Safety & Security Action is Necessary

SCOTT NEWARK

Jul 1, 2020

Public Safety and Security Issues are Growing, and Action is Necessary.

Following last year’s election, when the Liberals were reduced to a minority government, there was great interest in how this new situation would impact what was a long list of public safety and security issues that clearly required action. And then COVID-19 exploded onto the scene and everything – other than dealing with the pandemic and its disastrous economic impacts – came grinding to a halt.

Despite obvious good intentions and short-term advantages, the government’s massive spending in response to COVID-19 (estimated at as much as $250B) will likely have long-term negative impacts on intended and announced measures as Departments and Agencies will be forced to reduce planned spending to address the ballooning deficit.

This state of inactivity is further exacerbated by the Prime Minister’s decision to reduce the sittings of Parliament in support of ‘social distancing’ which, conveniently, also reduces the ability of Parliament, on behalf of Canadians, to hold him and his government to account for what they’re doing and, importantly, what they’re not doing.

Parliament will only have six sitting days and two days of (virtual) Committee meetings over the next three months. When Parliament returns in late September, hopefully in its usual format, and with COVID-19 under control, it will be time to get back to the business of dealing with issues that require action.

Accordingly, the issues identified in this article require the attention and action of the government and the opposition MPs to ensure Canadians safety and security are appropriately protected.

COVID 19 Issues Review

Similar to most countries, the impact of this pandemic on Canada has been staggering. With a view to ensuring an improved response should it happen again, a ‘lessons learned’ review should be undertaken at an appropriate time to identify both deficiencies and proactive measures.

Examples of specific issues needing review include:

Origins of the pandemic, the sufficiency of global agreements and agencies, and the reaction of the federal government upon learning of the virus;
Critical product supply chains for medicine and personal protective equipment (to ensure non-dependency on unreliable countries like China);
Stockpiling protocols for protective equipment for future emergencies;
Conditions in vulnerable communities such as seniors’ long-term care and correctional facilities;
Adequacy and clarity of federal, provincial and municipal emergency health order enforcement legislation;
Best practices in prevention / recovery.

Arctic Security and Domain Awareness

With the continuing reality of global warming, Arctic marine security is an issue that is increasingly important to all Arctic nations, including Canada.

Although China has no Arctic territory, Beijing clearly sees potential economic benefits of an Arctic marine transportation route valuable natural resources offshore. To further its objectives, China has secured recognition as an ‘Observer’ to the Arctic Council, has also made significant investments in Iceland, and is currently seeking to purchase a Canadian mining company whose facilities include a marine port in the Arctic. Based on past practices, it’s likely that China will aggressively pursue its interests in the Canadian Arctic Ocean territory, which they probably now refer to as the “North China Sea.”

The added reality of a demonstrably aggressive Russia blatantly demonstrating an increased military presence in the region is also troubling.

And tensions between these two adversaries are heating up. A Russian scientist has recently been charged with treason on allegations of passing state secrets to Chinese authorities.

Accordingly, Canada needs to make Arctic Security a priority including through the following actions:

Attempt to secure U.S. recognition of American, Canadian and Russian sovereignty in their own Arctic marine areas – as opposed to an ‘international waterway’ status – and to formulate and implement multinational agreements to support such a strategy;
Identify necessary Canadian marine and aviation security capabilities and take immediate steps to acquire them (including joint efforts with U.S.);
Deploy both marine- and aviation- enhanced domain awareness technology (satellite and low flying aircraft) to support border security, regulatory compliance, marine transportation safety, and environmental protection;
Use national security provisions of the Investment Canada Act to prevent China from acquiring companies that would give it a physical or technological presence in the Canadian Arctic.

Improving Border Security

Border security has been an issue of public concern for years – and is now exacerbated by the realities of mass migration and the human smuggling industry, as well as cross border smuggling of guns, drugs and people into Canada from the United States.

The following actions are recommended to address these issues:

Improve security protocols to combat cross-border smuggling of guns, drugs and people;
Modernize the mandate of the Canada Border Services Agency to expressly authorize CBSA enforcement authority between ports of entry (POE);
Add CBSA to the Canada-U.S. Shiprider program that currently integrates RCMP, local police, the U.S. Coast Guard, and U.S. law enforcement agencies – and start discussions with U.S. on mobile land patrols;
Deploy joint, enhanced domain awareness technology at the Canada-U.S. border (as promised in the 2011 Beyond the Border Action Plan but not delivered), the $92M Anti-Tobacco Smuggling Strategy (2014) and the $92M (reallocated) Border Integrity Technology Enhancement Program (2014). These actions are essential because, as several law enforcement leaders have noted, “What gets through the border illegally, ends up on the streets of our communities.” Creating this intelligence-led enhanced border security is a pragmatic action to address gun crime in Canada and is vastly more effective than imposing more restrictions on lawful firearm owners.
Authorize CBSA vehicular pursuit of port runners;
Authorize full arming of CBSA officers at airports;
Expedite removal of criminal/security deportees.
Modernize the Canada-U.S. Safe Third Country Agreement. Under the Agreement, claimants are required to request refugee protection in the first safe country they arrive in – unless they qualify for an exception. Increasing abuse of the exceptions has led to the following recommendations:

– remove all current exemptions such as the exception for persons from visa-exempt countries (Mexico);

– convince U.S. to improve its visa screening to prevent persons entering the U.S. legally for the clear purpose of entering Canada illegally;

– specify non-applicability for those entering between ports of entry (an action that is illegal under Canadian law, but considered a loophole and exemption);

– require mandatory biometric confirmation for all persons who claim to have ‘anchor relatives’ in Canada, and disqualify anyone whose refugee determination is incomplete or who entered Canada illegally (between POE) from being considered an ‘anchor relative’ for others.

We’ve ended up with a situation where we’ve created an incentive for the human smuggling industry and people to circumvent our laws. It’s time to fix that.

Canadian Jihadis Detained Abroad and their Families

Canada needs to develop a targeted strategy to deal with Canadian jihadis detained by the Kurds in Syria (four identified so far) as well as their wives and children (estimated at approximately 46). The strategy should include:

onsite interviews with specialized teams that include prosecutors and virtual legal aid access to incentivize guilty pleas in local prosecutions followed by return to Canada under the International Transfer of Offenders Act or extradition for prosecution (followed by a guilty plea), or peace bond entry, as well as return of families (followed by child welfare analysis of spouses and families in Canada).

China Strategy Needed

While an honest China strategy will no doubt be challenging, given PM Trudeau’s open ‘admiration’ for China’s authoritarian government, the situation can no longer be ignored as it has been since the mid-90s.

The new Canada-China Relations Committee, or the National Security and Intelligence Committee of Parliamentarians (NSICOP) may be well suited to conduct this analysis and make recommendations. Relevant issues include:

Should Huawei be banned from 5G network participation?
Should investment in Canada by Chinese companies and state-owned enterprises be reviewed to ensure protection of national security interests?
Are we adequately protecting against Chinese espionage in Canada and intellectual property theft?
Review money laundering regulations.
Rethink the current global supply chain and Canada’s dependence on China.
Examine the Chinese diaspora control and academic ‘relationships’;
Review Chinese production and export of fentanyl to Canada;
Prevent the import of goods that have been manufactured or assembled with forced labour in China;
Determine and implement an effective response to the unjustified detention of, and charges against, Michael Spavor and Michael Kovirg.
Develop and participate in multi-nation groups committed to the same issues.

Cyber Security Strategy

There are few more important and all-encompassing public safety and security issues than ensuring we have an effective cyber security strategy supported by intelligence and regulatory processes to stay in front of this ever changing situation.

Compounding this challenge, is the reality that the cyber world “knows no borders” which, ironically, means we need to work with our international partners to develop and implement effective cyber security strategies and operations.

It won’t be easy, but it is absolutely necessary. The recently enacted Bill C-59 made important changes to our cyber security capabilities, and it’s time to ensure they are effectively implemented. Recommended actions include:

Develop a proactive ‘cyber defence’ strategy in co-operation with trusted international partners to ensure informed cyber co-operation in preventive actions;
Implement an informed Critical Infrastructure Cyber Protection Strategy, including regulatory requirements and an ongoing government, industry and security sector advisory body;
Formulate and implement a court-approved binding decryption policy;
Request NSICOP to review these issues in their next Annual Report.

Domestic Violence

Address the growing reality of domestic violence by increasing funding to womens' shelters, victim support groups and to increase the use of electronic monitoring of offenders as well as the specialized victim alert systems.

Criminal Justice Reform

This is an ongoing issue in Canada that includes the long-unresolved issue of more effectively dealing with repeat and high risk offenders, improving criminal case processing, and now, improving police oversight, review and accountability. This latter issue is actually not new, but in light of recent incidents in Canada regarding police interactions (including fatal ones) with indigenous people and people of colour, it has received heightened attention and priority. Accordingly, the following suggestions for actions in the above noted areas are offered.

A defining feature of the criminal justice systems in Canada (and many other countries) is that a disproportionately large number of crimes are committed by a disproportionately small number of offenders. Targeting that reality by operational enforcement or by policy has been shown to produce positive public safety outcomes. Specific actions can be taken while preserving the inherent discretion of public officials, including judges, in our criminal justice system.

What’s required, however, is a long-overdue realization that a ‘one size fits all’ approach is inappropriate – especially in our corrections system. The data on repeat offenders is available but not properly reported (seemingly out of perceived institutional self-interest). In designing and implementing needed reforms, we must keep in mind that we don’t need to be ‘tough’ on crime but we do need to be honest about crime so we can be smart about crime. The following issues should be considered:

Improve the analysis and reporting of crime data including crimes committed by persons on bail, probation, conditional sentence, temporary absence, parole, statutory release, awaiting deportation for criminality, or having previously been deported from Canada.
Improve reporting of defined ‘serious crimes’ committed by persons previously convicted of ‘serious crimes’ within five years of warrant expiry.
Amend s. 145 to add breaching the conditions of correctional early release as an offence under the Criminal Code (as breaching bail or probation already is);
Amend the Corrections and Conditional Release Act (CCRA) to mandate reduced parole eligibility dates for offenders released early from their sentence but who then commit new crimes while on early release;
Amend the CCRA to retain the presumed (but not entitled) early ‘statutory release’ after 2/3 of the sentence, but restrict its application to first-time federal offenders – as confirmation that parole is a privilege to be earned and not a right to be demanded;
Amend the CCRA to allow the Parole Board to order electronic monitoring (EM) of high risk offenders granted parole or statutory release (sex offenders, child sex offenders, terrorists, domestic violence offenders, gang members, chronic repeat offenders, etc.) and make grant programs available to the Provinces for increased use of EM in relevant applications;
Amend s. 719 CC to clarify that no pre-trial custody credit is required at sentencing for offenders who were properly denied bail because of their previous criminal history.

Improve Case Processing

This issue has been the focus of increased attention over the past years as systemic inefficiencies undermine public confidence in the justice system – which has been exacerbated by the recent Jordan decision from the Supreme Court of Canada where the unelected, unaccountable Court made policy choices and set arbitrary timelines for cases to be completed. This issue was closely examined by the Senate Justice Committee in its excellent 2017 report: ‘Delaying Justice is Denying Justice’ which should be revisited to assess whether any progress has been made, and what more needs to be done.

Policing Reform Issues

Amidst the recent public outrage around the world regarding systemic racism within policing, and disproportionate and unjustified violent interactions between police and different non-white racial groups, there has also, understandably, been a call to review the entire policing models currently in place.

For the most radical, this means the abolition of police, creation of new community-based (and racially constituted) law enforcement entities, or crippling current police agencies by slashing existing police budgets or ‘defunding’.

As the anti-police protests became more focused, the call for ‘defunding’ has evolved into a need to review the vastly expanded non-traditional, non law enforcement roles that police are now tasked with – which includes responding to and dealing with persons with mental health, homelessness and drug addiction issues. Incidents that culminate with police use of force, including lethal force, are alarming and definitely worth closer examination, including removing those responsibilities from police and reassigning them, including reallocating funding, to health professionals and others whose mandate is not law enforcement. More effort must be directed to find solutions.

In doing so, it is imperative to appreciate that these non-offender responsibilities were not sought by police but rather were imposed on them by civil leadership precisely because the original model wasn’t working and put public safety at risk.

A number of other issues have been identified in this larger review of police services which merit attention including:

What is the relevant data on questionable police use of force including recipients profile, officer history and systemic or complaint results?
Are police officers and agencies subject to proper, qualified, independent and empowered review in defined circumstances or upon public complaints?
Would body cameras assist in improving police performance and accountability?
Is a reduced or reformed police role in ‘community issues’ appropriate and, if so, what rules and procedures need to be in place to ensure intended results?
How can responsibility for response to mental health, drug addiction, homelessness and other ‘community’ situations be transferred from police services to non-law enforcement groups, and what protections are necessary, including police assistance, when a risk of harm exists?
Should police use-of-force policies and training, which emphasizes achieving and maintaining ‘control’ be revised?

Systemic Discrimination and Racism Issues

Amidst the recent public furor in Canada regarding police interactions with non-Caucasian racial groups was the broad accusation that police in Canada are infected with ‘systemic discrimination or racism’. There was no precise definition given to the term by the accusers and RCMP Commissioner Brenda Lucki was pilloried for saying she wasn’t sure exactly what that term meant. Politically correct hysteria aside, it’s a legitimate question. Does it include formalized laws or policies such as s. 718.2 (e) of the Criminal Code because that requires special considerations (Gladue Reports) for the sentencing of a specified race (Aboriginal) as opposed to a general consideration of challenges due to race, gender, religion etc...?

The incidents of violence and fatality in police interactions with minority groups is an issue that has the potential of undermining public confidence in police and, as such, it merits a substantively focused analysis rather than a politically motivated one. It should also be based on facts such as the disproportionate number of indigenous, black, south Asian and middle eastern racial groups that are convicted of crimes and are incarcerated. That data analysis should also include whether those same groups are also committing a disproportionately high number of crimes and, more importantly, why that is happening. That is a legitimate question, but is really one for our larger political system as opposed to our criminal justice system.

It appears that the issue of systemic racism in policing will be considered by the House of Commons Public Safety and National Security Committee, and this is a positive development.

The following issues are recommended for consideration by the Committee and other entities involved in analyzing this important issue.

Examine the data on whether different racial groups are disproportionately charged with criminal offences and incarcerated, and whether they are disproportionately committing crime or just disproportionately being surveilled.
If disproportional commission of crime exists, examine the reasons (lack of education, lack of work skills and employment, drug addiction, deficiencies in parenting, child abuse, disproportionate policing, etc…) and assess why that is happening and how deficiencies can be addressed.
What strategies exist to address larger systemic issues, such as reforming or ending the reserve system, reviewing child welfare, community housing, education systems and correctional rehabilitation programs?
Analyze all aspects of current police services to determine where ‘systemic racism’ is present and how it can be corrected (hiring, promotion, operations, policy, accountability, community engagement, etc.).
Examine the sufficiency and effectiveness of police, law enforcement and intelligence review agencies, such as the RCMP, CBSA, CSIS, CSC, PBC and others.

Other Justice Issues that Merit Consideration

Are ‘alternative measures’ and ‘diversion programs sufficiently funded and functioning as necessary, including in indigenous communities, for young offenders and through supervision technology such as Electronic Monitoring?
Are bail conditions being imposed unduly onerous and resulting in an inappropriate increase in breach of bail charges? On 18 June 2020, this issue was ruled on by the Supreme Court in R. v. Zora [2020] SCC 14 , and there is no question that this ruling will have consequences going forward.
The Provinces should consider reallocating existing legal aid funding to direct more funds to full time salaried duty counsel rather than private lawyers who get paid based on the amount of time they spend on a case;
Consider conducting a review of the now 37-year-old Charter with a specific focus on how it has impacted justice system performance and whether a modernization is merited. (Get ready for howls of outrage from the juristocracy and the criminal lawyer ‘community.’)

Conclusion

The COVID-19 virus has been an unprecedented event that has understandably put a freeze on what would otherwise be ongoing policy analysis and action in all areas including the public safety and security sectors. As the health situation is clearly improving, it’s time for targeted action by all levels of Government and, hopefully, this analysis will assist in that process.

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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 for Investigative Project on Terrorism and as a Security Policy Advisor to the governments of Ontario and Canada. He is currently an Adjunct Professor in the TRSS Program in the School of Criminology at Simon Fraser University.