First Session, Forty-fourth Parliament, 70-71 Elizabeth II – 1 Charles III, 2021-2022-2023

HOUSE OF COMMONS OF CANADA

BILL C-41 An Act to amend the Criminal Code and to make consequential amendments to other Acts

AS PASSED BY THE HOUSE OF COMMONS June 12, 2023

This enactment amends the Criminal Code in order to create a regime under which the Minister of Public Safety and Emergency Preparedness may authorize an eligible person to carry out, in a geographic area that is controlled by a terrorist group and for certain purposes, activities that otherwise would be prohibited under paragraph 83.‍03(b) of that Act (which becomes subsection 83.‍03(2)). It also makes consequential amendments to other Acts.

1st Session, 44th Parliament, 70-71 Elizabeth II – 1 Charles III, 2021-2022-2023

HOUSE OF COMMONS OF CANADA

BILL C-41

An Act to amend the Criminal Code and to make consequential amendments to other Acts

His Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

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, wilfully 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, wilfully 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.

Exception — authorization

(3) Subsection (2) does not apply to a person who carries out any of the acts referred to in that subsection under and in accordance with an authorization granted under section 83.‍032.

Exception — humanitarian assistance activities

(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.

Definition of Public Safety Minister

83.‍031 (1) In sections 83.‍032 to 83.‍0392, Public Safety Minister means the Minister of Public Safety and Emergency Preparedness.

Designation

(2) Any Minister referred to in any of sections 83.‍032 to 83.‍0392 may designate a person to exercise a power, or perform a duty or function, conferred on that Minister under those sections.

Authorization

83.‍032 (1) On application, the Public Safety Minister may authorize an eligible person 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 — for any specified purpose from among the following:

• (a) providing or supporting the provision of health services;

• (b) providing or supporting the provision of education services;

• (c) providing or supporting the provision of programs to assist individuals in earning a livelihood;

• (d) providing or supporting the provision of programs to promote or protect human rights;

• (e) 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

• (f) 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 paragraphs (a) to (e).

Control

(2) For the purposes of this section, a terrorist group controls a geographic area if the group exerts sufficient influence over the area such that the carrying out, in the area, of an activity involving property or financial or other related services could reasonably be expected to result in the terrorist group using or benefiting from the property or services, in whole or in part.

Minister’s obligation — information

(2.‍1) The Public Safety Minister must, at the request of an eligible person or an organization, provide to that person or organization information in writing about whether an authorization is required to carry out an activity or a class of activities in a given geographic area.

Limitation

(3) The Public Safety Minister must not, under subsection (1), authorize the making by a federal minister or a department or agency of the Government of Canada of a grant or contribution that is for the purpose of supporting any operations referred to in paragraph (1)‍(f).

Eligible persons

(4) A person is eligible to be granted an authorization if they are in Canada or are a Canadian outside Canada.

Referral

(5) The Public Safety Minister may consider an application only if it has been referred to them by

• (a) the Minister of Citizenship and Immigration, if the application is in respect of only the purpose set out in paragraph (1)‍(e);

• (b) the Minister of Foreign Affairs, if the application is not in respect of the purpose set out in paragraph (1)‍(e); or

• (c) both of those Ministers, if the application is in respect of two or more purposes set out in subsection (1), at least one of which is the purpose set out in paragraph (1)‍(e).

Conditions of referral

(6) The Minister of Foreign Affairs, the Minister of Citizenship and Immigration or both of those Ministers, as the case may be, may refer an application if they are satisfied that

• (a) the application meets any requirements set out in the regulations;

• (b) the geographic area identified in the application is controlled by a terrorist group;

• (c) the activity proposed in the application is to be carried out for any of the purposes set out in paragraphs (1)‍(a) to (f);

• (d) that activity responds to a real and important need in that geographic area; and

• (e) the applicant is capable of administering funds, and reporting on that administration, in a manner that is transparent and accountable, in circumstances in which a terrorist group may use or benefit from property or financial or other related services.

Deemed withdrawal

(7) An application may be deemed to be withdrawn by the Minister or Ministers who may refer it if the applicant has, within 60 days after the day on which the request is made, failed to comply with a request to provide information that ought to have been included in the application.

Assessment

(8) The Minister who refers an application must, as part of the referral, set out their assessment of how the application meets the conditions set out in paragraphs (6)‍(a) to (e).

Conditions for grant

(9) The Public Safety Minister may grant the authorization under subsection (1) if they are satisfied that

• (a) there is no practical way to carry out the activity proposed in the application without creating a risk that, in whole or in part, a terrorist group will use or benefit from the property or financial or related services at issue; and

• (b) the benefits of carrying out of that activity outweigh that risk, taking into account

  • (i) the referral of the Minister of Foreign Affairs, the Minister of Citizenship and Immigration or both of those Ministers, as the case may be,

  • (ii) the security review conducted by the Public Safety Minister under subsection (10),

  • (iii) any mitigation measures to minimize that risk, and any other terms and conditions, that may be included in the authorization, and

  • (iv) any other factor that the Public Safety Minister considers appropriate in the circumstances.

Security review

(10) In conducting a security review, the Public Safety Minister must assess the impact of granting the authorization on the financing of terrorism, and in doing so may consider, among other factors,

• (a) whether the applicant or any person who is to be involved in carrying out the activity proposed in the application has any links to a terrorist group;

• (b) the likelihood that the applicant or any person who is to be involved in carrying out that activity will be acting for the benefit of, at the direction of or in association with a terrorist group in carrying out the activity; and

• (c) whether the applicant or any person who is to be involved in carrying out that activity is being or has been investigated for having committed a terrorism offence or has ever been charged with a terrorism offence.

Additional information

(11) The Public Safety Minister may request that the applicant provide any additional information in respect of the application in the form and manner, and within the period, that are specified by that Minister. If the applicant fails, without reasonable excuse, to provide the information within the specified period, that Minister may deem the application to be withdrawn.

Terms and conditions

(12) The Public Safety Minister may make the authorization subject to any terms and conditions that, in their opinion, are required.

Third party involvement

(13) An authorization applies not only to the person to whom it is granted but also to any other person involved, directly or indirectly, in carrying out a specified activity in accordance with the authorization.

Period of validity

(14) An authorization is valid for the period of not more than five years that is specified in the authorization.

Decisions of the United Nations Security Council

(15) In the case of an activity proposed in an application in the course of which property or financial or other related services will be used by or will benefit a listed entity that is subject to a sanctions regime established by the Security Council of the United Nations, the Public Safety Minister may authorize the carrying out of that activity only if the Minister of Foreign Affairs confirms that

• (a) the Security Council did not intend that the activity be prohibited;

• (b) the Security Council or a Committee established by the Security Council has approved the activity in advance; or

• (c) in the opinion of the Minister of Foreign Affairs, there is no obstacle in international law to granting the authorization.

Statutory Instruments Act

(16) The Statutory Instruments Act does not apply to an authorization.

Notice of refusal

83.‍033 (1) The Public Safety Minister, the Minister of Foreign Affairs or the Minister of Citizenship and Immigration, as the case may be, must give notice of a decision to refuse an application made under section 83.‍032 to the applicant within a reasonable time.

Waiting period — new application

(2) An applicant whose application is refused is not permitted to make a new application in respect of the same activity until the end of the 30th day after the day on which the notice is given, unless the Minister who gave the notice is satisfied that there has been a material change of circumstances.

Consideration of new application without referral

(3) If the Public Safety Minister gave the notice and is satisfied as described in subsection (2), that Minister may consider the new application without it having been referred under subsection 83.‍032(5). In that case, that Minister may take into account the referral of the previous application for the purposes of subparagraph 83.‍032(9)‍(b)‍(i).

Additional security reviews

83.‍034 At any time during the period of validity of an authorization granted under section 83.‍032 or renewed under section 83.‍035, the Public Safety Minister may conduct additional security reviews under subsection 83.‍032(10) in respect of any person to whom the authorization applies. For the purpose of those reviews, that Minister may request that the person to whom the authorization is granted provide any additional information in the form and manner, and within the period, that are specified by that Minister, but the request must relate only to the authorization or its renewal.

Renewal of authorization

83.‍035 (1) The Public Safety Minister may renew an authorization granted under section 83.‍032 for successive periods of not more than five years each on application, for each renewal, made within any period set out in the regulations and before the authorization expires.

Exception

(2) Despite subsection (1), if an application for renewal is made after the authorization expires, the Public Safety Minister may renew the authorization if, in that Minister’s opinion, there are exceptional circumstances that justify why the application for renewal was not made before it expired.

Amendment to authorization

83.‍036 (1) The Public Safety Minister may amend an authorization granted under section 83.‍032 or renewed under section 83.‍035, including any terms and conditions included in it.

Exception

(2) Despite subsection (1), the Public Safety Minister is not permitted to amend an authorization if the amendment would be so significant as to change the essential nature of the authorization, including if the amendment would replace a purpose set out in subsection 83.‍032(1) and specified in the authorization or add another such purpose.

Supporting information

(3) The person to whom the authorization is granted must provide to the Public Safety Minister any information specified by that Minister in support of the amendment.

Authorization — suspension and revocation

83.‍037 The Public Safety Minister may, at any time after granting an authorization under section 83.‍032, suspend or revoke it or restrict its scope if

• (a) a person to whom the authorization applies fails to comply with the authorization, including any terms and conditions included in it;

• (b) the person to whom the authorization is granted fails, without reasonable excuse, to comply with any reporting requirements or to provide any information requested under section 83.‍034; or

• (c) the Public Safety Minister is no longer satisfied that the condition set out in paragraph 83.‍032(9)‍(b) is met.

Assistance to Public Safety Minister

83.‍038 (1) The following entities may assist the Public Safety Minister in the administration and enforcement of sections 83.‍031 to 83.‍0392, including by collecting information from and disclosing information to that Minister and each other:

• (a) the Canadian Security Intelligence Service;

• (b) the Royal Canadian Mounted Police;

• (c) the Communications Security Establishment;

• (d) the Department of National Defence;

• (e) the Canadian Armed Forces;

• (f) the Department of Foreign Affairs, Trade and Development;

• (g) the Canada Revenue Agency;

• (h) the Canada Border Services Agency;

• (i) the Department of Citizenship and Immigration; and

• (j) any other entity prescribed by regulation.

Use of information

(2) Any information collected or disclosed under subsection (1) must only be used for the administration and enforcement of sections 83.‍031 to 83.‍0392.

Compliance with subsection (2)

(3) The Public Safety Minister must take reasonable steps to ensure that any entity assisting that Minister under subsection (1) complies with subsection (2).

Judicial review

83.‍039 (1) The rules set out in subsection (2) apply to judicial review proceedings in respect of decisions made by the Public Safety Minister, the Minister of Foreign Affairs or the Minister of Citizenship and Immigration under sections 83.‍032 to 83.‍038.

Rules

(2) The following rules apply for the purposes of subsection (1):

• (a) at any time during the proceeding, the judge must, on the request of the relevant Minister, hear submissions on evidence or other information in the absence of the public and of the applicant and their counsel if, in the judge’s opinion, the disclosure of the evidence or other information could be injurious to international relations, national defence or national security or could endanger the safety of any person;

• (a.‍1) the judge may allow an amicus curiae who is appointed in respect of the proceeding to participate in a hearing under paragraph (a) and to review the evidence or other information that is the subject of the hearing;

• (b) the judge must ensure the confidentiality of the evidence and other information provided by the relevant Minister if, in the judge’s opinion, its disclosure would be injurious to international relations, national defence or national security or would endanger the safety of any person;

• (c) the judge must ensure that the applicant is provided with a summary of the evidence and other information available to the judge that enables the applicant to be reasonably informed of the reasons for the relevant Minister’s decision but that does not include anything that, in the judge’s opinion, would be injurious to international relations, national defence or national security or would endanger the safety of any person if disclosed;

• (d) the judge must provide the applicant and the relevant Minister with an opportunity to be heard;

• (e) the judge may base their decision on evidence or other information available to them even if a summary of that evidence or other information has not been provided to the applicant;

• (f) if the judge determines that evidence or other information provided by the relevant Minister is not relevant or if the relevant Minister withdraws the evidence or other information, the judge must not base their decision on that evidence or other information and must return it to the relevant Minister; and

• (g) the judge must ensure the confidentiality of all evidence and other information that the relevant Minister withdraws.

Protection of information on an appeal

(3) Subsection (2) applies to any appeal of a decision made by a judge in relation to the judicial review proceedings referred to in subsection (1) and to any further appeal, with any necessary modifications.

Definition of judge

(4) In this section, judge means the Chief Justice of the Federal Court or a judge of that Court designated by the Chief Justice.

Regulations

83.‍0391 The Governor in Council may, on the recommendation of the Public Safety Minister, make regulations

• (a) respecting applications for authorization referred to in subsection 83.‍032(1);

• (a.‍1) respecting requests and the provision of information under subsection 83.‍032(2.‍1);

• (b) respecting the granting, renewal, amendment, suspension, revocation or restriction of the scope of authorizations by the Public Safety Minister for the purposes of sections 83.‍032 and 83.‍035 to 83.‍037;

• (c) respecting reporting by the person to whom an authorization is granted under section 83.‍032 for the purpose of ensuring compliance with the authorization and with any terms and conditions included in it under subsection 83.‍032(12); and

• (d) prescribing any other entity for the purpose of paragraph 83.‍038(1)‍(j).

Annual report

83.‍0392 (1) The Public Safety Minister must prepare and cause to be laid before each House of Parliament, within 90 days after the first day of January of every year, a report on the operation of sections 83.‍031 to 83.‍0391 for the previous calendar year.

Number of applications for authorizations

(1.‍1) The report under subsection (1) must set out the number of applications for authorizations made, approved or refused in the previous calendar year.

Redactions

(1.‍2) If the report under subsection (1) contains any redactions, the Public Safety Minister must forward the unredacted report to the National Security and Intelligence Committee of Parliamentarians as well as the National Security and Intelligence Review Agency.

Comprehensive review and report

(2) A comprehensive review of sections 83.‍031 to 83.‍0391 and their operation must be conducted by the Public Safety Minister no later than the first anniversary of the day on which this section comes into force. The Public Safety Minister must cause a report to be laid before each House of Parliament within 180 days after that first anniversary and every five years thereafter.

Plan to remedy deficiencies

(3) If the report identifies any deficiencies in sections 83.‍031 to 83.‍0391 or their operation, the report must include a plan to remedy those deficiencies — including any proposed legislative amendments — and a timeline for its implementation.

• (xii.‍2) subsection 83.‍03(1) (providing, making available, etc.‍, property or services for terrorist purposes),

• (xii.‍21) subsection 83.‍03(2) (providing, making available, etc.‍, property or services — use by terrorist group),

• (e) subsections 83.‍03(1) and (2) (providing, making available, etc.‍, property or services for terrorist purposes and providing, making available, etc.‍, property or services — use by terrorist group);

• (xiv) to an official solely for the purposes of a security review under subsection 83.‍032(10) or section 83.‍034 of the Criminal Code, if the information can reasonably be considered to be relevant to the security review;

• (xxiii) to an official solely for the purposes of a security review under subsection 83.‍032(10) or section 83.‍034 of the Criminal Code, if the information can reasonably be considered to be relevant to the security review;

• (xv) to an official solely for the purposes of a security review under subsection 83.‍032(10) or section 83.‍034 of the Criminal Code, if the information can reasonably be considered to be relevant to the security review;