The Hon. the Speaker: I think the “yeas” have it.

And two honourable senators having risen:

The Hon. the Speaker: I see two senators rising. Do we have agreement on the bell?

The Hon. the Speaker: Are senators ready for the question?

The Hon. the Speaker: Those in favour of the motion will please say “yea.”

Hon. Ratna Omidvar moved second reading of Bill C-41, An Act to amend the Criminal Code and to make consequential amendments to other Acts.

She said: Honourable senators, I rise to speak to Bill C-41, An Act to amend the Criminal Code and to make consequential amendments to other Acts. Bill C-41 will create a regime to facilitate the delivery of certain types of international assistance in geographic areas controlled by terrorist groups. I will try my best to be brief but also comprehensive because, for many of you, this is the first time that you have heard about this bill.

The story of Bill C-41 begins in August 2021, with the fall of the Afghanistan regime in Kabul to the Taliban, which has had many dire consequences that have been raised in this chamber by my colleagues Senator Jaffer, Senator McPhedran and Senator Ataullahjan.

The consequences have been felt by the people of Afghanistan — the young people and, most particularly, women and girls. There has also been a humanitarian impact with infant mortality on the rise because of the lack of medication, water, food and other life-saving interventions. Millions of Afghans have suffered through drought, earthquakes and other humanitarian disasters, and, of course, due to the repression by the Taliban.

The Taliban was and is a pariah in the world. Canada listed the Taliban as a terrorist entity many years ago. Now that it is the government, Canadians are prevented by law from paying any taxes or fees to it. This has a direct impact on aid to Afghanistan because when you are delivering aid, by default you have to access services and, therefore, directly or indirectly pay fees and taxes to the government of the Taliban — which may then use it for their own terrorist purposes. By doing so, any Canadian, or Canadian organization, can be charged criminally. Canadian aid to Afghanistan through our international development agencies, including agencies like the Afghan Women’s Organization, which runs an orphanage in the Helmand region, has been blocked.

This bill is long overdue, in my view — it has been a little too long in the making. The Canadian international aid community identified this problem over a year ago, and came together in a coalition which they called the Aid for Afghanistan humanitarian coalition. There are 13 international aid agencies working together in times of disaster with a combined presence in 140 countries. They include World Vision, the Red Cross, CARE, Action Against Hunger, Canadian Foodgrains Bank, Canadian Lutheran World Relief, Doctors of the World, Humanity & Inclusion, Islamic Relief, Oxfam, Oxfam-Québec, Plan International and Save the Children.

I want to thank the Senate Human Rights Committee, chaired by Senator Ataullahjan, for its timely work on this issue. Last year, the committee produced an important report that gave voice to the concerns of the aid community, and provided many practical steps forward. Some of the central recommendations of the report have been included in Bill C-41. This is an example of a committee doing its work as it should.

As some of you may know, I have been involved with the Afghanistan issue in Canada through my work with Lifeline Afghanistan. But frankly, we need to now throw a lifeline to Afghanistan because of the context that you know, but let me describe it: Afghans have faced 40 years of conflict, and they have tried to survive this on top of staying resilient through many natural disasters, such as widespread poverty, unprecedented migration and, of course, earthquakes. If that wasn’t enough, delivering aid to Afghanistan is already complicated due to its geography.

The de facto authority in Afghanistan, whether we like it or not, is the Taliban, and the delivery of aid, as I pointed out, one way or the other, will benefit this terrorist organization by default. As a result, Canadian aid organizations, including departments of the Government of Canada, risk inadvertently breaking the law if they attempt to provide aid within Afghanistan. As a result, Afghans continue to suffer, their lives continue to be at risk and they need our help, even with the most basic elements for survival: food, shelter, protection, education and health care. We must be able to deliver it to them, and to others in this situation, without distinguishing where the lives are at risk or which jurisdiction they fall under.

That’s why the proposed amendments to the Criminal Code are critical. As the sponsor of Bill C-41, I would like to take a few moments to explain why, and delve into some detail. Currently, the Criminal Code contains very strong counterterrorism financing provisions, and that is as it should be. Specifically, under section 83.03(b), it is prohibited to directly or indirectly provide or make property available, knowing it could be used by or will benefit a terrorist group. These provisions, as I outlined, are having an extremely significant impact on Canada’s aspirations on the global stage to provide aid to people whose lives are at risk.

The bill essentially creates two paths. One is for impartial humanitarian assistance, and one is for longer-term development assistance in areas controlled by a terrorist regime.

The original bill, which had its second reading in the House a few months ago, did not include a humanitarian carve-out. After much outcry from international aid organizations and from Doctors Without Borders, amendments adopted in the other place will modify the Criminal Code to create a humanitarian assistance exemption from the terrorist financing offences in section 83.03(b) for the sole purpose of carrying out humanitarian assistance activities conducted by impartial humanitarian organizations in accordance with international law while using reasonable efforts to minimize any benefit to terrorist groups.

Let me explain to you what this means: As we heard from the Canadian Red Cross at the Standing Senate Committee on Human Rights on Monday, the exemption allows for Canadian humanitarian organizations to undertake their work with the knowledge that Canadian law supports the international legal interpretation to provide neutral, impartial and humanitarian action that does not further terrorism. It allows for much-needed assistance to reach individuals and communities that are most often impacted, without requiring Canadian organizations to seek permission to undertake such work.

The humanitarian exemption covers a broad range of humanitarian work permitted under international law — not only life-saving assistance. These activities are vital for approving access to health care, and ensuring access to food, water, sanitation, the protection of detainees and the protection of human dignity.

The humanitarian exemption applies once the bill receives Royal Assent. It is a self-execution form of exemption, meaning that an organization does not need to go through any application process — in any way — if the organization concludes, after its own risk assessment, that they are protected under the exemption. I’m told by the Canadian Aid for Afghanistan humanitarian coalition — made up of the Red Cross, World Vision and others — that when the bill becomes law, they are ready to go. They have been waiting and waiting to act, and this will allow them to act and support vulnerable Afghans in need without fear of criminal charges.

Second, the bill establishes, for permissible development activities, that eligible persons and organizations could be granted certain authorizations by the government that would shield them from criminal liability for their operations in a geographic area controlled by a terrorist group.

Let me go off script for a moment. The definition of persons in this context does not mean me or Senator Tony Dean. It actually means the international aid organizations who would likely work on the ground, through the action of individuals and, therefore, the individuals would need to be named in the application.

The establishment of this regime will be developed through regulations, which I am told are aggressively under discussion because the minister promised that he wants to ensure that red tape does not get in the way of essential aid.

The authorizations will also cover implementing partners or service providers involved in the delivery of such permissible activities. These will include activities intended to support the longer-term sustainability of vulnerable populations, including the need to support women and girls and their safe and meaningful participation in society.

It also enables activities to support immigration processing for Afghans seeking to leave dangerous situations. Applications for authorization under this second stream would be accepted from persons in Canada, Canadians outside Canada and Canadian organizations.

Under this authorization regime, the Minister of Public Safety will consider applications that have been referred to it by the Minister of Foreign Affairs or the Minister of Immigration, Refugees and Citizenship, who would first need to be satisfied that certain conditions are met.

These conditions are as follows: One, that the proposed activities will occur in an area controlled by a terrorist group; two, that they will be carried out for one or more of the specified purposes; and, three, they will respond to a real and emergent need. Moreover, the referring minister — either the Minister of Foreign Affairs or the Minister of Immigration, Refugees and Citizenship — would also need to be satisfied that the applicant is capable of administering funds in high-risk environments and, furthermore, that they are effectively reporting on that administration.

Once a referral has been received by the Minister of Public Safety, the national security apparatus would conduct a security review to assess the impact of granting the authorization on terrorism financing.

Senators, this is an important step for security purposes. We must know whether the applicants of those involved in implementing the proposed activities have any links to terrorist groups. We must know whether they have been investigated in the past for terrorism activities. And to be absolutely clear, we must know that terrorism financing is out of the picture for all involved.

That’s exactly the bar that must be passed for the Minister of Public Safety to grant such an authorization. But there is important redress for aid organizations if they are denied for any reason. If an application is refused, the applicant can reapply in 30 days. Applicants can also seek recourse through a judicial review.

Authorizations in this — please remember, the second stream — would be granted for a period of up to five years and would apply to any person or organization involved in carrying out the authorized activities. Authorizations may also be subject to additional security reviews and would be eligible for renewal. Granted or renewed authorizations may also be amended, revoked, suspended or restricted in scope.

For example, if the applicant fails to comply with the authorization and its requirements, then that authorization must be reconsidered.

Colleagues, let me summarize the process for you one more time. First, with the passage of the law, humanitarian assistance activities would be exempted completely and impartial humanitarian organizations would not have to apply for an authorization. They could be ready to go.

Second, the Minister of Public Safety would provide written information as to whether an authorization for other activities is required for a region.

Third, eligible applicants interested in conducting these permissible activities would submit their complete application to the Minister of Foreign Affairs or the Minister of Immigration, Refugees and Citizenship. They would assess the application for compliance with specific purposes, need and the applicant’s capacity.

If these two ministers are satisfied that their conditions are met, they would refer the application to the Minister of Public Safety, who would initiate a security review. The Minister of Public Safety would either grant the authorization or refuse it on a risk-versus-benefit assessment. Authorization holders would be subject to reporting and compliance monitoring.

I should note that even though I have spoken a great deal about Afghanistan, the bill does not specifically mention Afghanistan. It does apply in other contexts to other regions, unfortunately, which may also fall under the control of a terrorist regime, which does not mean that the people who are suffering — whose lives are at risk — should not be able to avail themselves of international aid.

Colleagues, this bill is very different from the bill we considered at second reading. It was amended vigorously in the House of Commons Standing Committee on Justice and Human Rights with the participation of the stakeholders.

In the original bill, the onus was placed on humanitarian actors to determine themselves which geographic areas are controlled by a terrorist regime. In order to reduce the burden on humanitarian actors, the amended bill now puts the onus on the minister to do so.

The onus is also on the minister to provide written information as to whether an authorization regime for permissible activities is required. This is what the community is calling the go/no-go clause. This amendment considers the dynamic nature of terrorism and allows for the most up-to-date assessment of terrorist groups and their control of geographic areas.

Honourable senators, further amendments in the other place also increase the protections of privacy to explicitly restrict the use of applicant information for the purposes of the authorization request or its renewal. Information sharing by prescribed departments to collect and disclose information has been limited to the purposes of the administration and enforcement of the regime.

Honourable senators, in addition, the Minister of Public Safety will provide an annual report on the operation of this regime. The first annual report will be tabled on April 1, 2024, followed by an annual report every year, and then followed by a five-year parliamentary review.

The report must also include a plan and timeline to remedy any deficiencies.

As Martin Fischer from World Vision told us at committee:

Given the need to strike the balance between addressing the urgency in Afghanistan, understanding the parameters of the Criminal Code . . . I think there’s a fair balance. Anything that we will learn — and we will learn during that first year of round of applications — we’re hopeful that we can go through the regulatory process and . . . if we find things we don’t agree with, holding government to account and improving the bill at that point.

Finally, colleagues — and this is important — Bill C-41 moves us closer to regimes in other countries who are part of a global world order, and I’m talking specifying about regimes in the U.S., the U.K., Australia and the EU.

The government’s approach is tailored to Canada but also based on our work with NGOs. We heard at committee that Bill C-41 is a step towards matching what other countries do. Dr. Jason Nickerson, from Doctors Without Borders, said several other countries have humanitarian exemption language contained within similar and some slightly different parts of their Criminal Code. Humanitarian exemptions are in country legislation, as I said, in Australia, the EU, New Zealand, Switzerland, the United Kingdom and the United States of America. The NGOs also believe that this is a step in a longer journey to broader humanitarian and development reform and that the learnings here will chart the course for the future.

In conclusion, colleagues, we need to help vulnerable people now. We know how quickly situations change in a dangerous, terrorist-controlled environment, and we know that right now we need action as opposed to more deliberation.

All the witnesses at committee told us that because of the humanitarian carve-out, because of the increased privacy safeguards and because of the one-year annual review they believe that this bill is now fit for purpose and should be passed without delay. Thank you for your attention.

Hon. Mary Coyle: Honourable senators, I rise today in this chamber, on the lands of the Anishinaabe Algonquin people, to support what I hope will be the swift passage of Bill C-41. This important bill is urgently needed to enable our world-class Canadian humanitarian organizations to do what they do best: efficiently, effectively and compassionately bring necessities of life — food, water and health services — to people, young and old, no matter where they live and without fear of criminal prosecution for these historic organizations.

It’s bad enough that the people these organizations serve and partner with live in fear and that their front-line staff face dangers, but our Canadian humanitarian organizations should not have to fear criminal prosecution in Canada simply because the people they are serving are living in places where a terrorist organization, such as the Taliban in Afghanistan, is in control.

As you heard Senator Omidvar describe in wonderful detail, very clearly, this bill provides a legislative solution by amending Canada’s Criminal Code to enable the delivery of international assistance in areas controlled by terrorist groups. Colleagues, this is the logical thing to do and, colleagues, it is the right thing to do.

Honourable colleagues, I intend to speak very briefly, as you can see. I felt compelled to share just one important perspective on this with you.

In my first speech in this chamber, I introduced those of you who were here five years ago to people who have influenced me along my pathway in life. Allow me to cite a short paragraph from that speech, where I introduce one such person:

Recently returned from her refugee experience in Iran, Bibi Gul is an Afghan widow with a dependent son. I met Bibi up on the Kabul mountainside where she had literally carved out her home —

— by hand, spoon, knife, whatever simple implement she could find —

— from the rock face. She was making a living by embroidering badges for police forces and other officials. She was using micro loans to purchase equipment, and the specialized threads she was importing from Iran. Bibi had incredible drive and was proud of the home and business she had created.

I learned a lot from Bibi Gul about the power of human ingenuity. I think of her today and wonder how she and her son are doing in this new reality under the Taliban, whose terror she and her family had previously fled Afghanistan in the 1990s.

Bibi Gul was able to access those essential small amounts of capital from one of the many microfinance organizations supported through MISFA, the Microfinance Investment Support Facility for Afghanistan. MISFA was established to provide access to loans and other financial services to hundreds of thousands of people like Bibi so they could earn a living. MISFA was also committed to building a strong and sustainable microfinance sector for Afghanistan, to coordinate international donor contributions and, ultimately, to build the Afghan economy as an essential component of establishing a new, stable and resilient Afghan democracy.

In 2007, our colleague Senator Verner, then the minister responsible for the Canadian International Development Agency, announced a Canadian contribution of US$16 million for the Afghan microfinance facility. Her cabinet colleague minister Peter MacKay at the time asked me to join the board of MISFA to represent Canada and other international donors in Afghanistan. From 2007 to 2010, I travelled regularly to Afghanistan for board meetings and site visits like the one I did to Bibi’s home-based business on the Kabul mountainside. The year after I completed my service to Afghanistan, our colleague Senator Rebecca Patterson was posted to that country by the Canadian Armed Forces.

Since the early 1960s, Canada has provided humanitarian assistance to Afghanistan, initially in response to national disasters. We have had diplomatic relationships with the country since 1968 and established our embassy in Kabul in 2003, which was closed, as we know, in August 2021, following the Taliban takeover of Afghanistan.

From 2001 to 2021, Canada provided $3.9 billion in international assistance to Afghanistan. Colleagues, we know that 40,000 Canadian soldiers courageously served as part of the NATO forces there, with 158 of them — including Captain Nichola Goddard, from my hometown, and one diplomat — losing their lives there.

With Canada’s support, along with other international partners, Afghanistan, with its many dedicated and capable government and civil society leaders, made significant gains in women’s rights; education; economic advancement, including at the grassroots level where Bibi and, frankly, most Afghans exist; in health; in peace and security; and the early very delicate stages of building a stable democracy.

Colleagues, these were hard-fought gains, and the situation was always precarious in Afghanistan — honestly. Even just going to Kabul for board meetings was at times frightening for me because of the instability at that time, including random bombings taking place and often in places I had just been.

Colleagues, quite frankly, after all that effort, investment and hope, the current situation in Afghanistan is heartbreaking.

At the initial briefing on Bill C-41, we heard from representatives of the Canadian Humanitarian Coalition and the Aid for Afghanistan coalition that our colleague Senator Omidvar just spoke to. One of the Canadian civil society leaders there said something which I found to be profound and highly relevant to this discussion and to Canada’s engagement with the people of Afghanistan. That person said, “Healthy, well-fed people are a prerequisite to the necessary political pathway for Afghanistan.” Obvious? Yes, but it is not what we often think about in the moment of immediate crisis.

Colleagues, in situations of humanitarian crises such as the one in Afghanistan, providing people with the basic necessities of life is the humane, critical and urgent thing to do in and of itself.

Also, this important reminder for our Canadian international humanitarian sector leaders is key to keep in mind at this time. For the Afghan people to be able to reclaim their lives, rights and country, and to protect and build on some of the gains they had previously made, they will need to be strong and resilient.

Colleagues, we know that Canada has been providing some humanitarian assistance to Afghans since the Taliban retook the country almost two years ago, but that has been through international organizations and not through our own robust sector.

With the passing of Bill C-41, Canadian organizations will be able to ramp up their humanitarian machinery, engage Canadians who want to join in supporting the effort to respond to the humanitarian crisis and immediately help more Afghans with more resources.

This important support will help Afghans weather these difficult times. I hope it will help Bibi Gul and the hundreds and thousands of women and men who were working hard to create their own sustainable livelihoods.

And, honourable senators, it is my hope that opening the tap on this important support will help Afghans like Bibi rebuild their strength for the next stages of their fight for peace, human rights, social and economic development and democracy.

Colleagues, let’s not tarry. Honourable senators, let’s move this commonsense bill forward to assist Afghan people today and others in the future who may find themselves in similar states of crisis in other places.

Manana, tashakor, thank you.

Hon. Leo Housakos: Will Senator Omidvar take a question?

Senator Omidvar: Yes.

Hon. Mobina S. B. Jaffer: Honourable senators, I rise today to speak to Bill C-41, an act to Amend the Criminal Code as related to humanitarian aid in countries Canada considers to have a terrorist regime.

I would like to thank Minister Mendicino and Senator Omidvar for sponsoring this bill, along with Senator Ataullahjan for all her work helping the people of Afghanistan.

The purpose of Bill C-41 is to address the fact that Canada’s current legal framework has limited the ability of Canadian aid organizations to provide assistance to the people of Afghanistan due to the potential Criminal Code liability, as we view the Taliban as a terrorist regime.

Practically, Bill C-41 enables Canadian aid organizations to deliver their services through two separate mechanisms, as Senator Omidvar said; one is for humanitarian aid and the other for development activities.

I want to share with you the sad incident of Aziz Gul.

Many families are making desperate decisions to survive in Afghanistan, including selling their children — specifically young daughters — into marriage to receive a dowry from the groom’s family to buy food.

Aziz Gul was sold into marriage at 16 years old to a man more than twice her age. Five months later, her family received a call informing them that their daughter had been killed. Her naked body had been found in a forest just outside the village where she had lived with her in-laws.

Aziz Gul had been beaten and shot four times in her back. She was 17 years old and four months’ pregnant. As her grief‑stricken parents embarked on the several-days-long journey to bring her body back to their home, they learned that, during the months that their daughter was married, Aziz Gul’s husband had been prone to fits of rage and aggression.

Senators, this is not a unique incident. I am sharing it with you to illustrate the heartbreaking circumstances in Afghanistan. The situation in Afghanistan is overwhelmingly tragic. The humanitarian and development challenges are growing and intensifying as we speak.

Let me now share with you just a few disturbing facts about the crisis. Afghanistan is currently suffering the largest humanitarian crisis in the world with 97% of Afghans living in poverty, up from 47% in 2020.

Two thirds of the population — 28 million people — will need humanitarian assistance this year alone to survive. According to the World Food Programme, nearly 20 million people face acute food insecurity and 6 million are one step away from famine-like conditions. This increasing humanitarian crisis has been made worse by drought, floods, earthquakes and other natural disasters. Also, 2.3 million children are expected to face acute malnutrition this year alone, while almost a million of them will need treatment for severe acute malnutrition, a life-threatening condition.

Save the Children’s Country Director in Afghanistan, Chris Nyamandi, described the toll this crisis has had on children with the following words:

I’ve never seen anything like the desperate situation we have here in Afghanistan. We treat frighteningly ill children every day who haven’t eaten anything except bread for months. Parents are having to make impossible decisions – which of their children do they feed? Do they send their children to work or let them starve? These are excruciating choices that no parent should have to make.

As you know, the Taliban came back into power on August 15, 2021. Their accession to power pushed the country into deeper economic turmoil and exacerbated poverty as critical aid stopped flowing into the country. They have completely stolen the rights of women and girls.

Colleagues, for my entire career as a senator, since 2001 when the first challenge in Afghanistan happened, I worked with Mr. Chrétien and many women to get women in power in leadership roles. Mr. Chrétien personally assured those women that they would get Canadian soldiers to protect them. That was in 2001. Now, in 2023, we don’t even have a role in Afghanistan.

However, since August 15, 2021, when the Taliban came to power, all the Canadian support given to the Afghan women, children and marginalized people, as I said earlier, has come to a halt.

Canada stopped providing humanitarian aid and development aid to Afghanistan due to certain terrorism provisions in our Criminal Code as our government declared the Taliban a terrorist organization.

I am very sad to say this to you: It has taken Canada two years to find a way to send humanitarian aid to Afghanistan, whereas our allies — including Australia, New Zealand, the United States and the United Kingdom — quickly figured out a way to resume humanitarian and developmental aid and made sure that aid organizations continued to receive funding despite their domestic terrorism laws.

Canada is the only G7 country that has not found a way to resume aid for life-saving activities in Afghanistan. Senators, this is absolutely unacceptable. It is shameful that Canada continues to drag its feet when there are ways to provide aid to desperate women and children.

Canada has an important role to play here. But more importantly, senators, Canadians want to play an important role. I can tell you the number of Canadians who call me regularly to say it is a shame that we have left Afghanistan. The delay of two years has meant that Canada and Canadian aid have disappeared from a country which is in dire need of support from Canadians.

Still, Bill C-41 will create, as Senator Omidvar said, a two‑track system: one track for humanitarian aid and a second track for development.

For humanitarian aid, the bill proposes a humanitarian exemption which will allow the organizations to provide humanitarian services including food, shelter, hygiene and protection on the ground. These are emergency, life-saving activities that will be provided by humanitarian organizations that Senator Omidvar has already mentioned, meaning that humanitarian aid can be provided by a Canadian organization without any fear of criminal sanctions. This process is clear and straightforward.

I differ slightly from Senator Omidvar on the second track. The second track will be for development activities. The bill proposes something called an authorization regime which will allow Canadian individuals and organizations to be granted authorizations that would shield them from criminal liability. Specifically, it will allow organizations to provide health services, education services, immigration services, human rights programming and support for livelihoods. However, the process put forward by our government for obtaining authorization is complex and opaque.

The first step of the process requires the given Canadian individual or organization to apply to the Minister of Foreign Affairs or the Minister of Immigration, Refugees and Citizenship. These departments would then need to be satisfied that certain conditions are met. This includes, among other things, that the proposed activity aligns with a permitted purpose and responds to a real and important need.

The two ministers will then refer the application to the Minister of Public Safety. Once the application has been received by the Minister of Public Safety, it will be reviewed and assessed for impact of granting the authorizations.

Senators, factors to be considered include, among others, whether the applicants or those involved in activity implementation have links to terrorist groups or were investigated, charged or convicted of terrorism offences. Yet, we have not received clarity on these processes. We have not got an answer as to regulations. Senator Omidvar asked very specifically of the minister: When will the regulations be in place? In committee, the minister did not even answer the question, so we don’t know how quickly these regulations will be placed. It is really worrying to me that after two years, will it take another year for regulations to be in place?

I want to point out to you that we are sending the initial applications to some of the busiest departments for approval before they are even sent to the Minister of Public Safety. This, I assure you, will cause long delays.

Honourable senators, let me once again reiterate the need to act. There are many devastating incidents illustrating the desperate conditions in Afghanistan, including many children getting hurt. I’m going to skip those examples. Canadian organizations are ready to provide support to the most vulnerable Afghan groups. They are waiting for permission.

There are containers of essential supplies waiting in the Port of Montreal to be sent out to Afghanistan.

Michael Messenger, President of World Vision Canada, said the heart of issue is simple:

In Afghanistan’s time of deepest need, Canadians want to help. . . . Our government needs to do everything it can to allow humanitarian aid to flow.

As these humanitarian organizations cannot continue their life‑saving work if the government does not act quickly and provide the necessary clarity through regulation, humanitarian and development organizations need to be assured that their life‑saving work will not be penalized under Canada’s Criminal Code.

Honourable senators, let us remember that 167 children a day die in Afghanistan from preventable diseases, malnutrition and lack of clean water.

I heard a lot of activities going on while I was speaking. Normally, I would have sat down and thought it was very rude and that everybody should have been in their chair. I’m only hoping that it was to make this bill proceed faster. But be careful. Don’t be in such a haste until the regulations are in place because it is not all that clear. Without the regulations, those two big ships are not going to leave the Port of Montreal.

Thank you.

Hon. Salma Ataullahjan: Honourable senators, I rise today to speak on Bill C-41, An Act to amend the Criminal Code and to make consequential amendments to other Acts, which would amend the Criminal Code to allow the provision of international assistance and immigration activities in areas controlled by terrorist groups.

Without this bill, humanitarian aid agencies would run the risk of breaking the law by attempting to provide aid within Afghanistan. Section 83.03(b) of the Criminal Code holds that every person is guilty of an indictable offence, making a person liable to imprisonment for a term of not more than 10 years, if they directly or indirectly collect, provide property, financial aid or other services knowing that they will, in part or in whole, benefit a terrorist group.

The revised version of Bill C-41 aims to allow humanitarian aid agencies to provide life-saving food, shelter and health care in any geographic area controlled by terrorist groups without a team of lawyers.

Before I go any further, I would like to take a moment to thank my colleague Senator Omidvar for her continued efforts to help Afghans through Lifeline Afghanistan. Thank you to Senator Jaffer for her commitment to the people of Afghanistan, and thank you, Senator McPhedran.

I would also like to thank my colleagues on the Senate Human Rights Committee for their work on the issue. As Senator Omidvar mentioned, the committee presented a timely and practical report in December 2022, and many of the recommendations are reflected in the amended version of Bill C-41.

Today, I would like to echo the sponsor’s support for Bill C-41, especially with its proposed amendments. Enough time has been lost since the Taliban took Kabul by force, and our priority should be to provide vital humanitarian assistance to starving Afghans. As it has been so eloquently explained, the amendments to the bill are critical to reducing the burden on humanitarian actors.

Colleagues, as many of you may know, Afghanistan has always held a special place in my heart. As a young child growing up in Peshawar, Pakistan, there were few things I would look forward to more than a journey to Kabul. I have fond memories of summers spent in Afghanistan where the people were generous, the landscapes breathtaking and the food incomparable. The Afghanistan of my youth was a laid-back, fun society where men and women were free to enjoy restaurants, discos — that’s what they called them then — and open-air theatres. There were gardens everywhere, filled with families coming together to enjoy spending time in nature. Women had a very visible presence in every place in society, and it was common to see women owning businesses.

But life for the people of Afghanistan has changed due to the Soviet invasion in 1979. Since then, peace has eluded Afghanistan. Decades of war have taken its toll.

Currently, the country is facing an unprecedented humanitarian crisis. Two thirds of the country’s population will need humanitarian assistance this year alone, and nearly 95% of Afghans are malnourished. According to Ramiz Alakbarov, the UN Deputy Special Representative, Resident and Humanitarian Coordinator for Afghanistan, “The fate of an entire generation of Afghans is at stake.” Women and girls have been completely erased from society — being denied education, employment and freedom of movement because of their gender.

This is not the first time I have risen in this chamber to share my concerns for the people of Afghanistan. In February, I urged the government to help Afghans dying from the cold and hunger during one of the harshest winters that Afghanistan has seen in years. In March of last year, I spoke of the looming famine for 24 million Afghans, forcing many to sell a kidney, or worse, their daughters, as Senator Jaffer just mentioned. In November 2021, I expressed the heartbreak I felt upon witnessing the despair of Afghans left behind, and the complete erasure of women and the arts from public life.

Even as a new senator in 2010, I proposed a study on the role of the Canadian government in supporting women’s rights after ending combat operations in Afghanistan. The committee recommended concrete ways that Canada could make the advancement of women’s rights a fundamental element of its approach to Afghanistan post-2011.

More recently, the Standing Senate Committee on Human Rights presented a report on humanitarian assistance to Afghanistan, more specifically on how Canada’s terrorism financing laws affect the delivery of aid to vulnerable people in Afghanistan. The committee heard from key stakeholders who explained that, because of section 83.03(b) of the Criminal Code, crucial services were put on pause. This included services, such as midwives in remote areas, shipments of aid and supplies aging in warehouses. Martin Fischer from World Vision Canada shared with the committee that an overly restrictive interpretation of section 83.03(b) ultimately only penalized the most vulnerable people in Afghanistan, including the women and girls that Canada’s Feminist International Assistance Policy is meant to protect.

The committee put forth five recommendations, including that the Department of Justice urgently introduce legislation to create an explicit humanitarian exemption to section 83.03(b) of the Criminal Code, clarifying that legitimate humanitarian aid — absent of any terrorist intent — that results in an incidental benefit to a terrorist group would not fall within the ambit of this provision.

Colleagues, I am glad to see that the amended version of Bill C-41 includes a humanitarian carve-out proposed by the NDP, but I wish to remind you that over a year ago, Canada’s allies, such as the U.S., the U.K., the European Union and Australia, had already issued blanket exemptions for humanitarian aid workers. NDP foreign affairs critic Heather McPherson stated:

Canada’s the only one that put barriers up for humanitarian organizations, instead of making it easier for them to be on the ground doing the work helping Afghans.

Although I fully support Bill C-41, I must share some of my concerns about this legislation. Fortunately, I believe they are completely avoidable with enough preparation and foresight. As you are now aware, Bill C-41 offers two pathways for humanitarian organizations to provide aid in areas controlled by terrorists. The humanitarian exemption protects impartial humanitarian organizations from Canada’s anti-terrorism laws without having to seek authorization from the government. For permissible development activities, eligible persons and organizations must seek authorization by the government to be shielded from criminal liability. To this end, the Minister of Public Safety must provide, upon request, information to organizations and persons wondering if they require such an authorization from the government.

However, I learned that some administrative details have not yet been defined, as it is not clear how organizations are meant to contact the minister. It was suggested that it may be a process similar to requesting that one’s name be taken off the no-fly list: contacting the minister’s office by email. If the issues that we have heard about this process are indicative of the efficiency of such a process, I believe there is room for improvement. As for the availability of information for potential applicants, Richard Bilodeau, Director General of Public Safety Canada, shared that it should eventually be found on a website, but nothing has been set in stone yet.

I understand that the amendments to this bill may have taken offices by surprise, but I am concerned that the necessary additional staff have not yet been hired to analyze incoming applications as soon as Bill C-41 receives Royal Assent.

I also asked Minister Mendicino about the projected timeline for processing and analyzing applications. I was informed that it would be on a case-by-case basis, as security reviews can take longer for organizations that they are less familiar with. I suggested to the minister that they might find a way to fast-track these assessments for certain organizations, such as the Red Cross, World Vision and Doctors Without Borders, to hasten the process and get humanitarian organizations in Afghanistan as quickly as possible.

Again, I must stress that these issues can be resolved, and that the government’s latest budget included funding to staff affected offices. Indeed, the current version of Bill C-41 may not be perfect, but as Dr. Erica See, Senior Legal Counsel at the Canadian Red Cross, shared during the Human Rights Committee’s pre-study on the bill:

. . . it is what’s needed to give the humanitarian sector a path forward — a door, if you will — to provide humanitarian assistance in contexts like Afghanistan.

Honourable senators, it is heartwarming to know that all the parties in the other place worked in committee to make Bill C-41 a better bill than what was introduced at first reading. Senators, as the critic of this bill, I urge you to pass this bill without delay, and to finally give a glimmer of hope to many Afghans.

As Dr. See told the Human Rights Committee on Monday, “Should the bill not pass now, we will see another anniversary in Afghanistan without greatly needed humanitarian support.”

Like Senator Coyle said, manana, tashakor, thank you.

Some Hon. senators: Hear, hear!

Hon. Donald Neil Plett (Leader of the Opposition): First of all, let me thank Senator Omidvar sincerely for moving this bill forward, and Senator Ataullahjan for her work on it.

Your Honour, there has been a pre-study done on this bill, so it has been at committee. We have had discussions amongst the leaders — in anticipation of this bill receiving Royal Assent as quickly as possible, and in speeding up that process, which we are led to believe will happen, the leaders have agreed, Your Honour, to moving this forward. With that and with leave, I would move that this bill now be read a third time.

[Translation]

The Hon. the Speaker: We will begin by completing second reading and then we will proceed to third reading.

[English]

Is it your pleasure, honourable senators, to adopt the motion?

Hon. Donald Neil Plett (Leader of the Opposition): Honourable senators, with leave of the Senate and notwithstanding rule 5-5(b), I move that the bill be read the third time now.

The Hon. the Speaker: So ordered.

(The sitting of the Senate was suspended.)

[English]

(The sitting of the Senate was resumed.)

On the Order:

Resuming debate on the motion of the Honourable Senator Cormier, seconded by the Honourable Senator Miville-Dechêne, for the third reading of Bill C-13, An Act to amend the Official Languages Act, to enact the Use of French in Federally Regulated Private Businesses Act and to make related amendments to other Acts.

The Hon. the Speaker: Honourable senators, it is now six o’clock. Pursuant to the order adopted earlier today, I must leave the chair until seven o’clock unless honourable senators agree not to see the clock. Is it agreed that we not see the clock?

Some Hon. Senators: No.

And two honourable senators having risen:

[English]

Is there an agreement on a bell? I did not hear a “no.”

Hon. Tony Loffreda: Honourable senators, I rise today at third reading to speak to Bill C-13, an act for the substantive equality of Canada’s official languages.

I support the vision and intention of this bill, but not in its current state.

[Translation]

Let’s not forget that I’m a proud Quebecer. I am proud to live in a province where French is the common language of the people as well as the official language.

As I explained when I spoke at second reading, I’m simply concerned that including a reference to Quebec’s Charter of the French Language is highly problematic from both a bureaucratic and legal point of view. Quebec’s English-speaking community also shares my concern.

[English]

Many believe that the inclusion of Quebec’s Charter of the French language, which was recently amended with the passage of Bill 96 last year is a serious flaw in the current bill we have before us. I will not repeat everything I said in my second reading speech. My views are on the record, and I stand by those comments.

What worries me is that once this bill receives Royal Assent, the French charter will now be included in the Official Languages Act. This troubles me, because we all know that the charter includes the pre-emptive use of the notwithstanding clause. I continue to believe that pre-emptively invoking the notwithstanding clause is not the way for a government to govern.

I think our former senator colleague Joan Fraser summarized it elegantly when she appeared before our Official Languages Committee last week. She said:

As you know, the French-language charter was modified last year by Bill 96. It now pre-emptively invokes the “notwithstanding” clauses of both the constitutional Charter of Rights and Freedoms and Quebec’s own Charter of Human Rights and Freedoms. This has only been done once before — in Quebec’s Bill 21. The inclusion of references to the French-language charter in Bill C-13 thus tacitly accepts this pre-emptive use of the “notwithstanding” clause, and I submit that that should be of concern to all Canadians.

She goes on to say:

We know that arguments have been made, that including the Charter of the French Language in the Official Languages Act will not diminish the rights of English-speaking Quebecers. I suggest that those arguments were perhaps conceived before Bill C-13 was amended to include a reference to the Quebec law in the purpose clause of the Official Languages Act. Our legal assessment has always been that to mention Quebec’s French-language charter within the Official Languages Act does pose a danger to our community’s rights.

As I have urged during my second reading speech, and as Senator Fraser offered in committee:

. . . withdrawing the references to the Charter of the French Language from Bill C-13 would in no way diminish or abrogate the rights of, or support to, French-speaking minority communities. There is, however, danger in retaining those references — danger to the English-speaking community of Quebec and also danger in setting up an official-language regime that creates a precedent for other provinces to impose restrictions on their own linguistic minorities, as Quebec has done.

In response to a question from Senator Cormier, Marion Sandilands, a lawyer and member of the Quebec Community Groups Network explained that to see the Charter of French Language:

. . . referenced in the federal Official Languages Act, whose purpose before Bill C-13 was to protect and uphold minority language rights, is a contradiction.

Ms. Sandilands asks:

How can a provincial act that infringes constitutional language rights be referenced and upheld in the federal Official Languages Act?

She argues that:

. . . citing a provincial law that pre-emptively and sweepingly uses the notwithstanding clause . . . will make it very difficult for a court to accept submissions from the Attorney General of Canada if the Attorney General of Canada ever gets up and opposes the use of the “notwithstanding” clause in that manner. It is contradictory to, on the one hand, disclaim it and, on the other hand, endorse it in this bill.

With all due respect to the Minister of Official Languages, the answer she provided to Senator Gold last week during her appearance before the Official Languages Committee was not reassuring at all, despite her many efforts.

[Translation]

The minister told us, and I quote:

The reference to the Charter of the French Language in the bill is simply a description of the Quebec law. At no time do we say that we are in favour or not of the Charter of the French Language.

That doesn’t inspire confidence.

In my opinion, by including the charter in the Official Languages Act, the federal government is saying that it agrees with the charter and its content, even though some argue that it doesn’t constitute incorporation by reference.

I don’t buy into the argument that it’s simply a description of Quebec’s reality. In fact, it is the reality in Quebec and the provincial government’s use of the notwithstanding clause that is so worrisome and that poses a problem for anglophones in Quebec.

The minister also said that there was a lot of confusion when this bill was debated. I agree, and including the charter in the bill is only making things worse.

To avoid any confusion, I think that the reference to the charter should be removed from the bill entirely. In fact, I haven’t heard any argument so far that would justify including it in the federal legislation. We’ve been told over and over that it doesn’t infringe on the rights of anglophones, but no one is saying how it will help or benefit francophones in Quebec.

Why is the federal government insisting on keeping the references to the charter? In response to a question from Senator Mégie, the Commissioner of Official Languages, Raymond Théberge, explained that he shared the concerns of Quebec’s anglophone community and that he could see how this might create problems down the line.

He stated that there was a great deal of speculation. He asked the following question:

If changes are made to the charter at some point, will changes have to be made to the Official Languages Act?

That’s a very legitimate question that continues to create confusion and uncertainty.

[English]

The commissioner acknowledges that English speakers in Quebec have a right to be worried. The community has genuine concerns regarding the impacts of the bill on the community and in no way do we want to harm the promotion or protection of the French language in Quebec.

As Eva Ludvig of the QCGN said before the Official Languages Committee, “English-speaking Quebecers understand the challenge of protecting and promoting French and support efforts that genuinely seek to do so.” Anglophones truly do support increasing the use of the French language in the province, of protecting it and ensuring its vitality, provided their rights are not infringed upon or reduced.

In general terms, allophones and anglophones have integrated well into Quebec society, and many work hard to improve their knowledge of the French language and have embraced the culture.

In another op-ed I read recently on a different topic, I was inspired by its co-authors who wrote about the responsibility we have as members of the Senate to do the right thing with the legislative powers we have. They wrote:

As legislators, we believe that any legislative, regulatory or policy approach should at all times aim to advance rights rather than limit them.

I definitely agree.

Yet, here we are today on the verge of adopting a federal bill that basically signs off on a provincial law that many believe is harmful to Quebec’s English-speaking minority and that has limited its rights. Why are we holding the allophone and anglophone minorities in Montreal and throughout Quebec to a different standard than other minorities?

Again, I want to be clear: I support what Bill C-13 seeks to achieve. Its overarching goals are worthy and deserve our support. I simply want to remove the references to the charter that have many within the English-speaking minority in Quebec worried.

If we know the references to the charter will not contribute to the protection of the French language in Quebec or provide francophones any additional rights, yet we know that the English-speaking community completely opposes them and feels their rights are being breached and diminished, why not remove the references altogether?

I am reminded of what Dean Robert Leckey of McGill University Law School told the committee when referring to the inclusion of the “notwithstanding” clause in the Quebec language charter. He explained that:

. . . the Charter of the French language in its current form . . . involves this sweeping override of all the Charter rights that are amenable to override in the Canadian Charter and all the rights in the Quebec Charter of human rights and freedoms that you can derogate from. That’s part of what the Charter of the French Language now means and represents.

Dean Leckey challenged all of us. If that’s not what we want to endorse with the passage of Bill C-13 and if we don’t feel right about it, then maybe we need to think about those references.

I, for one, do not feel right about it. I have given a lot of thought to those references. Including the references to the Quebec charter does not provide any additional protections to the French language in the federal law. Rather, if we adopt the bill as is, I feel Parliament will be putting its stamp of approval on a provincial law that is currently being challenged in the courts for its unconstitutionality and for its pre-emptive use of the “notwithstanding” clause. Personally, I cannot vote in favour of a bill with such an approach and endorsement, whether it be implicit or not.

Hon. Judith G. Seidman: Honourable senators, I rise today to speak in support of Senator Loffreda’s amendment. Thank you for introducing it, senator.

Colleagues, the words we use really do matter, and we should be especially mindful of the words that we include in our legislation. We can’t know now just what unintended consequences these three references to the Charter of the French Language may have, but we do know with greater certainty that there will be no harm done by removing them. After all, Bill C-13 makes no references to New Brunswick’s Official Languages Act nor to any other pieces of provincial or territorial legislation. It is my contention that the unique Charter of the French Language references are superfluous and potentially harmful. Therefore, colleagues, they should be removed.

Last week, I listened to Ezra Klein of The New York Times interview Jennifer Pahlka about the machinery of government. In 2013, Pahlka was the Deputy Chief Technology Officer in President Obama’s administration. In 2020, she helped California Governor Gavin Newsom’s administration fix its Unemployment Insurance program. She has great insights about, as Klein puts it, “why things go wrong [in government] even when the people involved are trying to make them go right.” She is focused on an area of policy that is too often ignored by policy-makers, which is implementation. Her insights are transferable to legislators in any country, including ours.

In the interview, Pahlka recounts the story of how a piece of technology that was included in a federal act merely as an example has, as translated through the hierarchy of government departments in the years since its adoption, become a requirement. That is because within bureaucracies, civil servants are most often held accountable based on whether or not they followed a process, and those processes are based on the words found in legislation.

Ms. Pahlka’s experiences working with American governments at the city, state and federal levels demonstrate that the words used in legislation are really important and consequential. As legislators, we must carefully consider whether the wording of legislation might have unintended consequences.

Last week, Eva Ludvig, the president of the Quebec Community Groups Network, expressed concern about how Bill C-13 might be interpreted by civil servants. She said:

Once something is in law, we don’t know how that will be interpreted, not only by the courts but also by civil servants who implement it.

However, when I asked about the words included in Bill C-13, Minister Petitpas Taylor disagreed. She said:

Yes, we made reference to the Charte de la langue française in our Bill, but it’s only for descriptive purposes, to say that that regime applies in Quebec.

Justice department lawyers, she told us, have assured her that there is minimum risk to the reference to the charter. Minimum risk — but risk, colleagues. Meanwhile, the committee heard from lawyers not currently employed by the government who suggested that the references do pose a significant risk.

Honourable senators, in the introduction to his interview with Jennifer Pahlka, Ezra Klein noted:

In our media . . . There’s a ton of focus on politics, on elections, on big policy questions and fights and theories. But then the bill passes and the nitty-gritty of how that policy actually shows up in people’s lives is left up to someone somewhere. And when it . . . makes people’s lives worse because of how it is implemented, there’s often no outcry because there’s no attention, and so there are no fixes.

Colleagues, Senator Loffreda’s amendment offers us the opportunity to reduce the risk written into this legislation now, when the spotlight is still on, so that we can avoid some of the unintended consequences that this legislation may have on people’s lives. I urge you to join me in supporting this amendment.

Thank you.

[Translation]

The Hon. the Speaker: Senator Loffreda, you have very little time to respond.

[English]