectancy and millions of children, especially girls, attending school. Since the Taliban forcefully took over Afghanistan, however, the world has witnessed the steady deterioration of social and economic systems in the country, leading to the current humanitarian crisis.
Under the Taliban, we have seen violence and the erosion of fundamental rights, including those of women and girls, and religious and ethnic minorities. The Taliban takeover has made it more complex for humanitarian organizations to undertake full efforts to address the humanitarian situation. Indeed, it has also made it more complex to function in Afghanistan without concerns of running afoul over the relevant terrorist financing Criminal Code provision.
Given that the Taliban is the de facto authorities and also a terrorist group under Canada’s Criminal Code, the current counterterrorism financing offence has the unintended effect of impeding legitimate humanitarian assistance in Afghanistan. So the government’s response to the June 2022 report of the special committee on Afghanistan, Honouring Canada’s Legacy in Afghanistan, recognizes the seriousness of the humanitarian crisis.
[Translation]
The report details the humanitarian situation inside Afghanistan, the efforts to bring to safety Afghan nationals who are at risk, and the impediments that are being encountered. In its response, the Government of Canada has acknowledged the challenges facing Canadian organizations and the need to provide clarity and assurances in relation to sanctions and provisions of the Canadian Criminal Code on terrorist financing.
As you know, recommendation 10 of the report calls for the Government of Canada to act immediately to develop a carve-out or exception to deliver humanitarian assistance and meet basic needs in Afghanistan, without Canadian organizations fearing prosecution. Recommendation 11 further stresses that the Government of Canada should review the anti-terrorism financing provisions and urgently take legislative steps to ensure those provisions do not unduly restrict legitimate humanitarian action.
In its response, which was presented to the House of Commons on October 6, 2022, the Government of Canada agreed to recommendations 10 and 11. It is also committed to considering measures, including legislative options, to address the need for exemptions for some Canadian organizations seeking to conduct humanitarian and other essential activities in regions controlled by a terrorist group.
Unlike Five Eyes allies and the United Nations, no exemption to the Canadian offence exists. The special committee’s report highlights this reality in recommendations 10 and 11.
[English]
In line with recommendations 10 and 11 of the report, Public Safety officials have been working closely with Global Affairs, Immigration, Refugees and Citizenship and Justice to analyze the issue and explore a range of potential solutions to help provide the Afghan people the assistance they desperately need.
In the Afghanistan context, the options for reform will balance the objectives of protecting Canada’s national security interests, the integrity of the existing terrorist offences and the international commitment to combat terrorism while also facilitating Canada’s engagement internationally, to advance peace and security and to provide various forms of international aid.
Reasonable measures must continue to be imposed on charitable and other organizations in order to minimize benefits to the Taliban or other terrorist groups operating in the region, whether directly or through the diversion of funds or other property to individuals representing these terrorist groups.
Madam Chair, in conclusion, we are exploring a balanced solution to facilitate the delivery of international assistance that Afghans desperately need. This responds to the government’s commitment to satisfy recommendations 10 and 11 in the special committee’s report while preserving the integrity of Canada’s counterterrorism financing measures. As measures are being considered by the government, officials are not at the moment to provide any update on them and the timeframe for action, but we would be happy to take your questions. Thank you.
The Chair: Thank you very much. I just want to put it on the record that Justice and Global Affairs officials had no opening remarks.
You bring up the point of the House of Commons special committee on Afghanistan. The government had said it was considering measures, including legislative options to address the need for exemptions. That is the terrorist financing option for some Canadian organizations. You can’t share with us what specific measures are under consideration?
Mr. Aubertin-Giguère: No. At this point, Public Safety is working in collaboration with other government departments to explore a series of options. That includes legislative amendments, but it’s too early to be discussing that.
The Chair: You’re still working on the measures. That committee met in June and we’re in December, so you’re still looking at those measures. Can you give us a timeline? Do you anticipate a timeline for government action?
Mr. Aubertin-Giguère: I’m not in a position to provide a timeline at this point. It’s a complex issue, and it’s important to remember that we’re dealing with serious terrorism financing provisions and that any solution needs to take into account that seriousness. I think we need to balance the humanitarian need versus the integrity of the terrorist financing provisions of the code. Work is under way but I’m not in a position to give you precise timelines.
The Chair: I think we’ve heard work is under way every time we’ve asked a question in the Senate. We’ve gotten the same response from the Government Representative. I’m sure you heard the sense of frustration that the witnesses before you had.
Senator McPhedran: Thank you to all of the officials who are here with us today. I have two questions, which hopefully we can deal with in the appointed time.
First, when did you find out that you were coming to this committee? When were you told?
Mr. Aubertin-Giguère: Last week.
Senator McPhedran: After the ministers declined to come?
Mr. Aubertin-Giguère: That’s correct.
Senator McPhedran: The reference to Five Eyes I think is helpful and of considerable interest. The balancing that you referenced between the security interests of Canada and the humanitarian promises of Canada is also very interesting.
Is Canada unique? Is there something about us that makes us unique so that four of the Five Eyes have managed to address this devastating humanitarian crisis by allowing action that Canada is refusing to allow? What makes us unique in this regard?
Mr. Aubertin-Giguère: When it comes to the Criminal Code, I will defer to my Justice colleagues.
Robert Brookfield, Director General and Senior General Counsel, Criminal Law Policy Section, Department of Justice Canada: I wouldn’t suggest we’re unique in any broader sense. But from a technical sense, the legislation at issue here was passed in 2001. It hasn’t been substantially amended since then. We do not have in our legislation the kinds of mechanisms that some witnesses referred to — the Australia and U.K. — amended their legislation. The United States has long had a system which allows directives issued with respect to sanctions and terrorist financing. Other allies, I’m not familiar with, for example, the exact details of the EU or Japan but they all have their mechanisms.
I can’t say we’re unique. But I can say that many of the countries referenced in this committee I believe have different legal mechanisms that give more flexibility for exceptions than ours does.
Senator McPhedran: Okay, so for over 20 years we’ve known that Canada has a highly restrictive legislative regime on this point and we haven’t changed anything. Were you able to hear Professor Roach and Mr. Choudhry? I’m getting nods all around. Thank you.
What’s the fastest fix here? There are different options. This doesn’t have to be either/or. What is actually feasible? One million children, minimum, are facing starvation. An estimated 6 million Afghans are on the brink of starvation right now as winter begins. What is the most effective step from an official perspective in order to fix this?
Mr. Brookfield: I can’t say what decision the government might make in balancing the legal and policy perspectives of human rights, the atrocious humanitarian situation and the legal situation.
I can say it’s been identified to change the Criminal Code. That’s in some ways analogous to what’s been described as what’s happening in the United Kingdom, in Australia, and it exists already in the United States. Some of the other options may be more challenging from some perspectives, although I appreciate the desire to have powerful advocates, such as Mr. Choudhry and Mr. Roach, speak on how things can be resolved.
I note that the Canadian government doesn’t have the authority to reinterpret legislation as it sees fit. These are Criminal Code provisions that are charged by a place of jurisdiction, decided by independent prosecutors, adjudicated by courts. For example, Mr. Roach made reference to whether the courts would strike down some of these provisions as unconstitutional. That might well be the case. There have been no cases on that. There have been no prosecutions, as far as I’m aware, under these provisions since that time.
Independent clients, or anyone, can follow the advice of Mr. Roach or Mr. Choudhry and, with their own resources, do whatever they think is appropriate. The challenge for them — as I understand it, and understandably so — is to decide what the Canadian government does in terms of balancing its legal and policy risks. Some of the options laid forward may be something that the government could consider, but others would raise some challenges.
The Chair: I just want to put on the record that the ministers were invited, Senator MacPhedran. When the ministers refused, all the ministers’ parliamentary secretaries were asked to appear, and they all said they were not available. I just want that to be a matter of record.
[Translation]
Senator Miville-Dechêne: My question is for Mr. Aubertin-Giguère.
I would like to take the question from another angle. You are concerned about the repercussions of humanitarian aid falling into the hands of an autocratic regime like the Taliban — not just autocratic, but also linked to terrorism.
Explain to us how these concerns are well founded at this stage. We just heard from World Vision Canada and the Red Cross who told us, particularly World Vision Canada, that there are very well-integrated systems in place to ensure that money that comes from donations does not fall into the hands of the Taliban.
Of course, perfection is impossible, but do you have any reason to believe that this aid is going directly to the Taliban? That’s my first question.
Mr. Aubertin-Giguère: It is recognized that the provision of humanitarian assistance could result in funds going to the Taliban, either directly or indirectly, through taxes or fees.
For large organizations, which are well organized, we need to be able to indicate that the risk may be reduced, but the fact remains that there will be a number of organizations operating on the ground. So we must have a well-structured framework to be able to manage the situation.
As part of the potential option reviews, we want to have a clear understanding of the nature of the operations. We also want to ensure that humanitarian aid deliveries are not diverted, whether knowingly or unknowingly, through intermediaries.
Senator Miville-Dechêne: Isn’t what you are saying a bit unrealistic? There is a population at the moment — winter is about to begin, it is cold — including women and children who are suffering because you cannot fully control where every penny goes in Afghanistan. So we’re better off doing nothing.
That’s the hard choice: it’s to do nothing, as there is a risk — I’m not saying it’s completely absent — but that is what’s hard to understand for human beings like you and like us.
Mr. Aubertin-Giguère: I understand your dilemma and how you present it. In this case, what is being sought is a solution that will make humanitarian operations possible while successfully protecting these organizations from potential prosecution under the Criminal Code.
So, we are looking for structured options and mechanism, not only to protect the organizations, but also to ensure the integrity of the Criminal Code’s anti-terrorism regime.
Senator Miville-Dechêne: Thank you.
[English]
Senator Omidvar: Thank you to all of you for spending your evening with us. As you can imagine, we’re slightly — what’s the word the government uses? We’re seized with this issue. The government has told us, again and again, they’re seized with this issue.
I would like to know if your ministers have directed you to give this file a priority.
Mr. Aubertin-Giguère: I can assure you that this is a priority, and we are working very hard to come up with the options.
Senator Omidvar: All your ministers have said this is a priority, and you’re working very hard to present a solution. We heard previously from Professor Roach and Mr. Choudhry. I should note that both of them are highly respected legal scholars. Both of them agreed that the legal opinion provided to you by a group of lawyers disputes the claim that I imagine Justice has made, that an amendment to the Criminal Code would be required in order to allow international aid to flow to Afghanistan without fear of prosecution.
Now, we don’t have access to your legal opinion. Neither does anyone else. What is your response to their opinion about your interpretation of the law?
Mr. Brookfield: I can respond that, as I averted to, they’re powerful advocates. They make a strong case in favour of dealing with this awful situation. There are some issues I can flag without providing legal advice about considerations that relate to their advice. One of them I tried to refer to earlier, which is Professor Roach making reference to a court finding the law unconstitutional. That may well be the case, but the federal government is not in a position to ignore the law because a court might find it unconstitutional.
There are other elements of their analysis that perhaps can be debated. We’re not in a position to and I don’t think it’s appropriate for us to be debating the legal points, but there are other elements to be flagged.
For example, part of the argument, I believe, of Mr. Choudhry relates to the Taliban as the government of Afghanistan. My colleagues at Global Affairs and the legal bureau can talk about recognition of governments, but I don’t believe there’s any controversy that a government cannot be listed or cannot be a terrorist entity within the meaning of the legislation, but entities associated with governments can and are. Hamas, Hezbollah and the Taliban are, as is the Haqqani Network, which also has a role in governing Afghanistan.
There are some interesting legal questions. I don’t think I’m at liberty to debate them, but I would say that, while they make a powerful case, I do not believe it is in controverted. I have heard from some of the witnesses that they feel there is a lack of certainty.
I understand the frustration of wanting to put it on the opinion that I understand to be provided by the federal government, but my position — I would suggest that it’s not the federal government that can solve this. As I mentioned, it’s the police, independent prosecutors and courts that, at the end of the day, decide whether cases are brought or not. It’s not in the power of the federal government to decide whether that will happen or not. That’s the law as passed by Parliament and unamended since 2001 in any substantive way.
Senator Omidvar: So at this point, the law, unamended as it is, outdated, as I hear you saying — not directly, but I infer from that — outdated as it is, would require an amendment to the Criminal Code in order to enable humanitarian aid to flow to Afghanistan. That is your position?
Mr. Brookfield: That’s certainly one clear way forward that has been identified in the report of the House of Commons. The government has accepted that as a way they will look at as a potential solution moving forward.
Senator Omidvar: Are you also looking at the other two solutions that have been tabled, including non-prosecution agreements, a carve out for humanitarian aid, as our other partners have done? Are you looking at those two options?
Mr. Brookfield: I can’t speak to what the government might be looking at. I will note the idea that the federal government would have an interpretation binding on police; prosecutors, including perhaps provincial prosecutors; and courts. It would be challenging.
There was the interpretation approach and the Attorney General approach, which is also theoretically possible. Again, in principle at least, the “Attorney General” referenced in the Criminal Code is not necessarily the federal Attorney General; it could be provincial attorneys general. That is one mechanism that could be used. The Attorney General when referenced in the Criminal Code — the Attorney General consent — is the Attorney General where the prosecution occurs.
I understand that would normally be a federal level, so normally it would be the federal Attorney General, but it isn’t necessarily them.
There are some challenges with some of the proposals they put forward, but I’m not in a position to say whether the government would explore those or other part of what they have said they will explore in terms of legislative and other measures.
Senator Omidvar: Do I have time to ask GAC a question?
The Chair: Yes.
Senator Omidvar: Charities’ law is very robust. We’ve been dealing with charities’ law, and the appropriate limitations it puts on charities in their engagement in non-charitable activities.
Do you not believe, with the constraints that charities must operate under, that it is sufficient to allow trusted partners, like World Vision, the Red Cross and the Afghan Women’s Organization, to continue their work in Afghanistan on the ground to deliver humanitarian aid?
Marie-Louise Hannan, Director General, South Asia, Global Affairs Canada: With all due respect — and I mean that sincerely to all of our trusted partners with whom we do work around the world — the regime that is governing us in this situation and that pertains to the situation in Afghanistan, which is an unprecedented situation, is this Criminal Code situation. We’re not dealing with a government but with the de facto authorities. That puts us in quite a different zone. That is why it’s not a question of trust but a question of the applicability of the relevant laws.
At the moment, there is no ability to provide exemptions under Canadian law to the provisions of the Criminal Code that apply in this unique situation, which is deeply regrettable.
Senator Omidvar: And that is why Afghanistan was taken off the list of — what is the word Mr. Fischer used — in the call for proposals in August 2021, Afghanistan was taken off the list as early as that.
Ms. Hannan: At that time, there was no way for the government to encourage organizations to submit proposals that, we would say, knowingly would expose them to the risk of contravening the Criminal Code provisions.
[Translation]
Senator Audette: Knowing that the Senate and the House of Commons can propose amendments and legislate, when all this happened, did you make those recommendations so that they could be debated in the House and amendments could be made to the bill? That’s my first question.
Mr. Brookfield: I am not in a position to give an answer regarding legal advice, as this is the privilege of the cabinet. I am sorry.
Senator Audette: I have a second question. With respect to the committee report that is before us, can you tell us what has been done so far in light of all the recommendations? Is that also a privilege?
Mr. Brookfield: As far as I know, with respect to the Criminal Code, the government has responded that it will look at possible measures, including legislation. The decision will be made by cabinet.
Senator Audette: To make the most of the few minutes we have, I understand from your presentation that we need a robust framework.
Have we started working on a robust framework as a way to support these people? I understand that, for lawyers, the law is important, but there are also people who guide the law and who need us right now. Has that work begun in order to come up with a framework that will enable us to support those people?
Mr. Brookfield: I don’t think I can speak to the political views. However, I think I can safely say that all of us and many others are seized with this issue and are working very hard on it.
Senator Audette: Thank you very much.
[English]
The Chair: Senator McPhedran, did you have a supplementary question? I have you on second round already.
Senator McPhedran: Thank you. I can pick up on it during second round.
Senator Pate: Mr. Aubertin-Giguère, how long have you been Public Safety?
Mr. Aubertin-Giguère: Six months.
Senator Pate: Has anyone else worked at Public Safety in the legal department? No? Then I’m going to put something to you and ask if you’ve had similar experiences.
When I was in civil society working more with Public Safety, there were frequent times when the minister would just decide that something needed to happen and would, sometimes without even letting officials know, announce in the media or in other ways. For instance, I remember grain farmers would get a pardon. There was a decision to just change policy around a classification system for prisoners. Those decisions would happen just like that, and then the legal department would have to figure out the rationale.
Have any of you seen these kinds of examples in your respective departments? You all seem to be rather senior in your experiences with the government.
Mr. Brookfield: Until about two and a half years ago, my experience was in trade law, trade policy and NAFTA negotiations. Those are very different contexts. I certainly saw that sort of thing often driven by external factors, such as Trump wanting to renegotiate NAFTA.
I can’t say I’ve seen that in my two and a half years or so in my present or previous role in dealing with the Criminal Code.
Senator Pate: Has anybody else seen instances of when there’s been a desire on the part of the government to do something?
Ms. Hannan: I can’t say I’ve observed or witnessed that kind of a situation in my time dealing with the Afghanistan issue, no.
Senator Pate: You’re saying “not with the Afghanistan issue,” but have you seen it in other contexts?
Ms. Hannan: I have not seen it in other contexts. For most of my career, I’ve served abroad and I haven’t been close to those sorts of decisions.
Senator Pate: Is there anybody else? Scientists being fired — all kinds of examples I can think of? No? Thank you.
The Chair: I have a question. When you are asked to appear before a Senate committee, what’s the process? Who decides who appears? Do you take experience on a certain issue into consideration? I’m just trying to understand who decides who appears before any committee.
Mr. Aubertin-Giguère: It depends who receives the invitation, and then working with —
The Chair: I’m sorry, I can’t hear you.
Mr. Aubertin-Giguère: I’m sorry.
Working with the deputy minister’s office and also with parliamentary affairs, we establish who is the most relevant interlocutor for the presentation.
The Chair: So it’s the deputy minister who makes that decision?
Mr. Aubertin-Giguère: It depends upon who is invited in the first place. It’s definitely something that is the object of discussion, probably between the deputy minister’s office and the office of the minister.
Senator Pate: I’d like your opinion. If you suddenly were told, say tomorrow or tonight, that this issue needs to be solved as soon as possible, how quickly could you move to address it?
Mr. Aubertin-Giguère: That’s a very hypothetical question. It depends upon the solution that’s being chosen. It’s almost impossible to answer that question.
Senator Manning: Thank you to our witnesses.
What do you see as the number one roadblock to addressing this serious situation, from a Canadian point of view? Is it the law as it stands today? I’m just trying to see.
It seems like we’re spinning our tires here and have been for quite some time.
I’m speaking as a Canadian. We, as a committee, are trying to find an avenue where we could recommend some type of resolution to the situation we’re dealing with. We’re looking for advice from people like yourselves to give us some guidance on where we should be leaning. Maybe you can give us some suggestions. Some say that this is a political problem. Other people say it’s a bureaucratic problem. The bottom line is, it’s a problem. Can we narrow down how to assist in addressing that? I’m hoping for someone to enlighten us.
Ms. Hannan: I hear your frustration, senator, and Madam Chair. Part of the slightly awkward situation is that we are from three different departments. We have been working closely together. For the last year, we have been mandated to look at this question and have been trying to come up with the most expedient way to address it. We’re always slightly concerned about treading on someone else’s territory.
I’m going to take a chance here and say that it seems that, after all the thought and the advice that has come forward, without addressing these blockages in the Criminal Code, there is no way for us to untie the hands that are now preventing some of this humanitarian assistance from being done. That is where a large part of the effort is being placed. It’s also why the government accepted those particular recommendations and stated so in the government response to the special committee’s report. I will ask my colleague from Justice to complement that if that is not quite right.
Mr. Brookfield: I’m in an awkward situation because the government response in the report was that they would consider measures, including legislative. The government has not committed to a legislative response.
There are other approaches. You’ve heard from some witnesses about those they put forward that are perhaps being considered. But I will risk myself a bit by saying that from a lawyer’s perspective, you look at the legislation, look at what other countries do and the legislation would certainly be one clear way forward.
Senator Manning: I thank you for that. In the report by the special committee, the government accepted the recommendations. That was the message that Canadians were told. We accept the recommendations. But you’ve been galvanized with this for about a year now.
I’ve been around government and politics now for 30 years and I realize that the wheels turn very slowly. I sometimes understand why they turn slowly. But this is a situation that has galvanized the world; a million children heading into winter, six million Afghans.
I got your answer to my previous question. How do we get this thing sped up? How do we get to where we need to in order to address this serious situation?
A country such as Canada, with the intelligence that we have right here at this table, with the intelligence we supposedly have within government, I find it hard to believe that a year plus after a special committee report that we’re still spinning our tires. I fail to understand how Canada is still not there.
I realize that some of you are in a position where you can’t express fully what’s on your minds, but we as a committee need assistance because we’re not getting it from the politicos. We need it from somebody else, regardless of who is in the chief position here. Is there anything you can offer us to address the legal side of this? Again, I guess it has to be pushed by government. It’s a frustrating exercise for us.
Ms. Hannan: I’m afraid I’m not going to be able to address that question. I wish I could, but I can’t recommend what the most expedient way is. But just for the record, I think some of the speakers today have been saying there has been no assistance.
I do want to correct the record. In 2022, Canada did provide over $143 million in humanitarian assistance to Afghanistan and neighbouring countries, a lot to Pakistan as well, where a number of Afghan refugees are currently living. Through this very challenging flood crisis that Pakistan experienced in the last several months, there were a number of allocations, and they were distributed through humanitarian organizations that are flexible enough to continue to deliver in this particular, exceptional context and can also comply with the existing constraints; those who were able to comply with our existing counterterrorism legislation.
We have been engaging those partners to ensure that some humanitarian assistance has been able to be provided. That includes the allocation of over $20 million to move wheat from Ukraine to Afghanistan through the Black Sea Grain Initiative. I just wanted to correct the record that it’s not the case —
The Chair: Thank you. I think most of us studying this file are aware of that assistance given through UN and various other agencies. Thank you. What we’re talking about is some of the charities and organizations that are on the ground, that have experience in helping the people in Afghanistan. As you heard Ms. Adeena Niazi, who runs an orphanage and who has the funds sitting in an account, she cannot help those children as a second winter approaches. There is a sense of frustration that Senator Manning expressed and I think we’re all feeling it too. Thank you for raising that.
[Translation]
Senator Miville-Dechêne: Ms. Hannan, you said that you have dealt with organizations that are able to comply with the rules of our Criminal Code or Canadian rules. Does that mean that organizations here, like World Vision, can’t follow the rules, but the ones you’ve chosen can? I’m just trying to understand if they are non-Canadian organizations.
Ms. Hannan: We don’t want to harm other Canadian organizations. However, in our experience, this is a fairly complex issue. Generally speaking, larger organizations, with facilities in Afghanistan and outside Afghanistan, can negotiate certain provisions in their contract, certain assurances, so that they don’t pay fees to the Taliban, and make other very specific operational arrangements with respect to where the funds will be used.
I am not suggesting that other organizations would not be able to negotiate such arrangements. However, to date, to find partners who were able to achieve such terms, we have worked through some major partners.
Senator Miville-Dechêne: Those partners are not Canadian.
Ms. Hannan: I have the list in front of me. There is the International Committee of the Red Cross — I think you are familiar with the organizations.
Senator Miville-Dechêne: Yes.
[English]
Ms. Hannan: There are IOM, UNHCR, UNICEF, OCHA, World Food Programme and UN Humanitarian Air Services.
Senator Miville-Dechêne: Thank you.
The Chair: Supplemental to that?
Senator Omidvar: We also heard, Ms. Hannan, from World Vision that Canadians are unable to participate in humanitarian aid through donations.
I understand that we are working through international partners, and that seems to be okay to do. I wanted your response to the limitation of working with international partners and the disadvantage that engaged Canadians are experiencing. Canadians are generous people. They want to give to humanitarian disaster that is happening in Afghanistan and they’re unable to do that. Even if they do so, the money is blocked.
Ms. Hannan: I’m familiar with the fact that Canadians are very interested in contributing to appeals that are launched under this sort of humanitarian crisis. I believe the recommendation is to work through larger international partners, and if donations can be offered is through the larger appeals launched by the UN and its agencies at the moment.
Senator Omidvar: This disenfranchises to some extent our own partners, but I’ll let that go.
The Chair: Wouldn’t the charities be losing extra money, the budgeting, the costs?
Senator Omidvar: Yes, of course.
The Chair: There would be that issue also.
Before I turn to second round, I have something that you said, Mr. Brookfield and Mr. Aubertin-Giguère, that you brought up the balance between legal and policy risks. Testimony from the previous panel indicated that the government must take necessary risks, especially considering the fact that Canada’s international assistance to Afghanistan adopts a women and girls’ rights first approach. We’re seeing that women and girls are slowly being erased from public life. If we are so worried about the women and girls — and we also hear it’s young girls, young children who are dying — isn’t the onus on us to move on this file quickly?
Mr. Aubertin-Giguère: I completely understand the imperative to move as quickly as possible on this file. I can assure you that all the officials are seized with this issue and are working hard to find options — consideration of the government.
The Chair: In all my 12-and-a-half years in the Senate, I have never heard that the government is so seized — I think this is the fourth or fifth time it’s been mentioned. Yet that’s not the sense we’re getting. That’s not the sense we got from our previous panels too. I don’t know what it means to be seized with an issue when you’re not willing to move forward with an issue. Does that mean you’re seized with that issue? I don’t know. Maybe there’s a new interpretation of the word “seized.”
Senator McPhedran: Before I begin with my questions of the officials, I want to point out to you that an engine also “ceases,” and that meaning of that word is it stops functioning.
The Chair: You found the answer, Senator McPhedran.
Senator McPhedran: Maybe there’s more than one meaning here.
We’ve heard articulate statements from most of you. We have not heard I think from two of the witnesses, quotes like “do all we can to help them,” “unintended effect of the Criminal Code,” the clarity and reassurance you offered us about the government’s agreement on recommendations 10 and 11 of the special Afghanistan parliamentary committee and the need for a “well-structured framework.” We’ve known for more than 20 years that we have a very rigid section of the Criminal Code. We’ve known since at least August 2021 that we have the world’s most massive humanitarian crisis. I want to make sure that I understand this correctly. I have two parts to my question.
The first is there’s one legal opinion — presumably from Justice, but I don’t even need you to tell me that — that all three departments are following one legal opinion. That’s what’s seizing you in the sense of an engine that’s stopped working, one legal opinion.
Mr. Brookfield: I understand that’s how some witnesses have characterized it. I would suggest that the issue is the legislation. The legislation can be interpreted in different ways. You’ve heard from some witnesses who are, frankly, at greater liberty than we are to express their articulate views as to how it should be interpreted and I tried without getting into a debate of legal advice to raise some of the considerations that may suggest that it’s perhaps not as complicated as that.
I will say, yes, maybe people do cite as one legal opinion, but I would suggest that it is the law as passed by Parliament that is the issue and not just that one person can interpret it one way and not another. I’ll get back to the point that Professor Roach made. He feels very strongly that a court would strike this down, but the federal government is not in a position to decide what the courts will do whether the subject is constitutional or not. We are creatures of the law as passed by Parliament and as brought into force by the executive.
Senator McPhedran: Thank you.
My second question and I’ll begin by asking if we could please hear from Ms. Segal as the Acting Director of Crime and Terrorism Policy Division of Global Affairs Canada and anyone else representing the other two departments. Has a Gender-Based Analysis Plus been done on this question and has a child-centred analysis been done on this question?
Nancy Segal, Acting Director, Crime and Terrorism Policy Division, Global Affairs Canada: Thank you very much for your question, senator. I can assure you that gender-based analysis is integral to all of the work and all of the options that we are considering, and that includes an intersectional approach to looking at the issue, including the effect on children, women, girls, boys, youth, men, yes.
Senator McPhedran: Thank you.
May I hear from any others, please? I’d like to hear from all three departments that are represented here today.
Mr. Aubertin-Giguère: I agree with what my colleague has said. These are observations and they have been front and centre for any of the policy options that we’ve looked at.
Mr. Brookfield: And I can confirm that the Department of Justice always applies a Gender-Based Plus Analysis to all of its work, some of which are more focused on these issues than others. Certainly in this case, that’s one of the elements that’s been front and centre.
Senator McPhedran: In terms of the degree of the analysis that’s been done, have you been advised of what’s happening on the ground in Afghanistan? Do we have any Canadian representatives from any departments in government on the ground in Afghanistan anymore? They’re completely gone from the country; am I correct in that?
Ms. Hannan: Our senior representative for Afghanistan is based in Doha, Qatar. From that location, he meets with a number of like-minded and interacts with as many people who are knowledgeable about Afghanistan as he is able and has some informal meetings to assess the positions of the Taliban insofar as it’s helpful to inform our reporting on the situation on the ground.
Senator McPhedran: Can you advise whether that individual representing Canada is applying gender-based analysis, including child-based analysis, to the reports being sent in?
Ms. Hannan: I can confirm that it is one of the most important lenses that we apply to our country program for Afghanistan, gender-based, women and girls in particular. In fact, our senior representative for Afghanistan is at the moment on the way to attend a meeting on women’s education in Afghanistan, which is a multilateral meeting taking place in Indonesia this week.
Senator McPhedran: Thank you.
Senator Omidvar: We’ve heard in the media and also heard today that diplomats have been meeting with representatives of the Taliban in Qatar.
I’m not sure that last bit is completely correct, but I heard that today. How is that not in contravention of the Criminal Code, as you have stated?
Ms. Hannan: As I said, our senior representative for Afghanistan is based in Doha, Qatar. That is why many of the meetings he is conducting are taking place in Qatar. He’s based there in a very small office and he coordinates with allies and holds a number of meetings there. He has had informal meetings with a range of stakeholders to get as much information as possible which will inform Canada’s position and our ongoing engagement to assist the people of Afghanistan. His meetings have included meeting informally with Taliban officials to share Canada’s priorities. This is not in contravention of our Criminal Code obligations. I invite my legal colleagues to speak.
The Chair: So, meetings with the Taliban after they took over? But they were conversations that were happening even before the Taliban took over. Am I correct in that?
Ms. Hannan: I don’t think I could confirm that these are continuation of conversations that took place before.
The Chair: Not continuation, but I know that the Taliban had an office in Doha and various countries were engaging with them. Was Canada engaging with them in any conversation then?
Ms. Hannan: Not that I’m aware of.
The Chair: Thank you.
Senator Omidvar: I really wanted to focus on how is it legally possible for our diplomats to meet with the Taliban, which is a terrorist-declared organization, and it’s illegal for international aid and international aid actors in Canada to provide aid to women and children? I can’t cross that bridge in my mind, so please help me.
Glenn Gilmour, Counsel, Criminal Law Policy Section, Department of Justice Canada: Perhaps I can be of some help here.
It’s not a crime to be a member of a terrorist group in Canada. The offences that are set out in the Criminal Code rely on conduct the person must engage in. Unlike some other countries, for example, such as England, where being a member of a terrorist group is a crime, we have an offence in section 83.18 of the Criminal Code that it’s a crime to directly or indirectly contribute to, or participate in, any activity of a terrorist group for the purpose of enhancing the ability of any terrorist group to commit a terrorist activity. In other words, the mere fact that you’re a member of a terrorist organization does not give rise to criminal liability. What does give rise to criminal liability are the actions in which you engage in support of the terrorist group. The terrorist group itself might engage in terrorist activity.
Senator Omidvar: I’m assuming that what you mean by that is when Canadian international aid organizations engage in Afghanistan with humanitarian impetus that is, in fact, supporting in one way or another. I’m trying to tease this apart, please.
Mr. Brookfield: Maybe I can clarify. I think what this committee has heard, and before the House as well is a concern about — one of the concerns particularly is about — humanitarian organizations operating in Afghanistan and paying taxes and other fees that benefit the Taliban. The offence is provision of financial benefit to the Taliban. You would not do that if you just meet them in a boardroom.
Senator Omidvar: I’m trying to find a way out of this. I really respect your testimony and the constraints you are under in responding to some of our questions. I do want to underline that. But I’m trying to find a way forward. Whilst Canada and you good people are trying to figure out the solution and deal with the blockage and the Criminal Code, et cetera, is there an interim measure that can be proposed that would unlock humanitarian aid without fear of prosecution? Is there an interim measure?
Mr. Brookfield: Under the constraints which we operate I can say that you have heard some proposals. I flagged some potential concerns with those. The government has said they’re looking at measures, including legislative. I appreciate I’m not being very helpful, but I don’t —
Senator Omidvar: You have thought about interim measures?
Mr. Brookfield: We have thought about many things, including interim measures.
Senator Omidvar: I’m hearing you say, yes. I’ll leave it at that.
[Translation]
Senator Audette: In a few seconds, as I understand it, Canada is able to fund humanitarian aid in various organizations that meet your criteria, such as UNICEF and the ones you listed. However, Canadian organizations cannot do that. Can we change the regulations, the statutes of our Canadian organizations, so that they resemble, temporarily, what we agree to do with the organizations you listed?
Instead of looking at the Criminal Code, could we temporarily change the general statutes and regulations of those who really want to help on the ground? I’m sure you’ve thought of that.
Ms. Hannan: There is no time to change the formal framework that all agencies must adhere to and work under.
Senator Audette: Can you suggest it?
Ms. Hannan: Provided it doesn’t violate the Criminal Code, I think Canadian organizations would also be encouraged to assess for themselves whether they would be able to work under the various constraints and conditions I’ve just described, which are quite complex.
[English]
The Chair: My question is to you, Ms. Segal. I don’t know if you heard the previous witness, Adeena Niazi, express concern because people are starving and ISIS is beginning to rear its head again in Afghanistan. That they might be able to recruit more people. When people are starving, they will turn to any means to survive. Is that a fear? Was she correct in expressing that fear? I’ve also heard of ISIS claiming responsibility for recent attacks in Pakistan, too. That’s the big fear. We thought we had seen the end of ISIS or Daesh. To all of a sudden see them become active again for me is very scary.
Ms. Segal: Thank you very much for the question. Yes, bluntly speaking, of course, feeding the underlying conditions that drive people toward violent extremism is a concern not only of Canada but all of our partners. Canada works in concert with our partners, with Five Eyes, but with others as well, The Global Coalition Against Daesh/ISIS members and things like that. So Afghanistan has been routinely added to many of our international meetings so that we can work together to find strategies to address these things. Canada is not alone. We do have constraints that maybe some others do not, but that is one of the ways we are trying to make sure that we are active in addressing these things and being part of efforts to try to constrain those sorts of conditions. It is a very complex environment, and things change extremely rapidly. So working internationally very much maximizes our ability to address the conditions but also devise some strategies along with our like-minded to try to influence the situation to the greatest extent possible.
The Chair: One way might be to let aid agencies work there so they can support the people who need help and they wouldn’t be radicalized, which wouldn’t be good for anyone.
I want to thank all of you for appearing before us. Your testimony, your answers, will help us a great deal. We really appreciate your coming at such short notice. Thank you very much.
Senators, we will suspend the meeting because we are come back in camera to discuss future business.
(The committee continued in camera.)