Regulations Amending the United Nations Democratic Republic of the Congo Regulations: SOR/2020-117

Canada Gazette, Part II, Volume 154, Number 12

Registration

SOR/2020-117 June 1, 2020

UNITED NATIONS ACT

P.C. 2020-398 May 30, 2020

Whereas the Security Council of the United Nations, acting under Article 41 of the Charter of the United Nations, adopted Resolution 1493 (2003) on July 28, 2003, Resolution 1533 (2004) on March 12, 2004, Resolution 1552 (2004) on July 27, 2004, Resolution 1596 (2005) on April 18, 2005, Resolution 1807 (2008) on March 31, 2008, Resolution 2293 (2016) on June 23, 2016 and Resolution 2478 (2019) on June 26, 2019;

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 United Nations Democratic Republic of the Congo Regulations.

Regulations Amending the United Nations Democratic Republic of the Congo Regulations

Amendments

1 The title of the English version of the United Nations Democratic Republic of the Congo Regulations ^{footnote 1} is replaced by the following:

Regulations Implementing the United Nations Resolutions on the Democratic Republic of the Congo

2 (1) The definitions MONUC, property, Security Council Resolutions, Special Representative and technical data in section 1 of the Regulations are repealed.

(2) The definitions arms and related material, Canadian, Committee of the Security Council, Democratic Republic of the Congo and entity in section 1 of the Regulations are replaced by the following:

• arms and related material means any type of weapon, ammunition, military equipment including military vehicles, or paramilitary equipment, and their spare parts. (armes et matériel connexe)
• Canadian means a citizen within the meaning of the Citizenship Act or an entity established, incorporated or continued by or under the laws of Canada or of a province. (Canadien)
• Committee of the Security Council means the Committee of the Security Council of the United Nations established under paragraph 8 of Resolution 1533 (2004) of March 4, 2004, adopted by the Security Council. (Comité du Conseil de sécurité)
• Democratic Republic of the Congo includes
  • (a) its political subdivisions;
  • (b) its government and departments and the government and departments of its political subdivisions; and
  • (c) its agencies or any agency of its political subdivisions. (République démocratique du Congo)
• entity includes a corporation, trust, partnership, fund, unincorporated association or organization or a foreign state. (entité)

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

• African Union-led Regional Task Force means the force mentioned in paragraph 3(a) of Resolution 2293 (2016) of June 23, 2016, adopted by the Security Council. (Force régionale d’intervention de l’Union africaine)
• designated person means a person that is designated by the Committee of the Security Council under paragraphs 13 and 15 of Resolution 1596 (2005) of April 18, 2005, adopted by the Security Council. (personne désignée)
• 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. (activités militaires)
• MONUSCO means the United Nations Organization Stabilization Mission in the Democratic Republic of the Congo. (MONUSCO)
• official means a person 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)
• Security Council means the Security Council of the United Nations. (Conseil de sécurité))
• working day means a day that is not Saturday or a holiday. (jour ouvrable)

3 The heading before section 2 and sections 2 to 14 of the Regulations are replaced by the following:

Prohibitions

Prohibited activities

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

Embargo — arms and related material

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

• (a) export, sell, supply or transfer, directly or indirectly, arms and related material, wherever situated, to the Democratic Republic of the Congo or to any person in the Democratic Republic of the Congo; or
• (b) provide, directly or indirectly, technical assistance or financial assistance related to the sale, supply, transfer, manufacture, maintenance or use of arms and related material to the Democratic Republic of the Congo or to a person in the Democratic Republic of the Congo.

Embargo — military activities

4 It is prohibited for any person in Canada or any Canadian outside Canada to knowingly provide technical assistance or financial assistance related to military activities, directly or indirectly, to the Democratic Republic of the Congo or any person in the Democratic Republic of the Congo.

Embargo — transport

5 It is prohibited for the owner or master of a Canadian vessel, as defined in section 2 of the Canada Shipping Act, 2001, or 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 that are destined for the Democratic Republic of the Congo or a person in the Democratic Republic of the Congo.

Exception — non-lethal military equipment

6 (1) Sections 3 to 5 do not apply to non-lethal military equipment intended solely for humanitarian or protective use, if the Committee of the Security Council has been notified in advance of its intended use.

Exception — protective clothing

(2) Sections 3 to 5 do not apply to protective clothing, including flak jackets and military helmets, that is temporarily exported to the Democratic Republic of the Congo by United Nations personnel, representatives of the media and humanitarian and development workers and associated personnel, solely for their personal use.

Exception — various entities

7 Sections 3 to 5 do not apply to an activity that is intended solely for the support of

• (a) MONUSCO; or
• (b) the African Union-led Regional Task Force.

Exception — the Democratic Republic of the Congo

8 If the Committee of the Security Council has been notified in advance, sections 3 to 5 do not apply to an activity that is intended solely for the support of the Democratic Republic of the Congo.

Exception — advance approval

9 Sections 3 to 5 do not apply to an activity that has been approved in advance by the Committee of the Security Council.

Assisting in prohibited activity

10 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 2 to 5.

Obligations

Duty to determine

11 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

12 (1) Every person in Canada, every Canadian outside Canada and every entity set out in section 11 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

13 (1) A person that wishes to engage in any activity that is prohibited under these Regulations must, 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 must issue the certificate if the Security Council did not intend that the activity be prohibited or if the Security Council or the Committee of the Security Council has approved the activity in advance.

Basic or extraordinary expenses

14 (1) A person whose property is affected by the application of section 2 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 Resolution 1596 (2005) of April 18, 2005, adopted by the Security Council, 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 working days after receiving the application, in the case of property that 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 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

15 (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 2 to permit them to receive payments or a transfer 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 the transfer was 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

16 (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 designated 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 working days after receiving the application, the Minister must

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

Personal Information

Communication by Minister

17 (1) The Minister may, for the purpose of enforcing these Regulations or fulfilling any obligation under a resolution of the Security Council with respect to the Democratic Republic of the Congo or to respond to a request from the Security Council or any of its subsidiary organs, disclose any personal information to an official or the Security Council or any of its subsidiary organs.

Receipt of information

(2) An official may receive any personal information disclosed to them under subsection (1).

Communication by official

(3) An official may, for the purpose of enforcing these Regulations or fulfilling any obligation under a resolution of the Security Council with respect to the Democratic Republic of the Congo or to respond to a request from the Security Council or any of its subsidiary organs, disclose any personal information to the Minister.

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

As a Member State of the United Nations and pursuant to Article 25 of the Charter of the United Nations (the Charter), Canada is legally obligated to implement binding decisions of the United Nations Security Council (the Security Council) taken under Chapter VII of the Charter. On July 28, 2003, acting under Chapter VII of the Charter, the Security Council adopted Resolution 1493 (2003), imposing an arms embargo on the Democratic Republic of the Congo (DRC). The sanctions regime was subsequently modified and strengthened with the adoption of additional resolutions, including resolutions 1533 (2004), 1552 (2004), and 1596 (2005), which created a list of designated persons (individuals and entities) subject to the arms embargo and imposed an asset freeze on said persons. Canada has implemented resolutions 1493 (2003), 1533 (2004), 1552 (2004), and 1596 (2005) through the United Nations Democratic Republic of the Congo Regulations. Since the implementation of these resolutions, the Security Council has adopted further resolutions renewing and extending its sanctions regime. Resolution 1807 (2008) renewed the targeted arms ban and asset freeze on designated persons, provided for related notification and approval requirements, and set out arms-related exemptions. Resolution 2293 (2016) set out further exemptions to the arms embargo, provided for related notification and approval requirements, and expanded the list of designated persons. Resolution 2478 (2019) extended the preceding measures until July 1, 2020.

Objective

• Fulfill Canada’s international legal obligation to implement the binding decisions of the Security Council set out in resolutions 1807 (2008), 2293 (2016), and 2478 (2019); and
• Address miscellaneous amendments requested by the Standing Joint Committee for the Scrutiny of Regulations (SJCSR).

Description

The Regulations Amending the United Nations Democratic Republic of the Congo Regulations (the Regulations) give effect to the decisions by the Security Council to impose various measures outlined in resolutions 1807 (2008), 2293 (2016), and 2478 (2019).

The Regulations

• update the exemptions to the asset freeze and the arms embargo (exempting, for example, the Government of the DRC and the United Nations Organization Stabilization Mission in the DRC);
• amend notification requirements to require advance notification to the Committee of the Security Council for the provision of non-lethal humanitarian military equipment and technical assistance, per Security Council and SJCSR recommendations; and
• create provisions allowing for the disclosure of personal information by officials and by the Minister in order to comply with requests from the Security Council.

For more information, please consult Security Council Resolution 1807 (2008) (PDF), Resolution 2293 (2016) (PDF), and Resolution 2478 (2019) (PDF).

Regulatory development

Consultation

Global Affairs Canada engages regularly with relevant stakeholders including civil society organizations and cultural communities and other like-minded governments regarding Canada’s approach to sanctions implementation. With respect to the specific proposed amendments, no such external outreach was conducted. Canada is obliged to implement the binding elements of the Security Council resolutions related to the Regulations as a member of the United Nations.

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

Benefits and costs

The Regulations make Canada compliant with its obligations under the Charter of the United Nations by implementing Security Council resolutions 1807 (2008), 2293 (2016), and 2478 (2019).

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.

Small business lens

As trade is already impacted by current economic measures against the Democratic Republic of the Congo, these Regulations are not expected to result in cost impacts on small business.

To facilitate compliance by small businesses, Global Affairs Canada is in the process of conducting enhanced outreach with stakeholders to better inform them of changes to the Regulations. This includes updates to the sanctions website as well as the creation of the sanctions hotline. In addition, the Trade Commissioner Service is engaged in implementing Canada’s Trade Diversification Strategy, which will support Canadian companies seeking to find alternative export markets.

One-for-one rule

The one-for-one rule does not apply to the Regulations, as they do not impose an incremental administrative burden on businesses.

Regulatory cooperation and alignment

The Regulations align with Security Council resolutions 1807 (2008), 2293 (2016), and 2478 (2019), and are made to fulfill Canada’s obligation to implement all measures taken by the Security Council under Chapter VII of the Charter of the United Nations.

Strategic environmental assessment

The Regulations are 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

The subject of sanctions has previously been addressed for effects on gender and diversity in May 2018, in consultations with departmental gender-based analysis plus (GBA+) experts.

Although sanctions are intended to facilitate change to restore peace and security, protect and advance human rights, and combat foreign corruption through economic pressure on states and responsible individuals, they can nevertheless have an impact on vulnerable groups. In countries facing sanctions, such groups have historically been more likely to bear the political and economic instability caused by economic sanctions due to their disadvantaged position in society.

Women, in particular, are more likely to suffer due to their vulnerable socioeconomic and political status. This may particularly be the case in developing countries where broader economic sanctions are in place. This suffering has been historically measured using the following variables: women’s participation in the workplace; economic participation; political participation; and women’s economic rights. In addition, women are often primarily responsible for feeding and caring for their families in many of their countries, which is made more difficult if goods are scarce or not available in target countries, as a result of sanctions.

Current sanctions regimes are being improved from a gender and diversity responsiveness perspective. Canada is seeking to improve this responsiveness through funding research that further explores the gendered aspects of Canadian and international sanctions, as well as advancing international advocacy efforts in the multilateral settings where sanctions are designed. In addition, Canada undertakes direct, gender-responsive development programming in many countries affected by sanctions, and Canada’s contributions to international financial institutions can also go toward projects and programs in countries subject to Canadian sanctions.

Implementation, compliance and enforcement, and service standards

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

Yannick Lamonde
Director
West and Central Africa Bilateral Relations Division
Telephone: 343‑203‑3321
Email: yannick.lamonde@international.gc.ca