Cross-border policing plan still in legal limbo

The following is from the 6 February 2013 edition of Embassy Magazine.

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.

The Canadian Civil Liberties Association in particular has raised red flags and says it will scrutinize closely any deal for compliance with the Canadian Charter of Rights and Freedoms. The Opposition NDP has also raised concerns.

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.

‘A long list of legal hurdles’

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.

However, the government has raised the concept of legal issues three times in connection with the talks.

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.

Charter safeguards

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.

The group also gave a lukewarm response to a Joint Statement of Privacy Principles released at the end of June 2012, one that was designed to guide Canada-US talks on future perimeter initiatives, such as cross-border policing.

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. Mr. Masse was travelling and unavailable for comment before press time.

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.

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