ARCHIVED — Vol. 146, No. 19 — September 12, 2012

Registration

SI/2012-68 September 12, 2012

JOBS, GROWTH AND LONG-TERM PROSPERITY ACT

Order Fixing August 20, 2012 as the Day on which Division 12 of the Act Comes into Force

P.C. 2012-1020 August 20, 2012

His Excellency the Governor General in Council, on the recommendation of the Minister of Public Safety and Emergency Preparedness, pursuant to section 374 of the Jobs, Growth and Long-term Prosperity Act, chapter 19 of the Statutes of Canada, 2012, fixes August 20, 2012 as the day on which Division 12 of that Act comes into force.

EXPLANATORY NOTE

(This note is not part of the Order.)

Proposal

This Order brings into force the Integrated Cross-Border Law Enforcement Operations Act, which was Division 12 of Bill C-38, an Act to implement certain provisions of the budget tabled in Parliament on March 29, 2012, and other measures that received Royal Assent on June 29, 2012, and that implements the Framework Agreement on Integrated Cross-Border Maritime Law Enforcement Operations between the Government of Canada and the Government of the United States of America, which was signed in 2009.

Objective

To proclaim into force legislation, which will permit Canada to give effect to the Framework Agreement on Integrated Cross-Border Maritime Law Enforcement Operations between the Government of Canada and the Government of the United States of America. It will allow for the deployment of regularized integrated cross-border maritime law enforcement operations (also known as “Shiprider”) in shared waters by the Royal Canadian Mounted Police (RCMP) and the United States Coast Guard, as well as their Canadian and U.S. law enforcement partners (e.g. Ontario Provincial Police, Sûreté du Québec, New York State Police).

The implementation of integrated cross-border maritime law enforcement operations is a key commitment of the joint Canada–United States Beyond the Border: A Shared Vision for Perimeter Security and Economic Competitiveness, announced by the Prime Minister and the U.S. President in February 2011. Specifically, the regularization of Shiprider operations by summer 2012 is an initiative under the “Beyond the Border” Action Plan announced in December 2011.

This initiative is also directly linked to the 2011 Speech from the Throne, which announced that Canada would “strengthen our collaboration to streamline and secure the border … ensuring that people and goods can flow freely and safely between our two countries” and the 2012 Budget, which stated that Canada would launch “the Action Plan on Perimeter Security and Economic Competitiveness…. These agreements create a new, modern border for a new century. The Action Plan on Perimeter Security and Economic Competitiveness provides a practical road map for speeding up legitimate trade and travel across the Canada-U.S. border, while enhancing security.”

Background

Both Canada and the United States have a mutual interest in the security of their shared border and are committed to increasing respective law enforcement capacities to deter, target, investigate, interdict and prosecute people or groups that pose a public safety or security threat to either or both nations.

Security and policing gaps and vulnerabilities continue to be identified by Canadian and U.S. law enforcement authorities along the 8 891 km-long international boundary between both countries. This is due, in part, to the fact that criminal organizations are not restricted by jurisdictional boundaries and that they seek to exploit these seams at international borders for illicit purposes.

Recent threat assessments conducted by Canadian and U.S. law enforcement agencies, such as the 2011 Canada–United States Integrated Border Enforcement Team Threat Assessment and the United States–Canada Joint Border Threat and Risk Assessment, identify organized crime as the most prevalent threat encountered at the shared border. This includes significant levels of contraband trafficking, ranging from illicit drugs and tobacco to firearms and human smuggling.

Law enforcement agencies working at and near the Canada–U.S. border are increasingly confronted with responding to and investigating, criminal activity that extends beyond their respective national boundaries. Cross-boundary investigations are hindered by the fact that law enforcement officers do not retain peace officer status outside of their respective jurisdictions. Organized crime groups are aware of these jurisdictional limitations and use them to their advantage in order to evade arrest and subsequent prosecution when involved in cross-border criminality.

The concept of integrated cross-border maritime law enforcement operations is a marked departure from the existing and traditional cooperative partnership approach to conducting border law enforcement activities. Guided by agreed-upon principles (i.e. respect for sovereignty and domestic rule of law, reciprocity, joint governance, oversight and accountability), specially trained and designated Canadian and U.S. law enforcement officers, working in integrated teams, would be authorized to enforce the law on shared waters. Working together, these integrated teams will be able to transit back and forth across the border to deal with cross-border criminality. All operations will be conducted under the direction and control of law enforcement officers of the “host” country, will be subject to the domestic laws of the “host” country and will be assisted by the law enforcement officers of the “visiting” country. For example, when an integrated team is operating in Canadian waters, U.S. officers will be under the direction of the Canadian officer on board. The reverse would occur when integrated teams are conducting operations in the United States.

To test the integrated operations concept, Canada and the United States authorized two Shiprider pilot projects between the RCMP and the United States Coast Guard in 2005 at Windsor/ Detroit, and in 2007 at Vancouver/Blaine and Cornwall/Massena. These pilot projects were undertaken to help assess the desirability and viability of conducting integrated cross-border maritime law enforcement operations.

Joint evaluations of the Shiprider pilot projects confirmed that integrated cross-border maritime law enforcement operations created a force multiplier and enhanced the operational flexibility of Canadian and U.S. law enforcement by enabling seamless, continuous law enforcement activities across the border. This approach made better use of existing resources and provided an enhanced security posture along the marine border by facilitating more effective targeting, investigation and interdiction of criminals operating on shared waters.

In short, the Shiprider pilot projects had a measureable impact on cross-border criminal activity and they removed the border as an impediment to effective border policing. For example, during the 2007 Cornwall/Massena pilot project, RCMP and United States Coast Guard officers participated in more than 187 boardings and logged in excess of 1 200 patrol hours, a substantial increase in patrol hours from the 2005 exercise. These operations were directly tied to several interdictions, including the seizure of 215 pounds of marijuana, worth US$330,000, by the Akwesasne Mohawk Police Service, and the seizure of 1 420 000 contraband cigarettes, $2,035 in Canadian currency, and vessels and vehicles with a total approximate value of $75,000. In 39 separate incidents, these teams contributed to 41 arrests, with 6 arrests made directly by the integrated marine teams. Given their ability to conduct law enforcement on both sides of the St. Lawrence, the integrated marine teams were also directly involved in the recovery of an abducted child in the Cornwall area. On the West Coast, the RCMP and United States Coast Guard officers issued 27 safety violations, as well as the detention of two individuals who were remanded to the custody of the appropriate U.S. County Sheriff’s Office for suspicion of driving under the influence, and one individual cited for significant illegal commercial fishing violations.

Based on the results of the pilot projects, the Government approved, in November 2007, a mandate for Foreign Affairs and International Trade Canada, Public Safety Canada and Justice Canada to negotiate a framework agreement with the United States to govern the deployment of regular Shiprider operations. Negotiations concluded during early spring 2009 and the Shiprider Framework Agreement was signed by the Minister of Public Safety and the U.S. Secretary for Homeland Security in May 2009.

The legislation was introduced to Parliament as part of the Budget Implementation Act on April 27, 2012, and received Royal Assent on June 29, 2012, with a view to enabling the deployment of regularized Shiprider operations in summer 2012.

Implications

Shiprider operations will have operational and legal impacts on some key federal agencies, particularly the RCMP, where the Commissioner will be identified as the central authority to manage integrated cross-border law enforcement operations. Operations will also have an impact on the Public Prosecution Service of Canada (i.e. prosecution of offences under federal statutes other than the Criminal Code, of certain offences under the Criminal Code, and an ongoing law enforcement advisory function on prosecution-related issues).

While provincial attorneys general have primary responsibility for the prosecution of Criminal Code offences, it is not anticipated that prosecutions arising out of Shiprider operations will have a significant impact on provincial prosecutions (e.g. caseloads). Rather, it is expected that the majority of the prosecutions arising in the context of such operations will fall to the Attorney General of Canada either because the offences most likely to be investigated fall under federal legislation other than the Criminal Code (e.g. the Controlled Drugs and Substances Act, the Customs Act, the Immigration and Refugee Protection Act, the Excise Act) or because the Criminal Code expressly provides for shared jurisdiction with respect to these offences (e.g. importing and exporting firearms, “terrorist activity,” “criminal organization offences”).

Regularized Shiprider operations could lead to public questions about the perceived erosion of Canadian sovereignty. The risks are mitigated through the articulation of guiding principles and key elements that will be required components of any integrated operation. This will include a requirement that all law enforcement activities undertaken in Canada will be in accordance with Canadian law and policy, and all integrated cross-border law enforcement operations taking place within Canadian territory will be carried out under the direction and control of a Canadian law enforcement officer and be subject to domestic oversight provisions.

Consultation

Key stakeholders, including the provincial attorneys general and ministers responsible for policing; police associations; a number of local government officials and Aboriginal groups in close proximity to the border; civilian law enforcement oversight bodies; and the Canadian Bar Association, Barreau du Québec and defence lawyers associations, across Canada were consulted in writing on the concept of integrated cross-border law enforcement during 2008–2009. In general, there was consensus that if integrated law enforcement operations are to become regularized, issues, such as designation, authorities and control, training, implementation of necessary legislation, established protocols and procedures, accountability, agreed-upon enforcement standards and information sharing, would need to be effectively addressed in a framework agreement.

In August 2011, the Beyond the Border Working Group released its summary of public consultations entitled Perimeter Security and Economic Competitiveness: a Report on Consultations on Perimeter Security and Economic Competitiveness between Canada and the United States. Many submissions from individual Canadians expressed concern about integrated law enforcement and were specifically focused on information sharing, loss of national sovereignty, the protection of civil liberties and redress.

Other stakeholders, such as the Canadian Council of Chief Executives and the Customs and Immigration Union, called for the expansion of bilateral law enforcement partnerships. The Federation of Canadian Municipalities and some border communities/ provinces, such as Saskatchewan and Ontario, recommended a deeper level of engagement with municipal police forces as part of the development of joint enforcement programs. The Assembly of First Nations recommended that First Nations in both countries be included in cross-border law enforcement activities. The Canadian Civil Liberties Association called for protocols that will prohibit the secondary use of information obtained in the context of a cross-border law enforcement operation. The Privacy Commissioner asked that privacy protection be applied to activities.

All issues identified by stakeholders were also identified by Canadian officials prior to commencement of bilateral negotiations and were addressed in the Framework Agreement and/or the Integrated Cross-Border Law Enforcement Operations Act, or will be addressed through the development of standard operating procedures and/or potential expansion of the program in the future.

Contact

For additional information, please contact

Stephen Bolton
Director
Border Law Enforcement Strategies Division
Public Safety Canada
Telephone: 613-991-4245