U.S. Border Security Issues Piling Up For New Canadian Government

Note: This is a modified version of an article written for Frontline Security magazine. See the original here.

When Canada’s new government assumed office almost nine months ago, it was clear that it had new policy priorities and that it was specifically intent on a more inclusive and consultative process for decision making than its predecessor. Some skeptics, myself included, cautioned that while this was understandable, governing was about making choices and taking action and not just holding media events to celebrate “inclusion” and “outreach.” Put differently, governing is more difficult than campaigning but that’s what governments are elected to do.

U.S. Border Security

This substantive lack of progress is evident in a number of areas and as we prepare for the return of Parliament in September, Canada-U.S. border security is clearly an area where specific actions are required. This is true, not only because of the inherent priority of the joint border for both counties, but also because of a changing security focused world and the need to deliver on existing border security focused commitments. Additionally, although it is sometimes taken for granted, Canada-U.S. relations are our highest foreign policy priority and border security issues are a central part of that discussion.

Canada remains a signatory to the Beyond the Border Agreement (BTB) with the U.S. which, wisely, has very specific commitments that includes timelines which are now not being met. Perhaps the most important of these was for the joint assessment of border gaps and vulnerabilities (completed) and a commitment to address them through a joint technology procurement and deployment process.

It appeared this might be happening in 2013 when the federal government announced a $92 million allocation to the Royal Canadian Mounted Police (RCMP) to deploy sensor technology at the Canada-U.S. border from Quebec/Maine to Oakville as part of its “Anti-Tobacco Smuggling” strategy. A year later, with no action taken, this funding was re-announced by the RCMP as the “Border Integrity Technology Enhancement Program” (BITEP). Yet almost two years later, BITEP remains an acronym and not a deployed action.

The importance of this failure to deploy sensor surveillance technology along the Canada-U.S. border cannot be overstated. Without it, Canada and the U.S. face increased risk of cross border smuggling of weapons, drugs, tobacco and people. In today’s world, that’s an unacceptable risk and what’s required is action, not repetitive “consultation” or more RCMP navel gazing.

As part of the BTB Agreement, Canada also committed to implement a Pre Border Clearance Agreement with the U.S. It appears that the bill will provide the necessary legal authorizations which have been worked out for Canadian and U.S. officers to conduct pre-screenings in each other’s countries including the taking of biometric identification, all of which is expected to expedite legitimate trade and travel.

Less clear is whether the RCMP has finally created a national security based face recognition biometric database which can identify security threats who are using altered or counterfeit identification. In today’s world of departing and returning jihadis, not having this detection capability deployed is simply unacceptable. The need for this specialized screening is also implicit in several announced border security initiatives including the modernized “No Fly” database, the Advanced Passenger Information initiative for screening at airports before departure to Canada and the Electronic Travel Authorization for screening of persons from select visa exempt counties. All of these programs need to be scrutinized by the new government to make sure the intended outcomes are actually occurring.

While a joint Canada-U.S. database is the obvious starting point, in today’s travel facilitated world it will be necessary to expand the database to trusted allies such as the other “Five Eyes” partners (United Kingdom, New Zealand, Australia) as well as the EU and others.

Parliament also has another bill before it which will implement the Exit-Entry information sharing agreement between Canada and the U.S. that is part of the BTB Agreement. The bill would expand the existing information-sharing about non-citizens entering and exiting each other’s countries to cover all travelers, including to Canadian and U.S. citizens. This will increase awareness of travel activity by people of interest, including those with outstanding arrest warrants.

Unfortunately, it appears this information will only be used for records reconciliation rather than for entry decisions. This application use should be monitored as we will want to ensure the data is not being used to “detect” the departure of non-citizens who have non-appearance warrants outstanding (reported by the Auditor General at the embarrassingly high number of 44,000) so that the warrants are removed from the system without a concurrent requirement to create an inadmissibility status to prevent such persons from re-entering Canada.

Both Pre Border Clearance and Exit-Entry will require restoring CBSA personnel resources, especially in the Intelligence and Operations units which were cut as a result of the 2010 Deficit Reduction Action Plan (DRAP). Security programs without sufficient personnel don’t deliver the results intended…and promised.

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In addition to this already lengthy list of border security issues, the new government appears intent on implementing a new border crossing process for the Akwasasne Mohawks near Cornwall. For decades, the Canadian port of entry was on the Akwasasne reserve on Cornwall Island, but that changed when the Mohawk Band Council (and “Warriors”) objected, with protests and threats of violence, to CBSA officers being armed on what they claim as their “territory.” The port of entry was moved to Cornwall, which created an obvious inconvenience to Island residents returning to Canada from the U.S. as they had to drive across the Island to report in.

Several weeks ago, the Senate Committee on Aboriginal Affairs produced a special report to the government on the issue, citing the historical Jay Treaty from 1794 to justify the need for a special identification program to allow Akwasasne Mohawks to travel between Canada and the U.S. This issue has significant border security ramifications for both countries due to the acknowledged high volume of drug, weapons, human and tobacco smuggling in the area. The BTB Agreement created a December 2012 deadline for completing negotiations to create a pre clearance facility in Massena, N.Y. and implementing that would be a far better solution than the Senate committee’s proposal.

Cross border smuggling requires the deployment of analytical radar surveillance systems in any plan. Simply detecting the target isn’t enough; interdicting it is. That means deploying sufficient operational resources which means cross border operations and finally including CBSA officers in the Shiprider program and full enforcement operations between ports of entry.

Finally, Canada has made a number of new border related commitments as a result of its recent summit with the U.S. and Mexico. These include trade and travel enhancements such as including Mexico in the trusted traveller program, expanding the Single Window Initiative to facilitate Mexican imports to Canada and working together to align commercial clearance practices.

The commitments also include having the three countries create a joint database with practices to detect and interdict “foreign fugitives with known or suspected ties to North America.” This kind of a targeted “bad guy lookout” system has long been advocated and presumably it will have both criminality and security components and, hopefully, be supported by face-recognition biometrics because bad guys don’t always use their real ID.

Immediately prior to the summit, Prime Minister Justin Trudeau announced that the Canadian visa requirement on Mexican travelers, which was imposed in 2007, will be lifted by the end of the year. While this was presented, and reported, as a reversal of a mean-spirited action by the previous Harper government, there has been little consideration of why the visa restriction was imposed in the first place. In essence, following 9/11 and a U.S. crackdown on people illegally in their country, the government of Ontario raised the issue of clearly bogus refugee claimants entering Canada at land ports of entry from the U.S. where they made refugee claims. This resulted in their admission and a huge financial burden on the system. In truth, these people were not at risk while in the United States and, for a number of reasons, like better welfare and free health care, preferred being “refugees” in Canada. Ontario proposed a “Safe Third Country Agreement” where people making such claims at land ports of entry were returned either to Canada or the U.S. from where they had arrived and sought entry.

Initially, the then-Liberal federal government resisted this initiative, which was part of a larger Perimeter Security Strategy, which (full disclosure), I helped draft. This seemingly changed over time as Ottawa took over negotiations and the Canada-U.S. Safe Third Country Agreement was enacted (with supporting Immigration and Refugee Protection Act regulations) in 2004.

The issue resurfaced in 2007, when, southwestern Ontario became flooded with thousands of Mexican refugee claimants following another U.S. crackdown on people illegally in the U.S. They were allowed to stay despite the Safe Third Country Agreement designed to prevent this. A review of the agreement’s fine print revealed that the U.S. Department of Justice created an exception for people who were citizens of countries without a visa requirement to enter Canada which, in 2007, included Mexico. That was the reason that the previous government imposed the visa requirement. It worked. The flood of bogus Mexican refugee claimants seeking entry to Canada from the United States stopped almost immediately and has not re-occurred.

If the Trudeau government lifts the visa requirement without some modification to the Safe Third Country Agreement and the IRPA Regulation, we will be re-opening the door to a problem that was fixed. Rest assured that the financial and systemic performance consequences to the refugee system will be enormous, especially if Donald Trump becomes president and Mexicans illegally in the U.S. seek to avoid deportation.

In summary, there are a significant number of border security issues that require substantive choices and action from the new government rather than consultation or review. The good news is that since his appointment in November 2015, Public Safety Minister Ralph Goodale has shown a repeated inclination for that kind of pragmatic approach, including wanting to know the facts and holding agency heads to account. That’s called leadership and it is needed now on the critically important border security and Canada-U.S. files.

Scott Newark is a former Alberta Crown Prosecutor who has also served as Executive Officer of the Canadian Police Association, Vice Chair of the Ontario Office for Victims of Crime, Director of Operations to the Washington D.C.-based Investigative Project on Terrorism and as a Security Policy Advisor to the Governments of Ontario and Canada

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