Special Economic Measures (Haiti) Regulations: SOR/2022-226
Canada Gazette, Part II, Volume 156, Number 24
Registration
SOR/2022-226 November 3, 2022
SPECIAL ECONOMIC MEASURES ACT
P.C. 2022-1190 November 3, 2022
Whereas the Governor in Council is of the opinion that the situation in the Republic of Haiti constitutes a grave breach of international peace and security that has resulted or is likely to result in a serious international crisis;
Therefore, Her Excellency the Governor General in Council, on the recommendation of the Minister of Foreign Affairs, makes the annexed Special Economic Measures (Haiti) Regulations under subsections 4(1)footnote a, (1.1)footnote b, (2)footnote c and (3) of the Special Economic Measures Act footnote d.
Special Economic Measures (Haiti) Regulations
Definitions
Definitions
1 The following definitions apply in these Regulations.
- Haiti
- means the Republic of Haiti and includes
- (a) any of its political subdivisions;
- (b) its government, any of its departments and any government and department of its political subdivisions; and
- (c) any of its agencies and any agency of its political subdivisions. (Haïti)
- 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 Haiti, or is a national of Haiti 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 engaged in activities that directly or indirectly undermine the peace, security and stability of Haiti;
- (b) a current or former senior official of the Government of Haiti;
- (c) an associate of a person referred to in paragraph (a) or (b);
- (d) a family member of a person referred to in any of paragraphs (a) to (c) and (g);
- (e) an entity owned — or held or controlled, directly or indirectly — by a person referred to in any of paragraphs (a) to (d);
- (f) an entity owned — or held or controlled, directly or indirectly — by Haiti; or
- (g) a senior official of an entity referred to in paragraph (e) or (f).
Prohibitions
Prohibited dealings and activities
3 It is prohibited for any person in Canada and any Canadian outside Canada to
- (a) deal in any property, wherever situated, that is owned — or that is held or controlled, directly or indirectly — by 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 that the listed person entered into before they 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 transaction 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 that listed person before they 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 the 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 necessary 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 necessary 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 necessary 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 Haiti.
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 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 — or that is held or controlled, directly or indirectly — by a listed person:
- (a) banks regulated by the Bank Act and, in respect of their business in Canada, authorized foreign banks as defined in section 2 of 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
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 — or that is held or controlled, directly or indirectly — by 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
Removal from list
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 the removal to the Governor in Council.
New application
9 If there has been a material change in circumstances since the last application was submitted, a listed 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 the determination.
Application Before Publication
Application
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
Registration
12 These Regulations come into force on the day on which they are registered.
SCHEDULE
(Section 2 and subsection 8(1))
Persons
- 1 Youri Latortue (born on November 13, 1967)
- 2 Joseph Lambert (born on February 5, 1961)
REGULATORY IMPACT ANALYSIS STATEMENT
(This statement is not part of the Regulations.)
Issues
Haitian political elites are using their position, as previous or current public office holders, to protect and/or support the activities of criminal gangs, including for personal and political gain, which is contributing to a severe humanitarian crisis and threatening regional peace and security.
Background
For several years, Haiti has been gripped by a multidimensional crisis characterized by rampant inflation, chronic poverty, alarming insecurity as well as a political deadlock paralyzing most public institutions. In this context, Haitians experience daily assaults on their basic human rights.
The Special Economic Measures (Haiti) Regulations (the Regulations) will allow Canada to target sanctions at key individuals who finance, support or benefit from the activities of armed gangs operating under the protection of political interest groups and business leaders. These armed gangs have deliberately killed, injured and committed acts of sexual violence to terrorize and subjugate the population, and to expand territorial control. Recently, the gangs have encircled Port-au-Prince and are blocking access to strategic installations, such as ports as well as the Varreux fuel terminal. These blockades are affecting critical public services and infrastructure, as several health facilities and schools have had to close. These blockades have also intensified an existing humanitarian crisis, characterized by the re-emergence of cholera and millions of Haitians experiencing acute hunger.
The international community is seized by the current crisis and is taking action to limit the flow of financial support to those perpetuating violence in Haiti, as demonstrated by the unanimous adoption, on October 21, 2022, by the United Nations Security Council (UNSC), of a resolution establishing a new sanctions regime. The UNSC measures will take months to become effective.
Canada has closely coordinated with key allies to urgently impose the autonomous sanctions outlined in this proposal to put immediate pressure on those supporting or fomenting the violence in Haiti, in order to put an end to the violence, and allow for Haitian authorities to restore law and order.
The Regulations align with existing policy and objectives to address the multidimensional crisis in Haiti. It also advances policy objectives focused on promoting good governance, democracy and the fight against corruption and impunity. Finally, the Regulations reinforce Canada’s steadfast commitment to promoting regional development, peace and security and to work with the international community in supporting Haitian authorities’ efforts to restore law and order.
The Special Economic Measures (Haiti) Permit Authorization Order was also developed to authorize the Minister of Foreign Affairs to issue to any individual or entity in Canada, and any Canadian outside Canada, a permit to carry out a specified activity or transaction, or any class of activity or transaction that is otherwise restricted or prohibited pursuant to the Regulations.
Objective
The sanctions are intended to exert pressure on individuals who have established links to criminal gangs, in order to obstruct the flow of illicit funds and weapons to Haiti, facilitated by these individuals.
Description
The Special Economic Measures (Haiti) Regulations include two individuals who are subject to a broad dealings ban. The individuals are current or former Haitian politicians.
Any individual or entity in Canada, and Canadians and Canadian entities outside Canada are thereby prohibited from dealing in the property of, entering into transactions with, providing services to, or otherwise making goods available to listed persons.
Regulatory development
Consultation
Global Affairs Canada engages regularly with relevant stakeholders in Haiti, including civil society organizations and other like-minded governments, regarding Canada’s approach to international assistance in Haiti, including sanctions implementation. As an example, Canada chairs the ECOSOC Ad Hoc Advisory Group on Haiti, and uses this platform to develop and discuss with its allies, coordinated international responses to the economic and development challenges facing the country.
With respect to the Regulations targeting individuals, public consultation would not have been appropriate, given the urgency to impose these measures in response to the deteriorating security situation and humanitarian crisis, which poses a significant threat to regional peace and security. The situation in Haiti has intensified regional tensions, particularly with the Dominican Republic. President Abinader of the Dominican Republic has asserted that the situation in Haiti amounts to a “low intensity civil war,” which threatens the Dominican Republic’s national security.
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
Sanctions targeting specific persons have less impact on Canadian businesses than traditional broad-based economic sanctions, and have limited impact on the citizens of the country of the listed persons. 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.
It is possible the Regulations could potentially create additional costs for businesses seeking permits that would authorize them to carry out specified activities or transactions that are otherwise prohibited, as Canada has not applied sanctions in the Haiti context since 1992 (later repealed). However, given that the sanctions are targeted, the likelihood of costs for businesses is minimal.
Small business lens
It is possible the Regulations could potentially create additional costs for businesses seeking permits that would authorize them to carry out specified activities or transactions that are otherwise prohibited, as Canada has not applied sanctions in the Haiti context since 1992 (later repealed). However, given that the sanctions are targeted, the likelihood of costs for businesses is minimal.
However, should additional costs be created for small businesses, these costs will likely be low, as it is highly unlikely that Canadian small businesses have or will have dealings with the newly listed individuals and entities. No significant loss of opportunities for small businesses is expected as a result of the Regulations.
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 Regulations address an emergency circumstance and are exempt from the requirement to offset administrative burden and regulatory titles under the one-for-one rule.
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 Canada’s allies.
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 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 (SEMA) can nevertheless have an unintended impact on certain vulnerable groups and individuals. Rather than affecting Haitians as a whole, these targeted sanctions impact individuals and entities believed to be engaged in activities that violate human rights and present an ongoing breach of international peace and security. Therefore, these sanctions are unlikely to have a significant negative 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. Furthermore, these sanctions are being introduced in support of vulnerable populations, particularly women and girls, who continue to face daily assaults on their basic human rights by criminal gangs, including sexual and gender-based violence.
Rationale
Haiti has experienced chronic political unrest for many years. This situation was exacerbated by the assassination of President Moïse in July 2021, which created a constitutional and institutional vacuum, setting the stage for the current security crisis. More recently, gangs supported by the Haitian elite and others have expanded their territorial control over the country. Several UN Missions were deployed over the years in an attempt to support Haitian authorities’ efforts to restore order. A key gap in international interventions to date has been the establishment of measures to identify and exert pressure on those providing financial support and arms to criminal gangs to advance their own financial and/or political interests, capitalizing on the endemic corruption and money laundering that exists in the country.
The proposed sanctions target key Haitian decision makers that benefit from the instability created by the current violence. Canada’s swift response aims to exert pressure on these individuals so that they change their behaviour and cease their support to gangs. It is expected that this response will act as a deterrent for others engaged in or considering similar behaviour.
Implementation, compliance and enforcement, and service standards
The Regulations come into force on the day on which 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 Regulations.
Canada’s sanctions regulations are enforced by the Royal Canadian Mounted Police. In accordance with section 8 of the Special Economic Measures Act, every person who knowingly contravenes or fails to comply with the sanctions 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 Canada Border Services Agency (CBSA) has enforcement authorities under SEMA and the Customs Act, and will play a role in the enforcement of these sanctions.
Contact
Sébastien Sigouin
Executive Director
Haiti Division
Global Affairs Canada
125 Sussex Drive
Ottawa, Ontario
K1A 0G2
Telephone: 343‑548‑7620
Email: sebastien.sigouin@international.gc.ca