Regulations Amending the Special Economic Measures (Burma) Regulations

Whereas the Governor in Council is of the opinion that the situation in Myanmar constitutes a grave breach of international peace and security that has resulted in or is likely to result in a serious international crisis;

Whereas the Governor in Council is of the opinion that gross and systematic human rights violations have been committed in Myanmar;

And whereas the Governor in Council is of the opinion that a national of Myanmar who is a foreign public official, or an associate of such an official, is responsible for or complicit in ordering, controlling or otherwise directing acts of significant corruption;

Therefore, Her Excellency the Governor General in Council, on the recommendation of the Minister of Foreign Affairs, makes the annexed Regulations Amending the Special Economic Measures (Burma) Regulations under paragraph 4(1)(a)^a and subsections 4(1.1)^b, (2)^c and (3) of the Special Economic Measures Act.^d

^a S.C. 2022, c. 10, s. 438(1)

^b S.C. 2017, c. 21, s. 17(2)

^c S.C. 2023, c. 26, ss. 254(2) to (4)

^d S.C. 1992, c. 17

Amendments

1 The title of the Special Economic Measures (Burma) Regulations¹ is replaced by the following:

Special Economic Measures (Myanmar) Regulations

2 (1) The definitions Burma and designated person in section 1 of the Regulations are repealed.

(2) Section 1 of the Regulations is amended by adding the following in alphabetical order:

Myanmar includes:

1. any political subdivision of Myanmar;
2. the government, and any department of Myanmar or of a political subdivision of Myanmar; and
3. any agency of Myanmar or of a political subdivision of Myanmar. (Myanmar)

3 Section 2 of the Regulations is replaced by the following:

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

1. a person who has engaged in activities that directly or indirectly undermine the peace, security or stability of Myanmar;
2. person who has engaged in activities that directly or indirectly contribute to or support gross and systematic human rights violations in Myanmar;
3. a person who has engaged in activities that directly or indirectly contribute to acts of significant corruption in Myanmar;
4. a current or former senior official of Myanmar;
5. an associate of a person referred to in any of paragraphs (a) to (d) and (i);
6. a family member of a person referred to in any of paragraphs (a) to (e) and (i);
7. an entity owned — or held or controlled, directly or indirectly — by a person referred to in any of paragraphs (a) to (f);
8. an entity owned — or held or controlled, directly or indirectly — by Myanmar; or
9. a current or former senior official of an entity referred to in any of paragraphs (a) to (c), (g) and (h).

4 (1) The portion of section 3 of the Regulations before paragraph (b) is replaced by the following:

Prohibited dealings and activities

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

1. deal in any property, wherever situated, that is owned — or that is held or controlled directly or indirectly — by a listed person;

(2) Paragraphs 3(b) and (c) of the French version of the Regulations are replaced by the following:

1. de conclure une transaction liée à une telle opération ou d’en faciliter la conclusion;
2. de fournir des services financiers ou connexes à l’égard d’une telle opération;

(3) Paragraphs 3(d) and (e) of the Regulations are replaced by the following:

1. make available any goods, wherever situated, to a listed person or a person acting on behalf of a listed person;
2. 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
3. provide any financial or related services to or for the benefit of a listed person.

5 Section 4 of the Regulations is replaced by the following:

Non-application — section 3

3.1 Section 3 does not apply in respect of

1. 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;
2. 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;
3. 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;
4. 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;
5. 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;
6. 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;
7. any transaction in respect of any account at a financial institution held by a diplomatic mission, if the transaction is necessary in order for the mission to fulfill its diplomatic functions as set out in Article 3 of the Vienna Convention on Diplomatic Relations or, if the diplomatic mission has been temporarily or permanently recalled, when the transaction is necessary in order to maintain the mission premises;
8. 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; and
9. a transaction by the Government of Canada that is provided for in any agreement or arrangement between Canada and Myanmar.

Restricted or prohibited activities

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

1. export, sell, supply, ship, transport or otherwise deal in arms and related material or aviation fuel, wherever situated, destined for Myanmar or any person in Myanmar;
2. import, purchase, acquire, ship, transport or otherwise deal in arms and related material, wherever situated, that are exported from Myanmar after December 13, 2007;
3. transfer, provide or communicate technical data related to military activities or to the provision, manufacture, maintenance or use of arms and related material to Myanmar or any person in Myanmar; or
4. provide or acquire financial or other services related to military activities or to the provision, manufacture, maintenance or use of arms and related material to, from or for the benefit of or on the direction or order of Myanmar or any person in Myanmar.

6 Subsection 5(1) of the Regulations is replaced by the following:

Insurance — ships

5 (1) It is prohibited for any person in Canada and any Canadian outside Canada to provide insurance or reinsurance to or for the benefit of or on the direction of Myanmar or any person in Myanmar in relation to ships transporting aviation fuel to Myanmar.

7 The Regulations are amended by adding the following after section 5:

Non-application — section 4 and subsection 5(1)

6 Section 4 and subsection 5(1) do not apply in respect of

1. protective clothing and equipment, including flak jackets and military helmets, for the personal use of United Nations personnel, human rights monitors, representatives of the media and humanitarian and development workers and associated personnel;
2. non-lethal military equipment intended solely for humanitarian, human rights monitoring or protective use and related technical assistance and training; and
3. members of the Canadian Forces who are in or travel to Myanmar in the performance of official duties, including providing security to Canadian diplomatic staff, providing humanitarian assistance or engaging in other activities authorized by the Chief of the Defence Staff.

8 Section 13 of the Regulations is replaced by the following:

Assisting in a prohibited activity

13 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 3, 4 and 5.

9 (1) The portion of section 14 of the Regulations before paragraph (b) is replaced by the following:

Determination

14 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:

1. 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;

(2) Paragraph 14(c) of the French version of the Regulations is replaced by the following:

1. les sociétés étrangères au sens du paragraphe 2(1) de la Loi sur les sociétés d’assurances, dans le cadre de leurs activités d’assurance au Canada;

(3) Paragraphs 14(e) and (f) of the English version of the Regulations are replaced by the following:

1. 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;
2. companies regulated by the Trust and Loan Companies Act;

(4) Paragraph 14(i) of the Regulations is replaced by the following:

1. entities authorized under provincial legislation to engage in the business of dealing in securities or to provide portfolio management or investment counselling services; and

(5) Paragraph 14(j) of the English version of the Regulations is replaced by the following:

1. 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.

10 (1) Subsection 15(1) of the Regulations is replaced by the following:

Duty to disclose

15 (1) Every person in Canada, every Canadian outside Canada and every entity set out in section 14 must disclose without delay to the Commissioner of the Royal Canadian Mounted Police or to the Director of the Canadian Security Intelligence Service

1. 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
2. any information about a transaction or proposed transaction in respect of property referred to in paragraph (a).

(2) Subsection 15(2) of the French version of the Regulations is replaced by the following:

Immunité

(2) Aucune poursuite fondée sur la Loi sur les mesures économiques spéciales ni aucune procédure civile ne peuvent être intentées contre une personne ayant communiqué de bonne foi des renseignements en application du paragraphe (1).

11 The heading before section 16 of the Regulations is replaced by the following:

Applications

12 (1) Subsections 16(1) and (2) of the Regulations are replaced by the following:

Removal from list

16 (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.

(2) Subsection 16(5) of the Regulations is replaced by the following:

New application

(5) If there has been a material change in circumstances since the last application was submitted, a listed person may submit another application under subsection (1).

13 The heading before section 17 of the Regulations is repealed.

14 (1) Subsection 17(1) of the Regulations is replaced by the following:

Mistaken identity

17 (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.

(2) The portion of subsection 17(2) of the Regulations before paragraph (a) is replaced by the following:

Determination by Minister

(2) Within 30 days after the day on which the Minister receives the application, the Minister must

(3) Paragraph 17(2)(a) of the Regulations is replaced by the following:

(a) if it is established that the applicant is not the listed person, issue the certificate; or

15 The heading before section 18 and sections 18 and 19 of the Regulations are repealed.

16 Part 1 of the schedule to the Regulations is amended by adding the following in numerical order:

90. Ministry of Defence of Myanmar
91. Armed Forces of Myanmar
92. 33rd Light Infantry Division of the Burmese Army

17 Part 2 of the schedule to the Regulations is amended by adding the following in numerical order:

138. Ba Shwe
139. Kan Zaw, born October 11, 1954
140. Ko Ko Hlaing, born October 24, 1956
141. Lu Mon
142. Aung Kyaw Tun
143. Aung Myaing
144. Ko Lay
145. Than Than Linn
146. Min Htut
147. Khun Thant Zaw Htoo
148. Moe Aung
149. Htin Kyaw Thu
150. Aung Kyaw Hoe

Application Before Publication

18 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

19 These Regulations come into force on the day on which they are registered.

¹SOR/2007-285