3. Questions and Answers

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Government’s Response to the Final Report of the Special Committee on Afghanistan

House of Commons Standing Committee on Citizenship and Immigration

• Q 1 What is the Government’s position with regard to Recommendations 10 (humanitarian aid exemptions) and 11 (review of Criminal Code terrorism financing laws)?
• Q 2 What criminal laws apply in Canada with respect to financing of terrorism?
• Q 3 Are groups that are currently providing aid in Afghanistan committing terrorism financing offences?
• Q 4 Do other countries have exemptions similar to those proposed in Recommendations 10 and 11?
• Q 5 Are carve-outs for humanitarian purposes consistent with international counter-terrorism treaty obligations?
• Q 6 Have there been any cases of people or organizations prosecuted for terrorism financing when delivering aid?
• Q 7 Why hasn’t the Government moved forward with law reform given the urgent situation in Afghanistan?
• Q 8 What do you say to those who say the law already allows for humanitarian aid to be provided?
• Q 9 Could changes have application to other situations around the globe?
• Q 10 Could changing Canadian law here undermine our ability to combat terrorism?
• Q 11 What is the purpose of Bill C-41?

Q 1 What is the Government’s position with regard to Recommendations 10 (humanitarian aid exemptions) and 11 (review of Criminal Code terrorism financing laws)?

• The Government agrees with both of those recommendations.
• We recognize the valuable work that Canadian organizations, and Canadian officials who assist them do by conducting humanitarian and other essential activities in regions that are under the control of a terrorist group.
• We also recognize that even with the best of efforts and motives, performing those activities can inadvertently provide resources to the terrorist group, which they could use to support their terrorist activities.
• We also want to guard against those terrorist groups using humanitarian aid or other worthy purposes as a cover for fundraising for terrorist activities.
• The solution we have brought forward in Bill C-41 balances the need to maintain strong anti-terrorism financing provisions with the need to allow for Canadian organizations to deliver impartial humanitarian assistance without undue risk of criminal liability.

Q 2 What criminal laws apply in Canada with respect to financing of terrorism?

• There are several financing of terrorism offences in the Criminal Code. These make it a crime to, directly or indirectly,
  • wilfully provide or collect property intending or knowing that it will be used to carry out a terrorist activity;
  • collect, provide or make available property intending or knowing that it will be used for the purpose of carrying out a terrorist activity or that it will be used by, or will benefit, a terrorist group;
  • use property for the purpose of carrying out a terrorist activity; and
  • possess property intending that it be used or knowing that it will be used directly or indirectly for the purpose of carrying out a terrorist activity.
• These offences apply also when committed outside Canada if certain criteria are met, for example, when the person is a Canadian citizen or is stateless and ordinarily resides in Canada.
• Criminal liability also arises for aiding or abetting in the commission of the offence or attempting, conspiring or counselling to commit the offence.
• In addition, the Criminal Code provides for the listing of terrorist entities. Once listed, an entity is automatically defined as a terrorist group and its property is frozen and is subject to possible seizure and forfeiture. The Taliban has been a listed entity since May 9, 2013.
• The Criminal Code also requires that every person in Canada, and every Canadian outside of Canada, disclose to the RCMP or to CSIS, the existence of property in their possession or control that they know is owned or controlled by or on behalf of a terrorist group.

Q 3 Are groups that are currently providing aid in Afghanistan committing terrorism financing offences?

• It is not my role to express a view on whether a crime has been committed. However, I do understand that there are good reasons for concern about the application of the Criminal Code to those activities.
• The financing of terrorism offence with the broadest scope is found in paragraph 83.03(b) of the Criminal Code.
• This provision makes it a crime to directly or indirectly collect property, provide, invite a person to provide, or make available property or financial or other related services knowing that, in whole or part, they will be used by or will benefit a terrorist group.
• The word “knowing”, makes it a subjective mens rea. This means that a person will have the required mens rea, when he or she actually knows that the property will be used by or will benefit a terrorist group, or was wilfully blind to it.
• Wilful blindness has been defined by our courts to mean deliberate ignorance.
• Whether or not criminal liability would arise in a particular case would depend on the facts and circumstances of each case.

Q 4 Do other countries have exemptions similar to those proposed in Recommendations 10 and 11?

• Yes. Other like-minded democracies have more flexible terrorism financing regimes that have been able to adapt to allow for the delivery of humanitarian assistance to the people of Afghanistan.
• In December 2021, the United Nations Security Council, in its Resolution 2615, decided that providing humanitarian assistance and other activities that support basic human needs in Afghanistan are not a violation of its sanctions regime against the Taliban and that paying funds or providing goods and services necessary to ensure the timely delivery of such assistance are permitted.
• In response, the United States has issued licenses to facilitate the continued flow of humanitarian assistance and other support for the Afghan people; the United Kingdom amended its regulation that sanctioned the Taliban to allow for the delivery of such aid; and Australia interpreted a provision in its Charter of the United Nations Act 1945 to allow for the delivery of such aid.
• As well, but not in specific response to Resolution 2615, in October 2021 New Zealand amended its anti-terrorism legislation to expand the criminal offences of terrorist financing to include material support for an entity known to carry out terrorist acts, but specifically excluded humanitarian support to satisfy basic needs from the scope of this provision.
• In December 2022, the United Nations Security Council passed UNSCR 2664, which established a similar carve-out in relation to all other United Nations sanctions regimes for various humanitarian organizations working for, or closely associated with, the United Nations. The United States and the United Kingdom, have adapted their practices or legislation accordingly.

Q 5 Are carve-outs for humanitarian purposes consistent with international counter-terrorism treaty obligations?

• Yes. Canada, like other like-minded democracies, can implement exemptions to our terrorism financing provisions consistent with our obligations under the International Convention for the Suppression of the Financing of Terrorism and United Nations Security Council Resolution (UNSCR) 1373.
• Specifically related to the humanitarian crisis in Afghanistan, the United Nations (UN) Security Council passed UNSCR 2615 in December 2021.
• That resolution states that providing humanitarian assistance and other activities that support basic human needs in Afghanistan are not a violation of its sanctions regime against the Taliban and that paying funds or providing goods and services necessary to ensure the timely delivery of such assistance are permitted.
• The resolution also strongly encouraged providers to use reasonable efforts to minimize the accrual of any benefits – direct provision or diversion – to entities or individuals designated on the UN Security Council sanctions list as entities or individuals associated with the Taliban.
• As well, in December 2022, the United Nations Security Council passed UNSCR 2664, which established a similar carve-out in relation to all other United Nations sanctions regimes for various humanitarian organizations working for, or closely associated with, the United Nations. The United States and the United Kingdom, have adapted their practices or legislation accordingly.

Q 6 Have there been any cases of people or organizations prosecuted for terrorism financing when delivering aid?

• No. Since the coming into force of the terrorism financing provision, two individuals have been convicted, and one has been charged. None of the convictions or charges relate to a person or organization delivering or assisting in the delivery of humanitarian aid.
  • Mr. Mohammad Momin Khawaja was convicted of five terrorism offences, one of which was the terrorism financing offence of directly or indirectly collecting, providing or making available property intending or knowing that it will be used for the purpose of facilitating or carrying out a terrorist activity.
  • Mr. Prapaharan Thambithurai pleaded guilty to the terrorism financing offence of directly or indirectly collecting or providing property knowing it will be used by, or will benefit, a terrorist group. He knew that the Liberation Tigers of Tamil Eelam or LTTE was a terrorist group and he admitted knowing that some of the money he was collecting would go to the LTTE.
  • More recently, on November 17, 2022, a man was charged with three counts of terrorism offences including one terrorism financing offence pursuant to section 83.03 of the Criminal Code. As this case is currently before the courts, it would be inappropriate for me to speak to it further.

Q 7 Why hasn’t the Government moved forward with law reform given the urgent situation in Afghanistan?

• The Government tabled Bill C-41 in the House of Commons on March 9 of this year, which proposes an authorization regime as the most effective way forward on this challenging issue.
• The Bill proposes a careful balance between ensuring that worthy humanitarian and other activities can continue, while not opening the door to broad support of terrorist groups and their activities.

Q 8 What do you say to those who say the law already allows for humanitarian aid to be provided?

• It is not my role as Attorney General or Minister of Justice to provide legal advice to Canadian organizations or individuals. Their own legal advisors may conclude that, on the facts of their case, the activities that they engage in can be provided within Canadian law.
• However, as I set out in my opening remarks, the Criminal Code provisions, as passed by Parliament, are very broad with no exceptions similar to those of our allies.
• I believe that the proposed regime in Bill C-41 for providing humanitarian aid in any geographic area controlled by a terrorist group will be useful.

Q 9 Could changes have application to other situations around the globe?

• Yes. While the situation in Afghanistan has put a particular focus on the ability to provide humanitarian aid in a region controlled by a terrorist group, there are other places in the world where control by a terrorist group may raise challenges.
• For example, in Gaza the territory is controlled by Hamas, a listed terrorist entity; and, at least in the past, areas of Colombia were controlled by the FARC (Fuerzas Armadas Revolucionarias de Colombia), another listed terrorist entity.
• The proposed authorization regime set out in Bill C-41 will be applicable to those other situations as well.

Q 10 Could changing Canadian law here undermine our ability to combat terrorism?

• No, not if done right. Bill C-41 will allow for appropriate activities to continue while preventing support for terrorism. Many of our allies have already done that.
• But I don’t want to suggest that this was an easy task. A blanket exemption for any activity claimed to be humanitarian could significantly undermine our ability to combat the financing of terrorist groups.
• Conversely, an excessively narrow exception might not provide the tools that are needed to allow appropriate activities to continue.
• Bill C-41 proposes an authorization regime that strikes an appropriate balance between these two extremes.

Q 11 What is the purpose of Bill C-41?

• The Bill seeks to rectify the problems identified by the House of Commons Special Committee on Afghanistan and to respond to its Recommendations 10 and 11. The Bill would create an authorization regime for Canadian organizations to be able to provide international assistance where they might otherwise run afoul of the terrorism financing offence at issue.
• The authorization regime would allow eligible persons to submit an application for an authorization that would permit them to carry out selected purposes in a geographic region that is controlled by a terrorist group, and that would otherwise result in providing property to a terrorist group, which is prohibited under the Criminal Code.
• The Minister of Public Safety, in deciding whether or not to grant an authorization, would have to determine if the benefits of allowing humanitarian or other needed activities to be conducted outweigh the risk of terrorist financing.

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