Vol. 148, No. 21 — October 8, 2014

Registration

SOR/2014-212 September 26, 2014

UNITED NATIONS ACT

Regulations Amending the United Nations Al-Qaida and Taliban Regulations

P.C. 2014-974 September 25, 2014

His Excellency the Governor General in Council, on the recommendation of the Minister of Foreign Affairs, pursuant to section 2 of the United Nations Act (see footnote a), makes the annexed Regulations Amending the United Nations Al-Qaida and Taliban Regulations.

REGULATIONS AMENDING THE UNITED NATIONS AL-QAIDA AND TALIBAN REGULATIONS

AMENDMENTS

1. (1) The definitions “Committee of the Security Council”, “Guidelines of the Committee of the Security Council”, “list of the Committee of the Security Council”, “Taliban” and “Usama bin Laden or his associates” in section 1 of the United Nations Al-Qaida and Taliban Regulations (see footnote 1) are repealed.

(2) The definitions “person associated with the Taliban” and “Security Council Resolutions” in section 1 of the Regulations are replaced by the following:

• “person associated with the Taliban” means any person listed in the 1988 Sanctions List with the exception of any entity referred to in the Regulations Establishing a List of Entities. (personne liée au Taliban)
• “Security Council Resolutions” means Resolution 1267 (1999) of October 15, 1999, Resolution 1333 (2000) of December 19, 2000, Resolution 1373 (2001) of September 28, 2001, Resolution 1390 (2002) of January 16, 2002, Resolution 1452 (2002) of December 20, 2002, Resolution 1455 (2003) of January 17, 2003, Resolution 1526 (2004) of January 30, 2004, Resolution 1617 (2005) of July 29, 2005, Resolution 1735 (2006) of December 22, 2006, Resolution 1822 (2008) of June 30, 2008, Resolution 1904 (2009) of December 17, 2009, Resolution 1988 (2011) of June 17, 2011, Resolution 1989 (2011) of June 17, 2011, Resolution 2082 (2012) of December 17, 2012, and Resolution 2083 (2012) of December 17, 2012 adopted by the Security Council of the United Nations. (résolutions du Conseil de sécurité)

(3) Section 1 of the Regulations is amended by adding the following in alphabetical order:

• “Al-Qaida Sanctions Committee” means the Committee of the Security Council established by paragraph 6 of Security Council Resolution 1267 (1999) of October 15, 1999. (Comité des sanctions contre Al-Qaïda)
• “Al-Qaida Sanctions List” means the list referred to in paragraph 2 of Security Council Resolution 1390 (2002) of January 16, 2002, and maintained by the Al-Qaida Sanctions Committee. (liste des sanctions contre Al-Qaïda)
• “Guidelines of the Al-Qaida Sanctions Committee” means the document entitled Guidelines of the Committee for the Conduct of its Work that was adopted on November 7, 2002 by the Al-Qaida Sanctions Committee, as amended from time to time. (Directives du Comité des sanctions contre Al-Qaïda)
• “Guidelines of the 1988 Sanctions Committee” means the document entitled Guidelines of the Committee for the Conduct of its Work that was adopted on November 30, 2011 by the 1988 Sanctions Committee, as amended from time to time. (Directives du Comité 1988)
• “1988 Sanctions Committee” means the Committee of the Security Council established by paragraph 30 of Security Council Resolution 1988 (2011) of June 17, 2011. (Comité 1988)
• “1988 Sanctions List” means the list referred to in paragraph 1 of Security Council Resolution 1988 (2011) of June 17, 2011, and maintained by the 1988 Sanctions Committee. (liste de la résolution 1988)
• “person associated with Al-Qaida” means any person listed in the Al-Qaida Sanctions List with the exception of any entity referred to in the Regulations Establishing a List of Entities. (personne liée à Al-Qaïda)

2. Section 3 of the Regulations is replaced by the following:

3. No person in Canada and no Canadian outside Canada shall knowingly provide or collect by any means, directly or indirectly, funds with the intention that the funds be used, or in the knowledge that the funds are to be used, by a person associated with the Taliban or a person associated with Al-Qaida.

3. (1) Paragraph 4(a) of the Regulations is replaced by the following:

• (a) deal directly or indirectly in any property of a person associated with the Taliban including funds derived or generated from property owned or controlled, directly or indirectly, by a person associated with the Taliban or by a person acting on behalf of, or at the direction of, a person associated with the Taliban;

(2) Paragraph 4(d) of the Regulations is replaced by the following:

• (d) make any property or any financial or other related service available, directly or indirectly, for the benefit of a person associated with the Taliban.

4. (1) Paragraph 4.1(a) of the Regulations is replaced by the following:

• (a) deal directly or indirectly in any property of a person associated with Al-Qaida including funds derived or generated from property owned or controlled, directly or indirectly, by a person associated with Al-Qaida or by a person acting on behalf of, or at the direction of, a person associated with Al-Qaida;

(2) Paragraph 4.1(d) of the Regulations is replaced by the following:

• (d) make any property or any financial or other related service available, directly or indirectly, for the benefit of a person associated with Al-Qaida.

5. Section 4.2 of the Regulations is replaced by the following:

4.2 No person in Canada and no Canadian outside Canada shall knowingly export, sell, supply or ship, directly or indirectly, arms and related material, wherever situated, to a person associated with the Taliban or a person associated with Al-Qaida.

6. Section 4.3 of the Regulations is replaced by the following:

4.3 No owner or master of a Canadian ship and no operator of an aircraft registered in Canada shall knowingly carry, cause to be carried or permit to be carried, directly or indirectly, arms and related material, wherever situated, that are destined for a person associated with the Taliban or a person associated with Al-Qaida.

7. Section 4.4 of the Regulations is replaced by the following:

4.4 No person in Canada and no Canadian outside Canada shall knowingly provide, directly or indirectly, technical assistance related to military activities to a person associated with the Taliban or a person associated with Al-Qaida.

8. Section 5.1 of the Regulations is replaced by the following:

5.1 (1) Each of the following entities must determine on a continuing basis whether it is in possession or control of property owned or controlled by or on behalf of a person associated with the Taliban or a person associated with Al-Qaida:

• (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 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; and
• (i) entities authorized under provincial legislation to engage in the business of dealing in securities, or to provide portfolio management or investment counselling services.

(2) Every entity referred to in subsection (1) must report monthly, to the principal agency or body that supervises or regulates it under federal or provincial law, either

• (a) that it is not in possession or control of any property referred to in subsection (1), or
• (b) that it is in possession or control of that property, in which case it must report the number of persons, contracts or accounts involved and the total value of the property.

(3) No person contravenes subsection (2) by making a report in good faith under that subsection.

9. The portion of subsection 5.2(1) of the Regulations before paragraph (b) is replaced by the following:

5.2 (1) Every person in Canada and every Canadian outside Canada must disclose without delay to the Commissioner of the Royal Canadian Mounted Police or 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 or on behalf of a person associated with the Taliban or a person associated with Al-Qaida; and

10. Subsections 5.3(1) and (2) of the Regulations is replaced by the following:

5.3 (1) Any Canadian or person in Canada claiming not to be a person associated with the Taliban or a person associated with Al-Qaida may petition the Minister in writing to be delisted from the 1988 Sanctions List or the Al-Qaida Sanctions List in accordance with the Guidelines of the 1988 Sanctions Committee or the Guidelines of the Al-Qaida Sanctions Committee, as the case may be.

(2) The Minister must notify the petitioner, within 60 days after the day on which the petition is received, of his or her decision as to whether to submit the petition to the appropriate committee of the Security Council. If the petition is submitted, the Minister must submit it in accordance with the committee’s Guidelines.

11. Paragraph 5.4(2)(a) of the Regulations is replaced by the following:

• (a) examine, in private, any security or criminal intelligence reports relating to the applicant’s designation as a person associated with the Taliban or a person associated with Al-Qaida and hear any other evidence or information that may be presented by or on behalf of the Minister and may, at the request of the Minister, hear all or part of that evidence or information in the absence of the applicant and any counsel representing the applicant if the judge is of the opinion that the disclosure of the information would injure national security or endanger the safety of any person;

12. Section 5.6 of the Regulations is replaced by the following:

5.6 (1) A person claiming not to be a person whose name appears on the 1988 Sanctions List or the Al-Qaida Sanctions List may apply to the Minister for a certificate stating that the person is not the person whose name appears on the 1988 Sanctions List or the Al-Qaida Sanctions List, as the case may be.

(2) The Minister must, within 30 days after the day on which the application is received, issue a certificate to the applicant if it is established that the applicant is not the person whose name appears on the 1988 Sanctions List or the Al-Qaida Sanctions List, as the case may be.

13. Subsection 5.7(2) of the Regulations is replaced by the following:

(2) If the necessity of that property is established in conformity with Security Council Resolution 1452 (2002) of December 20, 2002, the Minister must issue a certificate

• (a) in the case of property necessary for basic expenses, within 15 days after the day on which the application is received, if
  • (i) in the case of property affected by section 4, the 1988 Sanctions Committee did not refuse the release of the property, or
  • (ii) in the case of property affected by section 4.1, the Al-Qaida Sanctions Committee did not refuse the release of the property; and
• (b) in the case of property necessary for extraordinary expenses, within 30 days after the day on which the application is received, if
  • (i) in the case of property affected by section 4, the 1988 Sanctions Committee approved the release of the property, or
  • (ii) in the case of property affected by section 4.1, the Al-Qaida Sanctions Committee approved the release of the property.

14. Paragraph 6(b) of the Regulations is replaced by the following:

• (b) the act or thing has been approved
  • (i) by the 1988 Sanctions Committee, in the case of an act or thing prohibited in respect of a person whose name is on the 1988 Sanctions List,
  • (ii) by the Al-Qaida Sanctions Committee, in the case of an act or thing prohibited in respect of a person whose name is on the Al-Qaida Sanctions List, or
  • (iii) by the Security Council of the United Nations.

APPLICATION BEFORE PUBLICATION

15. 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

16. 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 adoption of Resolutions 1988 (2011) and 1989 (2011) split the Consolidated List of the Security Council into the Al-Qaida Sanctions List (also referred to as the 1267/1989 List) and the Taliban Sanctions List (also referred to as the 1988 List). The current United Nations Al-Qaida and Taliban Regulations (the Regulations) refer only to the 1267 List, and must be updated to reflect the creation of the 1988 List to ensure full implementation of the decisions of the United Nations Security Council. Technical amendments to the Regulations, such as clarifying the definition of a member of the Taliban or a member of Al-Qaida, are being proposed to rectify this situation.

On May 9, 2013, the Government of Canada listed the Taliban as a terrorist entity under the Criminal Code, which contains prohibitions on various activities and transactions with respect to listed entities. However, persons in Canada and Canadians abroad were already prohibited from undertaking similar activities and transactions with respect to the Taliban under the Regulations. Such a “double-listing” situation, with overlapping prohibitions, can be problematic for enforcement of offences. In order to resolve this situation, and in keeping with long-standing government policy of avoiding situations where entities are listed under more than one piece of legislation, the offences pertaining to the Taliban in the Regulations need to be removed.

Background

The United Nations Al-Qaida and Taliban Regulations (the Regulations) were made in 1999 under the United Nations Act (the Act). The Act was made in respect of Article 41 of the Charter of the United Nations, which requires that all UN member states apply measures required to give effect to any of the decisions of the United Nations Security Council adopted under Chapter 7. The Regulations implement in Canadian domestic law the binding elements of United Nations Security Council Resolution 1267 (1999) and its successor resolutions.

Objectives

The proposed regulatory amendment aims to

1. Update the Regulations to reflect the splitting of the Consolidated List into the Al-Qaida and Taliban sanctions regimes, per Resolutions 1988 (2011) and 1989 (2011) of the United Nations Security Council, in order to bring Canada into compliance with its obligations as a member of the United Nations; and
2. Remove the prohibitions with respect to the Taliban from the Regulations, thereby eliminating the present problematic situation of double-listing.

Description

The proposed amendment to the Regulations will reflect the split of the United Nations Al-Qaida and Taliban Sanctions List into two separate lists.

Additionally, the proposed amendment will remove the prohibitions with respect to the Taliban as an entity. Individuals and entities associated with the Taliban will remain listed, reflecting the Taliban Sanctions List established by Resolution 1988.

“One-for-One” Rule

The “One-for-One” Rule does not apply to this proposal, as there is no change in administrative costs to business.

Small business lens

The small business lens does not apply to this proposal, as there are no costs to small business.

Consultation

The Privy Council Office, the Department of Justice, Public Safety Canada, the Canada Border Services Agency, the Department of Finance, the Office of the Superintendent of Financial Institutions, the Royal Canadian Mounted Police, and the Canadian Security Intelligence Service were consulted and are supportive of the amendment to the Regulations.

Rationale

This regulatory amendment will allow Canada to fully comply with United Nations Security Council sanctions against the Taliban, Al-Qaida and their affiliates, while also rectifying the present situation of a double-listing under Canadian legislation.

Implementation, enforcement and service standards

Compliance is ensured by the Royal Canadian Mounted Police. Every person who contravenes provisions of the Regulations is liable, upon conviction, to the punishments set out in section 3 of the United Nations Act.

Contacts

Mr. Mark Berman
Director
International Crime and Terrorism
Department of Foreign Affairs, Trade and Development
125 Sussex Drive
Ottawa, Ontario
K1A 0G2
Telephone: 613-996-1430
Fax: 613-944-4827
Email: mark.berman@international.gc.ca

Mr. Keith Morrill
Director
United Nations, Human Rights and Economic Law
Department of Foreign Affairs, Trade and Development
125 Sussex Drive
Ottawa, Ontario
K1A 0G2
Telephone: 613-992-6296
Fax: 613-992-2467
Email: keith.morrill@international.gc.ca

• Footnote a
  R.S., c. U-2
• Footnote 1
  SOR/99-444