On March 9, 2023, the Canadian government tabled Bill C-41, An Act to amend the Criminal Code and to make consequential amendments to other Acts where it also passed through First reading.

Bill C-41, if passed in its current iteration, will amend the Criminal Code to create a legal regime whereby the Minister of Public Safety and Emergency Preparedness (“Minister of Public Safety”) may authorize certain eligible persons to carry out certain humanitarian or aid activities in geographic areas under the control of a terrorist group. Such activities would otherwise be prohibited by paragraph 83.03(b) of the Criminal Code.

Current Legal Environment

Currently, paragraph 83.03 of the Criminal Code makes it an offence to provide, both directly and indirectly, material support to a group that the individual knows or intends will use the material support to carry out any terrorist activity or will be used to benefit a terrorist group.

This provision of the Criminal Code made it illegal, for example, for a Canadian charity to provide material support to groups in geographic areas under the control of terrorist groups because the Canadian charity would usually be unable to be absolutely sure that their aid would not benefit the terrorist group in some way.

Authorization Framework Under Bill C-41

Bill C-41 does not change the legality of providing material support for the purposes of facilitating a terrorist activity, this remains prohibited. However, individuals in Canada or Canadians outside of Canada will be able to apply under Bill C-41 for authorization to conduct certain charitable or humanitarian aid work even where they cannot be positive that the aid will not eventually end up being used by the terrorist group that controls the geographic area.

The Minister of Public Safety may authorize the provision of material support if (1) the material support is provided for one of the acceptable purposes listed (a)-(g) below and (2) the Minister of Public Safety is satisfied that:

1. 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 service at issue; and
2. The benefits of carrying out that activity outweigh that risk, taking into account:

i. The referral of the Minister of Foreign Affairs or the Minister of Citizenship and Immigration or the referral by the both of them, as the case may be,

ii. A security review conducted by the Minister of Public Safety,

iii. Any mitigation measures to minimize the risk, and any other conditions that may be included in the authorization of the Minister of Public Safety, and

iv. Any other factor the Minister of Public Safety considers appropriate in the circumstances.

Acceptable Purposes:

(a) Providing or supporting the provision of humanitarian assistance, including assistance for the purpose of saving lives or alleviating the suffering of a population that is affected by a crisis or that has immediate and acute needs,

(b) Providing or supporting the provisions of health services,

(c) Providing or supporting the provision of education services,

(d) Providing or supporting the provision of programs to assist individuals in earning a livelihood,

(e) Providing or supporting the provision of programs to promote or protect human rights,

(f) 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

(g) Supporting any operation 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 (f).

Importantly, the Minister of Public Safety may only consider an application if the application is referred to them by either the Minister of Citizenship and Immigration (if the application is relevant to (f) above) or the Minister of Foreign Affairs if the application is relevant to any of the other above purposes.

The Minister of of Citizenship and Immigration or the Minister of Foreign Affairs may refer an application to the Minister of Public Safety if:

1. The application meets any requirements set out in future regulations,
2. The geographic area identified in the application is controlled by a terrorist group,
3. The activity proposed in the application is to be carried out for any of the acceptable purposes listed above (a) to (g),
4. The proposed activity responds to a real and important need in that geographic area, and
5. 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 services.

Therefore, taken as a whole, this new legal regime has the potential to streamline, simplify, and clarify the legal environment that charitable groups are operating in when they seek to provide humanitarian aid in geographic regions under the control of terrorist entities.

Our team will continue to monitor Bill C-41 as it proceeds throughout the House of Commons and eventually the Senate, providing updates to keep clients informed.