Powers of First Nation police upheld by top court

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A Feb. 25 Supreme Court ruling has helped to clarify the policing powers of First Nations constables operating on reserves, but it was strike three for the citizen of the Fort Williams First Nation when the court ruled against his appeal.

Cecil Decorte was sentenced to nine months in jail at trial after being convicted of breaching a court order to remain alcohol free. The 45-year-old has had a number of convictions related to driving under the influence going back to 1978.

In rejecting his appeal the court ruled that "Decorte was bound by a recognizance, entered into some six months earlier, to refrain from consuming alcohol and to remain in an alcohol-free residence between 4 p.m. and 10 a.m. He was stopped at the wheel of his car, with alcohol on his breath, in breach of the curfew."

Decorte was stopped at a RIDE check set up and manned by two Anishinabek Police Service constables just outside the Fort William reserve (located on the edge of the city of Thunder Bay) at about 1 a.m. on Nov. 25, 2000. He was charged with refusing a breathalyser test and breaching the recognizance. At trial he was acquitted on the breathalyser charge because of lack of evidence, but the second charge led to a conviction.

His appeal to the Ontario Court of Appeal was unsuccessful, leading to another appeal to the Supreme Court of Canada.

The main issue in each of the two appeals was jurisdiction. Ontario's Police Services Act specifically states that First Nations constables are not police officers, but are instead given the powers of police officers. Decorte's lawyer, Irwin Koziebrocki of Toronto, argued that police officers with limited powers operating outside of the area they were charged with policing meant that the RIDE stop was improper and they had unreasonably detained his client. Section 9 of the Canadian Charter of Rights and Freedoms specifically prohibits police from "arbitrarily" detaining citizens and, therefore, the evidence collected by the police should have been excluded by the trial judge, he said.

Koziebrocki specializes in appellate work. He is a former executive member of the Criminal Lawyers' Association.

"One of the concerns that has to be dealt with is that the very act that creates First Nations constables says that they are not police officers by definition. So that's the problem. We have an act that says First Nation police officers have, I would use the word 'limited' jurisdiction, but the section says 'specific' jurisdiction," he told Birchbark. "Then when you argue as I did that that specific jurisdiction relates to the reserve, because that's why [First Nation constables] were created, I thought that was a reasonable argument to make."

The lawyer said the decision answers some questions that were previously unclear.

"I don't think it means you're going to see First Nations officers running holus-bolus all over the province to do whatever they feel they want to do. What it says, I think, is this: if you're doing policing on the reserve and there's matters that need to be attended to off the reserve, then you have the jurisdiction and the power to do it. For example, if someone commits a crime on the reserve it doesn't mean they're stopped from leaving the reserve to go find the guy. They can go get them," he said.

Koziebrocki said the RIDE check in question, being located off reserve, could have caught anybody, including people who had no intention of entering the reserve area where the officers had jurisdiction.

"The concern that we had, and it's sort of a broader concern than just this situation, is do police officers take up their own jurisdiction? Do they make it up? Or are they limited by what they're limited to? And I think as citizens you want to know who's policing you and whether somebody can stop you or can't stop you because there are consequences of somebody stopping you," Irwin Koziebrocki said.

The court ruled that the tripartite policing agreements tat were instituted under the federal government's First Nations policing policy give First Nations constables the same authority and responsibilities as other police officers.

"Like other regional and municipal police officers, members of the Anishinabek Police Service are appointed to serve their own community in the absence of specific agreements to the contrary," the court wrote.

"But they are not confined in the discharge of their duties to the territorial limits of that community. Their 'territorial jurisdiction' is determined instead by relevant statutes and regulations, by agreements to which they are subject and by the terms of their appointment or engagement."

In dismissing the appeal, the court said there were two questions that needed to be dealt with.

"The first is whether the officers who stopped and detained the appellant, Cecil Decorte, were authorized by law to set up a RIDE operation just outside the Fort William reserve. The second is whether they were then 'peace officers' within the meaning of S. 254 of the Criminal Code," the court wrote. "As mentioned at the outset, we were all of the view at the conclusion of the hearing that both questions should be answered in the affirmative and it is for these reasons that the appeal was dismissed."