Vol. 145, No. 6 — March 16, 2011

Registration

SOR/2011-51 February 27, 2011

SPECIAL ECONOMIC MEASURES ACT UNITED NATIONS ACT

ARCHIVED — Regulations Implementing the United Nations Resolution on Libya and Taking Special Economic Measures

P.C. 2011-253 February 27, 2011

Whereas the Security Council of the United Nations, acting under Article 41 of the Charter of the United Nations, adopted Resolution 1970 (2011) on February 26, 2011;

Whereas that resolution calls for the taking of economic measures against Libya;

Whereas it appears to the Governor in Council to be necessary to make regulations for enabling the measures set out in that resolution to be effectively applied;

And whereas the Governor in Council is of the opinion that the situation in Libya constitutes a grave breach of international peace and security that has resulted or is likely to result in a serious international crisis;

Therefore, His Excellency the Governor General in Council, on the recommendation of the Minister of Foreign Affairs, hereby makes the annexed Regulations Implementing the United Nations Resolution on Libya and Taking Special Economic Measures pursuant to

(a) subsections 4(1) to (3) of the Special Economic Measures Act (see footnote a); and

(b) section 2 of the United Nations Act (see footnote b).

REGULATIONS IMPLEMENTING THE UNITED NATIONS RESOLUTION ON LIBYA AND TAKING SPECIAL ECONOMIC MEASURES

INTERPRETATION

1. The following definitions apply in these Regulations.

“armed mercenary personnel” means any person who

(a) is specially recruited locally or abroad to use arms and related material in Libya;

(b) uses arms and related material in Libya and is motivated essentially by the desire for private gain;

(c) is not a member of the Libyan armed forces; and

(d) has not been sent to Libya by a state on official duty as a member of that state’s armed forces. (personnel mercenaire armé)

“arms and related material” means any type of weapon, ammunition, military vehicle or military or paramilitary equipment, and includes their spare parts. (armes et matériel connexe)

“Committee of the Security Council” means the Committee of the Security Council of the United Nations established under paragraph 24 of Security Council Resolution 1970. (Comité du Conseil de sécurité)

“designated person” means, subject to subsections 7(1) and 8(1),

(a) a person

(i) whose name appears on Annex II to Security Council Resolution 1970;

(ii) that is designated by the Security Council of the United Nations under paragraph 17 of Security Council Resolution 1970; or

(iii) that is designated by the Committee of the Security Council under paragraph 24(c) of Security Council Resolution 1970; or

(b) Libya. (personne désignée)

“Libya” means the Socialist People’s Libyan Arab Jamahiriya and includes

(a) any political subdivisions of Libya; and

(b) the Government of Libya, and any of its departments, institutions or agencies, including the Central Bank of Libya or the government of a political subdivision of Libya. (Libye)

“Minister” means the Minister of Foreign Affairs. (ministre)

“property”

(a) in respect of a person referred to in paragraph (a) of the definition “designated person”, means property of every description and documents relating to or evidencing the title or right to property, or giving a right to recover or receive money or goods, and includes any funds, financial assets or economic resources; and

(b) in respect of the person referred to in paragraph (b) of the definition “designated person”, has the same meaning as in section 2 of the Special Economic Measures Act. (bien)

“Security Council Resolution 1970” means Resolution 1970 (2011) of February 26, 2011, adopted by the Security Council of the United Nations. (résolution 1970 du Conseil de sécurité)

“technical assistance” means any form of assistance, such as providing instruction, training, consulting services or technical advice or transferring know-how or technical data. (aide technique)

“working day” means a day that is not Saturday or a holiday. (jour ouvrable)

APPLICATION

2. These Regulations are binding on Her Majesty in right of Canada or a province.

PROHIBITIONS

3. No person in Canada and no Canadian outside Canada shall knowingly export, sell, supply or ship arms and related material, wherever situated, to Libya or any person in Libya.

4. (1) No owner or master of a Canadian vessel, as defined in section 2 of the Canada Shipping Act, 2001, and no operator of an aircraft registered in Canada shall knowingly carry, cause to be carried or permit to be carried arms and related material, wherever situated, destined for Libya or any person in Libya.

(2) No owner or master of a Canadian vessel, as defined in section 2 of the Canada Shipping Act, 2001, and no operator of an aircraft registered in Canada shall knowingly carry, cause to be carried or permit to be carried arms and related material, that are exported, sold, supplied or shipped from Libya after the day on which these Regulations come into force, whether the goods originated in Libya or elsewhere.

5. No person in Canada and no Canadian outside Canada shall knowingly provide or transfer, to any person in Libya, technical assistance, financial assistance or other assistance related to military activities, including the recruitment or provision of armed mercenary personnel, or the provision, manufacture, maintenance or use of arms and related material.

6. No person in Canada and no Canadian outside Canada shall knowingly import or procure arms and related material, wherever situated, from any person in Libya or any national of Libya.

7. (1) In this section and in sections 14 to 16, “designated person” means a person referred to in paragraph (a) of the definition “designated person” in section 1.

(2) No person in Canada and no Canadian outside Canada shall knowingly

(a) deal, directly or indirectly, in any property in Canada as of February 26, 2011 or at any time after that date, that is owned or controlled by a designated person, by a person acting on behalf of, or at the direction of, a designated person or by a person owned or controlled by a designated person;

(b) enter into or facilitate, directly or indirectly, any financial transaction related to a dealing referred to in paragraph (a);

(c) provide any financial or other related service in respect of the property referred to in paragraph (a);

(d) make any property or any financial or other related service available to a designated person, to a person acting on behalf of, or at the direction of, a designated person or to a person owned or controlled by a designated person; or

(e) make property or any financial or other related service available for the benefit of any person referred to in paragraph (d).

8. (1) In this section, “designated person” means the person referred to in paragraph (b) of the definition “designated person” in section 1.

(2) No person in Canada and no Canadian outside Canada shall

(a) deal in any property, wherever situated, held by or on behalf of a designated person;

(b) enter into or facilitate any transaction related to a dealing referred to in paragraph (a);

(c) provide any financial or other related service in respect of a dealing referred to in paragraph (a);

(d) make any goods, wherever situated, available to a designated person; or

(e) provide any financial or financial-related service to or for the benefit of a designated person.

9. No person in Canada and no Canadian outside Canada shall

(a) knowingly do anything that causes, assists or promotes or is intended to cause, assist or promote any act or thing prohibited by sections 3 to 7; or

(b) do anything that causes, assists or promotes or is intended to cause, assist or promote any act or thing prohibited by section 8.

DUTY TO DETERMINE

10. Each of the following entities shall determine on a continuing basis whether it is in possession or control of property owned or controlled by or on behalf of a designated person:

(a) authorized foreign banks, as defined in section 2 of the Bank Act, in respect of their business in Canada or banks to which that Act applies;

(b) cooperative credit societies, savings and credit unions and caisses populaires regulated by a provincial Act and associations regulated by the Cooperative Credit Associations Act;

(c) foreign companies, as defined in subsection 2(1) of the Insurance Companies Act, in respect of their insurance business in Canada;

(d) companies, provincial companies and societies, as those terms are defined in subsection 2(1) of the Insurance Companies Act;

(e) fraternal benefit societies regulated by a provincial Act in respect of their insurance activities and insurance companies and other entities engaged in the business of insuring risks that are regulated by a provincial Act;

(f) companies to which the Trust and Loan Companies Act applies;

(g) trust companies regulated by a provincial Act;

(h) loan companies regulated by a provincial Act;

(i) entities that engage in any activity described in paragraph 5(h) of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act if the activity involves the opening of an account for a client; and

(j) entities authorized under provincial legislation to engage in the business of dealing in securities or to provide portfolio management or investment counselling services.

DISCLOSURE

11. (1) Every person in Canada and every Canadian outside Canada shall disclose without delay to the Commissioner of the Royal Canadian Mounted Police and to the Director of the Canadian Security Intelligence Service

(a) the existence of property in their possession or control that they have reason to believe is owned or controlled by a designated person, by a person acting on behalf of, or at the direction of, a designated person or by a person owned or controlled by a designated person; and

(b) information about a transaction or proposed transaction in respect of property referred to in paragraph (a).

(2) No person contravenes subsection (1) by disclosing in good faith under that subsection.

12. The Minister of Public Safety and Emergency Preparedness is authorized to disclose information to the Minister for the application of paragraph 13 of Security Council Resolution 1970.

13. The Minister is authorized to disclose information collected under section 12 to the Committee of the Security Council for the application of paragraph 13 of Security Council Resolution 1970.

EXCEPTIONS

14. (1) A person claiming not to be a designated person may apply to the Minister for a certificate stating that they are not the person who has been designated by the Committee of the Security Council or by the Security Council of the United Nations.

(2) If it is established under subsection (1) that the applicant is not a designated person, the Minister shall issue a certificate to the applicant within 30 days after the day on which the application is received.

15. (1) A person whose property has been affected by the application of section 7 may apply to the Minister for a certificate to exempt the property from the application of that section if the property is necessary for basic or extraordinary expenses or if it is the subject of a judicial, administrative or arbitral lien or judgment, a hypothec, prior claim, mortgage, charge or security interest.

(2) The Minister shall issue a certificate, if the necessity of that property for basic or extraordinary expenses is established in accordance with Security Council Resolution 1970, or if the property is the subject of a judicial, administrative or arbitral lien or judgment, a hypothec, prior claim, mortgage, charge or security interest,

(a) in the case of property necessary for basic expenses, if the Committee of the Security Council did not refuse the release of the property, within 15 working days after receiving the application;

(b) in the case of property necessary for extraordinary expenses, if the Committee of the Security Council approved the release of the property, within 30 working days after receiving the application; and

(c) in the case of property that is the subject of a judicial, administrative or arbitral lien or judgment, a hypothec, prior claim, mortgage, charge or security interest, if the lien, judgment, hypothec, prior claim, mortgage, charge or security interest was entered into before February 26, 2011, is not for the benefit of a designated person and has been brought to the attention of the Committee of the Security Council by the Minister, within 90 days after receiving the application.

16. (1) If a contract has been entered into by a party who subsequently became a designated person, any party to that contract may apply to the Minister for a certificate to exempt property from the application of section 7 in order for any party who is not a designated person to receive a payment or for the party who is a designated person to make a payment under that contract.

(2) The Minister shall issue a certificate within 90 days after receiving the application and at least 10 working days after having informed the Committee of the Security Council of his or her intent to issue the certificate if it is established that

(a) the contract was entered into prior to any party becoming a designated person; and

(b) the payment is not to be received, directly or indirectly, by a designated person, by a person acting on behalf of, or at the direction of, a designated person or by a person owned or controlled by a designated person.

17. Sections 3 to 6 do not apply with respect to

(a) supplies of non-lethal military equipment intended solely for humanitarian or protective use, and related technical assistance and training;

(b) supplies of protective clothing and equipment, including flak jackets and military helmets, temporarily exported to Libya by United Nations personnel, representatives of the media and humanitarian and development works and associated personnel, for their personal use only; or

(c) other sales or supplies of arms and related material, or provision of assistance or personnel, as approved in advance by the Committee of the Security Council.

APPLICATION BEFORE PUBLICATION

18. 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

19. 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 or the Order.)

Issue and objectives

In late February 2011, peaceful anti-government protests in the Libyan city of Benghazi were violently suppressed by the regime of Muammar Gaddafi using local security forces and foreign mercenaries, leading to several hundred civilian deaths. The violent government response led to a general uprising in the country, which was in turn brutally suppressed. The Gaddafi regime unleashed heavily armed security police, special army regime protection units and foreign mercenaries against the civilian population, leading to further deaths and injuries to innocent civilians, believed to number in the thousands. Military units loyal to the Gaddafi regime have been ordered to use all necessary means to defeat the uprising and have carried out wide-spread and systematic attacks against the civilian population, including with air assets deployed indiscriminately in civilian areas. Some 82 000 refugees have fled into neighbouring Tunisia and Egypt, themselves states in domestic crisis, thereby contributing to regional instability.

Through its actions, the Gaddafi regime has shown itself to be entirely illegitimate, and that its hold on political power in Libya is based exclusively on the use of terror, intimidation and violence against a population seeking democratic change and protection of their fundamental human rights. On February 26, 2011, the UN Security Council passed a resolution imposing certain economic measures against Libya. In compliance with Canada’s obligations under Article 25 of the Charter of the United Nations and in response to the grave breach of international peace and security committed by the Libyan regime, Canada is imposing sanctions against Libya under the United Nations Act and the Special Economic Measures Act.

The sanctions will reinforce the message to the Libyan government that its blatant disregard for human rights and fundamental freedoms is unacceptable and condemned by the international community, while also signalling our solidarity and support for the people of Libya.

Description and rationale

The United Nations Security Council imposed a series of measures against designated individuals in Libya, as well as an arms embargo, but did not impose measures against the Libyan government itself or its institutions and agencies, including the Libyan Central Bank. These Regulations go beyond the existing United Nations Security Council sanctions imposed by Resolution 1970 (2011) by adding “Libya” as a designated entity with which financial transactions are prohibited.

The Regulations will impose the following measures:

• Restrictions on the export, sale, and other provision of arms and related materials to Libya;
• Restrictions on the shipment to or from Libya of arms and related material by owners or operators of Canadian vessels or aircraft;
• Restrictions on the provision of technical, financial and other assistance related to military activities or the use of arms and related material;
• Restrictions on the import of arms and related material from Libya; and
• Restrictions on dealings with designated persons.

Some exceptions are available, including exceptions to prohibitions made pursuant to the United Nations Act that require the prior approval of the United Nations Security Council.

A separate Permit Authorization Order made pursuant to subsection 4(4) of the Special Economic Measures Act authorizes the Minister of Foreign Affairs to issue to any person in Canada and any Canadian outside Canada a permit to carry out a specified activity or transaction, or any class of activity or transaction, with a designated person that is otherwise restricted or prohibited pursuant to the Regulations.

Consultation

The Department of Foreign Affairs and International Trade drafted the Regulations having consulted the Department of Justice and the Department of Finance Canada. International consultation was not undertaken.

Implementation, enforcement and service standards

Compliance is ensured by the Royal Canadian Mounted Police and the Canada Border Services Agency. Every person who contravenes sections 3 through 7 and paragraph 9(a) of the Regulations is liable, upon conviction, to the punishments set out in section 3 of the United Nations Act. Every person who contravenes section 8 and paragraph 9(b) of the Regulations is liable, upon conviction, to the punishments set out in section 8 of the Special Economic Measures Act. Every person who contravenes sections 10 and 11 of the Regulations is liable, upon conviction, to punishments set out in either section 3 of the United Nations Act or section 8 of the Special Economic Measures Act, as the case may be.

Contacts

Jeffrey McLaren
Director — Gulf and Maghreb Region
Department of Foreign Affairs and International Trade
125 Sussex Drive
Ottawa, Ontario
K1A 0G2
Telephone: 613-944-1249
Fax: 613-944-7431
Email: Jeffrey.mclaren@international.gc.ca

Roland Legault
Deputy Director
United Nations, Human Rights and Economic Law Division (JLH)
Department of Foreign Affairs and International Trade
125 Sussex Drive
Ottawa, Ontario
K1A 0G2
Telephone: 613-944-1599
Fax: 613-992-2467
Email: roland.legault@international.gc.ca

Sabine Nölke
Director
United Nations, Human Rights and Economic Law Division (JLH)
Department of Foreign Affairs and International Trade
125 Sussex Drive
Ottawa, Ontario
K1A 0G2
Telephone: 613-992-6296
Fax: 613-992-2467
Email: Sabine.Nolke@international.gc.ca

Footnote a
S.C. 1992, c. 17

Footnote b
R.S., c. U-2