Regulations Amending the Special Economic Measures (Belarus) Regulations: SOR/2022-75

Canada Gazette, Part II, Volume 156, Number 9

Registration
SOR/2022-75 April 5, 2022

SPECIAL ECONOMIC MEASURES ACT

P.C. 2022-336 April 5, 2022

Whereas the Governor in Council is of the opinion that the actions of Belarus constitute a grave breach of international peace and security that has resulted in a serious international crisis;

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 Regulations Amending the Special Economic Measures (Belarus) Regulations.

Regulations Amending the Special Economic Measures (Belarus) Regulations

Amendments

1 Section 1 of the Special Economic Measures (Belarus) Regulations footnote 1 is amended by adding the following in alphabetical order:

technology
means any form of technical data or technical assistance, such as providing instruction, training, consulting or technical advice services or transferring know-how or technical data. (technologie)

2 Paragraph 2(c) of the English version of the Regulations is replaced by the following:

3 (1) The portion of section 3.3 of the Regulations before paragraph (a) is replaced by the following:

Insurance and reinsurance

3.3 It is prohibited for any person in Canada and any Canadian outside Canada to provide insurance or reinsurance to or for the benefit of

(2) Paragraphs 3.3(a) and (b) of the French version of the Regulations are replaced by the following:

(3) Section 3.3 of the Regulations is renumbered as subsection 3.3(1) and is amended by adding the following:

Insurance — aviation and aerospace

(2) It is prohibited for any person in Canada and any Canadian outside Canada to provide insurance or reinsurance to or for the benefit of any person in Belarus in relation to any good described in Chapter 88 of the Harmonized Commodity Description and Coding System, published by the World Customs Organization, or in relation to technology for a good described in that chapter.

Existing insurance

(3) Subsection (2) does not apply in respect of existing insurance or reinsurance until 30 days after the day on which this section comes into force.

4 The Regulations are amended by adding the following after section 3.5:

Restricted goods

3.6 (1) It is prohibited for any person in Canada and any Canadian outside Canada to export, sell, supply or ship any good, wherever situated, to Belarus or to any person in Belarus if the good is described in the Restricted Goods and Technologies List.

Restricted technologies

(2) It is prohibited for any person in Canada and any Canadian outside Canada to provide to Belarus or to any person in Belarus any technology that is described in the Restricted Goods and Technologies List.

Non-application — goods

(3) Subsection (1) does not apply to

Non-application — technologies

(4) Subsection (2) does not apply to technology provided in relation to a good if the export, sale, supply or shipment of that good is authorized by subsection (3).

Definitions

(5) The following definitions apply in this section.

consumer communication device
means any of the following items:
  • (a) computers;
  • (b) disk drives, solid-state storage equipment and other memory devices;
  • (c) input/output control units, other than industrial controllers designed for chemical processing;
  • (d) graphics accelerators and graphics coprocessors;
  • (e) monitors;
  • (f) printers;
  • (g) modems, network access controllers and communications channel controllers;
  • (h) keyboards, mice and similar devices;
  • (i) mobile phones, including cellular and satellite telephones, personal digital assistants, subscriber identity module (SIM) cards and similar devices;
  • (j) information security equipment and peripherals;
  • (k) digital cameras and memory cards;
  • (l) television and radio receivers;
  • (m) recording devices;
  • (n) batteries, chargers, carrying cases and accessories for a good referred to in paragraphs (a) to (m); and
  • (o) software, other than encryption source code, for use with a good referred to in paragraphs (a) to (n). (dispositif de communication)
Restricted Goods and Technologies List
means the Restricted Goods and Technologies List, prepared by the Department of Foreign Affairs, Trade and Development and published on the Department’s website, as amended from time to time. (Liste des marchandises et technologies réglementées)

5 The portion of section 4 of the Regulations before paragraph (a) is replaced by the following:

Non-application

4 Section 3 does not apply in respect of

6 Section 5 of the Regulations is replaced by the following:

Assisting in prohibited activity

5 It is prohibited for any person in Canada and 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 3.6.

7 Part 1.1 of Schedule 1 to the Regulations is amended by adding the following after item 41:

8 The Regulations are amended by adding, after Schedule 2, the Schedule 3 set out in the schedule to these Regulations.

Application Before Publication

9 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

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

SCHEDULE

(Section 8)

SCHEDULE 3

(Paragraphs 3.6(3)(a), (c) and (f))

Partner Countries

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issues

Belarus is supporting the Russian Federation’s violation of the sovereignty and territorial integrity of Ukraine.

Background

On August 9, 2020, the Republic of Belarus held presidential elections marred by widespread irregularities. Under the direction of incumbent 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, and the Organization for Security and Cooperation in Europe (OSCE), all reported numerous human rights violations. Since then, numerous reputable human rights organizations, including Viasna Human Rights Centre, have been forced to close.

The Government of Belarus has continued to commit gross and systematic human rights violations since the 2020 presidential election. These include prolonged arbitrary detentions, brutality, intimidation, and the excessive use of force against peaceful protestors. Arbitrary arrests continue. In addition, there are undue restrictions on the rights to freedom of expression, peaceful assembly, and freedom of association. Human rights observers identified an escalation in the scale of repression against independent journalists in 2021, including arbitrary detention, the imposition of fines and prison sentences, loss of media credentials and police raids. On May 23, 2021, the Government of Belarus orchestrated an event that was a significant and dangerous escalation in its attacks on opposition voices. Ryanair flight 4978, flying between Athens, Greece, and Vilnius, Lithuania, was diverted to Minsk National Airport at the behest of the Belarusian aviation authorities. The diversion was requested on the premise of a possible bomb threat on board, which proved to be unsubstantiated. Upon landing in Minsk, two passengers, Belarusian journalist and activist Roman Protasevich and his Russian companion Sofia Sapega, were removed from the flight. They remain under house arrest as of October 2021, awaiting trial.

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 OSCE, Media Freedom Coalition, and Freedom Online Coalition. To date, Canada has sanctioned 115 individuals and 37 entities in relation to events in Belarus, including the implementation of restrictions on certain activities relating to transferable securities and money market instruments, debt financing, insurance and reinsurance, petroleum products, and potassium chloride products. Amendments to the Special Economic Measures (Belarus) Regulations (the Regulations) have been made on six separate occasions between 2020 and 2022.

The Special Economic Measures (Belarus) Permit Authorization Order, which came into force on October 2, 2020, authorizes the Minister of Foreign Affairs to issue to any person in Canada and Canadian outside Canada a permit to carry out a specified activity or transaction, or any class of activity or transaction, that is otherwise prohibited pursuant to the Special Economic Measures (Belarus) Regulations.

Since the middle of 2021, there has been a rapprochement between Belarus and Russia. Russia is providing diplomatic, financial, military, media and intelligence support to Belarus. On November 30, 2021, Lukashenko stated that Russia-occupied Crimea became legally a part of Russia in 2014, adding that he planned to visit the peninsula with Russian President Vladimir Putin. This marked a significant shift from its earlier statements.

There has been a significant build-up of Russian troops (estimated at 150 000–190 000), military equipment, and military capabilities in and around Ukraine since fall of 2021, following months of Russian escalatory behaviour. This includes military exercises in Belarus that included the participation of Belarusian Armed Forces. Russia and Belarus held a joint military exercise from February 10 to 20, 2022. However, on February 20, 2022, Russia extended the joint military exercise with Belarus and announced that Russian troops would not leave Belarus. Belarus’s overall relationships with Ukraine, the United States (U.S.), and the North Atlantic Treaty Organization (NATO) have also deteriorated, which has led to heightened tensions.

On February 24, President Putin announced a “special military operation” as Russian forces launched a full-scale invasion of Ukraine. The invasion began with targeted strikes on key Ukrainian military infrastructure and Russian forces advancing into Ukraine in the north from Russia and Belarus, the east from Russia and the so-called Luhansk People’s Republic (LNR) and Donetsk People’s Republic (DNR), and the south from Crimea. Russia’s assault on Ukraine is well under way. The Belarusian regime aided and abetted this egregious step, which is a blatant violation of international law and the rules-based international order. The attacks have caused widespread devastation of Ukrainian infrastructure and property, and unnecessary deaths of Ukrainians, particularly civilians. On February 27, the Lukashenko regime passed an illegal amendment to Belarus’s Constitution removing Article 18, which pledged to “make its territory a nuclear-free zone and a neutral state.” This move has paved the way for Belarus to host Russian nuclear weapons. Following the invasion, Belarusian forces were deployed to the border with Ukraine, but have yet to enter Ukraine itself.

International response

Since the beginning of the current crisis, Canada and the international community have been calling on Russia to de-escalate, pursue diplomatic channels, and demonstrate transparency in military activities. Diplomatic negotiations have been taking place along several tracks, including via (1) United States–Russia bilateral talks (e.g. the Strategic Stability Dialogue); (2) NATO; (3) the OSCE; and (4) the Normandy Four format (Ukraine, Russia, Germany, France) for the implementation of the Minsk agreements.

G7 Foreign Affairs ministers released a statement on February 21, 2022, condemning Russian recognition of the so-called LNR and DNR regions and stating that they were preparing to step up restrictive measures to respond to Russia’s actions, while reaffirming their unwavering commitment to Ukraine’s sovereignty and territorial integrity. On March 17, G7 Foreign Affairs ministers reaffirmed their commitment and demanded that the Russian leadership immediately complies with the order of the International Court of Justice to stop the assault on Ukraine. This follows a similar statement made in December 2021, and another by NATO Foreign Affairs ministers in January 2022.

On March 2, 2022, the United States Commerce Department implemented a series of significant new export control measures on exports of broad classes of goods and technologies to Belarus, targeting the Belarusian defence, aerospace and maritime sectors.

Canada’s response

On March 8, 2022, Canada implemented further sanctions against an additional 19 individuals and 25 entities by amending the Regulations, in coordination with allies, targeting government and financial elites, oligarchs and their family members and associates, as well as entities involved in Belarus’s financial, potash, energy, tobacco, and defence sectors.

On March 16, 2022, Canada further amended the Regulations to add an additional 22 senior officials of the Ministry of Defence of the Government of Belarus for their involvement in the Russian invasion of Ukraine.

These amendments to the Special Economic Measures (Belarus) Regulations build upon Canada’s existing sanctions against Belarus by further impeding Russian dealings with Canada. These measures are being taken in coordination with partners, including the U.S., the United Kingdom (U.K.), the European Union (EU), South Korea and Japan.

Conditions for imposing and lifting sanctions

Pursuant to the Special Economic Measures Act, the Governor in Council may impose economic sanctions and other sanctions against foreign states, as well as entities and individuals when, among other circumstances, a grave breach of international peace and security has occurred resulting in a serious international crisis.

The duration of sanctions by Canada and like-minded partners has been explicitly linked to Belarus stopping its support to Russia or the peaceful resolution of the conflict, and the respect for Ukraine’s sovereignty and territorial integrity, within its internationally recognized borders, including Crimea, as well as Ukraine’s territorial sea. The U.S., the U.K., the EU and Australia have continued to update their sanctions regimes against individuals and entities in Belarus, Ukraine and Russia.

Objectives

  1. Impose further costs on Belarus for its support of Russia’s unprovoked and unjustifiable invasion of Ukraine.
  2. Align with actions taken by international partners in relation to restricting the export of certain goods and technologies to Belarus to underscore shared security interests and continued unity with Canada’s allies and partners in responding to Belarus’s actions in Ukraine.
  3. Prevent Canada from becoming a source of aviation-related insurance that is not available elsewhere.

Description

The Regulations Amending the Special Economic Measures (Belarus) Regulations (the amendments) add 9 individuals to Schedule 1 of the Regulations, who are subject to a broad dealings ban. These individuals are oligarchs and their family, close associates of the regime, and senior military officials.

These amendments also revise existing prohibitions against persons in Canada providing insurance or reinsurance to Belarus or any person in Belarus. The revised measure prohibits the provision of any and all insurance, reinsurance, and underwriting services, including sale of new contracts and requiring the cancellation of existing contracts related to aviation. This prohibition includes insurance coverage for aircraft, and aviation and aerospace products either owned by, controlled by, registered to, chartered by, or operated by entities and individuals resident, incorporated, or domiciled in Belarus or for use in Belarus.

Finally, these amendments impose new measures that prohibit any person in Canada and any Canadian outside Canada from exporting, selling, supplying or shipping any good, wherever situated, to Belarus or to any person in Belarus, if the good is described in the Restricted Goods and Technologies List. The list, with items of potential military and civilian application, includes a broad range of items in the areas of electronics, computers, telecommunications, sensors and lasers, navigation and avionics, marine, aerospace and transportation. The Restricted Goods and Technologies List, which is prepared by Global Affairs Canada and published on its website, is incorporated into the amendments by reference, per section 18.1 of the Statutory Instruments Act.

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.

Government officials held a meeting with the Insurance Bureau of Canada (IBC) to discuss the impact of insurance-based sanctions in the air sector on the members of that organization. To date, no specific concerns have been raised.

With respect to the amendments targeting individuals, public consultation would not have been appropriate, given the urgency to impose these measures in response to the ongoing breach of international peace and security in Ukraine.

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 amendments 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

Sanctions targeting specific persons have less impact on Canadian businesses than traditional broad-based economic sanctions, and the amendments will have limited impact on the citizens of the country of the listed persons. It is likely that the newly listed individuals have limited linkages with Canada, and therefore do not have business dealings that are significant to the Canadian economy.

Insurance and reinsurance of aircraft

The aviation insurance sanctions are broad-based affecting the provision of aviation and aerospace insurance and reinsurance to any entity or individual located or resident in Belarus or for use in Belarus. As Canada has already closed its airspace to Belarusian aircraft, withdrawal of insurance coverage would not have a direct impact on the ability of Belarusian aircraft to access Canadian airspace, but would rather affect their ability to operate more generally.

While these sanctions could affect Canadian business and revenues, information currently available suggests that insurance and reinsurance companies operating in Canada are not significant participants in the international aviation insurance markets, particularly for large commercial aircraft operators. As such, these sanctions on insurance and reinsurance are expected to have negligible impacts on Canadian businesses.

Additional export prohibitions

In close alignment with export restrictions of similar goods and technologies by the U.S., the U.K., the EU, South Korea and Japan, these sanctions will harm the Belarusian economy, limit Belarus’s defence and aerospace manufacturing capability, and prevent Canada from becoming a transshipment point for items sanctioned by Canada’s partners. Canada is using the Special Economic Measures Act to prevent the export of a wide range of goods and technologies to Belarus that could benefit the military and government of Belarus.

The amendments will create additional costs for businesses to verify if they are in compliance or to seek permits that would authorize them to carry out specified activities or transactions that are otherwise prohibited. Exporters will also forego future business opportunities and profits if their established market becomes inaccessible or less accessible due to complying with the additional sanctions. However, the list of restricted materials will be accessible on the “Sanctions” section of the Global Affairs Canada website, and will be accessible to businesses looking to export goods to Belarus.

Canadian banks and financial institutions are required to comply with sanctions. They will do so by adding the newly listed individuals to their existing monitoring systems, which may result in a minor compliance cost.

The amendments will create additional costs for businesses seeking permits that would authorize them to carry out specified activities or transactions that are otherwise prohibited.

Small business lens

The amendments potentially create additional costs for small businesses to verify if they are in compliance (i.e. departmental advice to companies to seek private legal counsel) or to seek permits that would authorize them to carry out specified activities or transactions that are otherwise prohibited. The products subject to sanctions are estimated to account for about $1.1 million in 2021, less than the average over the past three years. This is about 6.9% of Canada’s exports to Belarus. Global Affairs Canada is not able to determine the share that would be impacted by these measures. With regards to the prohibition against insurance and reinsurance of Belarusian aviation products, there is no current information to suggest that small businesses would be particularly affected by the measures.

One-for-one rule

The permitting process for businesses meets the definition of “administrative burden” in the Red Tape Reduction Act and would need to be calculated and offset within 24 months. However, the amendments address an emergency circumstance and is exempt from the requirement to offset administrative burden and regulatory titles under the one-for-one rule.

Regulatory cooperation and alignment

While the amendments are not related to a work plan or commitment under a formal regulatory cooperation forum, they align with actions taken by like-minded partners. The additional export prohibitions align with measures already taken by the U.S., the EU, the U.K., South Korea and Japan.

Strategic environmental assessment

The amendments 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 subject of economic sanctions has previously been assessed for effects on gender and diversity. Although intended to facilitate a change in behaviour through economic pressure on individuals and entities in foreign states, sanctions under the Special Economic Measures Act can nevertheless have an unintended impact on certain vulnerable groups and individuals. Rather than affecting Belarus as a whole, these targeted sanctions impact individuals and entities believed to be engaged in activities that directly or indirectly support, provide funding for or contribute to a violation of the sovereignty or territorial integrity of Ukraine. Therefore, these sanctions are unlikely to have a significant impact on vulnerable groups as compared to traditional broad-based economic sanctions directed toward a state, and limit the collateral effects to those dependent on those targeted individuals and entities.

Rationale

The amendments are a direct response of the involvement of the Government of Belarus and the Belarusian Armed Forces in the February 24, 2022, invasion of Ukraine, which continues Russia’s and Belarus’s blatant violation of Ukraine’s territorial integrity and sovereignty, international law and principles. Belarus has made itself complicit in these actions through its support of Russia. This prohibition would apply to commercial and private aviation and aerospace operators, and would signal Canada’s strong condemnation of Belarus’s involvement in Russia’s latest violations of Ukraine’s territorial integrity and sovereignty.

The nine individuals being added to the schedule to the Regulations are oligarchs and their family members, close associates of the regime and senior military officials.

Insurance and reinsurance of aircraft

All commercial aircraft operators, and many other aircraft operators, are required to hold insurance to operate. The obligation is imposed both through regulatory and commercial means. Commercial requirements can be found in various contracts, for example those related to leasing and financing. Actions taken that prevent an airline from obtaining insurance would, therefore, have a significant impact on its ability to operate. While Canada’s like-minded partners have not implemented such a prohibition against Belarus, Canada views Belarusian support for Russia’s invasion of Ukraine as warranting the imposition of similar sanctions against its domestic aviation and aerospace sector.

Additional export prohibitions

On March 2, 2022, the U.S. imposed significant export control measures in direct response to the Belarus’s support to the Russian invasion of Ukraine, with the intended goal of imposing a direct economic cost on Belarus and to negatively impact Belarus’s military capabilities. One element of these measures imposed severe restrictions on exports to military end-user entities. A second element imposed a Belarus-wide denial of exports of sensitive technology, primarily targeting the Belarusian defence, aviation, and maritime sectors, to cut off Belarus’s access to cutting-edge technology. A third element imposed a Foreign Direct Product Rule related to the first two elements, which extends U.S. control measures to items produced outside the U.S. that are the direct product of certain U.S. software or technology. The present amendments seek to align Canada’s Regulations with the U.S. measures.

Implementation, compliance and enforcement, and service standards

The amendments come into force on the day they are registered.

The names of the listed individuals will be available online for financial institutions to review and will be added to the Consolidated Canadian Autonomous Sanctions List. This will help to facilitate compliance with the amendments.

The items in the Restricted Goods and Technologies List will be available online on the Global Affairs Canada sanctions website for businesses to review. This will help to facilitate compliance with the amendments.

Canada’s sanctions regulations are enforced by the Royal Canadian Mounted Police and the Canada Border Services Agency (CBSA). In accordance with section 8 of the Special Economic Measures Act, every person who knowingly contravenes or fails to comply with 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 of not more than five years.

The CBSA has enforcement authorities under the Special Economic Measures Act and the Customs Act, and will play a role in the enforcement of these sanctions.

Contact

Andrew Turner
Director
Eastern Europe and Eurasia Relations Division
Global Affairs Canada
125 Sussex Drive
Ottawa, Ontario
K1A 0G2
Telephone: 343‑203‑3603
Email: Andrew.Turner@international.gc.ca