Order Extending the Application of the Freezing Assets of Corrupt Foreign Officials (Tunisia) Regulations: SOR/2021-26
Canada Gazette, Part II, Volume 155, Number 6
SOR/2021-26 February 26, 2021
FREEZING ASSETS OF CORRUPT FOREIGN OFFICIALS ACT
Order Extending the Application of the Freezing Assets of Corrupt Foreign Officials (Tunisia) Regulations
P.C. 2021-94 February 26, 2021
His Excellency the Administrator of the Government of Canada in Council, on the recommendation of the Minister of Foreign Affairs, pursuant to section 6 of the Freezing Assets of Corrupt Foreign Officials Act footnote a, extends the application of the Freezing Assets of Corrupt Foreign Officials (Tunisia) Regulations footnote b for a period of five years beginning on March 24, 2021.
REGULATORY IMPACT ANALYSIS STATEMENT
(This statement is not part of the Order.)
The Freezing Assets of Corrupt Foreign Officials (Tunisia) Regulations (the Regulations), made pursuant to the Freezing Assets of Corrupt Foreign Officials Act (the Act), came into force on March 23, 2011. Their application was extended in March 2016 and they are due to expire on March 23, 2021, by operation of section 6 of the Act.
The Act permits the freezing of assets or the restraint of property of politically exposed foreign persons upon receipt of a written request from a state, where the Governor in Council has determined that the country is in "internal turmoil" or in an "uncertain political situation," and where the making of an order or a regulation is in the interest of international relations. This measure supports promoting global peace and security, democracy and the rule of law and maintaining strong bilateral relationships with other countries.
On March 23, 2011, the Governor in Council made the Regulations. At the time, the Regulations gave effect to written requests from Tunisia and Egypt to freeze the assets of former leaders and senior officials or their associates and family members suspected of having misappropriated state funds, or of having obtained property inappropriately as a result of their office or family, business or personal connections. The Regulations were intended to provide Tunisia with a five-year period to complete criminal investigations and make actionable mutual legal assistance requests to Canada. The Regulations were later amended and, in March 2016, their application was extended with respect to eight previously listed Tunisian politically exposed foreign persons to allow an additional period of five years for Tunisia to continue its criminal investigations and provide Canada with the evidence required to facilitate the recovery of assets that had been, or may potentially be, identified regarding those individuals.
Section 6 of the Act provides that "[a]n order or regulation made under section 4 in respect of a politically exposed foreign person ceases to have effect on the day that is five years after the day on which it comes into force unless the Governor in Council, by order, extends it for the period specified in the order. It may be extended more than once." Information received by the Government of Canada supports an extension of the application of the Regulations in relation to the eight individuals currently listed.
The regulatory measures aim to
- ensure that misappropriated assets held by the listed politically exposed foreign persons are frozen so that they may be held accountable;
- signal Canada's continued support for accountability, rule of law and democracy in Tunisia;
- allow additional time for Tunisia to continue its criminal investigations and make actionable mutual legal assistance requests to Canada.
The Order extends the application of the Regulations for a new five-year period beginning on March 24, 2021.
Consultations were conducted with the Department of Foreign Affairs, Trade and Development (Global Affairs Canada), the Department of Justice, the Royal Canadian Mounted Police and the Treasury Board of Canada Secretariat, as well as with the Government of Tunisia. Public consultations were not undertaken, as it would not have been suitable to indicate in advance that this action was being considered. Additionally, exemption from prepublication has been granted, as prepublication could have created the risk of asset flight in the event of a temporary lapse of the freeze, and would have thus defeated the purpose of the Regulations.
Modern treaty obligations and Indigenous engagement and consultation
Modern treaty obligations were considered and no impacts have been identified.
A regulatory order is the only instrument available to extend the application of the Regulations.
Benefits and costs
The Order does not generate any incremental costs to government. Through the extension of the application of the Regulations, compliance costs are reduced for financial institutions because they are not required to unfreeze assets on March 24, 2021.
Small business lens
The extension of the application of the Regulations reduces compliance costs for any financial institutions that are small businesses because they are not required to unfreeze assets on March 24, 2021.
The one-for-one rule does not apply to this Order because there are no administrative costs to businesses. There is no additional burden to financial institutions, as the eight designated persons were already listed in the Regulations.
Regulatory cooperation and alignment
The Order is not related to a work plan or commitment under a formal regulatory cooperation forum.
Strategic environmental assessment
The strategic environmental assessment revealed that this Order is consistent with similar proposals implemented over the years and that it meets one of the criteria of the Department of Foreign Affairs, Trade and Development regarding low risk of potential for important environmental effects, positive or negative. The potential for important environmental effects as a consequence of implementation is highly unlikely.
Gender-based analysis plus
Gender-based analysis plus (GBA+) impacts have been considered and none have been identified.
The request for an extension of the application of the Regulations submitted by the Tunisian government comes at a time when Tunisia continues to face several challenges with regards to its political, economic and security situation. Although Tunisia has made major progress in its democratic consolidation since 2011, including with the adoption of a progressive constitution in 2014, and the holding of free elections in 2014 and 2019, several factors of instability continue to affect Tunisia's public affairs administration, including the prosecution of individuals named under the Regulations. A state of emergency has also remained in place since November 2015, when it was declared following a series of terrorist attacks.
Extension of the application of the Regulations would ensure that assets inappropriately obtained by individuals associated with former President Ben Ali are preserved while Tunisia completes the criminal investigations and prosecutions of these individuals. The extension would allow more time for Tunisian authorities to complete legal proceedings and provide the necessary evidence to facilitate the recovery of assets that had been, or may potentially be, frozen under the Regulations.
Tunisia continues to attach great importance to the recovery of assets. The extension of the application of Regulations would signal to Tunisia Canada's continued support for the accountability of the individuals listed, the rule of law and Tunisia's democratic progress.
Implementation, compliance and enforcement, and service standards
The Order extends the application of the Regulations for a new five-year period beginning on March 24, 2021. The extension will become public as soon as it is posted on the Privy Council Office's Orders in Council web page. It will also be posted on the Department of Justice Canada and Global Affairs Canada websites.
Compliance and enforcement
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 10 of the Act.
Maghreb and Egypt Division
Global Affairs Canada