About the authorization regime and humanitarian exception

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Purpose

In June 2023, the passage of Bill C-41 amended the Criminal Code to create a process to facilitate the delivery of needed activities in terrorist-controlled areas via authorizations granted by the Minister of Public Safety to shield such activities from criminal liability.

Bill C-41 also created a statutory exception for humanitarian assistance in subsection 83.03(4) of the Criminal Code which does not require an application process and which functions separately from the Authorization Regime.

The purpose of the Authorization Regime is to ensure that the broad terrorist-financing offence in what is now subsection 83.03(2) (formerly 83.03(b) of the Criminal Code) does not unintentionally impede international assistance and other needed activities. While an important tool to combat terrorist financing, prior to the passage of Bill C-41, section 83.03 did not contain any flexibility to offer an exception in cases where a needed activity would incur an incidental but unavoidable benefit to a terrorist group. The Authorization Regime provides new flexibility for organizations to obtain a shield from criminal liability for specified activities in areas controlled by a terrorist group.

What are benefits to a terrorist group

Some examples of direct or indirect benefits to a terrorist group in the delivery of international assistance that may be unavoidable include payment to local personnel for their services, transportation costs, taxes and potential administrative fees.

Note that for individuals or organizations that are implementing programming or activities on behalf of a Government of Canada department, the Government department is responsible for seeking an authorization, if needed. This authorization would also shield implementing partners and third-party providers.

Scope of the authorization regime within the Criminal Code

The Authorization Regime applies only to the terrorist financing provision found in subsection 83.03(2) of the Criminal Code. Unlike other terrorism offences in the Criminal Code, the provision in subsection 83.03(2) does not contain the element of purpose/intention to commit or facilitate a terrorist activity.

In all cases, authorizations issued under this regime by the Public Safety Minister would only shield applicants from criminal liability for the offence under subsection 83.03(2) of knowingly providing an unavoidable benefit to a terrorist group in order to carry out eligible activities connected with purposes specified in the legislation. Applicants will be required to maintain safeguards to administer funds and limit the risk of diversion of these funds to terrorist groups.

The government does not regulate the provision of assistance activities internationally. The determination of whether an organization needs an authorization depends on the activities planned and whether the organization expects such activities to provide a benefit to a terrorist group in contravention of Criminal Code section 83.03(2).

Neither the authorization under subsection 83.03(3) nor the humanitarian exception under subsection 83.03(4) provides a shield from criminal liability for any criminal offence under Canadian law other than section 83.03 of the Criminal Code.

Humanitarian exception

The humanitarian exception under subsection 83.03(4) of the Criminal Code applies to activities undertaken for the sole purpose of carrying out humanitarian assistance under the auspices of impartial humanitarian organizations in accordance with international law while using reasonable efforts to minimize any benefit to terrorist groups. For these purposes, a person or organization who meets the criteria of this exception is shielded from criminal liability by the exception for humanitarian assistance activities. In effect, it is available as a defence in the event a person, including an organization, is charged and prosecuted for committing any of the terrorist financing offences in section 83.03 of the Criminal Code.

There is no application process required to benefit from the humanitarian exception, which is automatically applicable to humanitarian assistance activities carried out by impartial humanitarian organizations in a manner consistent with international law. The humanitarian exception under subsection 83.03(4) of the Criminal Code is outside of the scope of the Authorization Regime.

The following non-exhaustive definition of the term 'humanitarian assistance activities' may serve as non-binding guidance. If a proposed activity does not fall within the generally-accepted scope of the term, legal advice should be sought by the organization or individual seeking the benefit of the exception's legal shield from liability.

Humanitarian assistance activities may include:

  • Assistance that seeks to save lives and alleviate suffering of a crisis-affected population. This includes actions that, within a short time span, remedy, mitigate or avert direct loss of life and harm to people, and protect their dignity, as defined in the CERF Life Saving Criteria. This includes, but is not limited to: food and non-food items, emergency medical services to treat life or limb-threatening situations, nutrition services, shelter, water, sanitation, hygiene, and protection.
  • Common support services that are necessary to enable life-saving activities to be carried out (e.g., logistics, including supply chain management, transportation of aid, including the use of aircraft and/or ships, camp management, emergency telecommunications, technical supervision, training, monitoring, and evaluation of programming, etc.).
  • Transactions necessary and incidental to carrying out humanitarian activities or supporting humanitarian organizations (e.g., administrative transactions such as the payment of staff and contractor salaries, maintenance of bank accounts, duties and other fees, taxes, licences, etc.).

The distinction between activities described in subsection 83.03(4) of the Criminal Code and those requiring an authorization is that of context. Some activities might fall within the humanitarian exception when provided in response to acute and immediate needs, to save lives and alleviate suffering; but would require an authorization if provided outside of those situations.

For example, the provision of food and medical assistance to prevent acute starvation during a famine would typically be considered humanitarian assistance. In contrast, carrying out a routine annual disease eradication campaign would typically be categorized as a development activity.

Similarly, demining activity in a populated area in order to enable humanitarian assistance activities would typically meet the criteria necessary to also be considered humanitarian assistance. In contrast, demining aimed at achieving long-term development purposes would typically not.

"Impartial humanitarian organizations” are generally understood to be organizations that deliver humanitarian assistance activities and do so in an impartial manner (e.g. based on need and carried out without discrimination on the basis of race, colour, sex, language, religion or beliefs, political or other opinions, national or social origin, wealth, birth or other status, or any other similar criteria).

For additional context on international standards related to the meaning of “impartial”, you may wish to consult the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), Commentary of 1987 on Article 9 – Field of Application, para 439.

For additional information on international standards related to the meaning of “humanitarian organizations”, you may wish to consult the Geneva Convention (III) relative to the Treatment of Prisoners of War of 12 August 1949, Commentary of 2020 on Article 9 – Activities of the ICRC and other impartial humanitarian organizations, para 1338 and 1340.

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