Contributing Lawyers

Canada

Cyndee Todgham Cherniak

United States

Susan Kohn Ross

Australia

Andrew Hudson



CBSA Issues Notice on Burma Economic Sanctions Setting Out Rules With Wide Net

On December 24, 2007, the Canada Border Services Agency (CBSA) issued Customs Notice CN-07-039 "Summary of the Special Import Measures (Burma) Regulations.  Usually, one would not expect that the CBSA would issue a Customs Notice on matters relating to economic sanctions, which are within the mandate of the Department of Foreign Affairs and International Trade (DFAIT).  The CBSA informs that it will assist DFAIT in the administration of the Regulations.

The CBSA advises that border officers are required to contact the CBSA's Strategic Export Control Section when they suspect that goods are being exported to Burma or whether there is any question relating to the application of the Special Economic Measures (Burma) Regulations.

The CBSA sets out the rules as they understand them -

1) The Regulations prohibit a person in Canada to export, sell, supply, or ship any goods, wherever situated, to Burma, to any person in Burma or to any person for the purposes of any business carried on in or operated from Burma.

2) The Regulations prohibit  a person in Canada to import, purchase, acquire, ship or tranship, any goods that are exported, supplied or shipped from Burma after the date of coming into force of the Regulations (December 13, 2007), whether the goods, originated in Burma or elsewhere.

3) The exceptions to the above rules are:

  • the prohibitions do not apply to goods consigned to the Canadian Embassy in Bangkok, international organizations with diplomatic status, United Nations agencies, the International Red Cross and Red Crescent Movement or NGOs that are involved in humanitarian relief work in Burma provided that an export permit under the Export and Import Permits Act has been granted for goods exported from Canada to Burma
  • the prohibitions do not apply to personal or settler's effects that are taken or shipped by an individual leaving Canada or Burma and that are solely for the use of that individual or the individual's immediate family
  • the prohibitions do not apply to supplied exported from Canada to Burma, provided an export permit under the Export and Import Permits Act has been granted
  • the prohibitions do not apply to information materials, including books and other publications, provided that an export permit under the Export and Import Permits Act has been granted for goods exported from Canada to Burma and they do not contain technical data
  • the prohibitions do not apply to personal correspondence including lettermail. printed papers and postcards of a weight not exceeding 250g per item of correspondence.

It can be expected that the CBSA will detain goods inbound from Burma and outbound to Burma.  However, it is not entirely clear that the Canada Border Services Agency Act (Canada) properly gives the CBSA the authority to enforce the Special Economic Measures (Burma) Regulations.  The CBSA is a creation of statute and its authority is limited to what is permitted by the Canada Border Services Agency Act.  Many statutory instruments are indentified in the Canada Border Services Agency Act; however, the Special Economic Measures (Burma) Regulations are not.  The relevant Minister who may delegate authority to the Canada Border Services Agency in the Minister of Public Safety and Emergency Preparedness - not the Minister of Foreign Affairs.  It will be interesting to see what the courts say when the issue is raised.

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