THE LONG ARM OF UNCLE SAM
A Growing Number Of U.S. Crimebusters Are Operating In B.C. In A Cross-Border Crackdown
The U.S. Attorney prosecuting three Canadians in the cross-border drug tunnel case will ask a Seattle judge next week to seize the B.C. property on which the tunnel was constructed.
A court order would mean the little piece of Canada on Zero Avenue would be surrendered to the U.S. government if property owner Francis Devandra Raj is convicted on trafficking charges, regardless of whether individuals or banks in Canada have an outstanding claim on the Langley land.
The tunnel case is just one of several recent cross-border investigations that have some legal experts concerned about what they see as growing encroachment of U.S. law enforcement agencies into Canada and the erosion of Canadian sovereignty.
In July, B.C. pot activist Marc Emery and two associates were arrested at the request of U.S. authorities who accuse him of selling marijuana seeds over the Internet to Americans. The arrest came despite the fact that Canadian police had ignored Emery's activities for years.
Last March, the B.C. Civil Liberties Association wrote to the RCMP Public Complaints' Commission about in incident in which an off-duty Vancouver police officer was stopped in the Fraser Valley by Texas state troopers working with the RCMP to detect motorists under the influence of marijuana.
The Vancouver constable, David Laing, also complained to the commission about the involvement of foreign police agents and received a settlement from the RCMP.
"The Texas Rangers example is one of the most brazen examples of Canadian authorities acquiescing to U.S. control on Canadian soil," Jason Gratl, president of the civil liberties association, said Friday. "It is not just about this guy's rights. It is really about our territorial integrity . . .
. It is absolutely outrageous that a foreign law enforcement official would be on the front lines of policing in British Columbia."
Ian Hillman, spokesman for the U.S. Consulate in Vancouver, won't give the exact number of law enforcement agents from his country operating here, but notes that the Federal Bureau of Investigation, the Drug Enforcement Administration, the U.S. Secret Service, the Bureau of Alcohol, Tobacco and Firearms, and the Department of Homeland Security are all represented.
"For security reasons, we can't give out the exact numbers, but I can tell you overall we are very, very small," Hillman said. "We are here in a liaison capacity only. They don't have the authority to conduct active investigations in Canada because this is a sovereign nation."
Hillman said there is increasing cooperation between the two countries on law enforcement issues, but he sees it as a positive exchange.
"So when the RCMP has a question about someone they are doing an investigation on in Canada that is related to one of the agencies, they will go to the liaison here because they know the person on a first-name basis," Hillman said.
But Gratl said there is a concern that if U.S. law enforcement agencies in Canada collect information on Canadians and return to the U.S., "it is not subject to our courts' jurisdiction."
"Nothing our courts can do can compel foreign law enforcement or investigative authorities to produce documents for use in Canadian proceedings. This means that even unconstitutionally obtained evidence can be used in the United States against Canadian citizens without any remedy whatsoever," he said.
"The Emery case is a telling case in this sense -- there were DEA agents on Canadian soil operating purportedly with the approval or under the supervision of the Vancouver Police Department, but when it became necessary to record phone calls placed by U.S. agents to Emery's seed store, the U.S. agents returned to American soil in order to record those conversations. Perhaps the reason is because those agents would be prohibited by law from doing so on Canadian soil."
RCMP Staff Sergeant Paul Marsh said from Ottawa that it is natural to have more cross-border cooperation when crime has become more global.
"Criminals are more networked than ever before," Marsh said. "Obviously we are going to maintain Canadian sovereignty. Investigations that are conducted in Canada are Canadian investigations. We will provide support to our American counterparts and that is extremely important that we support each other . . . . There are no borders when it comes to crime.
But defence lawyers believe that for the most part, there is a tendency to allow American authorities to arrest suspects who are committing crimes on both sides of the border because penalties are harsher in U.S. courts.
Canadian investigators watched for months as trafficking suspects built their tunnel from the Zero Avenue property to the U.S. without intervening or laying charges. But when the group began to use the tunnel, they were nabbed by the U.S. DEA.
"There is no question that at least the FBI and DEA are very active in working with the RCMP up here in British Columbia. That has been the case for several years, although there is no question that the extent of that cross-border cooperation has increased dramatically in the last while. I think the Emery case and the tunnel case are simply examples of that,"
prominent defence lawyer Michael Bolton said Friday.
"Those offices are cast as intelligence-gathering offices rather than investigative offices, but obviously at certain points there is a thin dividing line and the sharing of information can lead to the active involvement in investigations which is not permissible."
Bolton said the sovereignty issues may well be clarified by the Emery extradition case when it is heard in B.C. Supreme Court.
"[U.S. agencies] are instigating and inspiring and consulting on, and sometimes directing, the course of criminal investigations in Canada. That clearly constitutes an infringement on Canadian sovereignty. It is an infringement that is officially encouraged by the police and tacitly encouraged, I think. by the government."
David Martin, a lawyer who specializes in extradition cases, said Canadian courts are sometimes the final defenders of the country's sovereignty.
"As long as [a defendant] is still in Canada, not only do the courts have a vital role to play in defending our sovereignty, but so to does the minister of justice," Martin said. "The courts are our last line of defence."
Seattle lawyer Richard Troberman, who is representing Raj, said he couldn't comment on whether strategic decisions are being made to nab Canadian criminals when they cross into the U.S.
He said if the U.S. Attorney is successful in the land forfeiture case, his client will not be able to do anything with the Canadian property, which will be turned over to the government upon conviction.
If Raj tried to sell the property in violation of the U.S. court's ruling, "he would be subject to contempt of court, obstruction of justice, enhanced penalties on the underlying offence," Troberman said.
Emery lawyer John Conroy said while there have been cases where U.S.
suspects were arrested in Canada as the result of a joint investigation, it is usually the other way around.
"Sometimes Canadian police realize the penalties are heavier in the U.S . .
. so they often would take a strategy to get the person into the U.S."
Sgt. John Ward, of the RCMP's B.C. regional headquarters, said there is no erosion of sovereignty by American police agencies operating in B.C.
"Law enforcement officers conducting operations doesn't happen. It doesn't happen. For example, the Texas guys, whenever visiting law enforcement officers are in Canada they are under the direct supervision of Canadian police officers. It is done with some very stringent parameters . . . they can't carry weapons, they can't interrogate suspects. They are very much here as observers or liaison. They have no police powers whatsoever."
He said he didn't know the details of how the decision was made to arrest the tunnel suspects in Washington state and not in B.C. but that it would not have had to do with the stricter U.S. laws and sentences.
"You don't decide to arrest people depending on which jurisdiction they are in. If you are working jointly with say the Americans, you arrest them based on what charges you need to get," Ward said. "Generally speaking we don't conduct arrests based on whether or not they are in the United States or Canada. We base it on factors such as safety, collection of evidence and so on."
Hillman said the increased U.S.-Canada cooperation in law enforcement came as a result of the Sept. 11, 2001 U.S. terrorism attacks.
"Take it back to 9/11. Because of 9/11 we -- Canada and the U.S. -- signed the smart border accord and in there it called for increased law enforcement cooperation," he said. "There are crimes that are occurring outside of our two countries that are sort of being filtered through one side of the border or the other."