Hon. Roméo Antonius Dallaire:

Honorable senators, I am pleased to rise today to speak to the sixth report of the Standing Senate Committee on National Security and Defence on Bill S-13.

I rise to speak to 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.

I would first like to outline the purpose, background and provisions of Bill S-13, as discussed in committee.

The bill before this chamber deals with a treaty. The bill will implement, in Canada's domestic law, 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. This is an international treaty signed by the representatives of our respective governments in May 2009.

The purpose of this legislation, as indicated in clause 3 of the bill, is to provide additional means to prevent, detect and suppress criminal offences and violations of the law in undisputed areas of the sea or internal waters along the international boundary between Canada and the United States, and also to facilitate the investigation and prosecution of such offences and violations.

The bill reflects the obligations set out in the framework agreement entered into by our two countries. However, this bill is related to another bill that is still being studied in the other place. I am referring to Bill C-38.

An Act to amend the Royal Canadian Mounted Police Act and to make consequential amendments to other Acts.

We have before us a bill that depends on the passage of another bill currently being studied in the House of Commons. I can tell you that that bill gave rise to an interesting debate. There were lively discussions about amendments that were then defeated. Our bill therefore risks being amended if Bill C-38 is passed. If ever Bill C-38 were not passed, Bill S-13, if passed, will come into force. So why such complicated wording that only legal experts or honourable senators better versed in interpreting legislation can understand?

To get back to the bill that is before us, the concept of the operations, known as Shiprider, was designed to improve the ability of Canadian and American law enforcement agencies to prevent, detect and suppress criminal activities that threaten national security or the economic interests of our respective countries. Essentially, the bill would allow RCMP officers to be designated as peace officers in the United States. The bill would also allow American Coast Guard officers to be designated as peace officers in Canada. For example, Canadian peace officers engaged in a pursuit in waters on the Canada-U.S. border would be authorized to continue their pursuit and proceed with an arrest, even if the offending ship enters U.S. waters, and American peace officers would have the same privilege.

The program was designed to ensure continuity in law enforcement in our two countries through the signing of reciprocal access agreements. These agreements would allow Canadian and American peace officers to operate in the other country's waters while remaining in their respective vessels.

The Standing Committee on National Security and Defence heard witnesses, including two representatives of the RCMP: Bob Paulson, Deputy Commissioner, Federal Policing, and Joseph Oliver, Chief Superintendent and Director General, Border Integrity, Federal & International Operations. These witnesses confirmed what committee members had read in the 2007 Shiprider evaluation report. The success of the Shiprider program is mainly due to the fact that it meets a real need in the marine sector, particularly with respect to the ongoing obligation to intervene in illegal cross-border activities carried out by organized crime groups. The integration of RCMP and American Coast Guard personnel was effective. Missions were carried out safely and successfully. People on both sides of the border responded favourably to the Shiprider program. Senator Wallin shared the specific results with us yesterday.

Nonetheless, the evaluation report found that the Mohawk territory that bridges the Canadian-American border in the Cornwall-Massena area represents unique law enforcement challenges given the multi-jurisdictional nature of the geographic area. It recommended the consultation and engagement of the Aboriginal communities of Akwesasne and St. Regis in the development of future initiatives in this territory.

This view on the involvement of Aboriginal peoples in the Shiprider program was confirmed when our committee heard from representatives of the Mohawk Council of Akwesasne. Mr. Brian David, Acting Grand Chief of the Mohawk Council of Akwesasne, who was generally positive about the purpose of Bill S-13, stated:

I think that 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.

However, he went on to express certain reservations. He asked:

How will the police distinguish the good people in Akwesasne from the not-too-good people in Akwesasne? How will these activities disturb some of the customary traditional patterns we have in the river system, like fishing or trapping, and our use of the river system as such? 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 . . .

Later in his testimony, Mr. David said that if the Shiprider program operates within Akwesasne territory then Akwesasne needs to be part of the formula.

Honourable senators, those are significant concerns. The acting grand chief also expressed concern that the Mohawk government was not involved in any of the negotiations of the framework agreement and that their council leadership was informed of the project only two weeks before its implementation. Looking forward, it is important that the Canadian government undertake greater efforts to fulfill the duty to consult and accommodate Canada's Aboriginal peoples. They were involved with Shiprider and have been working to make it a success.

It is also important to recognize that Canadian sovereignty is, to a certain degree, at play in this bill. We should be concerned about the large capabilities of the Americans and the relatively small Canadian capabilities in the area. Take, for example, the Great Lakes. The proposed legislation would put Canadian law enforcement agents on American vessels. We can thus expect to see many more American vessels in Canadian waters. Americans are deploying unmanned air vehicles, FLIR equipment and other sophisticated systems, including access to heavy weapons; although in Shiprider, the police and the Coast Guard are limited to personal weapons.

Honourable senators, this treaty legislation really leaves us, as parliamentarians, very little room to manoeuvre. This brings me to a recent announcement in which the Prime Minister of our country and President Obama signed an agreement to pursue a North American perimeter. If they have signed that, what is Parliament within that? If it is a treaty, where do we stand in influencing its content? As an example, Parliament must be involved, and ultimately an agreement must be subject to parliamentary approval. Of course, that is what we are doing. In any agreement, the devil is in the details and will need to be scrutinized carefully. It is in Mr. Harper's interest to work with Parliament in this current new agreement as negotiations proceed so that negotiators are mindful of what Parliament is prepared to accept, just as, surely, the Obama administration will no doubt be working with the U.S. Congress.

We always worried about the building of fortress North America. If parliamentarians are not within the process, the danger that it actually will happen is quite possible. Will that limit our sovereignty? Will it affect our laws, immigration, human rights, and such? That is for the next round.

As stated in recommendation 4 of the Brown task force report regarding Shiprider, Rebuilding the Trust: Report of the Task Force on Governance and Cultural Change in the RCMP, specifically oriented on the RCMP, the Brown report says that the RCMP should not assume new responsibilities without first ensuring that it has the wherewithal to do so. It should also be remarked that the RCMP-U.S. Coast Guard Shiprider 2007 impact evaluation final report states:

The RCMP will have to make a considerable investment in time, money and human resources to effectively put into place full-time operational Shiprider units. This will be a significant undertaking for the force and a departure from its focus on land-based activities. The U.S. Coast Guard will not have as significant a hurdle to surmount in this regard however, the logistics of establishing new units within existing national infrastructure will require careful planning and implementation.

I have reservations about Bill S-13 because neither the RCMP nor the Minister of Public Safety provided any idea of the new equipment or personnel or training and overall cost required to implement this proposed legislation. They tell us that they will generally be able to absorb the costs and requirements of implementation. Yet, we currently have very limited capability, especially given that the U.S. Coast Guard will be involved in Shiprider operations, while the Canadian Coast Guard is not. Also, we should keep in mind that the U.S. Coast Guard is a military, multi-mission maritime service and one of that country's five armed services.

The Standing Senate Committee on National Security and Defence was not informed of any concrete or even abstract plan to bolster Canada's respective capability in order to create a more balanced operating environment with the Americans.

We will end up putting RCMP on more American naval capabilities, which then permit the American naval capabilities to be in our waters more often. It may not be fiddling with our sovereignty, but that familiarity does put, in my opinion, our respect of our border and our sovereignty at risk if it can be or if it should be abused.

Honourable senators, the Minister of Public Safety tells us that this is a net gain for Canada because we will be riding on the backs of the Americans in terms of our capacity to enforce Canadian law. Tell me how our sovereignty will not be at tested, given these circumstances. You own the ship; you are going to really make it run.

Ironically, the government uses a different argument in the Arctic, where it recognizes the need to have Canadian equipment and vessels and personnel in order to establish and confirm our sovereignty. In my opinion, security on the border is better guaranteed by a "deep" border concept; that is, not a thick physical border, but, rather, a smart border that uses multiple types of resources to reinforce on-the-ground surveillance and over-the-water surveillance. It is my belief that the proposed legislation would make it essential that intelligence material and systems of intelligence gathering be shared between the two countries without reserve. Ultimately, this could pose a problem due to our limited intelligence agencies and in numerous and extensive web of intelligence agencies in the United States, including the U.S. Coast Guard, which is still a military service and thus protective of that dimension of its sources of intelligence.

Honourable senators, for a government that prides itself on transparency, accountability and fiscal responsibility, this is a difficult comportment to justify. In order to fulfil our legislative duties responsibly, we need full disclosure of information concerning the costs of implementing legislation. It is unsatisfactory to say we can simply find the financial costs of this program in a future budget. Before approving new programs, parliamentarians have a duty to taxpayers to ensure they know the cost associated with implementation.

The problem is this: Can the Senate get engaged in such endeavours? Can we actually pass legislation that calls for expenditures, or is that out of our realm? We never received an answer on cost inasmuch as the witnesses, including the minister, said it would essentially be absorbed. So, seemingly, there are no new costs and no figures were provided. Does that get us off the hook? I would contend it is perhaps a question of ethics versus a question of procedure.

Last, the proceedings of the clause-by-clause review of Bill S-13 in our committee were conducted without broadcasting, as required in the Senate. The steering committee decided to do this without broadcasting. It is an essential requirement of a democracy that the legislative process be open and transparent. Committee proceedings, particularly when undertaking clause-by-clause review of proposed legislation, should be as accessible to the public as reasonably possible. Let us not forget that this is, after all, their Parliament. Video broadcast makes our committees more accessible and transparent and, in certain instances, allows viewers to glean additional information that would otherwise be inaccessible from a mere audio broadcast.

Indeed, video broadcasting is the main vehicle for informing the public about our committee proceedings. Public access to the legislative process guarantees the integrity of our democracy inasmuch as the transparency that flows from access ensures that law is made in a manner that is not arbitrary but in accordance with the principles of fairness.

Openness fosters democratic discourse as well as truth-finding. In not having that broadcast, committee proceedings are less accessible to the public, thereby undermining the integrity and openness of the legislative process. Thus, I was disappointed with the decision to not have our proceedings broadcast in committee while we did the clause-by-clause analysis of Bill S-13.

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