North American Security Perimeter News Round-Up

Buzz is building about Canada and the United States government’s announcing a security perimeter agreement. Three Canadian articles aid in understanding what the deal hopes to accomplish, the steps needed to complete the deal, and—most importantly—the tensions any agreement would have to resolve between the two nations.

SC Magazine makes clear that the soon-to-be announced security perimeter deal is really a package of “around three dozen separate border unification measures” that have already been concluded.

What’s the impetus behind these deals? Well, as CBC reports, the positive trade impact trade of a security perimeter agreement is not lost on Obama administration members like U.S. Ambassador to Canada David Jacobson:

"This is a big deal," Jacobson said as he addressed a manufacturing summit in Montreal. "Particularly in my country people understand that if we're going to move the needle on exports and on trade, and on jobs that are dependent on export and trade, we're going to have a lot more bang for our buck by focusing on Canada."

But, in some ways, the main impact of these agreements may be to return U.S.-Canada to its pre-9-11 trade relationship. From the Vancouver Sun:

He [Ambassador Jacobson] said that in the years following those attacks, the U.S. moved quickly to implement security measures at the border, which caused traffic tieups and "emotional" consternation in Canada. 

"Clearly, as you ramp up security and just slow things down and make it less efficient and make it more onerous, it doesn't look as welcoming. I understand that and all Americans understand that. And that's something that we have worked on with Canadians."

But of course there are those who worry about the implicated of a security perimeter deal. This February 4, 2011 CBC article summarizes the Canadian partisan dynamics surrounding the deal:

The issue has been a hot political topic since a U.S. government watchdog called Canada-U.S. border security "unacceptably ineffective" in a report released on Tuesday. Later that day, PMO spokesman Dimitri Soudas announced that Harper would be travelling to the U.S. to meet with Obama.

Liberal Leader Michael Ignatieff then accused Harper of "talking with President Obama about things he's not prepared to talk to Canadians about."
Robertson told The Canadian Press the government should be keeping other parliamentarians and politicians in the loop. 

"Concerns over privacy, standards and sovereignty need to be assuaged and the case made for how the initiative serves the national interest," he wrote in a forthcoming report for the Canadian Defence and Foreign Affairs Institute and the Canadian International Council. "Mr. Harper needs to confide in Mr. Ignatieff and the premiers." 

Since the release of the U.S. government watchdog's report, opposition MPs have accused the government of not doing enough to stand up to the U.S. 

"Every deal this prime minister has made has led to a thicker border, not a thinner one," NDP MP Brian Masse said. "American politicians continue to slag Canadians as terrorists and they go uncontested every single day."

But with Harper now enjoying a parliamentary majority, it seems any roadblocks on the measures would have to originate in the States—not Canada.

Yet, legal eyes will be watching what legal agreements the nations do--or do not--come to on certain areas. As noted by the articles above, there is concern in Canada that more invasive American border security measures will diminish Canadian privacy expectations. But there will also be issues related to America' and Canada's different immigration policies.

As Reuel S. Amdur points out in The Canadian Charger:

The idea of harmonizing immigration and refugee policy is disturbing. Ours is, in spite of Harper, still a more open policy on refugees, and we are actively promoting selective immigration, with many people coming from countries that are on Washington’s radar.

 As far as security is concerned, we are already involved in NORAD and are paying around 10% of its operational costs. As with the $16 billion or so for fighter jets, against whom are we defending ourselves and our American betters? And should we be wary of American agents operating in Canada? A number have arrests warrants out for them on a kidnapping charge in Italy.

Pendulum Swing: Why Canada’s Cross-Border Jurisdictional Liberalization Matters for U.S. Transnational Lawyers

By Keith Edmund White

Note:  The following is a summary of Mr. Giacomelli’s Sept. 8 presentation to the Cleveland Metropolitan Bar Association’s International Law Section.  I would be remiss if I did not thank Jon P. Yormick, Section Chair, for organizing the event and his insightful comments, not to mention the Section’s  other officers, Mark J. Sundahl and Kristopher O. Justice.  Finally, many thanks to Mr. Giacomelli for his presentation; naturally, this article is my work product and does not intend to speak for Mr. Giacomelli or the Cleveland Metro Bar Association.

                Thursday afternoon I attended a presentation by Jon-David Giacomelli on U..S.-Canadian commercial disputes sponsored by the Cleveland Metropolitan Bar Association’s International Law Section.  Giacomelli focused on the Canadian judicial system’s “revolutionary” change towards enforcing U.S. court decisions within Canada.  He did so by discussing three topics:  (1) the dramatic liberalization of Canadian jurisdictional barriers to enforcing U.S. orders in Canada since 1990, (2) the value of American clients knowing what novel Canadian legal actions they can now use in Canadian litigation, and (3) the pros and cons of litigating commercial disputes in both nations.

                While technical, these subjects are critical to any attorney representing a U.S. client considering an action against a Canadian individual, affiliate, or separate Canadian organization.  And, for those interested or engaged in international commercial law in the United States, this situation will happen:  the Canadian-U.S. trading relationship constitutes the world’s largest trading relationship.  While some may imagine Canadian international commercial lawyers phoning New Delhi or Moscow, it’s important to remember—as Giacomelli noted—that Canada derives more trade dollars from Kentucky “than [with] most of the BRIC countries.”  And, on the American side, 2010 saw over twice as many U.S. export-dollars flowing into Canada than China.  And, remember, today there are more Californians than Canadians.

                Naturally, any barrier to trade costs money—and legal barriers, while admittedly abstract, are no different.   Before 1990, American plaintiffs with U.S. judgments who sought enforcement in Canada were forced to initiate a new Canadian judicial proceeding.    Whether from litigation delay or simply incentivizing legally problematic cross-border behavior, Canada’s jurisdictional nationalism dampened cross-border trade.

But, according to Giacomelli, the last twenty years have pushed Canada’s “jurisdictional pendulum” firmly towards jurisdictional liberalization.  Morguard v. De Savoye, while dealing with interprovincial jurisdictional issues, showed the Canadian Supreme Court’s embrace of the “real and substantial connection” test in determining how Canadian courts decide to enforce other jurisdiction’s legal judgments.  And Giacommelli made clear this term of arc has been interpreted liberally:  “the hurdle…is extremely low” and “courts bending [are] bending over backwards” to enforce U.S. judgments. 

                Of course, this radical change has not come without its critics—but Giacomelli does not place himself or the Canadian Supreme Court within this group of liberalization naysayers.  As he pointed out, in Beals v. Saldanha (2001) the Canadian Supreme Court enforced a U.S. court order where the defendant showed “newly discovered proof of fraud which was not before the U.S. court.”  The Canadian Supreme Court’s response:  since the fraud could have been reasonably discovered at the American proceeding the judgment is enforceable in Canada. 

While Giacomelli acknowledges the dangers of such “liberalization gone awry,” he does not see the Canadian legal system—in regard to American legal judgments—changing its tune anytime soon.  “[T]hose who thought the newly constituted Supreme Court would pull back were solely disappointed,” Giacomelli concluded.  And, in Pro Swing Inc. v. Elta Golf Inc. (2006), the Canadian Supreme Court went even further by making clear American injunctive orders could also be enforced in Canada.  

In sum, the liberal swing of Canada’s jurisdictional pendulum isn’t changing anytime soon.

            And how does this liberalization burst impact U.S. practitioners? American lawyers, when enforcing U.S. judgments in Canada, can now avail themselves of novel Canadian legal claims.   But, Giacomelli noted that many American lawyers are still playing catch-up when it comes to executing these tools properly, at their client’s possible detriment.  Standing out in Canada’s commonwealth tool box are (1) Mareva injunctions that freeze a defendant’s assests at the onset of a case and (2) Anton Piller orders that permit civil search warrants to be executed by the plaintiff.  Both require U.S. attorneys to not only spell-check their bill, but become acquainted with these legal tools’ procedural and substantive aspects.

              But, even clearing those hurdles does little if the U.S. legal practitioner cannot appreciate the differences between Canadian and American-style litigation.  Giacomelli uses 400 factors when advising clients, but—thankfully—boiled these down to a handful of core American and Canadian litigation benefits.  America (1) offers more avenues for accruing damages and (2) greater discovery access.  On the other hand, Canada offers (1) less expensive litigation, (2) legal costs to the winner, and (3) the natural advantages of both counsels settling the matter in the same jurisdiction. 

               An American international commercial must know these three topics—Canada’s liberalizing jurisdictional barriers, novel legal tools, and overall litigation benefits—before advising a U.S. client on what forum-shopping.  And, perhaps even more important, it allows the prepared international commercial lawyer to take advantage of their adversary’s (possible) lazy lawyering.

                In short, understanding Canada’s jurisdictional liberalization not only makes for good parlor-room conversation, it’s need-to-know information for international commercial lawyers who suspect they may run into world’s greatest trading relationship.