American Police Want Legal Exemptions From Canadian Law When Inside Canada

The United States wants its police officers to be exempt from Canadian law if they agree to take part in a highly touted cross-border policing initiative, says an internal RCMP memo.

The debate over whose laws would apply to U.S. officers working in Canada raises important questions of sovereignty and police accountability, says the briefing note prepared for RCMP Commissioner Bob Paulson.

"Canadians would likely have serious concerns with cross-designated officers from the U.S. not being accountable for their actions in Canada."

The planned pilot project — part of a sweeping Canada-U.S. perimeter security pact — would see the two countries build on joint border-policing efforts by creating integrated teams in areas such as intelligence and criminal investigations.

The perimeter deal, being phased in over several years, aims to ensure the safe, speedy passage of goods and people across the 49th parallel while bolstering North American defences.

The October 2012 RCMP memo was intended to brief Paulson for a meeting with David Moloney, a senior adviser to the Privy Council Office for implementing the vaunted perimeter security deal. A censored version of the classified document was recently obtained by The Canadian Press under the Access to Information Act.

It notes that plans were underway for trial projects in the areas of policing and the preclearance of truck cargo, each involving U.S. officers working alongside Canadian counterparts. 

The cargo pilot project — which has since been announced — entails U.S. Customs and Border Protection officers working in Fort Erie, Ont., and Surrey, B.C., to pre-inspect southbound shipments according to American customs procedures.

The so-called Next Generation policing project — whose pilots have yet to be finalized — would involve U.S. and Canadian officers working on each other's turf to enforce the host country's laws.

However, according to the RCMP, the two countries haven't seen eye to eye on the tricky question of which country's legal system would deal with a police officer accused of breaking the law.

Traditionally, co-operative initiatives in cross-border law enforcement and border management have been based on the notion that the laws of the host country apply to illegal acts on its territory and that host-country courts would have jurisdiction, says the RCMP memo.

"However, the U.S. has recently expressed concerns with the continued application of the 'host country law model' and has requested that its officers be exempted from the laws or the jurisdiction of the ordinary courts in Canada in the context of the Next Gen and Preclearance initiatives."

For the cargo preclearance pilot projects, announced in March, Canadian law will apply to U.S. customs officers, said Public Safety Canada spokeswoman Josee Picard.

But the issue remains unsettled for the policing initiative, which was supposed to be up and running last year.

The RCMP memo says there are several reasons why it "remains appropriate" for host country laws and courts to continue holding sway, including:

— the fact it is generally the right of sovereign states to have jurisdiction over unlawful acts in its territory;

— the Canadian and U.S. justice systems are very similar when it comes to use of force by police;

— the border pact was negotiated on the understanding that the countries' respective legal frameworks would apply.

"Canadians place a high value on sovereignty and police accountability," the briefing note adds.

A preliminary assessment indicates it "would not be feasible nor desirable to have two law enforcement officers working together being subjected to different regimes for accountability and criminal liability," the memo says.

But senior Mounties recommended to Paulson that the RCMP participate in the development of options, "ensuring that law enforcement concerns are properly addressed, rather than taking a firm stance on retaining the status quo."

Any new model must be fully reciprocal, providing Canadian police with the same protections in the United States as granted to U.S. law enforcement officials working in Canada, adds the RCMP briefing note.

"This may alleviate any concerns that there may be with respect to RCMP members being subjected to the U.S. court system."

RCMP Sgt. Julie Gagnon said the force had no comment on the memo.

Public Safety has said it would be inappropriate to discuss Canada-U.S. negotiations on the legal framework for the policing initiative.

The U.S. Department of Homeland Security did not respond to a request for comment.

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