Cross-border policing provokes sovereignty worries

When the Conservative government passed its controversial omnibus budget bill last month, it included new powers for certain U.S. law enforcement agents that critics say could have ramifications for Canadian sovereignty.

The Integrated Cross Border Law Enforcement Operations Act now makes it possible for American officers to cross the border into Canada where, as the act states, they have "the same power to enforce an act of Parliament as a member of the Royal Canadian Mounted Police." 

This means they'll be armed and have the powers to arrest suspects in Canadian territory.

For years, law enforcement agents without the authority to cross into neighbouring waters have complained that suspected drug traffickers or smugglers could flee one country by boat and go to another to evade arrest. Officers from one country would have to stop at the border of the other.

Now, small crews, made up of Canadian and U.S. officers specially designated and trained for cross-border policing, can go back and forth across the maritime border, all the while subject to the laws of the country they are in.

Initially limited to small crews on boats

There are conditions, however. The law, which, focuses on combating cross-border crime on waterways shared by Canada and the U.S., pertains specifically to water-based operations.

The crews consist of about five people at most. In U.S waters, a crew may include four U.S. Coast Guard officers and an RCMP officer patrolling on a small U.S Coast Guard vessel. On the Canadian side, RCMP officers will be on a Canadian vessel with one U.S. Coast Guard officer.

RCMP Supt. Warren Coons, director of the Integrated Border Enforcement Teams, stressed that the cross-designated American officers "have to be under the direction and control of a Canadian law enforcement officer" when the vessel crosses into Canadian waters. Similarly, Canadian officers are under the direction of the U.S. Coast Guard officer if they enter U.S. territory. 

"Sovereignty is something I take very seriously, and I understand the concerns that Canadian citizens have, because quite frankly I had those same concerns, and so do the U.S. officers," Coons said. "But having said that, safeguards are in place to ensure that U.S law enforcement officers are not allowed to conduct law enforcement activity in Canada unless they’re strictly under the direction and control of Canadian law enforcement officers."

But critics aren't so satisfied. Before the law was passed, the NDP argued that the issue was too important to be included in the omnibus bill and should have been voted on separately.

"This is a highly controversial integrated border enforcement program that jeopardizes Canadian sovereignty and potentially compromises the personal privacy of individual Canadians," wrote NDP MP Brian Masse, critic for Canada-U.S. border issues.

"A program that cedes sovereignty, reduces privacy and requires significant new investment must be fully debated and understood prior to its implementation," he said.

Land-based agreement to come

Although the law deals with Canadian and U.S. waters, some are raising concerns that the next phase of the plan, a land-based version of integrated policing, could be more problematic.

Stuart Trew, a spokesman for the Council of Canadians, said the act in its current form is already a "pretty serious compromise of sovereignty when it comes to policing and security."

"Are we just going to expect down the road when they do expand this program … [that] it just becomes normal to expect armed American agents on Canadian territory?" Trew said.

"How do you define a border operation? How far inland does it go? These are things that need to be dealt with in an open way. Instead they seem to be negotiating through mostly closed-door talks with U.S. officials."

William Anderson, Ontario research chair in cross-border transportation policy at the University of Windsor, said that he is a supporter of the current act, but a land-based version could be more complicated.

"Most people worry that you have a foreign law enforcement officer making an arrest, carrying a gun on Canadian territory. I think it becomes a little bit more difficult to control on land than it is on water, just by virtue of the fact that with water you're in a boat and [officers] can't get too far away from each other."

So far, the government has revealed few details about the land-based version of the plan. The Beyond the Border plan, agreed to by Prime Minister Stephen Harper and U.S President Barack Obama in 2011, had called for two land-based pilot projects to begin this summer.

Government officials will only say that consultations are continuing, with the possibility of pilot projects starting no earlier than the fall.

'Hot pursuit' exception

However, the current act does allow for American officers to come on Canadian soil in extreme situations, also known as the "hot pursuit" exception. 

"If a person on a boat is suspected of committing a serious offence and now are trying to get away and they hit shore, [U.S. officers] are allowed to go on shore and pursue in those circumstances," Coons said.

"If they’re working in the Niagara-St. Catharines area, we don’t expect to see them in downtown Toronto. It's just under a very specific circumstance where everybody would expect for public safety reasons that the officer continue with the pursuit of an individual."

But Coons said if a pursuit involved multiple suspects, it's possible that the RCMP officer could be separated from the U.S. officer. As for how much time a U.S. officer can be on shore or how far inland, Coons said "common sense prevails."

The project, named Shiprider, began in Detroit-Windsor area in September 2005, and was followed by two pilot projects two years later in Cornwall-Massena (Ontario-New York State) and the Strait of Georgia (British Columbia and Washington state).

In 2008, Canada and the U.S. negotiated a framework agreement. Legislation was introduced twice, but died because Parliament was prorogued.

The Canadian and U.S. officers involved in the program have all been trained at the Maritime Law Enforcement Academy in Charleston, S.C., where they are educated in Canadian and U.S. law, including criminal code, privacy laws and sovereignty and cultural issues.

Coons said they are still in the process of negotiating the final details of the water-based program with the U.S. Coast Guard and that it should launch in the next several months.