Beyond Borders… and beyond the law? American law enforcement operating on Canadian soil: Where is the national discussion?
From the United States Coast Guard, Department of Homeland Security site, September 16th, 2013 : http://www.uscgnews.com/go/doc/4007/1905117/U-S-Canadian-crews-conduct-joint-law-enforcement-operation-along-shared-border
News Release Date: Sept. 16, 2013 Ninth Coast Guard District
Office: (216) 902-6020 Mobile: (216) 310-2608
U.S.,Canadian crews conduct joint law enforcement operation along shared border
CLEVELAND — The U.S. Coast Guard and the Royal Canadian Mounted Police concluded a three-day joint law enforcement operation Sunday along the shared international border at the St. Lawrence Seaway.
Personnel from the RCMP’s maritime unit in Kingston, Ontario, and Coast Guard Station Alexandria Bay, located on Wellesley Island, N.Y., conducted the patrols as part of the collaborative program known as integrated cross-border maritime law enforcement operations, referred to informally as Canada-U.S. Shiprider.
As a result of the operations, several vessels were stopped and boarded by specially trained and designated members of the Coast Guard and RCMP.
Cross-border crime is a two-way challenge that has implications for both U.S. and Canadian citizens. Shiprider removes jurisdictional road blocks associated with an international border.
It allows specially trained and cross-designated U.S. and Canadian law enforcement officers to work side by side while under the direct supervision of the host country officer.
Without a doubt, it is not only cross border crime that provides a two-way challenge with implications for both U.S. and Canadian citizens, but also cross border policing. However a third challenge arises on both aspects when it comes to Canadian sovereignty, and I feel strongly that this aspect has deliberately been downplayed to avoid the wrath of a nation.
The issue of cross border policing on the water, made local headlines in June of this year with this article by Kent Spencer of The Province: http://www.theprovince.com/news/bc/Canada+Coast+Guard+maritime+policing+pact+Shiprider+infringes/8555989/story.html
Canadian independence could be infringed under the terms of a new maritime policing agreement with the U.S., says a Canadian jurist.
Vancouver lawyer Eric Gottardi said Thursday that new rules which allow U.S. police to take part in law enforcement operations in Canadian territorial waters have implications for this country’s sovereignty.
“This agreement is really about sovereignty. We’re allowing American agents to operate in Canada, out on the water,” said Gottardi, vice-chair of the Canadian Bar Association’s national criminal justice section.
The agreement announced on June 17, called “Shiprider,” provides reciprocal policing powers for Canadian Mounties in U.S. waters.
Specially-trained RCMP will also take part in patrols with their counterparts in the U.S. Coast Guard.
Gottardi said the potential for abuse arises because of differences in laws, lengths of sentence, evidence gathering rules and police complaint procedures.
For instance, he said officers’ discretion about where to make their arrest will make a great deal of difference in illicit drug cases. Penalties are much harsher in the U.S. than Canada.
“The question is what’s really going to happen out there. Will they be tempted to wait 10 more metres and grab a guy in American waters instead of Canada’s?” he asked.
Another section of the pact says that American officers are supposed to co-operate with Canadian civilian agencies which investigate alleged police misconduct.
But the pact contains an opting out clause for matters contrary to “substantive national interests.”
“If an American chooses not to participate in a criminal proceeding in Canada, what options are left to Canadians facing prosecution up here?” he asked.
The agreement also allows pursuit to continue on land in “urgent and exceptional circumstances.”
U.S. Coast Guard personnel attending the announcement in Surrey on June 17 outnumbered their Canadian counterparts by 4-to-1.
This phase of the Beyond the Border action plan has many legal experts raising the alarm, and rightly so.
Simply put, sovereignty is the right of a country to govern and maintain authority over itself. Allowing law enforcement from any other country to work in Canadian waters with the exceptions above is of great concern, and in my opinion, yet another move in a series by the Canadian government that contributes to an erosion of our nations sovereignty.
Fully implementing cross border law enforcement on land and sea, is an alarm that should knock Canadians off their chairs and into the streets.( don’t worry, the RCMP have a plan for that as well)
In July of this year, when many Canadians were happily distracted by summer vacations, long days and nice wine, another story broke, one with much more significance -yet another phase of the Beyond the Border Action Plan, which is outlined in the briefest and most benign manner at this link : http://actionplan.gc.ca/en/page/bbg-tpf/2012-beyond-border-implementation-report
That story, from Yahoo news:
The Canadian Press says it has obtained an RCMP briefing memo under access-to-information legislation that details the Mounties’ reservations about allowing American officers to work with legal immunity here.
“Canadians would likely have serious concerns with cross-designated officers from the U.S. not being accountable for their actions in Canada,” says the classified memo prepared for RCMP Commissioner Bob Paulson, a censored version of which was obtained by CP.
The Conservative government is working on a wide-ranging deal for cross-border law enforcement aimed mainly at reducing the trade bottlenecks at the Canada-U.S. border created after the 9/11 terror attacks.
The program initially allows U.S. Customs and Border Protection officers to work with Canada Border Services agents at truck pre-clearance areas on the border, with the first two pilot projects set up at Fort Erie, Ont., and Surrey, B.C.
“In addition, we will implement ‘Next Generation’ pilot projects to create integrated teams in areas such as intelligence and criminal investigations, and an intelligence-led uniformed presence between ports of entry,” says a description of the program on Ottawa’s Action Plan web site.
But the October 2012 memo reveals that Canadian and U.S. officials are at odds over whose legal system would apply to the visiting officers, CP said.
According to the RCMP memo, these kinds of cross-border initiatives have operated on the understanding that the laws of the host country apply to illegal acts committed on its territory and that its courts would have jurisdiction, CP reported.
“However, the U.S. has recently expressed concerns with the continued application of the ‘host country law model’ and has requested that its officers be exempted from the laws or the jurisdiction of the ordinary courts in Canada in the context of the Next Gen and Pre-clearance initiatives,” the memo says, according to CP.
Imagine that. American law enforcement officers or agents not only being allowed to operate on Canadian soil, but being exempt from the laws that hold us all to account.
Seriously? Exempt from our laws?
How did this happen?
Try to wrap your head around that for a moment. It’s just wrong on so many levels. But it seems that when you look back at the timeline of this action plan, it’s amazing that none of this seems to have registered with the public. There’s been no consultation, no national discussion, other than what has taken place in various chat forums or on various independent websites and it’s clear that is exactly what the government wants. Very few people have even been aware that the US and Canada have conducted the cross border marine pilot project Shiprider for several years. Why is that?
The reason no one noticed this new level of integrated policing at first is because it was included in one of those infamous Conservative Omnibus bills in 2012.http://laws-lois.justice.gc.ca/eng/acts/I-14.7/
It was back in February 2013 that an article giving more details appeared in Embassy news, courtesy of Crossborder solutions : http://www.crossborder.net/article.cfm?id=73
Program to allow US agents on Canadian soil was set to launch last summer.
Canadian and United States officials are facing continued delays in secretive talks to allow American law enforcement agents to cross the land border and pursue people onto Canadian soil, Embassy has learned.
Legal experts have warned for months that the unprecedented effort under the Canada-US perimeter plan raises serious questions about police accountability, national jurisdiction, privacy, and sovereignty.
But while a similar plan to permanently entrench cross-border policing on Canada-US shared waterways was achieved relatively quickly in 2012, getting a land-based version off the ground is proving to be more difficult.
The program, officially known as the Next Generation of Integrated Cross-Border Law Enforcement, was supposed to be tested through two pilot projects by last summer, but as of Feb. 1 the pilot is still on hold, according to Public Safety spokesperson Jessica Slack.
The Harper government made the marine version of the program permanent as part of its spring 2012 budget implementation bill that, among other changes, amended the Criminal Code’s definition of “peace officer.”
Canada has since deployed two permanent joint teams with American agents along the shared waterways in Ontario-Michigan and British Columbia-Washington State. These marine operations also include aerial police surveillance over land.
Now Public Safety, Justice Canada, the RCMP, the US Department of Homeland Security, and the US Department of Justice are locked in negotiations to export the plan from the waterways to the land border.
The new version will allow American agents, such as front the Federal Bureau of Investigation or the Drug Enforcement Administration, to cross the border into Canada, the RCMP has said. It is supposed to extend the same changes to Canadian agents who want to cross into the US.
The government, however, is staying mum about any details in the talks.
“At this time, it would be inappropriate to comment on the issues being discussed given that negotiations remain ongoing,” wrote Ms. Slack in an email in response to further questioning.
First, in September 2012, Public Safety spokesperson Jean Paul Duval told Embassy the pilot was on hold “while the legal and governance framework for the program is finalized.”
Then in a December progress report, the Harper government reported that it was still behind schedule on cross-border policing, and chalked it up to “challenges” over “operational and legal requirements.”
Ms. Slack then wrote on Feb. 1 that “the legal and governance framework for the program are still under negotiation.”
John Edward Deukmedjian, associate professor of criminology at the University of Windsor, wrote in an email that if the two countries are trying to work out a similar system as the marine-based program, where the definition of peace officer was changed, it would be difficult.
“I can give you a long list of legal hurdles that would have to be overcome, but are by their nature nearly insurmountable,” he wrote.
The CCLA has warned that Canadian law enforcement should not be allowed to use American counterparts to do an end-run around domestic legal safeguards, or carry out surveillance on one group of citizens on behalf of the other country’s agencies, when it would normally be prohibited.
“We want to make sure that any activity that occurs either by Canadian forces or in Canadian jurisdiction is compliant with the safeguards in the Charter and the highest international legal standards,” said Sukanya Pillay, the Canadian Civil Liberties Association’s national security program director, in an interview.
NDP Canada-US border critic Brian Masse, who first raised accountability concerns over cross-border policing in an April 2012 interview, is looking into the matter further as a result of the continued delay, his office confirmed.
The government, however, has said repeatedly that it will respect the Charter, as well as sovereignty concerns. It says a designated Canadian officer will accompany American law enforcement officials in joint patrols. It has also said the plan is an important partnership between the two countries, and improves the border’s safety, efficiency, and effectiveness.
RCMP officials have indicated they recognize sovereignty concerns. In May 2012, two top RCMP officers told a Senate committee that the force was planning on easing Canadians into the idea of American agents in Canada through “baby steps” because they understood the sensitive nature of the talks.
Baby steps indeed. How condescending.
I await the day our government treats those who elected them with the same respect they demand themselves. But then again,considering the RCMP have been realistically concerned enough about the destruction or overthrow of the Canadian government, that they mentioned it in their 2012-2013 Report on Plans and Priorities, I doubt that any real engagement is going to occur anytime soon : http://www.tbs-sct.gc.ca/rpp/2012-2013/inst/rcm/rcm01-eng.asp
I guess Harper might have been a little bit more worried about the Occupy Movement and Idle no More than he let on…
However, as mentioned in the prior article, it is not only Canadian legal or liberty experts and politicians who are concerned about the implications of cross border policing, it is indeed the RCMP themselves, as reported in another interview with Embassy, Canada’s foreign policy news publication, earlier this year:
The RCMP has worried for years that the program would offend Canadians’ sense of sovereignty. RCMP Chief Superintendent Joe Oliver said as much to a Senate committee in May 2012, concluding that the force would have to proceed with “baby steps” to get Canadians used to the idea before deploying the program in full.
The RCMP and its US counterparts were also still trying to figure out the geographical limits of such a deal in April, Mr. Oliver told Embassy in a spring interview. “In a land environment, where do you set the limit? Is it 10 kilometres from the border? Is it 20 kilometres from the border? Is it 25 kilometres?”he said at the time.
In that same Embassy report, dated August 21st, 2013, it was exclusively revealed that Vic Toews had tried to “mollify” various groups, individuals and politicians in Canada over cross border policing worries last year, via dozens of letter sent from his office following the revelations discussed above:
Where do we go from here?
Let’s get to the heart of the matter, and why you need to pay attention and hold your elected member of parliament to account on this issue.
Without a doubt, there are a plethora of issues along the Canadian border that require full cooperation between American authorities, the RCMP and Canadian Border Services. In this regard, ensuring initiatives that enable all agencies to work cohesively is important and I doubt anyone disputes that point.
However, there has to be a limit. There is no way American agents or law enforcement officers of any kind should be allowed to cross the border for any reason and not have to answer to our laws. It opens the door for any number of scenarios that make my stomach turn.
Where is consideration for what happens when and if something goes wrong in an operation on Canadian soil, using American agents? What weapons might they be allowed to use here? Under which countries authority lies the complaint process and has that even been considered? What is a Canadian suspect is harmed by an American law enforcement officer? How far from the border would they be able to work? How is it at all possible to make sure the privacy laws of Canadians information are protected, and respected?
It’s a slippery slope and one I strongly feel the Canadian government should back away from immediately. While I can imagine the Canadian government will claim the good people of Canada have said little about this, it’s only because the Canadian government has done everything they can to keep the contentious details of this Next Generation policing ( NxtGen as the Department of Homeland Security affectionately refers to it as) from the general public as much as possible.
In a time when our government not only allows Chinese state connected companies to advise policy makers, but to purchase and control our resources, do we as a nation want to concede more control to a country who clearly doesn’t respect our process of law enough to want to answer to them ?
It’s time for the Canadian government to cut the cord on the Next Generation of integrated law enforcement with the United States of America, and it’s time for you to hold your members of parliament to account.
Anything less constitutes an agreement with all the above.
What can you do?
Feeling a bit surprised, shocked, upset? You aren’t alone. Many Canadians are still completely unaware of this action plan and planned integrated law enforcement along the border.
You can help by sharing this post with your friends, neighbours and colleagues via facebook, twitter or email.
You can also share your thoughts with the government, via the avenues below:
Border Action Plan Implementation Team
700-66 Slater Street
Ontario K1A 0A3
You can also find and contact your MP – Member of Parliament- using your postal code at this link: http://www.parl.gc.ca/Parlinfo/Compilations/HouseofCommons/MemberByPostalCode.aspx?Menu=HOC