Hon. Ratna Omidvar: Will Senator Martin take a brief question?

This question is appropriate for you especially because you were a co-chair of the MAID committee. This bill proposes that within two years after Royal Assent, a joint committee of Parliament will be struck to undertake a review relating to the eligibility and readiness. So, it is possible that this committee will be called into life after as late as two years, giving the committee just one year.

Here we are on February 26, and we are pressed for time to approve the bill by this Thursday; otherwise, the law will kick in. Do you believe that is enough time for your committee to study, once again in 2027, the questions of eligibility and readiness, when this time you didn’t — at least it doesn’t appear to me that you did — have sufficient time?

Hon. Ratna Omidvar: Will the honourable senator take a question?

Hon. Ratna Omidvar: Thank you, Senator Gold, for your comments, and in particular the preamble to your comments about identity. I appreciate them; they were authentic and sincere.

I’m going to invoke the law professor in you — rusty or not — by reading from the witness testimony of Professor Larocque, who had a great deal to say about clause 8. He said this:

. . . when Parliament is silent in one part of the law but explicit in other parts of the law, courts are entitled to infer from that that it was an intentional silence.

He continued, saying:

By not mentioning official language minority communities in clause 8, we essentially allow a court to eventually conclude that this was the legislator’s intention, since specific mentions are included elsewhere in the bill, but it is silent . . .

— in the founding clause.

I wonder how the law professor in you would rebut that.

Hon. Ratna Omidvar: Senator Moodie, thank you for your advocacy on this bill. This piece of legislation has been a national aspiration for decades. It is now tantalizingly within our reach, and I commend you and other colleagues for bringing it here. However, we also have to get it right. I think we all agree with that.

You talked about how the guiding principles in clause 7 give you sufficient comfort. Senator Cormier wants to ensure that there is no legal ambiguity in clauses 7 and 8. These are two different clauses, and there is some confusion surrounding them. I noticed that you invoked the Canada Health Act, which is likely the mother of all confusing acts, and the bickering around the Canada Health Act does not give me a great deal of comfort.

I think about Bill C-48 last week or the week before. We approved an amendment and it was sent over to the House of Commons. I understand it has now come back. They did that quite quickly. Let’s say this amendment passes. My question to you is this: Why should we worry that if we make this improvement, it will somehow sink the entire armada?

Hon. Ratna Omidvar: Will Senator Seidman take another question?

Hon. Ratna Omidvar, Chair of the Standing Senate Committee on Social Affairs, Science and Technology, presented the following report:

Tuesday, November 21, 2023

The Standing Senate Committee on Social Affairs, Science and Technology has the honour to present its

SEVENTEENTH REPORT

Your committee, to which was referred Bill C-35, An Act respecting early learning and child care in Canada, has, in obedience to the order of reference of Thursday, September 28, 2023, examined the said bill and now reports the same without amendment but with certain observations, which are appended to this report.

Respectfully submitted,

RATNA OMIDVAR

Chair

(For text of observations, see today’s Journals of the Senate, , p. 2162.)

Hon. Ratna Omidvar: Senator Gold, we’ve all read that the Government of Pakistan is forcing millions of Afghan refugees to return to Afghanistan. This is not just shocking; it’s against international law and puts many lives at risk.

I know there are Afghans who have been accepted into Canada as refugees but haven’t been able to leave Pakistan. Many of them are Hazara minorities. They are now being forced back to Pakistan, which puts them obviously at further risk of persecution by the Taliban.

What is our government doing to ensure these refugees are allowed to exit Pakistan and come to Canada?

Hon. Ratna Omidvar: Thank you for being with us, minister.

In 2018 to 2019, I was the Senate sponsor of Bill C-344, which amended the Department of Public Works and Government Services Act, and required your department to consider the provision of community benefits in its procurement processes: jobs, business opportunities, et cetera. The bill fell off the Order Paper because the election was called in 2019. Subsequently, then-Minister of Public Services and Procurement Carla Qualtrough wrote to me saying that, notwithstanding, she would consider a policy ensuring that public benefits were considered in the procurement process.

Can you give me an update on this particular aspect of procurement?

Senator Omidvar: Thank you, minister. Am I hearing you say that you are actively considering community benefits in the awarding of government procurement programs?

[Translation]

Hon. Ratna Omidvar, pursuant to notice of October 4, 2023, moved:

That, notwithstanding the order of the Senate adopted on Thursday, May 19, 2022, the date for the final report of the Standing Senate Committee on Social Affairs, Science and Technology in relation to its study on the Canadian assisted human reproduction legislative and regulatory framework be extended from October 31, 2023, to June 30, 2025.

(On motion of Senator Martin, debate adjourned.)

Hon. Ratna Omidvar moved second reading of Bill S-278, An Act to amend the Special Economic Measures Act (disposal of foreign state assets).

She said: Honourable senators, I rise today to speak on Bill S-278, An Act to amend the Special Economic Measures Act, also known as SEMA. The bill before you seeks to amend SEMA to allow for a legal mechanism to seize and repurpose the state assets of perpetrators who breach international peace and security and to redirect those assets to the victims whose lives have been shattered.

The invasion of Ukraine by Russia provides a clear context for this proposal. Russia has launched an unnecessary, illegal and brutal war. It has destroyed the lives and livelihoods of hundreds of thousands of people — fathers, brothers, mothers, sisters and children have been lost. Cities have been reduced to rubble, and infrastructure has been bombed. People have been captured and tortured, and, still, there is no end in sight.

But perhaps the worst crime of all is the wilful kidnapping of thousands of children. As per The Globe and Mail:

In the summer of 2022, Russia began a co-ordinated program to bring children — particularly those living in orphanages and foster homes — from across the occupied areas of Ukraine to summer camps in Russia, hundreds of kilometres away.

These children have not been returned to their parents in Ukraine, but instead have been put up for adoption in Russia. This is so heinous a crime that the International Criminal Court has subsequently issued arrest warrants for Mr. Putin and for his Commissioner for Children’s Rights, Ms. Lvova-Belova.

Just this past week, we have seen with horror the brutal attack of Hamas in Israel. Although there is no proof that Russia supplied weapons to Hamas, we know that Russia supports it. Just last March, for instance, Russia hosted in Moscow a delegation of Hamas leadership, and, further, Russia has yet to condemn Hamas for its brutality. So we see, yet again, that Russia desires chaos. It desires to destabilize the world and the rules-based order as we know it.

For these and many other reasons, we must hold rogue actors like Russia to account, but we must do so by carving out a legal pathway. It is difficult to quantify the misery of Ukraine in dollars and cents, but the World Bank has estimated the cost of war at US$600 billion.

Ukraine itself estimates that it requires $7 billion a month in aid, and these figures keep growing exponentially as Russia refuses to end its military operations and continues to target both the civilian population and the civilian infrastructure in breach of the orders of the International Court of Justice and the European Court of Human Rights decisions made in March of 2022.

Whilst the war is ongoing, the international community is mostly united in its condemnation of Russia’s aggression and support for rebuilding Ukraine. On November 14, 2022, the United Nations General Assembly passed Resolution ES-11/5, recognizing that under international law, Russia will owe Ukraine reparations at the end of the war.

However, given Russia’s total failure to comply with any international court orders so far, it is unlikely that Russia will comply with any future judgments that award reparations to Ukraine, and even if these payments were negotiated at some point in the future, Ukraine needs the money now. This is why timing matters. Funds to repair ongoing damage must be found now, before the damage to Ukraine’s economy and its people becomes irreversible, meaning that Russia wins even if it loses the war.

I remind senators of my previous bill, the frozen assets repurposing act. The spirit of that bill was adopted by the government in its Budget Implementation Act, 2022.

Its principles and the principles of this legislation are the same. They are, first, that this is an illegal war that Russia has waged, and, therefore, Russia must be held accountable. Second, Russia must pay for the misery and damage it has wilfully wrought. Third, Russia must pay now and not at some vague point in the future.

As a result of the previous legislation, which was adopted by Canada, Canada is now legally able to seize the frozen assets of corrupt foreign officials and non-state entities and repurpose them to alleviate the suffering of the people who have been harmed. The government is using this power now to seize the assets of Russian oligarchs. In December of last year, as per the new authority granted to it by law, the Minister of Foreign Affairs moved to seize and pursue the forfeiture of $26 million from Granite Capital Holdings Ltd, a corporation belonging to Roman Abramovich, and is pursuing the forfeiture of his assets through the sanctions outlined in SEMA.

In February of this year, the federal government moved to confiscate the Antonov-124 aircraft, the Russian cargo aircraft owned by a subsidiary of the Volga-Dnepr Airlines and Volga‑Dnepr Group. This aircraft was grounded at Toronto Pearson international airport at the start of the war and is currently still parked on the runway.

As the law intended, these cases are now before the courts to provide for due process to these private assets. If forfeited, these assets can be used to provide necessary funds to help the victims of Russian aggression and to hold the perpetrators to account.

However, as we all well know in this chamber, the devil is always in the details of legislation. So whilst the new law applies and is being applied to oligarch assets, it gets ensnared in other legislation when it comes to the confiscation, seizure and forfeiture of state assets located in Canada.

State assets, particularly central bank assets, are where the big money lies, the big money that is required to rebuild Ukraine. Since the war, roughly $300 billion of Russian state assets have been frozen by various G7 jurisdictions. You will want to know the value of Russian state assets held in Canada today. At the end of 2021, just before Russia launched its war, the sum value of its assets in Canada was $16 billion, which far outstrips, by the way, the sum value of Russian oligarch assets in Canada. But in a pre‑emptive move, I imagine, Russia removed $16 billion of its assets from Canada to Belgium, where they now lie frozen.

I am not able to say with certainty what the remaining value of Russian state assets in Canada now is. I have heard that it is likely negligible, and you may well ask, “Why bother, then?” Whether it is $1 or $16 billion, the principles and objective of my bill still apply, and they are as follows: to create a legal avenue for Canada to seize state assets and, more importantly, to create a legal precedent that can be followed by other like-minded jurisdictions.

This move is urgent. As you likely know, the biggest supporter of Ukraine in absolute dollar terms — the United States — is facing a political challenge in continuing its support of Ukraine through tax dollars. Opposition to Ukraine aid appears to have become a litmus test for some on the far right. The New York Times states that the isolationist views of hard-line Republicans argue that:

. . . sending tens of billions of dollars to Kyiv [in Ukraine] risks dragging the United States into a head-on conflict with Russia and siphons money away from domestic challenges. . . .

The presidential election in the U.S. at the end of 2024 will be a watershed moment — not just for the U.S. or us, but especially for Ukraine.

As we also know, this sentiment may not just be confined to the U.S. as populist nationalism is witnessing a resurgence in many parts of the world. Therefore, the passage of this bill, which has the rich state assets of Russia as its target, will be watched carefully by others who would wish to continue their support for Ukraine, but may be challenged by domestic realities to find new sources of funding for it.

The $300 billion of frozen state assets of Russia is a source for such funding, but frozen assets are technically not good to anyone because they are frozen. They are immobilized. In June of this year, the British government announced that it will keep Russian funds immobilized until Russia compensates Ukraine. The European Union, or EU, has also announced that it will do the same, but might transfer the profits earned on Russian funds to Ukraine.

But, at best, these are mere half measures. They simply leave these assets in permanent limbo — useless to all. Unless a nation is bold enough, or courageous enough, to take the first step of asset seizure, these assets will likely remain frozen long after the war is over.

Because Canada likely only has a small amount of Russian state assets, we also have a unique opportunity to reach for a low‑risk yet high-impact opportunity to set the pace so that others follow. Being the first nation to do so puts us in an extraordinary position of global leadership by explaining the international rationale and the domestic pathway to do so.

That was the intent of the first seizure and forfeiture law I proposed, which has since been adopted into law. Since Canada’s bold move, others have gathered around it.

Obviously, Ukraine has its own legislation covering Russian state assets, but legislation has been proposed in the U.K. in both houses of Parliament. The EU has set up a freeze and seize task force, and the European Parliament has passed a resolution that calls on Russia to provide war reparations to Ukraine, arguing that frozen Russian assets should be legally confiscated in accordance with international law.

In the U.S., Congress has passed amendments to allow for the sale and process of assets from sanctioned Russian oligarchs and entities supporting Putin to be used for the benefit of the Ukrainian people. Estonia is the first member of the EU to table domestic legislation to seize and repurpose Russian oligarch assets for the benefit of Ukraine.

As I had hoped, this Canadian rolling stone is gathering much moss. This is a unique and timely example of middle power Canada charting the way forward so that others follow.

But the way forward has thrown up a challenge; let me call it a mechanical challenge of a legal kind. As we know, there are limitations that impact how Canada and any other state can treat the property of another state, whether that property is assets in banks, real estate or others. The principle of sovereign immunity is a precedent under international law, which stipulates that “. . . one sovereign state cannot be sued before the courts of another sovereign state without its consent.”

Specifically in Canada, the State Immunity Act governs this principle. It states that “. . . a foreign state is immune from the jurisdiction of any court in Canada.” This means that if the Canadian government were to commence judicial proceedings to confiscate a foreign state’s asset, the relevant foreign state would be able to claim its immunity from such proceedings on the basis that no Canadian court has any jurisdiction to adjudicate in any proceedings involving a foreign state, thereby blocking any attempt by the court to make an order as regards its state property.

On the surface, it would appear that this prevents the implementation of the seizure and repurposing of Russian state assets because they are of a sovereign nature.

The current regime under the Special Economic Measures Act, or SEMA, allows for the seizure and repurposing of assets through the courts. I think we all agree that assets owned by individuals or non-state entities must have due process before the state takes them away. This is a fundamental principle in Canada.

However, because this process goes through the courts, Russian state assets are excluded from seizure and repurposing because of sovereign immunity laws.

Recognizing this hurdle, legal experts in Canada, including former Attorney General Allan Rock and noted academic Rob Currie, as well as legal experts outside of Canada, including Jamison Firestone, Tetyana Nesterchuk, Laurence Tribe and Yuliya Ziskina, pointed to a different route, which is presented in this proposal.

Whilst the State Immunity Act limits court action against another state, its reach does not extend to executive actions, such as cabinet orders. As such, state assets are shielded from legal proceedings in court, but they are not shielded from executive actions. The bill before you amends SEMA to allow for the confiscation of state assets by executive action, thereby creating two paths for seizure: one through the courts for individual assets, and another through executive action by the Governor-in-Council. Think of it as two highways with the same destination, but different routes.

Clause 5.41 of the bill says the Governor-in-Council may, by order, have any property that is the subject of an order made under paragraph 4(1)(b) and that is owned — or that is held or controlled directly or indirectly — by a foreign state to be forfeited to His Majesty in right of Canada.

Inserting this language specifically gives the authority of the government to seize and forfeit assets held by a foreign state. To ensure that SEMA follows actions that don’t infringe on the State Immunity Act, the act is amended by adding the following after subsection 5.4(1):

(1.‍1) An order made under subsection (1) cannot relate to property that is owned, held or controlled, directly or indirectly, by a foreign state.

Colleagues, this clause would take the court process out of the seizing and forfeiture of state assets and leave it to executive action if, and only if, the underlying conditions under SEMA have been met. In other words, there must be a breach of international peace and security and/or gross human rights violations.

To be clear, SEMA already provides for the seizure of state assets, but the mechanism is flawed. This bill simply provides for amending the legal mechanism so that the law can fulfill its stated purposes, should Canada choose to seize and repurpose sovereign state assets.

Some will argue that this is a breach of international conventions — that one state cannot simply seize the assets of another state in its jurisdiction — and yet there is no real dispute that Russia has breached international law by its illegal invasion of Ukraine. Authors Allan Rock, Rob Currie and Fen Hampson — in their paper titled “Leading by Example” — argue that state-on-state armed attacks tops the list of breaches of pre‑emptory norms, and are a direct violation of international law. Refraining from aggressive war is a core rule of international law. They go on to say:

. . . given that we are asking questions about international law breaches, it is essential to focus on the direct violation of international law that gives rise to all of this: Russia’s invasion of Ukraine. . . .

The United Nations General Assembly in its Resolution ES-11/1 in March 2022 deplored “. . . in the strongest terms the aggression by the Russian Federation against Ukraine in violation of Article 2(4) of the Charter . . . .” — it’s the article which is said to be the cornerstone of the UN Charter. That resolution was supported by 141 nations, with only 5 voting against it, and you will guess right: Russia, Belarus, North Korea, Syria and Eritrea.

In a Washington Post opinion piece, three prominent U.S. thought leaders — Lawrence Summers, former Secretary of the Treasury and former president of Harvard University; Philip Zelikow; and Robert Zoellick, former president of the World Bank — argue that the roughly $300 billion of Russian central bank assets could legitimately be repurposed for the reconstruction of Ukraine because:

Those who hold Russian assets are entitled, under the international law of state countermeasures for a grave breach of international law, to cancel their obligations to the Russian state and apply Russian state funds to what Russia owes.

Given this, they go further and suggest that Canada and other like-minded states are not only permitted to act against Russian aggression but are, in fact, obliged to do so.

In addition, Article 41 of the articles on Responsibility of States for Internationally Wrongful Acts confirms that Canada and others can invoke countermeasures as provided for in Chapter 11 of this agreement.

The principle behind countermeasures is that a state, in this case Canada, can suspend an obligation it has under international law in a way that is intended to bring the offending state back into compliance with international legal obligation. In this case, it is Russia’s breach with the invasion of Ukraine and its failure to compensate for the devastation it has caused. If it is a valid countermeasure, then seizure of state assets in itself is not a breach of international law. Quite the opposite: It is a valid and lawful response to Russia’s breach of fundamental norms of forbidding one state from mounting an armed attack on another.

There is precedent for this kind of action. As lawyers Jamison Firestone, Tetyana Nesterchuk and Yuliya Ziskina argue:

. . . the most applicable countermeasures precedent is the transfer of Iraqi state funds during the Gulf War in 1992. After Iraq invaded Kuwait in 1990, former U.S. President George Bush issued an October 1992 executive order “directing and compelling” every U.S. bank holding Iraqi state funds to transfer them to the Federal Reserve Bank of New York in compliance with a U.N. resolution that called for the compensation of the victims of that aggression. The executive order “authorized, directed, and compelled” the Federal Reserve Bank of New York to receive these funds and to “hold, invest, or transfer” them to serve the purposes of the U.N. resolution.

Countermeasures have been used by Canada. For example, after the invasion of Afghanistan by the U.S.S.R., Canada suspended Soviet fishing rights in its exclusive economic zone. Canada again suspended landing rights for the Soviet Aeroflot after the shooting down of a Korean Air Lines passenger plane in 1983. Canada again used countermeasures against the apartheid regime of South Africa, and used them again in the 1990s in the conflict in Serbia.

No doubt this proposal sets a precedent, but, if it does so, then it sets a positive one. The norms against aggression, war crimes and genocide are currently being tested to a degree the world has rarely seen. If states considering similar acts of aggression see that their conduct would be met with swift and severe consequences, such as the seizure of their sovereign assets, then they are far more likely to think once, twice and many more times before taking a step.

In short, if Canada and other Western states want to face fewer crises like the one facing Ukraine, then we should send the unmistakable message to the international community that Russia’s conduct will not be tolerated. Hesitation and appeasement only send aggression-encouraging signals. I believe that the world’s appeasement of Russia after its invasion of Crimea in 2014 was misplaced, as we all know now.

I grant that seizing state assets, including central bank assets, is an extraordinary move. These are, however, extraordinary times. If we do not demonstrate resolve, if we fail to act in legal ways to hold Russia accountable, then we will likely open the door for other rogue nations with territorial ambitions to act with impunity.

This proposal, therefore, uses domestic law in accordance with international law mechanisms as a deterrent. It upholds the rule of law in the international legal order.

Russia cannot hide behind international law because it has broken every tenet of it. Laurence Tribe, who is likely the foremost constitutional scholar in the U.S., writes:

It would be a cruel irony to deny Ukraine the funds it needs by invoking respect for Russia’s “sovereignty” and “property rights” when Russia has chosen to trample on [those] of the Ukrainian people.

Now to turn to what Russia is doing in this sphere, in April of 2023 Putin signed a decree allowing Russia to expropriate property from unfriendly countries — basically any country that has placed sanctions against it, of course, including Canada, the U.S., the U.K., all EU countries, Japan and South Korea.

On September 23, when President Zelenskyy was visiting Canada, Canada and Ukraine agreed to create a G7 task force on the seizure and forfeiture of Russian state assets. The bill before you today will provide a way forward for those efforts. The government of Ukraine supports this measure.

Iryna Mudra, the Deputy Minister of Justice for Ukraine, writes:

The Ukrainian government sees Russian sovereign assets as the key source of compensation for victims of Russia’s illegal war and we are very grateful to Canada for taking the lead on this important issue and setting a clear precedent for other nations to follow.

Colleagues, the bill before you today holds Russia to account. It creates a legal pathway for Canada and others who will follow us to use Russian state assets to compensate Ukraine. It does so in a manner that is sensitive to the needs of Ukraine today and not at some future time. It gives expression to the sentiments of President Zelenskyy in our Parliament last month when he stated that Canada stands out as a “bright” light to the rest of the world. Let us be that light and shine not just through our aspirations but through our actions.

It is also a warning light to other bad actors. Although I have spoken primarily in the context of Russia and Ukraine, the proposal will amend SEMA in general, which would allow for similar actions against other bad state actors that perpetuate mass crimes. I hope that is clear. It does not mention Russia or Ukraine in the amendments.

Before I close, I wish to thank my many advisers who have helped me in navigating these tricky waters. They are academics, foreign policy experts, international lawyers from Canada, the U.S., the U.K. and Ukraine. I call them my brain trust, because I know it takes a village to raise a legislative child, especially when that child is a private bill.

On their behalf, and on behalf of the many victims of the Russian war in Ukraine, I ask for your support. Thank you.

Hon. Ratna Omidvar moved second reading of Bill S-262, An Act to amend the Citizenship Act (Oath of Citizenship).

(On motion of Senator Omidvar, debate adjourned.)

On Other Business, Senate Public Bills, Second Reading, Order No. 19:

Second reading of Bill S-263, An Act respecting the National Strategy to Combat Human Trafficking.

Hon. Ratna Omidvar: Honourable senators, I give notice that, at the next sitting of the Senate, I will move:

That, notwithstanding the order of the Senate adopted on Thursday, May 19, 2022, the date for the final report of the Standing Senate Committee on Social Affairs, Science and Technology in relation to its study on the Canadian assisted human reproduction legislative and regulatory framework be extended from October 31, 2023, to June 30, 2025.

Hon. Ratna Omidvar introduced Bill S-278, An Act to amend the Special Economic Measures Act (disposal of foreign state assets).

(Bill read first time.)

Hon. Ratna Omidvar introduced Bill S-279, An Act to amend the Income Tax Act (data on registered charities).

(Bill read first time.)

Hon. Ratna Omidvar: Thank you, Senator Miville-Dechêne. You had an excellent experience in Quebec with seven years of on-site daycare at your place of work. Perhaps one day this chamber will also make a decision to have on-site daycare for younger senators and staff.

In an earlier part of your speech, you raised the issue of quality. I was not able to get my question to Senator Moodie, but she also raised the issue that quality child care is not-for-profit public child care. We fund health care through the public dollar, and we fund public health care. We fund education through the public dollar, and we fund public education.

In this bill, the word “public” appears once in reference to the annual report, in a way such as the annual report shall be tabled publicly. Can you reflect upon that? Do you think this is either something every province will negotiate or has negotiated with the federal government or should the words “public not-for-profit child care” be in this framework legislation?

Thank you.

[Translation]

Hon. Ratna Omidvar: Honourable senators, this month, we marked the one-year anniversary of the death of Mahsa Amini — her murder, in fact, at the hands of the morality police in Iran.

Her death unleashed a roar of defiance by women in Iran, whose lives and freedoms are restricted not simply by law but, in fact, by the constitution of the Islamic Republic of Iran. Women who are LGBTQ, religious and/or ethnic minorities face double and triple jeopardy.

After Mahsa’s death, women took to the streets in droves to protest gender apartheid, temporarily shutting down the morality police. But they paid a heavy price for this — 22,000 were arrested and hundreds were blinded, raped and tortured for simply being part of a protest. More than 500 were killed — 70 of them mere children.

But the women took courage from the solidarity expressed in their fight for freedom, including here on the streets in Canada and, indeed, by remarks here in this chamber.

After one year, the headlines of the revolt have retreated, and some of us may think that the revolution has been snuffed out and that this was a mere brief moment in time. This is why I stand to inform the chamber that the revolution has not retreated. It has taken on another subverted form of expression.

Civil disobedience and micro protests have replaced marches on the street. Women flout the compulsory hijab law every day, leaving the authorities incapable of dealing with the volume of the infractions of the law. Young boys and men are wearing shorts in solidarity because wearing shorts is also illegal in Iran. There are flash protests by women who roller skate, ride on a bike and sing and dance for a nanosecond on the street because — guess what — joy itself is a crime for the women in Iran.

In the face of these organic protests, the regime has set up video surveillance, face recognition technology and misinformation on social media to entrap the protesters.

I cannot predict when women in Iran will enjoy the freedoms they deserve, but in their hearts and minds, there will always be a time that was before Mahsa, and now there is a time after Mahsa. There is a reason why TIME magazine named Iranian women the heroes of 2022.

Mahsa’s death was senseless, but it was not in vain. She died for women, life and freedom.

Hon. Ratna Omidvar: Honourable senators, I first want to thank Senator Boisvenu for his relentless advocacy on behalf of victims of sexual crimes. I wish I could rise after that with somewhat more elevating words, but I can’t because tomorrow is June 23. It is a day that is seared in our national memory by a profoundly solemn and horrifying day from our past.

Thirty-eight years ago, on June 23, Air India Flight 182 was brutally torn apart by a bomb explosion over the coast of Northern Ireland. All 329 passengers on board, including 82 children, 6 babies and 29 entire families, lost their lives in this heinous act. This devastating event remains the most atrocious act of terrorism in the history of Canada.

The families of the victims remember this tragic day every year. Most Indo-Canadians — and I look around to my Desi colleagues, who are nodding their heads — remember exactly what we were doing at that moment when we received the news. We recall the phone calls that we made to sons and daughters, mothers and sisters, fathers and brothers, and wives and husbands, as we wrapped our arms around them.

Just last night, I was with a friend whose uncle was the pilot on that ill-fated flight.

Subsequently, inquiries and criminal investigations were launched. Miscommunication and competition between Canada’s security agencies were disclosed, but justice was not done. The Indian-Canadian community of victims organized and agreed to memorialize June 23 as the National Day of Remembrance for Victims of Terrorism. I commend them for being inclusive of other victims of terrorism.

But this inclusion has come at a cost to them. Angus Reid Institute released a poll today that said that 9 out of 10 Canadians know little or nothing about the largest successful terrorist attack against Canadians — and those who were lost are likely to be forgotten.

In 2018, I wrote to Canada Post, requesting them to memorialize the Air India victims, in particular, through a stamp. I received a note back from the Director of Stamp Services saying they would bring it to the attention of the Stamp Advisory Committee. It has been radio silence since then.

I have undertaken to rise as many times as I can to mark this day. In this chamber, at least, colleagues, let’s remember, let’s honour and let’s keep their memory alive.

[Translation]

Hon. Ratna Omidvar: Honourable senators, I rise today, as I do every year, to recognize World Refugee Day on June 20.

I wish I had good news for you, but I don’t. As per the UNHCR, more than 110 million people — a record high — have fled persecution, conflict, violence, climate change and discrimination. The war in Ukraine, refugees fleeing Afghanistan and fighting in Sudan have all contributed to this mass movement of people, either internally or across borders.

Colleagues, global displacement has been rising at an ever‑increasing pace. Before the conflict in Syria in 2011, there were about 40 million refugees in the world, a number that had held steady for 20 years before then. Now, in just 12 years, that number has not just doubled; it has tripled.

As this number has risen, so too have the interdiction measures undertaken by nation states to prevent individuals from reaching safety and exercising their rights under the UNHCR convention. The EU has struck a deal with Libya. The U.K. has confirmed its intentions to offshore migrant processing to Rwanda. Turkey has come to a financial arrangement to hold refugees in its jurisdiction and prevent them from travelling westward. Most appallingly, colleagues, last weekend we willingly watched and waited and watched and waited and let 700 people die off the shores of Greece, including 100 children. We did nothing. We watched and waited.

Canada is, of course, proud to have set a record in welcoming and resettling refugees over the past four years — more than we ever have before and more than any other country. And yet we, too, have put a cap on private sponsorships in Bill C-47, and the government’s Immigration Levels Plan sets out a reduction on government-assisted refugees. One could argue those are the most vulnerable.

In all of this despair, I stay true to my name and look for a point of light. I see that point of light in the resilience of refugees themselves, who painstakingly continue their search for a home, for safety and security. And when they find safety, they build our nation — like the captain of the Canadian soccer team, Alphonso Davies, or “chocolate king” Tareq Hadad.

But most importantly, I want to pay tribute to mothers and daughters, sisters and girlfriends who face a harsh future of human and sex trafficking and are most vulnerable. For their sake, for the sake of their children, let’s do more, let’s do it faster, and let’s do it better. Thank you.

[Translation]

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.