Bill C-41, An Act to amend the Criminal Code and to make consequential amendments to other Acts (Bill C-41), received royal assent on June 20, 2023. Bill C-41 has created a regime that allows eligible persons to carry out certain humanitarian aid activities in areas controlled by terrorist groups. Prior to Bill C-41, these activities would have been prohibited under subsection 83.03(b) of the Criminal Code, RSC 1985, c C-46.¹

Background

Afghanistan has been under the control of the Taliban – a terrorist group as defined under the Criminal Code – since August 2021. The Taliban’s rise to power created hurdles for humanitarian organizations seeking to operate in Afghanistan. The Criminal Code’s provisions made it challenging for these organizations to provide humanitarian aid, as any resources sent to Afghanistan had the possibility of being used by, or to the benefit of, the Taliban.

Bill C-41 has established a regime that carved out two exceptions which serve to balance the application of the stringent laws against terrorist financing provided under the Criminal Code. The exceptions act as pathways for humanitarian aid organizations to operate and conduct certain activities without fear of criminal sanctions.

Key insights of Bill C-41

Eligible persons can now conduct humanitarian assistance or development activities in geographical areas controlled by terrorists.

• Two new exceptions to subsections 83.03 (1) and (2) of the Criminal Code allow for organizations to conduct specific activities in areas controlled by terrorists without fear of criminal sanctions.
• The first exception is for humanitarian assistance activities conducted under the auspices of impartial humanitarian organizations. This is a self-execution form of exemption that allows organizations to begin activities immediately if they fit the criteria of the exception.
• The second exception is for a specified activity or specified class of activities that require authorization from the Minister of Public Safety. This exception involves an application process, and a successful application results in an authorization that is valid for five years, after which it can be renewed. Refused applicants can reapply after 30 days as well.

The criminal regime against terrorist financing

The Criminal Code continues to impose liability against persons who provide property or services for the use by, or to the benefit of, terrorist groups. The amended Criminal Code subsections are provided below:

Providing, making available, etc., property or services for terrorist purposes

83.03 (1) Every person is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years who, directly or indirectly, willfully and without lawful justification or excuse, collects property or provides, invites a person to provide or makes available property or financial or other related services, intending that they be used, or knowing that they will be used, in whole or in part, for the purpose of facilitating or carrying out any terrorist activity, or for the purpose of benefiting any person who is facilitating or carrying out such an activity.

Providing, making available, etc., property or services — use by terrorist group

(2) Every person is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years who, directly or indirectly, willfully and without lawful justification or excuse, collects property or provides, invites a person to provide or makes 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.²

Exceptions

Subsections 83.03 (1) and (2) are followed by two exceptions that carve out pathways for organizations to operate in geographical areas controlled by terrorists:

• Humanitarian Assistance Activities; and
• Authorization for Specified Activities.

Humanitarian assistance activities

The first exception is for those organizations or individuals that carry out prohibited activities that constitute a criminal offence under subsections 83.03 (1) and (2) but do so only to carry out humanitarian assistance activities. The provision reads as:

(4) Subsections (1) and (2) do not apply to a person who carries out any of the acts referred to in those subsections for the sole purpose of carrying out humanitarian assistance activities conducted under the auspices of impartial humanitarian organizations in accordance with international law while using reasonable efforts to minimize any benefit to terrorist groups.³

This allows organizations to undertake work with the knowledge that Canadian law supports these endeavours without requiring special permissions to do so. This subsection is a self-execution form of exemption, which allows organizations to begin their work immediately if they conclude they fit the criteria listed above.⁴ Organizations can conduct risk assessments of their own and find avenues to conduct their humanitarian assistance activities in an impartial way that is in accordance with international law and makes a genuine attempt to minimize any benefit to terrorist groups. If the organization is satisfied that it meets this criteria, then it can undertake its activities without seeking permission.

Regulations expected in the coming months may address the criteria for an activity to be considered humanitarian assistance and the threshold to determine whether reasonable efforts to minimize benefit to terrorist groups have been made.

Authorization for specified development activities

The second pathway is an exemption authorized by the Minister of Public Safety to “carry out, in a specified geographic area that is controlled by a terrorist group, a specified activity that would otherwise be prohibited under subsection 83.03(2) — or a specified class of such activities.”⁵ The list of purposes for which the Minister of Public Safety can authorize activities in the specific geographic area is as follows:

1. Providing or supporting the provision of health services;
2. Providing or supporting the provision of education services;
3. Providing or supporting the provision of programs to assist individuals in earning a livelihood;
4. Providing or supporting the provision of programs to promote or protect human rights;
5. Providing or supporting the provision of services related to immigration, including services related to the resettlement of individuals and the safe passage of individuals from one geographic area to another; and
6. Supporting any operations of a federal minister or a department or agency of the Government of Canada that are conducted for a purpose other than one set out in any of the paragraphs (a) to (e).⁶

Before receiving authorization, the applicant must be referred to the Minister of Public Safety by either the Minister of Citizenship and Immigration, or the Minister of Foreign Affairs, or both, depending on the purpose under which they are applying.⁷ Once this referral is received, the Minister of Public Safety ensures that there is no other practical way of carrying out the activity that does not create a risk of the terrorist group using, or benefiting from, any property or resources as a result. The Minister will also check to see if the benefits outweigh this potential risk, taking into account several factors.⁸ Organizations can also expect a security review to be conducted by the Minister before a final decision is made.

If authorization is granted, it will be valid for a period of five years, after which it can be renewed.⁹ However, if the application is rejected, the organization can reapply after 30 days.¹⁰

Recommended next steps and moving forward

Much remains unanswered with the implementation of the Bill C-41 amendments, but we expect regulations in the coming months to provide further clarity and ensure humanitarian organizations can begin to rely on the exemptions in a timely manner. Until then, organizations can evaluate their operations and activities in regions controlled by terrorists and determine whether they can utilize these exemptions to continue their great work.

For more information please contact the authors Pamela Shin and Raphael Eghan. Special thanks to Dalraj Gill, who assisted in preparing this insight.

1. Criminal Code, RSC 1985, c C-46. ↩
2. An Act to amend the Criminal Code and to make consequential amendments to other Acts, SC 2023, c 14, s 83.03. ↩
3. Ibid, s 83.03(4). ↩
4. YouTube. (2023). C-41: We Need to Help Vulnerable People in Afghanistan Now. YouTube. Retrieved from https://www.youtube.com/watch?v=r_5noXfHLik ↩
5. An Act to amend the Criminal Code and to make consequential amendments to other Acts, SC 2023, c 14, s 83.02(1). ↩
6. An Act to amend the Criminal Code and to make consequential amendments to other Acts, SC 2023, c 14, s 83.032(9). ↩
7. Ibid, s 83.032(6). ↩
8. Ibid, s 83.032(9). ↩
9. Ibid, s 83.035(1). ↩
10. Ibid, s 83.033(2). ↩