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Welcome to meeting 68 of the House of Commons Standing Committee on Justice and Human Rights. Pursuant to the order of reference of March 27, 2023, the committee is meeting to continue 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 using the Zoom application. Since it's all members and we have no witnesses who are unfamiliar with the Zoom application, I will skip those instructions.
On our agenda today, we will continue our clause-by-clause study of Bill C-41.
We have officials with us again to provide answers on technical questions throughout our study today. We thank you for making yourselves available to help us once more.
From the Department of Citizenship and Immigration, we have Teresa Matias, who is acting director general, policy and outreach, Afghanistan sector.
We also have, from the Department of Global Affairs, Nancy Segal. Thank you for coming and joining us.
From the Department of Justice, we have Robert Brookfield, director general and senior general counsel, criminal law policy. Thank you.
We also have Glenn Gilmour, counsel, criminal law policy section.
Last, from the Department of Public Safety, we have Richard Bilodeau, director general.
Welcome to all of you. Let's return to where we were before adjourning meeting 61.
(On clause 1)
The Chair: We're resuming consideration of clause, 1 on amendment CPC-1.
Before we move on to CPC-1, I've had conversations with members about NDP-3. For the wording that used, it's been brought to my attention that using the term “international humanitarian law” means that the clause can be used only in instances of armed conflict. That wasn't our intent. We wanted a humanitarian crisis to qualify.
This is supported by some of the aid organizations I've spoken to. The suggestion is that we remove the word “humanitarian”, so it would read “international law”.
I know we need unanimous consent to move back to that amendment to make that change, Chair. I think that if you seek it, you will find it.
The text of NDP-4 and that of NDP-5 are the same except for the use of the term “terrorist group” in the first amendment and of “a listed entity” in the second amendment. In addition, the text of NDP-4 is identical to the text of part (a) of BQ-1.
Please, just let me know if you need me to stop, if the interpretation is not able to go forward.
The purpose of NDP-4 is to introduce a list of geographic areas. We heard that from testimony, particularly from the Aid for Afghanistan coalition. They recommended that the ministers “responsible for the authorization process” also be responsible for determining “which...geographic areas are under [the] substantial control of a terrorist group”, and make a list of the identified areas available to organizations that wish to operate in those geographies.
This amendment is necessary. We know from within the sector that, if we don't have this list, individual humanitarian actors would be forced to guess what geographic areas are of concern to the Canadian government. That's unfair. It puts that onus on the organizations. It would compromise the perceived neutrality and impartiality of the humanitarian actors who are working in these areas, which is hugely problematic.
We are always trying to ensure that those who are working in some of these most challenging areas are able to maintain their neutrality. It keeps them safe. It keeps the people whom they are helping safe. It allows them to do the work that is so vitally important. The solutions offered so far by the government to this particular problem have been unclear and unsatisfactory, and I think the sector has been very united on this, in that they are unacceptable to this point.
As we've heard from witnesses, this is why we brought forward this recommendation.
I agree that the original version of the bill was inadequate in this respect, and I agree that it's an important objective to ensure that organizations are not in a position where they have to guess what applies where.
Conservatives will be opposing this amendment, because we think that there is a better way of achieving this objective that provides certainty to the sector without requiring the publication of a public list. We are looking forward to sharing that solution shortly.
Similar to what Mr. Genuis just said, we support the intent of this but know that publishing a list of geographic areas is problematic for the government. However, the aid organizations want some kind of certainty as to whether or not they can operate in certain areas. There is a future amendment coming forward that we will be supporting, and we will not be supporting NDP-4.
It actually just occurred to me that it might be worth laying out what that amendment is. It'll save us time later, and that way, people following will know what the alternative is.
We are going to propose an amendment later on that requires, if organizations seek information from the government about whether an application is required in a particular case, that a response be given.
It addresses the concern of uncertainty, and it reflects the recognition that things can change very quickly on the ground. If an organization is wanting to do development work in a particular area, they can put in an application; they can ask the question, and the government will tell them yes or no.
This is a real problem that had to be solved, but our concern has been that some of the solutions that have been proposed have just been very broad in their implications beyond the situations of delivering development assistance. Those are things like changing the definition of “terrorist organization” to include only listed entities and not to include groups that are not listed. These kinds of changes would be, I think, more sweeping in their implications.
The requirement for government to respond to questions that are asked addresses the issue. Given that we're trying to deal with this bill quickly, and given the timelines, I think we should focus as narrowly as possible on the specific issues around the delivery of development assistance and try to leave other issues and other potential unintended consequences for other legislation.
Again, I'm just reiterating our opposition to this amendment, but we will be proposing, I think, what is a more precise alternative shortly.
Frankly, the alternative is putting the onus for all of this on organizations. What that means is that there's no clarity provided whatsoever about when they need to ask, what the time frames are, who they ask and what this all looks like. The potential for this to be weaponized by government is huge.
What happens if an organization is working in an area and the reality changes on the ground? How do they know when they have to ask? This provides very little clarity. What is being proposed provides almost no protection for organizations.
I, again, would urge my colleagues to support NDP-4. I recognize that they are not going to do that, but I want to make it very clear that the alternative solutions being brought forward will not help organizations.
I move amendment BQ‑1, and I'd like it to be put to the vote immediately, so as not to waste any time. I think everyone has had time to make up their minds about this amendment, since we've discussed it extensively in and out of committee. I don't think I need to demonstrate the validity of this amendment.
I therefore ask that we proceed to the vote immediately.
I think I have substantially foreshadowed this. This is designed to address the concern about organizations having to potentially guess where the law applies. It says that if organizations ask the government whether they need an authorization in a particular case, the government has to tell them. There's a common law principle of officially induced error, which would effectively mean that if the government told someone they didn't need to apply, they would not be prosecuted if they did not apply. It provides substantial protection for organizations. It provides them with the means of getting information.
It was pointed out earlier that this puts an onus on the organizations to ask the government the question. That's true. All other things being equal, it would be slightly easier if they could just look online. This provides a greater degree of certainty, and it's not that onerous, I think.
Hopefully, we'll be able to develop a process whereby it's not too onerous, and organizations can say at a very simple level, “We plan on doing X in Y region. Do we need to apply or not?” The government will tell them yes or no, and then either they'll be able to make the application, knowing they had to make the application, or they'll be free and clear to proceed.
This, I think, addresses all of the issues around requirements to list applicable places or organizations. It's all designed with the objective of giving the organizations certainty. This is what gives organizations certainty. I think it cleans up a significant problem with the bill, and I think it does so on a basis that is acceptable to the government and, therefore, will not lead to further delays.
It's a reality that this bill is not perfect, but if we tried to amend it in ways that were fundamentally unacceptable to the government, they would just not call it going forward. I think the Conservatives have tried to play a reasonable role in finding compromises that work, and I think this amendment achieves that.
We will support this amendment, and I thank my Bloc and NDP colleagues for bringing forward previous amendments that would not have been workable, from the government's point of view, to provide those lists.
This addresses the concern that organizations have expressed to me of, “How do we know?” If there isn't a published list on the website, it's a simple matter of asking.
One of the questions that came to me was, what if a group is working in northern Nigeria, for example, and they don't know? The situation changes. They can ask the government, but my Conservative colleague mentioned there is in common law a principle that they're not going to be held liable for operating somewhere when the situation changes and they're well-intentioned where they're working.
I think this is a valuable compromise to give organizations the certainty they've been asking for to know whether or not they can go into a region or continue operating in a region, or if there's an organization that is questionable and they just want that certainty.
This amendment, to me, is the epitome of folks who have never, in fact, worked on the ground in humanitarian or international development contexts. This is putting the onus, as I said, very much on the organization to ask the public safety minister for guidance. We're expecting there to be some policy things made clear within this legislation. Any time that is the case, it means that this can be weaponized.
All of a sudden, if we get a different government or if we get a different minister, the ability for the minister to weaponize against organizations is there. We have no understanding from this legislation of who the organization would ask or what the timelines for that would be. Things do not move quickly when you have one ministry, let alone when you have three. What happens if Global Affairs Canada and Public Safety disagree? What if the determination changes? Do we have to ask every single day in certain contexts?
This is just adding another layer of bureaucracy to what is already a ridiculous process for organizations to have to go through. This is not a solution. This is not what the sector asked for. This is very clearly legislators, who have no idea what humanitarian and international development looks like on the ground, trying to make a decision for those organizations.
I disagree in general with Ms. McPherson, but I would be open to the idea of saying that there should be a timeline around the response. I would be curious to know what other members around the table think.
If the concern is that a government could, theoretically, maliciously not respond, or give bad information to certain organizations that it doesn't like, which was, I think, the implication, I don't think it's that likely in this process, but I also think that's a risk in general with an authorization regime, isn't it? An authorization regime involves the government authorizing activity or not. If the concern is a timely response to that initial request, though, I think that's a plausible subamendment. I would be open to hearing what others think on that.
Again, I think this is a good compromise. If that subamendment is not forthcoming, then we should just adopt the amendment.
I think it's always risky putting a timeline on it. While I agree with Ms. McPherson that we want it done in a timely way, for us to decide right now.... I think that's something we could do in regulations. Also, we know that this legislation will be up for review. If it turns out that it's not working, it's something that can be considered when it's up for review.
I don't think we can settle on a timeline today, to be honest with you. I think the message is loud and clear that we want it done, and that it must be done quickly, but again, I think that's something that's developed during the regulations, not put in the legislation itself.
I would just say too that in terms of a timeline, realistically, we have an under-resourced Global Affairs Canada that is not able to meet the timelines it's given already. We already know that you can set a timeline and it's not necessarily adhered to. That already happens.
I don't think it's worthwhile to be doing that, at this point.
With regard to NDP-7, basically, we heard during the testimony and we heard when we spoke to the sector that the term “links” is not defined anywhere in the legislation, nor does it carry any legal weight. The Aid for Afghanistan coalition shared this with us. We heard this time and time again. The language in the bill is too discretionary. It could risk guilt by association. That was something Ms. West clearly explained during her testimony. Because the term “links” is so vague, this could lead to the denial of applications based on conjecture of a relationship between the terrorist group and an applicant. It doesn't give the reassurance that organizations are looking for.
We therefore put forward this amendment, with some specific language used to assess the relationships between the applicant and the other parties.
Part (a) of this amendment replaces the term “links” with clear criteria that the minister will take into account.
Part (b) of the amendment replaces lines 2 to 7 on page 5, which mentions “is being or has been investigated”. It has been argued that the simple fact of being investigated or charged therefore presumes guilt, which opens the door to discriminatory or overly discretionary decisions.
We are asking for this just to provide the clarity that the sector has been asking for.
This ensures that a new application could be made after 30 days if the first application is rejected. Basically, it is adding “activity until the end of the 30th day after the day on”. It's pretty self-explanatory. It gives some clarity to the organizations.
NDP-10 clarifies and narrows the minister's power to request additional information. It ensures that it must relate only to the authorization or its renewal. It should be read, and we would like it to be referred to with NDP-11 as well.
The sector has argued that the powers granted to the minister in Bill C-41 are too broad and that Bill C-41 should clearly state what the requested information may be used for. It provides some of that and narrows the scope of the minister's powers.
I'm proposing a subamendment that would incorporate some of the additional language of CPC-1.1 into NDP-10. CPC-1.1 takes all of the language from NDP-10, but then adds to it. I'm proposing in the subamendment to add the additional part that's in CPC-1.1 to NDP-10.
I can read it out, but I think that's fairly clear. If the subamendment is adopted, NDP-10 will look the same as CPC-1.1 currently looks.
This, again, clarifies and narrows the minister's powers related to the security assessment. Right now, the bill grants the minister broad powers to ask any additional information, and this would limit that. It would clearly state what can be asked and would ensure that the minister destroys the information as soon as there are no longer reasonable grounds to believe the information is necessary to administer and enforce the authorization regime.
Mr. Chair, I would just say that I do not support this amendment. I don't think it's necessary in light of the revised version of NDP-10 that we passed. I think that achieves the same objectives. NDP-11 adds a whole bunch of other things and particulars that I don't think are required, given the other amendment.
This particular one is, again, coming with NDP-13. They would be included, so they should be considered together, I think, to some degree.
Basically, it is the idea of introducing the amicus curiae, who would be able to participate in hearings in the absence of the public and be able to be appointed, so that he or she would be able to provide that oversight in the event that we aren't allowed to have public hearings on certain things. It's basically just providing that additional level of support for organizations, that additional level of protection for them.
Again, this is the same, but we are now looking at making sure there is an amicus curiae who is there. This is setting out the rules to make sure there are these protections that are put in place as the minister is making decisions on organizations. This is giving the CSOs and the NGOs who are doing this work a fair, judicial process, so that their interests and rights would be considered and cared for. I think this is a very reasonable expectation that organizations should have: that they would be protected in this process. It gives the organizations the confidence that they are actually being given a fair trial, and it takes away the potential to weaponize this legislation.
We are talking about the most vulnerable people in the world. These are places in the world where things are moving very quickly, and it's very difficult. We also know that these are areas of the world that, on occasion, are weaponized by the Canadian government, to be perfectly honest. We want to make sure there are protections that are put in place, and this is one of those key protections that we should be putting in place to make sure that NGOs applying for the authorization under this regime are offered the fair, judicial process that they are entitled to.
NDP-14 clarifies the reporting and transparency as recommended in the brief that was given to the committee by the sector. This amendment would require that the minister table the annual report within the first 90 days of the calendar year instead of 180 days. It would also require the minister to disclose how many applications for authorizations were made, approved or refused in the previous year, and it would also require the minister to forward an unredacted report to NSICOP and NSIRA.
In recognition of the fact that there are a lot of questions about how this regime would work and the functioning of the bill, we have proposed an amendment that would significantly beef up the review requirements and move the timeline forward. It's basically asking the government to report back to the committee within a year, in a detailed way, about how well it's working and if further changes are required.
I think, given the urgency of passing Bill C-41, but also some of the questions about it, it makes sense for us to.... I think the approach we're taking is to pass it, but also to call for a quick review within a year to see if it is working or not.
We will support it but would like to subamend it to add “and every five years thereafter”. The initial review would be done after a year, but if we don't add this in, it gets reviewed once after a year and then never again. We would like to add “and every five years thereafter”, but we support the change that the Conservatives have put forward.
I want to thank everyone for their efforts. It's been a bumpier journey than we anticipated initially, I think, and I want to thank the members of the justice committee for their patience in letting us come in, usurp their committee and overtake their agenda for a while.
I acknowledge that not everyone thinks the bill is perfect. I don't think the bill is perfect, either, but I think it's something that, for those of us who.... Alexis and I sat on the special committee on Afghanistan. I know how deeply disturbed we were by what we heard, and this is one of the recommendations that came out of that report.
I want to thank everyone from all parties for their efforts to see us get here today.
Mr. Chair, thank you for letting us come here.
I just want to thank everyone. I really appreciate it.
I want to especially thank all of our visiting members for hashing this out and ironing a lot of this stuff out on their own time and saving us. I apologize for sometimes cancelling the meetings with very short notice due to some negotiations going back...but I really appreciate it.
I also want to thank the government officials who have, time and again, come out and given their valuable insight, like today. You didn't have to do anything, so it was great. Thank you so much.