Regulations Amending the Special Economic Measures (Sri Lanka) Regulations: SOR/2023-4
Canada Gazette, Part II, Volume 157, Number 2
SOR/2023-4 January 6, 2023
SPECIAL ECONOMIC MEASURES ACT
P.C. 2023-5 January 5, 2023
Whereas the Governor in Council is of the opinion that gross and systematic human rights violations have been committed in Sri Lanka;
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 (Sri Lanka) Regulations under subsections 4(1)footnote a, (1.1)footnote b, (2)footnote c and (3) of the Special Economic Measures Act footnote d.
Regulations Amending the Special Economic Measures (Sri Lanka) Regulations
1 The schedule to the Special Economic Measures (Sri Lanka) Regulations is amended by adding the following in numerical order:
- 3 Gotabaya RAJAPAKSA
- 4 Mahinda RAJAPAKSA
Application Before Publication
2 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
3 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.)
Since October 2019, Sri Lanka has experienced a rapid erosion of democracy, including impunity for state officials, and political obstruction of justice for human rights abuses committed during Sri Lanka’s conflict. This jeopardizes the safeguarding of fundamental human rights, progress on justice for affected populations, and prospects for peace and reconciliation. Despite continued calls from Canada and other like-minded countries to address post-conflict accountability, the Government of Sri Lanka (GoSL) has taken limited concrete action to end impunity and uphold its human rights obligations.
The GoSL has continued to obstruct ongoing investigations and criminal trials for past crimes. In January 2020, a commission was appointed to investigate allegations of “political victimization” of public officials and members of the armed forces. The commission has since intervened in police investigations and court proceedings, and undermined authorities in several high-profile cases. Due to this political interference, numerous current and former state officials credibly implicated in war crimes have had charges against them arbitrarily dropped or convictions overturned/commuted.
In 1983, long-standing ethnic tensions in Sri Lanka between the Sinhalese majority and Tamil minority escalated into a brutal civil war. There were substantial governance concerns during this period, including the repression of dissent, enforced disappearances, widespread corruption, and dwindling space for civil society. The 26-year conflict between government forces and the Liberation Tigers of Tamil Eelam (LTTE), a terrorist organization listed by Canada in 2006, came to an end in 2009. The final defeat of the LTTE by the Sri Lankan Government was fraught with a number of serious alleged human rights abuses by both parties to the conflict, for which there has yet to be accountability despite repeated calls from the international community, including the United Nations Human Rights Council (UNHRC). The United Nations High Commissioner for Human Rights and the international community, including Canada, have consistently advocated for the protection of fundamental human rights and an end to impunity, but the GoSL continues to provide impunity to human rights abuses and fails to uphold the rule of law.
The Regulations prohibit persons (individuals and entities) in Canada and Canadians outside Canada from conducting the following activities with listed persons:
- (a) deal in any property, wherever situated, that is owned, held or controlled by a listed person or by a person acting on behalf of 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; or
- (e) provide any financial or related services to or for the benefit of a listed person.
Consequential to being listed in the Regulations, and pursuant to the application of paragraph 35(1)(d) of the Immigration and Refugee Protection Act, the listed individuals are inadmissible to Canada.
The Special Economic Measures (Sri Lanka) Permit Authorization Order was also made to authorize 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.
- Exert pressure on the GoSL to end impunity and uphold its human rights obligations, including by undertaking a comprehensive accountability process for human rights abuses and violations.
- Communicate a clear message to Sri Lanka that Canada will not accept the continued political obstruction of justice for human rights violations in Sri Lanka.
- Raise the costs, reputational and real, to these specifically identified individuals and to the GoSL of continuing their political obstruction of justice for human rights violations in Sri Lanka.
The amendment to the schedule to the Special Economic Measures (Sri Lanka) Regulations lists two additional individuals. These two individuals are former presidents of Sri Lanka.
A separate Order, the Special Economic Measures (Sri Lanka) Permit Authorization Order, made pursuant to subsection 4(4) of the Special Economic Measures Act, authorizes the Minister of Foreign Affairs to issue to any person in Canada and any Canadian outside Canada a permit to carry out a specified activity or transaction, or any class of activity or transaction, with a designated person that is otherwise restricted or prohibited pursuant to the Regulations.
Global Affairs Canada engages regularly with relevant stakeholders, including civil society organizations, cultural communities and other like-minded governments, regarding Canada’s approach to sanctions implementation.
With respect to this specific proposal, public consultation, including prepublication, would not have been appropriate, as publicizing the names of the listed persons targeted by sanctions would have likely resulted in asset flight prior to the coming into force of the Regulations.
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.
Regulations are the sole method to enact sanctions in Canada. No other instrument could be considered.
Benefits and costs
Application of sanctions will send a signal to the GoSL that Canada will not accept the continued violations of human rights and impunity in Sri Lanka.
Sanctions targeting specific persons have less impact on Canadian businesses than traditional broad-based economic sanctions, and have limited impact on the citizens of the country of the listed persons. It is likely that the newly listed individuals have limited linkages with Canada, and therefore do not have business dealings that are significant to the Canadian economy.
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.
The Regulations could create additional costs for businesses seeking permits that would authorize them to carry out specified activities or transactions that are otherwise prohibited. However, costs will likely be low, as it is unlikely that Canadian businesses have dealings with the listed individuals.
Small business lens
Regulations potentially create additional administrative costs for small businesses seeking permits that would authorize them to carry out specified activities or transactions that are otherwise prohibited. However, costs will likely be low, as it is unlikely that Canadian businesses have dealings with the newly listed individuals. No significant loss of opportunities for small businesses is expected as a result of the Regulations.
To facilitate compliance by small businesses, Global Affairs Canada conducts enhanced outreach with stakeholders to better inform them of changes to Canada’s sanctions. This includes updates to the sanctions website as well as the creation of the sanctions hotline.
While there is potential for permit requests, it is unlikely that Canadian businesses have dealings with the listed individuals and, therefore, there is no expected burden under the one for one rule.
Regulatory cooperation and alignment
The Regulations are not related to a work plan or commitment under a formal regulatory cooperation forum, and Canada would be moving forward with sanctions unilaterally.
Strategic environmental assessment
The amendments 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 (GBA+)
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 Special Economic Measures Act (SEMA) can nevertheless have an unintended impact on certain vulnerable groups and individuals. Rather than affecting Sri Lanka as a whole, these targeted sanctions impact individuals believed to be engaged in activities that obstruct justice for human rights violations in Sri Lanka. Therefore, these sanctions are unlikely to have a significant impact on vulnerable groups as compared to traditional broad-based economic sanctions directed toward a state, and limit the collateral effects to those dependent on those targeted individuals.
The focus of the listings is on two individuals who were senior (leader-level) government officials in Sri Lanka at the time of their crimes.
The human rights situation in Sri Lanka continues to deteriorate. Despite continued calls from Canada and like-minded countries, the GoSL’s action to address post-conflict accountability and uphold its international human rights obligations has been limited.
Implementing additional sanctions sends a clear message to the GoSL that Canada will not accept the continued violation of human rights and impunity in Sri Lanka. The two listed individuals had high-level command duties during Sri Lanka’s civil conflict (1983–2009) and continued to subvert domestic accountability after the conflict ended.
Implementation, compliance and enforcement, and service standards
The Regulations come into force on the day on which they are registered.
The names of the listed individuals and entities 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.
Canada’s sanctions regulations are enforced by the Royal Canadian Mounted Police and the Canada Border Services Agency (CBSA). In accordance with section 8 of the SEMA, every person who knowingly contravenes or fails to comply with the Special Economic Measures (Sri Lanka) 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 or not more than five years.
The CBSA has enforcement authorities under SEMA and the Customs Act, and will play a role in the enforcement of these sanctions.
Deputy Director Sri Lanka and Maldives Division
Global Affairs Canada