2023 Annual Report of the Minister of Public Safety Concerning Criminal Code sections 83.031 to 83.0391: A Regime to Authorize Certain Activities in a Geographic Area that is Controlled By a Terrorist Group

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Canada’s strong anti-terrorist financing Criminal Code provisions play an important role in supporting Canada’s counter-terrorism efforts, including countering the evolving threat of terrorism, addressing domestic security considerations, and meeting international obligations to prevent and suppress terrorist financing. However, the Taliban takeover of Afghanistan in August 2021 highlighted the limitations that the Criminal Code terrorist financing provisions placed on the Government of Canada, Canadian charities, not-for-profit organizations, Canadian banks, and civil society to deliver international assistance or facilitate safe passage out of areas controlled by a terrorist group. Making any property available, directly or indirectly, to the de facto national authority in Afghanistan would inevitably benefit a terrorist group, as such activities would likely involve incidental payments to the Taliban in the form of taxation and risk violating the counter-terrorist financing provisions under section 83.03 of the Criminal Code.

The Taliban takeover of Afghanistan prompted a re-evaluation of Canada’s anti-terrorist financing provisions. In June 2023, Bill C-41 An Act to amend the Criminal Code and to make consequential amendments to other Acts received Royal Assent, thereby amending the specific Criminal Code terrorist financing provision to include a distinct exception for humanitarian assistance as well as a process to authorize the delivery of specific activities for certain purposes in a geographic area that is controlled by a terrorist group - activities that would otherwise be prohibited under subsection 83.03(2) of the Criminal Code due to an unavoidable and incidental benefit that may accrue to a terrorist group. To operationalize this, Public Safety (PS), in close coordination with partnering departments and agencies are currently working to stand up an Authorization Regime.

The humanitarian exception has been in force since the passage of Bill C-41 in June 2023 and does not require an application process in order to minimize delays in the delivery of urgent, life-saving assistance.

Under the Authorization Regime, the Minister of Public Safety may grant an authorization to eligible persons to shield from criminal liability specific activities for certain purposes in a geographic area that is controlled by a terrorist group - activities that would otherwise be prohibited under subsection 83.03(2) of the Criminal Code due to an unavoidable and incidental benefit that may accrue to a terrorist group. 

This regime balances the need to maintain the strong anti-terrorist financing provisions included in the Criminal Code and advance national counter-terrorism efforts included in PS’ mandate with the imperative to facilitate the delivery of needed activities.

The Authorization Regime will include a robust system of checks-and-balances, including a national security review of each application and will impose reporting requirements on authorization holders to mitigate the risk of terrorism financing.

PS, in close coordination with partnering departments and agencies, is currently working to balance the public interest in the Authorization Regime and the imperative to launch this initiative with the importance of ensuring that the necessary tools and policies, such as internal governance and public facing materials, are in place to support the effective launch and administration of the Authorization Regime. Work is ongoing to operationalize the Authorization Regime and PS intends to publicly launch this regime in Spring 2024.

As a measure of accountability, pursuant to section 83.0392(1) of the Criminal Code, the Minister of Public Safety is required to prepare an annual report on the operation of sections 83.031 to 83.0391 for the previous calendar year.

The 2023 Annual Report covers the period from June 20, 2023, to December 31, 2023, and is organized in the following manner:

Section I - Overview of Section 83.03 of the Criminal Code and Reporting Requirements under Subsection 83.0392(1.1)

Subsection 83.03(3) of the Criminal Code created an Authorization Regime permitting the Minister of Public Safety, or a delegated authority, upon a referral from the Minister of Foreign Affairs and/or the Minister of Immigration, Refugees, and Citizenship Canada, to grant an authorization to eligible persons to shield from criminal liability needed activities in a geographic area that is controlled by a terrorist group and, for certain purposes, specific activities that would otherwise be prohibited under subsection 83.03(2) of the Criminal Code. These activities include health services, education services, programs to assist individuals in earning a living, human rights programs, immigration and safe-passage related services, and other operations of the Government of Canada, including consular assistance.

While the current situation in Afghanistan prompted the legislative change, the provisions are not restricted to Afghanistan and would apply to other geographic regions controlled by a terrorist group.

In order to provide potential applicants with more clarity on the need for an authorization, they may elect to submit a request to the Minister of Public Safety, who must provide them with written information as to whether an authorization is required based on their circumstances. However, potential applicants are encouraged to seek legal advice with regard to decisions on whether to make an application.

Applications for authorizations will be assessed on a case-by-case basis, with the aim of balancing the risk of terrorist financing with the benefit of the proposed activity. If granted, an authorization would serve to shield authorization holders from criminal liability related to this terrorist financing offence.

Pursuant to subsection 83.0392(1.1), the Minister of Public Safety must make available the total number of applications for authorizations received, approved or refused in the previous calendar year. Efforts to launch the Authorization Regime are ongoing and PS did not receive any applications in 2023.

Section II – Progress on Operationalizing the Authorization Regime

Since June 2023, PS has continued to lead interdepartmental efforts to launch the Authorization Regime. This work has required extensive input and the consideration of many departments and agencies, as well as broad consultation with internal services. PS has led efforts to develop public-facing materials as well as policies to govern this regime in close coordination with Global Affairs Canada (GAC), Immigration, Refugees and Citizenship Canada, the Royal Canadian Mounted Police (RCMP) and other partnering departments and agencies to ensure that this initiative is efficiently and effectively administered and to ensure that the public, including potential applicants, are provided with clear and informative resources.

To support the launch of the Authorization Regime, PS led on the preparation of a Treasury Board (TB) Submission which sought access to funding over two years (Fiscal Year 2023-24 and 2024-25) for PS and the RCMP. This submission also identified funds to be transferred to GAC for the design and development of an online application interface and case management tool. This submission was approved by the TB on December 7, 2023. With the approval of this submission, PS secured the necessary resources to launch the Authorization Regime by Spring 2024. The operationalization of the regime includes:

PS, alongside partnering departments and agencies, have continued to engage with stakeholders, including individuals and organizations who may seek an authorization in the future. PS hosted informational briefings for stakeholders in July 2023 and March 2024 and sought stakeholder input on key public-facing documents, including the Operational Policy Guidance document and the application form in August 2023. The feedback received has since been integrated into these documents where possible to enhance their accessibility and usability for stakeholders.

Furthermore, PS continues to work with security and intelligence partners to ensure that the Authorization Regime will include a thorough security review and risk assessment process for all referred applications, as well as rigorous and consistent enforcement and compliance monitoring of granted authorizations.

PS has continued to work in coordination with a number of departments and agencies from across government including GAC, IRCC, RCMP, the Canadian Security Intelligence Service, Communications Security Establishment, the Department of Justice, the Department of Finance, and the Canada Revenue Agency (CRA). Implicated departments and agencies have undertaken steps to support the launch and ongoing administration of the Authorization Regime. These activities are outlined below.

Global Affairs Canada

Between July and October 2023, GAC stood up a new work unit dedicated to establishing and administering the Authorization Regime, in consultation with implicated divisions across the Department. Work of the unit included the development of internal policy, processes and standard operating procedures to conduct GAC assessments of applications to the Authorization Regime in a consistent and efficient manner. The unit also supported PS’ drafting of key guidance materials, detailed application forms and a PIA. Work was also initiated by GAC to design and build an online interface to receive applications in a secure and user-friendly format. Further, GAC began testing forms and processes via initial work on applications for authorizations for GAC-funded programming in Afghanistan. Finally, throughout 2023, GAC met regularly with stakeholders to respond to inquiries regarding the humanitarian exception and Authorization Regime.

Immigration, Refugees and Citizenship Canada

In collaboration with Canadian federal government departments and non-governmental partners, IRCC is supporting the implementation of the Authorization Regime. Many IRCC clients are still in Afghanistan, a geographic area controlled by a designated terrorist organization where Canada does not have a presence. This restricts our ability to process immigration applications fully unless clients are in a third country. IRCC clients may face great risks when attempting to leave Afghanistan or are simply unable to make the journey to a third country unassisted, in order to complete the final stages of processing. IRCC has been working with like-minded countries, partners in the region, and non-government organizations, to support safe passage of Afghan clients. IRCC has also been working closely with PS and GAC in anticipation of the launch of the Authorization Regime. IRCC has developed internal guidance and procedures in anticipation of the implementation of the Authorization regime, and continues to monitor the developments closely.

Royal Canadian Mounted Police

Over the past several months the RCMP has been steadily progressing toward implementing and operationalizing a new unit within Federal Policing National Security to support the Minister of Public Safety and other Canadian government agencies in its security review for the new Authorization Regime. The RCMP fully participated in Government of Canada and internal consultations with respect to the planning of this regime including the PIA, and GBA+. To date, no applications have been received as the implementation is still under way. RCMP internal discussions are ongoing for implementation, standard operating procedures, methodology, templates and IT / data management strategies. Treasury Board funding was secured in late 2023 and staffing initiatives are ongoing to ensure the implementation occurs in a timely manner. The RCMP has filled one of six TB Submission funded positions, and is committed to ensuring proper procedures and policies are in place to protect the security of information, as well as to ensure sufficient resources are available to meet client service standards and expectations.

Canada Revenue Agency

The CRA plays a supporting role in the Authorization Regime by sharing relevant taxpayer information with regime partners in support of a security review under subsection 83.032(10) or section 83.034 of the Criminal Code. The CRA continues to work with partners to meet the needs and expectations in administering the Authorization Regime with respect to responsible information sharing to conduct security reviews. The CRA also contributed to the multi-institutional PIA in relation to its supporting role in the Authorization Regime.

Finance Canada

The Department of Finance Canada (FIN) oversees the policy and legislative framework for Canada’s anti-money laundering (AML)/anti-terrorist financing (ATF) Regime, advises the Government of Canada on domestic and international AML/ATF policies, and is responsible for the Proceeds of Crime (Money Laundering) and Terrorist Financing Act and related Regulations. In relation to the Authorization Regime, the Department has been working with PS to ensure the new program is accounted for and aligned with Canada’s continued efforts to fully implement global AML/ATF standards set by the Financial Action Task Force. FIN is also coordinating efforts to strengthen outreach to the non-profit sector in Canada on matters related to terrorism financing and welcomed stakeholder views through a public consultation process launched in June 2023. The consultation also covered a broad range of other issues related to AML/ATF.

Section III – Anticipated Timeline for Launching the Authorization Regime and Next Steps

Efforts are ongoing to operationalize the Authorization Regime. PS intends to launch this regime by Spring 2024 and will work towards achieving full operational capacity by late 2024.

Currently, the Authorization Regime has funding in place until March 2025 and securing ongoing funding to support the operations and administration of this initiative will be necessary. PS will dedicate resources to addressing this funding requirement.

Following the launch of the Authorization Regime and on an ongoing basis, PS and implementing partners from across government will continue to work to ensure that the public and potential applicants are provided with the necessary resources, and to ensure a clear and user-friendly application and review process. This includes developing service standards to increase the transparency of the Authorization Regime for applicants and the public.

As outlined in subsection 83.0392(2) of the Criminal Code, a comprehensive review of sections 83.031 to 83.0391 and their operation must be conducted by the Minister of Public Safety no later than the first anniversary of the day on which this section comes into force (June 20, 2023) and a report must be submitted within 180 days after that first anniversary. PS will lead this review, supported by implementing partners and agencies.

Finally, PS will also direct the necessary resources to ensuring the completion of the 2024 Annual Report on the Authorization Regime which will include thorough reporting on the first year of operations of this regime.

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