Vol. 148, No. 14 — July 2, 2014
Registration
SOR/2014-163 June 19, 2014
UNITED NATIONS ACT
Regulations Implementing the United Nations Resolutions on the Central African Republic
P.C. 2014-815 June 18, 2014
Whereas the Security Council of the United Nations, acting under Article 41 of the Charter of the United Nations, adopted Resolution 2127 (2013) on December 5, 2013, Resolution 2134 (2014) on January 28, 2014 and Resolution 2149 (2014) on April 10, 2014;
And whereas it appears to the Governor in Council to be necessary to make regulations for enabling the measures set out in those resolutions to be effectively applied;
Therefore, His Excellency the Governor General in Council, on the recommendation of the Minister of Foreign Affairs, pursuant to section 2 of the United Nations Act (see footnote a), makes the annexed Regulations Implementing the United Nations Resolutions on the Central African Republic.
REGULATIONS IMPLEMENTING THE UNITED NATIONS RESOLUTIONS ON THE CENTRAL AFRICAN REPUBLIC
INTERPRETATION
Definitions
1. The following definitions apply in these Regulations.
“armed mercenary personnel”
« mercenaire armé »
“armed mercenary personnel” means any person who
- (a) is specially recruited locally or abroad to use arms and related material in CAR;
- (b) uses arms and related material in CAR and is motivated essentially by the desire for private gain;
- (c) is not a member of the CAR armed forces; and
- (d) has not been sent to CAR by a state on official duty as a member of that state’s armed forces.
“arms and related material”
« armes et matériel connexe »
“arms and related material” includes any type of weapon, ammunition, military vehicle, military equipment or paramilitary equipment and their spare parts.
“BINUCA”
« BINUCA »
“BINUCA” means the United Nations Integrated Peacebuilding Office in the Central African Republic.
“Canadian”
« Canadien »
“Canadian” means an individual who is a citizen within the meaning of the Citizenship Act or a body corporate incorporated by or continued under the laws of Canada or a province.
“CAR”
« RCA »
“CAR” means the Central African Republic and includes
- (a) its political subdivisions;
- (b) its government and departments and the government and departments of its political subdivisions; and
- (c) its agencies or those of its political subdivisions.
“Committee of the Security Council”
« Comité du Conseil de sécurité »
“Committee of the Security Council” means the Committee of the Security Council of the United Nations established under paragraph 57 of Security Council Resolution 2127.
“designated person”
« personne designée »
“designated person” means a person that is designated by the Committee of the Security Council under paragraph 32 of Security Council Resolution 2134.
“entity”
« entité »
“entity” means a body corporate, trust, partnership, fund, unincorporated association or organization or foreign state.
“MICOPAX”
« MICOPAX »
“MICOPAX” means the Mission for the consolidation of peace in the Central African Republic, led by the Economic Community of Central African States.
“Minister”
« ministre »
“Minister” means the Minister of Foreign Affairs.
“MINUSCA”
« MINUSCA »
“MINUSCA” means the United Nations Multidimensional Integrated Stabilization Mission in the Central African Republic.
“MISCA”
« MISCA »
“MISCA” means the African-led International Support Mission in the Central African Republic.
“person”
« personne »
“person” means an individual or entity.
“property”
« bien »
“property” means property of every description and documents relating to or evidencing the title or right to property, or giving a right to recover or receive money or goods, and includes any funds, financial assets or economic resources.
“Security Council Resolution 2127”
« résolution 2127 du Conseil de sécurité »
“Security Council Resolution 2127” means Resolution 2127 (2013) of December 5, 2013, adopted by the Security Council of the United Nations .
“Security Council Resolution 2134”
« résolution 2134 du Conseil de sécurité »
“Security Council Resolution 2134” means Resolution 2134 (2014) of January 28, 2014, adopted by the Security Council of the United Nations .
“technical assistance”
« aide technique »
“technical assistance” means any form of assistance, such as providing instruction, training, consulting services or technical advice or transferring know-how or technical data.
“technical data”
« données techniques »
“technical data” includes blueprints, technical drawings, photographic imagery, computer software, models, formulas, engineering designs and specifications, technical and operating manuals and any technical information.
“working day”
« jour ouvrable »
“working day” means a day that is not Saturday or a holiday.
APPLICATION
Application
2. These Regulations are binding on Her Majesty in right of Canada or a province.
PROHIBITIONS
Arms and related material
3. It is prohibited for any person in Canada or any Canadian outside Canada to knowingly export, sell, supply or ship, directly or indirectly, arms and related material, wherever situated, to CAR or to any person in CAR.
Technical or financial assistance
4. It is prohibited for any person in Canada or any Canadian outside Canada to knowingly provide or transfer to CAR or to any person in CAR, directly or indirectly, technical or financial assistance or any other assistance that is related to
- (a) military activities, including the recruitment or provision of armed mercenary personnel; or
- (b) the provision, manufacture, maintenance or use of arms and related material.
Use of vessels or aircraft
5. It is prohibited for the owner or master of a Canadian vessel, as defined in section 2 of the Canada Shipping Act, 2001, or the operator of an aircraft registered in Canada to knowingly permit their vessel or aircraft, wherever situated, to be used by any person to carry out any of the activities referred to in sections 3 and 4.
Freezing of assets
6. It is prohibited for any person in Canada or any Canadian outside Canada to knowingly
- (a) deal, directly or indirectly, in any property in Canada as of January 28, 2014 or at any time after that date, that is owned or controlled by a designated person, by a person acting on behalf of, or at the direction of, a designated person or by a person owned or controlled by a designated person;
- (b) enter into or facilitate, directly or indirectly, any financial transaction related to a dealing referred to in paragraph (a);
- (c) provide any financial or other related service in respect of the property referred to in paragraph (a);
- (d) make any property or any financial or related service available to a designated person, to a person acting on behalf of, or at the direction of, a designated person or to a person owned or controlled by a designated person; or
- (e) make property or any financial or other related service available for the benefit of any person referred to in paragraph (d).
Assisting a prohibited act
7. It is prohibited for any person in Canada or any Canadian outside Canada to knowingly do anything that causes, assists or promotes or is intended to cause, assist or promote any act or thing prohibited by sections 3 to 6.
DUTY TO DETERMINE
Determination of property
8. Each of the following entities must determine on a continuing basis whether it is in possession or control of property owned or controlled by or on behalf of a designated person:
- (a) authorized foreign banks, as defined in section 2 of the Bank Act, in respect of their business in Canada or banks to which that Act applies;
- (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 engaged in the business of insuring risks that are regulated by a provincial Act;
- (f) companies to which the Trust and Loan Companies Act applies;
- (g) trust companies regulated by a provincial Act;
- (h) loan companies regulated by a provincial Act;
- (i) entities that engage in any activity described in paragraph 5(h) of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act if the activity 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.
DISCLOSURE
Disclosure
9. (1) Every person in Canada and every Canadian outside Canada must disclose without delay to the Commissioner of the Royal Canadian Mounted Police and 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 controlled by a designated person, by a person acting on behalf of, or at the direction of, a designated person or by a person owned or controlled by a designated person; and
- (b) information about a transaction or proposed transaction in respect of property referred to in paragraph (a).
Immunity
(2) No person contravenes subsection (1) by disclosing in good faith under that subsection.
EXCEPTIONS
Non-application
10. Sections 3 to 5 and 7 do not apply with respect to
- (a) supplies intended solely for the support of or use by MICOPAX, MISCA, BINUCA and its guard unit, MINUSCA, the African Union Regional Task Force, the French forces deployed in CAR and the European Union operation deployed in CAR;
- (b) supplies of non-lethal military equipment intended solely for humanitarian or protective use, and related technical assistance or training, as approved in advance by the Committee of the Security Council;
- (c) supplies of protective clothing, including flak jackets and military helmets, temporarily exported to CAR by United Nations personnel, representatives of the media and humanitarian and development workers and associated personnel, solely for their personal use;
- (d) supplies of small arms and other related equipment intended solely for use in international patrols providing security in the Sangha River Tri-national Protected Area to defend against poaching, smuggling of ivory and arms, and other activities contrary to the national laws of CAR or to CAR’s international legal obligations; or
- (e) supplies of arms and related material to CAR security forces, intended solely for support of or use in the security sector reform in CAR, as approved in advance by the Committee of the Security Council.
Mistaken Identity
11. (1) A person claiming not to be a designated person may apply to the Minister for a certificate stating that they are not the person who has been designated by the Committee of the Security Council or by the Security Council of the United Nations.
Certificate - time period
(2) If it is established under subsection (1) that the applicant is not a designated person, the Minister must issue a certificate to the applicant within 30 days after the day on which the application is received.
Certificate — Basic or extraordinary expenses
12. (1) A person whose property has been affected by the application of section 6 may apply to the Minister for a certificate to exempt the property from the application of that section if the property is necessary for basic or extraordinary expenses or if it is the subject of a judicial, administrative or arbitral lien or judgment, a hypothec, prior claim, mortgage, charge or security interest.
Certificate
(2) The Minister must issue a certificate, if the necessity of that property for basic or extraordinary expenses is established in accordance with Security Council Resolution 2134, or if the property is the subject of a judicial, administrative or arbitral lien or judgment, a hypothec, prior claim, mortgage, charge or security interest,
- (a) in the case of property necessary for basic expenses, if the Committee of the Security Council did not refuse the release of the property, within 15 working days after receiving the application;
- (b) in the case of property necessary for extraordinary expenses, if the Committee of the Security Council approved the release of the property, within 30 working days after receiving the application; and
- (c) in the case of property that is the subject of a judicial, administrative or arbitral lien or judgment, a hypothec, prior claim, mortgage, charge or security interest, if the lien, judgment, hypothec, prior claim, mortgage, charge or security interest was entered into before January 28, 2014, is not for the benefit of a designated person and has been brought to the attention of the Committee of the Security Council by the Minister, within 90 days after receiving the application.
Certificate — parties to a contract
13. (1) If a contract has been entered into by a party who subsequently became a designated person, any party to that contract may apply to the Minister for a certificate to exempt property from the application of section 6 in order for any party who is not a designated person to receive a payment or for the party who is a designated person to make a payment under that contract.
Issuance
(2) The Minister must issue a certificate within 90 days after receiving the application and at least 10 working days after having informed the Committee of the Security Council of the intent to issue the certificate if it is established that
- (a) the contract was entered into prior to any party becoming a designated person; and
- (b) the payment is 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 a person owned or controlled by a designated person.
Certificate - exclusion
14. No person contravenes these Regulations by doing an act or thing prohibited by any of sections 3 to 6 if, before the person does that act or thing, the Minister issues a certificate to the person stating that
- (a) the Security Council of the United Nations did not intend that such an act or thing be prohibited; or
- (b) the act or thing has been approved in advance by the Security Council of the United Nations or the Committee of the Security Council.
LEGAL PROCEEDINGS
Prohibition
15. No legal proceedings lie in Canada at the instance of the Government of CAR, of any person or entity in CAR, of a designated person or of any person claiming through or for the benefit of any such person or entity in connection with any contract or other transaction where its performance was prevented by any reason of any measure imposed by these Regulations.
APPLICATION BEFORE PUBLICATION
Application
16. For the purpose of paragraph 11(2)(a) of the Statutory Instruments Act, these Regulations apply before they are published in the Canada Gazette.
COMING INTO FORCE
Registration
17. 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 December 5, 2013, acting under Chapter VII of the Charter of the United Nations, the United Nations Security Council (Security Council) adopted Resolution 2127 (2013), imposing an arms embargo against the Central African Republic (CAR). On January 28, 2014, the Security Council also adopted Resolution 2134 (2014), which imposed a travel ban and asset freeze on individuals or entities designated by the Committee of the Security Council (the Committee) established under paragraph 57 of Security Council Resolution 2127 (2013). The Security Council also adopted Resolution 2149 (2014) on April 10, 2014, which authorized the deployment of a new stabilization mission to the CAR led by the United Nations, for whom the arms embargo would not apply.
As a member state of the United Nations, Canada is obligated under international law to implement decisions of the Security Council taken under Chapter VII of the Charter of the United Nations.
Background
On December 5, 2013, in order to confront the deteriorating security and humanitarian situation in the CAR and acting under Chapter VII of the Charter of the United Nations, the Security Council adopted Resolution 2127 (2013). The Resolution authorizes the deployment of the African-led International Support Mission to the CAR (MISCA), and authorizes the French troops already stationed in the CAR to take all necessary measures to support MISCA in discharging its mandate.
Resolution 2127 (2013) requires all member states to take immediate measures to prevent the direct or indirect supply, sale or transfer to the CAR of arms and related material. The Resolution also authorizes member states to seize, register and dispose of such prohibited items.
On January 28, 2014, due to the continued deterioration of the security situation and increasing violations of human rights in the CAR, the Security Council adopted Resolution 2134 (2014). Resolution 2134 renewed the arms embargo imposed by Resolution 2127 (2013), and imposed new sanctions measures for a period of one year from the date of the adoption of Resolution 2134 (2014). The resolution requires member states to take the necessary measures to prevent the entry or transit through their territory of individuals designated by the Committee. Member states are also required to freeze without delay all assets of individuals or entities designated by the Committee.
On April 10, 2014, the Security Council also adopted Resolution 2149 (2014), establishing the United Nations Multidimensional Integrated Stabilization Mission in the Central African Republic (MINUSCA), and authorizing the transfer of authority from several existing deployments to MINUSCA.
As a member of the United Nations and pursuant to article 25 of the Charter of the United Nations, Canada is legally obligated to implement binding decisions of the Security Council. Resolutions 2127 (2013), 2134 (2014), and 2149 (2014) were adopted by the Security Council pursuant to Article 41 of Chapter VII of the Charter of the United Nations and are binding on all members. In Canada, travel restrictions on designated persons are imposed through the Immigration and Refugee Protection Act and its Regulations. The United Nations Act constitutes the appropriate legislative authority to implement the arms embargo and asset freeze in Canadian law.
Objectives
The Regulations Implementing the United Nations Resolutions on the Central African Republic (CAR) [the Regulations] are necessary for Canada to fulfill its international legal obligation to implement the applicable decisions of the Security Council set out in resolutions 2127 (2013), 2134 (2014), and 2149 (2014).
Description
The Regulations prohibit persons in Canada and Canadians outside of Canada from knowingly exporting, selling, supplying or shipping arms and related material, directly or indirectly, and wherever situated, to the CAR or to any person in the CAR. Persons in Canada and Canadians outside of Canada are also prohibited from knowingly providing or transferring, to the CAR or to any person in the CAR, directly or indirectly, technical assistance, financial assistance or other assistance related to: (a) military activities, including the recruitment or provision of armed mercenary personnel; or (b) the provision, manufacture, maintenance or use of arms and related material.
In addition, the Regulations prohibit the owner or master of a Canadian vessel or the operator of an aircraft registered in Canada from knowingly permitting their vessel or aircraft to be used by any person to export, sell, supply or provide any of the items or forms of assistance referred to above, wherever situated or originating.
The Regulations also prohibit any person in Canada and any Canadian outside Canada from knowingly: (a) dealing directly or indirectly, in any property in Canada as of January 28, 2014, or at any time after that date, that is owned or controlled by a designated person, by a person acting on behalf of, or at the direction of, a designated person or by a person owned or controlled by a designated person; (b) entering into or facilitating, directly or indirectly, any financial transaction related to a dealing referred to in paragraph (a); (c) providing any financial or other related service in respect of the property referred to in paragraph (a); (d) making any property or any financial or related service available to a designated person, to a person acting on behalf of, or at the direction of, a designated person or to a person owned or controlled by a designated person; or (e) making property or any financial or other related service available for the benefit of any person referred to in paragraph (d).
The Regulations include a number of exceptions to the above-noted prohibitions, including supplies intended solely for the use of international forces enumerated in Resolution 2127 (2013) and Resolution 2149 (2014) which have been deployed to the CAR; supplies of non-lethal military equipment intended solely for humanitarian or protective use, and related technical assistance or training, as approved in advance by the Committee of the Security Council established under Resolution 2127 (2013) [the Committee]; protective clothing temporarily exported to the CAR by United Nations personnel, representatives of the media and humanitarian and development workers and associated personnel; supplies of small arms and other related equipment intended solely for use in international patrols providing security in the Sangha River Tri-national Protected Area for specified purposes; supplies of arms and related material to the CAR security forces that are intended solely for support of or use in security sector reform in the CAR, as approved in advance by the Committee; and any act or thing that has been approved in advance by the Security Council or the Committee. The Regulations also allow a person whose property is affected by the prohibitions to apply for a certificate from the Minister of Foreign Affairs to exempt the property from the prohibitions if the property is necessary for basic or extraordinary expenses, or if the property is the subject of a judicial, administrative or arbitral lien or judgment, a hypothec, prior claim, mortgage, charge or security interest.
Resolution 2127 (2013) is available at www.un.org/en/ga/search/view_doc.asp?symbol=S/RES/2127(2013).
Resolution 2134 (2014) is available at www.un.org/fr/documents/view_doc.asp?symbol=S/RES/2134(2014)&TYPE=&referer=http://www.un.org/fr/sc/documents/resolutions/2014.shtml&Lang=E.
Resolution 2149 (2014) is available at www.un.org/en/ga/search/view_doc.asp?symbol=S/RES/2149(2014).
“One-for-One” Rule
The “One-for-One” Rule applies to this proposal, as there are minimal administrative costs to business, because of the reporting requirement. However, the administrative burden associated with these Regulations is carved out from the “One-for-One” Rule, as they implement non-discretionary international obligations.
Small business lens
The small business lens does not apply to this proposal, as there are no costs (or insignificant costs) on small business and small businesses would not be disproportionately affected.
Consultation
Foreign Affairs, Trade and Development Canada drafted the Regulations in consultation with the Department of Justice.
Rationale
The Regulations will enable Canada to implement the sanctions and the corresponding exceptions that have been imposed by the Security Council against the CAR.
Implementation, enforcement and service standards
Canada’s sanctions regulations are enforced by the Royal Canadian Mounted Police and the Canada Border Services Agency.
Contacts
Renata E. Wielgosz
Director
West and Central Africa Relations Division
Foreign Affairs, Trade and Development Canada
125 Sussex Drive
Ottawa, Ontario
K1A 0G2
Telephone: 613-944-6578
Fax: 613-944-6583
Email: renata.wielgosz@international.gc.ca
Keith Morrill
Director
United Nations, Human Rights and Economic Law Division
Foreign Affairs, Trade and Development Canada
125 Sussex Drive
Ottawa, Ontario
K1A 0G2
Telephone: 613-992-6296
Fax: 613-992-2467
Email: keith.morrill@international.gc.ca
- Footnote a
R.S., c. U-2