Image credit: David Greening
by Chris Henderson
January 2025
Table of Contents
- The Problem
- A modest proposal to move the needle
- Summary
- End Notes
- About the Author
- Canadian Global Affairs Institute
The Problem
Among many things COVID taught us about governance in Canada in the summer of 2020 was that this country suffers from a fundamental misalignment of authorities and resources for law enforcement at sea. Two examples serve to illustrate the point.
In the fraught, early days of the COVID-19 pandemic, among many federal government measures intended to protect Canada and Canadians was the diktat from the Minister of Transport that “[a] passenger vessel must not navigate, moor or berth in Canadian waters.” When issued in the first week of April, this ministerial direction hardly caused a ripple given the convulsions reshaping the day-to-day lives of Canadians. As the weather warmed, however, and recreational boaters looked to the water to escape the grip of the pandemic, the unprecedented nature of the directive came into focus. While not exclusively directed at Americans, the practical impact was that it became, for the first time in history, illegal for recreational boaters from the United States to enter Canadian waters. While U.S. boaters had always been required to clear customs upon entry, there had never been an outright ban.
While enforcement of such a prohibition might appear superficially straightforward to Canadians, it soon became obvious to operational authorities in the Canadian Coast Guard (CCG) that there was a problem. Firstly, as a policy department, Transport Canada does not possess the capabilities to monitor or enforce such a directive at the national level; such operational roles are delegated to the coast guard in the maritime domain. While the Coast Guard might have the vessels necessary to patrol boundary waters, its personnel lack any authority to enforce the laws of Canada. Those powers currently reside with a number of agencies whose officers must be embarked in coast guard vessels for those ships to be used in enforcement actions. In the case of the COVID-19 Minister of Transport directive, that power was vested in the Royal Canadian Mounted Police (RCMP). Certainly, the RCMP’s West Coast Marine Services Unit is equipped with a small number of high-speed catamarans but the scope of the geographic challenge meant that there were not enough ships and not enough police to establish an effective cordon at the national level. In a word, the federal agencies with the enforcement authorities didn’t have the operational resources, and the agency with the marine resources lacked the authorities. Coordination, good will, and the phenomenon that most people will comply with the law meant that the prohibition was, by and large, respected. That, however, is hardly a recipe for effective, sovereign control of Canada’s maritime domain.
In contrast, the second example deals with the refusal to comply. In August of 2020, with the prohibition on entering Canadian waters well publicized among mariners, a solo sailor from New Zealand chose to ignore the direction and sailed his yacht eastward through the Northwest Passage.1 In this case, the master of the vessel claimed his right of innocent passage and, it must be acknowledged, adhered to direction from Transport Canada not to come ashore in Canada.
Given that there had not yet been any COVID cases reported in Nunavut (the first occurred in November of that year), and the federal and territorial governments were acutely concerned about all potential vectors for the disease, significant resources including coast guard icebreakers, Canadian Armed Forces (CAF) long-range maritime patrol aircraft, RCMP detachments, and Inuit marine monitors tracked the sailboat’s progress. One definition of the epitome of waste is doing effectively that which should not be done at all. Quite apart from the master’s questionable decision to defy Canadian sovereignty for a vanity project during an international public health meltdown, Transport Canada’s after-the-fact administrative monetary penalty regime turned whatever sanction might have been levied – and in this case it would have been a $5,000 fine imposed months later – into a relatively small increase in the cost of doing business. In the face of one bellicose, stubborn sailor from a like-minded country, Canada effectively did nothing. If we won’t stop a solo sailor from a friendly country like New Zealand, who will we stop – and how?
These examples relate to extraordinary events, but similar weaknesses plague the day-to-day assertion of government intent in Canadian waters. Recalling that a peace officer must be embarked in a Canadian Coast Guard vessel for that ship to stop nefarious activities, the cueing of law enforcement personnel and operational assets to potential infractions can be seen as the key ingredient in effectively enforcing the law at sea. Combine the complexity of the intelligence collection and analysis required for such cueing with: the immensity of Canada’s geography and the relative scarcity of ships to patrol its coasts; competing internal priorities of the law enforcement agencies responsible for at-sea enforcement (the RCMP for criminal matters, the Canadian Border Security Agency for customs and immigration violations, and the Department of Fisheries and Ocean for illegal fishing); and the necessity of coordinating information flow through Maritime Security Operations Centres that exist in policy and practice but not legislation and thus have no authority to direct operations at all; and the vulnerability of Canada to malign actors becomes obvious and undeniable. The status quo is inconsistent with the growing urgency of reinforcing Canadian sovereignty in the face of significant geopolitical, economic, and environmental threats. Maintaining it based on inertia, putative resource constraints, or bureaucratic politics would be an abrogation of the federal government’s responsibility to Canadians.
A modest proposal to move the needle
These challenges are not unique to Canada although many of the factors with which Canadian authorities must contend are extreme. So how do other countries solve this riddle? An important consideration for Canadian policy makers is that virtually every littoral state guards its coasts differently. Good models exist to help inform a Canadian solution that is sustainable and consistent with our national interests, but there is no perfect model that can or should be carbon copied to the Canadian context.
Using the lens of “machinery of government” followed by allies and like-minded nations would narrow the field of options but there would still remain a bewildering variety of combinations and permutations. Australia’s Maritime Border Command, for example, is a joint unit of the Australian Defence Force and the Australian Border Force that also coordinates at least four other federal government agencies in domestic waters. The Japan Coast Guard is part of the Ministry of Land, Infrastructure, Transport and Tourism – unequivocally a civilian organization – however, it is also quasi-military and operates at times interchangeably with the Japan Maritime Self-Defence Force depending on the task. In Iceland the coast guard and the navy are the same entity. The German Küstenwache is a civilian law enforcement agency that has no military function or affiliation.2
Narrowing the aperture of an international comparison to the question of whether a nation’s coast guard is part of its military would be equally inconclusive. Firstly, the application of force in the attainment of national policy is exclusively reserved for military force – in this case, the Royal Canadian Navy. In contrast, six of the nine functions of coast guards laid out by the International Maritime Organization (IMO)3 that are conducted by the Canadian Coast Guard are exclusively civilian in nature: search and rescue, pollution response, vessel traffic management, maritime safety, accident and disaster response, and maritime security. The CCG has additional civilian missions such as year-round icebreaking, aids to navigation, and remediation of wrecked, abandoned, and hazardous vessels. Thus, from a Canadian perspective, the Royal Canadian Navy – unequivocally military – and the Canadian Coast Guard – unequivocally civilian – have clear and distinct mandates but a long history of effective, joint operations. Combining the two maritime services into a single structural entity is certainly an option but it is beyond the purview of this paper.
What does begin to appear as a common denominator among coast guards in allied and like-minded countries is whether or not the coast guard has a constabulary role. With the notable exception of His Majesty’s Coastguard, which is the closest analogue to the Canadian Coast Guard from an operational program point of view, most useful comparator coast guards possess law enforcement authorities in their own right.
Accordingly, to disrupt the status quo in Canada, a constructive first step would be to confer upon the Canadian Coast Guard through new legislation – The Canadian Coast Guard Act – a mandate and the authorities for law enforcement at sea. In this manner, the entire CCG fleet would adopt a constabulary role and be able to respond to potential or actual violations of Canadian law whenever and wherever they happen to come upon them. This would add a layer of “target of opportunity” policing to the toolkit that is currently absent. It would also increase the government’s options and flexibility to deal with the unexpected when the coast guard is conducting its regular programming without embarked police; when exigent circumstances demand a rapid response; and, when coordination with – and dispatch of – other law enforcement agencies prevent a timely or effective response. This is particularly true in the vast, remote stretches of the Arctic where the coast guard is often the only federal presence. As the case of the solo sailor described above shows, this is not an uncommon possibility in a country as large as Canada. Furthermore, such authorities – and their visible execution – would increase the deterrent effect of Government of Canada vessels in the eyes of all mariners.
The granting of such authorities to the CCG need not be at the expense of existing authorities or operational practices. To operate effectively, federal law enforcement agencies need all the powers they have. Granting additional powers to the CCG to act in the absence of the RCMP, CBSA, or DFO would augment – quite dramatically – the overall capacity and effectiveness of Canadian law enforcement at sea. And the excellent joint work conducted by those agencies with the CCG under the rubric of Section 41 of the Oceans Act would continue.
The establishment of a constabulary role for the CCG would necessitate inter alia significant new training structures and routines, regular exercise planning and execution, professional development of all ranks, and the adoption of intelligence capabilities and enforcement tools, techniques and procedures. Undoubtedly such a change would require leadership and careful management – not to mention a considerable runway to get it off the ground. As the creation and subsequent arming of the Canada Border Services Agency amply demonstrate, one does not create an effective organization overnight, but the precedent exists.
Royal Assent of The Canadian Coast Guard Act would be necessary but not sufficient. The core of a new constabulary force would need to be developed. In this regard, the CCG is blessed by the existence of the Conservation & Protection (C&P) Branch of the current Department of Fisheries and Oceans and the Canadian Coast Guard. Armed peace officers with an operational role buried in the policy sector responsible for juggling the kaleidoscopic dynamics of multiple fisheries are already an awkward fit. The CCG and C&P have been planning and executing operations together for decades and a strong argument could be made for the transfer today of C&P to the coast guard. As the CCG already provides, crews, and maintains the patrol ships used by C&P – including the crew-served weapons used to protect boarding parties of Fishery Officers – the relatively straightforward, zero-to-low-cost transfer of the Director General Conservation & Protection to the CCG from DFO would initiate the evolution of a constabulary coast guard.
Necessary but not sufficient; like all highly trained, specialized capabilities, Fishery Officers are scarce, so CCG Navigation Officers would need to be recruited, educated, and trained to become maritime law enforcement officers. In this way, every ship in the CCG fleet would have an inherent law enforcement capability vested in the authorities of its crew when a Fishery Officer was not on board, as is most often the case. As is the case within the RCN where there is always more than one command-qualified Naval Warfare Officer but only one captain on board a warship, there would only ever be one commanding officer on a coast guard ship whose authorities would enable fishery enforcement at sea. Enabling fisheries enforcement would be a useful first step but there are many other statutes requiring enforcement in domestic waters.
At this point, another useful analogue can be found within the CBSA. Border Services Officers (BSOs) are trained and delegated the authority to apply “more than 100 acts and regulations” at Canadian ports of entry. Key here is the geographic limitation placed upon BSOs. They are expected to enforce multiple laws but are only permitted to do so within strictly prescribed limits. Overreach and excessive enthusiasm for law enforcement are easily constrained, which would become the case for CCG Navigation Officers vested with law enforcement authorities. Over time, an argument could be made for CCG commanding officers to assume enforcement responsibilities at sea for customs and immigration offences, as well as criminal matters, not to mention the plethora of other laws and regulations that from time to time need to be applied: for example, the Minister of Transport’s exclusion order during COVID or perhaps the Quarantine Act during future pandemics when Canada’s borders might once again be closed. Again, such a capability would be in addition to the authorities and capabilities that already exist, and must remain, within the RCMP and CBSA.
An additional and important piece of the puzzle is the role and governance of the inter-departmental Maritime Security Operations Centres (MSOC). While there is ample material for a monograph about the MSOCs, it will suffice for now to assert that bringing the centres under the operational control of the two entities (the CAF and the CCG) that operate the federal government’s fleets would increase efficiency and effectiveness, improve the fidelity of the nation’s maritime domain awareness, clarify lines of authority including for operational tasking, and foster critically important unity of effort. As is noted above, the MSOCs exist in policy and practice but not in legislation. The articulation of The Canadian Coast Guard Act would be an opportune moment to rectify that oversight.
In the category of beneficial byproducts, the suggested changes to the CCG would also augment the nation’s contribution to the security of North America and make the CCG a more interchangeable partner to its US counterpart – particularly in the Arctic where the Canadian Coast Guard has a significant comparative advantage over the USCG and where US authorities look to Canada to increase their share of the burden of defending the continent.
What must be stated at this juncture is that these changes would drive consideration of broader structural changes within the CCG specifically, and perhaps more importantly, pose the question, would such a beefed-up coast guard fit more appropriately somewhere else in the machinery of government? If so, where? And, if that place happened to be within the Department of National Defence, what salutary impact might that have on Canada’s defence contributions to the NATO Alliance about which we hear so much?
Summary
Five years after the COVID-19 pandemic focussed everyone’s attention on our collective vulnerability, some of the lessons learned remain unabsorbed and feasible remediations remain untried. Resources and authorities remain misaligned and, short of the use of military assets, which are not intended for law enforcement purposes, Canada still has no effective means of asserting its authority – or backing up its sovereignty – in Canadian waters. Alternately, the increase in the effectiveness and flexibility of the Canadian Coast Guard as an instrument of national power would be worth the effort of implementing the measures proposed in this paper.
End Notes
1 See https://nunatsiaq.com/stories/article/nunavut-spotter-sees-new-zealand-yacht-heading-east-into-the-nw-passage/
2 https://en.wikipedia.org/wiki/Coast_guard#:~:text=The%20coast%20guard%20may%2C%20varying,ships%20docked%20in%20their%20jurisdiction.
3 https://en.wikipedia.org/wiki/His_Majesty%27s_Coastguard
About the Author
Chris Henderson is a retired senior executive with 37 years of military and public service spent navigating the complex interfaces between government and stakeholders; between strategy and tactics; between planning and execution. Most recently, he spent four years as Deputy Commissioner of Operations at the Canadian Coast Guard. Prior to that role, he was the Assistant Deputy Minister of Public Affairs at the Department of National Defence and held program, policy, and communications positions of increasing responsibility at the Canada Border Services Agency, Privy Council Office, and DND. He has represented Canada internationally in both civilian and military capacities, and dedicated more than 20 years in communications and operational roles in the Royal Canadian Navy.
Chris is currently on contract to Seaspan Shipyards with a keen focus on the recently-announced Icebreaker Collaboration Effort (ICE Pact) among the United States, Finland, and Canada. He has a Bachelor of Arts from Carleton University (1986) and a Masters in Defence Studies from the Royal Military College (2002).
Canadian Global Affairs Institute
The Canadian Global Affairs Institute focuses on the entire range of Canada’s international relations in all its forms including trade investment and international capacity building. Successor to the Canadian Defence and Foreign Affairs Institute (CDFAI, which was established in 2001), the Institute works to inform Canadians about the importance of having a respected and influential voice in those parts of the globe where Canada has significant interests due to trade and investment, origins of Canada’s population, geographic security (and especially security of North America in conjunction with the United States), social development, or the peace and freedom of allied nations. The Institute aims to demonstrate to Canadians the importance of comprehensive foreign, defence and trade policies which both express our values and represent our interests.
The Institute was created to bridge the gap between what Canadians need to know about Canadian international activities and what they do know. Historically Canadians have tended to look abroad out of a search for markets because Canada depends heavily on foreign trade. In the modern post-Cold War world, however, global security and stability have become the bedrocks of global commerce and the free movement of people, goods and ideas across international boundaries. Canada has striven to open the world since the 1930s and was a driving factor behind the adoption of the main structures which underpin globalization such as the International Monetary Fund, the World Bank, the World Trade Organization and emerging free trade networks connecting dozens of international economies. The Canadian Global Affairs Institute recognizes Canada’s contribution to a globalized world and aims to inform Canadians about Canada’s role in that process and the connection between globalization and security.
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