31-317 - Reporting Obligations Related to Terrorist Financing for Registrants, Exempt International Dealers, and Exempt International Advisers [CSA Staff Notice - Rescinded]

The Canadian Securities Administrators (CSA) are issuing this Staff Notice to Registrants, Exempt International Dealers, and Exempt International Advisers regarding monthly reporting and other requirements relating to terrorist financing and United Nations Act sanctions on certain countries under the:

• Criminal Code of Canada
• Regulations Implementing the United Nations Resolutions on the Suppression of Terrorism
• United Nations Al-Qaida and Taliban Regulations
• Regulations Implementing the United Nations Resolution on the Democratic People’s Republic of Korea
• Regulations Implementing the United Nations Resolution on Iran

The CSA are issuing this Notice for the following purposes:

• to provide registrants with information on the new consolidated reporting form that will be used by each principal regulator,
• to provide information regarding the submission of monthly reports and advise registrants, exempt international dealers (exempt international firm) and exempt
• international advisers (exempt international firm) that the report may be filed with the principal regulator by e-mail, andto provide summary information on the laws which impose the monthly reporting requirements on registrants.

Note: This notice provides summary information only and reflects information as of the date set out above. Please refer to the text of the laws set out above for a complete description of your obligations.

Types of reporting

Registrants and exempt international firms have certain obligations under federal laws. These include requirements for “persons and entities authorized under provincial legislation to engage in the business of dealing in securities or any other financial instruments, or to provide portfolio management or investment advising services” to provide specified monthly reports to the principal agency or body that supervises or regulates the registrant or exempt international firm under federal or provincial law. The regulator, in turn, forwards information derived from these reports to the Office of the Superintendent of Financial Institutions (OSFI). Further information on these laws and the reporting obligations can be found on the OSFI website at: http://www.osfi-bsif.gc.ca 

There are two types of reporting to their principal regulator required of registrants, exempt international dealers, and exempt international advisers:

• reporting against names listed under federal laws relating to terrorist financing
• reporting against names listed under federal laws relating to United Nations sanctions.

These were previously addressed by several CSA jurisdictions in two separate reporting forms. We have now consolidated these two types of reports into a single form that can be used for reporting by e-mail to the appropriate CSA member (i.e., the registrant's principal regulator).

Overview of the applicable laws

Terrorist financing

Registrants are subject to requirements under federal laws that, among other things, address the financing of terrorism and permit the listing of persons and entities in respect of which registrants (and others) must report dealings. Canada now has three mechanisms for designating individuals and entities as terrorists or terrorist organizations:

• Criminal Code of Canada (Criminal Code)
• Regulations Implementing the United Nations Resolutions on the Suppression of Terrorism, SOR/2001-360 (UN SupTerror) (formerly, the United Nations Suppression of Terrorism Regulations) (Old UN SupTerror)
• United Nations Al-Qaida and Taliban Regulations, SOR/99-444 (UN Al-Qaida) (formerly, the United Nations Afghanistan Regulations) (Old UN Al-Qaida)

In 2006, the federal government amended the regulations referred to above to ensure, among other things, that they correspond more closely to each other and to the requirements in the Criminal Code. This is set out in more detail in the regulatory impact analysis statement that accompanied the publication of the amendments in the Canada Gazette on July 12, 2006. For further details, please refer to the Canada Gazette website at http://www.gazette.gc.ca  for July 12, 2006.

Generally, these amendments did not materially change the specific names and entities that were previously designated under the Criminal Code and the Old UN SupTerror and Old UN Al-Qaida. Names subject to the regulations made under the Criminal Code and those names subject to the UN SupTerror and the UN Al-Qaida have been combined into the lists currently posted on the OSFI website at http://www.osfi-bsif.gc.ca 

United Nations Act sanctions

In addition to the regulations referred to above, the government has enacted the:

• Regulations Implementing the United Nations Resolution on the Democratic People’s Republic of Korea (UN NKorea), SOR/2006-287 (November 9, 2006) 
• IUN Iran), SOR/2007-44 (February 22, 2007)

The UN NKorea were published in Part II of the Canada Gazette on November 29, 2006 and the UN Iran were published in Part II of the Canada Gazette on March 7, 2007: http://www.gazette.gc.ca 

Among other things, the UN NKorea and the UN Iran impose similar prohibitions, searching obligations and monthly reporting requirements with respect to designated persons, as are contained in the Criminal Code, the UN SupTerror and the UN Al-Qaida. For more information, please refer to the November 29, 2006 and the February 27, 2007 supervisory advisory letters from OSFI at: http://www.osfi-bsif.gc.ca 

Please note that the lists of designated persons for the UN Iran and the UN NKorea are available on the OSFI website at: http://www.osfi-bsif.gc.ca . The lists can also be found at the annex to United Nations Security Council Resolution 1737 (2006), which is at: http://www.un.org 

Overview of certain duties

The duties imposed on registrants under the laws referred to above include the following:

Duty to review and make filings

Under section 83.11 of the Criminal Code, section 7 of the UN SupTerror, section 5.1 of the UN Al-Qaida, section 11 of the UN Iran and section 11 of the UN NKorea:

• you must review your records on a continuing basis to determine whether you are in possession or control of property owned or controlled by or on behalf of a designated person and report your findings on a monthly basis
• you are responsible to take appropriate measures in order to determine if your clients are designated persons. Once you have made the determination that a client is a designated person, in addition to filing the monthly report with your principal regulator, you must “freeze” the property and report the details to the Royal Canadian Mounted Police (RCMP) and Canadian Security and Intelligence Service (CSIS) as described below
• if you determine that none of your clients are designated persons you are still required to report to your principal regulator that you have a Nil response. The term “designated person” in this Notice includes listed entities under the Criminal Code, listed persons under the UN SupTerror and those persons and entities covered by the UN Al-Qaida, the UN Iran and the UN NKorea.)

Reports are to be provided on the 14th day of each month, to your principal regulator. A senior officer of the firm, preferably the Chief Compliance Officer, should sign the monthly report.

As noted above, the OSFI website contains updated consolidated lists of designated persons for purposes of the Criminal Code, the UN SupTerror and the UN Al-Qaida. OSFI has also made available a listing of designated persons under the UN Iran and the UN NKorea. These lists are available in downloadable and printable formats.

Please refer to the updated lists on the OSFI website prior to completing each report. Please also note that OSFI amends its lists from time to time, as a result of corrections made by the United Nations Security Council (UNSC) to the list of designated persons, even though such changes have not been specifically highlighted by the UNSC. Because of the nature of these amendments, it is not practical for OSFI to identify them in detail.

Therefore, it is important that registrants download the consolidated lists periodically; OSFI recommends that this be done on a monthly basis.

Freezing property

Under section 83.08 of the Criminal Code, section 4 of the UN SupTerror, sections 4 and 4.1 of the UN Al-Qaida, section 9 of the UN Iran and section 9 of the UN NKorea, no person in Canada and no Canadian outside Canada shall knowingly:

• deal, directly or indirectly, with property of a designated person
• enter into or facilitate, directly or indirectly, any transaction in respect of such property
• provide any financial or other services in respect of such property.

In addition, section 9 of the UN Iran and section 9 of the UN NKorea prohibit making any property or any other financial or other related service available to or for the benefit of a designated person under the UN Iran or the UN NKorea. Consequently, any property held directly or indirectly on behalf of a designated person must be held or be frozen.

We note that OSFI has indicated that these prohibitions extend to the debiting of service charges and crediting of interest and/or if the frozen property is a securities portfolio, the crediting of interest, dividends or other entitlements and the charging of custodial fees, transaction fees or any other debits or credits to the account: see the “Special Comments” in OSFI’s November 30, 2006 reminder letter re monthly reporting, which can be found on the OSFI website at the link set out above.

Duty to disclose

Under section 83.1 of the Criminal Code, section 8 of the UN SupTerror, section 5.2 of the UN Al-Qaida, section 12 of the UN Iran and section 12 of the UN NKorea, every person in Canada and every Canadian outside Canada must forthwith report to both the RCMP and CSIS any property held for any designated person and any information about transactions or proposed transactions with respect to that property. Information may be provided to these organizations as follows:

• RCMP
  Anti-terrorist Financing Group
  Unclassified fax: (613-993-9474)
• CSIS Financing Unit
  Unclassified fax: (613) 231-0266

In addition, under section 7.1 of the Proceeds of Crime(Money Laundering) and Terrorist Financing Act, persons and entities reporting to the RCMP and CSIS that are also reporting entities under Money Laundering are required to submit a terrorist property report to the Financial Transactions and Reports Analysis Centre of Canada (FINTRAC).

For instructions relating to the preparation and submission of this report, reporting entities should visit the FINTRAC website at: http://www.fintrac-canafe.gc.ca 

New consolidated reporting form

The CSA regulators have revised their previous reporting forms to a new CSA consolidated form. In addition, in order to keep reporting requirements to the principal regulator as streamlined as possible we have also changed the reporting process to allow for the new form to be submitted to the principal regulator by e-mail. Members of the Investment Industry Regulatory Organization of Canada (IIROC) are requested to use the appropriate reporting forms issued by, and file those forms with, IIROC.

Registrants should file only one monthly consolidated report in respect of the laws relating to both terrorist financing and United Nations Act sanctions, even though names may be listed under several or all of the laws referred to above.

Registrants reporting to their principal regulator should use the new reporting form and submit their report by e-mail as of the reporting due by May 14, 2010.

The new consolidated CSA reporting form for registrants to use in complying with their monthly reporting obligations under the Criminal Code, UN SupTerror, the UN Al-Qaida, the UN NKorea and the UN Iran is available on the websites of the CSA regulators.

Please refer to the attached Appendix A for the website address of your principal regulator (please complete the form, print it, and have it signed by the appropriate individual before you scan it for e-mailing to your principal regulator).

The e-mail address for submitting your report to your principal regulator is listed in the attached Appendix A. If you have any questions about these requirements, you can contact your principal regulator at the telephone number or e-mail address listed in the Appendix A.

Note: This Notice provides summary information only. Please refer to the text of the laws set out above for a complete description of your obligations. Some of the laws referred to above also contain certain additional prohibitions and obligations regarding dealings with persons in certain countries. You should read the laws carefully for a complete description of the applicable obligations.

In addition, there are other federal regulations applicable to registrants and exempt international firms that include searching, monitoring, asset freezing and reporting obligations with respect to designated persons (as defined in the respective regulations). In the case of reporting obligations under some of these other regulations, you must report to the RCMP, rather than to your principal regulator.

Registrants and exempt international firms should continue to monitor the notices from OSFI for any new regulations that may come into effect regarding similar obligations, or updates to existing obligations to search, monitor and report. You may want to visit the OSFI websitehttp://www.osfi-bsif.gc.ca  for the purpose of familiarizing yourself with the reporting requirements and any other obligations. In addition, we encourage you to subscribe to the notification service on the OSFI websitehttp://www.osfi-bsif.gc.ca  in order to receive new updating e-mail notices and reminders concerning new developments and reporting requirements.

Appendix A
List of CSA Regulators E-mail Addresses, Websites, and inquiry details
for Monthly Reporting
(Please send the reports to the e-mail address of your principal regulator only - Attention: UN Reports)