C-41: We Need to Help Vulnerable People in Afghanistan Now

On June 15, 2023, Senator Omidvar spoke to Bill C-41, An Act to amend the Criminal Code and to make consequential amendments to other Acts. Watch:

Hon. Ratna Omidvar: Honourable senators, I rise to speak to Bill C-41, An Act to amend the Criminal Code and to make consequential amendments to other Acts. Bill C-41 will create a regime to facilitate the delivery of certain types of international assistance in geographic areas controlled by terrorist groups. I will try my best to be brief but also comprehensive because, for many of you, this is the first time that you have heard about this bill.

The story of Bill C-41 begins in August 2021, with the fall of the Afghanistan regime in Kabul to the Taliban, which has had many dire consequences that have been raised in this chamber by my colleagues Senator Jaffer, Senator McPhedran and Senator Ataullahjan.

The consequences have been felt by the people of Afghanistan — the young people and, most particularly, women and girls. There has also been a humanitarian impact with infant mortality on the rise because of the lack of medication, water, food and other life-saving interventions. Millions of Afghans have suffered through drought, earthquakes and other humanitarian disasters, and, of course, due to the repression by the Taliban.

The Taliban was and is a pariah in the world. Canada listed the Taliban as a terrorist entity many years ago. Now that it is the government, Canadians are prevented by law from paying any taxes or fees to it. This has a direct impact on aid to Afghanistan because when you are delivering aid, by default you have to access services and, therefore, directly or indirectly pay fees and taxes to the government of the Taliban — which may then use it for their own terrorist purposes. By doing so, any Canadian, or Canadian organization, can be charged criminally. Canadian aid to Afghanistan through our international development agencies, including agencies like the Afghan Women’s Organization, which runs an orphanage in the Helmand region, has been blocked.

This bill is long overdue, in my view — it has been a little too long in the making. The Canadian international aid community identified this problem over a year ago, and came together in a coalition which they called the Aid for Afghanistan humanitarian coalition. There are 13 international aid agencies working together in times of disaster with a combined presence in 140 countries. They include World Vision, the Red Cross, CARE, Action Against Hunger, Canadian Foodgrains Bank, Canadian Lutheran World Relief, Doctors of the World, Humanity & Inclusion, Islamic Relief, Oxfam, Oxfam-Québec, Plan International and Save the Children.

I want to thank the Senate Human Rights Committee, chaired by Senator Ataullahjan, for its timely work on this issue. Last year, the committee produced an important report that gave voice to the concerns of the aid community, and provided many practical steps forward. Some of the central recommendations of the report have been included in Bill C-41. This is an example of a committee doing its work as it should.

As some of you may know, I have been involved with the Afghanistan issue in Canada through my work with Lifeline Afghanistan. But frankly, we need to now throw a lifeline to Afghanistan because of the context that you know, but let me describe it: Afghans have faced 40 years of conflict, and they have tried to survive this on top of staying resilient through many natural disasters, such as widespread poverty, unprecedented migration and, of course, earthquakes. If that wasn’t enough, delivering aid to Afghanistan is already complicated due to its geography.

The de facto authority in Afghanistan, whether we like it or not, is the Taliban, and the delivery of aid, as I pointed out, one way or the other, will benefit this terrorist organization by default. As a result, Canadian aid organizations, including departments of the Government of Canada, risk inadvertently breaking the law if they attempt to provide aid within Afghanistan. As a result, Afghans continue to suffer, their lives continue to be at risk and they need our help, even with the most basic elements for survival: food, shelter, protection, education and health care. We must be able to deliver it to them, and to others in this situation, without distinguishing where the lives are at risk or which jurisdiction they fall under.

That’s why the proposed amendments to the Criminal Code are critical. As the sponsor of Bill C-41, I would like to take a few moments to explain why, and delve into some detail. Currently, the Criminal Code contains very strong counterterrorism financing provisions, and that is as it should be. Specifically, under section 83.03(b), it is prohibited to directly or indirectly provide or make property available, knowing it could be used by or will benefit a terrorist group. These provisions, as I outlined, are having an extremely significant impact on Canada’s aspirations on the global stage to provide aid to people whose lives are at risk.

The bill essentially creates two paths. One is for impartial humanitarian assistance, and one is for longer-term development assistance in areas controlled by a terrorist regime.

The original bill, which had its second reading in the House a few months ago, did not include a humanitarian carve-out. After much outcry from international aid organizations and from Doctors Without Borders, amendments adopted in the other place will modify the Criminal Code to create a humanitarian assistance exemption from the terrorist financing offences in section 83.03(b) for the sole purpose of carrying out humanitarian assistance activities conducted by impartial humanitarian organizations in accordance with international law while using reasonable efforts to minimize any benefit to terrorist groups.

Let me explain to you what this means: As we heard from the Canadian Red Cross at the Standing Senate Committee on Human Rights on Monday, 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 that does not further terrorism. It allows for much-needed assistance to reach 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 approving access to health care, and ensuring access to food, water, sanitation, the protection of detainees and the protection of human dignity.

The humanitarian exemption applies once the bill receives Royal Assent. It is a self-execution form of exemption, meaning that an organization does not need to go through any application process — in any way — if the organization concludes, after its own risk assessment, that they are protected under the exemption. I’m told by the Canadian Aid for Afghanistan humanitarian coalition — made up of the Red Cross, World Vision and others — that when the bill becomes law, they are ready to go. They have been waiting and waiting to act, and this will allow them to act and support vulnerable Afghans in need without fear of criminal charges.

Second, the bill establishes, for permissible development activities, that eligible persons and organizations could be granted certain authorizations by the government that would shield them from criminal liability for their operations in a geographic area controlled by a terrorist group.

Let me go off script for a moment. The definition of persons in this context does not mean me or Senator Tony Dean. It actually means the international aid organizations who would likely work on the ground, through the action of individuals and, therefore, the individuals would need to be named in the application.

The establishment of this regime will be developed through regulations, which I am told are aggressively under discussion because the minister promised that he wants to ensure that red tape does not get in the way of essential aid.

The authorizations will also cover implementing partners or service providers involved in the delivery of such permissible activities. These will 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.

It also enables activities to support immigration processing for Afghans seeking to leave dangerous situations. Applications for authorization under this second stream would be accepted from persons in Canada, Canadians outside Canada and Canadian organizations.

Under this authorization regime, the Minister of Public Safety will consider applications that have been referred to it by the Minister of Foreign Affairs or the Minister of Immigration, Refugees and Citizenship, who would first need to be satisfied that certain conditions are met.

These conditions are as follows: One, that the proposed activities will occur in an area controlled by a terrorist group; two, that they will be carried out for one or more of the specified purposes; and, three, they will respond to a real and emergent need. Moreover, the referring minister — either the Minister of Foreign Affairs or the Minister of Immigration, Refugees and Citizenship — would also need to be satisfied that the applicant is capable of administering funds in high-risk environments and, furthermore, that they are effectively reporting on that administration.

Once a referral has been received by the Minister of Public Safety, the national security apparatus would conduct a security review to assess the impact of granting the authorization on terrorism financing.

Senators, this is an important step for security purposes. We must know whether the applicants of those involved in implementing the proposed activities have any links to terrorist groups. We must know whether they have been investigated in the past for terrorism activities. And to be absolutely clear, we must know that terrorism financing is out of the picture for all involved.

That’s exactly the bar that must be passed for the Minister of Public Safety to grant such an authorization. But there is important redress for aid organizations if they are denied for any reason. If an application is refused, the applicant can reapply in 30 days. Applicants can also seek recourse through a judicial review.

Authorizations in this — please remember, the second stream — 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 activities. Authorizations may also be subject to additional security reviews and would be eligible for renewal. Granted or renewed authorizations may also be amended, revoked, suspended or restricted in scope.

For example, if the applicant fails to comply with the authorization and its requirements, then that authorization must be reconsidered.

Colleagues, let me summarize the process for you one more time. First, with the passage of the law, humanitarian assistance activities would be exempted completely and impartial humanitarian organizations would not have to apply for an authorization. They could be ready to go.

Second, the Minister of Public Safety would provide written information as to whether an authorization for other activities is required for a region.

Third, eligible applicants interested in conducting these permissible activities would submit their complete application to the Minister of Foreign Affairs or the Minister of Immigration, Refugees and Citizenship. They would assess the application for compliance with specific purposes, need and the applicant’s capacity.

If these two ministers are satisfied that their conditions are met, they would refer the application to the Minister of Public Safety, who would initiate a security review. The Minister of Public Safety would either grant the authorization or refuse it on a risk-versus-benefit assessment. Authorization holders would be subject to reporting and compliance monitoring.

I should note that even though I have spoken a great deal about Afghanistan, the bill does not specifically mention Afghanistan. It does apply in other contexts to other regions, unfortunately, which may also fall under the control of a terrorist regime, which does not mean that the people who are suffering — whose lives are at risk — should not be able to avail themselves of international aid.

Colleagues, this bill is very different from the bill we considered at second reading. It was amended vigorously in the House of Commons Standing Committee on Justice and Human Rights with the participation of the stakeholders.

In the original bill, the onus was placed on humanitarian actors to determine themselves which geographic areas are controlled by a terrorist regime. In order to reduce the burden on humanitarian actors, the amended bill now puts the onus on the minister to do so.

The onus is also on the minister to provide written information as to whether an authorization regime for permissible activities is required. This is what the community is calling the go/no-go clause. This amendment considers the dynamic nature of terrorism and allows for the most up-to-date assessment of terrorist groups and their control of geographic areas.

Honourable senators, further amendments in the other place also increase the protections of privacy to explicitly restrict the use of applicant information for the purposes of the authorization request or its renewal. Information sharing by prescribed departments to collect and disclose information has been limited to the purposes of the administration and enforcement of the regime.

Honourable senators, in addition, the Minister of Public Safety will provide an annual report on the operation of this regime. The first annual report will be tabled on April 1, 2024, followed by an annual report every year, and then followed by a five-year parliamentary review.

The report must also include a plan and timeline to remedy any deficiencies.

As Martin Fischer from World Vision told us at committee:

Given the need to strike the balance between addressing the urgency in Afghanistan, understanding the parameters of the Criminal Code . . . I think there’s a fair balance. Anything that we will learn — and we will learn during that first year of round of applications — we’re hopeful that we can go through the regulatory process and . . . if we find things we don’t agree with, holding government to account and improving the bill at that point.

Finally, colleagues — and this is important — Bill C-41 moves us closer to regimes in other countries who are part of a global world order, and I’m talking specifying about regimes in the U.S., the U.K., Australia and the EU.

The government’s approach is tailored to Canada but also based on our work with NGOs. We heard at committee that Bill C-41 is a step towards matching what other countries do. Dr. Jason Nickerson, from Doctors Without Borders, said several other countries have humanitarian exemption language contained within similar and some slightly different parts of their Criminal Code. Humanitarian exemptions are in country legislation, as I said, in Australia, the EU, New Zealand, Switzerland, the United Kingdom and the United States of America. The NGOs also believe that this is a step in a longer journey to broader humanitarian and development reform and that the learnings here will chart the course for the future.

In conclusion, colleagues, we need to help vulnerable people now. We know how quickly situations change in a dangerous, terrorist-controlled environment, and we know that right now we need action as opposed to more deliberation.

All the witnesses at committee told us that because of the humanitarian carve-out, because of the increased privacy safeguards and because of the one-year annual review they believe that this bill is now fit for purpose and should be passed without delay. Thank you for your attention.

Hon. Marilou McPhedran: I have a question. Will Senator Omidvar take it?

Senator Omidvar: Of course.

Senator McPhedran: Thank you so much for your work on this bill.

In the event that this bill is not passed rapidly, before we rise, what will be the most obvious consequence of it not passing this chamber?

Senator Omidvar: I will state again — and thank you, Senator McPhedran, for your question — lives will be at risk. Babies will die. Women will be at risk. They will have no food, no shelter, no protection. It is a matter of lives saved today rather than not saved.

Hon. Leo Housakos: Will Senator Omidvar take a question?

Senator Omidvar: Yes.

Senator Housakos: Thank you, Senator Omidvar, for the speech. Obviously, this is a pressing bill and a pressing situation. Given the fact it got such overwhelming support in the House and was sent to committee in the House for in-depth study, why isn’t there relief to pass the bill right away? Why does it need to go to committee in this chamber and not pass quickly with leave?

Senator Omidvar: That will be the will of the chamber.