1. Opening Remarks

Government’s Response to the Final Report of the Special Committee on Afghanistan entitled “Honouring Canada’s Legacy in Afghanistan: Responding to the Humanitarian Crisis and Helping People Reach Safety”

House of Commons Standing Committee on Citizenship and Immigration

Minister of Justice

March 2023

I wish to thank the members of this Committee for inviting me to speak about the Government’s Response to the Final Report of the Special Committee on Afghanistan called “Honouring Canada’s Legacy in Afghanistan: Responding to the Humanitarian Crisis and Helping People Reach Safety”.

My remarks will focus on those recommendations from the Final Report that relate to my responsibilities as the Minister of Justice, specifically those that relate to changes to the Criminal Code.

Recommendations 10 and 11 of the Final Report of the Special Committee on Afghanistan called for two things. First, they called for a specific carve-out from the terrorism financing offence in paragraph 83.03(b) to allow registered Canadian organizations to deliver humanitarian assistance and other basic needs to the people of Afghanistan.

Second, they called for the Government to review the terrorism financing provisions in the Criminal Code and to take urgent legislative steps necessary to ensure those provisions do not unduly restrict legitimate humanitarian action that complies with international humanitarian principles and law.

After the terrorist attacks in the United States on September 11, 2001, Canada responded to United Nations Security Council Resolution 1373 and enacted, within months, the Anti-terrorism Act, 2001. Among other things, this Act amended the Criminal Code to create several offences designed to prevent acts of terrorism, which included three terrorism-financing offences.

Enacted rapidly to deal with the important threat from terrorism that the world was facing, those offences are broad and strict in their application.

One of these offences is found in paragraph 83.03(b) of the Criminal Code. That offence makes it a crime to directly or indirectly collect, make available, provide or invite someone to provide property or financial or related services knowing it will be used by, or will benefit, a terrorist group.

Knowledge in criminal law has two components: actual knowledge or wilful blindness. Wilful blindness means deliberate ignorance. In other words, did the accused shut their eyes because they knew or strongly suspected that looking would give them knowledge?

Another key element of the terrorism financing offence in paragraph 83.03(b) is the term “terrorist group”. The term “terrorist group” means an entity that has as one of its purposes or activities facilitating or carrying out a terrorist activity or it is a listed entity.

Out of a desire to strongly combat the scourge of terrorism, in 2001 Parliament did not create any statutory exemptions to the terrorism financing offence in paragraph 83.03(b). Nor has Parliament amended those provisions since then to allow for any exceptions.

In contrast, the regimes of many of our allies, including the United States and the United Kingdom, are more flexible and can accommodate appropriate targeted exceptions, which allowed them to recently amend their regime to ensure those in Afghanistan can continue to receive the necessary aid.

This brings us to the situation in Afghanistan and Recommendations 10 and 11. Before August 2021, many non-governmental organizations or NGOs were working diligently to provide humanitarian assistance and other kinds of assistance to the people of Afghanistan, often with financial assistance from governments. For many years, the Government of Afghanistan had been working in concert with allies to prevent the Taliban from taking over Afghanistan.

As we are all too well aware, all that changed in the spring and summer of 2021 when the Taliban swept into power. Looking at it from a Canadian perspective, there are good reasons for concern about the application of the Criminal Code to the activities of Canadian NGOs and government officials who assist them. Should they make payments, knowing that some of those monies would go to the Taliban, a terrorist group, for example by paying for salaries of Afghan employees who are subject to income tax, they could risk criminal liability under the terrorist financing offence in paragraph 83.03(b).

In light of the existing law, the Government agrees that we need to revisit our terrorism financing offences to ensure that appropriate humanitarian and other activities can continue, without opening loopholes that would allow nefarious actors to support terrorist groups under the guise of worthy activities. In this regard, the Government of Canada has introduced Bill C-41 on March 9, 2023, to amend the Criminal Code to allow for the delivery of principled humanitarian action while maintaining strong anti-terrorism financing provisions.

This Bill would create an authorization regime to protect eligible persons in Canada or Canadians outside Canada from criminal liability for delivering certain needed programs and services where they would knowingly yield a benefit to, or be used by, a terrorist group. This will not only make it easier for humanitarian organizations to operate in Afghanistan, but also in other geographic areas that are controlled by a terrorist group.

Thank you again for inviting me to speak to this Committee and I am available to answer your questions.