Special Economic Measures (Hamas Terrorist Attacks) Regulations: SOR/2024-17
Canada Gazette, Part II, Volume 158, Number 4
Registration
SOR/2024-17 February 2, 2024
SPECIAL ECONOMIC MEASURES ACT
P.C. 2024-101 February 2, 2024
Whereas the Governor in Council is of the opinion that the attacks by Hamas against the State of Israel that started on October 7, 2023 constitute a grave breach of international peace and security that has resulted 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 (Hamas Terrorist Attacks) Regulations under paragraph 4(1)(a)footnote a and subsections 4(1.1)footnote b, (2)footnote c and (3) of the Special Economic Measures Act footnote d.
Special Economic Measures (Hamas Terrorist Attacks) Regulations
Definition
Definition of Minister
1 In these Regulations, Minister means the Minister of Foreign Affairs.
List
Listed person
2 A person whose name is listed in the schedule is a person 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 who has engaged in activities that directly or indirectly facilitate, support, provide funding for or contribute to an attack or attempted attack by Hamas against the State of Israel or persons in the State of Israel;
- (b) a person who has participated in or facilitated gross and systematic human rights violations in relation to an attack or attempted attack referred to in paragraph (a);
- (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); or
- (e) an entity owned — or held or controlled, directly or indirectly — by a person referred to in any of paragraphs (a) to (d).
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;
- (e) transfer or provide any property other than goods to a listed person or to a person outside Canada who is not Canadian for the benefit of a listed person; or
- (f) 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 person other than a 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 for a listed person to obtain legal services in Canada regarding the application to them of these Regulations or any order made under the Special Economic Measures Act; and
- (g) 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.
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 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 Yahya Sinwar (born on October 29, 1962)
- 2 Muhammad Deif (born in 1965)
- 3 Marwan Issa (born in 1965)
- 4 Maher Rebhi Namer Obeid (born on March 10, 1958)
- 5 Jihad Muhamad Shaker Yaghmour (born on July 15, 1967)
- 6 Nizar Mohammad Awadallah (born on December 21, 1975)
- 7 Mahmoud al-Zahar (born on May 6, 1945)
- 8 Hassan al-Wardian (born on December 28, 1954)
- 9 Ayman Nofal (born on May 13, 1975)
- 10 Akram al-Jouri (born in 1958)
- 11 Aiman Ahmad al-Duwaik (born on September 24, 1962)
REGULATORY IMPACT ANALYSIS STATEMENT
(This statement is not part of the Regulations or the Order.)
Issues
The October 7, 2023, terrorist attacks by Hamas in Israel, and the subsequent actions undertaken by Hamas and its affiliates against Israel and persons residing in Israel, constitute a grave breach of international peace and security resulting in a serious international crisis. Additionally, the heinous acts of violence by Hamas directly caused suffering and loss of human life and were a gross violation of human rights. Hamas’ leadership has stated that they intend to carry out further attacks against Israel and continue to call for the destruction of Israel.
Background
On October 7, 2023, the Hamas terrorist organization launched a brutal attack from Gaza on several Israeli communities, sending armed militants into Israel to kill, torture, rape and capture persons residing in Israel. The attack featured sexual violence, abduction, maiming, and murder. In the attack, Hamas killed over 1 200 individuals and took more than 200 hostages captive back into Gaza. More than 100 days after the attacks, 132 hostages remain in captivity.
The Government of Canada has put in place measures in response to the attacks and the ensuing conflict. There is strong international consensus amongst Canada’s allies and partners on the importance of further reinforcing measures to isolate, delegitimize, and counter Hamas’ ability to operate, raise funds and carry out terrorist acts.
In 2002, Canada listed Hamas as a terrorist entity under the Criminal Code. A Criminal Code listing carries significant consequences that enable the application of appropriate measures to deter terrorist activity in Canada or prevent support for terrorist activity from Canada. It is an offence to knowingly deal in the property of a listed entity and possession of such property must be reported. It is also an offence to collect property, or to provide financial or other related services, knowing it will benefit a listed entity.
The Special Economic Measures Act (SEMA) allows Canada to impose sanctions measures in circumstances where a grave breach of international peace and security has occurred, or gross and systematic human rights violations have been committed in relation to a foreign state.
Objective
These sanctions intend to send a clear signal of
- (i) Canada’s condemnation of the grave breach of international peace and security and human rights violations in view of the Hamas-led attacks commencing on October 7, 2023, against Israel and persons residing in Israel;
- (ii) Canada’s strong commitment to counter Hamas and its affiliates, enablers and facilitators; and
- (iii) Canada’s continued commitment to counter terrorism and to work with its allies in their efforts to address the threat posed by Hamas.
Description
The Regulations designate 11 individuals who are subject to a dealings ban. As part of their roles in the military and political leadership of Hamas, these individuals have engaged in activities that directly or indirectly enable or contribute to the attacks by Hamas against the State of Israel and persons residing in the State of Israel, commencing on October 7, 2023.
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, transferring property to, or otherwise making goods available to listed persons. These measures will also render listed individuals inadmissible to Canada under the Immigration and Refugee Protection Act.
The Regulations include exceptions for 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. For example, this exception would include humanitarian activities and those activities that serve the purpose of safeguarding human life, disaster relief, or providing food, medicine or medical supplies or equipment. Other exceptions include those related to payments under pre-existing contracts or loan agreement to any person in Canada, or any Canadian outside Canada.
The Regulations also create a duty for Canadians (including businesses, such as banks and cooperative credit associations) to determine and disclose whether they are in possession or control of property belonging to a listed person.
Under the Regulations, listed persons may apply to the Minister of Foreign Affairs to have their name removed from the schedule of designated persons. The Minister must determine whether there are reasonable grounds to make a recommendation to the Governor in Council for removal. The Regulations are accompanied by the Special Economic Measures (Hamas Terrorist Attacks) Permit Authorization Order (the Order). The Order authorizes 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.
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, public consultation would not have been appropriate given the urgency to impose these measures and the risk of sanctions evasion activities.
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
The Regulations are targeting specific persons. Therefore, it is expected to have less impact on Canadian businesses than traditional broad-based sanctions as well as limited impact beyond the listed persons. Based on initial assessment of available open-source information, it is believed that the individuals listed have limited linkages with Canada and, therefore, do not have significant business dealings that are relevant to the Canadian economy. It is therefore anticipated that there will be no significant impacts on Canadian businesses as a result of these Regulations.
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.
As a result of the humanitarian exception incorporated into the Regulations, activities such as the provision of humanitarian aid to civilians would not be prohibited and, as such, organizations seeking to conduct these activities will not incur any additional costs because of the Regulations.
Small business lens
With respect to the individuals being listed under the Regulations, analysis under the small business lens concluded that the Regulations will not impact Canadian small businesses. The Regulations do not impose any new compliance or administrative burden on small businesses in Canada. The Regulations prohibit Canadian businesses from dealing with, providing services to, or otherwise making goods available to listed persons, but do not create obligations related to them. While Canadian businesses may seek permits under the Regulations, they are granted on an exceptional basis, and Global Affairs Canada does not anticipate any applications resulting from listing these individuals.
One-for-one rule
The one-for-one rule does not apply, as there is no incremental change in administrative burden on businesses. The permitting process for businesses meets the definition of “administrative burden” in the Red Tape Reduction Act; however, while permits may be granted under the Regulations on an exceptional basis, given that the listed individuals have limited business ties to the Canadian economy, Global Affairs Canada does not anticipate any permit applications with respect to the Regulations.
Regulatory cooperation and alignment
The Regulations are not related to a work plan or commitment under a formal regulatory cooperation forum.
Canada’s sanctions against Hamas and its affiliates come in support of concerted efforts with like-minded governments to dismantle and restrict Hamas’ financial architecture in order to hinder further efforts by Hamas to continue on with its attacks. Since October 2023, Canada’s allies, including Australia, Japan, the European Union, the United Kingdom and the United States, have enacted measures that target a range of actors related to Hamas, including terrorist groups and key leaders, as well as financial facilitators and enablers. These measures include terrorist listings, asset freezes, reporting requirements, dealings bans, travel bans, arms embargoes, and financial measures.
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 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 in foreign states, sanctions under the SEMA can nevertheless have an unintended impact on certain vulnerable groups and individuals. Rather than affecting the whole region, these targeted sanctions impact individuals believed to be engaged in activities that contribute to a grave breach of international peace and security, or who have contributed to the violation of human rights. Therefore, these sanctions are unlikely to have a significant impact on vulnerable groups, as compared to traditional broad-based economic sanctions directed toward a foreign state, and should limit the collateral effects to those dependent on the targeted individuals.
Implementation, compliance and enforcement, and service standards
The Regulations come into force on the day they are registered.
Consequential to being listed in the Regulations, and pursuant to the application of paragraph 35.1(b) of the Immigration and Refugee Protection Act, the listed individuals would be inadmissible to Canada.
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.
Under the SEMA, both Royal Canadian Mounted Police and Canada Border Services Agency officers have the power to enforce sanctions violations through their authorities as defined under the Customs Act, the Excise Act or the Excise Act, 2001, and sections 487 to 490, 491.1 and 491.2 of the Criminal Code.
In accordance with section 8 of the SEMA, every person who knowingly contravenes or fails to comply with the 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.
Contact
Israel, West Bank and Gaza Division
Global Affairs Canada
125 Sussex Drive
Ottawa, Ontario
K1A 0G2
Telephone: 343‑204‑5401
Email: extott-ela@international.gc.ca