Proceedings of the Standing Senate Committee on
National Security and Defence
Issue 11 - Evidence - Meeting of February 14, 2011
OTTAWA, Monday, February 14, 2011
The Standing Senate Committee on National Security and Defence, to which was referred Bill S-13, An Act to implement 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, met this day at 4 p.m. to give consideration to the bill.
Senator Pamela Wallin (Chair) in the chair.
[English]
The Chair: Ladies and gentlemen, welcome to this meeting of the Standing Senate Committee on National Security and Defence. Today we are again considering a Bill S-13, An Act to implement the Framework Agreement on Integrated Cross-Border Maritime Law Enforcement Operations, better known as Shiprider, which is how we were referring to it last week. This was a couple of pilot projects on waterways where Canada and the U.S. share a water border, where our police and law enforcement officials work together to deal with the criminal element.
Under this treaty, the delegate of the Commissioner of the Royal Canadian Mounted Police is the central authority for Canada, with authority to appoint cross-border maritime law enforcement officers, and is responsible for directing and managing these operations on the Canadian side. As you heard last week, Canadian law operates when we are in Canada, and American law is in force if the criminal activity is taking place on the other side of the border in a lake or river.
We have with us two key witnesses today. First is Royal Canadian Mounted Police Deputy Commissioner of Federal Policing Bob Paulson. He has a very long history, consisting of seven years in the Armed Forces. He then went to work with the Major and Organized Crime Intelligence Branch before moving into this Federal Policing area, which is responsible for just about everything as far as I can tell. Federal Policing looks after everything from visiting dignitaries to border integrity, drugs, organized crime, financial crime, international policing and the conduct of national security criminal investigations activity relating to terrorism.
We also have with us RCMP Chief Superintendent Joseph Oliver, Director General of Border Integrity, Federal & International Operations. He has been with the Royal Canadian Mounted Police since 1986, and he co-chaired the Canada-United States Cross-Border Crime Forum's Border Enforcement Group, which I think is the genesis of this discussion between our two countries.
We are here with many questions. We know the Royal Canadian Mounted Police has done an assessment of the trial runs with the Shiprider program, and we are looking forward to some opening statements.
Bob Paulson, Deputy Commissioner, Federal Policing, Royal Canadian Mounted Police: Thank you. Unfortunately, I do not have an opening statement. I wanted to keep things brief. I will be happy to take your questions. I have read some of the testimony you have already heard.
The Chair: That is wonderful; we will get right into it. Maybe you could just give us the history of this. Shiprider started in 2005 under a previous government. There has been general agreement on this. Please give us a little bit of the history of where this idea came from.
Mr. Paulson: The idea preceded 2005. We first began to put it to work and put it to the test a little bit in 2005. The idea stems from one challenge in cross-border law enforcement and policing, which is the recognition that the border sometimes represents an arbitrary fence at which one law enforcement agency from one country has to stop when pursuing or investigating.
This program was therefore a practical solution born out of necessity. It then began to get traction with both law enforcement and the Coast Guard. It was born out of the Coast Guard's experiences, and perhaps from elsewhere in the world. As we began to implement the program, we began to see success. However, we also began to understand the challenges of respecting all of the considerations that go in behind border enforcement and investigations.
We conducted two evaluations of the program, in 2007 and again more recently. Admittedly, the first study identified some areas we needed to improve as well as considerations we had not completely factored into the program. However, ultimately the program has evolved to the stage we are at today. We have tried it very successfully on several occasions and produced the kinds of results that we expected to see. It has built a bit of a reputation as a solution for some of the challenges that surround the border.
The Chair: We will go to questions, beginning with the deputy chair.
[Translation]
Senator Dallaire: Mr. Paulson, where are you from?
Mr. Paulson: I am from Lachute, Quebec.
Senator Dallaire: I would like to address two topics. The first is the threat that is said to require a bill of this magnitude. The second is our ability to face the threat. Though we have not heard the Americans' point of view, they give us the impression that they have everything under the sky, that there is nothing beyond their reach and that, as Canadians, we are just going to take advantage of all that.
Let us go back to the threat. In terms of the study or the trial that was conducted, and the evolution of the threat as seemingly described by some people, is the extent of the threat so great that we have to increase our operations and integrate our other relations with the United States? Or are we telling ourselves that we too should perhaps come up with something, because the Americans have so many resources and are inventing so many things themselves?
Mr. Paulson: There are a number of questions there, senator. I will start with the threat, which means two things: national security and organized crime. That threat is neither from the United States nor from Canada. It comes from both sides and from the world in general. I apologize, but I am going to continue in my mother tongue.
[English]
The threat as I have described it — in two general balls of threat — can be understood as national security-based threats that come from both countries into each other's country and from the world in general. However, the lion's share of the manifesting of the threat is the organized crime threat, the transborder shipment of contraband and all the things associated with organized crime, such as drugs, predominantly; weapons; tobacco; et cetera.
Organized crime is a fascinating feature of humanity in that the commodity they trade in does not necessarily have to be illicit. The advantage that they extract from any commodity through behaviours typically associated with organized crime — such as violence — give them the edge against legitimate commerce.
I think that is how I would describe the threat. We continually update our threat assessments. The most recent one identified national security, broadly understood as a threat, as well as organized crime.
Senator Dallaire: Have you increased your intelligence-based policing capability by significantly increasing in that area under this trial your actual gathering of intelligence, collating it and then ultimately disseminating it to the Americans? We will get to the Americans in a moment, but has our side actually worked on the integration, collation and dissemination in a significant way under this trial, or was it more or less how we used to do things, but now we talk more closely with the U.S.?
Mr. Paulson: Perhaps I could take your question apart a little and go back to the beginning around intelligence-led policing. Intelligence-led policing is not simply built upon the exchange of raw information and intelligence, although I will get to that in a second. The short answer to your question is yes, we have intensified our information sharing and our ability to analyze and react to that information and intelligence in these trials.
However, I think the bigger success is integrating the decision making and the analysis of the information by being able to deploy Shiprider or the rest of our border enforcement resources towards areas that give us the biggest bang for our buck. There are a number of ways I could illustrate that.
I think the spirit of your question centered on information exchange. Therefore, the answer is, yes, we have heightened and intensified. We have several centres where the Integrated Border Enforcement Teams, IBETs, gather information, produce intelligence and direct these scarce resources to the areas that give us the biggest result.
Senator Dallaire: There has been no demonstration by your American colleagues in the trial — let alone what we are projecting into the future — that in order to protect their sources they have excluded you from fully divulging intelligence subject matter, particularly on the national security side, because that seems to be a dominant theme of why we want to go this route.
Mr. Paulson: I might disagree with that, senator. I formerly was in charge of the national security program in Canada. We had a very post-Arar, structured, precise means of exchanging information that was and has been very effective. As the deputy commissioner for federal policing and having national security there, having border integrity in another area, I oversee daily meetings among my direct reports that ensure that information exchange in respect of national security matters is done to the extent that it crosses into areas where we could advance our organized crime investigations.
Admittedly, I think practitioners or service delivery level folks — the front-line officers — probably are not getting the most restrictive and high-level intelligence. However, we make a point of ensuring we are reducing that and distilling that down to actionable intelligence when we do deployments or need to leverage those resources.
Joseph Oliver, Chief Superintendent, Director General, Border Integrity, Federal & International Operations, Royal Canadian Mounted Police: During the deployment of the operations, which you were specifically speaking to, we tried to leverage all existing assets in order to provide the best available information to deploy the operations.
In the case of the pilots in the Cornwall area, the existing IBET intelligence group provided daily briefings on was what actually going on — what the surveillance technology was indicating, what ongoing criminal investigations were indicating and what intelligence had been gathered through the observations of the Shiprider itself. That was built in and fed back to the operators every day.
In the case of the G20 Shiprider, a joint operations post was co-located with the Marine Security Operations Centre, MSOC, in Niagara. In addition to having access to the five core partners who form part of MSOC, in the joint operations centre they had the U.S. Border Patrol, the Canada Border Services Agency, CBSA, and the U.S. Coast Guard, who had access to their data systems. When there was enforcement action under way, concurrently everyone would check their data systems to see if anything of interest popped up and to help guide the operations day to day.
The Chair: You are saying there is no problem with the exchange of information; that is done and there is a fairly free flow, is that correct?
Mr. Paulson: Yes. I will put a caveat on that and say that there is a free flow of tactical information and intelligence, but we are careful. There are not many problems, but I do not think I could say we do not have any problems. It is the nature of the beast in the intelligence world regarding information. Another dimension of this initiative is one where our working together, forming personal trusting relationships, engenders more information sharing.
The Chair: I think it is just that image. If the Americans and Canadians are on the boat —
Mr. Paulson: You have to talk about something.
The Chair: Yes. Someone says that is a bad guy, but do not worry about why. Presumably you are giving each other that.
Mr. Paulson: That is right.
Senator Lang: I appreciate your coming here this afternoon, to give us information relating to the proposed legislation.
I want to go back to Senator Dallaire; perhaps we could expound a bit further on the need for this bill to pass so that you can carry on with your day-to-day responsibilities and be able to carry them out better than in the past.
You said this all began in 2004, so we are dealing with previous governments. My understanding is that at that time all political parties in the house supported this endeavour, recognizing the problems that were related to the St. Lawrence and also British Columbia.
I think the public deserves to know the extent of the problem out there. I was surprised when I read there are 40 criminal organizations in the St. Lawrence area and an estimated 140 criminal organizations in British Columbia.
When we talk about those organizations, perhaps you can describe who they are, what they are and what kind of numbers are involved. Is this a couple of thousand people who have full-time jobs in criminal activities that affect the peace and security of Canadians?
Mr. Paulson: It is helpful to remember that for the purposes of the threat assessment and those statistics, criminal organizations should be understood as the legal definition that is available in the Criminal Code, which is three or more people who have as one of their primary activities the commission of serious criminal offences where material benefits accrue back to the group or to the individuals.
I recognize that is a bit of a legal term. However, it is absolutely true there are full-time, day in day out criminal groups that do nothing but try to figure out innovative ways to make a dollar and gain advantage the easy way. That is essentially what organized criminal groups do.
In the threat assessments I read in anticipation of my testimony here today, I think we estimated in the area of 130 or 140 criminal groups on the Canadian side that are active in the border, doing all sorts of criminal offences.
It is a significant number, but it should be remembered that we have quite a few criminal organizations in Canada more broadly that are engaged in criminal activities that we are chasing. When you ask who they are, sometimes when we throw out those kinds of numbers, I think people get very concerned, as they should, but it should not be understood as the Hells Angels 140 times over.
These are people who do nothing but run the border day in and day out, maybe with marijuana south and cocaine north or guns north; that is all they do in life. When there is a group of them putting that effort into it — that amount of planning, that amount of counter surveillance, that amount of thought into avoiding us — it is a serious statistic.
Senator Lang: I think the importance of this bill and how it will help with our peace and security as Canadians has to be brought home. I have two areas I would like you to expound on.
We have used the statistic of 140 criminal organizations for the St. Lawrence and the Great Lakes.
Mr. Paulson: I meant more broadly across Canada.
Senator Lang: Sorry, that was B.C. and Canada, and then there were 40 criminal organizations. You said specifically that is on the Canadian side, so do I take it there are that many more on the American side working in conjunction perhaps with these Canadian organizations?
Second, in view of the fact that we have run two or three different programs already to see how this working relationship would come together, perhaps you could tell us and expand on how it has been received by people living along those borders. Have you been welcomed by them, and do they feel their peace and security has been increased because there is a working relationship?
Mr. Paulson: First, I should be careful around the numbers of 140 groups on this side of the border. As I read the threat assessment, it was criminal groups that are exploiting the border. Therefore, I may have misspoken there, but it is still a significant number.
Senator Lang: It certainly woke me up when I was reading the background paper.
Mr. Paulson: I know the Shiprider program has been very well received by the communities. I will invite Mr. Oliver to speak more about that because he is more familiar with it.
I can talk about a special focused program we are doing now in Lacolle, Quebec, although it is not analogous with Shiprider. I know that the community is tremendously excited by the success we are having there as we focus on the border issue.
Mr. Oliver: The reception the Shiprider program has received has in some cases been mixed. I was one of the primary interlocutors with the Akwesasne community when Shiprider was deployed in 2007, and they had some reservations regarding how the operation was rolled out. They recognized the benefits that an operation could bring, but there was concern about consultation and the engagement of their community early in the process. In other areas where we encountered the regular voting community, some were surprised we had not been doing this longer and that we were just doing it now.
For the most part, public reaction has been positive, although there have been experiences where people are dealing with law enforcement. It is not always a pleasant encounter when dealing with the police, but for the most part, it has been well received.
Senator Lang: Further on Akwesasne, the background paper notes that concerns were expressed in 2007. Assuming that this bill passes and this becomes an ongoing responsibility for you, what steps will you take to ensure that the Akwesasne community is involved and that you meet your responsibilities?
Mr. Oliver: There is a commitment that, if we receive the support to deploy this program, we will engage the Akwesasne community in rolling it out. In fact, even prior to 2007, I met with the community, and they flagged a number of concerns. Before Shiprider was deployed we put in place mitigation strategies that included providing cultural training to the officers deployed, both Canadian and American, and boating safety awareness for the communities. We offered that type of training. We agreed there would be an awareness period where there would be no charges for boating violations; it would be more about awareness and the sensitization of boating traffic within the communities.
Therefore, we took a number of steps. We also provided weekly reporting to talk about the operational tempo and how much time was spent in and around the Akwesasne community. Dialogue took place. While we recognize that there could have been more consultation at the outset, there was ongoing consultation throughout the process.
The Chair: On the flip side of that, you said in the 2000 impact evaluation report that Akwesasne represents a hole in the international border through which people and goods travel virtually at will. Is that still the case?
Mr. Paulson: Yes, it certainly is part of the threat and part of the vulnerability of the transmission of contraband and so on.
Senator Plett: Senator Lang in his supplementary and the chair in her question asked what I wanted to ask. I will be a little more explicit, because the impact evaluation is quite explicit when it talks about, as the chair said, travelling virtually at will. I want to read a little more from the report:
Criminals operations exploit this fact to ply a lucrative trade in cigarettes, drugs, weapons, illegal migrants and other contraband. The vessels transiting the waters are specially designed and outfitted to travel fast and at night. Several of these vessels were in plain sight in the community as the evaluation team toured the area. As noted earlier in this report, a recent threat assessment indicated that there are over forty (40) criminal organizations in operation in and around this region.
We will have some people from the Akwesasne area here later this evening, and I will, I hope, be able to ask them the same question. I believe that when the government rolls out a program like this, the people most capable of administering this program are the RCMP. I think that is generally what is supposed to be done. We had people here from the Ontario Provincial Police, OPP, last week and some other city police organizations, and they seem to agree with that, although they were also saying they hoped to be included because they think they have something to offer. I am sure people here in the Akwesasne area do as well.
There was some work done with the Mohawk police in the Cornwall area. What would be the plan to get these people on board? From the report here, they are clearly not supportive. One of the largest areas in contraband is coming through that area. How do you plan on working with them to curb that?
Mr. Paulson: One the strengths of the RCMP is a rich history of community policing. We try to persuade communities that we are sincerely interested in reducing the negative effects of crime. That is all we can do in terms of trying to get communities to come on board. Our experience has been that when we are frank, honest and open, we generally have success with those people that share that desired outcome. Not all folks share that desired outcome. Criminals are not particularly interested in being persuaded to stop being criminals.
We have a delicate balance to respect communities' needs and issues. Some of the opposition to these things is probably born from things outside of the discussion around crime, crime reduction and crime interdiction. However, more broadly across the border where we get an opportunity to implement this, we will be mindful of the need to ensure that the folks in the local communities understand what is happening. It can be a little destabilizing for people, understandably, to see a Mountie doing enforcement on the U.S. side where they are not expecting that. Similarly, people's sensibilities can sometimes be put off if they do not know in advance what we are doing. That is not to say where we will be, what time and with what horsepower; it is a balance. It is a challenge, and that is before us. I tell you that we will be earnest in engaging those communities and talking with them, which we already have, and Mr. Oliver can expand on that.
Mr. Oliver: We will also leverage the existing partnerships we have in the region. In addition to the Cornwall Community Police Service and the OPP, we have the New York State Police, the U.S. law enforcement agency. They all form part of the IBET, as do the Akwesasne Mohawk Police Service and the St. Regis tribal police.
Essentially, they are one of the core partners of IBET in that region. In addition, there is the Joint Investigative Team that is funded through Public Safety Canada. There are police officers seconded to it, and that team is led by the Akwesasne Mohawk Police Service, so there are partnerships under way in the policing community today.
We are looking at training additional Shipriders coming this spring, and the intention of both the U.S. Coast Guard and the RCMP is to invite the tribal police to form part of that training so that they are prepared to receive designation, should they so desire, when and if the bill receives support.
Senator Plett: One would believe that you are the senior player here and that every organization would be working under the umbrella of the RCMP. In your estimation, who should marine law enforcement be handed to?
Mr. Paulson: The central authority for the proposed legislation is the Commissioner of the Royal Canadian Mounted Police, and the commissioner's ability to designate people will flow from that. I would hate to characterize ourselves as the master force, as it were, because we are dependent on partnerships. However, we will be the primary agency by virtue of that central authority.
Senator Plett: In your opinion, do we cede any sovereignty, given that equipment-wise we are definitely the junior partner in this game?
Mr. Paulson: No.
Senator Harb: Thank you for your presentation and for the report you have prepared. It is comprehensive, but I have a question on the report.
The OPP and the Windsor police have indicated that they have challenges when it comes to communications across the border. Can you tell us whether you have the same challenges when it comes to exchanging information in a secure fashion?
This might sound a little out of line, but what happens when the water is frozen? As a Shiprider, one presumes that you jump on the ship and you chase the bad guys. Do you have any protocol if the water is frozen? How do you handle that?
With your permission, Madam Chair, it might be a good idea to tell us about the BEST program, which is the Border Enforcement Security Task Force.
If you have time, your Finding 10 in the evaluation report is extremely telling: "Current RCMP marine resources are inadequate to sustain a credible on-water presence." You make a strong recommendation to have a Shiprider unit on an ongoing basis.
The Chair: We did touch last week on some of these issues with respect to BEST. If it is ice, if it is frozen, Shiprider is no longer responsible. Please provide the mini version answers to those questions.
Mr. Paulson: On the question of secure communications, I received a briefing earlier this morning on our ability to have advanced a solution to that. It is typically innovative and Canadian in its inception. We have a solution to that.
It still goes that day to day it is a challenge to communicate sometimes between police forces, but we have anticipated that, and I am satisfied with the technical solution to that. In fact, in the near term, we will be able to communicate from one side of the country to the other side, across the border and anywhere in between.
I do not know that I can help you much with the ice. I would like to think if there is ice out there, we are not putting the boats in.
Mr. Oliver may talk about the BEST, which is the American border enforcement approach.
Last, on the issue of resources, the study is done towards the ideal condition. One of the benefits of the Shiprider program is to be able to leverage our resources. Everywhere we will go, we will have at least one more officer on there; we will have access to the other country's resources, and they will have access to ours. It is one significant way of improving that.
Mr. Oliver: With respect to ice, it depends on the strength of the ice. When we looked at Super Bowl XL back in 2006, we actually planned ice operations. It was a period when we thought the ice would not be completely frozen. The U.S. Coast Guard has ice boats, or fan boats, that can skim across water and ice at the same time. We had all of our officers trained in cold-water rescue and so forth. We have that capability depending on the thickness of the ice. We had planned for cold-water Shiprider operations as part of the enhanced security for Super Bowl XL.
If the ice is thick enough to drive a truck or snowmobile across, I do not think the Shiprider concept applies.
The BEST teams are an initiative of the U.S. Immigration and Customs Enforcement. These teams are cross-designated on the U.S. side of the border. They are located in Buffalo, Detroit and Blaine. We have Canadian officers participating in the liaison capacity with those teams. It is essentially a task force on the U.S. side of the border that targets criminality that happens along the Canada-U.S. border.
We have similar task forces in Canada, such as the Combined Forces Special Enforcement Unit, so it is not unusual. What is unique is that they offer foreign officers cross-border designation. It does not go to the same extent the Shiprider operation would, where there is complete reciprocity and where the officers have total cross-designation in both countries with the ability to move back and forth across the border.
Senator Mitchell: It goes without saying, I suppose, but the Brown task force made the point that the RCMP should not assume new responsibilities without first ensuring that it has the wherewithal to do so, talking about money. There was no incremental money in the Shiprider pilot projects. Do you have a specific incremental budget for this program now?
Mr. Paulson: No. However, we do have the IBETs. One of the challenges for us, for everyone these days, is to try not to get invested in how we have done things in the past all the time. I think there is an opportunity for us to be able to use the resources that we have right now in respect of IBETs and other special task forces, as Mr. Oliver referred to them, and use them. The short answer to your question is no.
Senator Mitchell: You have obviously budgeted because you have to get the money from the IBETs or from somewhere else. How much money is this program costing, no matter where it comes from? Surely you have a specific budget for it.
Mr. Paulson: Broadly, in its completeness, the Border Integrity program right now is about a $200-million operation. I think I can go through the numbers here to get down to what the IBETs are. Mr. Oliver would probably know that off the top of his head.
It depends on what your outcome is. If you want the old crime prevention challenge, it would be officers standing shoulder to shoulder downtown. We do not have that. We have scalable options going from intelligence-led deployments of these people to standing shoulder to shoulder or perhaps boating shoulder to shoulder.
My preference, indeed my direction, is to have an intelligent deployment of the available resources, and if there are more resources, we will deploy those intelligently. They will go to areas where we are likely to get the biggest bang for the buck in terms of successful outcomes, the nature of the threat and danger to the public.
Senator Mitchell: I would like a figure. That was a very cagey answer.
Is there a single individual at your level, a senior officer or a group that is responsible for the Shiprider program? If so, when they sit down at the beginning of the year and ask about the budget requirements, what would that be? Would it be $10 million or $20 million?
Mr. Paulson: I will ask Mr. Oliver to give you the IBET number because we do not have a Shiprider program right now. We have had a couple of trials and a number of studies. We have spent a bunch of money we found from within in order to make these things work. We do not have a Shiprider program. We are hoping to.
The Chair: You cannot account for the American dollars?
Mr. Paulson: Right. Mr. Oliver may speak to how much IBETs are spending.
Mr. Oliver: The IBET program is about a $25-million program with 150 or so resources. In addition to doing the interdiction-style work, IBETs actually conduct complex criminal investigations as well. They will target human trafficking or human smuggling organizations.
It becomes a question of prioritizing the resources we have. Based on intelligence, will I get the biggest bang for the buck here? Can I use a tool like Shiprider to actually move a criminal organization into a choke point where we have better capacity either to observe their activities or to actually interdict them safely?
Shiprider will give us an additional tool in the toolbox that we can leverage, even with our existing resources, and get a better bang for the buck.
Senator Mitchell: Thank you. You mentioned this covers two areas, organized crime and national security. I would think many people read "terrorism." Although they were small samples of time, your pilot projects did have some success with cigarette, drug and I think even people smuggling. There was no evidence of terrorist plots.
Do you have some sense of what the terrorist threat is compared to the criminal threat? Have you considered that under some circumstances you might need to bring in the military? Do you have protocols for that? Have they been involved in this at all?
Mr. Paulson: Not in that sense. When we refer to the national security threat along the border, it is not a manifest or identifiable threat. When I worked national security, we chased plots. We knew which humans were involved in those plots, where they were moving and when they might go to the border. Then we would access the Border Integrity program to assist us.
We should keep in mind that having a credible, effective and persuasive deterrent at the border — that is, being able to pursue people who cross it, sustain the investigation and then conclude it — is one way of addressing the threat, because rightly or wrongly, the border is seen as a porous border through which the threat of terrorism could be advanced against one country or the other.
Senator Mitchell: I have one final point. This program is important; there is no doubt about it, and you certainly have conveyed that. However, if it is this important, it is difficult to understand why there is no new net money dedicated to it that would allow you to do this job really well. It seems to me you can drop something, but then how important was what you dropped for the last 20 years?
Mr. Paulson: That is fair. In fairness, however, the legislative framework to conduct this operation continually does not exist yet. There is a lot of money in that Border Integrity program — $200 million a year is quite a big operation. It is not to be understood that we are not patrolling our waterways or being effective. We can be better with this program.
The Chair: We will have some Justice Department officials here. Everyone knows money flows from legislation, and that is what is on the table. What you had were some experimental programs.
Did you have a follow-up question, Senator Lang?
Senator Lang: This is for Senator Mitchell. According to the background documents I read, over $1 billion has been committed by the taxpayers of Canada over the last 10 years to this particular area of concern on our border. The amount of money that we are putting in there day by day is pretty significant already.
Senator Day: I wonder whether the comment by Senator Lang includes the cooperation between the navy and the Coast Guard, which is different from what we are talking about here. However, it is also an ongoing border issue, especially deep-sea cooperation, which is another area.
We agree that this proposed legislation does not deal with that situation. This is primarily RCMP and Coast Guard in border waters.
Mr. Paulson: Primary law enforcement or peace officers.
Senator Day: Breaking the law would also include anti-terrorism situations from time to time.
Mr. Paulson: Very much so.
Senator Day: Let us start here. This bill is intended to implement a framework agreement that was signed a couple of years ago between Canada and the United States, which outlines generally how this type of program will work. Presumably, as the major Canadian player in this, has the RCMP been following this throughout?
Mr. Paulson: Yes.
Senator Day: A bill was started to implement that framework agreement, but it died, and now it has started again in the Senate. Implementing the framework agreement is what we are dealing with here.
Are there any portions of this bill that you would like to see changed, or does this generally implement your understanding of the agreement?
Mr. Paulson: Yes, it does. I have reviewed it a couple of times. I am just a simple country cop, but I read it as a pretty simple piece of legislation that talks about the authority to designate and cross-designate, with all due respect for our sovereignty, our Charter and people's rights. It is a straightforward piece of work.
Senator Day: I want to clarify a couple of points. First, there must be a joint crew on the vessel before a vessel can get involved in what is provided for in this bill; is that not correct?
Mr. Paulson: Yes, that is absolutely right. For example, we depart Canadian waters. We have a U.S. Coast Guard officer on board with us. We start an investigation in Canadian waters. Bad guys head into the American waters. We are in charge of the investigation up until the time we get to the border. We do a little switch in terms of who is in charge, and the authorities the Coast Guard are able to execute in the United States are led by them. We have those authorities with them and we can assist them.
Senator Day: That little switch could be interesting. Have you worked out the details? If this is a Canadian vessel, for example, would the captain hand over authority to the U.S. officer, or would the captain still be a Canadian captain on that vessel? How would you have the command and control working here?
Mr. Paulson: I do not know that it necessarily goes to the crew of the ship so much as it does to the decision-making power, the authority being exercised and the execution of the powers of the customs officer in the United States or a peace officer in Canada. It follows under that direction. The investigation and the execution of the authorities would fall under that.
Senator Day: This might be semantics. I will get to the chief superintendent shortly. However, the deputy commissioner said it might not go to crew, but clause 2 says "a vessel crewed jointly."
Mr. Paulson: I apologize, senator. I meant the command. Crewed jointly, but I do not think we have gone down to who is steering and who is working the engine. It would be crewed jointly. I do not mean any disrespect, by the way. In terms of the transference of that authority, it does not go to the operation of the vessel as much as it does to the execution of the police powers.
Senator Day: That is the issue I was trying to get to. Sorry, chief superintendent, I wanted to get to the term "crewed."
Mr. Oliver: The critical factor is location. When an operation takes place in the U.S., a U.S. officer leads. You might have an RCMP vessel being piloted by an RCMP officer, because that is our standard equipment, but the engagement of the boarding would be led by the U.S. officer. The converse would be true when in Canada.
In fact, we have had an operational example where a U.S. Coast Guard observes a vessel leaving U.S. territory. It appears to be carrying contraband. They follow it into Canada and the vessel is then boarded, but it is boarded by the RCMP officer, who is on the Coast Guard vessel with U.S. Coast Guard as backup. When they provide backup, they are providing backup as a peace officer in Canada. Conversely, when we are in U.S. waters, we are providing backup as customs officers in the U.S.
Senator Day: Thank you. That is helpful. You have already had the experience with this, so you can convey that to us.
Just to make it very clear, if a U.S. officer has been designated as an officer to operate within the meaning of this act, the only time he or she could exercise that authority would be in a jointly crewed vessel, either American or Canadian; is that correct?
Mr. Oliver: As I understand the law, that is correct. That is how we operationalize it today.
Senator Day: Yes. The other point I hoped you might be able to give me some clarification on is that the bill talks about in undisputed areas of the sea or internal waters along the international boundary.
We have been talking a lot about international waters. The undisputed areas of the sea would be near Vancouver, between British Columbia and Washington State, out at sea, and then back in my part of the country, from the St. Croix River down to Maine and New Brunswick and out into the sea there.
How far out into the sea do you anticipate that authority to extend, because you are getting authority to go out into the sea? How far do you anticipate that you would be operating in those areas under this?
Mr. Oliver: The operational tempo depends on the location. However, I think the concern with the disputed areas becomes difficult when it comes to executing law enforcement powers when you do not know which country should be lead. I think that is why the framework agreement excludes those areas.
In the case of Machias Seal Island in the Bay of Fundy or along the strait in British Columbia near Washington, nothing prevents that. The legislation would be applicable. Even if the Shiprider capability was deployed in the Arctic — you still have disputed territories up there — there is the capability, which is unrestricted by the proposed legislation, that could even be deployed in the Arctic for operations at some point in the future.
Senator Day: As parliamentarians, we are being asked to approve the authority to operate in undisputed areas of the sea, as well as in all internal boundary waters.
What are your plans? Assuming that we decide to pass this, and then the House of Commons does likewise, what are your plans over the next five years in terms of dedication of vessels and personnel to do this on all of the undisputed sea waters between Canada and the U.S. and the internal boundary waters?
Mr. Paulson: If we get to the point where this bill is passed, we will begin to plan our deployments of our existing officers, in conjunction with the U.S. Coast Guard. We will also begin to participate in the annual efforts to compete for resources to build that capacity to a level that I think everyone recognizes is probably the most efficient use of resources.
Senator Day: Do you have any tentative plans for what assets you might be applying to this initiative?
Mr. Oliver: Over the past couple of years, we have enhanced our maritime capability here. We have acquired a number of dedicated Shiprider vessels. Overall, the RCMP has about 429 small watercraft, but those are used for both community policing and federal policing.
Specific to Shiprider, we are moving to a standard model, so that a Shiprider crew that may have operated in the Great Lakes and then goes to the West Coast will be on the same type of vessel. This is a familiarization. The U.S. Coast Guard has adopted that model as well. Our crews will understand that. We have four standard Shiprider vessels, three currently on the West Coast and one on the East Coast. We are developing that.
The Chair: Senator Day, we have to move on.
Senator Day: For now, but my question was once this bill is passed, what are you anticipating? How many more will you need to do the job we are giving you here?
Mr. Paulson: It depends on how much money we have, senator.
Senator Day: I am asking how many ships you need.
Senator Lang: I want to follow up on the question of the agreement, which Senator Day was pursuing. This is not the first such model that has been put into existence. Looking through the background document, my understanding is that the U.S. Coast Guard has long-standing agreements with some of the Caribbean countries. Do you have any knowledge of how well they have worked? Perhaps you could expound on that, if you have that information.
Mr. Paulson: I have a rudimentary understanding of that program. It is a little different from ours in that we have full reciprocity in our agreement. It is more U.S. focused in the Caribbean. I understand that it has worked very well.
Senator Plett: As we have said many times, this is an agreement that was brought forward by the previous government. I, along with my friends opposite, find it strange that they brought forward such good legislation. That is, of course, why they need to be on this for the length of time they are.
Do you believe that between Canada and the United States we have adequate equipment to carry out this program?
Mr. Paulson: That is a tough question, senator. When we have applied it in the limited areas where we have applied it, we have had the equipment to do it. We would not send our men and women into an operational deployment without the right equipment.
Senator Dallaire: I am finding the responses obtuse to the requirement to meet the objective. If we were going to deploy into a new area and significantly deploy military forces and needed legislation to do that, you can bet that the requirement of four or five battalions and $5 billion worth of equipment would be announced and indicated.
If you are going to increase this capability — which is the aim of the exercise, because it is not meeting it right now; you have a trial — surely there is a call for requirements of person-years, of operations and maintenance, of capital equipment to achieve this.
We heard the answer last week that it will be a win-win because the Americans have so much stuff. When we have the Americans with so much stuff, who will be running the show? It will be the guy who has all the stuff.
Are you going to get that equipment? Do you have a PY, an equipment plan, an implementation plan for this proposed legislation?
Mr. Paulson: My understanding of this bill is that it is to give us the authority to embark on a joint deployment of officers to take advantage of the authorities in the United States and the authorities in Canada. It is not put forward as a program for additional resources.
I want more resources. If I can get more resources, I will try to get more resources. I do not want you to think I am playing cutesy around the resource issue, but this is simply an authority type of legislation.
[Translation]
Senator Boisvenu: I would like to stay away from politics as much as possible and talk about police operations. I am very interested in that topic. For starters, thank you for your presentation and your expertise. I worked for 20 years in the public safety sector for the Quebec government, so I had a chance to work with many police forces.
Are you familiar with the joint police operations in Quebec, between the RCMP, the Montreal police, the Sûreté du Québec, especially in the dismantling of the major drug networks in 2000 and 2005?
Mr. Paulson: I think so. I used to work with my partners in Quebec on organized crime investigations, bikers in that case. I was working in British Columbia then and my partners from Quebec were working on the bikers in Montreal. I worked with the Sûreté du Québec and the Montreal police force.
Senator Boisvenu: You must have surely worked with the United States and the FBI, especially on drug trafficking issues and since the American and Canadian mafias had very close ties.
Mr. Paulson: Yes.
Senator Boisvenu: By integrating the command and the investigative tools, and by having a joint training program — I remember that, at the time, there were joint training programs on both sides of the border—what role did this type of operational integration play in the internationally renowned success of those operations?
[English]
Mr. Paulson: The most important component is that you have all of the law enforcement resources brought together under a single sort of seamless leadership program, so that the mission is getting the bad guys and not getting credit for getting the bad guys.
I was about to explain to you the lead that we took from Sûreté du Québec and the Montreal police service when they got together with our resources from the RCMP, but primarily led in Quebec by the Sûreté du Québec, when they went after Opération printemps. It was a masterful illustration of how you can achieve tremendous results with the support of the community and the judiciary and everyone else, led properly in an integrated fashion, where people are not interested in self-serving outcomes but rather in the broader outcome.
[Translation]
Senator Boisvenu: All the experts say that the globalization of trade and trade activities has lead to the globalization of criminality.
Mr. Paulson: Yes, that has already happened.
Senator Boisvenu: The bill before us takes things a step further by integrating the Canadian police forces. This wouldn't be just between the provinces, but it would also be with our neighbours to the south.
In your view, is the globalization of police forces in terms of the fight against crime an inevitable step in the future?
Mr. Paulson: Yes, I think that is true.
[English]
It is a way of demonstrating step by step that we have regard for everyone's interest. Sometimes it appears slow, but we have a great opportunity to be able to demonstrate to Canadians that we have considered all these factors and will continue to respect our sovereignty and our Canadian Charter of Rights and Freedoms, but we will be better at catching the crooks who are interfering with proper commerce, with their safety and their security.
The Chair: I thank you very much for your time and your answers today, RCMP Deputy Commissioner Paulson and Chief Superintendent Oliver.
We will continue our look at Bill S-13 with our next panel. There were many questions last week, even some arising in our earlier session tonight, and we are very grateful that our next witnesses have agreed to be here to help explain some of the questions people might have. With us from Justice Canada are Michael Zigayer, Senior Counsel, Criminal Law Policy Section, and Jacqueline Palumbo, Senior Counsel and Team leader, International Assistance Group. Also with us is Sophie Beecher, Counsel, Public Safety Canada Legal Services.
Michael Zigayer, Senior Counsel, Criminal Law Policy Section, Department of Justice Canada: We are pleased to be here to assist you in your consideration of Bill S-13. As one of the previous witnesses said, this bill is all about creating a legal framework under which these special law enforcement operations can take place.
I have provided the clerk with a number of documents, one of them being a timeline showing that we started back in 2004. I have also supplied a number of photographs that show you the types of vessels that were used in previous Shiprider operations.
Last week you heard from the Minister of Public Safety about the challenges facing both American and Canadian law enforcement officials charged with policing the border, the maritime border in particular.
It is important to appreciate from the outset that the Shiprider concept as we have developed it, the Canadian and U.S. Shiprider concept, is a marked departure from the traditional approach to law enforcement at the border. What makes it unique is that both Canada and the United States have agreed to authorize specially trained and appointed law enforcement officers from both countries to enforce their domestic laws in their domestic waters. To put that a little more clearly, American officers working with their Canadian counterparts will be empowered to enforce Canadian law in Canadian waters, and Canadian officers working with their American counterparts will be empowered to enforce American law in American waters. American law will not be enforced in Canada.
You have heard about intelligence-led policing, both last week and again this week. This program is one in which patrols will be deployed in an effort to deter and prevent the illegal entry of persons and contraband into both countries.
The involvement of the Department of Justice began in 2004, and we have been involved in identifying and resolving the many legal issues that arise, as you might expect, in such an endeavour. Regarding the key elements of the proposed legislation, I would point to the statement of purpose and principles. I would talk also about the granting of enforcement authorities; that is crucial. Civilian oversight of all the Shipriders engaged in Shiprider operations has been included. There are special provisions with regard to information sharing, and there are provisions for cooperation in judicial and other proceedings.
Regarding the issue of sovereignty, there was a question earlier this afternoon about whether we were ceding sovereignty in any way. I would suggest, respectfully, that we are actually enhancing Canadian sovereignty by putting more Canadian law enforcement officers in these shared waters. When you designate an American Coast Guard officer or the New York State Police or any of the American partners on the other side, you designate him or her as a Canadian peace officer. You have increased the number of Canadian officers patrolling. I would argue that we have enhanced Canadian sovereignty by enhancing the protection of Canada.
Second, I am glad we have finally — I think — killed the issue of ice.
The Chair: I hope so. We keep asking it.
Mr. Zigayer: When we proceeded to negotiate the agreement, no consideration was given to operating when the water became hard. The question was raised last week, and it is not a stupid one at all. As was discussed last week, the issue of those places where there is not water is a job for another day.
The bill before you is designed to implement a specific treaty between ourselves and the Americans.
Finally, with regard to who is in control of the boat or the vessel, it really does not matter whether it is an American Coast Guard, an RCMP or an OPP vessel, and it does not matter who is driving it; it is a matter of who is in control of what they do. When in Canadian waters, it will always be a Canadian officer; and whether that is RCMP, OPP or Windsor police does not matter. As soon as they cross into American territory, then it automatically transfers to whoever is in charge from the U.S. side.
Central in all of this is having a good GPS because you need to know where you are if you want to enforce the laws under this agreement. With that, my colleagues and I would welcome questions.
The Chair: Thank you. I think the question of going back and forth across the border has been a tiny point that everyone has been focused on. Our other sense is that the cooperation between these folks who work together seems to indicate that that has never been a problem; no example has been brought to our attention where someone said, "We just drifted back into your American waters; give it back to me." People seem to work that out, and it becomes pretty clear while they are reading the GPS as to what happens. Is that your understanding? Can tell us whether the proposed legislation encompasses that?
Mr. Zigayer: My understanding is that it has worked out very well. It is also important to know where you are when you get to court because one question that may arise is, "What is the jurisdiction to prosecute this? Were you in Canadian territory?" When prosecuting, you have to establish where the crime happened. That will be important in the future. We have to be careful to guard against the drifting issue that was discussed last week by the Windsor police or the OPP.
Another matter raised last week, which we have not talked about today, is the issue of hot pursuit. We have discussed hot pursuit in the following context: Suppose the people you are chasing manage to make it to shore; can you continue on foot? The answer is yes. The framework agreement foresees that you can chase after them, but obviously you are calling ahead for assistance to the local police. You will not continue after them all the way to Yellowknife. There must be good radio communications. As you are approaching the shore, you have to be able to say to whoever the local enforcement agency is, "We are approaching your jurisdiction and will be on foot running after these guys, but please help us intercept."
With regard to the other type of pursuit, as was discussed today, when you are chasing someone who has suspected contraband in the vessel, when you get to the border, under the existing law you have to stop. Under what is proposed today, if the substance is contraband on the other side as well, you do not have to stop the boat, but, in a sense, the pursuit under the law where you were ends, and you are now pursuing under the law of the other party, the other state.
Take trafficking in marijuana as an example: The Shipriders are chasing after them in Canadian waters, and the bad guys make it over the line. However, it is also an offence to be trafficking and possessing for the purpose of trafficking narcotics or drugs in the U.S. Immediately at that point the chase continues, but now the Shipriders are enforcing American law as opposed to Canadian law.
The Chair: Thank you. I think we heard some of that last week, but I really appreciate your amplifying this, and we will delve in a little further.
Senator Dallaire: You have a joint operation going on either side of the border, but you are also using air assets — UAVs, unmanned aerial vehicles, or helicopters, maybe a single-engine plane — and let us say we ended up in American waters on a chase, but we have a Canadian helicopter and only a Canadian pilot on board. Can that helicopter continue to chase into the American waters?
Mr. Zigayer: Yes.
Senator Dallaire: With no American on board the aircraft, as long as they are on board the ship?
Mr. Zigayer: If they are being deployed for Shiprider operations, my understanding is that the buddy system would also exist in the air. Now, I stand to be corrected on that, but that is my understanding. We are giving the pilots and the observers an equal Shiprider qualification as designated officers. You may have asked a question that stumps the band. If you give me a few moments, I will have another look at the bill.
Senator Dallaire: That leads to my second question, which deal with the rules of engagement. The Americans have a lot of firepower that is far superior to ours. With respect to the rules of engagement in the chase, they could blow anything out of the water on the Great Lakes.
However, in training for Shiprider, will the rules of engagement of use of force be similar on both sides of the border? That is to say, have you come to a common agreement on the use of force, scale of weapon systems, et cetera, in order to achieve your aim, which has been worked out and agreed to on both sides of the border, so that we do not end up in a scenario where scale of use of force might become a problem in achieving your arrest?
Mr. Zigayer: Absolutely. That is one of the primary considerations in this agreement.
Senator Dallaire: It does not appear in the legislation.
Mr. Zigayer: Yes, but when we say that the operations must be respectful of the rule of law, that means they must also comply with the Criminal Code. The Criminal Code sets out certain limits on the use of force by law enforcement or anyone else.
As part of the training, and I think you raised the training issue earlier this afternoon, a component of the training is a comprehensive understanding of the use of force, what is permitted and what is not.
In terms of the weapons systems, again, it is understood that the two designated central authorities will be discussing what is appropriate and what is not appropriate. Up until now, there have not been any deck-mounted firearms or weapons systems on board. We are talking about rather small vessels and about peace officers carrying ordinary duty weapons, which might mean a handgun, pepper spray, hopefully not a Taser. It could be that they also have shotguns or semi-automatic rifles. I do not know what they will have, but that is something that both central authorities together will have to determine.
Senator Dallaire: Good.
Mr. Zigayer: The answer is yes.
Senator Dallaire: Thank you.
Senator Mitchell: I think you were here when we were discussing budget. A previous witness said this agreement is just giving us authority, but it is also giving us obligations. Are you aware of a budgeting process? Are you aware of a number? Are you aware of the resources?
I will dig just a little bit deeper. You mentioned something about the deployment of resources and the numbers of police officers. Do we have a number? Is there a level of obligation specified by this agreement that we have somehow tabulated?
Mr. Zigayer: There is no set obligation regarding what resources will be contributed by either country. There is only the concept that, where they do deploy, there will be a partnership between an American and a Canadian. There is nothing in terms of resourcing that I can help you with.
Senator Mitchell: I know Ms. Palumbo is the team leader for the International Assistance Group, so that seems like day-to-day working with people in the field. Are you aware of how many people we are thinking will be in the field and where we will get the money to pay for them?
Jacqueline Palumbo, Senior Counsel and Team Leader, International Assistance Group, Department of Justice Canada: I would like to clarify what the International Assistance Group does because there is the whole realm of informal information sharing between police agencies, and the International Assistance Group does not deal with that. The International Assistance Group deals with implementing both the mutual legal assistance treaties that exist between Canada, the United States and numerous other treaty partners and the extradition treaties that we have with treaty partners.
Whether we expect to see an increase in mutual legal assistance requests or extradition requests and what would be budgeted for that is not really contemplated by this legal framework. We are really looking at law enforcement information sharing, which is not something the International Assistance Group would deal with, so we certainly would not have provided any input or feedback on budgetary issues.
Senator Mitchell: If the budget —
The Chair: Perhaps we could get a clarification here. You were referring to treaty legislation.
Ms. Palumbo: Separate from this framework agreement, there is a Mutual Legal Assistance Treaty in Criminal Matters and Extradition between Canada and the United States. That treaty covers evidentiary assistance of a formal nature as opposed to the informal information sharing contemplated primarily by this agreement.
Senator Mitchell: To change tack a bit, you mentioned that we go over the border and immediately undertake U.S. law and vice versa. Will our officers be trained in U.S. law?
Mr. Zigayer: Yes. The two central authorities will work together to establish the curriculum. Essentially, they have run through this a number of times with each of the two pilot projects and the three maritime security operations that have taken place. Before these were deployed, the people involved had to go through a period of training. It is essential to the success of the program; it helps protect them and helps them do their job better so that we can have an effective prosecution at the end rather than have a prosecution fall part because there was some inappropriate conduct.
Senator Mitchell: Do we have any idea what that will cost?
Mr. Zigayer: Again, no, I cannot give you that.
The Chair: Is that how legislation comes with a bill attached? We just keep coming back to this money question. This is a framework agreement.
I do not think these guests can answer a budget question; they are not here to do that, so I think we can move on.
Senator Lang: I would like to go a little further on the question of sovereignty and the way the proposed legislation has been designed. You mentioned it in your opening remarks and during a response to a question. Ensuring that we as a country are exercising our sovereignty when it is necessary is of concern to some Canadians.
Perhaps you could enlighten us in reference to other treaties that we have with the Americans, in this case. Is this proposed legislation stronger? You referred to the civilian committee overseeing the legislation. Perhaps you could expand on that for us and more specifically for the listeners.
Mr. Zigayer: Senator, this particular treaty is unprecedented; it does not exist anywhere else on the planet. There is nothing like this.
One aspect of the bill, which is in the framework agreement as well, is that we are making the actual designated officers subject not only to our criminal justice system, should they commit a criminal offence in the course of their work — or civil actions as well — but also to oversight by the Commission for Public Complaints Against the RCMP, CPC. If you would like further information on that, my colleague, Ms. Beecher, could talk about that.
Sophie Beecher, Counsel, Public Safety Canada Legal Services, Department of Justice Canada: The proposed legislation not only makes RCMP officers subject to the CPC but also includes all integrated cross-border maritime law enforcement officers, including the U.S. officers who will be on the Canadian side in the context of Shiprider operations. The CPC can suddenly use all its existing powers of investigation if a member of the public files a complaint to investigate the conduct of a U.S. officer operating in Canada.
Senator Lang: I want to pursue that to clarify it. If an action is taken against a peace officer who happens to have been designated and who is an American peace officer in his day-to-day life across the border, then he can be dealt with through the course of our judicial system; we do not have to extradite him. Rather, he has to appear in our courts, and the issue will be dealt with. Is that correct?
Ms. Beecher: Yes, our laws apply. As Mr. Zigayer said, the Criminal Code would apply. Someone could certainly file a claim in court. In our treaty we have the obligation of best efforts, I believe, for providing information to Canadian commissions of inquiry and that kind of thing.
However, the judicial system would apply and the CPC would have jurisdiction for actions taken in Canada by those U.S. officers.
The Chair: Is challenging jurisdiction a line of defence open to the alleged criminal? I think the senator's question was more if someone else had a concern about Canadians operating in America or vice versa.
Senator Lang: Actually, I want to follow up on that. It is important to clarify it for the record. In 2008, a number of arrests were made, charges were laid, significant numbers of tobacco boats stopped, and various other things were done in that very short two-month period. It proved that this type of exercise does work.
However, regarding those who were arrested, did you get any appeals from the point of view that they were arrested in American waters versus Canadian waters, and was that a question of being able to avoid the judicial system at the end of the day?
Mr. Zigayer: To my knowledge, if there were prosecutions in Canada, the persons were apprehended in Canadian waters with the contraband. Therefore, the ordinary course of a criminal investigation and prosecution would have been followed with everything going through the Canadian system.
I will speak now only about the pilot projects. If an American's being involved in the arrest had been challenged, we would have pointed to the fact that the individual American Coast Guard person involved had been designated as a supernumerary special constable under the Royal Canadian Mounted Police Act. This bill takes it out of the RCMP Act and creates a brand new statute. We then amend the Criminal Code to say that a person appointed as a designated officer under that act, with the long title, is a peace officer. Then there is another provision in the act itself that says that status as a peace officer is not only valid across the country but also is equal to the enforcement authority a member of the RCMP has. That is broader than the enforcement authority of a supernumerary special constable. Certain things are not enforceable by supernumerary special constables.
Senator Plett: I appreciated the comment that this is unprecedented legislation; there is nothing like this anywhere. I need to applaud the architects of this bill and voice my pleasure that the two main political parties in Canada both support this wonderful proposed legislation.
I do have some specific questions, however. You touched briefly on the idea that contraband might be legal on one side of the border but not on the other. Of course, there are some things: Cuban cigars are legal in Canada, not in the United States, and possibly some alligator-skin boots might be legal in the United States and not in Canada.
How would it work if you were caught on one side of the border and the contraband is illegal there, but you had been trying to get it to the other side of the border?
Mr. Zigayer: If you are apprehended in a jurisdiction where the possession of the object is legal, you cannot be prosecuted for that simple possession. On the other hand, if there is evidence to establish that there is a conspiracy to import and to break the laws of the other country, there is that avenue of investigation and prosecution. If you would like, perhaps Ms. Palumbo could give you further information on that.
Ms. Palumbo: I would add that it will all depend on where the individual who is the subject of the investigation ends up being apprehended. If that individual is apprehended on the Canadian side of the shared waterways and the offence charged would be an offence in Canada but not in the United States, then obviously the person would be prosecuted in Canada. The United States could not and would not be interested in seeking that person's extradition because there was no criminal conduct in the United States.
The more complex situation is where the individual is arrested in Canada and the contraband is not illegal in Canada but is illegal in the United States, and the United States wants to seek that person's extradition in order to prosecute. Under our extradition process, we cannot extradite a person unless the conduct for which extradition is sought would be criminal in Canada as well. If we do not recognize this conduct as criminal, extradition is not possible.
Senator Plett: I want to be perfectly clear on this: Some people have a boatload of Cuban cigars that are illegal in the United States. Clearly, they are not planning on smoking them all themselves. The boat is zigzagging back and forth between American and Canadian waters. The people on board will say if they are eventually going to get stopped, they are better to get stopped in Canada, and right at the end, they turn their boat into Canada. That is it — we cannot prosecute them. Is that correct?
Ms. Palumbo: If they decide to take a trip to the United States, they could be apprehended and prosecuted. I am saying that it is a requirement for extradition for both the United States and Canada that there be what is called "double criminality." In other words, in order for us to grant an extradition request, the conduct for which the person's extradition is sought, if it had been committed in Canada, would have to be criminal conduct. That is a primary requirement for extradition to take effect.
Senator Plett: Obviously, no law is perfect, and I guess this is the one flaw that this one has.
What effect, if any, does an apprehended person's or vessel's nationality have?
Ms. Palumbo: I cannot speak to the nationality of the ship; I can speak to the nationality of the person. Again, my expertise is extradition.
If a Canadian citizen is apprehended on the Canadian side and the Americans want to prosecute that Canadian citizen for conduct that arises during the course of the cross-border maritime operation, the citizenship of that person as Canadian would not automatically preclude him or her from being extradited. However, it may be a factor to consider, particularly in determining whether the person should be prosecuted in Canada versus the United States.
It is important to note that these scenarios are assessed on a case-by-case basis. It is difficult to say in a vacuum how the process would apply in general. All I can say is that with respect to Canadian citizens who are the subject of an extradition request from the United States, they have section 6 Charter rights, the right to remain in Canada, but that right can be put aside if extradition is determined to be the more effective route to a domestic prosecution of that individual.
All this is to say that a Canadian citizen is not precluded from being extradited to face prosecution in the United States, and it happens all the time in other contexts.
Senator Patterson: This is a unique situation, in my short experience, in that it is legislation to implement a treaty signed in May 2009. I want to ask a delicate question without infringing on anyone's parliamentary privilege.
To the extent that the bill implements a fairly detailed treaty and is being mirrored on either side of the border, can it be amended? If so, to what extent? Are we dealing with something where we have an obligation to our neighbour to make the legal framework parallel?
Mr. Zigayer: Yes, the treaty can be amended. Article 19 —
Senator Patterson: I am asking about the bill.
Mr. Zigayer: Yes, you can amend the bill provided it is consistent with the treaty.
Senator Patterson: That is my question. Do we have an obligation, as signatories to the treaty, to substantially provide a legal framework that supports the treaty, and are there therefore some constraints on the extent to which the bill can be amended?
Mr. Zigayer: I think that Parliament is supreme. You can make whatever amendments you deem appropriate. Then it becomes a question of what will be proclaimed into force and what will not be. Before amending the treaty, additional provisions, if they were totally different from what is contained there already, would have to be negotiated and agreed to by the other party. I do not know what type of amendment you are talking about.
Senator Patterson: I think what you are saying is that as long as we stick to the framework and the treaty, then the treaty will not need to be amended as a result.
Mr. Zigayer: Correct. I will jump on a hypothetical. Suppose you wanted to go for ice.
The Chair: I was just going to go there.
Mr. Zigayer: Suppose that is the area where you wanted to make an amendment. I would say that is something that we should have a longer discussion about.
I do not believe there is really that much equipment out there to engage in these types of patrols in the middle of winter on the ice. This is intelligence-led policing, and I think rather than using this agreement, there are probably other more effective resources that could be deployed to deal with people running the border on Ski-Doos.
On the other hand, to go beyond this to a broader agreement where you would basically cover the whole border — the land in between the water as well — that should be the subject of a separate negotiation or discussion with the Americans.
The Chair: You will explain this, but our understanding is that any amendment must be within the scope of the proposed legislation. We are not talking about ice or land or grain elevators or anything else. We are talking about the Shiprider program.
Mr. Zigayer: We will come back to that later.
Senator Patterson: The treaty seems to talk about hot pursuit. Is that covered in this bill?
Mr. Zigayer: The hot pursuit that is mentioned in the framework agreement is essentially following onto the land. We did not believe there was a need to incorporate legislative provisions dealing with that specifically because both the American and the Canadian peace officer are vested with peace officer status equivalent to the RCMP officer.
Let us say it is a provincial police officer from Ontario or Sureté du Québec who is the designated officer appointed from Canada. He will be vested with the same enforcement authorities as an RCMP officer. The American will have the same. As Canadian police officers, as RCMP officers with that same authority, they can go anywhere they want, I suppose, on the land to chase after this individual who has made it to shore.
Senator Patterson: Therefore, it is taken care of.
Mr. Zigayer: Yes, it is taken care of.
The Chair: As we heard from our earlier witnesses, they would hand off at some point and coordinate.
Senator Harb: With respect to the enforcement authority, a designated officer will have all of the authorities and obligations of a Canadian officer. To be a Canadian officer, you have to be a citizen of Canada or have some sort of residency. I have not read the bill, but I presume somewhere in the bill you would have covered that.
Mr. Zigayer: We do not require that.
Senator Harb: Can you designate someone who is not a Canadian citizen as an officer who would, under Canadian law, have to be a Canadian citizen?
Mr. Zigayer: Separate and apart from whatever is a requirement of a Canadian peace officer, we are specifically making it possible for a non-Canadian citizen to be appointed a peace officer in Canada and to have the same authorities as a Canadian peace officer.
Senator Harb: Is he being deemed a citizen while he is performing?
Mr. Zigayer: He is not being deemed a citizen, but he is being deemed a Canadian police officer.
Senator Patterson: Temporarily.
Mr. Zigayer: It is just when he is engaged in these operations.
Senator Harb: Some of my colleagues were probing the financial implications of this bill. Obviously, approving this bill costs something. I do not know whether this bill, when it was first talked about, was before the House of Commons or was always before the Senate.
My understanding is that bills that are before the Senate cannot be money bills under the Constitution of Canada. You probably have thought this through. Is this bill properly before the Senate, or should this bill have first gone to the House of Commons and then made its way to the Senate? I am sorry about that. My question might be out of order.
The Chair: It is just that we keep coming back to this. It is a bill to implement the framework agreement. It is not legislation that would require programs that would be spelled out in estimates.
Senator Harb: Maybe we will allow the witness to give us the answer. I am curious about that.
Mr. Zigayer: I believe the officials from Public Safety last week and those from the RCMP today have indicated that our exercise today, which you are being asked to look at and approve, is a legislative framework that would allow the deployment of integrated cross-border maritime law enforcement operations. The funding and resourcing of that is a separate matter, and certainly I have nothing to say about that.
Senator Day: It is a pretty fine line we are talking about here, but we will discuss that at another time. You pass legislation that will cost money, and you have to buy boats and people. We will discuss that later.
The Chair: That is the next stage.
Senator Day: Let us just leave it alone.
Clause 11 might answer my colleague's earlier question about peace officers, because they are only deemed peace officers during the operation of the joint operation. They are designated officers once they have passed all the tests and the central authority says, "You are a designated officer; therefore, you can go on one of these joint missions and you are a peace officer during that joint mission." That is the way this is contemplated. Do you agree with that?
Mr. Zigayer: I do.
Senator Day: In the bill I have before me, there is page 9 and then page 17. I saw that there is a part where Part VII.2 is repeated. Then I saw clause 22 at page 9. I probably would have asked my researcher to investigate this, but you are with Justice Canada and I am sure you can help me with this.
What is the status of Bill C-38? Half of this bill we are looking at will not apply if Bill C-38 is passed, and half of it will. Can you help us with that?
Mr. Zigayer: I will turn that question over to my colleague, Ms. Beecher.
Ms. Beecher: Bill C-38 is currently in the House of Commons. I think it has passed first reading. I do not think it has yet gone to committee; correct me if I am wrong.
In any event, our particular bill had to juggle that situation because this bill may be passed before Bill C-38 or after it is passed, or neither may pass. We do not know.
We had to include provisions that would come into force should Bill C-38 not pass and provisions if Bill C-38 is passed. You will notice a few differences between the two sets.
The rationale for the provisions if Bill C-38 does not pass was that we must remain within the framework currently available to the Commission for Public Complaints Against the RCMP for reviewing the activities of the RCMP and with our bill.
Should Bill C-38 pass, we have to respect also Parliament's decision to go with that new set of powers, so we have included a few modifications. One would be that, should a public complaint be filed, the complaint would go directly to the CPC and not be taken in by the RCMP first, looked at and then possibly appealed to the CPC. It would go directly to the CPC. The reason is that U.S. officers are involved. We thought it wise, because of the delicate nature of the situation, to go straight to the commission.
The second difference is technical. Bill C-38 contemplates giving privileged information to the CPC when it investigates public complaints, and we would have to respect those provisions. We have allowed for the provision of privileged information, as long as it is relevant to the CPC for its investigations in our context.
Senator Day: Ms. Beecher, that is very helpful. That saved all of the honourable senators around here who are reading these two provisions and trying to compare them to see what the differences are. You have just explained them to us, and I appreciate your doing that.
The other thing I was looking for was what Mr. Zigayer mentioned earlier. I understand the complaint process and the amendments to RCMP legislation in that regard. That is the civilian oversight of these activities. However, where in the bill does it say that the American as well as the Canadian designated officers will be subject to the Criminal Code of Canada and the civil law, as well as the complaint process? I have not been able to locate that. If you could show us, that would be helpful.
Mr. Zigayer: It is not in the bill, but it is in the framework agreement. Essentially, anyone within Canadian territory is subject to our rule of law. If you engage in criminal conduct, then you would be subject to the ordinary criminal courts, no matter who you are.
Specifically, I could direct you to Article 11 of the framework agreement, which talks about accountability.
Senator Day: I have it here.
Mr. Zigayer: Paragraph 1 in Article 11 reads:
While engaging in integrated cross-border maritime law enforcement operations a designated cross-border maritime law enforcement officer shall be subject to the domestic laws of the Party in whose territory any criminal misconduct is alleged to have occurred and be subject to the jurisdiction of the courts of that Party subject to the rights and privileges that a law enforcement officer from the host country would be able to assert in the same situation and subject to the rights and privileges that the host country would be able to assert in the same situation.
Senator Day: That means basically that there is no immunity, but if the peace officer was a Canadian and could rely on certain defences, then the Americans could do the same?
Mr. Zigayer: They are treated exactly alike.
Senator Day: Why would that not be in the proposed legislation as well?
Mr. Zigayer: The Criminal Code is a law of general application.
Senator Day: You felt it was not necessary?
Mr. Zigayer: It was not necessary.
Senator Day: Even though it was necessary to spell it out in the framework agreement between the parties at the political level, from a legal level you felt that it was not necessary?
Mr. Zigayer: Correct.
The Chair: I want to touch on two points you mentioned in your opening remarks, one being the special cooperation that might be needed for judicial proceedings. Do you mean cross-border or also domestically, that there might be a federal law and a provincial law that you might have to reconcile in some way?
Mr. Zigayer: Certainly in the context of a prosecution, it would be a federal prosecution involving Canadian and American jurisdiction. In a situation like that, one would anticipate that consultations would take place. It is interesting that you mention provincial jurisdiction.
The Chair: I am thinking more of the situation regarding hot pursuit, where something has occurred on the water, and those rules and regulations are pretty clear. Then they phone ahead to the Windsor police and say, "This guy is coming across," and there may be different jurisdictional issues. I am not sure. We did not get into that with them. Is that contemplated?
Mr. Zigayer: Again, with the RCMP officers, the peace officer status is granted by the amendment to the Criminal Code, and I think that is clause 18 of the bill, and also a provision says that the authority is in all parts of Canada. They would have their authority if they ran into Windsor.
The Chair: You were probably more meaning cross-border, then.
Mr. Zigayer: Yes, although you did raise an interesting question. Let us say it is a simple impaired boating situation. The Criminal Code assigns the prosecution of Criminal Code matters to the provincial Attorneys General. At some point, yes, these designated law enforcement officers would essentially be preparing a case for a provincial prosecutor to take.
The Chair: The other issue you raised is that you think Canadian sovereignty is enhanced or ensured by this. We might not always like to admit it, but they are the bigger partner and have more resources and all of those things. However, this kind of guarantees us a 50/50 place at the table, or on the boat.
Mr. Zigayer: On the boat, no matter how many boats, and we are always in charge when we are in Canadian waters.
I would like to respond to Senator Dallaire's question earlier about the aircraft. Having reviewed the bill, I do not believe absolutely that there needs to be a joint partnership on board the aircraft — it is required on the water — but you can have an observer, I suppose, at a higher altitude vectoring or directing the intercept because they have a higher view; they can see beyond the horizon. That is the type of assistance we would expect to receive from the air assets that might be deployed. We had to provide them with the same authorities because they too are crossing the border with firearms and engaging in law enforcement operations.
Senator Dallaire: It is one thing to be in an aircraft observing with a forward-looking infrared, FLIR, imaging system and so on; it is another thing to have a Gatling door gun also on that aircraft and to threaten the guy that you will use it. If that aircraft is armed, it should be integrated within the process. I do not see why we should have to have one of our guys in the aircraft if it is an American one coming into our area, as long as he is integrated into the plan of pursuit that is already established on the water.
Mr. Zigayer: I do not think anyone is contemplating sending armed aircraft. These are observers, and so they might be carrying a personal weapon, such as a handgun, but I do not think we are talking about armed aircraft.
The Chair: We heard an example last week where the Windsor police talked about a Coast Guard helicopter giving them information from 30,000 feet.
Senator Dallaire: The individual came low and showed his weapon. Remember, you are doing business with the Coast Guard; you are not doing business with the RCMP. The Coast Guard have armed weapons, so if a Coast Guard aircraft gets involved, yes, it will be armed. It is not the use of the weapons of the system but rather of the personal weapons of the individual officers who are involved.
Mr. Zigayer: You raise a very good point. Regarding the status of the Coast Guard, in a sense, the Coast Guard is an agency of the United States government that has more than one personality. It has a military personality — it is an arm of the Armed Forces — but at the same time, it is law enforcement. We are contracting with the law enforcement side of the U.S. Coast Guard. They have law enforcement status in the United States, and that is why we are contracting with them.
Senator Dallaire: This is called treaty legislation, although the term being used is "framework agreement." I do not know why we use that instead of simply saying it is treaty legislation. Even in definition, it defines framework legislation with the term "agreement."
If we were looking at a bill dealing with a United Nations convention, would it too not require an analysis of costing? When we signed the agreement, I am sure Canada and the U.S. both looked at the cost then and said, "We cannot agree with you because it will cost too much, so we do not want to do it." Maybe it was done then. Would a convention have the same sort of premise?
Mr. Zigayer: I think I can answer that because I have been involved with the negotiation of treaties as well as bringing them forward through legislation, both in the Anti-terrorism Act and more recently in negotiated treaties with ICAO, the International Civil Aviation Organization, which at some point we will have to come forward with.
Most of time, these treaties create new offences and extraterritorial jurisdiction for Canadian courts. We do not provide funding. That is not unique to conventions. It is also quite often the case when we amend legislation.
For example, when we created the DNA warrant scheme, which I was involved with as well, no funding was provided, and the RCMP essentially funded its use of that from within until, I suppose, the next budgetary exercise.
Senator Dallaire: I remember that. I was on the advisory board and we had to absorb it. You are absolutely right. We did not get the money at the next budget.
The Chair: Thank you. We appreciate this. You have walked us through many of the small details we were wrestling with. Thank you, Mr. Zigayer, Ms. Palumbo and Ms. Beecher.
Senators, we are continuing with our study of Bill S-13, looking at integrated cross-border law enforcement and the pilot projects referred to as Shiprider. One of those Shiprider pilot projects was carried out in 2008 along a 100-kilometre stretch of the St. Lawrence River in the Cornwall-Massena area. That area is home to, amongst others, the Mohawks of Akwesasne, which means, interestingly, land where the partridge drums.
We have three witnesses joining us now: Brian David, Acting Grand Chief of the Mohawk Government, Chief William Sunday, with the Mohawk government, and Chief Wesley Benedict, also with the Mohawk government. Welcome, and please proceed with your opening statement.
Brian David, Acting Grand Chief, Mohawk Government, Mohawk Council of Akwesasne: I will be quite brief with my opening statement. I would like to start by saying good afternoon. It is a pleasure to be here. I want to offer some words and a message from Akwesasne concerning Bill S-13.
I think any initiative that has as its core objective the eventual effective harmonizing of the environment, the legal textual framework and substance, the operating environment of the territory of Akwesasne would certainly be welcomed and certainly is welcomed as part of what we are trying to accomplish in our nation-building initiative with Canada.
We have heard about part of the territory being in Quebec, part in Ontario, part in Canada, part in the United States, as part of the consequence of the War of 1812. However, we are at a point now where we are beginning to talk about some larger things — things that work and things that do not work.
The world has changed quite a bit since 1812, and the message we are bringing forward is this: It is a treaty between Canada and the United States, but it is not just between two nations. This treaty will have an impact on a third nation. It will have an impact on First Nations, the First Nation communities in Canada. I do not want that to be forgotten.
Terrorism affects us all, but we are all looking for the same thing. At the end of the day, we are all looking for the same agenda — community safety. The majority of us at the end of the day want to ensure that we come back to a good, safe, harmonious environment, and that is the kind of climate we would like to leave as a legacy to our children and grandchildren.
I think I will leave it there, and we will take it from there.
The Chair: Thank you. If you could clarify, are you saying you do not recognize this treaty between Canada and the United States? Should it be signed?
Mr. David: In principle, I do not think there is a disagreement over it. A pilot project was run about two years ago, and it was fairly successful. We did not have a lot of advanced information on it. We heard more about it afterwards more than anything else. In that respect, it would have been better if we had more information on the project itself.
For the people of Akwesasne, the last time that we were around with a treaty was the Canadian-American treaty for the St. Lawrence water system, or the St. Lawrence powerhouse, the seaway. It resulted in an enormous environmental disaster back in the 1950s that we are just recovering from. Now we are at a point where we are talking about something similar. It is an international treaty, but it is for public safety and security and terrorism.
The Chair: I think all illegal activity, yes, including terrorism.
Mr. David: All illegal activity. We are saying we do have concerns. How will the police distinguish the good people in Akwesasne from the not-too-good people in Akwesasne? How will these activities disturb some the customary traditional patterns we have in the river system, like fishing or trapping, and our use of the river system? How does this dovetail into some of the rights we have already established in the Supreme Court of Canada and those that we have under way? How does this dovetail into the direction that our community is moving with its nation-building initiative — the self-government negotiations with Canada?
It is difficult to say. I can see where it might be very supportive, but it could also be detrimental to many of these initiatives that we have under way, if it is not properly administered.
The Chair: I want to give you a chance to respond. Some of you would have heard this question put to the RCMP. It came out of their assessment of the program carried out in your area. The RCMP evaluation report said that Shiprider did not get off to a good start in Akwesasne, and that Akwesasne represents a hole in the international border through which people and goods, legal and illegal, travel virtually at will. Do you think that is still the case?
Mr. David: I think goods are coming across the river; there is no question about that. I also think there are some dangerous goods going across. Therefore, I think we have the same concerns as the RCMP.
The Chair: That is good. You have set the stage, and we will begin with Senator Dallaire.
Senator Dallaire: Canada and the United States sat down, worked out and signed this framework agreement or treaty in May 2009. Was there any Aboriginal participation in any of the processes of the agreement as Canada and the United States were working them out?
Mr. David: In 2009, I was not on council. I was still fishing.
Senator Dallaire: That is a great answer in itself. I would love to be able to say the same.
Wesley Benedict, Chief, Mohawk Government, Mohawk Council of Akwesasne: I was on the council in that year. As far as we know, no one from our community was involved in any of these negotiations. This came to us less than two weeks before the implementation of the program. A presentation was made in the RCMP office in Cornwall. Invited were members of our council, members of the St. Regis Mohawk Tribal Council leadership, and a representative from the Mohawk Nation Council of Chiefs, I believe. Mr. Oliver, who was here earlier, was present. There was also a high-ranking representative from Washington, who informed us that he had the president's ear.
They made a presentation to the council members, telling them that negotiations had gone on between Ottawa and Washington to implement this pilot project. However, as I said earlier, it was not until less than two weeks before the implementation of the pilot project that they notified the community of Akwesasne.
Senator Dallaire: I am trying to situate things in time. The pilot project was in 2007, and they do that. The communications with you were not very good in regards to implementing that project. The project has its final report. The officials from both Canada and the United States meet, discuss, and work out the nuts and bolts of the agreement. After the trial and the results of it, we are into the actual writing up of the agreement between the two countries. Were you part of the process when they were scribbling the agreement together?
Mr. Benedict: Before the final report was done, we did get documents and were asked to provide comments about the progress or how the project went along. We did provide comments on that, but only that.
Senator Dallaire: Again, there was no formal signing of any framework agreement or participation on your side in the signing of the framework agreement when it was done between the United States and Canada, although your national territory was involved in the territory this agreement would be involved with. Is that correct?
Mr. Benedict: I would say that is correct. We did not have any input, other than providing public comments during that comment period.
Senator Dallaire: I have one last point, then. Your police have been involved. Were your police engaged with the RCMP and provincial police in making any agreements at that level? They do run memoranda of understanding, MOUs, between forces. Do you know if they did that?
Mr. Benedict: As was mentioned earlier, our law enforcement is part of the Integrated Border Enforcement Team, IBET, and there is another unit out there also involved in another team.
The Chair: I think you are part of the IBETs program.
Mr. Benedict: Yes.
Senator Dallaire: They have been into the exercise as it has been evolving. However, you have not been involved politically, yet you have been involved on the police side; is that correct?
Mr. Benedict: Yes.
Senator Plett: I will continue with what the chair asked at the very start. First, Chief David, I certainly agree with your opening comments about having the same common goal. We all want to be safe and to come home in the evenings and feel safe. I appreciate and support those comments.
The impact evaluation the RCMP did is not entirely flattering. It talks about travelling virtually at will.
Criminals operations exploit this fact to ply a lucrative trade in cigarettes, drugs, weapons, illegal migrants and other contraband. The vessels transiting the waters are specially designed and outfitted to travel fast and at night. Several of these vessels were in plain sight in the community as the evaluation team toured the area. As noted earlier in this report, a recent threat assessment indicated that there are over forty (40) criminal organizations in operation in and around this region.
Chief, you said goods are certainly going across. You were wondering whether they were dangerous. I think if they are illegal, they are illegal, whether they are dangerous or not. We have weapons here. The evaluation report said, "Shiprider personnel were confronted on several occasions by individuals who claimed that the vessels had no right to be in their waters."
Chief, in your estimation, who should enforce marine law? Is the RCMP not our overarching law enforcement agency? The RCMP was here earlier today, though I am not sure whether you were in the room at that time. They indicated their willingness to work with the OPP, the Windsor Police Service and the Akwesasne Mohawk Police Service. However, where should the command centre be?
Do you not agree that we need one main area and that they control it and work with other police forces?
Mr. David: The way this is beginning to unfold, it appears almost as if there will be two command centres. One deals primarily globally that will work at the federal level with this treaty between Canada and the United States, between the Coast Guard and the RCMP.
The initiative we have been working on locally in Akwesasne is to do something similar. It is to work with our police along with the tribal police and work towards an agreement where we would be able to do joint operations within our own territory. I think we will be looking at the future need to coordinate operations between Shiprider and the initiative that we are currently negotiating.
Part of the message here is that there are other initiatives on the table that can be looked at and capitalized upon.
At this time, we will not argue jurisdiction; we will not argue who owns what. That will be taken care of in an entirely different venue. We will not talk about rights here. We are talking about putting together programming that is effective and that meets a common need for Akwesasne, for Canada and for the United States. If that program is operating within Akwesasne territory, then Akwesasne needs to be part of the formula. That is what we are bringing to this table.
Senator Plett: Thank you for that. Let me further suggest that the agreement is not between the RCMP and the United States; it is between government and government. They are striking an agreement on how the Shiprider program will be implemented. It will be up to the organization that the Canadian government gives it to, which will be the RCMP. It is my opinion from what they have said that they have been very open in working with other organizations, whether that be your police force, the OPP or the Windsor police. Do you not see yourself as a player that could work within that framework?
Further to that, for my last question, since the Shiprider evaluation impact study was done, has the drugs and weapons and other contraband smuggling across the border improved any? What is your police organization doing to curb that? If that is one of the main areas where we have issues and it is not being curbed, does a different organization need to come in and help?
Mr. David: In answer to the first question, I guess that is the message we are bringing to the table. The answer is in the affirmative.
For the second question on what our police force has been involved in, I will turn it over to Chief Benedict.
Mr. Benedict: As mentioned earlier, we are part of the IBET and other organizations. We are a small agency of 24 men for a vast area with many waterways and islands. As in any municipal police force, people want to take time off for vacations and other reasons, so we are unfortunately limited. As far as the river is concerned, we do not have an active marine patrol unit, although we have a boat and the equipment for it. However, it comes down to manpower. They are actively involved in investigations and have made significant seizures of illegal drugs. Often they do this with the help of the outside agency.
Senator Plett: Chief Benedict, you are suggesting and agreeing that you need help.
Mr. David: Of course we do.
Senator Lang: Thank you for coming. Chief David, you pointed out that the world is changing, and from your perspective and that of everyone around this table, the question is about public safety and the fact that terrorism is an element in our lives. A word we never discussed just 10 years ago seems to be discussed weekly in one form or another.
This proposed legislation is a treaty between Canada and the United States. It is an enabling bill that clearly and concisely outlines the responsibility of each country and clearly enunciates in law exactly the authority of a peace officer if he or she comes from the United States or vice versa and how peace officers are to exercise that law to ensure that our rights are protected and to not violate any Canadian's rights.
To be clear, I am hearing today that there is general support for the proposed legislation with the understanding or caveat that you want to be involved in one capacity or another in those waterways crossing between the various lands for which you have responsibility. Is that correct?
Mr. David: Yes.
Senator Lang: That is fine. It is nice to hear that.
Senator Patterson: I was really pleased to hear Chief David and his colleagues say that this is not about jurisdiction or rights. While I respect those issues, there are times when we have to look at common objectives. I think that is a good approach to take in this area.
I looked at the evaluation of the pilot project. Certainly it seemed that there were some questions in your community about how the operation was carried out. I can understand why that is because you were given very little notice. Sadly, governments are not always good about consulting. In my region of Nunavut, we have the same problems with our federal government, as much as we love our federal government.
The recommendation of the evaluation is that the communities be consulted and engaged, that a better job be done of it, and that the RCMP's National Aboriginal Policing Services and O Division's Aboriginal Policing Services be involved. I heard you say that you would like to see the Shiprider police forces and the tribal police work closely together. Do I understand that you would be open to having a greater involvement of your police forces in the Shiprider project and to discussing that?
Mr. David: I believe there is an open door for discussion on that. You have to take into consideration that at Akwesasne the territory we are talking about has roughly 170 kilometres of waterway, about 432 islands, and people who are familiar enough to ride that waterway at night — some on one side and some on the other side. Certainly there is a considerable resource to be made available to law enforcement, if there is a common mission, which I believe there is.
Senator Patterson: That is music to my ears. We use the Canadian Rangers in the North, where I am from. It is the local understanding of the land — in your case the waters — that the military find very useful in achieving common objectives. It seems that we should take advantage of that offer and that knowledge so that we might do a better job at cooperating with you as we move forward to implement this proposed legislation. Thank you.
Senator Harb: Thank you for your presentation. I understand you have a copy of the report done by the RCMP. Throughout the report, reference was made to the Mohawk territories. There seemed to be an understanding and an acknowledgment by the RCMP of the importance of engaging the community as part of the strategy to combat illegal goods crossing the river.
As Senator Patterson stated, it is very encouraging to hear you saying pretty well the exact same thing the RCMP was telling us — that it is in the best interests of everyone for both of you to be working together. It is my hope that you will take advantage of the opportunity and be involved with the RCMP as they develop this strategy to deal with issues of mutual interest — your interest as well as Canadians' interest as a whole.
Senator Dallaire: You are straddling the border; you have 110 kilometres of border, a bunch of islands and so on, together with inherent skills in observing and reporting. I do not know how much equipment you have and would need.
In the planning of the implementation of the agreement, are you expecting the Canadian government, through the RCMP, to call upon you to train some of your personnel, to provide you with some equipment in order for you to give the same coverage as they are doing in other places along your border? Do you have the funds to pay for those people to be employed in doing that, or would you expect the RCMP to pay for that?
Mr. David: I liked the beginning of that statement; it almost sounded like an offer.
Senator Dallaire: I am a senator. I have no power.
Senator Day: We cannot spend any money.
Mr. David: I completely understand. No, there is no expectation at this point. We are taking a look at our own resource capability locally.
One untapped resource we have available to us is the volunteer anglers, our own fishermen and people who work the land, who are continually observing what is going on in that waterway. They know who should be there and who should not be there.
We get this all the time. They stop in and say, "We are seeing this happening out there and we do not want to take this to the state troopers or to the RCMP. I am bringing this to you. Will you see that something is done to take care of this person?"
We have illegal Indians coming across the ice, staying at homes on the island. That is brought to me. This is strategic information, intelligence. Otherwise, it would not find its way into police circles. It is that type of resource base, community observance, which would make it a very effective program if it were supported at the community level up.
That is why I am saying there needs to be a more coordinated approach. Maybe we are even talking about partnership when we get to the level where we are talking about designing the program itself.
Senator Dallaire: To follow up, as they implement the agreement, you are expecting to be fully participatory in that to cover your territory in conjunction with them. You may do it differently in your area through the community, but you do expect to be completely participatory in this exercise and certainly invited to be; is that correct?
Mr. David: Yes.
The Chair: Chief Benedict, did you want to jump in?
Mr. Benedict: Yes. I want to make a clarification. You said the U.S.-Canada border straddles our territory; it is the other way around. Our territory was there first, and then the border came.
Senator Dallaire: I stand corrected.
Senator Day: It is a good point that is important for us to understand and to be reminded of.
Who makes the decision to appoint your law enforcement officers on your territory?
Mr. Benedict: We have a process in place for hiring new recruits for the police department. They come in, make an application and go through the normal processes, as in any other municipal police force. Background checks are done. A whole hiring process goes with it.
If they are accepted, they go to the Ontario Police College in Aylmer. They train the same as the OPP and any other municipal police.
On top of that, they also have to go to Quebec for a training seminar for a short period of time, and be qualified there too. They are qualified in both Ontario and Quebec.
Senator Harb: Aylmer in Quebec or in Ontario?
Mr. Benedict: Near London, Ontario. Then they have to go to Nicolet, Quebec, for an equivalency period.
Senator Day: Would you consider your law enforcement officers on your territory to be police officers appointed or employed under Ontario provincial law or Quebec provincial law?
Mr. Benedict: Both.
Senator Day: That is helpful because I was worried you might be left out here. Clause 7 makes it possible, then, for your peace officers to be appointed as designated officers under this legislation, as long as you fit within that definition.
Mr. Benedict: They fit under the same criteria as any other municipal police in Ontario or Quebec, and take the same training as the Ontario Provincial Police.
The Chair: Gentlemen, we appreciate your time here today, for joining us and sharing your views. We have Acting Chief David, Chief Sunday and Chief Benedict. Thank you very much.
That concludes our hearings today on Bill S-13, the Shiprider legislation. I am sure we will be back at it another day. Thank you for joining us.
(The committee adjourned.)