Officer accountability issues holding up border policing project: ambassador

OTTAWA – Deeper co-operation between Canada and the United States on cross-border law enforcement is being held up by the thorny question of which country’s legal system would deal with a police officer accused of breaking the law, says the U.S. ambassador.

The ongoing efforts to iron out issues of officer accountability explain the one-year delay in launching two pilot projects for the so-called “next generation” policing program.

The initiative would see Canadian and U.S. officials work even more closely than they do now, building on joint border-policing efforts by creating integrated teams in areas such as intelligence and criminal investigations.

But it has proven to be one of the most challenging elements of the perimeter security pact between the two countries, David Jacobson, the U.S. ambassador to Canada, said in an interview.

“If an RCMP officer is in North Dakota, and they’re chasing a criminal and they go to shoot somebody, well what are the laws that govern the appropriate use of force? Is it Canadian rules, is it American rules?” Jacobson said.

“What happens if there’s a lawsuit in North Dakota? Does the Canadian RCMP officer want to be subject to litigation in the United States? We have slightly different rules,” he said. “The question is: which rules are going to apply to which? It is a complicated question. It is not an insurmountable question but it’s complicated.”

Another issue that must be addressed, said a federal official familiar with the file, is where a citizen of one country might take allegations of ill-treatment at the hands of an officer from the other country.

For instance, if a U.S. officer were to “arrest you, put you in cuffs and dislocate your shoulder,” would a Canadian have recourse to the watchdog that oversees the RCMP, asked the official, who requested anonymity because they were not authorized to speak publicly about the policy deliberations.

“I know that the accountability writ large is an issue.”

A December 2012 progress report on the border deal was rather vague about the delay, saying only that officials were evaluating the “operational and legal requirements” involved in the law enforcement initiative.

Jacobson has previously said that legislation in both countries would be required in order to implement the new arrangements.

Public Safety Canada spokeswoman Josee Picard said “discussions are continuing on the legal and governance framework” for the program. “Once there is agreement on these elements, then the pilot can proceed. It would be inappropriate to report on the details of these discussions.”

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

The next-generation policing initiative, though land-based, is to be modelled on the Shiprider project, which involves specially-trained and designated Canadian and U.S. officers working on the water in dedicated teams.

The Canadian legislation paving the way for Shiprider outlines the procedure for making a public complaint against an officer from the U.S., allowing for the possibility of a joint investigation. However, it’s unclear whether the procedure can be adopted for teams working on land.

Internal Public Safety briefing notes, prepared for the deputy minister, say increasing law enforcement co-operation at the border is important because police increasingly face criminal activity that extends beyond their respective national boundaries.

“This is especially true with organized crime,” say the notes released under the Access to Information Act.

“Criminals, aware that Canadian and U.S. law enforcement personnel working at the shared border do not have authorities outside of their respective domestic jurisdictions, have taken advantage of this fact and have strategically organized criminal activities to avoid apprehension and prosecution.”

Looking for more?

Get the Best of Maclean's sent straight to your inbox. Sign up for news, commentary and analysis.