Bill C-41: An Act to amend the Criminal Code and to make consequential amendments to other Acts

On March 9, 2023, the Government of Canada introduced Bill C-41, An Act to amend the Criminal Code and to make consequential amendments to other Acts. This legislation would amend one of the Criminal Code’s anti-terrorist financing offences to facilitate the delivery of much-needed international assistance, immigration activities, and other assistance in geographic areas controlled by terrorist groups. The amendments would create a new authorization scheme that would allow those that provide humanitarian and other critical assistance, to apply for an authorization that would be shield them from the risk of criminal liability if the terms and conditions of the authorization are respected. As it is currently written, the Criminal Code does not include any exemptions to facilitate the delivery of these essential activities in these areas.

Currently, the Taliban, as the de facto authority in Afghanistan, is likely to receive revenue from any payments, such as taxes, import tariffs, airport and administrative fees, which may be necessary to support international assistance and conduct immigration activities.

Any Canadian or person in Canada (as defined in the Criminal Code) making or authorizing such payments would risk contravening the Criminal Code’s counter-terrorist financing provision (section 83.03(b)), given that these payments could be used by or benefit the Taliban, a listed terrorist group.

The Situation in Afghanistan

The scale of the humanitarian and economic crisis that people in Afghanistan are currently facing cannot be overstated. According to the UN, a total of 28.3 million people (two thirds of the population) need humanitarian assistance in 2023, an increase of 16 percent since 2022. Nearly 20 million people are facing acute food insecurity, and an estimated 4 million children and pregnant and lactating women in Afghanistan are at risk of acute malnutrition. Women and girls are deprived of access to education, employment, and even the most basic human rights.

Overview of Bill C-41

Under the proposed authorization regime, upon referrals by the Ministers of Foreign Affairs or Immigration, Refugees and Citizenship, the Minister of Public Safety or a delegate would have the authority to grant authorizations. The authorizations would shield applicants from criminal liability for certain activities such as the provision of international assistance or immigration activities, that would otherwise risk contravening the Criminal Code.

In deciding whether to grant an authorization, the Minister of Public Safety would consider referrals by the Ministers of Foreign Affairs and Immigration, Refugees and Citizenship, and take into account their assessment of the application and a security review by security agencies, among other factors. These factors would be set out in the Criminal Code and could apply to any eligible person or organization in Canada or Canadian organizations outside of Canada.

The proposed authorization regime would also inclue:

• requirements for a ministerial review of the regime after five years;
• a provision for information-sharing between departments and agencies for the purpose of a security review that must be conducted before an authorization can be granted;
• the possibility of a judicial review if an authorization is not granted; and
• protection from disclosure of sensitive information during a judicial revew

The proposed amendment would be applicable to any geographic area that is controlled by a terrorist group (not just to Afghanistan), and enables Canada to better respond to similar situations.

Immigration activities and supporting movement out of Afghanistan

The Government of Canada made a commitment to resettle at least 40,000 vulnerable Afghans by the end of 2023, including those who supported the Government of Canada and our allies over the past two decades, women leaders, 2SLGBTQI+ people, human rights defenders, journalists and members of religious and ethnic minorities.

The proposed authorization regime would help facilitate Canada’s ability to deliver on this commitment by reducing a key barrier to enabling safe passage for immigration clients to third countries where immigration processing may be completed and travel to Canada arranged. Subject to access and the security situation on the ground, payments for activities covered could include payments for:

• local personnel for translation services and form-filling support;
• transportation, such as fuel taxes and airport fees; and
• temporary accommodations and meals inside Afghanistan

Assessments, referrals and security review

Under this proposed authorization regime, organizations and individuals applying for an authorization would be assessed on the need for the proposed activity, the capacity of the organization to manage and report on funds and would be subject to a national security review process.

The Minister of Foreign Affairs or the Minister of Immigration, Refugees and Citizenship, or both, as the case may be, would first assess the application to determine if certain thresholds are met that fall within their areas of expertise. This includes, for example, whether the activities fall within one or more of the specific purposes for which an authorization can be made and whether the proposed activities address a real and important need in the stated area under the control of a terrorist group, and whether the applicant is capable in a transparent and accountable manner to administer funds and report on that administration. If the criteria are met, they then could refer the application to the Minister of Public Safety, who, among other things, would conduct a security review.

The security review, in addition to other factors such as the assessment made by the Minister of Foreign Affairs and/or the Minister of Immigration, Refugees and Citizenship, would be used in determining whether the benefits of permitting the activity outweigh risk of terrorist financing.

The entire process would support the Minister of Public Safety in granting authorizations to organizations and individuals who have appropriate intent and capacity to carry out much-needed humanitarian or other forms of international assistance in geographic areas controlled by terrorist groups, and where there is a possibility of financial support flowing to terrorist groups.

Applicants granted authorizations would also be subject to stipulated reporting and compliance conditions. The Minister of Public Safety would have the prerogative to amend, suspend, or revoke authorizations in accordance with the legislation. Through this reporting, the Minister of Public Safety could add conditions to the authorization as deemed necessary to minimize the risks of terrorist financing.

Impacts on financial institutions, charities and NGOs

Authorizations under this new legislation would provide legal clarity for all parties involved on which activities can legally be undertaken in areas controlled by a terrorist group. The specified purposes for which a specific activity can be carried out are listed in the proposed legislation.

Should the proposed legislation as introduced receive Royal Assent, as part of its implementation, the Government of Canada would provide guidance to potential applicants regarding the process to apply for an authorization.

The Government of Canada would process authorization applications in a reasonable timeframe to enable the timely delivery of humanitarian aid and other forms of needed assistance in geographic areas controlled by terrorist groups.