Regulations Implementing the United Nations Resolution on Haiti: SOR/2022-237

Canada Gazette, Part II, Volume 156, Number 24

Registration
SOR/2022-237 November 10, 2022

UNITED NATIONS ACT

P.C. 2022-1208 November 10, 2022

Whereas the Security Council of the United Nations, acting under Article 41 of the Charter of the United Nations, adopted Resolution 2653 (2022) on October 21, 2022;

And whereas it appears to the Governor in Council to be necessary to make regulations for enabling the measures set out in that resolution to be effectively applied;

Therefore, Her Excellency the Governor General in Council, on the recommendation of the Minister of Foreign Affairs, makes the annexed Regulations Implementing the United Nations Resolution on Haiti under section 2 of the United Nations Act ^{footnote a}.

Regulations Implementing the United Nations Resolution on Haiti

Interpretation

Definitions

1 The following definitions apply in these Regulations.

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 established under paragraph 19 of Security Council Resolution 2653. (Comité du Conseil de sécurité)

designated person

means a person who is designated by the Committee of the Security Council. (personne désignée)

entity

includes a corporation, trust, partnership, fund, unincorporated association or organization or foreign state. (entité)

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)

Humanitarian Response Plan

means a strategic plan prepared by the United Nations that addresses a protracted or sudden onset emergency in Haiti that requires international humanitarian assistance. (Plan d’aide humanitaire)

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)

Minister

means the Minister of Foreign Affairs. (ministre)

official

means an individual who

• (a) is or was employed in the service of His Majesty in right of Canada or of a province;
• (b) occupies or occupied a position of responsibility in the service of His Majesty in right of Canada or of a province; or
• (c) is or was engaged by or on behalf of His Majesty in right of Canada or of a province. (fonctionnaire)

person

means an individual or an entity. (personne)

Security Council

means the Security Council of the United Nations. (Conseil de sécurité)

Security Council Resolution 2653

means Resolution 2653 (2022) of October 21, 2022, adopted by the Security Council. (résolution 2653 du Conseil de sécurité)

technical assistance

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

working day

means a day that is not a Saturday or a holiday. (jour ouvrable)

Prohibitions

Prohibited activities

2 (1) It is prohibited for any person in Canada and any Canadian outside Canada to knowingly

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

Exception — interest

(2) Subsection (1) does not prohibit the payment of interest or other earnings, if the payment is the result of a dealing or transaction that occurred before the person became a designated person. However, the amount paid then becomes subject to subsection (1).

Exception — humanitarian assistance

(3) Subsection (1) does not prohibit payments that are necessary to ensure the timely delivery of urgently needed humanitarian assistance, or to support other activities that support basic human needs in Haiti, by

• (a) the United Nations;
• (b) a United Nations agency or programme;
• (c) a humanitarian organization that has been granted permanent observer status by the United Nations General Assembly; or
• (d) an implementing partner of an organization referred to in paragraph (c), including organizations participating in the Humanitarian Response Plan.

Embargo — arms and related material

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

• (a) export, sell, supply or transfer, directly or indirectly, arms and related material, wherever situated, to or for the benefit of a designated person; 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 or for the benefit of a designated person.

Embargo — military activities

4 It is prohibited for any person in Canada and any Canadian outside Canada to knowingly provide, directly or indirectly, technical assistance or financial assistance related to military activities to or for the benefit of a designated person.

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, any operator of an aircraft registered in Canada, any Canadian owner or master of a vessel or any 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 a designated person.

Assisting in prohibited activity

6 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 2 to 5.

Obligations

Duty to determine

7 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 designated 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

8 (1) Every person in Canada, every Canadian outside Canada and every entity set out in section 7 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 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

9 (1) A person who wishes to engage in any activity that is prohibited under these Regulations must, before engaging in that activity, apply to the Minister in writing for a certificate to exempt the activity from the application of these Regulations.

Certificate

(2) The Minister must issue the certificate if the Security Council did not intend that such an activity be prohibited or if the Security Council or the Committee of the Security Council has approved the activity in advance.

Exemption for property

10 (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 Security Council Resolution 2653 that 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, 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 that is necessary for basic expenses, if the Committee of the Security Council does not oppose the application;
• (b) within 30 working days after receiving the application, in the case of property that is necessary for extraordinary expenses, if the Committee of the Security Council approves 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

11 (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 the receipt of 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 working days after receiving the application and at least 10 working days after advising the Security Council of the Minister’s intention to issue the certificate, if it is established that

• (a) the contract was entered into or the transfer 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 — or that is held or controlled, directly or indirectly — by a designated person.

Mistaken identity

12 (1) A person whose name is the same as or similar to the name of a designated 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 designated person.

Determination by Minister

(2) Within 45 working days after receiving the application, the Minister must

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

Disclosure of Information

Disclosure by official

13 (1) An official may, for the purpose of responding to a request from the Security Council, disclose personal information to the Minister.

Disclosure by Minister

(2) The Minister may, for the purpose of administering or enforcing these Regulations or fulfilling an obligation under a resolution of the Security Council, disclose personal information to the Security Council.

Legal Proceedings

Prohibition — legal proceedings

14 No legal proceedings lie in Canada at the instance of the Government of Haiti, of any person in Haiti, of a designated person or of any person claiming through or acting on behalf of any such person in connection with any contract or other dealing if its performance was prevented in any way by these Regulations.

Application Before Publication

Application

15 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

16 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

On October 21, 2022, acting under Chapter VII of the Charter of the United Nations (the Charter), the United Nations Security Council (UNSC) adopted Resolution 2653 (2022) [the Resolution], establishing a sanctions regime on Haiti. As a Member State of the United Nations, and pursuant to Article 25 of the Charter, Canada is legally obligated to implement the sanctions outlined in the Resolution.

Background

The UNSC sanctions regime imposes a targeted arms embargo, travel ban and asset freeze upon designated individuals and entities who are responsible for or complicit in actions that threaten the peace, security or stability of the country.

The Resolution has established a Committee of the Security Council (the Committee), consisting of all the members of the UNSC, to undertake, among other tasks, the monitoring of the implementations of travel ban, asset freeze and arms embargo measures imposed upon individuals and entities designated by the Committee; to seek and review information regarding them; and to designate individuals and entities to be subject to the aforementioned measures. The Resolution also requested the UN Secretary-General to create a panel of experts to support the Committee’s work.

The sanctions regime established by the Resolution presently lists one individual, Jimmy Cherizier (“Barbeque”), who heads the G9, an alliance of gangs. It notes that Cherizier has “engaged in acts that threaten the peace, security, and stability of Haiti” and has “planned, directed, or committed acts that constitute serious human rights abuses.” The Committee will be responsible for designating additional individuals and entities to be subject to sanctions.

As a Member State of the United Nations, and pursuant to Article 25 of the Charter, Canada is legally obligated to accept and carry out UNSC decisions. Consequently, in order to implement the sanctions outlined in the Resolution, Canada will meet its obligations under Article 25 by imposing Haiti sanctions regulations under the United Nations Act (UNA).

The UNA provides Canada with the ability to impose UNSC sanctions measures into domestic law. These measures are distinct from Canadian autonomous sanctions imposed under the Special Economic Measures Act (SEMA) and the Justice for Victims of Corrupt Foreign Officials Act (JVCFOA).

Objective

To fulfill Canada’s international legal obligation to implement the Haiti sanctions outlined in UNSC Resolution 2653 (2022).

Description

The Regulations Implementing the United Nations Resolution on Haiti (the Regulations) give effect to the decisions taken by the UNSC to impose sanctions measures outlined in the Resolution.

The Regulations impose the following prohibitions, which are outlined in the Resolution:

• A freeze on all funds, other financial assets and economic resources within Canada which are owned or controlled, directly or indirectly, by any designated individuals or entities, or by any individuals or entities acting on their behalf or at their direction, or by entities owned or controlled by them; and
• An arms embargo on any designated individuals or entities.

Individuals designated in the Resolution are also inadmissible to Canada under the Immigration and Refugee Protection Act.

The full text of the Resolution is available on the United Nations website.

Individuals and entities designated in the Resolution will be incorporated by reference into the Regulations. Consequently, as the Committee designates new individuals and entities, the prohibitions outlined in the Regulations will apply to them automatically, and no amendments to the Regulations will be required.

The Regulations, per section 2 of the United Nations Act, provide authority to the Minister of Foreign Affairs to grant certificates in exceptional circumstances, authorizing activities which would otherwise be prohibited under the Regulations, if the UNSC did not intend that such an activity be prohibited or if the UNSC or the Committee approved the activity in advance.

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 Regulations, no such external outreach was conducted. As a member of the United Nations, Canada is obliged to implement the measures included in the Resolution), as outlined in the Regulations.

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 the Resolution.

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

In 2021, bilateral merchandise trade totalled $153.6 million. Canadian exports and imports to Haiti were worth $81.4 million and $72. 2 million, respectively. Canadian exports were mainly in the agrifood sector and automotive sector. For their part, imports from Haiti were mostly textile products and agrifood products.

While current analysis indicates that businesses are not likely to be impacted by the initial designation included in the Resolution, it’s possible that subsequent designations could have an impact. However, it is too early at this stage to assess this potential impact. In the event that businesses are impacted by subsequent designations made by the Committee, they are able to apply for a certificate, granted in exceptional circumstances by the Minister of Foreign Affairs, authorizing activities which would otherwise be prohibited under the Regulations. This process could potentially create additional administrative costs for businesses.

To facilitate compliance by small businesses, Global Affairs Canada conducts enhanced outreach with stakeholders to better inform them of changes to Canada’s sanctions. This includes updates to the sanctions website.

One-for-one rule

The certificate 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 proposal addresses 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

The Regulations align with the Resolution 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 consultation 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.

Rather than affecting Haitians as a whole, these targeted sanctions impact specific individuals and entities designated by the Resolution. 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. 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.

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, including Haiti, and Canada’s contributions to international financial institutions can also go toward projects and programs in countries subject to Canadian sanctions.

Rationale

As a Member State of the United Nations, and pursuant to Article 25 of the Charter, Canada is legally obligated to accept and carry out UNSC decisions. The Regulations satisfy Canada’s obligation, in this regard, by implementing the sanctions outlined in the Resolutioninto Canadian law.

Implementation, compliance and enforcement, and service standards

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

The names of the designated individuals and entities will be available online for financial institutions to review and will be added to the Consolidated UN Sanctions List. This will help to facilitate compliance with the Regulations.

Canada’s sanctions regulations are enforced by the Royal Canadian Mounted Police and the Canada Border Services Agency. In accordance with section 3 of the UNA, every person who knowingly contravenes or fails to comply with the regulations is liable upon 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, and upon conviction on indictment to imprisonment for a term of not more than 10 years.

Contact

Sebastien 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