Regulations Amending the Regulations Implementing the United Nations Resolution on Yemen: SOR/2019-250

Canada Gazette, Part II, Volume 153, Number 14

Registration

SOR/2019-250 June 25, 2019

UNITED NATIONS ACT

P.C. 2019-915 June 22, 2019

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 Resolution 2216 (2015) on April 14, 2015;

And whereas it appears to the Governor in Council to be necessary to make regulations for enabling the measures set out in those resolutions to be effectively applied;

Therefore, Her Excellency the Governor General in Council, on the recommendation of the Minister of Foreign Affairs, pursuant to section 2 of the United Nations Act ^{footnote a}, makes the annexed Regulations Amending the Regulations Implementing the United Nations Resolution on Yemen.

Regulations Amending the Regulations Implementing the United Nations Resolution on Yemen

Amendments

1 The title of the Regulations Implementing the United Nations Resolution on Yemen ^{footnote 1} is replaced by the following:

Regulations Implementing the United Nations Resolutions on Yemen

2 (1) The definitions Canadian, designated person, entity, Security Council Resolution 2140 and Yemen in section 1 of the Regulations are replaced by the following:

• Canadian means a citizen within the meaning of subsection 2(1) of the Citizenship Act, or an entity established, incorporated or continued by or under the laws of Canada or of a province. (Canadien)
• designated person means a person that is designated by the Committee of the Security Council under paragraph 11 of Security Council Resolution 2140, paragraph 14 of Security Council Resolution 2216 or the Annex to Security Council Resolution 2216. (personne désignée)
• entity includes a corporation, trust, partnership, fund, unincorporated association or organization or foreign state. (entité)
• Security Council Resolution 2140 means Resolution 2140 (2014) of February 26, 2014, adopted by the Security Council. (résolution 2140 du Conseil de sécurité)
• Yemen means the Republic of 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. (Yémen)

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

• armed mercenary means any person who
  • (a) is specially recruited to use arms and related material in Yemen;
  • (b) uses arms and related material in Yemen and is motivated essentially by the desire for private gain;
  • (c) is not a member of the armed forces of Yemen; and
  • (d) has not been sent to Yemen by a state on official duty as a member of that state’s armed forces. (mercenaire armé)
• arms and related material includes any type of weapon, ammunition, military vehicle, military equipment or paramilitary equipment and their spare parts. (armes et matériel connexe)
• Focal Point for De-listing means the Focal Point for De-listing established under Resolution 1730 (2006) of December 19, 2006, adopted by the Security Council. (point focal pour les demandes de radiation)
• military activities means any activities conducted by state armed forces, non-state armed forces or armed mercenaries and any activities that support the operational capabilities of an armed group in Yemen. (activités militaires)
• official means an individual who
  • (a) is or was employed in the service of Her Majesty in right of Canada or of a province;
  • (b) occupies or occupied a position of responsibility in the service of Her Majesty in right of Canada or of a province; or
  • (c) is or was engaged by or on behalf of Her Majesty in right of Canada or of a province. (fonctionnaire)
• Panel of Experts means the Panel of Experts that is established under Security Council Resolution 2140. (Groupe d’experts)
• Security Council means the Security Council of the United Nations. (Conseil de sécurité)
• Security Council Resolution 2216 means Resolution 2216 (2015) of April 14, 2015, adopted by the Security Council. (résolution 2216 du Conseil de sécurité)
• technical assistance means any form of assistance, such as providing instruction, training, consulting or technical advice services or transferring know-how or technical data. (aide technique)

3 Sections 3 to 13 of the Regulations are replaced by the following:

Prohibited activities

3 (1) It is prohibited for any person in Canada or any Canadian outside Canada to knowingly

• (a) deal in any property in Canada that is owned, held or controlled, directly or indirectly, by a designated person or by a person acting on behalf of, or at the direction 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 related services in respect of a dealing referred to in paragraph (a);
• (d) make available any property or provide any financial or related services to a designated person, to a person acting on behalf of or at the direction of a designated person or to an entity that is owned, held or controlled, directly or indirectly, by a designated person; or
• (e) make available any property or provide any financial or related services for the benefit of any person or any entity referred to in paragraph (d).

Exception

(2) Subsection (1) does not prohibit the payment of interest or other earnings, if the payment is the result of a dealing or transaction that occurred before the person became a designated person. However, that payment then becomes subject to subsection (1).

Arms and related material — exporting

4 (1) It is prohibited for any person in Canada or any Canadian outside Canada to knowingly export, sell, supply or transfer arms and related material, wherever situated, to a designated person or to a person acting on behalf of or at the direction of a designated person.

Arms and related material — technical assistance

(2) It is prohibited for any person in Canada or any Canadian outside Canada to knowingly provide to a designated person or to a person acting on behalf of or at the direction of a designated person technical assistance that is related to the sale, supply, transfer, manufacture, maintenance or use of arms and related material.

Arms and related material — property and financial services

(3) It is prohibited for any person in Canada or any Canadian outside Canada to knowingly make available any property or provide any financial or related services to a designated person or to a person acting on behalf of or at the direction of a designated person, if the property or services are related to the sale, supply, transfer, manufacture, maintenance or use of arms and related material.

Military activities — technical assistance

5 (1) It is prohibited for any person in Canada or any Canadian outside Canada to knowingly provide technical assistance that is related to military activities in Yemen to a designated person or to a person acting on behalf of or at the direction of a designated person.

Military activities — property and financial services

(2) It is prohibited for any person in Canada or any Canadian outside Canada to knowingly make available any property or provide any financial or related services that are related to military activities in Yemen to a designated person or to a person acting on behalf of or at the direction of a designated person.

Armed mercenaries

(3) It is prohibited for any person in Canada or any Canadian outside Canada to knowingly provide armed mercenaries to a designated person or to a person acting on behalf of or at the direction of a designated person.

Use of vessels or aircraft

6 It is prohibited for any owner or master of a Canadian vessel, as defined in section 2 of the Canada Shipping Act, 2001, any operator of an aircraft registered in Canada or any Canadian owner or master of a vessel or Canadian operator of an aircraft to knowingly carry, cause to be carried or permit to be carried, arms and related material, wherever situated, that are destined for a designated person or for a person acting on behalf of or at the direction of a designated person.

Assisting in a prohibited activity

7 It is prohibited for any person in Canada or any Canadian outside Canada to knowingly do anything that causes, facilitates or assists in, or is intended to cause, facilitate or assist in, any activity prohibited by sections 3 to 6.

Obligations

Duty to determine

8 The following entities must determine on a continuing basis whether they are in possession or control of property that is owned, held 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, and banks regulated by that Act;
• (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 regulated by a provincial Act that are engaged in the business of insuring risks;
• (f) companies regulated by the Trust and Loan Companies Act;
• (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.

Duty to disclose — RCMP or CSIS

9 (1) Every person in Canada, every Canadian outside Canada and every entity set out in section 8 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, held or controlled by or on behalf of a designated person; and
• (b) any information about a transaction or proposed transaction in respect of property referred to in paragraph (a).

Immunity

(2) No proceedings under the United Nations Act and no civil proceedings lie against a person for a disclosure made in good faith under subsection (1).

Applications

Exemption

10 (1) A person that wishes to engage in any activity that is prohibited under these Regulations may, before doing so, apply to the Minister in writing for a certificate to exempt the activity from the application of the Regulations.

Certificate

(2) The Minister may issue the certificate if the Security Council did not intend that such an activity be prohibited or if the Security Council or the Committee of the Security Council has approved the activity in advance.

Exemption for property

11 (1) A person whose property is affected by the application of section 3 may apply to the Minister in writing for a certificate to exempt the property from the application of that section if the property is necessary for basic or extraordinary expenses or is subject to a lien, mortgage or security interest, to a hypothec or prior claim, to a charge or to a judicial, administrative or arbitral decision.

Certificate

(2) If it is established in accordance with Security Council Resolution 2140 that the property is necessary for basic or extraordinary expenses or that it is subject to a lien, mortgage or security interest, to a hypothec or prior claim, to a charge or to a judicial, administrative or arbitral decision, the Minister must issue a certificate within the following time periods:

• (a) within 15 working days after receiving the application, in the case of property necessary for basic expenses, if the Committee of the Security Council did not oppose the application;
• (b) within 30 working days after receiving the application, in the case of property necessary for extraordinary expenses, if the Committee of the Security Council approved the application; and
• (c) within 90 days after receiving the application, in the case of property that is subject to a lien, mortgage or security interest, to a hypotec or prior claim, to a charge or to a judicial, administrative or arbitral decision that
  • (i) was created or issued before the person became a designated person;
  • (ii) is not for the benefit of a designated person; and
  • (iii) has been brought to the attention of the Committee of the Security Council by the Minister.

Certificate — parties to contract

12 (1) A person who is a party to a contract or a gratuitous transfer may apply to the Minister in writing for a certificate to exempt property from the application of section 3 to permit them to receive payments or transfers from a designated person or to permit a designated person to make payments or to carry out the transfer.

Certificate — time period

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

• (a) the contract was entered into or carried out prior to any party becoming a designated person; and
• (b) the payments or transfer are 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 an entity that is owned, held or controlled, directly or indirectly, by a designated person.

Mistaken identity

13 (1) A person whose name is the same as or similar to the name of a designated person and that claims not to be that person may apply to the Minister in writing for a certificate stating that they are not that designated person.

Determination by Minister

(2) Within 45 days after receiving the application, the Minister must,

• (a) if it is established that the applicant is not the designated person, issue the certificate; or
• (b) if it is not so established, provide notice to the applicant of his or her determination.

Disclosure of Information

Disclosure by official

14 (1) An official may, for the purpose of responding to a request from the Security Council, the Committee of the Security Council, the Panel of Experts or the Focal Point for De-listing, disclose personal information to the Minister.

Disclosure by Minister

(2) The Minister may, for the purpose of administering or enforcing these Regulations or fulfilling an obligation under a resolution of the Security Council, disclose personal information to the Security Council, the Committee of the Security Council, the Panel of Experts or the Focal Point for De-listing.

Legal Proceedings

Prohibition — legal proceedings

15 No legal proceedings lie in Canada at the instance of the Government of Yemen, of any person in Yemen, of a designated person or of any person claiming through or acting on behalf of or for the benefit of any such person in connection with any contract or other dealing if its performance was prevented in any way by these Regulations.

Application Before Publication

4 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

5 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 April 14, 2015, acting under Chapter VII of the Charter of the United Nations, the United Nations Security Council (the Security Council) adopted Resolution 2216 (2015), imposing an arms embargo against the Houthi rebel leadership in Yemen. 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 taken under Chapter VII of the Charter of the United Nations.

Background

On October 21, 2011, in response to the 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 agreement and 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 and actions that could adversely affect or delay the political transition process, and demanded the cessation of all actions aimed at undermining the Government of National Unity and the political transition.

On February 26, 2014, due to the continued deterioration of the political crisis, the Security Council adopted Resolution 2140 (2014), which imposed measures for a period of one year against individuals or entities designated by the Security Council Committee [established pursuant to Resolution 2140 (2014) and hereafter cited as “the Committee”] for engaging in or providing support for acts that threaten the peace, security or stability of Yemen, including human rights violations. Resolution 2140 (2014) also: mandated a panel of experts to assist the Committee by gathering, examining, analyzing and providing to the Committee information relating to the implementation of the imposed measures; required member states to take the necessary measures to prevent these individuals or entities from entering or transiting through their territory; and required member states to freeze, without delay, all assets of individuals or entities designated by the Committee. Canada implemented Resolution 2140 (2014) via regulations in September 2014 (SOR/2014-213).

On April 14, 2015, the Security Council adopted Resolution 2216 (2015) due to the military escalation by the Houthis in many parts of Yemen and the significant and rapidly deteriorating humanitarian situation. Resolution 2216 (2015) added two individuals to the list of designated individuals or entities. It also imposed an arms embargo against all designated individuals or entities for an indeterminate period of time.

There are also a number of non-substantive errors, omissions and inconsistencies across the United Nations Act regulations, including several identified by the Standing Joint Committee for the Scrutiny of Regulations (SJCSR). In particular, the SJCSR identified several provisions in the Regulations Implementing the United Nations Resolution on Yemen, where possible, ought to resemble provisions in the regulations that apply sanctions to other countries.

Objective

• Further respond to the ongoing political crisis and conflict in Yemen;
• Fulfill Canada’s international legal obligation to implement the binding decisions of the Security Council set out in Resolution 2216 (2015); and
• Address miscellaneous amendments raised by the SJCSR.

Description

The Regulations Amending the Regulations Implementing the United Nations Resolution on Yemen (the “Regulations”) implement the decisions of Security Council Resolution 2216 (2015) in Canadian domestic legislation. In accordance with Security Council Resolution 2216 (2015), paragraph 14 the Regulations impose a targeted arms embargo against individuals and entities designated by the Committee, and those acting on their behalf or at their direction in Yemen. Specifically, the Regulations prohibit any individual or entity in Canada and any Canadian outside Canada from knowingly exporting, selling, supplying, or shipping arms and related material to designated individuals or entities. The arms embargo remains in place until the Regulations are repealed.

The Regulations also prohibit individuals in Canada and Canadians outside Canada from providing technical or financial assistance related to military activities and the provision, manufacture, maintenance or use of arms and related material to designated individuals or entities. The Regulations also prohibit Canadian vessels and aircraft from transporting arms and related materials destined for designated individuals or entities or individuals acting for their behalf or under their direction.

Security Council Resolution 2216 (2015) is available at http://www.un.org/en/ga/search/view_doc.asp?symbol=S/RES/2216(2015).

The regulatory amendments also update language throughout the Regulations Implementing the United Nations Resolution on Yemen to give effect to certain recommendations made by the SJCSR, to clarify intent and to ensure consistency across Canada’s sanctions regulations. Amendments were made to

• harmonize terms used in UNA regulations with those used in the enabling statute or across the UNA regulations (e.g. harmonize the wording of the “Legal Proceedings” provisions with the equivalent provisions used in other United Nations Act regulations);
• add clarity to regulatory provisions as suggested by the SJCSR (e.g. replace the reference to “permettre l’utilisation” with “rendre disponible” [“make available” in English]); and
• correct typographical or grammatical errors.

Regulatory development

Consultation

Security Council resolutions are solely negotiated by the 15 Council members and do not involve public consultations.

Modern treaty obligations and Indigenous engagement and consultation

An assessment has been conducted and no modern treaty implications have been identified.

Instrument choice

Regulations are the sole method to enact sanctions in Canada. No other instrument could be considered.

Regulatory analysis

Costs and benefits

The Regulations make Canada compliant with its obligations under the Charter of the United Nations by implementing Security Council Resolution 2216 (2015) Canadian banks and financial institutions are required to comply with the sanctions. They will do so by adding the new prohibitions to their existing monitoring systems, which may result in a minor compliance cost. Furthermore, unlike other sanctions regulations, the resolution does not provide for exemptions, meaning that no permits will be issued. There are no costs associated with the non-substantive updates to the language in the Regulations, which address certain recommendations made by the SJCSR. As such, no costs to business, small or large, are anticipated.

Small business lens

The small business lens does not apply to the Regulations, as there are no costs to small businesses.

“One-for-One” Rule

The “One-for-One” Rule does not apply to the Regulations, as they do not impose incremental administrative burden on businesses.

Regulatory cooperation and alignment

The Regulations align with Security Council Resolution 2216 (2015) and are made to fulfill Canada’s obligation to implement all measures taken by the United Nations Security Council under Chapter VII of the Charter of the United Nations.

Strategic environmental assessment

The proposal is unlikely to result in important environmental effects. In accordance with The Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals, a preliminary scan concluded that a strategic environmental assessment is not required.

Gender-based analysis plus

No gender-based analysis plus (GBA+) impacts have been identified in relation to the Regulations.

Implementation, compliance and enforcement, and service standards

The new prohibitions are available online for financial institutions to review at https://www.un.org/securitycouncil/sanctions/2140/resolutions.

Canada’s sanctions regulations are enforced by the Royal Canadian Mounted Police and the Canada Border Services Agency. Anyone who contravenes the Regulations is liable, upon conviction, to the punishments set out in section 3 of the United Nations Act (namely, 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

Jeffrey McLaren
Telephone: 343‑203‑3293
Email: jeffrey.mclaren@international.gc.ca