Contributing Lawyers


Cyndee Todgham Cherniak

United States

Susan Kohn Ross


Andrew Hudson

Timing is Everything - Democratic Candidates Threaten NAFTA Within Hours of Canada Announcing Budget Measures for Border Security


Friday, February 29, 2008.

Cyndee Todgham Cherniak, is Counsel in the International Trade Law Group at Lang Michener LLP and an adjunct professor at Case Western Reserve University School of Law in Cleveland, Ohio teaching a course on the North American Free Trade Agreement (NAFTA) and bilateral trading arrangements. She is also the co-founder of the Trade Lawyers Blog, the Women Lawyers Blog and the Canada Law Blog .

On February 26, 2008 at 4:00 p.m., James M. Flaherty, Canada's Minister of Finance, tabled the 2008 Federal Budget and read his Budget Speech which contained new provisions regarding Border Security.  These new provisions are in addition to spending that was committed in previous budgets, mini-budgets and economic statements.  Furthermore, this is in addition to the usual spending by the Treasury Board and the billions of dollars being spent on Canada's Armed forces. Therefore, the amounts set out below are examples of new expenditures.

The Budget in Brief provides the following summary of new Canada-United States border measures:

"Improving Canada's Borders

Our borders have to facilitate trade, travel and commerce while protecting us from external threats.  This is why Budget 2008 is investing in borders by:

  • Committing $75 million over two years to ensure the Canada Border Services Agency has the resources it needs to effectively manage the border. <o:p></o:p>
  • Introducing a higher-security electronic passport by 2011. <o:p></o:p>
  • Doubling the validity period of Canadian passports to 10 years when this electronic passport is launched. <o:p></o:p>
  • Providing $14 million over two years to expand the joint Canada-United States NEXUS program for low-risk frequent travellers across the border. <o:p></o:p>
  • Providing $6 million over two years for federal activities to support provinces and territories planning to introduce enhanced driver's licenses. <o:p></o:p>
  • Allocating $26 million over two years to introduce the use of biometric data into visas issued to foreign nationals entering <st1:country-region w:st="on"><st1:place w:st="on">Canada</st1:place></st1:country-region>. <o:p></o:p>
  • Providing $15 million over two years to establish a permanent facility to enhance the security of the Great Lakes/St. Lawrence Seaway region. <o:p></o:p>
  • Allocating $29 million over two years to meet priorities under the Security and Prosperity Partnership on <st1:place w:st="on">North America</st1:place>."<o:p></o:p>

With respect to enforcement, the 2008 Budget announced, "$12 million over two years to enhance law enforcement within Canada's National Parks", many of which straddle the Canada-United States border.

The 2008 Budget also included the millions in new funding to tackle crime and strengthen the security of Canadians, including: $400 million for the Police Officers Recruitment Fund, $32 million over two years to enhance the work of the Public Prosecution Service of Canada and $30 million per year to the National Crime prevention Strategy.

With respect to environmental enforcement, the 2008 Budget announced, "$21 million over two years to make environmental law enforcement more effective." 

In addition, the 2008 Budget announced $113 million over the next two years to support Canada's Food and Safety Action Plan. 

The Food and Safety Action Plan and the above spending may be linked to the August 20-21, 2007 Montelebello NAFTA Leaders Summit attended by Prime Minister Harper, U.S. President Bush and Mexico's President Calderón. It should be noted that without NAFTA this meeting would not have occurred.

On August 21, 2007, the Prime Minister's Office issued a joint statement.  To see the Joint Statement, please click on August 21, 2007 Joint Statement.

Since the implimentation of NAFTA, the leaders of the NAFTA countries have met periodically to discuss matters of interest in North America.  At the Montebello Summit, the leaders determined to focus on the following five priority areas for the next year:

1) Enhancing the Global Competitiveness of North America;

2) Safe Food and Products;

3) Sustainable Energy and the Environment;

4) Smart and Secure Borders; and

5) Emergency Management and Preparedness.

For more information, please refer to the Trade Lawyers Blog article entitled "Montebello Summit Concludes with Canada, the United States and Mexico Joint Statement". 

Within hours of Canada's announcement of its commitment to North American security and without regard to the commitments made at the Montebello NAFTA Leaders Summit, neither Clinton or Obama thanked Canada, or even acknowledge the commitments that Canada announced.  Instead, they threatened to opt out of NAFTA within six months after becoming President, to use their economic power to force Canada and Mexico against their will to the negotiating table and to amend NAFTA to make changes to the environmental, labour, investment and dispute settlement provisions.

What is more important?  The behaviour of Senators Clinton and Obama would suggest that the national security of all Americans, the development of North American solutions to protect against foreign threats, and Canada's participation in Afghanistan is not a top priority.

The top priority for Senators Clinton and Obama is to turn their backs on a friend and to take the "us versus them" mentality to the next level. They have blamed Canada for the effects of globalisation and the U.S. tariff reductions made under the WTO Uruguay Round.  They have both blamed Canada for the loss of auto workers jobs in Ohio when the real culprit is the WTO case brought by the European Union and Japan against Canada and the United States. 

Incidentally, the Auto Pact (negotiated in part by my grandfather, Ron Todgham when he was president of Chrysler Canada) helped build a healthy and strong North American auto industry. The Auto Pact ceased as a result of a WTO Appellate Body decision after a hard-fought fight by Canada and the United States to keep the Auto Pact.  The North American auto industry has suffered as a result of the ending of the Auto Pact. Therefore, the idea that U.S. auto jobs came to Canada is absurd.

If NAFTA is terminated by either Clinton or Obama (and the Canada-United States Free Trade Agreement is also terminated), there will be no need for the NAFTA leaders to meet to discuss North American security.  There will be no reason for Canada to allocate money to border measures that primarily protect American interests and there will be even greater resistance in Canada for Canadian troops to stay in Afghanistan.  These negative effects would not be in the national security interests of the Americans as a whole.

It seems as though the remarks made in Ohio on the same night of the Canadian 2008 Federal Budget were not very Presidential.


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