Questions:
Armed U.S. border guards could soon be posted to Union Station — and if they ever use their guns, they may not be held accountable in a Canadian court.
A border preclearance agreement signed last month by Public Safety Minister Steven Blaney and U.S. Secretary of Homeland Security Jeh Johnson allows for armed American border guards to be posted to any port, ferry terminal, land crossing or rail station to clear goods and passengers through customs and immigration before they cross the border.
While U.S. Customs and Border Protection (CBP) officers now preclear passengers at eight Canadian airports including Pearson, only police may carry firearms in airports, so border agents stationed there aren’t armed. The deal is promoted as a measure to facilitate trade and benefit the economy on both sides of the border, but critics say little notice has been taken of the clause that grants U.S. agents immunity from Canadian prosecution.
“If U.S. government agents who are on duty on Canadian soil are only going to be liable to be prosecuted in the United States for potential criminal acts in Canada, what does that mean for access to justice for people affected by those actions?” asked Josh Paterson, executive director of the B.C. Civil Liberties Association.
“Is a Canadian really going to be able to access whatever system of redress that might exist in the United States for actions that take place here in Canada? Is the U.S. criminal justice system going to deal seriously with alleged offences committed by their agents here in Canada? We just don’t know.
“If they’re being told that they are allowed to carry weapons in Canada, the only thing you can surmise from that is that it’s anticipated that they may be using force in Canada,” he said.
Details of the agreement, which hasn’t been made public, are limited. The number of U.S. guards coming to Canada and where they will be posted will be determined by “the market” and subject to approval by both countries, said Public Safety Canada’s spokesperson Josée Sirois.
“U.S. CBP preclearance officers would be authorized to carry the same weapons and restraint devices that (Canadian) border officers are permitted to carry in the same operating environment,” Sirois wrote in an email. “That means that they would be able to carry a sidearm in land, rail and marine preclearance operations, but not when pre-clearing air travel passengers.”
U.S. guards would not be permitted to make arrests, she said, and would instead detain suspects temporarily and call local police.
According to a backgrounder posted on Public Safety Canada’s website, the agreement creates a new criminal-liability regime applying to both U.S. and Canadian preclearance officers. “Generally speaking, the inspecting party would have primary jurisdiction over its preclearance officers for offenses committed in the performance of official duties. Generally speaking, the host country would have primary criminal jurisdiction over acts committed by preclearance officers outside the performance of official duties,” states the backgrounder.
The deal won’t come into effect until both countries ratify it, which Canada aims to complete next year. “Both Canada and the U.S. recognize the importance of maintaining accountability for preclearance officers who may commit crimes in the host country, and appropriately holding those individuals accountable,” wrote Blaney’s spokesperson, Jean-Christophe De Le Rue, in an email.
Legal scholars worry about the ramifications of the agreement, though none of those contacted by the Star would offer an opinion without seeing more details of the deal. Paterson, however, pointed out that existing legislation governing airport preclearance doesn’t give an American officer in Canada jurisdiction over a traveller.
“They can’t use force against you. The most that they can do while you’re still on Canadian soil is refuse you entry to the United States. If you want to walk away, you can walk away. Now we’re contemplating that they may be able to use potentially lethal force?” he said.
In the coming months, the Canadian government will brief police and industry stakeholders and ask for input, though the level of detail provided is unclear. “There’s tons of questions that have been arising,” said Jean-Pierre Fortin, national president of the Customs and Immigration Union in Canada. “They’re keeping their cards close to their chest.”
Fortin had no details on how train preclearance would work, and speculated that officers might be placed in stations or they might be put on trains themselves.
While the deal is reciprocal and allows for Canadian border guards in the U.S., the current airport-only preclearance arrangement — which has existed in various forms for over 60 years — has only ever been implemented north of the border.
Is this standard policy for other nations?
If armed US border guards are being given the power to detain someone on Canadian soil while simultaneously being immune to Canadian law, what potential impacts might there be? Is there potential for abuse?
What if a US border guard killed a Canadian or other traveler while on Canadian soil, and the US government decided not to prosecute even though if the US guard had been subject to Canadian law the Canadian government would have prosecuted?
Although in theory the reverse is also true, what would realistically happen if Canada seriously tried to post armed border guards on US soil and tried to detain someone while being immune to American law? Would the American public tolerate such a thing? It should be noted that there are no Canadian pre-clearance guards on American soil at the moment even though current legislation technically permits Canada to do so.
http://www.thestar.com/news/gta/2015/04 ... ation.html
