On March 9, 2023, the Government of Canada introduced Bill C-41, An Act to amend the Criminal Code and to make consequential amendments to other Acts. This legislation would amend one of the Criminal Code's anti-terrorist financing offences to facilitate the delivery of much-needed international assistance, immigration activities, and other assistance in geographic areas controlled by terrorist groups. The amendments would create a new authorization scheme that would allow those that provide humanitarian and other critical assistance, to apply for an authorization that would be shield them from the risk of criminal liability if the terms and conditions of the authorization are respected. As it is currently written, the Criminal Code does not include any exemptions to facilitate the delivery of these essential activities in these areas.
Currently, the Taliban, as the de facto authority in Afghanistan, is likely to receive revenue from any payments, such as taxes, import tariffs, airport and administrative fees, which may be necessary to support international assistance and conduct immigration activities.
Any Canadian or person in Canada (as defined in the Criminal Code) making or authorizing such payments would risk contravening the Criminal Code's counter-terrorist financing provision (section 83.03(b)), given that these payments could be used by or benefit the Taliban, a listed terrorist group.
The Situation in Afghanistan
The scale of the humanitarian and economic crisis that people in Afghanistan are currently facing cannot be overstated. According to the UN, a total of 28.3 million people (two thirds of the population) need humanitarian assistance in 2023, an increase of 16 percent since 2022. Nearly 20 million people are facing acute food insecurity, and an estimated 4 million children and pregnant and lactating women in Afghanistan are at risk of acute malnutrition. Women and girls are deprived of access to education, employment, and even the most basic human rights.
Overview of Bill C-41
Under the proposed authorization regime, upon referrals by the Ministers of Foreign Affairs or Immigration, Refugees and Citizenship, the Minister of Public Safety or a delegate would have the authority to grant authorizations. The authorizations would shield applicants from criminal liability for certain activities such as the provision of international assistance or immigration activities, that would otherwise risk contravening the Criminal Code.
In deciding whether to grant an authorization, the Minister of Public Safety would consider referrals by the Ministers of Foreign Affairs and Immigration, Refugees and Citizenship, and take into account their assessment of the application and a security review by security agencies, among other factors. These factors would be set out in the Criminal Code and could apply to any eligible person or organization in Canada or Canadian organizations outside of Canada.
The proposed authorization regime would also inclue:
- requirements for a ministerial review of the regime after five years;
