VZCZCXYZ0008
PP RUEHWEB

DE RUEHOT #0436/01 0911358
ZNR UUUUU ZZH
P 311358Z MAR 08
FM AMEMBASSY OTTAWA
TO RUEHC/SECSTATE WASHDC PRIORITY 7583
INFO RHMFIUU/DEPT OF HOMELAND SECURITY IA WASHINGTON DC PRIORITY
RUEAHLC/DEPT OF HOMELAND SECURITY WASHDC PRIORITY
RUEAWJA/DEPT OF JUSTICE WASHDC PRIORITY
RHFJUSC/BUREAU OF CUSTOMS AND BORDER PROTECTION WASHDC PRIORITY
RUEAORC/US CUSTOMS AND BORDER PROTECTION WASHINGTON DC PRIORITY
RUEADRO/HQ ICE DRO WASHINGTON DC PRIORITY
RUEAIAO/HQ ICE IAO WASHINGTON DC PRIORITY
RHEHNSC/WHITE HOUSE NSC WASHINGTON DC PRIORITY
RHMFIUU/HQ USNORTHCOM  PRIORITY

UNCLAS OTTAWA 000436 
 
SIPDIS 
 
SIPDIS 
SENSITIVE 
 
E.O. 12958: N/A 
TAGS: PBTS EWWT PINS SNAR KTIA KCRM CA
SUBJECT: SHIPRIDER NEGOTIATIONS WITH CANADA - ROUND ONE 
 
Portions of this cable are sensitive but unclassified. 
Please protect accordingly. 
 
¶1.  (U) Summary. On March 20, U.S. and Canadian delegations 
met in Quebec City and completed a productive and successful 
first round of negotiations on a framework agreement on 
integrated cross-border maritime law enforcement operations 
(ICBMLEO).  The delegations reached agreement on much of the 
text and have tentatively agreed to meet again on April 23 in 
Washington, DC to resolve remaining issues, including 
prosecution support, information sharing, and liability.  The 
delegations agreed on guiding principles to resolve the 
remaining issues, which largely deal with risk management, 
and have established an intercessional work plan aimed at 
crafting appropriate text.  The delegations hope to conclude 
negotiations during the next round. Given high-level 
ministerial attention in Canada, signature could follow 
shortly thereafter and entry into force could occur within a 
year, although Canada may require new legislation to 
implement the agreement. End Summary. 
 
----------- 
BACKGROUND 
----------- 
 
¶2.  (SBU) Between 2005 and 2007, Canada and the United States 
conducted three "shiprider" pilot projects under the auspices 
of the bi-national Cross-Border Crime Forum (CBCF) aimed at 
moving beyond information sharing to conducting joint 
intelligence-led patrol operations along the waters of the 
border. During these pilot projects, the Royal Canadian 
Mounted Police (RCMP) and the United States Coast Guard 
(USCG) developed a concept of operations under which officers 
from both countries ride together on the same patrol boats on 
shared waterways along the border, and are fully empowered by 
the laws of both Canada and the United States to enforce the 
laws of both countries. In August 2007, Prime Minister Harper 
and President Bush issued a joint statement at the North 
American Leaders Summit citing the shiprider pilot projects 
and asked ministers to pursue new, innovative, and 
interoperable law enforcement models that would promote 
seamless operations at the border better to protect citizens 
from criminal and ter 
rorist threats. 
 
¶3.  (SBU)  In January 2008, Canada proposed negotiation of a 
permanent framework agreement on integrated cross-border 
maritime law enforcement operations.  Canada delivered a 
draft text on March 11, and the U.S. provided an annotated 
and edited version of that text on March 18, which served as 
the basis for the first round of negotiations.  At the 10th 
CBCF in Quebec City on March 19, Minister of Public Safety 
Stockwell Day commented in plenary that it was time to "get 
shiprider negotiations done" and strongly urged officials of 
both governments to do so.  Substantive exchanges took place 
during the CBCF sessions March 17-19 in advance of formal 
negotiations.  At a press conference following the CBCF, 
Minister Day and Justice Minister Rob Nicholson announced the 
commencement of negotiations. See: 
http://www.marketwire.com/mw/release.do?id=83 4426. 
 
--------------------------------------------- -------- 
A BAKER'S DOZEN - AGREEMENT ON 13 OUT OF 18 ARTICLES 
QA BAKER'S DOZEN - AGREEMENT ON 13 OUT OF 18 ARTICLES 
--------------------------------------------- -------- 
 
¶4. (SBU) The Canadian and U.S. negotiating teams largely 
reached agreement on 13 of the 18 articles composing the 
draft text, including definitions (article 1), scope of 
operations (article 2), direction of operations (article 3), 
central authorities (article 4), designation (article 5), 
training (article 6), customs and immigration reporting 
(article 7), work permits (article 8), custody of persons, 
vessels, or things detained or seized, (article 9), firearms, 
ammunition, other standard law enforcement weapons (article 
11), use of force (article 12), dispute resolution (article 
15), and final clauses (article 17). 
 
¶5. (SBU) The Agreement establishes a framework for 
"integrated cross-border maritime law enforcement operations" 
(ICBMLEO).  Article 1 defines that term as "the deployment of 
a vessel crewed jointly by designated cross-border maritime 
law enforcement officers from Canada and the United States 
for law enforcement or related purposes in shared waterways." 
 Article 1 further defines "shared waterways" as undisputed 
areas of the sea or internal waters along the international 
boundary between Canada and the United States.  (NOTE: USDEL 
confirmed with CANDEL its understanding that the areas of 
disputed waters excluded by this definition are the Dixon 
Entrance, undelimited waters in the vicinity of Machias Seal 
Island and North Rock, the Beaufort Sea, and waters seaward 
of the entrance to the Strait of Juan de Fuca.  The USDEL 
noted a potential dispute in the Chukchi Sea, while the 
CANDEL noted a potential dispute in the Beaufort Sea.  USDEL 
believes these are the same disputes characterized by 
nomenclature from different sides of the line, but promised 
to get back to CANDEL with confirmation.  END NOTE.) 
 
¶6. (SBU) The delegations agreed that ICBMLEO shall take place 
on shared waterways and may be continued ashore in exigent 
circumstances, which is a term defined in Article 2 and is 
intended to allow officers to act when death, bodily harm, or 
loss or destruction of evidence is imminent.  The USDEL 
proposed a new Article 2bis to permit designated cross-border 
maritime law enforcement officers to pursue ashore persons 
liable to detention or arrest encountered on shared waterways 
as necessary to prevent the immediate and unlawful flight of 
such persons.  The CANDEL was uniformly receptive to this 
proposal, but desired to consider it further 
intercessionally, particularly with respect to whether 
pursuit ashore should be subject to temporal or spatial 
limitations. 
 
¶7. (SBU) The RCMP and USCG will be the designated Central 
Authorities for their respective countries.  The delegations 
spent considerable time discussing their respective 
implementation plans, and CANDEL sought assurances from USDEL 
that RCMP would have "one-stop shopping" with the USCG.  The 
USDEL explained that Department of Homeland Security (DHS) 
would most likely issue a Management Directive governing 
ICBMLEO and ensuring consistency and coordination among DHS 
components.  Such a Management Directive would prescribe 
consistent policies and procedures for shiprider-related 
cross-designation of Canadian officers regardless of which 
DHS component was administering the cross-designation 
authority.  The CANDEL accepted these assurances and the 
texts of Article 5.1.2 accordingly reflects that the USCG 
"may appoint or arrange for the appointment" of individuals 
as cross-designated officers.  Additionally, the USDEL 
proposed adding a new sub-article 5(6), providing: "Each 
Party shall establish and promulgate a single document 
setting out the policies that apply to integrated 
cross-border maritime law enforcement operations and training 
for and in their respective territories." The CANDEL was 
uniformly receptive to this proposal, and the delegations 
agreed to finalize it during the next round. 
 
¶8. (SBU) Article 6 establishes requirements for the Central 
Authorities jointly to develop, approve, and periodically 
review a joint program for cross-designated officers.  This 
program is largely established as a result of the pilot 
projects and both sides expressed their intent to build on 
Qprojects and both sides expressed their intent to build on 
it.  With Article 7, the delegations agreed to provide 
designated cross-border maritime law enforcement officers 
alternative mechanisms to meet customs and immigration 
reporting requirements between ports of entry.  (NOTE: During 
the shiprider pilot projects, 8 CFR 235.2 was used to 
minimize the reporting requirement to  once-a-shift.  8 CFR 
235.2 provides Port Directors with discretion to defer the 
inspection of any vessel or aircraft, or of any alien, to 
another Service office or port-of-entry.  Alternatively, the 
U.S. could establish by regulation a specific reporting 
exemption for shiprider projects analogous to 8 CFR 235.1(g), 
which governs U.S. citizens, lawful permanent residents of 
the United States, and other aliens, entering the United 
States along the northern border, other than at a 
port-of-entry. END NOTE.)  Article 8 requires each Party to 
provide designated officers with exemptions from any required 
work permits.  (NOTE:  Cross-designated foreign officers are 
not "employed" for purposes of Federal immigration 
regulations.  See 8 CFR 274a.12. END NOTE.) 
 
¶9. (SBU) The delegations agreed on the text of Article 9, 
which establishes the three most important factors for 
determining the custody of persons, vessels, or things 
detained or seized in the course of ICBMLEO:  location, 
location, location!  Accordingly, the first paragraph of 
Article 9 provides that all seizures shall be dealt with in 
accordance with the laws of the country in which they are 
seized.  As a corollary, the second paragraph of Article 9 
provides that nothing seized in the host country shall be 
removed from it except in accordance with its lawful 
processes.  Article 9 leaves one lacuna unfilled:  what 
happens when a suspect or evidence is seized in the waters of 
one country but must be transported through the waters of the 
other country in order to deliver the suspect or evidence to 
authorities ashore?  There may be several locations on the 
Great Lakes where shiprider programs might encounter this 
situation.  Consequently, the delegations agreed to develop 
and consider a few concrete scenarios 
 intercessionally and then resolve the matter at the next 
round. 
 
¶10. (SBU) The delegations agreed on the text of Article 
10(1), which provides that while engaging in ICBMLEO, 
officers shall be subject to the domestic laws of the Party 
in whose territory any criminal misconduct is alleged to have 
occurred and be subject to the jurisdiction of the courts of 
that Party subject to the rights and privileges that a law 
enforcement officer from the host country would have in the 
same situation.  They likewise agreed on the text of Article 
10(4), which provides that the law enforcement agency that 
employs a designated cross-border maritime law enforcement 
officer shall be solely responsible for the professional 
review of and discipline procedures for its participating 
officers.  Articles 10(2) and 10(3) will be the subject of 
intercessional work groups.  See paragraph 13. 
 
¶11. (SBU) Article 11 establishes the basis for cross-border 
carriage of firearms during ICBMLEO.  For the U.S., the 
underlying authority is a combination of status as a Customs 
Officer (excepted) (19 USC 1589(a)) and a pre-existing 
exemption for import and export of service firearms & 
ammunition for any foreign law enforcement officer of a 
friendly foreign government entering the United States on 
official law enforcement business (18 U.S.C. 922 (y)(2)(D) as 
implemented in 27 CFR 478.115).  For Canada, the underlying 
authority is a combination of status as a peace officer 
pursuant to section 117.07 of the Criminal Code and securing 
a permit granted under the Export and Import Permits Act. 
Canada intends to seek a more efficient legislative solution 
to this issue.  Article 12 briefly sets forth the shared 
guiding principles for the use of force:  all use of force 
shall be in accordance with the laws of the host country and 
only force that is reasonably necessary under the 
circumstances shall be used. 
 
¶12. (SBU) Article 15, upon which the delegations agreed, 
establishes that the Central Authorities will seek to resolve 
disputes through consultations, and that the respective 
Governments will consult if the Central Authorities cannot 
resolve the matter.  Article 17 sets forward the standard 
provisions for entry into force, amendments, and termination. 
 The USDEL advised the CANDEL that this would be a executive 
agreement for the United States and would not therefore 
Qagreement for the United States and would not therefore 
require advice and consent (a point which the CANDEL fully 
welcomed and appreciated).  The CANDEL advised the USDEL 
that, under recently announced procedures, the Canadian 
government would need to lay the agreement before Parliament 
for 21 days before bringing it into force.  A Justice Canada 
official noted that the Agreement would likely also require 
new legislation prior to entry into force and that it might 
take one year or more for Parliament to enact such 
legislation.  However, the Canadian Head of Delegation 
suggested that, given the commitment at Montebello and other 
public expressions of Ministerial support, Canada might be in 
a position to bring the Agreement into force relatively 
quickly.  The USDEL inquired whether Canada could 
provisionally apply the Agreement, and CANDEL replied that it 
could not.  CANDEL did, however, note that shiprider 
operations could, if necessary, be conducted in the interim 
under the non-binding framework established for the pilot 
projects. 
 
-------------------------------------------- 
REMAINS OF THE DAY:  RISK MANAGEMENT ISSUES 
-------------------------------------------- 
 
¶13. (U) Most of the issues remaining for negotiation may be 
categorized as risk management issues.  Article 10(2) is 
intended to address civil liability of a visiting officer 
arising from ICBMLEO in the host country.  Canada's original 
proposal was that the Parties shall be responsible for paying 
any damages if their respective officers are found liable. 
The USDEL explained that it could not commit to such a 
framework and offered an alternative formulation that the 
Party employing the officer would make best efforts in 
accordance with its domestic laws to facilitate and enforce 
any judgment issues in the host country.  Similarly, Article 
10 (3) is intended to ensure that cross-designated officers 
appear, cooperate, and provide evidence in internal or 
civilian oversight investigations; however, both delegations 
appreciated the need fully to understand and compare the 
scope of privileges and immunities available to officers on 
each side, and how any differences between them might 
adversely affect the officers in their parallel or subsequent 
proceedings in their home countries. The delegations 
established small work groups to engage the respective 
subject matter experts in each country and develop options 
and text in advance of the next round of talks. 
 
¶14. (SBU) The delegations established an intersessional work 
group to deal with Articles 13 and 14, which are 
inter-related.  Article 13 is intended to address information 
sharing and Article 14 is intended to address prosecution 
support.  The delegations appear well aligned on their 
desired outcomes for both articles.  The Agreement needs to 
recognize and account for the operational and procedural 
distinctions between the tactical sharing of information by 
officers working together aboard the same vessel, and the 
subsequent sharing of investigative and prosecution support 
information.  The final version of Article 13 will therefore 
likely recognize certain limitations in distribution or 
disclosures of information obtained by a Party (or its 
officers) in the course of ICBMLEO, as well as establish a 
consultative process in the event of unforeseen requirements. 
 
 
¶15. (SBU) In considering Article 14 intercessionally, the 
work group will first need to determine whether any or all of 
the provisions of the existing Mutual Legal Assistance Treaty 
(MLAT) between Canada and the United States should be 
incorporated by reference into this Agreement, or whether 
ICBMLEO requires separate handling.  It may be the case that 
the level of integration envisioned by ICBMLEO will require 
direct liaison between cross-designated officers and their 
servicing prosecution authorities on both sides of the 
border, possibly with a reporting requirement to the 
respective Justice Departments.  The delegations will also 
need to agree upon a framework for costs associated with 
prosecution support, including whether to make use of the 
existing MLAT framework (requesting Parties bear all costs of 
their requests). 
 
¶16. (SBU) Both Articles 13 and 14 will likely require some 
limitations on the obligation to provide assistance when 
compliance with a request is likely to be detrimental to the 
national sovereignty or security, public policy, or other 
important interests of the requested country.  Such an 
Qimportant interests of the requested country.  Such an 
exemption would likely permit a Party to decline to provide 
its assistance in whole or in part, or allow a Party to 
stipulate that its provision of assistance shall be dependent 
upon the fulfillment of certain conditions or requirements. 
There are pre-existing models in the existing MLAT and 
Customs Mutual Assistance Agreement from which the 
delegations may draw. 
 
¶17. (SBU) The CANDEL intends to review Articles 16 and 16bis, 
the latter proposed by the USDEL in the leap up to this 
round.  Article 16 is simply an Anti-Deficiency Act clause 
and is not expected to be controversial.  Article 16bis is 
largely a standard preservation of rights and privileges 
clause, but it contains an additional proviso offered by the 
USDEL at the table in response to RCMP concerns to ensure 
that nothing in this Agreement shall in any way limit the 
rights and authority of designated cross-border maritime law 
enforcement officers while operating in their country. 
 
----------- 
NEXT STEPS 
----------- 
 
¶18. (SBU)  The heads of delegation concurred that nothing is 
finally agreed until everything is agreed (and, accordingly, 
have left final negotiation of the preamble for last).  That 
said, the delegations have agreed to most of the text, and 
will begin work intercessionally on the few remaining 
provisions.  The delegations have three teams working 
together intersessionally on Articles 10(2), 10(3), 13, and 
¶14. The delegations also have small groups developing 
scenarios to explore the geographic inhibitor issues that 
emerged during the discussion of Article 9, and preparing 
short overview papers on: 1) comparative authorities of 
cross-designated officers; 2) respective privileges & 
immunities; and, 3) differences in authorities between 
Canadian Peace Officers, RCMP Members, and any other relevant 
positions. 
 
¶19.  (U)  The next round of negotiations is tentatively 
slated for April 23 in Washington DC.  Heads of delegation 
will confirm dates by the end of March. 
 
------------ 
DELEGATIONS 
------------ 
 
¶20. (U) U.S. Delegation: 
 
Brad Kieserman, USCG (Head of Delegation) 
Wayne Raabe, DOJ 
Keith Mines, DOS/Embassy Ottawa 
Wendy Fontela, DHS 
Lawrence Belotti, CBP 
Carollyn Jackson, CBP 
Ron Appel, ICE 
Anne Beck, ICE 
Thomas Blanchard, ICE/Embassy Ottawa 
Dan Huelsman, USCG 
Jim Larkin, USCG/Embassy Ottawa 
Sloan Tyler, USCG 
 
¶21.  Canadian delegation: 
Alan Kessel, DFAIT (Head of Delegation) 
Kathleen McLaurin, DFAIT 
Marie-Josee Gingras, DFAIT 
Michael Zigayer, Justice 
Don Beardall, Public Prosecution Service 
Sophie Beecher, Public Safety 
Anita Dagenais, Public Safety 
Tim Mowrey, Public Safety 
Marc Taschereau, Public Safety 
Warren Coons, RCMP 
Joe Oliver, RCMP 
Nicole Robichaud, RCMP 
Patricia Johnston, CBSA 
David Quartermain, CBSA 
Ravi Sall, CBSA 
 
¶22.  (U) This cable was prepared and cleared by the USDEL. 
 
Visit Canada,s Economy and Environment Forum at 
http://www.intelink.gov/communities/state/can ada 
 
BREESE