JUST Committee Meeting

     I'm calling the meeting to order.

    Welcome to meeting number 59 of the House of Commons Standing Committee on Justice and Human Rights. Pursuant to the House order of March 27, 2023, the committee is continuing its study of Bill C-41, an act to amend the Criminal Code and to make consequential amendments to other acts.

    Today's meeting is taking place in a hybrid format, pursuant to the House order of June 23, 2022. Members are attending in person in the room and remotely by using the Zoom application.

    I won't go into Zoom, because I think it's only our analysts online right now, so I think we should be—

    Oh, and we have one panellist, so I will go through the Zoom.

    Please wait until I recognize you by name before speaking. For those participating by video conference, click on the microphone icon to activate your mike, and please mute yourself when you're not speaking. With regard to interpretation for those on Zoom, you have the choice, at the bottom of your screen, of floor, English or French. Those in the room can use the earpiece and select the desired channel.

    I will remind you that all comments should be addressed through the chair. If members in the room wish to speak, please raise your hand. Members on Zoom, please use the “raise hand” function. The clerk and I will manage the speaking order as best we can, and we appreciate your patience and understanding in this regard.

    For the first hour of this meeting, we have, as individuals, Jessica Davis, president, Insight Threat Intelligence, and Dr. Leah West, assistant professor from the Norman Paterson School of International Affairs at Carleton University.

     From Doctors Without Borders, we have Joseph Belliveau, executive director, and I think we have Claude Maon via video conference.

    Welcome to you all. You will have five minutes as individuals, and the Doctors Without Borders group will have five minutes. Then we will commence questions right after that.

    I will go to Jessica Davis for five minutes.

     Thank you very much for the invitation to appear here today.

    I want to start by sharing some information on why I think these changes are important. I then have a few amendments to offer. I'll conclude with a comment about a lingering issue that these changes raise that specifically relates to our listing of terrorist entities.

    As we all know, these amendments come about because of the situation in Afghanistan, but they have much broader implications globally. I estimate that about 8% of countries worldwide have terrorist groups in them that control territory to some extent—not the full country, of course, but some element of it where aid groups might want to operate. This legislation will, of course, enable activities by Canadian organizations in these regions, which in turn can help increase stability and provide alternatives to engagement in violence for the people in those countries.

    It's important here that this amendment be calibrated to the current threat of terrorist financing. My research shows that 42% of terrorist groups around the world use taxation activities, including taxation of aid organizations and humanitarian activities, to finance themselves. This is not a rare activity.

    This is part of the reason that a broad humanitarian carve-out, as some have proposed, is much too broad, in my view. It would create many opportunities for terrorist groups to exploit Canadian organizations and profit from their aid activity.

    The current amendments allow Canada to calibrate its aid and foreign policy to take into consideration the types of terrorist groups operating in particular regions, the activities that they're undertaking and their international security threats. This essentially will allow Canada to calibrate and turn up and down the dial on international aid according to the security situation, and calibrate our foreign policy.

    While I do offer broad support for this amendment, there are a few areas that I think need further attention.

    First, I think it would be very beneficial for Global Affairs Canada to create a list of countries and geographic areas where terrorist groups control territory, and provide it publicly. This would allow aid organizations to immediately be able to determine if their activities fall under the scope of this legislation and require an exemption.

    I don't think that this is more work, because Global Affairs is likely going to have to do this kind of work anyway to effectively evaluate the applications that come through. They'll have to have a list already of where terrorist groups are controlling territory. Of course, there are political sensitivities around this, but I'm confident that Global Affairs can word this in a way that minimizes some of those issues.

    My second issue relates to the security review, specifically proposed paragraph 83.032(10)(a), where the language is around “links to a terrorist group”. This wording is far too vague. “Links” is a term that's neither defined in law nor a good analytic term. If the drafters of the language have something specific in mind, they should include that here; otherwise, the line should be struck because it's not clear if “links” means something as vague as someone having known a convicted terrorist on one or two or occasions or if it's a much broader association. Specificity is going to be really key here.

    The third issue I see is that FINTRAC, our financial intelligence unit, isn't in the list of entities that may provide assistance to the Minister of Public Safety. This is quite a curious omission, given FINTRAC's role in countering terrorist financing. I suggest that they be included, either in the legislation itself or at least in the regulations.

    Further, it would be prudent to specify that FINTRAC's assistance relates specifically to its strategic analysis capabilities. This is part of section 58 of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, which specifically allows FINTRAC to provide information on the nature and extent of terrorist financing activities inside and outside of Canada. It differentiates it from its more technical disclosures in section 55.

    Finally, I want to address one last thing. The amendments as proposed talk about terrorist “groups”, not listed terrorist “entities”. This language has not been lost on members of this committee. This language is a necessary inclusion because there are many terrorist groups operating around the world that are not listed entities in Canada, but I think it's important to be clear here. This language about “groups” is partly necessary because our process for listing terrorist entities is broken. It's not transparent. There is no identified methodology that Public Safety Canada uses to nominate groups to that list, and the public information provided to support those listings is the weakest among all the Five Eyes.

    Canada should reform the listing process with an eye to making it more robust—robust enough to support these amendments to the Criminal Code and not necessitate the inclusion of the word “groups”. Instead, we could use the word “entities”. The word “groups” is far too broad to be useful. We should be able to rely on our list of terrorist entities, but we can't right now because it's not inclusive or responsive enough to geopolitical realities.

     Thank you again for the opportunity to be here today. I look forward to taking any questions you have.

    Thank you, Ms. Davis.

    Now we'll go to Dr. West for five minutes.

     Thank you for having me.

    I'd like to begin by saying that I am strongly in favour of amendments to the Criminal Code to facilitate the funding and delivery of humanitarian aid and development assistance in areas that may be controlled by entities listed by the international community or the Canadian government as terrorists. The listing of terrorist entities by both the UN and in Canada is a political process. That process should not condemn those who live under these regimes to suffer from starvation or lack of medical care and education.

    I believe that Bill C-41 is an honest attempt to strike a balance between the need to ensure terrorist organizations do not benefit from the funds brought into these areas of control by NGOs and government agencies and the need for NGOs and agencies to provide humanitarian and development assistance. However, I think a few amendments are required to better strike that balance.

    First, I believe the bill should include a humanitarian exception to the current subsection 83.03(b) of the Criminal Code, as recommended by the Standing Senate Committee on Human Rights. Specifically, this exemption could mirror the language already in the definition of “terrorist activity” in section 83.01 of the Criminal Code by stipulating that subsection 83.03(2) does not apply to the provision of humanitarian assistance during an armed conflict and that at the time and the place of its provision is in accordance with customary international law or conventional international law applicable to the conflict.

    For those activities that do not fall within this exception—for example, education and other development-type aids that do not meet the definition of “humanitarian assistance” under international humanitarian law—organizations could apply for an authorization as set out in the draft bill. This amendment would ensure that the direst needs of populations subject to an armed conflict could receive the most critical aid from humanitarian organizations without the added burden of those organizations seeking an authorization from the Government of Canada.

    Second, under the authorization regime, the factors that the ministers of public safety may consider in their security reviews are vague and raise concerns under section 2 of the charter, namely subsection 2(d), which protects freedom of association.

    Specifically, as Ms. Davis mentioned, proposed paragraph 83.032(10)(a) currently states the factor the minister may consider is “whether the applicant or any person who is to be involved in carrying out the activity proposed in the application has any links to a terrorist group”. It is notable that the term “links” is not used elsewhere in Canadian law to capture personal relationships, but rather it is used to describe a physical connection or to describe a means of communication, such as a video link.

    This novel use of this vague term in this context poses a number of concerns. First, conceivably, the term “links” captures any form of personal connection, however remote, between anyone within the organization and those who may assist the organization in providing aid. I have met with ISIS members in detention and worked with their families to advocate their release. Am I linked to ISIS?

    Humanitarian organizations often need to have relationships with all parties to a conflict to do their jobs. It is literally part of the mandate of the International Red Cross and Red Crescent.

    I also served in Afghanistan, and I know that for a time, almost everyone in Afghanistan had some sort of link to someone in al Qaeda or Taliban to some extent. We're talking about places like Somalia, Yemen, Afghanistan, and potentially Syria and Nigeria. This is not a bill designed for authorizing activities in environments like the one here in Canada, where connections to members who may be affiliated with terrorist organizations are a rarity.

    Lastly, the charter protects freedom of association. It is for this reason that we do not criminalize mere membership in a terrorist organization in Canada. Denying an authorization on the basis of mere association with a terrorist group means criminalizing the work of humanitarian organizations in places like Afghanistan, where their work is most desperately needed.

    For this reason, I believe that this paragraph should be struck from the legislation.

    These two amendments would ensure a more equitable balance between security and the humanitarian needs of affected populations. Ultimately, however, the success of this authorization regime will be entirely dependent on the transparency of the process and ensuring that there are sufficient resources to process applications quickly and fairly.

    Thank you for your time. I look forward to your questions.

     Thank you, Professor West.

    I didn't outline earlier that I usually give a 30-second cue card, but you guys have been four seconds under every time. Thank you. Then, for those who don't know, I have an out-of-time card just to wrap things up in time.

    Next we'll go to Doctors Without Borders, and I'll let you figure out which of you will speak. I'm sure you have it allotted.

    The floor is yours.

    Thank you, Mr. Chair.

    For the past 52 years, and today in over 70 countries, Doctors Without Borders or Médecins Sans Frontières, MSF, has alleviated suffering through medical care consistent with the fundamental principles of humanitarian aid: humanity, impartiality, neutrality and independence, and in line with medical ethics. MSF has no other purpose than fulfilling this social function.

    Here in Canada, more than 180,000 Canadians support MSF, based on their trust and confidence in what we do. This has allowed us to send 267 Canadians and more than $84 million to our programs around the world in 2022.

    Principled humanitarian work is recognized and protected by international humanitarian law, or IHL. Humanitarian organizations, such as MSF, providing essential services impartially with no commercial, political or other objective must be afforded the protection of IHL. Under IHL, humanitarian assistance cannot be considered support for any party to a conflict, even one deemed “terrorist”. In other words, providing humanitarian aid 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, according to recent United Nations Security Council resolutions, ensure that domestic counterterror legislation is compatible with IHL.

    Canada's Supreme Court has similarly affirmed that the Criminal Code must be interpreted such that “innocent, socially useful or casual acts” with no criminal intent are not criminalized.

    MSF acknowledges that Bill C-41 aims to facilitate rather than curtail humanitarian action. Unfortunately, Bill C-41 and the counterterror parts of the Criminal Code it relates to are, in their current formulation, inconsistent with IHL and Canadian law and will undermine Canadian humanitarianism.

    Bill C-41 would require humanitarians to seek case-by-case permission for what they already have the legal right to do under IHL, but this is not simply duplication: The process itself in which authorization would be required from at least two ministries and up to nine governmental agencies would severely erode the practical agility, as well as the principles enshrined in IHL, that enable effective humanitarian aid delivery. Bill C-41's potentially onerous authorization process would divert humanitarian resources and delay our responsiveness in emergencies like the recent Syria-Turkey earthquake, where lives hang in the balance and every hour counts.

    The process would also create an intelligence windfall for Canadian security agencies, including access to employee personal data that these agencies would otherwise not have reason to collect, data that could be used for purposes beyond the scope of Bill C-41. This would deter Canadians from working for humanitarian organizations.

    Further, by placing humanitarians under unprecedented government scrutiny and control, Bill C-41 would compromise our independence as well as the neutrality upon which we depend to negotiate access and gain security assurances from armed groups. Moreover, denying authorization or directing where and what activities are permitted would profoundly undermine the fundamental principles of humanity and impartiality that guide our response on human needs alone.

    Bill C-41 in its current form would embed a presumption of criminality in the Criminal Code, including for humanitarian action, by shifting the burden of proof of non-criminality onto the humanitarian actor. MSF believes this must and can be changed through a standing humanitarian exemption, clarified through relatively straightforward amendments to Bill C-41 that would effectively remove humanitarian action from the scope of criminality within the Criminal Code. A standing exemption would be consistent with IHL, UN Security Council resolutions, other states' counterterror laws, Canadian common law and Canada's reputation for humanitarianism.

    Members of the committee, MSF worked in Afghanistan before the Taliban takeover, and continued after the takeover, on the same basis on which we work all over the world in places where state and non-state armed groups operate—the basis of international humanitarian law. 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.

    Thank you.

     Thank you.

    We will now go to our first round of questions. I'm going to condense them from six minutes to five minutes for the first round and to four minutes for the second round in light of the pending votes.

    We will begin with Mr. Genuis for five minutes.

    Thank you, Chair.

    Thank you to the witnesses.

    I'm really interested in trying to understand this, but I have yet to hear a substantive argument against just a clear, simple humanitarian exemption. The most I have heard is people saying that the government wasn't going to do that.

    Ms. Davis, I think on the panel you expressed the view that exemption would not be a good idea. Could you give us your thoughts specifically on why?

    What my research shows and what I have done in practice demonstrate that terrorist groups around the world raise money from a variety of different activities, but one of the ways they do it is by taxing aid organizations that operate in their area. That could look like acquiring resources from them. It could look like taking a certain percentage of the money that comes into the country.

    Part of my concern with not having a broad humanitarian exemption here is a complete inability to calibrate that. We don't have the ability to help aid organizations, for instance, prevent that from happening. We don't have a way to understand how much money or how many resources are going to terrorist organizations when they operate—

    I will just jump in because of time, and I'm interested in hearing more from you on this.

    Could we not prescribe certain kinds of calibration as part of that exemption, saying that under these specified circumstances, you can go ahead, and that if you're being charged an effective tax rate over such-and-such, you can't? Whatever the rules should be, could we not establish those rules in law, rather than basing them on a potentially shifting and inconsistent authorization regime?

    You could technically do that, but the problem with terrorist organizations is that they change those rules quite often. It's really difficult to know when it is going to be 20% in one situation and 60% or 5% in another situation. They really shift around quite a lot, and every situation is really different as well. Twenty per cent might be really important in Somalia; 5% might be important in Afghanistan.

    It seems that you could still have, in a flexible way, some of those things defined in regulation but still work from the principle of broader inclusion rather than individual authorization.

    I think it makes sense in regulation, but maybe not in the legislation itself, because the regulations would be easily updated.

    Both you and Ms. West referenced other countries that would be captured by the regime. Could you give us your list of the 8% that you think would be captured?

    It's 8% of countries worldwide, and I don't have the list in front of me. It would be Nigeria, Yemen, Somalia, Afghanistan and parts of West Africa where terrorist groups are controlling territories. It's quite an extensive list at this point.

    Ms. West, in terms of the list of countries, do you agree with that? Is there anything you want to add?

    No. I would defer to Ms. Davis, especially on this point.

    Would either of the other two witnesses be interested in responding to some of the points made with respect to the possibility of a humanitarian exemption that provides space in regulation for defining how that would be defined or not defined, but errs on the side of saying humanitarian activity would be allowed, provided that efforts are made to minimize dollars to terrorist organizations?

    I think the starting point here is that international humanitarian law already gives protection and already says that when you're operating in an area where there are armed groups, whether deemed terrorist or otherwise, and even in situations where you might have to pay these sorts of administrative fees, landing fees or whatever it might be, this kind of activity is authorized because the humanitarian imperative exists and we need to be able to respond to it.

    I would 100% agree with that. If you're going to provide a humanitarian exemption based on consistency with international law and then put domestic regulation on top of how you're interpreting international law, it doesn't make a lot of sense to me.

    If it's going to be lawful because it's lawful under international law, then that should be the limit.

    The definition of “terrorist group” in the Criminal Code, as I understand it, does not clearly exclude state actors. Some might argue, for instance, that Iran is a terrorist-controlled territory.

    Is it clear in the way the law is currently written whether or not it would apply when the government of a state is not a listed entity but has the attributes of a terrorist group?

     I would say that the legislation would apply in those contexts, but then you're asking the humanitarian organizations to make that determination, which, as I think MSF mentioned, goes against their rule of remaining impartial and neutral.

    Thank you.

    Thank you, Mr. Genuis.

    Ms. Damoff, the floor is yours for five minutes.

    Thank you, Chair, and thank you to all our witnesses for being here.

    To Dr. Belliveau in particular, thank you for the work that you and MSF are doing in saving lives, not just in Afghanistan but around the world. We all appreciate it.

    We're really challenged with this. Mr. Brunelle-Duceppe and I both sat on the special committee for Afghanistan and struggled with the fact that the Taliban is listed in our Criminal Code. It's been mentioned before that there was a blanket exemption given in other countries. Our understanding was that we were unable to do that because of the way the Taliban is listed.

    Just today there is an article stating that the U.S. Afghanistan watchdog testified before Congress that he can't guarantee that U.S. aid is not going to fund the Taliban, so trying to strike that balance....

    Ms. Davis, I saw you shaking your head when I talked about the Criminal Code. Could you maybe explain and talk a little bit about the challenges that we have in trying to get this exemption to get aid into Afghanistan?

    When we do a comparison with other countries, it's important to remember that not every country....

    All of the listing processes are quite different. The United States doesn't have the Taliban listed in the same way that we do, so they can apply broader exemptions in a different way. I think your point is exactly right, though: There's no way to guarantee that money or resources going into Afghanistan are not going to the Taliban. In fact, I would say that the opposite is true. I can almost guarantee you that there is money and aid going to the Taliban, because that's how they operate. It's really about striking the balance between how much we think is appropriate and how much isn't, which is part of why I was talking about calibrating our foreign policy. Sometimes we might find that to be acceptable; other times we might not, depending on how the terrorist group is operating internationally.

    If the Taliban starts having external attack capabilities and aspirations, we might want to turn the dial down on how much aid is going to that country.

    Yes, but having said that, even if it is not external, when I look at what's going on in Afghanistan, it's horrific. It's one of the worst in the world right now in terms of the millions of people there.

    My other concern is something that Ms. McPherson brought up at our last meeting: How do we ensure that this legislation is not politicized? How do we ensure that a government can't say they're going to make sure to include Gaza, just as an example, and they're going to ask you to apply, and then they're going to sit on your application for two years so that you're unable to deliver aid? It could be Nigeria.

    Through you, Mr. Chair, Ms. McPherson listed a number of countries. Is there anything that we can change in this legislation to ensure that it can't be politicized?

    All of you can respond.

    All listing regimes are political processes. In Canada, it's a decision by the Minister of Public Safety that recommends it to the GIC. It's not a legal decision, in a sense; it is a political process. It's the same within the United Nations. You're asking humanitarian organizations to recognize the political listing of a terrorist organization by the Government of Canada and then apply to nevertheless go and do their otherwise lawful activity in those regions.

    I don't think that there's a way around it, except for saying that those humanitarian organizations can continue to do their lawful activity under international law, which is why I think that an exemption for humanitarian assistance that complies with IHL—that's neutral and impartial—is permitted under the Criminal Code.

    Listing is inherently political, so any recognition of a listing is going to legitimize that political process.

    This legislation goes further than just listed entities, right?

    It does, and that's another problem, because you're asking a humanitarian organization to apply contested facts to our Criminal Code definition and to come to a decision about whether or not they think that the organization controlling the area they're working in is a terrorist group, which is a challenging process even for the RCMP.

    I think that request is also a bridge too far, and I would like to see the legislation specify only those that are listed entities, again because I think putting that request on humanitarian organizations is asking them to make a determination about whether a group in a controlled area is terrorist.

     Does either of the other witnesses want to...? I only have a few seconds.

    Sure.

    I think there's a high risk of politicization on both sides of the fence.

    There's a high risk on this side. Once you start this authorization process and have to submit all of this information to all of these government agencies, there is a risk, either now or in the future, that it could be used for purposes beyond the scope of what Bill C-41 is about.

    On the other side of the fence, it's the way we get perceived. We depend on being perceived as neutral and consistently impartial. If we're perceived as not holding up to those principles, then we're not going to be able to negotiate our access in places where—listed or otherwise—armed groups are operating.

    In sum, you could get politicization on both sides.

    Thank you. Thank you, Ms. Damoff.

    Next we'll go to Monsieur Brunelle-Duceppe.

    Thank you, Mr. Chair.

    I'd like to thank all the witnesses who are here, either virtually or in person.

    The first disappointment with Bill C‑41 is that it took far too long to introduce. On that, we can all agree. Many members of the government and the opposition have worked very hard on this issue, but it's taken too long.

    Now that the bill has been introduced, it's not sitting well with everyone, especially not the humanitarian organizations. So here we are in a bit of a cul-de-sac.

    Personally, I definitely want to see this resolved as quickly as possible. I think the main goal of members here is to as quickly as possible get humanitarian aid to Afghanistan and other parts of the world where terrorist entities control areas.

    We have two options: Either we decide to address the bill's technicalities and the way it's put together, or we change it completely and apply for a humanitarian exemption.

    What do you feel is more important? Is it coming to a quick conclusion so we can vote on the bill? Should we instead change the bill outright and fight as long as possible for a humanitarian exemption?

    Mr. Belliveau, perhaps you want to answer this question?

    I think it's pretty clear from what we've been saying so far that we think that an exemption is possible. That is the way to go. We think that it could be expedited relatively simply.

    If you back up a little bit, you will see that this problem has existed since the Anti-terrorism Act was put in place in 2001. It created this ambiguity.

    Already then, there wasn't an exemption carved out for humanitarian action, so for all of these years, humanitarian actors were left questioning whether or not they might run afoul of the Criminal Code. Now the stakes are raised. The government has come forward and said that it thinks it has a solution here. It doesn't think Bill C-41 is the right solution, but it does feel that we could introduce language within Bill C-41 that would actually clarify, all the way back to the Anti-terrorism Act, that we respect IHL—which Canada clearly does—and that when humanitarians are operating in an IHL context, they will not run afoul of the Criminal Code.

    I totally agree with what you're saying, but I have to be a killjoy. Since we're members from different parties, we may not agree on this. The problem I'm thinking of is that I certainly wouldn't want to see any sustained filibustering on this committee in the event that, say, the opposition agreed on what you just said to us, but on the government side the Minister of Public Safety would find our way of amending the bill unacceptable and decide to block the process. Until we can find common ground, people won't get the help they need. Getting aid through is the main objective of this bill, but that won't happen if we can't get it through.

    Can the committee members make some concessions and manage to balance out this bill to get a deal as quickly as possible? As I say, that's my main objective. As a parliamentarian, I'm trying to see what's acceptable to humanitarian organizations to get this bill passed as quickly as possible.

    Could we get there, for example, by way of exemptions for NGOs that are already recognized and credible, that have some breadth and are already on the ground? Could we have a list of NGOs that would already be exempted? Would it be possible to propose that to the government and put it in the bill, or does that seem impossible to you?

    May I speak?

    Of course, everyone can answer the question.

    Thank you for your question.

    I understand your concern and your desire to move forward. That said, I'd like to come back to what you said about the various lists of organizations and what already exists.

    The important thing we need to do here today is distinguish between the different types of organizations involved.

    For example, you have so‑called impartial humanitarian organizations, such as Doctors Without Borders and the International Committee of the Red Cross, which act in accordance with their mandates under international humanitarian law. International humanitarian law aims to limit the effects of war on humanitarian grounds by reconciling military necessity with humanitarian imperatives. The provisions of the Geneva Conventions, conventional international humanitarian law and customary international humanitarian law give impartial humanitarian organizations the right to offer services to parties to the conflict, to enable them to deploy humanitarian and medical assistance.

    Observance of the humanitarian duties and principles of impartiality and neutrality by impartial humanitarian organizations also gives them rights, namely the assurance of protected status to enable humanitarian assistance. As long as these humanitarian organizations remain neutral and impartial, they enjoy the protection afforded to them under humanitarian law.

    Doctors Without Borders and the International Committee of the Red Cross have very special status. We are perpetually committed to maintaining it by imposing on ourselves observance of these fundamental principles, in our charter, in the management of our operations, in our communications and in our funding sources. Our identity, legitimacy and legality are at stake, but so is our protection in the field, since we risk our lives if we don't stick to these principles.

    Of course, there are also other types of organizations, such as development assistance or peacebuilding organizations, that have other activities to promote other principles. These organizations do not necessarily serve the same needs and are not necessarily bound by the same obligations under international humanitarian law.

     Thank you, Ms. Maon.

    Next we'll go to Ms. McPherson for five minutes.

    Thank you, Mr. Chair.

    Five minutes is very short.

    First of all, I'd like to thank our witnesses for being with us today. Certainly, I'd like to thank you, Dr. West, for the work you do and for raising in particular the humanitarian context in which these things are happening. I think sometimes that does get lost when we start to talk about the laws. We are not doing this in any context. This is not happening in contexts in which it is easy to work. This is happening in contexts that are very difficult, so thank you.

    I'm going to start by asking some questions of MSF, which was the very first organization I ever volunteered with, so it has a special place in my heart. I was 19, so it was a very long time ago.

    I read the brief you provided to the committee. In your brief, you refer to the fact that the current authorization regime in Bill C-41 may also pose security risks to Canadian humanitarian staff working for organizations like MSF. You spoke a little about that in your testimony. Can you elaborate on that for me, please?

    With MSF, as with any organization, we have a duty of care to staff. The way that the authorization regime is set up in Bill C-41 poses risks to individuals. The sharing and the providing of personal data and information in such a way that we don't know how that information will be used, where it will be stored or how many agencies will have access to it will pose at least unknown risks to our staff.

    We know from just the feedback we've had since Bill C-41 came out that staff working for MSF will be deterred from wanting to continue to work for the organization, because they don't know where their personal data will be stored or what purposes it will be used for.

    Thank you.

    In your brief to the committee, you make a strong case for a permanent standing humanitarian exemption. We within the NDP will be bringing forward a recommendation or an amendment to do that. You have provided the draft language for that.

    My understanding is that this is something the International Committee of the Red Cross has also called for. Can you talk about other organizations that have been supportive of this amendment?

    I should also mention, by the way, Dr. West, that your amendment to the language on the terrorist entities is something that we also will be bringing forward.

    Claude, do you want to speak on the ICRC and maybe others?

    Thank you.

    I also want to mention something on security for Ms. McPherson about undermining the principles that I just mentioned, impartiality and neutrality. These are the principles that grant an access to a population, and they're also the principles that grant us protection under the Geneva Conventions. This authorization process would further increase security risks for MSF in the field, because those fields are volatile contexts. In these contexts, we—MSF— would be wrongly presented as agents of the Canadian state. It would be wrong, because we are neutral and impartial. Through that authorization process, we would appear as agents of a country—a state—that has maybe publicly designated some non-state armed groups as terrorists or called for their arrest.

    At the same time, Bill C-41's proposal would also give its approval stamp to impartial humanitarian organizations such as MSF to carry out, or not, their activities in territories controlled by those very same armed groups, so attacks could actually also target humanitarian personnel who are with organizations that have so far appeared as neutral and impartial but may no longer appear as such and through the authorization process implementation would rather be presented as being linked to state diplomacy or politics. This would also be a massive risk for humanitarians, including Canadian humanitarians.

     Just to clarify, what you're saying is this: Not only will it put individuals at risk because they will be associated as an agent of the state; it may also, I assume, impact the ability of humanitarian organizations to get to locations in the first place.

    Absolutely.

    Thank you very much.

    I have one other question for you.

    Can you explain the difference between exclusively humanitarian organizations, with activities covered within the legal framework of IHL, and those with mandates to do other things, such as development or peacekeeping work, that are not covered by IHL?

    I don't think this committee has a strong understanding of that.

    I can talk about it, indeed. I think this will have a little of the same sense as my answer to the previous question.

    We understand there are very specific organizations that are considered to be neutral and impartial, such as MSF and ICRC, because they are acting under the mandates confirmed by international humanitarian law.

    Not all organizations working for peace building or humanitarian aid development are answering to IHL requirements. To be active under IHL and to be under the Geneva Convention or customary law, humanitarian organizations need to respect those principles of impartiality. Because of that, you are allowed to make offers of service to parties in a conflict, which are free to accept them or not. The only reason for refusing—except there would be no need—would considering this organization not to be impartial.

    Thank you, Ms. Maon. Thank you, Ms. McPherson.

    We'll now go to a round of four minutes, starting with Mr. Van Popta.

    I'm going to share my four minutes with my colleague Mr. Genuis. He'll start off.

    Thank you.

    Thank you, Mr. Chair.

    It seems as if one of the concerns about general humanitarian exemption is this possibility: You have a terrorist organization controlling an area that says, “You can bring in humanitarian assistance, but you have to pay 70% tax.” You're getting some money to people who are suffering, but most of the money is going to the authority. We probably wouldn't want humanitarian assistance to go in, in that case, because the price is simply too high in terms of who receives it. On the other hand, there are other circumstances in which we think that would be reasonable.

    I'd like to hear from those who are in favour of a general humanitarian exemption. What do you think should happen in the hypothetical case I described?

    What would happen in a hypothetical case of an exorbitantly high demand for taxation? Is that your question?

    Yes.

    MSF and other humanitarian organizations.... We've been doing this for 52 years now, in all sorts of contexts where armed actors are present and operating. It is part of our job, and it is consistent with providing aid to people who need it most. We're constantly negotiating with these armed groups in a way that minimizes....

    The figures you're talking about are not figures we would ever agree to. We're constantly negotiating for the least amount of any sort of benefit whatsoever accruing to an armed group. By far, the majority of what we provide goes to the people we're there to assist.

    To follow up on that, you're a trusted, credible organization. Saying, “Hey, we know what we're doing here” is reasonable in your case, but a broad humanitarian exemption wouldn't apply to just organizations like yours. It would apply to organizations that perhaps have good intentions but don't have the same track record.

    If we want to say yes to you in that case, but we want to be cautious about others that may not have the same experience, how do we do that?

    Again, this comes back to what Claude was saying, and I'm sure she can build on this. She's clearly saying that an organization operating according to the humanitarian principles and providing aid impartially has the protection of IHL and already has, then, the right to intervene and provide that service.

    You're talking about the practical negotiations after that, but we have the right.

    Yes.

    I'm sorry. I want to honour my colleague's generosity with his time and give him a little.

    The Chair: It's a little, because you have one minute.

    Okay, thank you.

    Mr. Belliveau, I'll direct my very short question to you, for a short answer.

    Concern has been expressed that the government has been slow in rolling out Bill C-41. We knew there was a humanitarian crisis in Afghanistan and in other places as well.

    Has your organization been adversely affected in any way by that delay? Have you been prevented from doing some important work you typically would have done, had Bill C-41 been in place a year ago?

     Because we are so firmly committed to the humanitarian principles and because we are so firmly under the protection of IHL and we know this and we have the experience of it, we did not alter our operations in Afghanistan, nor have we altered them anywhere else.

    Have you been operating in Afghanistan even though it's governed by the Taliban?

    Yes, again, we have been operating before the Taliban takeover and after the Taliban takeover under the protection of international humanitarian law.

    Isn't that doing indirectly what we can't do directly under the current section 83 of the Criminal Code? How do you work around that through IHL?

    I think Claude can jump in here, but there are a a lot of other organizations active in Afghanistan, because other states have already made exemptions similar to the one we're talking about here. The United Nations Security Council has not only called for counterterror measures to be in line with IHL but has also made resolutions that provide these kinds of exemptions, including in Afghanistan.

    It is possible to do this, and a lot of other organizations and states behind those organizations are moving in that direction.

    Maybe Claude wants to build on that.

    Thank you. Unfortunately, we're out of time.

    The last question will go to Ms. Diab for four minutes.

    Thank you, Mr. Chair.

    Thank you very much to our witnesses. Thank you to you and your teams for providing this necessary humanitarian work across the globe. I can only imagine what your organization and the people who are employed there or volunteer there go through to get to that.

    This is the second day of our hearings on this bill. We heard that the bill is crucial to provide humanitarian aid in Afghanistan. Of course, as you've said, it's not simply Afghanistan; it could be anywhere, many other places around the globe.

    We also heard from government officials and others that there is a balance that needs to be struck here. In law and in reality and life, it's always very difficult to strike balances. It's always something that you attempt to do, I suppose.

    Ms. West, you have extensive experience in Afghanistan in what you've done personally. Can you talk to us a little more about the security considerations? How would you factor those in with respect to the provision of foreign aid?

    IHL, which governs humanitarian assistance and the work of humanitarian organizations, has already factored in a lot of that balance. There are a series of requirements placed on these organizations in order to lawfully provide aid inside an armed conflict, which is what we're talking about when we talk about a humanitarian exception.

    In an armed conflict, IHL already permits people to kill other people. This is the balance to be considered for humanitarian aid to help those people who might be killed. When we talk about the security balance now, we're talking about funding to terrorist organizations versus the ability to carry out that humanitarian aid. You're adding an extra layer against humanitarian aid.

    I'll go back to the earlier question about how MSF can what they're doing. It's because interpretation of Canadian criminal law should be consistent with international law, which includes international humanitarian law. You could already read a humanitarian exception into the law, but that's hard to do, given some of the other language in the act. MSF is doing it in order to carry out their work.

    I think relying on IHL and relying on an exemption that's based on IHL already factors in that security balance and the humanitarian balance. We're trying to do it on top by saying this organization, this armed group, is a terrorist group, so therefore it's even more important we not fund it, but we already have to worry about any armed group that's killing civilians.

    I think the balance is a little off by not recognizing the work IHL already does to protect that balance.

     We have 30 seconds.

    Ms. Davis, in 30 seconds, would you like to add anything to that?

    The only thing I want to add to that is that this bill, to me, strikes an important balance in recognizing the reality on the ground, which is that when international aid organizations operate in conflict zones where terrorist groups are operating, they are going to be providing them funding. There are really no two ways about it. I think it's important for the state to have the ability to calibrate how much we find to be acceptable and in what circumstances.

    Thank you.

    Thank you. Thank you, Ms. Diab.

    Thank you to all the witnesses. I want to really thank you and apologize for having to cut it short. We have to adjust two panels and have votes in between as well, so thank you.

    I will suspend for 60 seconds, and then I'm going to have the next panel up.

    Thank you.

    I call the meeting back to order.

    We are back to continue our study on Bill C-41.

    We now have Shabnam Salehi, as an individual. We have Usama Khan, chief executive officer of Islamic Relief Canada. Welcome.

     From World Vision Canada, we have Martin Fischer, head of policy. We also have Amy Avis, chief of emergency management and general counsel. I think they will be sharing their time.

     We don't have anybody online. It is all in person.

    We'll begin with Shabnam Salehi for five minutes.

     Dear Mr. Chair and members of the committee, I am honoured to have the opportunity to express my opinion regarding Bill C-41.

    I am Shabnam Salehi. I was the women's rights commissioner at the Afghanistan Independent Human Rights Commission, and besides that, I was a lecturer at Kabul University. Now I am a visiting lecturer at the University of Ottawa.

    In my opinion, the bill will grant the Canadian government the necessary permission to effectively address the ongoing crisis in Afghanistan.

    As you all are aware, Afghanistan is facing a humanitarian crisis that is affecting millions of people. According to OCHA, 28.3 million people have been found to have severe food insecurity, and nearly 19.9 million people suffer from acute hunger. According to the UNDP, as of mid-2022, almost 97% of Afghans were living below the World Bank's $1.90-per-day international poverty threshold.

    Additionally, poverty in Afghanistan is likely to become even worse. Before August 2021, Afghanistan's economy was 75% dependent on foreign aid. According to the World Bank, a rapid reduction in international grant support, loss of access to offshore assets and disruption in financial linkages are expected to lead to a major contraction of the economy, increasing poverty and macroeconomic instability.

    The de facto authority has been continuing to engage in discriminatory actions against women, exemplified by the Taliban's unjustified ban on girls' education. This ban is a result of the Taliban's extremist ideology, which promotes gender apartheid and seeks to exclude women from social life. The Taliban gradually enforced the bans through a series of decrees, starting with prohibiting male teachers from educating girls, followed by the implementation of gender-segregated classes and, ultimately, the closure of secondary education for girls. Additionally, the Taliban limited women's ability to choose certain academic fields and eventually prohibited female university students from pursuing higher education. This further exacerbated the issue, as women were prohibited from working, including in UN agencies. As of the beginning of this week, the Taliban has extended this crackdown on women's education by closing primary schools in four provinces of Afghanistan.

    Canada faces a crucial decision: whether to permit the oppressive regime in Afghanistan to continue its discriminatory practices or to take affirmative action to counter its suppression, specifically by empowering the people of Afghanistan, especially women. If Canada opts for the latter, I think the proposed bill allows a blueprint for implementing, executing and assisting the response under the current regime. I believe this bill will present a viable path forward by providing a plan to support the Afghan people, particularly women.

    My request to the committee is to ensure that the bill prioritizes the empowerment of women, social mobilization and civil movements as a means of confronting the discriminatory policies imposed by the regime. To achieve this, I propose that the bill strongly emphasize the distribution of aid towards women's empowerment, the protection and promotion of human rights, and widespread social mobilization.

    To achieve this mission, I believe that subsequent legislation, policies and programmatic interventions would align Canadian diplomatic and humanitarian assistance with that of other allies to accelerate pressure on the regime to change its discriminatory policies. This will provide Canada with the opportunity to actively engage in the process of empowering and supporting the people of Afghanistan towards a positive change that aligns with Canada's core interests and international commitments.

    By working in co-operation with other allies, Canada can pool resources and efforts towards a shared goal of creating a more just and equitable society in Afghanistan. This will also provide an opportunity for Canada to showcase its leadership in promoting human rights and gender equality globally.

    Thank you so much.

    Thank you, Ms. Salehi.

    Next we'll go to Usama Khan for five minutes.

     Thank you so much, Mr. Chair and members of the committee.

    My name is Usama Khan. I'm the chief executive officer at Islamic Relief Canada, which is a member of the Humanitarian Coalition.

    Since 1999, Islamic Relief globally has been operational in Afghanistan, and throughout the current last two years as well. Recently, the UNDP selected Islamic Relief as an implementing partner for a $22-million project, recognizing that it can deliver in Afghanistan in an effective, transparent and accountable way.

    I want to start off by acknowledging how proud I am of the Aid for Afghanistan coalition, which includes the Red Cross, World Vision and many other agencies that come together and encourage legislative change on this important area. I also must acknowledge that I think we're here speaking about this today because of public mobilization and the tens of thousands of people across the country who are interested in Canada's position on this. For me, that is the true power of democracy.

     With the current language in Bill C-41, we feel there are some unintended consequences that may actually move us backward instead of forward. Continuing on the discussion from the last session, I want to add a few perspectives from our experience in working in Afghanistan.

    On the question of how much aid or how many taxes go to countries, I know a figure of 70% was raised as a hypothetical scenario in the question-and-answer period. Maybe I can give some tangible examples from this crisis.

    In the summer of 2021, when the Taliban took over the government, we wanted to understand our risk appetite as Islamic Relief, so we figured out and calculated what the taxes were. They were around 3%. This is what we did at Islamic Relief. The U.K. and the U.S., our counterparts, do have broader humanitarian exemptions, and we wanted to continue helping the people of Afghanistan with Canadian donor funds that our donors from across the country wanted to give for Afghanistan, so we carved out the 3% that was for government taxes, and our counterparts in the U.K. subsidized that portion. As a result, no Canadian funds were being used that went to the government.

    That is just to give an example that agencies like Islamic Relief have very robust anti-diversion policies and anti-bribery policies, and to give them the space to make those operational decisions on the ground that will be reasonable and accountable....

    First, I think that placing the additional administrative burden on charities as part of the authorization regime would be onerous. The onus should be on the government to decide which organizations are listed, and not on the charities to do that themselves.

    Second, I want to spend a few moments on the process of the authorization regime, particularly around the risks of terrorism financing. In terms of the securitization of humanitarian aid, Canada's updated inherent risk assessment for money laundering and terrorism financing was released a few weeks ago. It mentions that “the government must be vigilant to avoid systemic and unconscious bias influencing how it is applied.”

    There's some language in the bill with respect to what we heard about the vague word “links”, which I think now or in the future could be used as a political tool and could be used to have a chilling effect on the humanitarian sector. I think it's important that we look at the oversight, transparency and accountability measures that would be in place as part of the authorization regime in approving these things.

     In conclusion, this is an important step and this discussion is an important step, but we want to make sure that the unintended consequences don't outweigh the benefit that we're trying to achieve.

    Thank you so much.

    Thank you, Mr. Khan.

    Next we'll go to Mr. Fischer and Ms. Avis. You can split your time as you wish.

     Thank you, Chair.

    Honourable members, thank you for inviting us to appear today on your deliberations on Bill C-41.

    My name is Martin Fischer. I'm the head of policy for World Vision Canada, and I'm joined by my colleague, Amy Avis, who's the chief of emergency management at the Canadian Red Cross and also a much more qualified lawyer than I will ever try to be.

    We're joining you from Ottawa, which is on the unceded territory of the Algonquin Anishinabe people.

    Our organizations are both members, as Usama has mentioned, of the #AidForAfghanistan coalition, a diverse group of Canadian humanitarian aid, human rights and women's rights organizations that have operated in Afghanistan for decades. Today we're speaking to a submission that was jointly prepared by eight organizations.

    I want to emphasize that over the past months, and in fact longer than a year, we've closely engaged with parliamentarians from all parties and many of you around a table, as well as officials and ministerial staff from many departments, and that dialogue has been exceedingly constructive throughout. Thank you for that.

    Before Amy details some of the legal considerations of our submission, I want to stress three points regarding Bill C-41.

    First, as you progress through these deliberations, you'll hear, as you have, a spectrum of views on Bill C-41. We believe that with some fine tuning, it is a critical step forward in a longer-term journey to ensure that Canadian humanitarian organizations as well as those delivering other services in these difficult contexts can operate in a neutral, impartial and independent manner in the most difficult and exceptional circumstances.

    Second, Bill C-41 applies to a very narrow, exceptional set of contexts in which interaction with the terrorist group's exercise of control over territory is wholly unavoidable.

    Third, while Bill C-41 is not specific to just Afghanistan, it can enable us to resume work in that particularly challenging context, hopefully in the very short term. We cannot lose sight of the severity of the humanitarian crisis there and the obligations that Canada and Canadians have to help.

    I'd like to turn it over to Amy now. She will outline some of our legal perspectives and recommendations contained in this submission.

     Thank you for the opportunity to speak with you this evening.

    A core belief of the Canadian Red Cross as well as of our sector partners is that no one should be blocked from receiving humanitarian assistance on the basis of location. We believe that Bill C-41 is a critical step forward in a longer-term journey to protect the provision of neutral and impartial humanitarian assistance. If implemented, put simply, it will enable Canadian aid organizations to resume operations in Afghanistan and conduct its operations in complex contexts across the globe.

    I would like to focus on four recommendations today. The first is expediency. The second is alignment of the amendments to the purpose of the bill. The third is ensuring that the authorization regime is fit for purpose, and the fourth is the commitment to the longer-term journey that my colleague referred to.

    In terms of expediency and implementation, all of us are aware of the staggering need for humanitarian assistance in Afghanistan. No one would like to see a second anniversary come to pass while Canadian aid organizations desperately want to deploy their resources, Canadian expertise and support to those who desperately need it. These programs are vital for improving access to health care and other life-saving assistance, in particular for women and girls.

    My second submission is with regard to alignment of the amendments to the bill. We heard many discussions earlier this evening in terms of recommendations, and we agree with a lot of them that have been discussed.

    What we would say is that the bill is intended to address an exceptional set of circumstances and rare contexts in which interaction with a terrorist entity is wholly unavoidable. It isn't about just the context of Afghanistan; it is around narrow, exceptional circumstances globally. To better support this intent, one of our strongest recommendations is to use the language of “substantial” control rather than “sufficient” control.

    Finally, although there's a need for further clarity in the language of the bill, any revision must guard against the unintended consequence of increasing the breadth of application of the authorization regime.

    This brings me to my third point: ensuring that the authorization regime itself is fit for purpose.

    The coalition has chosen to focus on the implementation of the authorization regime because we feel as though this is where the rubber is truly going to hit the road. Beyond amendments to the bill itself, this is something that we can't lose sight of. We believe it has to be clear, fair, consistent, practical, expedient, reasonable and resourced. It also has to keep pace with operational realities.

    The last is the most important, and I see my time is up, so I will be brief. It's the commitment to the longer-term journey. This is the step, the building block. It isn't everything. As long as we're committed to the longer-term journey that needs to be taken forward to systematize the provision of neutral and impartial humanitarian assistance, we strongly support the recommendations of this bill.

     Thank you, Ms. Avis. Thank you, Mr. Fischer.

    Members, the bells have started ringing. If I have consent to go until 6 p.m., you'll have about 10 minutes if you want to go in person. There are some members who want to vote in person. We'll resume 10 minutes after the result is reported, if that's okay.

    Do I have the consent of the committee?

    Some hon. members: Agreed.

    The Chair: We'll come back after that time—10 minutes—and we'll start right away. We have services until 7 p.m., just so you know.

    We'll go to our first round of five minutes, beginning with Mr. Genuis.

    Thank you, Chair.

    What we've heard so far today is that international humanitarian law should already oblige a general exemption for politically neutral activity. Mr. Khan spoke about a workaround involving money donated from other sources. That may not be an option that works for every organization.

    I'm curious. To the folks at Islamic Relief and World Vision, what's your view on the proposition that you may already have the legal authority to proceed, based on international humanitarian law? Is it just a matter of not wanting the legal headache of potential prosecution, given the ambiguities?

    Thank you for the question.

    From our perspective, it's important that we understand that each agency makes its own legal and risk analysis and assessments.

    Even though Islamic Relief was still doing projects in Afghanistan, for us it's important that a lot of our colleagues in the sector have funds available for Afghanistan. However, because of the risk of prosecution and their own risk assessment, they weren't proceeding.

    Right. Is it fair to say that although the law may be on your side in general, there is some risk of prosecution, and that risk is unacceptable for...? Understandably, people who are involved in humanitarian work don't want to take on the risk of being prosecuted.

    There are two points.

    As Usama said, every organization has a different risk appetite and arrives at conclusions regarding risk in a different way. For World Vision Canada, there was a decision that we wouldn't find workarounds, either any through our global partnerships or any other way, so we halted both publicly and privately funded activities in Afghanistan, while the World Vision partnership—which is funded in a sort of pooled funding mechanism—was able to continue.

    To the second point, it's really important to distinguish between activities that are protected, as MSF and others pointed out, under IHL.

    It's not the full spectrum of activities that are delivered in these kinds of contexts. Proposed subsection 83.032(1), which lists the activities proposed in the bill, arguably provides a full spectrum of activities that you would do that aren't just the more narrowly defined life-saving humanitarian activities protected under IHL.

    What we're saying is that in the case of World Vision Canada, we want to be able to continue work that is focused on educating children and focused on advancing the rights of children, which is work that doesn't have those IHL protections. Without the bill, we wouldn't be able to continue to do that.

    I don't think it's binary. You shouldn't be saying that this is an either-or choice. You can arguably do both. That's why the conversation around a pure humanitarian exemption is important to have. We would submit that the list of activities is a really core thing. With anybody who has engaged with us over the last year, it was a key argument that we made.

     We cannot just focus on.... We should be more exhaustive in what we are able to do.

    I think that's an important distinction. Maybe groups that are engaged in emergency humanitarian relief have greater, clearer protection from international law and may feel that they are taking on less risk, but if you're involved in longer-term, development-oriented activities....

    Ms. Salehi, thank you for your testimony. I want to get your perspective.

     There will be some people who are afraid that the engagement involved in delivering aid will provide some legitimization to the Taliban. Of course, the Afghan people are the primary victims of the Taliban.

     What do you think the people of Afghanistan would want us to be doing in terms of that potential balance between allowing aid to come in, but also not wanting to contribute in any way to the legitimization of this group, which is not a legitimate government and should not have the power that it does?

     Thank you.

    I think we have a core principle for humanitarian aid that neutrality and impartiality are part of. Since we have this principle, I don't think that under this principle it can be channelled towards legitimacy. If we try to see that in black and white, there is no black and white. We can't decrease the regime's role to zero.

     In any situation, even in the ideal situation, the regime will benefit from some of the aid, no matter the tax style. The Taliban now are using different tools.

     For this instance, I think there's a different mechanism. For example, the UN is a great mechanism, because somehow they are not providing taxes, so they are not giving taxes. I think there are different ways that we can adopt. By adopting these ways, we can decrease the role of the regime, but we can't bring their role to zero.

    Thank you.

    Next we'll go to Ms. Damoff for five minutes.

    Thank you, Chair.

    Thank you to all of you for being here today, and thank you for the work you're doing. I do have to give a special shout-out to Islamic Relief, which has its head office in Burlington, Ontario.

    We had a lot of conversation—some of you were here for it, I think—during the first panel about the blanket exemption for humanitarian aid.

    Mr. Fischer, thank you for explaining a bit of the difference between life-saving humanitarian aid and broader development aid.

     Do you see a world in this bill where there's an exemption for humanitarian aid while still allowing groups like yourselves to apply for an authorization to do the work, or for a group like Canadian Women for Women in Afghanistan, who've been operating in Afghanistan for decades and doing really good work?

    I'll throw that to Amy.

    I think that is a really important clarification. I would say that there's IHL, then there's life-saving assistance, and then there are the activities of the bill. The coalition is looking at that broader piece.

    The other thing we would put forward is in terms of what we would.... You won't find the sector disagreeing on the outcome; I think we just disagree on the process and the time frame. I think what we would put forward is that we'd like to see the language of the bill go forward so that we can resume our operations that are critical and life-saving, and then we'd like to have commitment to the journey, which would be beyond IHL and then beyond development, and then ultimately looking beyond an authorization regime.

    If I can just throw some of that question back to the government, because it's ultimately.... The bill we have before us is the bill that we have before us for reasons that we heard on Monday, from both Minister Mendicino and the officials. If there's a legal as well as a political way to insert that exemption, by all means, do so. I don't think anybody at this table is going to say, “Don't do that.”

     What we're saying, though, is that it shouldn't be the litmus test of whether this particular.... A fine-tuned version of Bill C-41 should proceed. Just to reiterate, we also have the position that the two aren't mutually exclusive. You can do them in a sequenced kind of way.

    Really, Ms. Damoff—we know each other well—it's a matter of what the government intends to do. I think we would strongly support what MSF and others said during the first session, which is that, yes, if there's a way to do this, if it's ruled within scope during the amendment process, then by all means, please do it, but we would also urge—to turn to opposition—that it is not the litmus test of the bill. There are other ways to improve the bill as it stands that make it fit for purpose.

     As Amy said, if that is done, we should still proceed while seeking the long-term commitment and working towards an improved framework that includes an exemption. I hope that's clear.

    You were the first one who brought this to my attention shortly after I was elected, so we have come to know each other very well over the years.

    Have you submitted to the committee all your recommendations? We'll be taking a look at those, but I think all of us want to get this done quickly, because we want you to be able to deliver aid. I know that we heard earlier that MSF has still been operating and Islamic Relief is operating, but I also know that there are many organizations that are not, and people are dying because that aid isn't getting there.

    I think there's one important consideration. We said that while the bill is not about Afghanistan, it really is, in the very short term, and I think an additional factor as you deliberate is that in our experience, there are very few contexts that garner support from Canadians who are willing to stand up and be generous in the way that Afghanistan does.

    I think it's not just about whether we are able to continue doing our work; it's also whether Canadians and Canada as a whole stand behind the commitment and the responsibility they have because of our engagement towards Afghanistan. It's difficult to separate the two. It's difficult to not place it into a broader Canadian context while also continuing to have these more abstract conversations around IHL and how Canada can move towards a more comprehensive and robust regime more broadly.

     Okay. I'm going to end it there because I won't have to time for an answer to a question.

    Thank you.

    Next we'll go to Monsieur Brunelle-Duceppe for five minutes.

    Thank you, Mr. Chair.

    Thank you to everyone for being with us.

    I believe that the Canadian Red Cross was consulted in the drafting of this bill. That's what the minister told us.

    Do you feel that your voice was heard enough during consultations with the minister?

    What I would say is that we feel well heard and we had lots of persistent engagement over the last year, in particular in the broad discussion of activities aligned to many of the recommendations that the sector and coalition made. We feel as though it's been a really constructive dialogue in terms of the language of the bill.

    I don't know if my colleague Martin would like to add anything on behalf of the coalition.

    I pulled up the list of meetings that World Vision registered over the last 18 months. It's unlike anything that we've ever done on any other bill, and this is across all parties and across departments.

    There are limitations, obviously, once legislation gets tabled and once it gets drafted. Would we have liked to have been brought into the room at some point? Of course, but we also realize that there are limitations around cabinet confidentiality, and in this particular bill there are security limitations.

    To Amy's point, there's a lot of language in the bill that came from submissions that we previously put in, and we feel heard.

    Has the Minister of Public Safety contacted you directly to consult on Bill C‑41?

    His office did, yes.

    At what point did he contact you? Are you able to tell us?

    It was throughout the process, and I think the details—

    I mean the first time the minister's office contacted you to consult on the potential bill. When were you contacted?

    That would have been either in February or March of 2022, right around the time when the special committee on Afghanistan was conducting its—

    That's what I wanted to know. It was only a rhetorical question, because we talked about it a lot with the minister.

    As I understand it, your main objective is to get the bill passed as quickly as possible. We agree with that. That's kind of what I was saying when I addressed the first panel; I believe you were there and you heard me.

    In your opinion, is the bill acceptable as it stands now? If the opposition parties and government could not agree, would you prefer to have the bill as it's written today, or are you adamant that it be amended before the House can vote on it?

    I think that it would be substantially strengthened by some of the amendments that were discussed in the earlier session and are aligned to the coalition's submission, but I don't think that any of them are not in keeping with the purpose or out of scope. I think it would substantially make it better, and then we need to continue this discussion in the longer term.

    Let's take a hypothetical situation, like a huge earthquake that happens in a region controlled by terrorist agencies. In your opinion, would the bill as currently drafted do the job in a situation like that?

    What I would say is that it will come down to the administration, and that's why we focused our intervention on how it will be administered. If there's proper resourcing and if we see what we've seen in the sanctions regime, it would enable us to resume life-saving work to provide life-saving assistance in that context, and we wouldn't be able to do that now.

    Quickly, I just want to know what's more important to you: Is it amending the bill or getting it passed? That's really my main question.

    I don't think the two are mutually exclusive. I think there are amendments on the bill that are deemed by legal counsel to be in scope, and I know our organization's within scope.

    I think rarely is a bill tabled in perfection on the first instance, so I would urge everyone around the table to look at the amendments that have been put forward by the organizations that are going to be subject to the bill, and look at them in good faith and have conversations before Monday, when clause-by-clause consideration starts, and find agreement.

     Thank you, and thank you, Mr. Brunelle-Duceppe.

    We will now suspend. I'll get to Ms. McPherson when we come back. That will be 10 minutes after the vote result is announced.

    Thank you.

     May I have everyone resume?

    We have House resources only until seven o'clock, so I just want to make the maximum use of our time.

    We'll begin with the last person from the first round, Ms. McPherson, for five minutes.

    Thank you, Chair.

    Thank you to all of the witnesses for being here today and for the important work you do. Thank you for your words on the women and girls in Afghanistan. I think I speak on behalf of all of us at this table in saying that the ultimate goal is to ensure that there is help. One thing, though, that I think is important to recognize is that this is not just about Afghanistan, but will have decades-long implications.

    Another thing I want to comment on if I could, Ms. Avis, is that you spoke a lot about commitment to the journey and next steps and whatnot.

    Unfortunately, as parliamentarians, we don't vote on next steps. We don't vote on the journey. We vote on legislation that is before us, and this legislation has an awful lot of ifs in it, a lot of things that make me question whether it's fit for purpose.

    I worked in the sector for a very long time. I understand how long it takes to get policy from Global Affairs or to get things through Global Affairs Canada. I am deeply worried about their ability to make decisions fast enough for the humanitarian context.

    We heard testimony just a few days ago from witnesses who considered six months a long time for this, but they didn't put it out of the wheelhouse. Six months in the humanitarian context is basically useless. It becomes basically useless in many contexts.

    We waited 18 months for this legislation. It gives you an idea of the understanding of the urgency, so when we talk about a commitment to the journey, when we talk about whether or not this government is fit for purpose to actually implement the bill they have put before us, I think the NDP has some very serious concerns.

     There are a couple of things I would like to start with. One is that we worry about timing. We worry about how this will be implemented. We are bringing forward some amendments. We are bringing forward an amendment for a humanitarian carve-out, for example, exempting from the authorization process any humanitarian assistance activities conducted under the auspices of impartial humanitarian organizations in accordance with international humanitarian law. Obviously, this would not cover the entire range of activities that the organizations represented here do, and I think we've heard the difference between humanitarian activities and development. This amendment would simply carve out those activities.

    I'll ask the three of you if your organizations would be supportive of that sort of an exemption.

    Yes, absolutely.

    Yes. As we said in our testimony, we're not against that type of an exemption and we think other tweaks would substantially strengthen the bill.

    I think that as long as we're committed to that path of expediency....

    Well, “we” can't be; it's the government's role to have that thing, so we can commit all we want, but if the legislation doesn't explicitly have.... I have some challenges with that too.

    Sorry. Go ahead, Mr. Fischer.

    Yes. I think you can do both.

    Okay. Thank you.

    With regard to the work your organizations are doing in the field, can you speak very briefly about what this would look like? I think we've become very focused on Afghanistan because, of course, that is the impetus for this bill and what we've been calling for, for 18 months. However, we all know that organizations work in multiple situations where humanitarian aid and international development are all required.

    Can you talk a little bit about the implications of this bill for your work in other areas—for example, Gaza, Nigeria, Mali, the Central African Republic and Sudan?

    Sure. I can begin.

    I think that if the bill, as it stands, became law, we would obviously do an analysis. The prudent approach in a lot of contexts would be to pause projects until we could get authorization. That might include projects in Palestine, and possibly in Yemen and Syria, for which that analysis would have to happen.

    I think activities would immediately have to be paused and information would have to be gathered for making this application, so I think that would have a negative effect.

    Just really quickly before I ask the other two witnesses, you mentioned Palestine and Yemen.

    Currently we are selling arms to other sides in both of those conflicts, so wouldn't the potential for that to be politicized be quite high, then?

     Yes, and I want to mention that I think those names that just came up.... The onus right now is on the organizations to determine if they're listed and by what definition. I think that's problematic, because it's not coming from the government. I think one recommendation is for modifications.

    As it stands, each organization would do its own risk assessment on a geographic region on whether there is significant influence or control by a listed terrorist entity. That, in itself, is problematic.

    Once they do that, initiating the process and paper work to start negotiating with the government to get that approval would, I think, add a lot of bureaucratic burden, red tape and administrative burden. That's on top of all the other CRA regulations that charities have to comply with in Canada, which is a more cumbersome process than in any of our other partners in the EU or the U.S.

    You'd have all that while a humanitarian crisis means people's lives are at risk.

    I'll have to get to the other witnesses at the next round.

    Thank you, Ms. McPherson.

    Next we'll go to Mr. Brock for four minutes.

    I'm passing it on to my colleague Mr. Genuis.

    Thank you, Chair.

    Mr. Khan, just to start off, did I hear you correctly? Did you say that if this legislation passes, you will have to pause projects that are currently under way in order to seek the authorization?

    Yes. If the bill is law, then from a risk analysis standpoint, if we assess that some contexts have a significant influence from listed entities, then the prudent thing would be to pause and get that permission before we—

    That's even though under the current legal framework, you feel comfortable carrying on those projects based on your risk analysis.

    That's correct.

    Okay. That's really important for us to know, because it maybe counters the “rush it through even if it's not perfect” message. It's something we all have to think about.

    We've had amendments put forward that involve limiting the scope of this bill to certain geographic areas that would be defined by the government, or limiting it to terrorist entities only and not terrorist organizations in general. This would provide greater certainty for the sector. However, it raises another potential problem, which is that if there is territory that is controlled by a terrorist organization—not an entity—or a territory that is controlled by a terrorist entity that is not listed as part of that listing process, then—as I understand the legislation—you wouldn't be able to apply for an exemption in that case. You would simply be excluded from doing work there. Providing that list could narrow the places for which you could apply for an exemption and therefore prevent you from doing any kind of assistance or support in other areas.

    That raises some potential concern for me about those amendments. Do you want to respond to that concern?

    Go ahead, Ms. Avis.

    The current regime would apply generally, so we would be able to undertake our activities in the vast majority of contexts globally.

    Again, I really want to re-emphasize that for us, a critical amendment that we're looking for is that “substantial control” piece. In a situation of sufficient or substantial control, that is the limited circumstance in which we would have to apply and where the authorization regime would be applicable. In all of the contexts, it's only where there's substantial control. Where there's substantial control, we would have to apply.

    It is true that we're seeking further clarification by saying that “listed entities” is more clear than “terrorist” generally, so some of the amendments in our proposition are to tighten the limited circumstance that we're really talking about here today.

    Unless I didn't follow, I don't know if that really answers....

    I'm concerned that if we limit this legislation to only listed entities and there's a place that is controlled by a terrorist organization that is not a listed entity, you can't apply for the exemption because the—

    It would be permissible.

    It would be permissible.

    It seems that it has to be clear that it would be permissible, because right now, under the Criminal Code, it would not be permissible.

    It would be.

    Under the current Criminal Code—and maybe my colleague wants to expand—as the coalition reads the bill, we're able to undertake our work in the vast majority of contexts.

    If you were to accept amendments to allow for the definition of listed entities, it would mean that we wouldn't have to apply in even more circumstances. We would only have to apply in the very narrow circumstance in which it would be, in our case, substantial control by listed entities. That's where the authorization would apply.

     Assuming it's permissible in cases not covered by the regime, then why don't we just not create the regime?

    I think the legislation was seeking to provide clarity and assurance in situations like Afghanistan, which are very extreme, where at every turn you are wholly unable to not interact with a listed terrorist entity.

    There might be cases in which that same reality exists, not because of a terrorist entity but because of a terrorist organization that is not an entity. You'd be assuming that this activity is permissible if that area is not identified, but if you're assuming that it's permissible in that case, why would you make that assumption if it's not explicit in law?

     The bill as it currently reads doesn't use listed entities as a defined concept. It truly is trying to talk about a circumstance in which it's completely, wholly, entirely unavoidable. In the circumstance you're describing, along that continuum, a multitude of other regulations and safeguards enable us to work in that jurisdiction in keeping with our commitments in providing international humanitarian assistance. This bill is seeking to talk about the very narrow circumstances that are currently prohibited under the Criminal Code, which is a context like Afghanistan, which is very extreme. Everything else is permissible.

    Thank you.

    Thank you, Mr. Genuis.

    Just for the record, Mr. Genuis, I gave you over five minutes, so I will be giving the next person five minutes as well.

    Mr. Naqvi, you have five minutes.

    Thank you, Chair.

    To all the witnesses, thank you for being here today and thank you for a very engaged conversation.

    The last time I spoke on the issue was when Minister Mendicino was at the committee. I'll ask the same question that I asked him, because there's a struggle that I'm having in my mind. I will start with Mr. Khan, and then we can move down the chain.

    How do you balance between concerns around an entity or a regime like Taliban, which is extremely oppressive in nature...? The things they're doing and have done, and their views around women, are abhorrent to me personally and I'm sure to Canadians. That's not to mention some of the practices they deploy in undermining decades of work that has been done in Afghanistan in terms of giving women more freedom, ensuring there's education, and doing important development work, which all of you have been part of. Juxtapose that with the humanitarian crisis that's taking place right now in Afghanistan since the Taliban has come into power and the state of affairs there as it relates to people.

    As a government, as policy-makers, we're trying to ensure that money doesn't go in any way to the Taliban while we're also trying to help people. I want to hear from you on this: What is the best possible way to meet that right balance that we've been trying to accomplish?

    I'll start with Mr. Khan.

    Sure. Thank you for the question.

    The most important stakeholders in this, I think, are all the women and girls and people who are struggling in Afghanistan and who need help. It would be placing them at the heart of the discussion, finding solutions on how we as Canadians can reach them, and making sure that we can be that bridge in a trustworthy way for generous Canadian donors.

    I think I can speak for all 19 of the organizations represented here. These are sophisticated operations. It's not the only context where we've dealt with a similar situation. In terms of the policies, the judgments and the expertise that has been gained, I think that sometimes the perception that a significant diversion of funds will happen to the government is overblown. In this example, because I looked into it, only 3% of the funds were going as taxes to the government. I think that's reasonable. We didn't feel that there was an undue influence or that there was an undue diversion of funds to the Taliban government.

    If the onus is put on the agencies to make that judgment call and more than 50% to 60% was going to the Taliban, I don't think any of the agencies would proceed in getting that access.

    Do you have an internal mechanism by which you make a determination that, for instance, you are no longer going to operate in a particular jurisdiction because you don't feel comfortable as to where some of the hard-earned or hard-raised donation dollars may go?

     With respect to the donors who give us the money, we take that custodianship seriously, so if we feel that the money that is intended for women and girls, the people, is not going there, then we pull out, cease operations and find a different geographic area within the country or demographic.

    Can I hear from the Red Cross in terms of your views on the balance we're trying to accomplish through this legislation?

    I'll speak on World Vision's behalf.

    The other consideration is that at least the three organizations that are sitting here, as well as many of the other organizations, operate in these large international federations or partnerships in which we have very strict guidelines around risk tolerance and around what Usama was talking about. Ultimately, yes, World Vision Canada makes a decision on whether or not the risk is acceptable to us, but there's also an international component in there that provides additional safeguards, and our partnership provides guidance as to whether a context is too tricky, too risky, for us to operate within it.

    Again, different organizations will come to that conclusion at different levels, and there is no right threshold, whether it's 3%, 5%, 7% or 14%, at which you hit that determination.

    I have two concluding remarks. First, we're driven by the humanitarian imperative, and the humanitarian imperative obliges us to take risks in order to deliver humanitarian assistance, but when we perceive that those risks affect our ability to provide assistance because of the legal parameters that we operate in within Canada, then we will have that kind of consideration.

     The second piece—and we've said this at various stages—is that it's not just Bill C-41 that provides the regulatory framework for charities and humanitarian organizations in Canada to operate in those kinds of contexts. At the very top we have donor promise, as Usama said. We have to provide Canadians certainty that what they are giving us the funds for is actually what the funds are being used for, and then be very clear right down to reporting with the CRA and elsewhere, so it's not just Bill C-41. You have to place that into a larger context.

    Thank you.

    Thank you, Mr. Naqvi.

    For our last rounds, which are two and a half minutes each, we'll go to Monsieur Brunelle-Duceppe and then Ms. McPherson.

    Please go ahead.

    Thank you, Mr. Chair.

    We can agree on one thing: As my colleague said so eloquently and as we heard throughout the speeches and questions as well, everyone here wants Canadian NGOs to be able to work on the ground in Afghanistan to help people, but not just in Afghanistan. If other crises arise in territories controlled by terrorist agencies, we want to be able to provide assistance.

    Canada has nevertheless been a leader in humanitarian aid throughout the ages, and this is coming from a Quebec sovereignist. Currently, we're faced with a bill that doesn't have unanimous support among NGOs, certain government departments, the opposition parties and the government. However, we do have a goal that is unanimously supported.

    What I want to know is, how can we drum up unanimous support? I want you to help me in my role as a parliamentarian to find that unanimity so that we can help people on the ground. I need your assistance, because you're the experts.

    We do so by finding consensus where there can be consensus. We do it by recognizing, again coming back to Afghanistan, that the urgency perhaps in Afghanistan bestows upon everyone the need to make more compromises than they would in a different context, and we do it by listening to the experts. You have heard from a variety of organizations, but I think there is actually agreement.

    I think there's agreement, at least among experts, that you can do both when it comes to the blanket exemption that is being proposed while Bill C-41 is being fine-tuned. That's the ideal-case scenario that's emerging from today, so we can try our best and we will do that. We think everybody, including MSF and others, will continue to engage with you over the coming days, and if we can be helpful in those deliberations, we'll obviously continue to do that.

    What you're describing is the best case scenario. The worst case scenario would be, we don't agree and we've wasted our time. Can we agree on that?

     We are, 100%. It's not the place to filibuster.

    Thank you.

    Last, we go to Ms. McPherson for two and a half minutes.

    Thank you, Chair.

    The representatives here are from larger organizations that do this work. In fact, all that did the briefing note are relatively large organizations.

    Do you worry at all about the implications on smaller organizations that work in the field? Canadian Women for Women in Afghanistan is a perfect example of a small organization. This is a very burdensome process for smaller organizations.

    Would anyone like to comment on that?

    We do agree, and that's something we're concerned about. As a sector, it is in keeping with other kinds of application-based regimes that they have to contend with. This isn't unique; it is something we're familiar with, and we do believe we will support one another in the process.

    I would say to the earlier comment that the express humanitarian carve-out won't solve that problem. Those aren't the small organizations. What we're talking about isn't going to solve that problem for them. It will not.

     I know. This legislation in itself will be a barrier for those organizations, in that we are asking them to go through additional bureaucratic processes in order to be able to work in some of these regions.

    Ms. Avis, there's one other question I have for you. We have received testimony from the Canadian Red Cross. The International Committee of the Red Cross does not support this legislation and actually says that it is in opposition to international humanitarian law.

    Why the discrepancy?

    I think we're actually aligned. I think we both submitted that an express humanitarian carve-out is something we would all want. I think we're aligned that we need to systematize neutral and impartial humanitarian assistance.

    I think the Canadian Red Cross is subject to domestic Canadian laws and is unable to operate in Afghanistan, and this bill is a reasonable step forward.

    What I'm hearing from that is because the International Committee of the Red Cross is not part of the legislative framework of Canada, they look at this legislation and say that it's bad, but because you need to work within the Canadian legislation, you're willing to accept this legislation.

    No. As I said, we all believe in a blanket carve-out for international humanitarian law. That's their submission. If that was considered or taken forward, which we also have in our testimony today and in our written submission, we're completely aligned on that point. That would solve their problem, essentially.

    If I can just.... I'm obviously not speaking on behalf of the Canadian Red Cross, but I think the conversation has evolved over the last few days to say that just Bill C-41 is insufficient. In my interpretation of the position from ICRC, if there were not room for an additional humanitarian carve-out and if Bill C-41 passes unamended, then that's not ideal. I think that's where consensus has emerged from all witnesses. I think that's fair.

    Thank you. Thank you, Ms. McPherson.

    I want to thank the witnesses for your great testimony and the great service that you and all your organizations do for humanitarian efforts around the world. It's very commendable.

    I want to thank all my colleagues here in the room, especially those visiting, for being very timely and being able to adjust even with the votes in between. We were able to get a good, decent round of questions. Thank you very much.

    The meeting is adjourned.