Bill would shield federally authorized foreign aid providers from terrorist financing prosecutions
Thursday, March 09, 2023 @ 4:54 PM | By Cristin Schmitz
Highlighting the plight of millions of Afghans who face acute malnutrition and food insecurity under the regime of the Taliban (listed as a terrorist entity in the Criminal Code since 2013), Ottawa has proposed amendments that would enable the Minister of Public Safety to shield from criminal charges for terrorist financing those who obtain federal authorization to provide certain types of humanitarian assistance or other aid abroad in areas controlled by a terrorist group.
Public Safety Minister Marco Mendicino introduced in the House of Commons March 9 Bill C-41, which states that it amends the Criminal Code (and consequentially other statutes) “in order to create a regime under which the Minister of Public Safety and Emergency Preparedness may authorize an eligible person to carry out, in a geographic area that is controlled by a terrorist group and for certain purposes, activities that otherwise would be prohibited” under para. 83.03(b) of the Code (which becomes s. 83.03(2)).
Paragraph 83.03(b) of the Criminal Code makes it a criminal offence to collect property, or provide, invite a person to provide, or make available property or financial or other related services, directly or indirectly, knowing that it will be used by, or benefit, a terrorist group.
A person would be eligible to seek and be granted an authorization under the proposed law if they are in Canada or a Canadian outside Canada.
According to briefing materials provided to Law360 Canada, the amendments are needed because payments (including taxes or import tariffs) made to the de facto national authority in Afghanistan would inevitably be used by and/or benefit the Taliban, putting Canadian organizations delivering assistance there — such as humanitarian aid, safe passage and immigration processing activities — at risk of contravening the Criminal Code.
The federal government said that under the proposed amendments, the public safety minister could decide to grant an authorization for up to five years if they are satisfied that “there is no practical way of carrying out the proposed activity without creating a risk of terrorism financing; and the benefits of the proposed activity outweigh that risk.”
The public safety minister would consider applications referred to them by the Minister of Foreign Affairs and/or the Minister of Immigration, Refugees and Citizenship.
A ministerial refusal of a referral to the public safety minister or a refusal to authorize the application by the public safety minister (ministers must notify the applicant of a refusal “within a reasonable time”) would be subject to judicial review in proceedings which “may not disclose information that is injurious to international relations, national defence or national security or could endanger the safety of any person if disclosed. Such information will be reviewed in private by a designated judge.”
In conducting their risk/benefit assessment, the public safety minister would consider: the referral of the Minister of Foreign Affairs and/or Immigration “on the need for the proposed activity in the specified region, and the capability of the applicant to manage funds in circumstances involving terrorist groups, amongst other things;” the findings of a government security review; “any measures to mitigate risk and any other terms and conditions, that may be included in the authorization;” and “any other factors considered appropriate.”
The government said “authorizations can be granted for a class of activities for any specified purpose from the following:
The public safety minister must consider the “security review” which would be conducted to assess the “impact of granting the authorization on terrorism financing and other security considerations before granting an authorization.”
The security review would assess, “among other factors:”
The government said a granted authorization is valid for a period up to five years, as specified in the authorization. The authorization may be subject to additional security reviews and any terms and conditions.
The government said an authorization “does not guarantee that financial institutions will facilitate financial flows to Afghanistan but may help those institutions in deciding whether or not to facilitate that flow.”
To renew an authorization, applicants apply before the authorization expires, and in accordance with regulations. If an authorization has expired, the Minister of Public Safety may renew the authorization “if there are exceptional circumstances.”
Granted or renewed authorizations could be revoked, suspended, or restricted in scope “at any time” by the public safety minister if: the applicant fails to comply with the authorization or its terms and conditions; fails to comply with reporting requirements or does not provide requested information; or if the minister determines “that the benefit of the activity no longer outweighs the risk of terrorist financing.”
If you have any information, story ideas or news tips for Law360 Canada, please contact Cristin Schmitz at Cristin.schmitz@lexisnexis.ca or call 613-820-2794.
Public Safety Minister Marco Mendicino introduced in the House of Commons March 9 Bill C-41, which states that it amends the Criminal Code (and consequentially other statutes) “in order to create a regime under which the Minister of Public Safety and Emergency Preparedness may authorize an eligible person to carry out, in a geographic area that is controlled by a terrorist group and for certain purposes, activities that otherwise would be prohibited” under para. 83.03(b) of the Code (which becomes s. 83.03(2)).
Paragraph 83.03(b) of the Criminal Code makes it a criminal offence to collect property, or provide, invite a person to provide, or make available property or financial or other related services, directly or indirectly, knowing that it will be used by, or benefit, a terrorist group.
A person would be eligible to seek and be granted an authorization under the proposed law if they are in Canada or a Canadian outside Canada.
According to briefing materials provided to Law360 Canada, the amendments are needed because payments (including taxes or import tariffs) made to the de facto national authority in Afghanistan would inevitably be used by and/or benefit the Taliban, putting Canadian organizations delivering assistance there — such as humanitarian aid, safe passage and immigration processing activities — at risk of contravening the Criminal Code.
The federal government said that under the proposed amendments, the public safety minister could decide to grant an authorization for up to five years if they are satisfied that “there is no practical way of carrying out the proposed activity without creating a risk of terrorism financing; and the benefits of the proposed activity outweigh that risk.”
Public Safety Minister Marco Mendicino
A ministerial refusal of a referral to the public safety minister or a refusal to authorize the application by the public safety minister (ministers must notify the applicant of a refusal “within a reasonable time”) would be subject to judicial review in proceedings which “may not disclose information that is injurious to international relations, national defence or national security or could endanger the safety of any person if disclosed. Such information will be reviewed in private by a designated judge.”
In conducting their risk/benefit assessment, the public safety minister would consider: the referral of the Minister of Foreign Affairs and/or Immigration “on the need for the proposed activity in the specified region, and the capability of the applicant to manage funds in circumstances involving terrorist groups, amongst other things;” the findings of a government security review; “any measures to mitigate risk and any other terms and conditions, that may be included in the authorization;” and “any other factors considered appropriate.”
The government said “authorizations can be granted for a class of activities for any specified purpose from the following:
- Humanitarian assistance (e.g., food, shelter, hygiene, protection);
- Health services (e.g., immunization, maternal and childcare services, disease outbreak monitoring and response);
- Education services (e.g., education materials, literacy training);
- Programs that support earning a livelihood (e.g., provision of small-scale agricultural inputs to assist vulnerable farmers, support to women-led businesses);
- Human rights programming (e.g., support for human rights defenders and women’s rights groups);
- Immigration services, including resettlement and safe passage (e.g., transportation, accommodations);
- Activities to support federal ministers or government of Canada departments or agencies “to conduct critical operations other than those outlined above.”
The public safety minister must consider the “security review” which would be conducted to assess the “impact of granting the authorization on terrorism financing and other security considerations before granting an authorization.”
The security review would assess, “among other factors:”
- Whether the applicant or any persons involved with the proposed activity have any links to terrorist groups;
- The likelihood that the applicant or any persons involved in the proposed activity will be acting on behalf, at the direction, or in association with a terrorist group in carrying out the activity; and
- Whether the applicant or any persons involved in carrying out the proposed activity is or has been investigated, charged or convicted of a terrorism offence.
The government said a granted authorization is valid for a period up to five years, as specified in the authorization. The authorization may be subject to additional security reviews and any terms and conditions.
The government said an authorization “does not guarantee that financial institutions will facilitate financial flows to Afghanistan but may help those institutions in deciding whether or not to facilitate that flow.”
To renew an authorization, applicants apply before the authorization expires, and in accordance with regulations. If an authorization has expired, the Minister of Public Safety may renew the authorization “if there are exceptional circumstances.”
Granted or renewed authorizations could be revoked, suspended, or restricted in scope “at any time” by the public safety minister if: the applicant fails to comply with the authorization or its terms and conditions; fails to comply with reporting requirements or does not provide requested information; or if the minister determines “that the benefit of the activity no longer outweighs the risk of terrorist financing.”
If you have any information, story ideas or news tips for Law360 Canada, please contact Cristin Schmitz at Cristin.schmitz@lexisnexis.ca or call 613-820-2794.
