Regulations Amending the Justice for Victims of Corrupt Foreign Officials Regulations: SOR/2018-25

Canada Gazette, Part II: Volume 152, Number 5

Registration

February 16, 2018

JUSTICE FOR VICTIMS OF CORRUPT FOREIGN OFFICIALS ACT (SERGEI MAGNITSKY LAW)

P.C. 2018-146 February 15, 2018

Whereas the Governor in Council is of the opinion that one or more of the circumstances described in subsection 4(2) of the Justice for Victims of Corrupt Foreign Officials Act (Sergei Magnitsky Law)^{footnote a} have occurred;

Therefore, Her Excellency the Governor General in Council, on the recommendation of the Minister of Foreign Affairs, pursuant to sections 4 and 14 of the Justice for Victims of Corrupt Foreign Officials Act (Sergei Magnitsky Law)^{footnote a}, makes the annexed Regulations Amending the Justice for Victims of Corrupt Foreign Officials Regulations.

Regulations Amending the Justice for Victims of Corrupt Foreign Officials Regulations

Amendment

1 The schedule to the Justice for Victims of Corrupt Foreign Officials Regulations^{Footnote 1} is amended by adding the following in numerical order :

• 53 Maung Maung Soe (born in March 1964)
  

Application Before Publication

2 For the purpose of paragraph 11(2)(a) of the Statutory Instruments Act, these Regulations apply before they are published in the Canada Gazette.

Coming into Force

3 These Regulations come into force on the day on which they are registered.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issues

The Justice for Victims of Corrupt Foreign Officials Regulations enable Canada to address the impunity of foreign individuals responsible for or complicit in incidents of gross violations of internationally recognized human rights.

The Regulations Amending the Justice for Victims of Corrupt Foreign Officials Regulations (the Regulations) list one foreign national who, in the opinion of the Governor in Council, is responsible for or complicit in gross violations of internationally recognized human rights against individuals in Myanmar who seek to obtain, exercise, defend or promote internationally recognized human rights and freedoms.

Background

Canada has expressed concern with respect to the current situation of the Rohingya, an ethnic minority traditionally living in Myanmar’s Rakhine State. For decades, this Muslim community has been the subject of systematic discrimination and widespread human rights violations in Myanmar.

On August 25, 2017, border guard, police and army posts across northern Rakhine State were attacked by the Arakan Rohingya Salvation Army (ARSA), a militant Rohingya organization. In response to the attacks, Myanmar’s armed forces launched security operations in northern Rakhine. Since then, more than 655 000 Rohingya refugees have fled into neighbouring Bangladesh, triggering a large-scale humanitarian crisis. These refugees have joined hundreds of thousands of Rohingya already in Bangladesh following earlier waves of displacement. Arriving in neighbouring Bangladesh, refugees have given accounts of how Rohingya civilians suffered human rights violations at the hands of the Myanmar army, including infanticide, gang rape and other types of sexual violence, mass killings as well as arson.

The Regulations amend the schedule to include Major General Maung Maung Soe, a Myanmar national and a high-level military official who was formerly the chief of the Western Command in Myanmar’s army in charge of military operations in Myanmar’s Rakhine State. In that capacity, Maung Maung Soe was responsible for overseeing military operations launched in northern Rakhine in both October 2016 and late August 2017, and is therefore, in the opinion of the Governor in Council, assessed to be responsible for these reported extrajudicial killings and other gross violations of internationally recognized human rights committed against Rohingya individuals in northern Rakhine.

Objectives

The main objectives of the Regulations are

• to signal Canada’s international condemnation of one of the individuals responsible for or complicit in gross violations of internationally recognized human rights against individuals who are seeking to obtain, exercise, defend or promote internationally recognized human rights and freedoms or who seek to expose illegal activities carried out by a foreign public official; and
• to end impunity for the individual responsible for or complicit in these acts by restricting dealings in property and freeze the assets of listed foreign nationals.

Description

Section 4 of the Justice for Victims of Corrupt Foreign Officials Act (the Act) enables the Governor in Council to make orders and regulations to restrict dealings in property and freeze the assets of certain individuals, if the Governor in Council is of the opinion that the individual is

• a foreign national who is responsible for, or complicit in extrajudicial killings, torture or other gross violations of internationally recognized human rights committed against individuals in any foreign state who seek to expose illegal activity carried out by a foreign public official or to obtain, exercise, defend or promote internationally recognized human rights and freedoms, such as freedom of conscience, religion, thought, belief, opinion, expression, peaceful assembly and association, and the right to a fair trial and democratic elections;
• a foreign national who acts as an agent of or on behalf of a foreign state in a matter relating to an activity described above; and
• a foreign public official, or an associate, who is responsible for or complicit in ordering, controlling, or otherwise directing acts of significant corruption; or a foreign national has materially assisted, sponsored, or provided financial, material or technological support for, or goods or services in support of, an act of significant corruption by a foreign public official or their associate.

Pursuant to subsection 4(3) of the Act, the Regulations prohibit any dealing in the property of the listed foreign national, Maung Maung Soe. In addition, they prohibit the provision or acquisition of any financial services to or for the benefit of Maung Maung Soe. Finally, no property can be made available for the benefit of Maung Maung Soe. These prohibitions apply to all persons in Canada and Canadians outside Canada.

The individual listed in the schedule to the Regulations is also inadmissible to Canada, pursuant to the Immigration and Refugee Protection Act.

The Justice for Victims of Corrupt Foreign Officials Permit Authorization Order authorizes the Minister of Foreign Affairs to issue to any person in Canada and Canadian outside Canada a permit to carry out a specified activity or transaction, or any class of activity or transaction, that is otherwise prohibited pursuant to the Regulations, and issue a general permit to all persons to carry out a class of activity or transaction that is otherwise prohibited pursuant to the Justice for Victims of Corrupt Foreign Officials Regulations.

“One-for-One” Rule

The Regulations are made to address a unique and exceptional circumstance and are therefore carved out from the “One-for-One” Rule.

Small business lens

The Regulations do not create additional costs for small business nor increase the administrative burden on business. Listing a name in the Regulations simply adds a name to an existing list and an existing compliance process. As a result, these Regulations impose no costs and nationwide impacts of the Regulations do not exceed $1 million annually.

Consultation

Public consultation on the Regulations would not be appropriate, as publicizing the name of the listed individual targeted by sanctions would result in asset flight prior to the coming into force of the Regulations.

Rationale

Canada condemns the gross violations of internationally recognized human rights that occurred and that continue to occur in Myanmar. To that end, the Governor in Council makes the Regulations to add one individual to the schedule to the Regulations. This individual was responsible for overseeing military operations launched in northern Rakhine in October 2016 and in late August 2017 and is therefore, in the opinion of the Governor in Council, assessed to be responsible for these activities. His listing signals Canada’s condemnation of individuals responsible for or complicit in gross violations of internationally recognized human rights and intent to end impunity for individuals who commit these acts, without significant impact on Canadian business activity.

Implementation, enforcement and service standards

Canada’s sanctions regulations are enforced by the Royal Canadian Mounted Police. In accordance with section 11 of the Act, every person who willfully contravenes the Justice for Victims of Corrupt Foreign Officials Regulations is liable upon summary conviction to a fine of not more than $25,000 or to imprisonment for a term of not more than one year or to both, or upon conviction on indictment to imprisonment for a term or not more than five years. In addition, Immigration, Refugees and Citizenship Canada and the Canada Border Services Agency administer the Immigration and Refugee Protection Act and implement the travel restrictions associated with these Regulations.

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