Canadian charities wishing to operate in Afghanistan have to be able to navigate Canada’s anti-terrorism financing legislation. This is not always an easy task, and it can get in the way of charities carrying out time-sensitive, necessary or even crucial work. In a letter to Justice Minister David Lametti and Public Safety Minister Marco Mendicino, the Charities and Not-for-Profit Law Section of the Canadian Bar Association expresses its unequivocal support for three recommendations contained in the House of Commons Special Committee Report on Afghanistan and Canada’s Anti-Terrorism Legislation.
The report, titled “Honouring Canada’s Legacy in Afghanistan: Responding to the Humanitarian Crisis and Helping People Reach Safety,” seeks to empower charities to offer timely humanitarian aid “within the scope of a reasonable legislative regime,” the CBA letter says. The three recommendations the CBA Section endorses are:
9. That the Government of Canada act immediately to implement United Nations Security Council Resolution 2615.
10. That the Government of Canada act immediately to ensure that registered Canadian organizations have the clarity and assurances needed – such as carve-outs or exemptions to deliver humanitarian assistance and meet basic needs in Afghanistan without fear of prosecution for violating Canada’s anti-terrorism laws.
11. That the Government of Canada review the anti-terrorism financing provisions under the Criminal Code and urgently take any legislative steps necessary to ensure those provisions do not unduly restrict legitimate humanitarian action that complies with international humanitarian principles and law.
Many Canadian humanitarian organizations testified before the Special Committee that the country’s anti-terrorism financing laws and regulations made it nearly impossible to operate in Afghanistan.
What those organizations need is clarity and assurances that they are not going to wind up being prosecuted for having unwittingly violated anti-terrorism laws, for instance if they did not know “that terrorist activity was being facilitated, where terrorist activity was not foreseen or planned at the time of facilitation and even where no terrorist activity was actually carried out,” the letter says.
Charitable organizations also testified that the prohibition on paying taxes in Afghanistan – on salaries, rent or imports, in particular – makes their work significantly more dangerous and impedes their ability to operate in that country.
“Charities trying to comply with Canada’s anti-terrorism legislation have the difficult choice of continuing to operate in the country without paying taxes at great risk to their staff or to stop operating in Afghanistan altogether,” the Section explains.
Out of step with international practices
The Section is of the view that Canada’s anti-terrorism financing regime is not aligned with international practices such as the United Nations Security Council’s Resolution 2615 which states that “humanitarian assistance and other activities that support basic human needs in Afghanistan” do not violate the UN’s sanctions regime against the Taliban.
Canada has yet to issue an exemption for Afghanistan that would allow humanitarian organizations to operate with the speed required by the urgency of the situation on the ground without fear of violating anti-terrorism financing legislation.
Adopting past CBA recommendations
The CBA Section also suggests the timely adoption of past CBA recommendations would improve anti-terrorism financing legislation, which would result in both the federal government and Canadian charities being better able to support humanitarian efforts in Afghanistan and elsewhere.
One of those recommendations, from when the government first introduced anti-terrorism legislation in 2001, says the Crown “must prove criminal intent find anyone guilty of a terrorist offence.” There should also be a due diligence defence for Canadian charities that could accidentally distribute funds to a foreign entity in good faith. As well, the government should “develop Canadian guidelines for charities operating abroad or domestically so those charities can show due diligence in complying with anti-terrorism legislation.”