THE STANDING SENATE COMMITTEE ON HUMAN RIGHTS
EVIDENCE
OTTAWA, Monday, June 12, 2023
The Standing Senate Committee on Human Rights met with videoconference this day at 5:03 p.m. [ET] to study the subject matter of Bill C-41, An Act to amend the Criminal Code and to make consequential amendments to other Acts; and, in camera, for the consideration of a draft agenda (future business) and to examine such issues as may arise from time to time relating to human rights generally.
Senator Salma Ataullahjan (Chair) in the chair.
[English]
The Chair: I am Salma Ataullahjan, a senator from Toronto and chair of this committee. Today, we are conducting a public hearing of the Standing Senate Committee on Human Rights. I will let the members of the committee who are participating in this meeting introduce themselves, starting with the deputy chair.
Senator Bernard: Wanda Thomas Bernard, Nova Scotia.
[Translation]
Senator Dalphond: Pierre Dalphond from Quebec.
[English]
Senator Omidvar: Ratna Omidvar, Ontario.
[Translation]
Senator Gerba: Amina Gerba from Quebec.
[English]
Senator Jaffer: Mobina Jaffer from British Columbia. Welcome, minister.
Senator Arnot: David Arnot from Saskatchewan.
The Chair: Thank you, senators.
Today our committee will examine the subject matter of Bill C-41, An Act to amend the Criminal Code and to make consequential amendments to other Acts, introduced in the House of Commons on March 9, 2023, in advance of the said bill coming before the Senate.
Dear colleagues, please allow me to remind you that this bill was introduced less than a month after this committee tabled in the Senate its report on Canada’s restrictions on humanitarian aid in Afghanistan following our spot study in December 2002. The report was adopted by the Senate on February 16, 2023, along with a request for the government’s response. The response is expected to be referred to this committee on July 16, 2023. In other words, this committee recognized last year the emergency of the situation.
Let me provide some details about our meeting today. This afternoon, we shall have two panels. In each panel, we shall hear from the witnesses, and then the senators will have a question‑and-answer session.
I shall introduce our first panel. I wish to welcome you in person at the table today, Mr. Mendicino, the Minister of Public Safety. Minister Mendicino has been asked to make an opening statement of eight minutes. We shall hear from the minister, and then turn to questions from the senators.
Accompanying the minister today, I wish to welcome at the table government officials from four departments: from Public Safety Canada, Richard Bilodeau, Director General; from Justice Canada, Criminal Law Policy Section, Robert Brookfield, Director General and Senior General Counsel; and Glenn Gilmour, Counsel; from Immigration, Refugees and Citizenship Canada, Selena Beattie, Director General, Policy and Outreach Branch; and from Global Affairs Canada, Jennifer Loten, Director General, Bureau for International Crime and Terrorism.
I now invite the Honourable Marco Mendicino to make his presentation.
Hon. Marco E.L. Mendicino, P.C., M.P., Minister of Public Safety: Thank you very much, Madam Chair.
Honourable members of the committee and senators, thank you very much for the opportunity to speak with you today. I would like to begin by acknowledging that we’re on the traditional territory of the Algonquin Anishinaabe peoples.
I am here today to talk to you about Bill C-41. This legislation aims to address important aspects of the deepening crisis in Afghanistan and responds to calls from Canadian humanitarian aid agencies to be able to deliver relief to a country that is, quite honestly, on the brink.
[Translation]
Senators, I know I do not have to inform you of the challenges that Afghan citizens are facing. Your work in studying Canada’s terrorism financing laws amidst the conflict was an invaluable contribution as we contemplated the legislation brought before you.
[English]
I would like to thank each and every one of you for your tireless diligence and advocacy on an issue which we know impacts thousands and thousands of lives, if not more. I know that I’ve had the privilege of working with some of you directly when it comes to helping the people of Afghanistan and, more importantly, those who suffer from humanitarian crisis. We very much look forward to continuing to collaborate with all of you.
Madam Chair, it was said best by you when you put it this way: “The lives of millions of Afghan civilians — mostly women and children — are at risk.” You have urged the government for action. We have listened, and we are delivering.
As you all know, the Criminal Code contains strong counter-terrorism financing provisions. Specifically, it is prohibited to directly or indirectly provide or make property available knowing that it could be used by or will benefit a terrorist group. In other words, because the de facto authority in Afghanistan — the Taliban — are a terrorist group, the delivery of aid would or could inevitably benefit them through taxation and other fees, meaning that any Canadian organization, including a department of the Government of Canada, that attempts to provide aid within Afghanistan risks running afoul of the law as it stands.
Madam Chair, innocent Afghans are suffering. Their lives are at risk. We must help them.
[Translation]
It is therefore vital that Canada continue to provide international assistance and immigration services such as safe passage not just in Afghanistan, but in any geographic area that may be controlled by terrorist groups.
[English]
This bill would create an exemption for the delivery of life‑saving humanitarian assistance activities and would facilitate the delivery of certain other types of international assistance in geographic areas controlled by a terrorist group. It would also create a humanitarian assistance exemption from the terrorist financing offences in the Criminal Code for the sole purpose of arrying out humanitarian assistance activities conducted by impartial humanitarian organizations in accordance with international law, or, in other words, a humanitarian carve-out.
In addition to this exemption, Bill C-41 would allow eligible persons and organizations to be granted authorizations that would shield them from criminal liability for certain other specified development assistance activities for select purposes in a geographic area that is controlled by a terrorist group.
[Translation]
This includes the delivery of certain types of aid such as health and educational services and human rights programming, in addition to support services related to immigration, including resettlement efforts and safe passage activities.
[English]
I would note, Madam Chair, that the humanitarian assistance exemption and the authorization regime would not be restricted to Afghanistan. It would apply to any geographic area controlled by a terrorist group in order to be able to respond to similar humanitarian crises and situations. This bill is intended to address the urgency of humanitarian crises in Afghanistan and elsewhere.
If the impartial humanitarian organizations’ activities fall solely under humanitarian assistance, the carve-out would apply to them. We listened to organizations like the Aid for Afghanistan Coalition and Médecins Sans Frontières, or MSF, to strengthen this legislation. Such amendments included assisting organizations who are looking to apply for an authorization to carry out the other forms of international assistance covered in the authorizations regime.
In addition, Bill C-41 provides for the implementation of a regime that would authorize a range of other permissible activities. Those would include activities intended to support the longer-term sustainability of vulnerable populations, including the need to support women and girls and their safe and meaningful participation in society. Of course, I would hasten to add that we know in Afghanistan in particular that the Taliban are targeting women and young girls and other minorities who have become the subject of injustice, harm, torture and killing.
[Translation]
Under this authorization regime, as Minister of Public Safety, I would consider applications that have been referred by the Minister of Foreign Affairs or the Minister of Immigration, Refugees and Citizenship, who would first need to be satisfied that certain conditions were met.
[English]
Once a referral has been received, the national security community would conduct a security review to assess the impact on terrorist financing of granting the authorization. Factors to be considered include whether the applicants or those involved in implementing the proposed activities have links to terrorist groups or were investigated for having committed or charged with a terrorism offence. The authorization could be granted once the Minister of Public Safety — this office — is satisfied that there is no practical way of undertaking the proposed activity without a risk of terrorist financing and that the benefits of the proposed activity outweigh the risks of terrorist financing. The benefit/risk assessment will be determined by considering the referral received from either the Minister of Foreign Affairs or the Minister of Immigration, the security review findings, measures to mitigate risk and any other factors considered appropriate.
I’ve heard concerns regarding the discretion of the minister of the day regarding authorizations. I would like to stress from the outset, Madam Chair, that if an application is refused, those applicants, of course, would be able to seek recourse through judicial review, which performs an important oversight function. Bill C-41 was also amended to explicitly allow for an amicus curiae — in other words, a friend of the court — to participate in private proceedings and to review evidence.
Authorizations would be granted for a period of up to five years and would apply to any person or organization involved in carrying out the authorized activity. Granted or renewed authorizations may also be amended, revoked, suspended or restricted in scope if, for example, the applicant fails to comply with the authorization and its requirements or where the Minister of Public Safety is no longer satisfied that the benefit of the activity outweighs the risk.
If an application is refused, Madam Chair, those applicants would be able to reapply after 30 days. This was amended by the House to shorten the original 180-day reapplication waiting period.
Amendments to the original bill after the Justice Committee review explicitly restricted the use of applicant information for the purposes of the authorization request or its renewal or the administration and enforcement of the regime.
[Translation]
In order to ensure that the authorization regime is held accountable, as Minister of Public Safety, I would provide an annual report on the operation of the regime and conduct a comprehensive review within the first year of the bill’s coming into force.
[English]
Madam Chair, I am confident that this bill is timely, sensible and thorough. Bill C-41 is critical — indeed, it is essential — to helping those in crisis and would help to address immediately the needs of the most vulnerable in Afghanistan.
I now look forward to your questions and comments.
The Chair: Thank you, Minister Mendicino, for your presentation.
I want to acknowledge that we have been joined by Senator Kim Pate, who represents Ontario.
Before asking and answering questions, I would like to ask committee members and witnesses in the room to please, for the duration of this meeting, refrain from leaning in too close to the microphone or remove your earpiece when doing so. This will avoid any sound feedback that would negatively impact the committee staff in this room.
We will now proceed with questions from each senator. As is our previous practice, I would like to remind each senator that you have five minutes for your question, which includes the answer. We will start with the sponsor of the bill, Senator Omidvar.
Senator Omidvar: Let me start by acknowledging your leadership. This was a spot study that we engaged in. It was timely, short and to the point. It recommended a humanitarian carve-out, and congratulations, minister, for doing precisely that — although I would personally have preferred to have this bill much earlier. Still, we are hopefully going to have a good discussion today.
My question to you, minister, is simply this: What happens on the day this bill becomes law? Are the containers that are parked at the Port of Montreal able to take off immediately? Is there a regulation or guidance process that kicks in? How long will that take? The urgency is enormous. You yourself have noted that women and children are dying as we speak.
Mr. Mendicino: Thank you, senator, and through you, Madam Chair, to Senator Omidvar.
First, I would like to acknowledge as well your advocacy, Senator Omidvar. It has been a privilege to work with you in this space, in particular in Afghanistan. I know how focused you and the members of this committee and the chamber are in addressing the current legislative gap so that we can deliver humanitarian assistance to the most vulnerable in Afghanistan and, indeed, elsewhere in the world if they meet the requirements of this new legislation.
Your question is when the regime will come into effect and what happens thereafter. The bill will come into effect once Royal Assent is granted, which means, in practical terms, that it becomes the law. It will come into force.
I think the more practical part of your question is what that means on the ground. It is my commitment to you, senator, that we will work closely with my department, which is already beginning to stand up processes — including online portals — and already has well-established relationships with a number of the humanitarian aid groups that would seek to avail themselves of this new legislation so that we can get food, clothing and life‑saving aid as quickly as possible to those individuals on the ground. Of course, it is a challenging landscape. The reality is that the Taliban is a terrorist group. They continue to perpetrate injustices, harm and systematic violence upon the most vulnerable. We are going to work with the experts in the area to make sure that, as soon as this law comes into force, we can get the aid that is most needed as quickly as possible into Afghanistan.
Senator Omidvar: I hear you and I thank you very much for that answer, minister, but I also hear you saying that there will be regulations, protocols and processes. I am sure my colleagues would also like to know how long that would be, but I’ll let them ask that question.
Let me pivot a little. This bill has three different lenses on it. The first is the humanitarian lens, the second is the development lens, and the third is the security lens — all important. How does this express the balance between all of these really important national concerns?
Mr. Mendicino: Madam Chair, through you to Senator Omidvar, I think that is exactly the right question. My submission to you and your colleagues on this committee is that the government has struck the right balance between ensuring that we can get humanitarian aid quickly and efficiently into those regions where there is a crisis but without compromising our national security interests, including the obvious risk around misappropriation of Canadian funds to advance terrorist activity which could then be used to visit harm, grief and loss upon the ones that we are trying to help.
I do believe that this bill has struck that balance by, among other things, creating a carve-out for the most essential urgent need in the form of humanitarian assistance. That was work that we did within our government as well as with opposition parties in the House, the other chamber. We’ve also left in place, as you know, an authorization regime that does allow for thoughtful, rigorous screening because we want each and every penny that we contribute into the system to provide food, clothing, settlement, shelter and immigration support for those who may wish to leave Afghanistan.
I recall having worked with you and others in the most dire of times when the Taliban took over in Kabul, knowing that there were significant challenges that would remain even after the dust settled somewhat. Unfortunately, we know the situation there remains very precarious, which is why we hope to pass this bill into law as quickly as possible, and I think we’ve struck the right balance.
Senator Bernard: Thank you, minister, for being here and for your enthusiasm.
I’d like to pick up on one of the latest comments you made with regard to the screening and mitigation measures. I wonder if you can give us some examples of what types of things would be involved in the screening processes that you have in place. You feel confident that you’ve struck the right balance, so help us understand what that means and what that looks like.
Mr. Mendicino: I want to thank, Madam Chair, the senator for the question. It allows me to expand a bit on how we are striking that balance, including by putting in place security screening protocols.
First and perhaps most importantly, we will take a look at the nature of the controlling de facto government. In the case of Afghanistan, it is well known that the Taliban is a listed entity under the Criminal Code. It is a recognized terrorist entity. There is an abundance of evidence to support that fact, so understanding how, in spite of that dynamic and the reality that there are systematic crimes and violations of human rights that are being perpetrated upon vulnerable people, we can work with humanitarian aid organizations and NGOs who have dedicated expertise in this area on the ground, working in a neutral and impartial space to make sure that we can get Canadian funds delivered to those individuals in a way that is safe and secure is exactly the kind of screening that we will be performing.
We also want to make sure that the partners who will be coming to the government to avail themselves of this legislation do understand as well how the legislation will work and how it will come into practical effect. Again, on the ground, we want to make sure our partners don’t have any antecedents and are acting in a way that is impartial and without discrimination. That is an important principle that you will hear throughout our conversation today.
There are safeguards on a number of different aspects when it comes to the delivery of Canadian funds and/or humanitarian aid into the affected regions.
Senator Bernard: Thank you.
Senator Jaffer: Thank you, minister, for being here.
When you were Minister of Immigration, you met with some young Afghan girls who were studying here in high school. They’ve finished high school and their first degrees and their master’s, some going on to PhD, waiting to go home when things settle down, if ever that will happen. They wanted me to thank you for this bill because their families are at home and are suffering. I’m bringing that message because you were generous when you met with those girls. Thank you, minister.
Minister, the community has concerns. When you say “impartial,” how do you define that? That’s not the community’s experience in how the various departments define impartial. I won’t beat around the bush. We can say it with MSF or the Red Cross or any of those organizations, but what about the Afghan women? What about the Afghan diaspora community? I’m just talking about sending humanitarian aid, not for the others. Will they get more scrutiny? What do you mean by “impartial”?
Mr. Mendicino: Madam Chair, through you to Senator Jaffer, thank you very much for the gracious comments at the outset. It is those interactions and encounters with the most vulnerable, whether from Afghanistan or elsewhere, refugees, that has been personally very motivating and inspiring to me. It is certainly why I’m here today to work with all of you to get this bill hopefully across the line as quickly as possible. Thank you for sharing that reflection.
I do want to clarify what we mean when we say “impartial.” What we are talking about here is an approach that ensures that we’re delivering Canadian support through funds or humanitarian assistance that is on a needs basis only. In other words, as per customary international human rights law principles, not discriminating on the basis of race, colour, religion, faith, sex, birth, wealth or any other immutable characteristic, as you may know, that has been recognized in Canadian law, including in the Charter. That’s what we mean. We think that is an important safeguard. It’s a value that is evaluating the way in which we’re delivering funds, prioritizing humanitarian assistance on the basis of need without wanting to be at any point in time discriminatory on the basis that I’ve already mentioned.
Senator Jaffer: We’ll leave this conversation for another day, but you know that that’s subjective and that the community is nervous. I’ll move on from that.
Humanitarian aid will go on and it’s very important, but my concern is the other aid, such as education and hospitals. I understand the process either goes through Global Affairs or Immigration. I want to hear from you very quickly. How long do you think you will take in assessing that? Of course, it depends on the application, and I get that, but there are issues with some of the departments and how long things go. I will start with Immigration. How long?
Selena Beattie, Director General, Policy and Outreach Branch, Immigration, Refugees and Citizenship Canada: Thank you very much, Senator Jaffer.
It’s very difficult in a hypothetical to comment on how long something will take. Global Affairs Canada and Immigration and Refugees Canada will be responsible for providing information to our ministers and assessing a few key elements: whether the request meets the requirements, whether the area is controlled by a terrorist group, whether the proposed activity is for a purpose carried out in the legislation, whether it responds to a real and important need in a geographic area and whether the group or individuals applying are capable of administering their funds in a transparent and accountable manner. Can they actually track where their money is going? We know the stakeholders in the immigration space we expect to be applying, and we would be prepared to do that assessment quite quickly. We are getting ready and making great strides in getting ready for that now. While I can’t give you a specific estimate of time, I can tell you that many of those factors are already known to us, and we have people looking at them already in order to be ready when the bill comes into force.
Mr. Mendicino: Can I stress, though, and I think we are all united in this cause, that we recognize that where the need is urgent, and in the wake of a humanitarian crisis, we will not let red tape get in the way of getting that help to the ground as quickly as possible. That has been a key point of feedback we have received from NGOs and experts in this area, and that was exactly the evidence I gave before the House committee when I appeared there.
Senator Jaffer: Thank you very much, minister, for that intervention. I’m going to hold you to it because the community is nervous that it will disappear — I’m not going to say anything further. Thank you.
[Translation]
Senator Gerba: Minister, welcome to the committee. I’m going to follow up on Senator Jaffer’s question about impartiality, in the amendment of the House of Commons subsection 83.03(4), which says that certain impartial organizations will not be liable to prosecution.
What criteria will you use to classify organizations as impartial? What entity will handle this classification?
Mr. Mendicino: I thank you for the question and would like to assure you that the principle of impartiality is there for the sake of the program’s integrity. International human rights principles exist to protect individuals and to guide the impartiality process. Discrimination on the basis of race, religion or sexual orientation is prohibited.
So there are principles to protect the program’s integrity and maintain a highly effective process, so that assistance can be provided to those in need.
Senator Gerba: Will there be a specific entity or will Global Affairs Canada be in charge of classifying these impartial organizations?
Mr. Mendicino: In my opinion, there are two protections. First, the government and public servants are impartial. They apply policies in partnership with international organizations.
Second, there are the courts. As I mentioned, if an application is rejected, it can be subject to judicial review before a court of appeal. These are two protections that ensure that the integrity of the program is respected, including the principles that guide decisions, and this is a way to guarantee that there is no discrimination.
Senator Gerba: I’d like to come back to the exemptions you mentioned earlier. Why did you exclude education and development assistance from these exemptions?
Mr. Mendicino: The short answer is that some situations are very urgent. That’s why we amended the bill and created an exemption for crisis situations — for example, an earthquake.
There’s also another category — for example, education services, services to support immigration and resettlement processes that are more long-term. We think we’ve found a balance that enables us to prioritize and categorize really urgent situations. That’s the exemption.
In addition, if it’s not a really urgent situation, in the longer term, we can adopt an approach under the authorization regime. Again, I want to emphasize that this is a very effective process that we’re considering.
[English]
Senator Arnot: Minister, the House of Commons Standing Committee on Justice and Human Rights amended clause 1 of Bill C-41 to add new subsection 83.03(4), specifically adding in the word “sole” for sole purpose, “impartial humanitarian organizations,” and you’ve talked about that, but also “while using reasonable efforts.”
Noting that the use of “sole purpose” and “reasonable efforts” may cause some humanitarian organizations to be wary or to be concerned, Professor Kent Roach has also indicated that the Criminal Code already contains provisions that protect against prosecution for any incidental acts that contribute indirectly to terrorists for their activity. Some witnesses have come before that committee and asked that the government issue a public formal legal opinion to assuage those concerns. Are you going to be issuing such an opinion? Is that your intent, or do you feel Bill C-41 adequately clarifies in law those concerns?
Mr. Mendicino: Madam Chair, through you to the senator, I do believe the amendment does further crystallize the government’s intent here, but I would also agree with the observation from Professor Roach, to whom you referred, was right. There are certain protections known to criminal law, as well, including that one cannot be convicted without proving the requisite mens rea, the culpable intent.
To be candid, we always felt that that was a secondary protection that was there in the event there was any inadvertent overreach in the application of our anti-terrorism provisions, which, let’s be clear, are extremely important in the fight against terrorism and equally important to act as a bulwark against any potential misappropriation of Canadian funds that are there to assist the vulnerable, those who are the very purpose for this bill. We think this amendment makes sense. We think we have struck the right balance again, and as we roll this bill out, we will continue to work with parliamentarians, NGOs in this space and the affected peoples to make sure the implementation of it aligns with Parliament’s intent.
[Translation]
Senator Dalphond: Minister, thank you for being here today.
I’m very interested in judicial review. I understand that we have essentially copied the system in place for security certificates, with a few adaptations. As a result, the process could take place in the absence of the organization, but in the presence of a lawyer who represents the organization’s interests generally, without the organization being the client of the lawyer, who will be an amicus curiae. I also understand that the government would pay the cost of this amicus curiae. Is that correct?
Mr. Mendicino: That is a very important question, as this inclusion of the amicus curiae is linked to an amendment, and there is a distinction between the role of the amicus curiae and that of the lawyer who intervenes for the exclusive interest of a client. However, the idea, the purpose of the amicus curiae is to help the court because they are a neutral and impartial party who is there to inform the court that is rendering a decision on the precepts in force, the question, the issues.
In that space, particularly because this is a new bill, with a new regime, I think the role of the amicus curiae is a really constructive suggestion.
[English]
The Chair: Before I turn to second round, minister, I have a couple of questions.
I want to thank you, first of all, for your commitment to the people of Afghanistan, the women and the children. As an ethnic Pashtun — we’re divided by the border — I have heard stories, even when I was in Pakistan earlier this year speaking to refugees, about how horrible it is. I don’t think any of us have a clue how many thousands of lives are lost during the winter of Kabul. Those of us who know Kabul know that it has a brutal winter. I was a bit sad that it took this long, but I’m happy that we have still come a long way and happy to see the commitments from everyone that this bill moves forward. You know that our caucus supports this bill.
My worry at this stage, when I look at the bureaucratic process for approving an organization that applies to provide aid, is that there can be further delays. Do you have any thoughts on what the timeline would be from the initial application by the aid organization to its final approval, after everything is complete, including the security review? If you do, is it possible to share it with us? If you haven’t done so, why not?
Mr. Mendicino: Madam Chair, I cannot thank you enough for all of your work and, frankly, for bringing your lived experiences to Parliament. It is an honour to work with you. I know this is an issue that affects you very personally and profoundly.
As I’ve said earlier in my evidence today, probably the most emotional moment for me in this particular priority for the government was receiving those first families on the tarmac in the summer of 2021 at the Toronto Pearson Airport and meeting some of the youngest and most vulnerable children, recognizing that we had begun the important work of resettling up to 40,000 Afghan refugees. I know there are those who will say that’s not enough. I agree that we have to continue to do more work in this space, which is why, for everybody who remains in Afghanistan, this law will help them. It will help save lives. I wanted to begin by saying that.
The second point that I want to stress is that we have not stopped finding ways to provide humanitarian assistance despite the challenges and the gaps in the law. I will leave it to my officials to particularize exactly what those numbers are, especially those from Global Affairs Canada, IRCC and the like, but rest assured that we have been creative within the confines of the law.
The last thing I would say is that I hear you totally — and not just you, but other senators and NGOs that are very concerned that this is going to be an arduous process. I will assure you that we are going to do everything we can to come up with a process that is efficient. We think that by creating a carve-out for those situations that are truly dire and urgent, like an earthquake and other extreme catastrophic events, that will enable us to be even more accelerated in delivering aid. For those services that fall under the authorization regime, again, we’re going to do everything we can to work with the NGOs in this space to be very focused on getting decisions that are rendered so we can get the help to the region that is impacted.
The Chair: Thank you, minister.
The NDP has heavily criticized Bill C-41, stating that it was flawed from the start and that it should have been handled by Global Affairs Canada rather than Public Safety Canada. The NDP also shared last Friday that they cannot support a bill that requires a humanitarian organization to request the Canadian government’s authorization to do their work abroad. I’m glad the NDP’s amendment to create a humanitarian assistance carve-out was adopted, but do you think the original bill put too much of a burden on humanitarian aid agencies?
Mr. Mendicino: I don’t think there’s any question, Madam Chair, that there’s an enormous burden borne by NGOs in this space. The work that they do is precarious, it’s complex, and it is challenged by the harsh reality that some of the parts of the world in which we’re trying to deliver aid are controlled by terrorist groups like the Taliban. I don’t want to diminish for one moment that this is tough work for them. We’re extremely grateful for the feedback we have gotten. We think we’ve been able to strengthen this bill as a result of their input.
I also want to say with regard to our opposition colleagues that we have benefited from the input of both the NDP as well as other parties. Again, we are doing what I think Canadians expect us to do, and that is to make sure this Parliament works despite the fact it’s a minority Parliament. What we have before us is an important bill that will take us one step closer to getting the aid that is much needed into Afghanistan and other impacted regions around the world where Canadian assistance is needed.
The Chair: Minister, my final question is this: Have you considered any shortcuts that could expedite the bureaucratic process for approval? I’m thinking of aid organizations — say, a low-risk, pre-approved list. There are groups such as Canadian Red Cross or UNICEF. Is that something you have looked at or maybe will look at?
Mr. Mendicino: I thought you were going to ask if there was a faster way to pass the bill, and I was going to suggest that you see, and who knows. This is important, and your input on this is extremely important, Madam Chair.
To the premise of your question, as I said, we are very open to how it is that we can create processes that are effective, efficient and not overly bogged down by red tape. That is feedback that I know the department is sensitive to.
I’ll add just one other point, which is that some criticism has been levied by the opposition about where this program should be kept and who is the best custodian. Yes, it’s true that the Minister of Public Safety will ultimately render decisions around the authorization regimes. However, there will be a very collaborative approach with Global Affairs and IRCC. They are the referral lead ministries. Developing a community and whole‑of-government approach is the way in which we strike the balance, as I was saying earlier in my evidence to this committee.
The Chair: Thank you, minister. As you can guess, I’m in a rush. When I hear of 67 babies dying every day, it’s my people. It does, of course, affect me.
Senator Pate: Thank you to the witnesses, and my apologies for being late.
You might have provided some of this elsewhere, but at a previous hearing, I remember hearing about other countries having legislation that predated Canada’s efforts with regard to Bill C-41. I’m curious whether you looked at that legislation. I’m presuming you did. Do you have a chart or some kind of comparative analysis we could look at that would show us how this bill was informed by those examples? Can you provide that to us? How does this bill, in particular, differ from some of those other international examples?
Mr. Mendicino: Through you, Madam Chair, to Senator Pate, first, thank you. I’m obviously very keen to work with you on this legislation. Thank you, as well, for your leadership in this space.
We have done an analysis that compares the approach we are proposing in Bill C-41 relative to other jurisdictions. I believe we can provide you with that in the course of your deliberations. We’re happy to work with your office on that.
At a high level, we’ve taken an approach that is tailored to our country, based on the way that our relationships work with NGOs. We believe we have put in place the right interests and values to inform a regime, emphasizing the urgency to get funding out where there’s a catastrophic event and then looking at some other very flexible arrangements under the authorization regime so we can do the screening that is necessary but get aid out as quickly as possible, too.
Senator Pate: Fair enough. I look forward to receiving that information.
Senator Jaffer: Minister, thank you for all your answers. I just want to clarify something that I have heard from a number of people, and that is this: Will the exemption and authorization regime in this bill extend to third-party organizations, such as banks and suppliers being used for the implementation of the activities? We want to just make sure that humanitarian development organizations can actually function, because obviously they need the help of banks and suppliers. Suppliers and banks, especially, are — I am nervous. Can we get your assurance on that?
Mr. Mendicino: Through Madam Chair, thank you for the question, Senator Jaffer.
The short answer is yes, it will apply to third parties. It also allows me to come back to an important point around making sure that those with whom we partner have the appropriate financial mechanisms and controls in place to protect the integrity of the delivery of Canadian aid and assistance through the program, not to bog it down but just to be sure the help is getting to where it is intended to be delivered. So the short answer is yes.
Senator Jaffer: Minister, as you know, I was the envoy to Sudan, and even when Canada was delivering humanitarian aid, we often had to go into areas where we had to get women out because they were under protection, to get help — not necessarily get out, but to get help to them — humanitarian aid. In Afghanistan, it’s even worse. How will humanitarian aid get to them? Will protection become part of humanitarian aid, or will there have to be another exemption granted? I believe protection is part of humanitarian aid.
Mr. Mendicino: Madam Chair, again, I think it’s a very important question.
The best way I can answer is to say that we have developed a legislative framework that examines, on the basis of the urgency of the need and the event that has created it, a two-part regime so that we can act in a way that is fit for purpose and that strikes the balance between urgent delivery, timely delivery and protecting our national security interests abroad as well as the integrity of the program. Depending on what kind of need we’re talking about and on what created the reasons for the need, including the region and whether or not a terrorist group is controlling the territory in particular, those factors determine which route our partners will take.
Senator Jaffer: Maybe Global Affairs can answer this. I just want a simple answer. Do you consider protection as part of humanitarian aid? When I was the envoy, the government did, and I just want to make sure that humanitarian aid includes the protection of women and children.
Jennifer Loten, Director General, Bureau for International Crime and Terrorism, Global Affairs Canada: Thank you very much for the question, Madam Chair.
I want to say that the protection from liability under this bill is granted on the basis of activity. All activities related to the ability to deliver that are covered under the protection from liability, so yes, protection would be considered part of the delivery of humanitarian assistance.
Senator Omidvar: Minister, I would like to shift to accountability. The amended bill that has come to us requires you to table, within 90 days of the first day in January, an annual report before Parliament. Will your first report be April 1, 2024? It doesn’t say “one year after,” so I’m a little confused. When will your first annual report be tabled before Parliament?
Mr. Mendicino: I’m going to defer to my colleagues at the department because I want to make sure I get the answer as precisely right as possible. However, let me just say that by agreeing to amend it, we have shortened the time within which this office will report back on the implementation of the bill. As you know, it was longer before. We brought that period down to that first year and then every five years thereafter.
I’ll ask Mr. Bilodeau to add some precision on the timeline.
Richard Bilodeau, Director General, Public Safety Canada: Our reading of the amendment and how we drafted the bill would require the report to be tabled 90 days after, so April 1, 2024.
Senator Jaffer: Given the questions that have been asked by my colleagues about concerns about bias and discrimination in the system — and I think we all know that it exists; in fact, it’s apparently alive and healthy — will you be able to set out the number of applications for exemptions and authorization made, approved or refused and some disaggregated data on type of organization? For instance, is it a large international aid organization like the Red Cross or a local community of Afghans in Canada who are wanting to engage? I just want to be clear about the form and shape of what we’re getting.
Mr. Mendicino: Madam Chair, that’s a very fair question. Our goal here is to be as transparent as possible as quickly as possible about the implementation of this bill. Through the amendment, we have accelerated the timeline within which we can report back to Parliament and, by extension, Canadians, on how we’re doing in the early days, including things like what the deliverables are, how many applications we assessed, where the funding was delivered to and what lessons were learned, including on the impartiality of the administration of the program.
You raised one other important question around the collection of data and the use of data, including disaggregating it. Certainly, keeping statistics and keeping data will be important for a number of reasons, including to be sure there isn’t discrimination, systemic or otherwise, in the system. We also have to be sure that we are safeguarding the privacy interests of those who are implicated by the program, and that’s another area where we believe we can and will strike the right balance.
The Chair: Minister, I’m interested in the criteria and the approval process that says the minister will have to decide whether the benefits of permitting the activity outweigh the risks of terrorist financing. Can you elaborate on what that means? Is it an all-or-nothing situation, or could you determine that the benefits include saving a thousand lives now and that the risk of the Taliban siphoning off some money for themselves is worth it?
Mr. Mendicino: Madam Chair, I want to thank you for that question. I want to be up front with you that, as we debate this bill, the discretion that will be exercised by my office — this office — is something that we’re going to have to develop. What we don’t want is arbitrariness. What we don’t want is, again, unintended consequences that may lead to discriminatory results or, frankly, any kind of result that could undermine the integrity and goals of the program. Coming up with objective principles will be an urgent exercise as we implement the bill. The purpose of those principles and that policy — it could take various forms — is so that we can, again, ensure that this office is exercising the best judgment in striking that balance and arriving at that decision.
The Chair: Thank you minister.
Normally, if we have to do a pre-study or look at a bill, we take a couple of weeks. However, we’re doing this in one day because — and I think I speak on behalf of everyone — we’re so keen to expedite the process. I want to take this opportunity to thank you and the government officials for being here to help us do this work. We really appreciate the fact that you took the time to come here. Thank you so much.
I shall now introduce our second panel. The witnesses have been asked to make an opening statement of five minutes. We shall hear from the witnesses and then turn to questions from the senators.
With us in person at the table today, I wish to welcome, from the Canadian Red Cross, Dr. Erica See, Senior Legal Counsel; from World Vision Canada, Martin Fischer, Head of Policy; from Doctors Without Borders, Joseph Belliveau, Executive Director, and Dr. Jason Nickerson, Humanitarian Representative to Canada; and from the Afghan Women’s Organization Refugee and Immigrant Services, Asma Faizi, President, and Adeena Niazi, Executive Director.
I now invite Dr. See and Mr. Fischer to make their presentation, to be followed by Mr. Belliveau and Ms. Faizi.
Martin Fischer, Head of Policy, World Vision Canada: Senators, thank you for inviting us to reappear before this committee as you deliberate Bill C-41. This committee’s spot study in December 2022 was a key moment on this advocacy journey, and it’s great to see all of you again.
My name is Martin Fischer. I’m the head of policy for World Vision Canada. I’m joined today by my colleague Dr. Erica See, who is Senior Legal Counsel from the Canadian Red Cross. We’re joining you from Ottawa, which is on the unceded territory of the Algonquin Anishinaabeg people. While we would have liked to have been here sooner, we are pleased to see all of you again. Your steadfast advocacy and engagement has been a key driver of this legislation.
Our organizations are both members of the Aid for Afghanistan coalition, a diverse group of Canadian humanitarian aid, human rights and women’s rights organizations that have operated in Afghanistan for decades. Over the past months, we have closely engaged with parliamentarians in both chambers — in fact, directly with many of you around the table — and officials from many departments, and we thank you for that constructive dialogue.
Before Erica details some of the legal considerations of the bill, I think it’s important to re-emphasize and slightly update the three key messages that were presented to the House of Commons Justice and Human Rights Committee just a few weeks ago.
First, we believe that Bill C-41, in its amended form, is a step forward in a longer-term journey to ensure that Canadian humanitarian organizations can operate in a neutral, impartial and independent manner in the most difficult and exceptional circumstances. We do not see any need for further amendments at this point. Some important clarifications will need to be included within the regulatory framework which will be developed following the bill’s passage.
Second, Bill C-41 applies to a very narrow, exceptional set of contexts in which interaction with a terrorist group exercising control over territory is wholly unavoidable.
Third, while Bill C-41 is not specific to just Afghanistan, it can enable us to resume our work in that particularly challenging context. We cannot lose sight of the severity of the humanitarian crisis there and the obligations Canada and Canadians have to help.
I will now turn it over to Erica who will provide some of the legal clarifications.
Dr. Erica See, Senior Legal Counsel, Canadian Red Cross: Thank you so much for the opportunity to speak with you this evening.
I’d like to focus my remarks on why this piece of legislation, Bill C-41, is needed to give Canadian aid organizations a path forward to ensure that those who are in need of humanitarian assistance receive it, regardless of context or location.
No one wants to see a second anniversary in Afghanistan go by while Canadian aid organizations continue to wait to deploy resources, expertise and support for those who desperately need it. We believe that Bill C-41 in its amended form, is a step forward in a longer-term journey to protect the provision of neutral, impartial and independent humanitarian assistance. Once implemented, this legislative change will enable Canadian aid organizations to operate in Afghanistan and contribute Canadian expertise, funding and efforts.
It is important to keep in mind that this change to the Criminal Code is one of three legal frameworks that guide organizations like ours when we provide services in uniquely complex contexts like Afghanistan. The other two frameworks to keep in mind, which these Criminal Code revisions must align with, are sanction regulations and financial and charitable regulations.
I’d like to focus now on four aspects of Bill C-41, as amended.
First, the humanitarian exemption. As was recommended in this committee’s report, recommendation 4, the bill now includes a humanitarian exemption. The exemption allows for Canadian humanitarian organizations to undertake their work with the knowledge that Canadian law supports the international legal interpretation to provide neutral, impartial and humanitarian action does not further terrorism. It allows for much-needed assistance to get to individuals and communities that are most often impacted without requiring Canadian organizations to seek permission to undertake such work. The humanitarian exemption covers a broad range of humanitarian work permitted under international law, not only life-saving assistance. These activities are vital for improving access to health care and ensuring access to food, water and sanitation, the protection of detainees and the protection of human dignity.
Second is the government’s positive obligation to confirm whether an application is necessary at all. The amendment creating an obligation on the minister to inform an interested party if an authorization is required in a particular geographic context reflects an attempt to provide clarity to the humanitarian community on when authorization would be required. We look forward to this particular part of the process being implemented in an operationally responsive, consistent and transparent manner. It is our view that the bill and the forthcoming regulatory frameworks would reflect the now and exceptional circumstances in which interaction with a terrorist group is wholly unavoidable because the group is acting with de facto or quasi-governmental powers in an impacted geography like Afghanistan. These would be the narrow grounds to which the authorization regime might apply.
Third is the inclusion of fit-for-purpose amendments. In brief, to be successful, an authorization regime must be fit for purpose to operational realities. This requires it to be clear, consistent, practical, expedient, reasonable and well-resourced. We welcome the inclusion of the amendments to the bill that have been adopted by the House of Commons Justice Committee.
Fourth, there is the commitment to a longer-term journey to systematize the protection of humanitarian assistance. We see Bill C-41 as a step forward in the journey to systematize the provision of neutral, impartial and independent humanitarian assistance and other activities that support basic human needs. In the longer term, we wish to advocate for the movement away from reliance on approval-based regimes.
It is our hope that we will continue to collaborate with government officials and sector partners to ensure greater clarity within the regulatory framework. We also look forward to engaging with the government at the point of the one-year review to ensure that implementation is going smoothly and that the bill lives up to its principles.
In closing, the bill is not perfect, but it is what’s needed to give the humanitarian sector a path forward — a door, if you will — to provide humanitarian assistance in contexts like Afghanistan. Should the bill not pass now, we will see another anniversary in Afghanistan without greatly needed humanitarian support.
Thank you for inviting us to speak today. We look forward to your questions.
The Chair: Thank you. Mr. Belliveau, please go ahead.
Joseph Belliveau, Executive Director, Doctors Without Borders: Good evening, senators. Thanks so much for the opportunity to speak with you tonight.
For the past 52 years and now in over 70 countries, Doctors Without Borders, or Médecins Sans Frontières, MSF, has alleviated suffering by delivering impartial, neutral, independent medical humanitarian assistance in line with international humanitarian law and medical ethics.
Here in Canada, more than 180,000 Canadians support MSF based on their trust and confidence in what we do. This allowed us to send 267 Canadians and more than $84 million to our programs around the world in 2022.
Principled humanitarian assistance, as enshrined in international humanitarian law, or IHL, protects humanitarian organizations like MSF that provide essential services, impartially, with no commercial, political or other competing objective. Under IHL, humanitarian assistance cannot be considered support to any party to an armed conflict, even one deemed a terrorist. In other words, providing humanitarian assistance cannot be considered a crime.
IHL is integral to Canadian law. As party to the Geneva Conventions, Canada has an obligation to uphold IHL and must also, according to recent United Nations Security Council resolutions, ensure that domestic counter-terrorism legislation is compatible with IHL. Canada’s Supreme Court has similarly affirmed that the Criminal Code must be interpreted such that “innocent, socially useful acts” with no criminal intentions are not criminalized.
The humanitarian exemption in the amended version aligns Bill C-41 with IHL and avoids the potentially crippling authorization process that humanitarians would otherwise have been subject to. MSF supports this self-executing humanitarian exemption within Bill C-41 which recognizes that humanitarians can deliver life-saving care without seeking permission for what we are meant to do and already have the legal right to do.
MSF acknowledges that Bill C-41 had always intended to facilitate, rather than curtail, humanitarian action and now contains a specific exemption that achieves this. We support it, as we understand the exemption removes a risk of criminalizing humanitarian action that had been present in the Criminal Code via the Anti-terrorism Act since 2001.
In its first iteration prior to this exemption, Bill C-41 would have done more to hamper humanitarian action than facilitate it. The authorization regime would have placed humanitarians under unprecedented government scrutiny and control, which would have compromised our independence as well as the neutrality upon which we depend to negotiate access and gain security assurances from armed groups. An authorization mechanism would have profoundly diminished our ability to act immediately and decisively in the face of crises, and the potential for the government to deny an application would have severely undermined our humanity and impartially, the widely recognized humanitarian principles that guide our response based on people’s needs alone.
We therefore see the inclusion of a humanitarian exemption as the only way to advance Bill C-41 in a manner consistent with IHL and Canada’s commitments to humanitarian assistance. We welcome the widening of the scope of the exemption to facilitate aid delivery in places not strictly covered by IHL.
Finally, we continue to recommend that Canada ensure that any future legislation or practice related to counterterrorism specifically and unambiguously exempt humanitarian assistance.
Senators, MSF worked in Afghanistan before the Taliban takeover and we continued without interruption after, on the same basis that we work all over the world: IHL, medical ethics and the humanitarian imperative to respond to people’s basic needs. MSF’s purpose is solely humanitarian. For this, we should neither be criminalized nor subject to the burden of continually seeking authorization for doing precisely what we exist to do.
We encourage you to support the current version of Bill C-41 on the basis that it creates a permanent, self-executing humanitarian exemption to Canada’s counter-terrorism laws.
Thank you. We look forward to the opportunity to answer questions from you.
The Chair: Thank you for your presentation. Next to speak are my friends Asma Faizi and Adeena Niazi.
Adeena Niazi, Executive Director, Afghan Women’s Organization Refugee and Immigrant Services: Thank you, Madam Chair and the committee, for the opportunity for Ms. Faizi and me to appear in front of you today and for your life-saving support. My sincere thanks to our fellow advocates for their tireless efforts on Bill C-41.
For over 30 years, the Afghan Women’s Organization Refugee and Immigrant Services, which was founded and is led by refugee women, has positively impacted the lives of tens of thousands of Afghans, immigrants and refugees who have experienced war and violence. AWO has also provided life‑saving protection to over 5,000 vulnerable refugees from across the world by sponsoring them to Canada and settling them successfully.
In addition to our work in Canada, AWO has led several educational and income-generation projects for refugees inside Afghanistan and also refugee camps in Pakistan, including a home-based school for Afghan girls in Afghanistan when Taliban was in power last time. Currently, we have an all-girl’s orphanage in Afghanistan.
We cannot emphasize enough both the urgency and severity of the humanitarian situation in Afghanistan, as was discussed earlier, and also the need for Bill C-41 to be passed without further delay. Many organizations, including our own, have been waiting for almost three years for this law to pass.
AWO has a long-standing commitment and deep-rooted connection to the Afghan community, both in Canada and in Afghanistan. We have witnessed and shared the terrible suffering of the Afghan people for four decades, starting with the Soviet invasions and also with the following warlords and the corrupt governments.
The return of the Taliban has only brought more suffering, particularly for women and children. It has increased. As was said by the chair, every day, almost 32 children lose their lives. Approximately 28 million people are in urgent need of humanitarian assistance, and 2.3 million children are expected to face malnutrition by the end of this year.
Our capacity to provide relief and save lives has been hindered by Canada’s anti-terrorism laws. We have not been able to implement our programs to help alleviate the suffering of our people. Many compassionate Canadians have reached out to our organization and expressed their generosity by offering donations to be sent to Afghanistan, but we could not accept because of the constraints imposed by the laws. It is extremely difficult to witness the Afghan people being punished by these laws.
I will now turn to Ms. Faizi to talk more specifically about Bill C-41.
Asma Faizi, President, Afghan Women’s Organization Refugee and Immigrant Services: Thank you, Madam Chair and the committee.
I want to echo the urgency of the situation and our desire for Bill C-41 to be passed without further delay. While acknowledging that it’s not perfect, we are satisfied that the amendments incorporated as a result of the discussions held before the House Justice and Human Rights Committees will create avenues for humanitarian organizations to deliver the critical and desperately needed assistance highlighted by Ms. Niazi. We want to thank and commend the government for attentively considering the concerns expressed by aid organizations throughout the committee process and enhancing the original draft of the bill.
From our perspective, two key amendments stand out. First is the addition of an exemption for organizations engaged in humanitarian assistance activities. This amendment will allow organizations providing humanitarian relief the necessary flexibility they need to provide urgent aid to the suffering population in Afghanistan. Second is the inclusion of a one-year review requirement. This will allow the government to assess any potential shortcomings in the legislation and develop a plan to address them. These two amendments provide us with reassurance to support the expeditious passage of the bill without any further delay.
However, it is essential to acknowledge that further substantial work lies ahead once the legislation passes. Alongside the dire humanitarian crisis, the Taliban’s takeover of Afghanistan has resulted in the severe erosion of human rights, particularly for women and girls. The Taliban has restricted women’s movement, placed severe limitations on their access to employment, health care and higher education, and has been targeting prominent women and human rights defenders. The development activities covered under Bill C-41’s authorization regime are just as important for the well-being of Afghan women and girls.
Once Bill C-41 is passed, we hope that the government will promptly draft regulations enabling organizations to acquire the necessary authorization for delivering essential services, such as education, protection of human rights, livelihood support, immigration services and health services that fall outside of the scope of the humanitarian carve-out. It is imperative for the government to ensure adequate resources for the relevant ministries involved in the authorization application process, including developing clear instructions on how organizations can navigate the process. This will facilitate a streamlined, timely and efficient process for applicants while remaining responsive to the development needs of Afghan women and girls.
Thank you for the opportunity to speak with you. We welcome any questions.
The Chair: Thank you very much.
I want to thank all the witnesses for appearing. I also want to take this opportunity to thank you for all the work that you do throughout the world. To the Afghan Women’s Organization Refugee and Immigrant Services, I’ve been in Canada for 40 years, and I know you have consistently been doing work, especially Ms. Niazi. We have known each other for quite some time, and I have seen the work that you do.
We will turn to questions from senators, starting with Senator Omidvar, the sponsor of the bill.
Senator Omidvar: Thank you to all of our witnesses. All of us here know that the bill we’re studying today is very different from the bill that was introduced at second reading in the House. It is to all your credit that it was improved. It was long and painful, but really, I want to congratulate all of you for the excellent work that you did.
I’m going to ask you the same question that I asked the minister and try to see if I get a more precise answer from the stakeholders. It was around when aid can flow. Ms. Faizi used the word “prompt.” My experience of government and government regulations and processes is that you cannot use the word “prompt” beside them because it is almost a contradiction in terms. But the minister did promise to address red tape and not let red tape get in the way. What comfort can you give us? Are we going to see aid flowing to Afghanistan maybe as soon as September, or is even that too late? Who would like to take that question?
Mr. Belliveau: We mentioned in our address that MSF has been working throughout and has never stopped. I think that, for a number of humanitarian-oriented organizations, once this bill this is passed and put into effect, they’re going to feel confident that they’re not going to fall afoul to the criminal elements of the counter-terrorism legislation anymore and therefore feel confident to act immediately. That’s a partial answer.
Mr. Fischer: When we were here in December, we talked about risk appetite and risk calculations that every organization does. I’ll point back to that. Every organization will have to undergo a process to assess the residual risk following Royal Assent.
I take comfort in two things that Minister Mendicino said. The first was that on the immediacy of taking effect upon passing the bill, there isn’t a date further down the line as we often see with legislation. The second was his reassurance of the self-execution of the exemption, meaning that you don’t actually need to apply in any kind of way if your risk assessment leads you to the conclusion that you are protected under the exemption.
From a World Vision Canada perspective, it’s important to take into account the parameters and the restrictions that are still in place in Afghanistan for different organizations, which are given a series of decrees. It seems that every month we get a new decree trying to curtail the work of impartial independent organizations. Putting that aside, for World Vision Canada, we have started to look at what we could do, within what time frame and how quickly we can unlock things that perhaps could be sent. I know there was a referral to things being sent. It’s not everything that we do, but it is a part of what we do. I think our CO was quoted about containers of ready-to-use therapeutic food being blocked at the time when we heard about this problem. We are looking into whether those supplies are still in place and whether we can leverage other supplies that might be warehoused elsewhere that can be sent relatively quickly, taking into account what the Minister Mendicino said earlier, which was some of the clarification that we were seeking, so I appreciate that senators pushed him on that.
Ms. Faizi: If I could comment on the other aspect, there’s the humanitarian exemption, and I think the self-execution will ensure that at least the organizations that were waiting for this to come into effect will actually go forward with starting to deliver their aid once again.
I think what’s also important is on the development activities. The authorization regime and that process needs to be dealt with more promptly. What concerned me while I was listening to the minister was that he kept referring to these other activities as being longer-term activities that could wait. For Afghanistan, because it’s such an unprecedented situation, it’s not just the dire humanitarian, people are starving, although that is the prime issue at the moment and that’s why it’s very important for this legislation to pass. It’s also all the other activities that do also align very much if you’re looking at the principles of humanity, dignity and particularly women and girls in terms of education and the fact that they’re not allowed to go to work, so their livelihoods are at stake, and education programs. In Canada, many of us who have children know that during COVID we lost one or two years of our children not getting the type of education that they normally would have. You can imagine that the longer we wait, the more difficult it will be for those women and girls to be able to benefit from even the other sort of long-distance education programs that organizations like ours might want to implement. It’s very important for that aspect to also move quickly.
Ms. Niazi: I agree with what Ms. Faizi has said. I look at the humanitarian side of that. I was comfortable when he mentioned that he understands that by everyday delays, the lives are missing and people are losing their lives. It’s the lives of the people, and considering that and giving the most priority to the lives of people and to the benefit of saving lives, I hope that it is expedited and it will go soon.
The Chair: Thank you.
Senator Bernard: I’m going to ask a likely unpopular question, but I feel the need to ask it. First, let me say thank you to all of the witnesses for being here for your testimony and also for the work you do in this space. All of you have stressed the urgency of passing the bill without amendments — and we’ve also heard that the amendments that were passed in the House are all ones that you feel have strengthened the bill — but I want to ask, in an ideal world, notwithstanding the urgency of matters, and I fully appreciate that aspect, are there other amendments that you think could make this bill even stronger?
Ms. See: I’ll start and then I’ll pass it over to my fellow panellists.
I think the exemption is a step in the right direction and is significant. Ideally, if all activity had been exempted, that would have been wonderful, but bills and legislation aren’t perfect and we recognize that. There’s a balance of considerations.
We do very much look forward to prompt engagement in the regulatory process to provide the clarification that we still seek, and that is an appropriate forum for understanding, again, at a practical level, towards a clear, transparent and expedited process to get to a complex context like Afghanistan.
Mr. Belliveau: There is not really very much to add on our side. MSF’s frame of reference is international humanitarian law, spurred by medical ethics. We are quite comfortable with the language of the exemption that is currently in the amended version of Bill C-41 that very clearly covers the activities of MSF and other more strictly speaking humanitarian organizations. The comments that Erica was making around when you start to expand, what other types of aid activities may or may not be included, I think that’s really a question for how we execute, but nothing really to add to what Erica said.
Mr. Fischer: If I may, I have one small addition, and I think it was mentioned previously. There was an amendment that changed the review period. In the original version, it was five years, which arguably is too long for any piece of legislation, but given the urgency and the time sensitivity with which we’re dealing, we appreciate the Conservative amendment to bring that down to one year, with very clear parameters of what the review needs to constitute, including the option for further amendments at that time.
Given the need to strike the balance between addressing the urgency in Afghanistan, understanding the parameters of the Criminal Code that the government seems to have taken and the suggestions that we made, I think there’s a fair balance. Anything that we will learn — and we will learn during that first year’s round of applications — we’re hopeful that we can, through the regulatory process and through pushing through you, if we find things we don’t agree with, hold the government to account and improve the bill at that point.
Senator Jaffer: Thank you to all of you. It’s truly an honour to have you all here. I’ve had the honour to see your work on the ground, and I have nothing but gratitude for what you do. With MSF in Darfur, I couldn’t believe how much you were doing — as do the others — especially to protect young girls. A girl was raped and you were looking after her, and I appreciated how culturally sensitive you were. I really respect that. Adeena, it was 2001 that I sat here working with you, and you’re still at it, and I really admire your courage.
I have one question for all of you, and that is this: Were you consulted on this bill? I have many questions. Were you consulted on this bill before it was presented to Parliament?
Mr. Fischer: Thank you, senator, for the question.
I would say not sufficiently before it was tabled. Subsequently, I would say the engagement has been really constructive. Parliamentary Secretary Damoff, during her the third reading, mentioned the — the minority context is never easy, and this particular bill was not as easy as it perhaps could have been. There was a great degree of collaboration both with officials, and they have all come several times, as well as with all parties. If we look back on the process, it’s always easy to say we wish perhaps some of these things could have been addressed then, but since we raised the concerns publicly — I know there were various stages that we raised it publicly, but also privately, and there’s been a good degree of receptiveness to those.
Ms. See: I have nothing to add.
Mr. Belliveau: Thank you, Senator Jaffer, for the observations for MSF’s work. They were much appreciated.
Senator Jaffer: It comes from the heart. I’ve seen it. Darfur was the worst for me that I’ve seen, so thank you.
Mr. Belliveau: Thank you too.
I would only add to Martin’s comments that it’s probably an understatement to say we were not quite well enough consulted in the first round. I think from our experience, incredibly generally, as in something should be done for getting aid to Afghanistan, but that was about the extent of it. I very much agree with the comments that since that first version of the bill was tabled, there’s been a very open and collaborative dialogue that has led to this version.
Ms. Faizi: Thank you for your support and your work with our organization since 2001.
We were not consulted on this. Our ability to be able to talk about the issues has primarily actually come through this committee and the senators who have been working alongside us and supporting our organization for a long time. No, we were not consulted.
Senator Jaffer: I have a question for you, Mr. Belliveau. You said you have continued to work, even before this. Have you been working in another country or just continued working in Canada at Médecins Sans Frontières where your other colleagues were? Because you said you would be continuing to work in Afghanistan. I just want a clarification on that.
Mr. Belliveau: What I meant is that since the Taliban takeover in 2021, which is when this conversation shifted to another gear and a lot of humanitarian organizations had concerns as to whether they would start to fall afoul of the Criminal Code by continuing their operations in Afghanistan, we were confident that international humanitarian law would continue to protect our activities there. We’ve heard a lot in the discussion around the balance — the benefit versus the risk — and we always felt the imperative to continue in Afghanistan was so strong that we did not consider any downsizing or suspension of our programs at all. It hasn’t been easy to operate in Afghanistan, but that has been our position.
The Chair: I have a follow-up to Senator Jaffer’s question about your continuing work in Afghanistan. Do you know in which parts of Afghanistan? Are you mainly in cities, or is there work being done in rural Afghanistan also? If you don’t have that information, I’d be happy if you can provide it later.
Mr. Belliveau: We can certainly give you details later. We do operate secondary health care facilities in Helmand Province, Kandahar and Kunduz. We do some degree of rural services as well, but there I don’t have the details.
The Chair: Thank you for being there and doing the much-needed work. They definitely need all the help they can get.
[Translation]
Senator Gerba: I thank all the witnesses. I’d like to join my colleagues in congratulating you on the work you’re doing on the ground. I’ve seen it in several places: in Darfur, in Guinea, in the Democratic Republic of the Congo. The work you are doing is really significant.
My question is for Mr. Belliveau. In March, Doctors Without Borders expressed concern over the lack of reform in the current legislation. You felt that the bill in its previous form could be likely to criminalize humanitarian workers and even those who were considered impartial.
Today, I understand that you support the bill as amended, with the exemptions introduced. In your opinion, does the current version of the bill sufficiently protect humanitarian workers, or is this a source of concern that is still present, particularly for your organization, Doctors Without Borders?
[English]
Mr. Belliveau: Thank you for that question, Senator Gerba.
The first version of the bill did not have the humanitarian exemption in it. The comments we made around the idea that humanitarian aid cannot be a crime were because there was a presumption of a potential criminal activity in the authorization scheme. Putting the onus on the humanitarian to apply to be authorized to deliver humanitarian aid presumed that we might be committing a crime unless we proved otherwise. That was our position in the first instance. Now, by including the humanitarian exemption, that is flipped around, and the self-executing part of this is also critical. As Martin was describing, we assess our risk, and because of the language that is now included around the humanitarian action being exempted, we feel comfortable that the original leaning toward aid being presumed a crime is now removed, and we therefore feel comfortable with it.
[Translation]
Senator Gerba: Thank you, Mr. Belliveau.
[English]
Senator Pate: You may have heard my question to the minister earlier. I would like to know, from the perspective of your various organizations, where are some of the better protections or best protections legislatively and practically? Which countries provide the best protections, legislatively, for your work?
Dr. Jason Nickerson, Humanitarian Representative to Canada, Doctors Without Borders: Thank you for the question.
In our written submissions to both the Special Committee on Afghanistan and the Standing Committee on Justice and Human Rights, we referenced several other countries where humanitarian exemption language is contained within some similar and some slightly different parts of their Criminal Code. Humanitarian exemptions are in country legislation in Australia, the European Union, New Zealand, Switzerland, the United Kingdom and the United States of America. All of them have some variation of a humanitarian exemption. Some apply to the issue at hand, which is financing, and others address other aspects of anti-terror legislation. We would be happy to provide the committee with those examples. As I say, they’re in our previously submitted written briefs.
Ms. See: Thank you for the question, senator.
I would just add by way of context that, as you probably know, the UN Security Council has passed a standing humanitarian exemption 2664. That was with regard to assets, but that is a Security Council resolution that is being steadily adopted.
In the closing of my comments, I spoke to that long-term journey where, eventually, authorization-based regimes will not be what we’re facing because that is where most other G7 countries are trending — toward standing humanitarian exemptions.
Thank you.
Mr. Fischer: I will add one more thing. As we said in our testimony, what we’ve been advocating for and what we see Bill C-41 as placed in context of is a longer term journey for the Government of Canada. Again, I’m speaking through having absorbed legal commentary over the last little while. Other countries started that legislative process many years ago. Canada has some catching up to do, and we see Bill C-41 in its current iteration as a step on that longer-term journey. As you all know, legislative progress is incremental and sometimes painfully slow, so we really do see this as an important step on that journey. As Erica and Joseph said, there can be more and there will be more, but this is one step on that longer term journey.
Ms. Faizi: I think we agree with what has already been said. The most important thing is that we understand from the other legislation that they’re either all encompassing or a lot broader than what we have in Canada, which is very narrow in terms of the types of activities that are covered.
Senator Pate: Thank you very much.
[Translation]
Senator Dalphond: First, I’d like to congratulate you all on the remarkable work you’re doing. It’s very impressive. Second, I forgot to put the question to the Department of Justice officials. The bill, which I read carefully, contains no provision for a coming-into-force date, which seems to me to mean that the Interpretation Act applies. The Interpretation Act provides that the act will come into force on the day it receives Royal Assent.
My understanding is that, from that day on, a new crime will have replaced the old crime, and this new crime includes an exemption for humanitarian situations that do not constitute a crime. I think that humanitarian organizations will be able to start as soon as Rideau Hall has provided its consent.
Is this your understanding, as well? Have you consulted any lawyers? I should have asked the minister, who was accompanied by Department of Justice officials.
[English]
Ms. See: Thank you for the question, senator.
I was heartened to hear the clarification from the minister that, upon Royal Assent, it would be actioned. I take that to understand that the exemption, as self-executing, would also be enabled upon that moment.
As for the authorization regime, as we mentioned in our testimony, that would be dependent upon the expedient finalization of regulations.
The Chair: I just have two questions.
You heard me ask the minister about the expected timeline, and I don’t think I really got a clear answer. In a perfect scenario, what would you like that to be, once this bill passes and gets Royal Assent? I don’t know if anyone wants to tackle that. I didn’t really get an answer from the minister.
Mr. Fischer: I can try.
Reiterating what Erica said but also placing some organizational context around that, again, every organization made the decision to halt the activities based on their own individual assessments that there was a risk of running afoul with the previous version of the Criminal Code. Every organization will, or is already in the process in the case of World Vision Canada, do that and see sort of what we are comfortable with in terms of the exemption.
Based upon that assessment, where do we think we might need an authorization? That will lead us to determine what we can unlock. Are there things, such as funds and I think there were conversations around banking and financial institutions, that are covered as third parties? I think there was some assurance from the minister on that, which is an important part.
All that to say, on the authorization regime itself, from conversations we’ve had, I think there’s a political temperature that the government feels for getting this done quickly. Again, I’m not trying to be the cheerleader for the government, but there was funding allocated in Budget 2023 for the implementation of Bill C-41, recognizing that the departments are already stretched in terms of their capacity and hoping that it could be done.
On the exemption, I would hope that we can do this really quickly. “Really quickly” for different organizations means weeks or months. Many of us have been tracking this closely for a very long time and looking at when this would come into force. Some of us have been doing homework, and others have been seeing what we can put in place really quickly.
I don’t have an answer, though. I think it’s a fair follow-up. I’m trying to stitch together what we have heard from different ministers’ offices and various officials. If I could make a recommendation to all of you without being asked, continue to press them. The situation in Afghanistan, as we had heard from Asma and Adeena, is unprecedented, and it requires governments to entertain solutions and approaches that they might not undertake in normal circumstances. If ever there was a reason to expedite the bureaucracy in Ottawa, this is one of them.
Ms. Faizi: The ideal timing, at least on the authorization regime, is for us to at least have the regulations in place, have people actually apply and have the process ongoing before the one year review so that we could actually make recommendations about what might be needed for that process to ensure that it’s streamlined and efficient. A lot of the difficulties that organizations might face will come out as a result of the regulations, the application process itself and all of the issues that were brought forward, including the questions that were asked by various senators here about the process itself. So it would be ideal to have the process and the regulations in place, and the process implemented, such that there’s enough time for us to actually assess, within the one-year period, what needs to be fixed. Otherwise, we’ll have to wait for the five year review, which might not be a good thing for a lot of people.
Mr. Fischer: To follow up with one additional clarification around the timeline that is important — and this came up earlier — version two includes this positive obligation on behalf of the government to indicate to organizations whether they need to apply for a permit. That means you make an assessment of whether you’re covered under the exemption. If you feel you’re not, you go to the government and ask if you need a permit. They have a positive obligation to indicate whether you do. That could — and I stress “could” — expedite the process in those instances where you might not be sure whether you’re covered by the exemption, because they actually have to tell you, similar to experiences with sanction applications, whether there are protections and whether you do. Hopefully, there could be fewer applications submitted without actually having to have been submitted. Again, to Asma’s point, it’s a learning process. Hopefully, we all learn really quickly.
The Chair: My one suggestion to the minister — I don’t know whether it was the second or third — was to have shortcuts for certain organizations, like the Red Cross, World Vision and MSF. What do you think of looking at the possibility of having a card, similar to a Nexus card? You’re known for doing work there. It would make it easier and quicker for you to get the permission that’s needed. I’m just thinking out loud.
Mr. Fischer: I have two responses to that.
First, throughout the process, we’ve advocated for an equitable and fair approach that allows organizations of our size and experience to navigate the process just as much as it would allow a smaller organization that doesn’t have the experience. That is important to continue to stress. It cannot be a process that places unfair burdens on organizations that have difficulty navigating the bureaucracy of Ottawa.
Second — and this is not official, but we’ve been told, and it’s not an assurance that covers everything — if you are in the process of negotiating with the Government of Canada, either on a grant or a contribution agreement for Afghanistan, for example, they would be responsible for acquiring the authorization on your behalf. Again, that might expedite some of those instances, but it’s a small universe of the actual volume of applications.
It’s a great question. We’re just opening with some of the things that we’ve heard, but the proof is really in the regulations and in the process.
The Chair: Thank you.
My final question is this: Once it starts flowing, what routes are going to be used to get humanitarian aid into Afghanistan? Has anybody thought about that? Will you go through Pakistan, by air? What is the easiest way?
Dr. Nickerson: To continue to reiterate, we’ve continued to work in Afghanistan so we continue to have international staff. Our supply chains and so on are functioning. What you’re getting at is that it’s a complex and difficult task and issue. I can’t speak for other organizations, but all of us have certainly been monitoring the international landscape for the last several months and are aware of the complexities of trying to do this. From our perspective, as I say, work will continue with the ambiguity that’s been introduced — hopefully removed with the humanitarian exemption. I don’t know if either of you wants to speak to this.
Mr. Fischer: Mine is a similar point as Jason’s. For larger organizations that are made up in these partnership or federation models, such as World Vision, World Vision U.K., for example, has been able to continue to provide their support, as have other offices. That means those supply chains exist, as difficult as they are and as tenuous as they are, and they need to be renegotiated quite frequently. World Vision Canada will be able to leverage those arrangements, either with suppliers or with logistics firms to be able to do that with some expediency. I can’t — and in this context, I shouldn’t — go into details of how that works, because it is precarious.
Ms. Niazi: For the Afghan Women’s Organization, we don’t really have large programs. All our programs are funded by donations and from our own partners’ donations. What we do with transferring money to Afghanistan so far, we have used the “hawala” system. For the workers in Afghanistan, we couldn’t stop because we have the orphanage although we were not able to provide adequate support the way we have done. For example, we were not able to pay out rent money for almost a year. But we usually send it sometimes through friends who are travelling to Afghanistan or “hawala,” but that money comes from, of course, our pockets and from the pockets of our friends. That money doesn’t go to the account of our organization because, if we take it from the account of our organization, then we would be accountable to the CRA. That made it extremely difficult for us, but we still provide — also our friends from the U.S. and other countries who have been supporting us are sending money directly to Afghanistan through their own contacts. We have our staff in Afghanistan. We have the coordinator of our program in Afghanistan for the orphanage, and we also have small, home‑based projects for families. For example, they are giving them small projects. That’s also funded through that. We haven’t accepted funding from the government. It’s all donations.
Ms. See: From our perspective as the Canadian Red Cross, we are, of course, a member of the Red Cross and Red Crescent Movement, the worldwide movement, so while recognizing it is a complex operating context that’s shifting as the humanitarian needs change, I think we would continue to work collaboratively with our movement partners to deliver funds or resources or expertise as it’s needed at the moment.
The Chair: I asked that question because my hometown is Peshawar, and I would see the truck because our allies decided a long time ago to have aid flowing into Afghanistan.
We have about 10 minutes left.
Senator Jaffer: I have a very short question for you, Mr. Fischer. World Vision Canada, Red Cross and MSF are fairly large organizations. I assume that you would help the smaller organizations or you have sort of a network to help smaller organizations get through the red tape, is that correct?
Mr. Fischer: That’s a great question. As the international cooperation sector, one of the key principles that drives us really is solidarity. I think solidarity extends not just to our partners on the ground but it extends to partners in Canada. I recognize as World Vision Canada and the Red Cross, we’re the two largest organizations in the sector, and that comes with a sense of obligation and a sense of solidarity, helping those organizations that might not have the expertise or the experience or even the awareness. This has been a process. Aid for Afghanistan is a coalition of 18 organizations, small, medium and large, so there’s something in there. I think through this process, there has been a group of lawyers who have become very close and very effective at exchanging their lessons.
Finally, I know that Kate Higgins from Cooperation Canada has appeared here as well. As the umbrella organization for the sector, that is a key mandate that they take very seriously. Our door certainly has been open to anyone who has been participating or observing the legislative process to sharing those lessons.
Senator Jaffer: I have a quick question for you, Ms. Niazi. In 2001, when people you knew in Afghanistan were working in Afghanistan, Mr. Chrétien had assured you protection because we had our soldiers in Afghanistan because it was not safe. Now I see that you are talking about building schools. In my head, I can’t envision how you can do that when sending girls to school is almost impossible. I know this happens privately, but how are you planning to do that? Obviously, for that you may need permission — I’m not sure about that. But I won’t touch on that. How are you planning to do that?
Ms. Niazi: Thank you, Senator Jaffer. It’s great to hear you. Thank you for acknowledging our work and thanks for the support you have provided to us for many years.
We currently have an orphanage, and this all-girls orphanage is 24 hours, day and night. We are providing education inside that orphanage. We haven’t encountered a huge problem in driving the program so far. Because of the poverty, the Taliban won’t mind if we feed the kids. But in terms of providing education, we have been under pressure. They have come several times to our orphanage. They check the rooms, and they were asking for books to see what books are taught to them.
At the moment, our main concern is providing relief assistance to those who are starving for people who are calling us. We get non-stop calls from Afghanistan. Some ask for humanitarian assistance and, of course, for safety and immigration, which is also important to them.
Last time also, it was as scarce as it is now, providing school for kids. What we had done last time, it was home-based schools. We worked with teachers who were laid off from schools, from their work. They had their own classes at their own homes, and it went very well. When schools officially opened in Kabul, the students who went to our schools went through the tests, and they were put in higher-standard classes because they had done very well.
This is something we can leverage with the previous experience that we had, and that worked well that time. I don’t see a big problem with that, but the problem will be that it will be small. We may have 100 girls in four or five locations. Also, financing them is difficult because costs have gone much higher. Last time, we funded it all from the donations we received. But I don’t see a big problem with that at the moment. With the orphanage, it’s running okay. We don’t have a major problem in keeping it open.
The Chair: I want to take this opportunity to thank all the witnesses for appearing before us. Thank you for your commitment and for the work that you all do.
Senators, that brings us to the end of the public part of the committee hearings.
(The committee continued in camera.)