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New border regime – common enemies, different laws

Depending on how you squint, the recent joint announcement by the Department of Homeland Security and Department of Public Safety could be seen as an emboldened Smart Border agreement or a real recognition that Canadian and American laws are different and destined to stay that way.

“We are committed to a collaborative approach to our border, one that enhances our security and public safety while facilitating the trade and travel that connect our two countries,” said the release today, which outlines key goals:

Develop joint threat and risk assessments to assist the two countries in forming a common understanding of the threats and risks we face.

Advance initiatives that manage risk while facilitating the movement of legitimate goods and people; and enhance our ability to assist one another in times of emergency.

Endeavour to share information relevant to preventing people or goods that threaten our mutual safety and security from entering either nation or from crossing our shared border, consistent with our respective laws, including our privacy laws.

Where our national laws inhibit or prohibit such sharing, we will strive to ensure that our separate systems prevent entry of dangerous people or goods to either country or across the shared border.

Expand integrated law enforcement operations along our shared border and waterways to prevent criminals and/or terrorists from using the border to evade enforcement or to inflict harm on our two countries.

Seek to leverage resources where possible by exploring models for joint or shared border facilities, equipment, and technology, as well as for cross-designation of personnel as appropriate.

Note the “consistent with our respective laws, including our privacy laws” and “Where our national laws inhibit or prohibit such sharing” in there. With Napolitano and Van Loan flirting with reopening pre-clearance talks, that language reminds us that the U.S. pulled out in 2007 over a Canadian reluctance to allow U.S. border officials working on Canadian soil to fingerprint whoever they wanted to.

But more interestingly, the Americans could be more worried about the application of the Charter of Rights and Freedoms to any U.S. agents in Canada. As Luiza Savage writes in Maclean’s this week:

But while the negotiations fell apart over the issue of fingerprinting, the concerns at DHS go deeper. DHS lawyers worried about subjecting U.S. pre-clearance activities on Canadian soil to Canada’s Charter of Rights and Freedoms and unpredictable future judicial interpretations of it. For example, while the pre-clearance negotiations were going on, a B.C. provincial court judge ruled in 2007 that border guards in Canada would require a search warrant before opening a trunk. Although that was overturned, it greatly alarmed U.S. officials about subjecting their personnel to Canadian law. In addition, various lawsuits are under way in U.S. courts seeking to limit the powers of American border agents, and DHS does not want to be seen voluntarily giving up powers in Canada that it is arguing in U.S. courts are essential to its job. Napolitano will have to tackle such thorny issues if pre-clearance is to go ahead.

The Shiprider program, which Napolitano and Van Loan made permanent this week in the Framework Agreement on Integrated Cross-Border Maritime Law Enforcement Operations, and which allows DHS and CBSA officials to operate in each other’s shared waters, also stipulates that “Designated cross-border maritime law enforcement officers shall only enforce the domestic laws of the host country within which they find themselves as directed by a designated cross-border maritime law enforcement officer of the host country.”

However, the agreement pushes the definition of boundary waters to include land pursuits in some cases, raising a whole whack of sovereignty and jursidictional questions that our parliamentarians have not had a chance to discuss.

So while the border may feel like it’s getting “sticky” and thicker for travellers and cargo, it’s becoming increasingly permeable to U.S. and Canadian security agents, as well as personal information and other data flows.