Regulations Amending the Regulations Establishing a List of Entities: SOR/2020-285
Canada Gazette, Part II, Volume 155, Extra Number 1
SOR/2020-285 December 21, 2020
The Minister of Public Safety and Emergency Preparedness, pursuant to paragraph 83.05(1.2)(b) footnote a of the Criminal Code footnote b, makes the annexed Regulations Amending the Regulations Establishing a List of Entities.
Ottawa, November 25, 2020
William Sterling Blair
Minister of Public Safety and Emergency Preparedness
Regulations Amending the Regulations Establishing a List of Entities
1 The reference to “Hay’at Tahrir al-Sham (also known among other names as Jabhat al-Nusra (JN), Jabhat Fateh al-Sham, Jabhat Fatah al-Sham, Fath al-Sham Front, al-Jabha, Fath al-Sham, Tanzim al-Qaeda fi Bilad al-Sham, Al-Qaeda in the Levant, Conquest for al-Sham Front, Conquest of the Levant Front, Fatah al-Sham Front, Fateh al-Sham Front, Front for the Conquest of Syria, Front for the Conquest of Syria/The Levant, Jabhat Fath al-Sham, Jabhat Fath al Sham, Jabhat Fathah al-Sham, Hayat Tahrir al-Sham, Tahrir al-Sham Assembly, Liberation of Syria Assembly, Liberation of the Levant Organisation, Liberation of the Levant Committee, Liberation of al-Sham Commission, Assembly for the Liberation of the Levant, Hay’et Tahrir al-Sham, Tahrir al-Sham, Liwa al-Haqq, the Al-Haqq Brigade, Liwa al-Haq, the Brigade of the Right, the Truth Brigade, the Haqq Brigade of Homs, Lewa’ al-Haq, the al-Haq Battalion, Jabhat Ansar al-Din, Ansar al-Din Front, Supporters/Partisans of the Religion Front, Jaish al-Sunnah, Jaysh al-Sunnah, Jaish al-Sunna, Jaysh al-Sunna, Jabhet al-Nusra, The Victory Front, Al-Nusrah Front for the People of the Levant, Jabhat Al-Nusra li-Ahl min Mujahedi al-Sham fi Sahat al-Jihad (The Support Front for the People of the Levant by the Levantine Mujahedin on the Battlefields of Jihad), the Front for the Defense of the Syrian People and the Front for the Support of the Syrian People)” in section 1 of the Regulations Establishing a List of Entities footnote 1 is amended by deleting the name “the Haqq Brigade of Homs”.
Coming into Force
2 These Regulations come into force on the day on which they are made.
REGULATORY IMPACT ANALYSIS STATEMENT
(This statement is not part of the Regulations.)
Amendments to the Regulations Establishing a List of Entities (the Regulations) support the Government of Canada’s efforts to protect Canadians against the threat of terrorism. Updating the names and aliases or listed entities ensures that the list remains current and its consequences are effectively applied.
On December 18, 2001, the Anti-terrorism Act, received royal assent, amending the Criminal Code to allow the Government of Canada to create a list of terrorist entities. Under the Criminal Code, the Governor in Council may, on the recommendation of the Minister of Public Safety and Emergency Preparedness (the Minister), establish a list of entities if the Governor in Council is satisfied that there are reasonable grounds to believe that the entity has knowingly carried out, attempted to carry out, participated in or facilitated a terrorist activity; or has knowingly acted on behalf of, at the direction of or in association with an entity that has knowingly carried out, attempted to carry out, participated in or facilitated a terrorist activity.
An entity is defined in the Criminal Code as a person, group, trust, partnership or fund or an unincorporated association or organization. A listed entity is included in the definition of terrorist group in the Criminal Code so offences applicable to terrorist groups apply to these entities. However, unlike terrorist groups that are not listed, a prosecution related to a listed entity does not require the Crown to demonstrate that the entity has, as one of its purposes or activities, facilitated or carried out a terrorist activity.
The Criminal Code makes it an offence, among others, to knowingly
- participate in or contribute to, directly or indirectly, any activity of a terrorist group for the purpose of enhancing the ability of any terrorist group to facilitate or carry out a terrorist activity; or
- instruct, directly or indirectly, any person to carry out any activity for the benefit of, at the direction of or in association with a terrorist group for the purpose of enhancing the ability of any terrorist group to facilitate or carry out a terrorist activity.
The Criminal Code provides for a thorough and fair mechanism for reviewing the listing of an entity. A listed entity may apply to the Minister requesting that it no longer be a listed entity. In such cases, the Minister would determine whether there are reasonable grounds to recommend to the Governor in Council that the applicant no longer be a listed entity. The entity may have the decision reviewed by the Federal Court.
Furthermore, the National Security Act, 2017 amended the Criminal Code terrorist listings provisions to allow the Minister to change the name of a listed entity, or add to the list any other name by which a listed entity may also be or have been known, if the Minister has reasonable grounds to believe that the listed entity is using a name that is not on the list; and delete from the list any other name by which a listed entity may also have been known, if the entity is no longer using that name.
The listing of an entity under the Regulations means that the entity’s property can be the subject of seizure/restraint and/or forfeiture. In addition, institutions, such as banks and brokerages, are subject to reporting requirements with respect to an entity’s property and must not allow those entities to access the property nor may these institutions deal with or otherwise dispose of the property.
The Minister’s ability to amend the primary names and aliases of listed entities ensures the list can be more swiftly modified to reflect a listed entity’s evolution over time. This ensures the consequences of a listing continue to be applied effectively.
The Minister is making the Regulations Amending the Regulations Establishing a List of Entities removing “the Haqq Brigade of Homs” as an alias of the listed entity “Hay’at Tahrir al-Sham.”
No public consultations were undertaken in association with this amendment to the Regulations.
An exemption from prepublication was sought to ensure the entity did not have an opportunity to disperse its finances or modify its configuration to evade the consequences of the listing.
Modern treaty obligations and Indigenous engagement and consultation
As required by the 2015 Cabinet Directive on the Federal Approach to Modern Treaty Implementation, an assessment of modern treaty implications was conducted for the amendment to the Regulations. It was determined that this initiative has no modern treaty implications for Canada.
The Regulations Establishing a List of Entities establish a list of terrorist entities. The terrorist listings program is intentionally built around the utilization of the Regulations, which facilitates the prosecution of perpetrators and supporters of terrorism and plays a key role in countering terrorist financing.
Benefits and costs
Amendments to the list create a minor increase in the probability that a financial institution or brokerage may incur reporting costs and take actions to ensure proper treatment of listed entities’ properties. These costs are considered to be minimal.
Amendments made to the list are necessary to ensure Canada continues to maintain a strong counter-terrorism posture and serves to assure our allies that Canada actively responds to terrorist developments abroad. In addition, the listing of an entity is a means to inform Canadians of the Government’s position with regard to a particular entity.
Small business lens
The small business lens does not apply as there are no associated impacts on small businesses.
The one-for-one rule applies to this amendment to the Regulations, as it is expected to result in minimal increases in administrative costs to business (because of the reporting requirements). However, the amendment to the Regulations addresses a unique circumstance, and serve to protect the security of Canadians, and is therefore exempted from the requirement to offset the administrative burden increases under the one-for-one rule.
Regulatory cooperation and alignment
The listing of entities under the Criminal Code enhances Canada’s national security, strengthens the Government’s ability to take action against terrorists and gives effect to international obligations including the implementation of the United Nations International Convention for the Suppression of the Financing of Terrorism and United Nations Security Council resolution 1373.
Gender-based analysis plus
No gender-based analysis plus (GBA+) impacts have been identified for this proposal.
Implementation, compliance and enforcement, and service standards
Compliance is ensured by criminal law sanctions. For instance, everyone who knowingly participates in or contributes to any activity of a terrorist group for the purpose of enhancing the ability of any terrorist group to facilitate or carry out a terrorist activity is guilty of an indictable offence and liable to imprisonment. The definition of terrorist group includes a listed entity.
Listing a terrorist entity sets in motion requirements for reporting suspicious terrorist financing transactions and requires anyone to disclose to the Royal Canadian Mounted Police and the Canadian Security Intelligence Service the existence of any property in his or her possession or control that he or she knows is owned or controlled by or on behalf of a terrorist group.
In addition, bodies that are subject to the Proceeds of Crime (Money Laundering) and Terrorist Financing Act must also report the information to the Financial Transactions and Reports Analysis Centre of Canada. The costs to banks, financial institutions, and individuals in meeting these requirements are not significant due in large part to the existence of electronic banking systems; however, there are significant benefits associated with the Regulations for the security of Canada and Canadians.
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