Vol. 148, No. 21 — October 8, 2014
Registration
SOR/2014-213 September 26, 2014
UNITED NATIONS ACT
Regulations Implementing the United Nations Resolution on Yemen
P.C. 2014-975 September 25, 2014
Whereas the Security Council of the United Nations, acting under Article 41 of the Charter of the United Nations, adopted Resolution 2140 (2014) on February 26, 2014;
And 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;
Therefore, 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 Implementing the United Nations Resolution on Yemen.
REGULATIONS IMPLEMENTING THE UNITED NATIONS RESOLUTION ON YEMEN
INTERPRETATION
Definitions
1. The following definitions apply in these Regulations.
“Canadian”
« Canadien »
“Canadian” means an individual who is a citizen within the meaning of the Citizenship Act or a body corporate incorporated by or continued under the laws of Canada or a province.
“Committee of the Security Council”
« Comité du Conseil de sécurité »
“Committee of the Security Council” means the Committee of the Security Council of the United Nations established under paragraph 19 of Security Council Resolution 2140.
“designated person”
« personne designée »
“designated person” means a person that is designated by the Committee of the Security Council under paragraph 11 of Security Council Resolution 2140.
“entity”
« entité »
“entity” means a body corporate, trust, partnership, fund, unincorporated association or organization or foreign state.
“Minister”
« ministre »
“Minister” means the Minister of Foreign Affairs.
“person”
« personne »
“person” means an individual or entity;
“property”
« bien »
“property” 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.
“Security Council Resolution 2140”
« résolution 2140 du Conseil de sécurité »
“Security Council Resolution 2140” means Resolution 2140 (2014) of February 26, 2014, adopted by the Security Council of the United Nations.
“working day”
« jour ouvrable »
“working day” means a day that is not Saturday or a holiday.
“Yemen”
« Yémen »
“Yemen” means Yemen and includes:
- (a) its political subdivisions;
- (b) its government and departments and the government and departments of its political subdivisions; and
- (c) its agencies or those of its political subdivisions.
APPLICATION
Application
2. These Regulations are binding on Her Majesty in right of Canada or a province.
PROHIBITIONS
Freezing of assets
3. It is prohibited for any person in Canada or any Canadian outside Canada to knowingly
- (a) deal directly or indirectly, in any property in Canada as of February 26, 2014 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 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).
Assisting a prohibited act
4. It is prohibited for any person in Canada or any Canadian outside Canada to knowingly do anything that causes, assists or promotes or is intended to cause, assist or promote any act or thing prohibited by section 3.
DUTY TO DETERMINE
Determination of property
5. 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 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
Disclosure
6. (1) Every person in Canada and every Canadian outside Canada must 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).
Immunity
(2) No person contravenes subsection (1) by disclosing in good faith under that subsection.
EXCEPTIONS
Mistaken identity
7. (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;
Certificate — time period
(2) If it is established under subsection (1) that the applicant is not a designated person, the Minister must issue a certificate to the applicant within 30 days after the day on which the application is received.
Certificate — basic or extraordinary expenses
8. (1) A person whose property has been affected by the application of section 3 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.
Certificate — time period
(2) The Minister must issue a certificate, if the necessity of that property for basic or extraordinary expenses is established in accordance with Security Council Resolution 2140, 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, 2014, 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.
Certificate — parties to a contract
9. (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 3 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.
Certificate — time period
(2) The Minister must 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 the 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.
Certificate — exclusion
10. No person contravenes these Regulations by doing an act or thing prohibited by sections 3 and 4 if, before the person does that act or thing, the Minister issues a certificate to the person stating that:
- (a) the Security Council of the United Nations did not intend that such an act or thing be prohibited; or
- (b) the act or thing has been approved in advance by the Security Council of the United Nations or the Committee of the Security Council.
LEGAL PROCEEDINGS
Prohibition
11. No legal proceedings lie in Canada at the instance of the Government of Yemen, of any person or entity in Yemen, of a designated person or of any person claiming through or for the benefit of any such person or entity in connection with any contract or other transaction where its performance was prevented by any reason of any measure imposed by these Regulations.
APPLICATION BEFORE PUBLICATION
Application
12. 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
Registration
13. 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
On February 26, 2014, acting under Chapter VII of the Charter of the United Nations, the United Nations Security Council (the Security Council) adopted Resolution 2140 (2014), imposing a travel ban and asset freeze on individuals or entities designated by the Committee of the Security Council (the Committee) established under paragraph 11 of Resolution 2140 (2014). As a member state of the United Nations, Canada is obligated under international law to implement decisions of the Security Council taken under Chapter VII of the Charter of the United Nations.
Background
On October 21, 2011, in response to an ongoing political crisis and conflict in Yemen, the Security Council adopted Resolution 2014 (2011), which urged all opposition groups to commit to playing a full and constructive part in the implementation of a political settlement on the basis of a Gulf Cooperation Council initiative.
On June 12, 2012, the Security Council adopted Resolution 2051 (2012), which expressed concern at the deterioration of cooperation among some political actors whose actions had the potential to adversely affect or delay the political transition process. The Resolution demanded the cessation of all actions aimed at undermining the Government of National Unity and the ongoing political transition.
On February 26, 2014, due to the continued deterioration of the political crisis, the Security Council adopted Resolution 2140 (2014). This Resolution imposes sanctions measures for a period of one year from the date of its adoption against individuals or entities designated by the Committee for engaging in or providing support for acts that threaten the peace, security or stability of Yemen, including human rights violations. The Resolution requires member states to take the necessary measures to prevent these individuals from entering or transiting through their territory. Member states are also required to freeze without delay all assets of individuals or entities designated by the Committee.
Resolution 2140 (2014) was adopted by the Security Council pursuant to Article 41 of Chapter VII of the Charter of the United Nations and is binding on all member states. As a member state of the United Nations and pursuant to Article 25 of the Charter of the United Nations, Canada is legally obligated to implement binding decisions of the Security Council. In Canada, travel restrictions on designated persons are imposed through the Immigration and Refugee Protection Act and its Regulations. The United Nations Act constitutes the appropriate legislative authority to implement the asset freeze in Canadian law.
Objectives
The Regulations Implementing the United Nations Resolution on Yemen (the Regulations) are necessary for Canada to fulfill its international legal obligation to implement the applicable decisions of the Security Council set out in Resolution 2140 (2014).
Description
The Regulations prohibit any person in Canada and any Canadian outside Canada from knowingly
- (a) dealing directly or indirectly, in any property in Canada as of February 26, 2014, 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) entering into or facilitating, directly or indirectly, any financial transaction related to a dealing referred to in paragraph (a);
- (c) providing any financial or other related service in respect of the property referred to in paragraph (a);
- (d) making any property or any financial or 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) making property or any financial or other related service available for the benefit of any person referred to in paragraph (d).
The Regulations include a number of exceptions to the above-noted prohibitions, including allowing a person whose property is affected by the prohibitions to apply for a certificate from the Minister of Foreign Affairs to exempt the property from the prohibitions. Exemptions include if the property is necessary for basic or extraordinary expenses, 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.
Resolution 2140 (2014) of the United Nations Security Council is available at www.un.org/en/ga/search/view_doc.asp?symbol=S/RES/2140(2014).
“One-for-One” Rule
The “One-for-One” Rule applies to this proposal, as there are minimal administrative costs to business, because of the reporting requirement. However, the administrative burden associated with these Regulations is carved out from the “One-for-One” Rule, as they address unique, exceptional circumstances.
Small business lens
The small business lens does not apply to this proposal, as there are no costs (or insignificant costs) on small business and small businesses would not be disproportionately affected.
Consultation
The Department of Foreign Affairs, Trade and Development drafted the Regulations in consultation with the Department of Justice.
Rationale
The Regulations will allow Canada to fulfill its international legal obligations by implementing the economic sanctions and the corresponding exceptions that have been imposed by the Security Council against Yemen.
Implementation, enforcement and service standards
Canada’s sanctions regulations are enforced by the Royal Canadian Mounted Police and the Canada Border Services Agency. Every person who contravenes the Regulations is liable, upon conviction, to the punishments set out in section 3 of the United Nations Act (i.e. on summary conviction, to a fine of not more than $100,000 or to imprisonment for a term of not more than one year, or to both; or, on conviction on indictment, to imprisonment for a term of not more than 10 years.)
Contact
Erin Dorgan
Director
Gulf States and Regional Trade Division
Foreign Affairs, Trade and Development Canada
125 Sussex Drive
Ottawa, Ontario
K1A 0G2
Telephone: 343-203-3291
Fax: 613-944-7431
Email: erin.dorgan@international.gc.ca
- Footnote a
R.S., c. U-2