Special Economic Measures (Belarus) Regulations: SOR/2020-214

Canada Gazette, Part II, Volume 154, Number 21

Registration

SOR/2020-214 September 28, 2020

SPECIAL ECONOMIC MEASURES ACT

P.C. 2020-687 September 28, 2020

Whereas the Governor in Council is of the opinion that gross and systematic human rights violations have been committed in Belarus;

Therefore, Her Excellency the Governor General in Council, on the recommendation of the Minister of Foreign Affairs, pursuant to subsections 4(1) ^{footnote a}, (1.1) ^{footnote b}, (2) and (3) of the Special Economic Measures Act ^{footnote c}, makes the annexed Special Economic Measures (Belarus) Regulations.

Special Economic Measures (Belarus) Regulations

Definitions

Definitions

1 The following definitions apply in these Regulations.

• Belarus means the Republic of Belarus and includes
  • (a) any of its political subdivisions;
  • (b) its government and any of its departments or any government or department of its political subdivisions; and
  • (c) any of its agencies or any agency of its political subdivisions. (Bélarus)
• Minister means the Minister of Foreign Affairs. (ministre)

List

Listed person

2 A person whose name is listed in the schedule is a person who is in Belarus, or is a national of Belarus who does not ordinarily reside in Canada, and in respect of whom the Governor in Council, on the recommendation of the Minister, is satisfied that there are reasonable grounds to believe is

• (a) a person who has participated in gross and systematic human rights violations in Belarus;
• (b) a current or former senior official of the Government of Belarus;
• (c) an associate or family member of a person referred to in paragraph (a) or (b);
• (d) an entity owned, held or controlled, directly or indirectly, by a person referred to in paragraph (a), (b) or (c) or acting on behalf of or at the direction of a person referred to in paragraph (a), (b) or (c); or
• (e) a senior official of an entity referred to in paragraph (d).

Prohibitions

Prohibited dealings and activities

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

• (a) deal in any property, wherever situated, that is owned, held or controlled by a listed person or by a person acting on behalf of a listed 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 goods, wherever situated, to a listed person or to a person acting on behalf of a listed person; or
• (e) provide any financial or related services to or for the benefit of a listed person.

Non-application

4 Section 3 does not apply in respect of

• (a) any payment made by or on behalf of a listed person that is due under a contract entered into before the person became a listed person, provided that the payment is not made to a listed person or to a person acting on behalf of a listed person;
• (b) any transactions necessary for a Canadian to transfer to a non-listed person any accounts, funds or investments of a Canadian held by a listed person on the day on which that person became a listed person;
• (c) any dealings with a listed person required with respect to loan repayments made to any person in Canada, or any Canadian outside Canada, for loans entered into with any person other than a listed person, and for enforcement and realization of security in respect of those loans, or payments by guarantors guaranteeing those loans;
• (d) any dealings with a listed person required with respect to loan repayments made to any person in Canada, or any Canadian outside Canada, for loans entered into with a listed person before that person became a listed person, and for enforcement and realization of security in respect of those loans, or payments by guarantors guaranteeing those loans;
• (e) any benefit paid under the Old Age Security Act, the Canada Pension Plan or an Act respecting the Québec Pension Plan, CQLR, c. R-9, any superannuation, pension or benefit paid under or in respect of any retirement savings plan or under any retirement plan, any amount paid under or in respect of the Garnishment, Attachment and Pension Diversion Act or the Pension Benefits Division Act and any other payment made in respect of disability to any person in Canada or any Canadian outside Canada;
• (f) financial services required in order for a listed person to obtain legal services in Canada with respect to the application of any of the prohibitions set out in these Regulations;
• (g) any transaction in respect of any account at a financial institution held by a diplomatic mission, if the transaction is required in order for the mission to fulfill its diplomatic functions as set out in Article 3 of the Vienna Convention on Diplomatic Relations or, if the diplomatic mission has been temporarily or permanently recalled, when the transaction is required in order to maintain the mission premises;
• (h) any transaction with any international organization with diplomatic status, with any United Nations agency, with the International Red Cross and Red Crescent Movement or with any entity that has entered into a grant or contribution agreement with the Department of Foreign Affairs, Trade and Development; and
• (i) a transaction by the Government of Canada that is provided for in any agreement or arrangement between Canada and Belarus.

Assisting in prohibited activity

5 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 section 3.

Duty to determine

6 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 listed 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 business described in paragraph 5(h) of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act if the business 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

7 (1) Every person in Canada, every Canadian outside Canada and every entity set out in section 6 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 listed 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 Special Economic Measures Act and no civil proceedings lie against a person for a disclosure made in good faith under subsection (1).

Applications

Application — no longer be listed person

8 (1) A listed person may apply to the Minister in writing to have their name removed from the schedule.

Reasonable grounds

(2) On receipt of an application, the Minister must decide whether there are reasonable grounds to recommend to the Governor in Council that the applicant’s name be removed from the schedule.

New application

9 If there has been a material change in circumstances since the last application was submitted, a person may submit another application under section 8.

Mistaken identity

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

Determination by Minister

(2) Within 30 days after the day on which the Minister receives the application, the Minister must,

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

Application Before Publication

11 For the purpose of paragraph 11(2)(a) of the Statutory Instruments Act, these Regulations apply according to their terms before they are published in the Canada Gazette.

Coming into Force

12 These Regulations come into force on the day on which they are registered.

SCHEDULE

(Section 2 and subsections 8(1) and (2))

Persons

• 1 Khazalbek Bakhtibekovich Atabekov
• 2 Dmitry Vladimirovich Balaba
• 3 Aleksandr Petrovich Barsukov
• 4 Yelena Nikolaevna Dmukhailo
• 5 Vadim Dmitriyevich Ipatov
• 6 Yuri Khadzhimuratovich Karaev
• 7 Ivan Vladimirovich Kubrakov
• 8 Aleksandr Grigoryevich Lukashenko
• 9 Viktor Aleksandrovich Lukashenko
• 10 Yuri Gennadevich Nazarenko
• 11 Lidia Mikhailovna Yermoshina

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issues

In August 2020, following a fraudulent presidential election marred by significant irregularities, ensuing mass public protests in Belarus against the national government were brutally suppressed by government security forces resulting in gross and systematic human rights violations. Canada, its like-minded international partners, and the United Nations High Commissioner for Human Rights have condemned the violence by Belarusian authorities. Further, Canada and its like-minded partners have characterized this election as neither free nor fair and have refused to accept the results. Both the Organization for Security and Co-operation in Europe and the European Union have offered to facilitate dialogue between the authorities and the opposition. However, the Government of Belarus has yet to respond positively to these proposals. The President of Belarus has continued to employ aggressive rhetoric towards the opposition, has refused to engage in dialogue, and has rejected calls for the holding of new presidential elections. Human rights violations continue and there has been no accountability for past or current violations.

Background

On August 9, 2020, the Republic of Belarus held presidential elections marred by widespread irregularities. Under the direction of President Alexander Lukashenko, the Government of Belarus led a systematic campaign of repression during the lead up to the vote and through the conduct of the election itself, and used state-sponsored violence against the people of Belarus in an effort to suppress anti-government protests. Human Rights Watch, Amnesty International, the Office of the United Nations Human Rights Commissioner, Viasna Human Rights Centre, along with the Organization for Security and Co-operation in Europe, have all reported numerous human rights violations, including state authorities’ violations to the Belarusian people’s right to liberty and security of the person, freedom of expression and peaceful assembly, and violations of rights related to due process and to free and fair democratic elections. These actions have been condemned by Canada and other members of the international community, including the European Union, the United Kingdom and the United States.

While there has been progress in terms of the release of some detainees and a halt in the large-scale violence towards peaceful protestors, the Government of Belarus has not been held accountable for its human rights violations. These include prolonged arbitrary detentions, brutality, intimidation, and the excessive use of force against peaceful protestors, including through the use of water cannons, flash grenades, rubber-coated bullets, tear gas, and the use of live ammunition. There are also credible allegations of the use of torture and sexual violence against those unjustly detained. The Government of Belarus continues to commit these gross and systematic human rights violations. Arbitrary arrests and detentions continue, including the detention of prominent opposition figures. In addition, there are undue restrictions on the rights to freedom of expression, peaceful assembly, and freedom of association.

Canada has been strongly engaged in the situation in Belarus, directly with the Government of Belarus and with international partners, as well as in multilateral forums, such as at the Organization for Security and Co-operation in Europe, Media Freedom Coalition and Freedom Online Coalition. Despite the partial release of detainees and a pause in the violent crackdowns, there is no indication that the Government of Belarus is genuinely committed to finding a negotiated solution with opposition groups, nor in ensuring accountability for those responsible for gross and systematic human rights violations. Appropriate steps to restore democratic rights or to address ongoing human rights violations have also not been taken.

Objectives

• To put pressure on the Government of Belarus to change its behaviour.
• To communicate a clear message to the Government of Belarus that Canada will not accept that gross and systematic human rights violations continue to take place at the hands of the State with impunity.
• To encourage progress towards a negotiated solution.

Description

The Special Economic Measures (Belarus) Regulations (the Regulations) list 11 individuals and prohibit persons (individuals and entities) in Canada and Canadians outside Canada from conducting the following activities:

• (a) deal in any property, wherever situated, that is owned, held or controlled by a listed person or by a person acting on behalf of a listed person;
• (b) enter into or facilitate any transaction related to a dealing in any property, wherever situated, that is owned, held or controlled by a listed person or by a person acting on behalf of a listed person;
• (c) provide any financial or related services in respect of a dealing in any property, wherever situated, that is owned, held or controlled by a listed person or by a person acting on behalf of a listed person;
• (d) make any goods available, wherever situated, to a listed person or to a person acting on behalf of a listed person; and
• (e) provide any financial or related services to or for the benefit of a listed person.

Consequential to being listed in the Regulations, and pursuant to the application of paragraph 35(1)(d) of the Immigration and Refugee Protection Act, the listed individuals are inadmissible to Canada.

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 these specific Regulations, public consultation would not have been appropriate, as publicizing the names of the listed persons targeted by sanctions would have likely resulted in asset flight prior to the coming into force of the Regulations.

Modern treaty obligations and Indigenous engagement and consultation

An initial assessment of the geographical scope of the initiative was conducted and did not identify any modern treaty obligations, as the Regulations do not take effect in a modern treaty area.

Instrument choice

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

Regulatory analysis

Benefits and costs

Application of sanctions will serve to put pressure on the Government of Belarus to change its behaviour. The sanctions communicate a clear message that Canada will not accept that gross and systematic human rights violations continue to take place in Belarus at the hands of the State with impunity. As efforts to date have not convinced the Government of Belarus to accept accountability for human rights violations nor to fully implement agreements stemming from the negotiation process with opposition groups, sanctions send an important message from Canada and encourage progress with the negotiations.

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.

As it is unlikely that Canadian businesses have dealings with the newly listed persons, no significant loss of opportunities for small businesses is expected as a result of the Regulations.

Small business lens

As it is unlikely that Canadian businesses have dealings with the newly listed persons, no significant loss of opportunities for small businesses is expected as a result of the Regulations.

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

While the Regulations are not related to a work plan or commitment under a formal regulatory cooperation forum, they align with actions taken by like-minded partners.

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 (GBA+)

The focus of the new Regulations is on specific individuals who are members of the Government of Belarus and/or persons engaged in activities that contribute to human rights violations in Belarus, rather than on Belarus as a whole. This results in minimizing collateral effects to those dependent on those individuals.

Exemptions are included in the Regulations, including, among others, to allow for the delivery of humanitarian assistance to provide some mitigation of the impact of sanctions on vulnerable groups. As a result, these new sanctions are likely to have limited impact on the citizens of Belarus.

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. In accordance with section 8 of the Special Economic Measures Act, every person who willfully contravenes the Special Economic Measures (Belarus) Regulations is liable, upon summary conviction, to a fine of not more than $25,000 or to imprisonment for a term of not more than one year, or to both, or upon conviction on indictment, to imprisonment for a term or not more than five years.

Contact

Alison Grant
Director
Eastern Europe and Eurasia Relations Division
Global Affairs Canada
Telephone: 343‑203‑3603
Email: Alison.Grant@international.gc.ca