Trump's tariff threat could force Canada to face tough decisions on sovereignty

It's hard to imagine President Emmanuel Macron of France joking about annexing Belgium.

Donald Trump's posts and memes about turning Canada into the 51st state are almost without parallel among western democracies, said Carlo Dade, director of trade at the Canada West Foundation.

"This isn't 'Lower Lukistan' and 'Upper Lukistan' calling each other names again. That's something we expect, and we might expect it at that level of elected retail politicians running off at the mouth," he said.

"Where you don't expect it is from the most senior leadership. You don't expect that with countries that have had historic friendly relations and that are mature democracies."

Trump's comments, which he and his allies have downplayed as mere trolling, pale in comparison to the rhetoric about missile strikes and special forces incursions that his supporters have deployed against Mexico.

But they are a sure sign that Canada is dealing with an administration that cares little for the niceties of sovereignty. Both Canada and Mexico will have to balance their need to maintain cross-border trade with protecting their ability to make decisions and control what happens within their own borders.

Dade said Canada and Mexico have reacted somewhat differently to Trump's threats, in ways that reflect their traditionally different approaches to Washington.

Mexicans are more wary

Mexicans have always seen the United States as the country that invaded them in 1846 and took half their national territory. Canadians' greater willingness to accept that U.S. intentions are benign can be seen in the two countries' different attitudes to customs pre-clearance, under a treaty that allows U.S. border control officers to operate in Canadian airports.

Dade observed that difference when he was participating in discussions on a possible North America-wide trusted traveller program.

"The take was we could get rid of issues like the visa issue if we had an integrated system," he said. "And the Mexicans basically said, 'You all have just lost your minds.'

"There was no way they would allow U.S. law enforcement to enforce U.S. law on Mexican soil, to stop, question, search Mexican citizens. We had two really, really stark differences of opinion. Canadians were like, 'If it gets me to skip a half-hour line in Vegas, sign me up.'"

The practical result is that while the U.S. and Canada collaborate on the NEXUS traveller program for citizens of both countries, the Americans unilaterally set up a SENTRI program aimed at Mexicans that operates with little or no Mexican government input.

And despite the sovereignty rhetoric — which Dade said is as formulaic in Mexican political discourse as "God Bless America" is to U.S. politicians — Mexico has in practice been forced to accept deeper U.S. intrusions into its sovereignty than Canada.

In Canada, the U.S. Drug Enforcement Administration is limited to two small liaison offices housed within the U.S. Embassy in Ottawa and the Vancouver consulate. In Mexico, the DEA operates a dozen field offices and its agents there are armed. Under the terms of the 2008 Merida Initiative, the U.S. even has a role in "accrediting" Mexican prisons as secure.

The DEA's website describes its operations in Mexico and Canada in starkly different terms. The website says the DEA's role in Mexico includes not only active participation in enforcement but also "providing assistance in developing drug control laws and regulations."

In Canada, according to the DEA website, the agency's agents "work with Canadians on a full complement of cases while ensuring that our activities are in keeping with Canadian laws and existing agreements."

Trump's deliberate lumping together of Mexico and Canada on the fentanyl file raises the question of whether Washington could seek greater powers for its law enforcement agencies to operate on Canadian soil.

Steady pressure since 9/11

Both Canada and Mexico have long experience with American pressure to adapt their domestic laws and practices to assuage Washington's concerns and fears.

The 9/11 attacks in 2001 — and the false but hard-to-kill rumour that some of the attackers crossed from Canada — led to changes at the border that continued through to the "Common Security Perimeter" talks between the Obama and Harper governments ten years later, and changes to the Preclearance Act and other programs to share information and functions.

Some of those changes touched on Canada's sovereignty, including its ability to protect its citizens' privacy.

Since Trump posted his tariff threat, Mexican politicians have appeared less eager to placate the Trump administration than members of the Trudeau government, said Dade.

"Mexico's response under (President Claudia) Sheinbaum has been generically, 'OK, you're right, that's a problem. But tell us specifically what more you want us to do,'" he said. "Whereas our response in Canada is just to start throwing stuff on the table and hoping that something will tickle Trump's fancy."

What's been thrown on the table so far seems unlikely to satisfy Washington.

The package of changes the Trudeau government announced on border policy in recent days "looks rather unimpressive, frankly," said David Asher, who headed an anti-fentanyl task force during the first Trump administration and is now a senior fellow at the Hudson Institute.

"You're not talking about spending anything more than around $900 million US over six years to expand border measures and enforcement," he told CBC's Power and Politics. "It's sort of a drop in the bucket."

It also doesn't focus on the crux of the U.S. complaint about Canada — that Canada has become a permissive environment for people and money associated with the fentanyl trade.

Asher and other US officials have long argued that the relatively small amount of fentanyl being seized at the U.S.-Canadian border doesn't accurately reflect Canada's larger role in the global traffic.

Ten years ago, as part of the Drug Enforcement Administration's Operation Cassandra, Asher went after the Lebanese Canadian Bank in one of the biggest drug-related forfeiture actions ever brought. He said the same conditions that made Canada attractive to LCB continue to make it a venue of choice for money launderers.

TD Bank recently became the first bank in U.S. history to plead guilty to conspiracy to commit money laundering. 

U.S. Attorney General Merrick Garland said TD created an environment "that allowed financial crime to flourish … By making its services convenient for criminals, it became one." 

The U.S. seems likely to demand changes to oversight of Canadian banks to make money laundering harder, and detection and prosecution easier.

"I think without new laws, you're really not going to be able to make substantial progress," Asher said.

Charter stands in the way of change

But the legal changes the U.S. is likely to seek go beyond banking. One in particular could be hard to deliver, given that it would require overturning Supreme Court decisions based on the Charter of Rights.

Former senior Mountie Calvin Chrustie, a veteran of cross-border drug investigations, said the two court decisions that have complicated relations with the U.S. the most are R v. Stinchcombe and R v. Jordan.

"You've got these very high level court cases solidified back in the '90s when Canada was just Canada, when it wasn't this globalized world where borders don't really matter," he said. Today, Chrustie said, "almost every police case in the federal mandate is a global one."

The Stinchcombe decision of 1995 enshrines the principle that an accused has a constitutional right to full and complete disclosure of the Crown's case. There are mechanisms to avoid disclosing sensitive information, such as the identities of agents and informants, or methods of intelligence-gathering, but they depend on the discretion of a judge.

"The law was really designed to protect the innocent from possible conviction in a Canadian context," said Chrustie.

"But it has evolved so that when you apply those same principles in the global world, it means that the bad guys, the cartels, the triads, the state actors, the national security threats all get access at some point to the intelligence that we have."

Consequently, said Chrustie, U.S. agencies don't want to involve Canadian police in their investigations because they fear their most sensitive operations will be disclosed in a Canadian courtroom.

Asher was quick to identify Stinchcombe as a major irritant.

"When we go up on a number trying to target somebody, let's say their WeChat account or something, from my experience, your laws make it easy for the criminals to be disclosed that we're targeting them, which destroys our ability to do it," he said.

Eliminating that irritant would be hard, since any new law would be challenged using the Stinchcombe decision as a powerful Charter-based precedent — and the Charter overrides other Canadian laws.

"Obviously, that's not something that's going to get fixed easily," said Asher.

More pressure on migration

The other context in which Trump linked Canada to Mexico in his tariff threat is illegal migration — another area where Mexico has been forced to make more concessions than Canada.

Mexico has increasingly become a conduit rather than a source country for illegal immigration into the U.S. — more like Canada, in other words.

Starting in 2019, Mexico's arm was twisted into making a number of changes to its migration system. It positioned the new National Guard along its southern and northern borders and agreed to hold asylum claimants in Mexico while their claims were processed in the U.S. (the "Remain in Mexico" program).

It stopped issuing "safe conduct" passes to allow Central and South Americans to cross Mexico without fear of arrest, acted to break up large migrant caravans and agreed to resettle some migrants from countries such as Cuba and Venezuela, where the U.S. lacks a mechanism to return people.

The nature of migration is different at the Canadian border and so are the rules around it (such as the Safe Third Country Agreement). And yet Trump's rhetoric suggests his administration will have thoughts about how Canada should handle migration, and will be keen to share them.

Pressure to pick a side

Perhaps the biggest area where Canada's sovereignty could be constrained is in its ability to have an independent foreign policy, where it sets its own relations with other nations.

Dade said Canada faces a "context of a coming global trade war, with the U.S. forcing countries to pick lanes and to pick sides.

"If we want to be in the small walled garden with the other Five Eyes, then what concessions are we going to have to make to the Americans?"

Chrustie said that in his own area of expertise — law enforcement — "there's risk, you have to take some chances and sometimes there are going to be some sovereign issues that get close to the edge.

"But Canadians have to realize that the only people that respect the integrity of Canadian sovereignty and the border and all these other issues are Canadians. The Chinese threat actors don't care about the Canadian borders. The transnational organized crime figures don't respect our borders. The cartels don't.

"And if there's a choice to work with some entities, I would suggest that we consider working with our historic allies — the Americans, the Five Eyes and our NATO allies — rather than getting overly obsessed about the integrity of our borders, knowing that these things are very fluid and dynamic."

Chrustie said the relationship with the U.S. isn't a zero-sum equation where less cooperation means Canada gets to retain more independence.

"I say this facetiously, but sometimes the choice is between becoming the 51st state or becoming the 24th province of China."