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Vol. 140, No. 14 — July 12, 2006
Registration
UNITED NATIONS ACT Regulations Amending the United Nations Afghanistan Regulations P.C. 2006-603 June 23, 2006 Whereas the Security Council of the United Nations, acting under Article 41 of the Charter of the United Nations, adopted Resolution 1267 (1999) on October 15, 1999, Resolution 1333 (2000) on December 19, 2000, Resolution 1373 (2001) on September 28, 2001, Resolution 1390 (2002) on January 16, 2002, Resolution 1452 (2002) on December 20, 2002, Resolution 1526 (2004) on January 30, 2004 and Resolution 1617 (2005) on July 29, 2005; 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, Her Excellency the Governor General in Council, on the recommendation of the Minister of Foreign Affairs, pursuant to section 2 of the United Nations Act, hereby makes the annexed Regulations Amending the United Nations Afghanistan Regulations. REGULATIONS AMENDING THE UNITED NATIONS AFGHANISTAN REGULATIONS AMENDMENTS 1. The title of the United Nations Afghanistan Regulations (see footnote 1) is replaced by the following: UNITED NATIONS AL-QAIDA AND TALIBAN REGULATIONS 2. (1) The definitions "Security Council Resolutions", "Taliban" and "Usama bin Laden or his associates" in section 1 of the Regulations are replaced by the following: "Security Council Resolutions" means Resolution 1267 (1999) of October 15, 1999, Resolution 1333 (2000) of December 19, 2000, Resolution 1373 (2001) of September 28, 2001, Resolution 1390 (2002) of January 16, 2002, Resolution 1452 (2002) of December 20, 2002, Resolution 1526 (2004) of January 30, 2004, and Resolution 1617 (2005) of July 29, 2005, adopted by the Security Council of the United Nations. (résolutions du conseil de sécurité) "Taliban" means the political and military group formerly headquartered in Kandahar, Afghanistan, that exercised de facto control over parts of the territory of Afghanistan, referred to as the "Islamic Emirate of Afghanistan", known in Pashtun as "Afghanistan Islami Emarat" or in Dari as "Emarat Islami-e-Afghanistan". (Taliban) "Usama bin Laden or his associates" means Usama bin Laden, members of the Al-Qaida organization, or any person associated with them according to the Committee of the Security Council, with the exception of the entities referred to in the Regulations Establishing a List of Entities. (Oussama ben Laden ou ses associés) (2) The definition "entité" in section 1 of the French version of the Regulations is replaced by the following: « entité » Personne morale, fiducie, société de personnes, fonds, organisation ou association non dotée de la personnalité morale ou État étranger. (entity) (3) Section 1 of the Regulations is amended by adding the following in alphabetical order: "Canadian" means an individual who is a citizen within the meaning of the Citizenship Act, or a body corporate incorporated or continued by or under the laws of Canada or a province. (Canadien) "Guidelines of the Committee of the Security Council" means the document entitled Guidelines of the Committee for the Conduct of its Work that was adopted on November 7, 2002 by the Committee of the Security Council, as amended from time to time. (Directives du Comité du Conseil de sécurité) "judge" means the Chief Justice of the Federal Court or a judge of that Court designated by the Chief Justice. (juge) "list of the Committee of the Security Council" means the list referred to in paragraph 2 of Security Council Resolution 1390 (2002) of January 16, 2002. (liste du Comité du Conseil de sécurité) "Minister" means the Minister of Foreign Affairs. (ministre) "person associated with the Taliban" means any person associated with the Taliban according to the Committee of the Security Council, with the exception of the entities referred to in the Regulations Establishing a List of Entities. (personne liée au Taliban) 3. The Regulations are amended by adding the following before section 4: 3. No person in Canada and no Canadian outside Canada shall knowingly provide or collect by any means, directly or indirectly, funds with the intention that the funds be used, or in the knowledge that the funds are to be used, by the Taliban, a person associated with the Taliban, Usama bin Laden or his associates. 4. Paragraphs 4(a) to (c) of the Regulations are replaced by the following: (a) deal directly or indirectly in any property of the Taliban or a person associated with the Taliban including funds derived or generated from property owned or controlled, directly or indirectly, by the Taliban or a person associated with the Taliban or by persons acting on behalf of the Taliban or a person associated with the Taliban or at their direction; (b) enter into or facilitate, directly or indirectly, any financial transaction related to a dealing in property referred to in paragraph (a); (c) provide any financial services or any other services in respect of any property referred to in paragraph (a); or (d) make any property or any financial or other related service available, directly or indirectly, for the benefit of the Taliban or a person associated with the Taliban. 5. (1) Paragraph 4.1(a) of the Regulations is replaced by the following: (a) deal directly or indirectly in any property of Usama bin Laden or his associates including funds derived or generated from property owned or controlled, directly or indirectly, by Usama bin Laden or his associates or by persons acting on their behalf or at their direction; (2) Paragraphs 4.1(c) and (d) of the Regulations are replaced by the following: (c) provide any financial services or any other services in respect of any property referred to in paragraph (a); or (d) make any property or any financial or other related service available, directly or indirectly, for the benefit of Usama bin Laden or his associates. 6. The heading before section 6 of the Regulations is replaced by the following: DUTY TO DETERMINE 5.1 (1) Every entity referred to in paragraphs 83.11(1)(a) to (g) of the Criminal Code must determine on a continuing basis whether it is in possession or control of property owned or controlled by or on behalf of the Taliban, a person associated with the Taliban, Usama bin Laden or his associates. (2) Every entity referred to in subsection (1) must report, within the applicable period determined under subsection 83.11(2) of the Criminal Code, to the principal agency or body that supervises or regulates it under federal or provincial law either (a) that it is not in possession or control of any property referred to in subsection (1); or (b) that it is in possession or control of such property, in which case it must also report the number of persons, contracts or accounts involved and the total value of the property. (3) Subsection (2) does not apply in respect of any entity or class of entities that is excluded by regulations made under subsection 83.11(4) of the Criminal Code from the requirement to make a report under subsection 83.11(2) of that Act. (4) No person contravenes subsection (2) by making a report in good faith under that subsection. DISCLOSURE 5.2 (1) Every person in Canada and every Canadian outside Canada shall 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 or on behalf of the Taliban, a person associated with the Taliban, Usama bin Laden or his associates; and (b) information about a transaction or proposed transaction in respect of property referred to in paragraph (a). (2) No person contravenes subsection (1) for disclosure made in good faith under that subsection. DELISTING 5.3 (1) Any Canadian or person in Canada claiming not to be Usama bin Laden or his associates or a person associated with the Taliban may petition the Minister in writing to be delisted from the list of the Committee of the Security Council in accordance with the Guidelines of the Committee of the Security Council. (2) The Minister shall notify the petitioner, within 60 days after receiving the petition, of his or her decision on whether to consider the petition. (3) A person may not submit another petition under subsection (1), unless there has been a material change in circumstances since the time when the last petition was submitted. JUDICIAL REVIEW 5.4 (1) Within 60 days after the date of receipt of the notice of the decision referred to in subsection 5.3(2), the applicant may apply to a judge for judicial review of the decision. (2) When an application is made, the judge shall, without delay (a) examine, in private, any security or criminal intelligence reports relating to the applicant's designation as Usama bin Laden or his associates or as a person associated with the Taliban and hear any other evidence or information that may be presented by or on behalf of the Minister and may, at the request of the Minister, hear all or part of that evidence or information in the absence of the applicant and any counsel representing the applicant if the judge is of the opinion that the disclosure of the information would injure national security or endanger the safety of any person; (b) provide the applicant with a statement summarizing the information available to the judge so as to enable the applicant to be reasonably informed of the reasons for the decision, without disclosing any information the disclosure of which would, in the judge's opinion, injure national security or endanger the safety of any person; (c) provide the applicant with a reasonable opportunity to be heard; and (d) determine whether the decision is reasonable on the basis of the information available to the judge and, if found not to be reasonable, order that the Minister seek a review of the case. (3) The judge may receive into evidence anything that, in the opinion of the judge, is reliable and appropriate, even if it would not otherwise be admissible under Canadian law, and may base his or her decision on that evidence. 5.5 (1) For the purposes of subsection 5.4(2), in private and in the absence of the applicant or any counsel representing it, (a) the Minister may make an application to the judge for the admission of information obtained in confidence from a government, an institution or an agency of a foreign state, from an international organization of states or from an institution or an agency of an international organization of states; and (b) the judge shall examine the information and provide counsel representing the Minister with a reasonable opportunity to be heard as to whether the information is relevant but should not be disclosed to the applicant or any counsel representing it because the disclosure would injure national security or endanger the safety of any person. (2) The information shall be returned to counsel representing the Minister and shall not be considered by the judge in making the determination under paragraph 5.4(2)(d), if (a) the judge determines that the information is not relevant; (b) the judge determines that the information is relevant but should be summarized in the statement to be provided under paragraph 5.4(2)(b); or (c) the Minister withdraws the application. (3) If the judge determines that the information is relevant but that its disclosure would injure national security or endanger the safety of persons, the information shall not be disclosed in the statement mentioned in paragraph 5.4(2)(b), but the judge may base the determination under paragraph 5.4(2)(d) on it. EXCEPTIONS 5.6 (1) A person claiming not to be a person designated either as Usama bin Laden or one of his associates or as a person associated with the Taliban by the Committee of the Security Council may apply to the Minister for a certificate stating that it is not the person whose name appears on the list of the Committee of the Security Council. (2) The Minister shall, within 15 days after receiving the application, issue a certificate to the applicant if it is established that the applicant is not Usama bin Laden or one of his associates or is not a person associated with the Taliban. 5.7 (1) A person whose property has been affected by section 4 or 4.1 may apply to the Minister for a certificate to exempt property from the application of either of those sections if the property is necessary for basic or extraordinary expenses. (2) The Minister shall issue a certificate if the necessity of that property is established in conformity with Security Council Resolution 1452 (2002) of December 20, 2002, (a) in the case of property necessary for basic expenses, within 15 days after receiving the application, if the Committee of the Security Council did not refuse the release of the property; and (b) in the case of property necessary for extraordinary expenses, within 30 days after receiving the application, if the release of the property was approved by the Committee of the Security Council. 7. The portion of section 6 of the Regulations before paragraph (a) is replaced by the following: 6. No person contravenes these Regulations by doing an act or thing prohibited by any of sections 4 to 5 if, before that person does that act or thing, the Minister issues a certificate to the person stating that 8. The Regulations are amended by replacing by the expression "Taliban" with the expression "Taliban or a person associated with the Taliban" in sections 4.2 to 4.4. COMING INTO FORCE 9. 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.) Description The Regulations Amending the United Nations Afghanistan Regulations (the Regulations) were made to rationalize the different regulatory measures in the fight against terrorism and accompany amendments made to the United Nations Suppression of Terrorism Regulations. In particular, these Regulations make a number of amendments to some sections of the United Nations Afghanistan Regulations to ensure that they correspond more closely to and complement the amended United Nations Suppression of Terrorism Regulations. The United Nations Afghanistan Regulations were made to implement United Nations Security Council Resolution 1267 (1999) – and allowed for implementation of resolutions 1333 (2000), 1373 (2001), 1390 (2002), 1452 (2002), 1526 (2004) and 1617 (2005) – calling on UN member states to adopt specific measures against the Taliban and Osama bin Laden or his associates. The United Nations Security Council established a committee pursuant to Resolution 1267 (1999) to maintain a list of individuals and entities associated with the Taliban or Osama bin Laden (the "UN List") which are automatically covered by the United Nations Afghanistan Regulations. The UN List is available at http://www.un.org/Docs/sc/ committees/1267/1267ListEng.htm The UN List was also automatically incorporated into the United Nations Suppression of Terrorism Regulations. In an attempt to avoid confusion from "double listing," amendments were also made to the United Nations Suppression of Terrorism Regulations so that individuals and entities covered by the United Nations Afghanistan Regulations will no longer be listed under the United Nations Suppression of Terrorism Regulations. A consolidated list of those covered by Canadian law (the Criminal Code list, the United Nations Suppression of Terrorism Regulations and United Nations Afghanistan Regulations) is available in various formats at: http://www.osfi-bsif.gc.ca/osfi/ index_e.aspx?ArticleID=524 Alternatives Canada is obliged under international law to implement the decisions of the Security Council made under Chapter VII of the Charter of the United Nations such as the measures mandated by resolutions 1267 (1999), 1333 (2000), 1373 (2001), 1390 (2002), 1452 (2002), 1526 (2004) and 1617 (2005). The United Nations Act constitutes the appropriate legislative authority to implement these measures. Benefits and Costs Making the United Nations Afghanistan Regulations more similar to the amended United Nations Suppression of Terrorism Regulations will ensure a better harmonization of the different legislative measures pertaining to the suppression of terrorism and provide for greater clarity with regard to the applicable legal basis for listing entities and individuals on the three lists currently maintained of entities and individuals associated with terrorism who are subject to economic restrictions in Canadian law. The clarifications regarding the United Nations Suppression of Terrorism Regulations that were requested by the Standing Joint Committee for the Scrutiny of the Regulations that could be applied to the United Nations Afghanistan Regulations were included in this amendment. Consultation The Regulations were pre-published in the Canada Gazette, Part I, on May 20, 2006 and no comments were received. The Privy Council Office, the Department of Justice, Public Safety and Emergency Preparedness Canada, the Canada Border Services Agency, the Department of Finance, the Office of the Superintendent of Financial Institutions (OFSI), the Royal Canadian Mounted Police and the Canadian Security Intelligence Service were consulted and are supportive of these Regulations. Compliance and Enforcement Compliance is ensured by the Royal Canadian Mounted Police. Every person who contravenes provisions of the Regulations is liable, upon conviction, to the punishments set out in section 3 of the United Nations Act. Contact
Marc-Antoine Dumas
SOR/99-444; SOR/2004-160 |
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