Supreme Court of Canada –  1 S.C.R. 9
The Supreme Court of Canada recognizes the role and validity of First Nations’ polices.
Was Decorte illegally detained when he was stopped by the First Nations constables?
Decorte did not face an arbitrary detention, because First Nation policemen have the same powers of other officers and were competent to arrest him (unanimous decision).
Between: Cecil Decorte
And: the Ontario Crown
In 2000, Decorte was stopped by the Anishinabek Police Service, which had set up an operation to prevent impaired driving outside of the Fort William Reserve near the City of Thunder Bay, Ontario. This police force was established as part of a 1991 federal government initiative whereby First Nations could enact policing policies aimed at improving the administration of justice. The police officers trained under these auspices were meant to have the same powers as any other officers, with the authority to enforce federal and provincial laws but with a culturally sensitive approach.
During this operation, part of the R.I.D.E. program, police officers randomly stop drivers to determine whether there is evidence at first glance that the driver should be asked to take a breathalyzer test. The officer present remarked that Decorte had alcohol on his breath. Decorte declined the breathalyzer test and was charged under the Criminal Code since he refused to comply with the officers’ demand. Decorte was under probation at the time: he was to refrain from consuming any alcohol and had a curfew from 4 pm to 10 am.
Decorte: The evidence should have been excluded from his trial because he had been “arbitrarily detained” according to section 9 of the Canadian Charter of Rights and Freedoms because the Anishinabek Police Service did not have the authority to set up operations to prevent impaired driving since they are not peace officers within the meaning of the Criminal Code. Decorte also raised the argument of the same police force’s lack of territorial jurisdiction in this case.
The Crown: The First Nations Constables have the same powers as police officers in the objective of performing “specific duties,” such as preserving peace, order and public safety, preventing crime, promoting the safe use of motor vehicles, apprehending alleged offenders and laying charges. The operation under which Decorte was arrested falls into this category of duties.
The Ontario Supreme Court (2002): Decorte is cleared of the offence, but he was convicted for failing to comply with a recognizance order.
The Ontario Court of Appeal (2003): The conviction is upheld.
McLachlin, Major, Bastarache, Binnie, LeBel, Deschamps, Fish
The detention was not arbitrary. In fact, the “specified duties” of First Nations Constables, provided in sect. 12.2 of the Anishinabek Police Service Agreement 1999‑2004, are consistent with and essentially the same as those attributed to police officers. Accordingly, the First Nations Constables had the authority to perform the operations to stop the appellant and detain him.
The territorial jurisdiction argument was rejected. The authority of the First Nations Constables is not restricted to the reserves. Their powers are established and described by the relevant statutes, which authorize them to exercise their duties “in and for the Province of Ontario.”
The Decorte decision had the effect of clarifying the authority of Aboriginal police services. These services were a result of the First Nations Policing Policy which was instituted in 1991 by the federal government to provide Aboriginal communities with a police corps that is accountable to them.
This program is administered by Public Safety Canada with the help of the RCMP (Cooper, 2003). Its objectives are to strengthen public safety in Aboriginal communities, to help First Nations to be self-sufficient in justice administration and to promote a new partnership between the federal government and First Nations (Public Safety Canada, 2007). Consequently, the responsibilities of those Aboriginal police services are the same as those of other police forces in Canada, meaning that they can enforce provincial and federal law (such as the Criminal Code) and the community’s by-laws (Ibid).
The First Nation concerned can choose either to establish its own police force through a Tripartite Agreement (as was the case with the Anishinabek Police Force) or to work with an already established force which can deploy a contingent of First Nations officers on its territory (Cooper, 2003).
In 2013, First Nations police services faced a funding crisis. The Assembly of First Nations asked that the program be reviewed (AFN, 2013).
Assembly of First Nations. 2013. Assembly of First Nations Calls for Support for First Nations Police Services in Wake of Recent Shooting Incidents in Alberta and Ontario. On-line. http://www.afn.ca/index.php/en/news-media/latest-news/assembly-of-first-nations-calls-for-support-for-first-nations-police-s Consulted September 15, 2013.
Cooper D.C. 2003. RCMP First Nations Community Policing Service. On-line. http://www.rcmp-grc.gc.ca/pubs/abo-aut/fncps-spcpn-eng.pdf. Consulted December 14, 2009.
Public Safety Canada. 2007. First Nations Policing Policy. Government of Canada: Ottawa. On-line. http://www.publicsafety.gc.ca/pol/le/fnpp-eng.aspx. Consulted December 14, 2009.