BTBObserver Q&A Emily Gilbert, Pt.

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Keith White recently chatted with Professor Emily Gilbert, Program Director of the University of Torontos Canadian Studies Program. In the first of a two-part interview series, Professor Gilbert discusses Next Generation (NxtGen), a Beyond the Border initiative that has recently hit some turbulence. NxtGen was meant to bring the success of joint Canada-U.S. law enforcement efforts along the Great Lakes to land-crossings.
OK, a really serious opening question: Is it Next Generation, NxtGen, or NextGen? And whats the deal with all the competing titles?

It is confusing! But I think the inconsistency with the terminology speaks to the fact that this is a very new initiative, still in formation. That people dont know what to call itor how to spell the hip abbreviation that will be usedis a reflection of its newness. Theres been some NxtGen heartburn, at least from my reading of the Canadian press. The Canadian Press got a memo revealing a U.S. request last year that U.S. police be exempted from Canadian law when operating in possible NxtGen operations in Canada. How big a deal is this revelation?

This could be a deal breaker. Canadians are generally very open to working with the United States, but also very sensitive to any suggestion that sovereignty will be undermined. In fact, whenever any discussion of border cooperation is on the table, the arguments that seem to resonate the most strongly with Canadians are sovereignty issues. In this case, the territorial sovereignty of Canadian law is certainly challenged by the U.S. request that its police be exempt from Canadian law on Canadian soil. As a result, there has been lots of media attention on the issueand public commentary has exploded. This pushback is especially noticeable because there was almost no public concern raised about the basic idea to allow designated Canadian and U.S. border security officers to cross the border in pursuit of criminals. It was only when the request for the suspension of Canadian law was revealed that the debate has become heated. These concerns have focused not just on the abstract concept of sovereignty but about the impact on the Canadian Charter of Rights and Freedoms and the rule of law.

From my initial research, it seems crossborder operations already happen--with Canadians and Americans subject to the law of whatever country they are in. Is this true? If so, why did NxtGen come about?

The Shiprider agreement already allows crossborder operations in shared and undisputed CanadaU.S. waterways. Shiprider (officially called Integrated Cross-Border Maritime Law Enforcement Operations) allows designated law enforcement officers to move across maritime borders when they are in vessels jointly crewed by the U.S. Coast Guard and the Royal Canadian Mounted Police. The domestic laws of the host country remain enforced. This means that the sovereignty of national laws is not undermined. Shiprider started as a pilot project in 2005 in the Great Lakes and St. Lawrence Seaway area. A slightly longer operation was in place during the 2006 Superbowl, and further trials were undertaken in 2007 in the Ontario-NY region, and the Strait of Georgia on the West coast. These were weeks-long initiatives were designed to test the principle of cross-border policing. In May 2009, in a low-key event, then Homeland Security Secretary Janet Napolitano, and Canadian Minister of Public Safety, Peter van Loan, announced that Shiprider was being made permanent. This was just in time for two high-security events in Canada in 2010: the Vancouver Olympics and the G8/G20 meetings that were held in the Toronto region. Shiprider was out in full force during both of these events. In 2012, Canada passed legislation that endows U.S. cross-border law enforcement officers with the same powers of enforcement as a member of the Royal Canadian Mounted Police. Similar legislation is not required in the United States. NxtGen is seen as taking Shiprider a step further, as part of the Beyond the Border declaration announced by U.S. President Barack Obama and Canadian Prime Minister Stephen Harper on February 11, 2011. NxtGen will be rolled out on land, between ports of entry. Effectively, the crossborder enforcement principles of Shiprider will be implemented in the less heavily securitized areas between border crossings. If NxtGen is just building on past efforts, why the controversy?

The controversy with NxtGen has arisen because, whereas, Shiprider observes and reinforces the authority of domestic law, it appears that the United States wants to suspend the jurisdiction of Canadian law for its NxtGen officers. Can NxtGen proceed without trampling domestic legal jurisdiction? Perhaps, but the full implications of either model of cross-border law enforcement will really only become clear when a tragedy takes place, and a law enforcement officer acts inappropriately. It is only then that the legal ramifications will be fully worked out. While Canadians have been concerned about the suspension of law, I think that regardless of the model, cross-border law enforcement poses problematic concerns about transparency, accountability, and responsibility.