SUPREME
COURT OF CANADA
Citation: R. v. Decorte, [2005] 1
S.C.R. 133, 2005 SCC 9
|
Date: 20050225
Docket: 30081
|
Between:
Cecil Decorte
Appellant
v.
Her Majesty the
Queen
Respondent
Coram:
McLachlin C.J. and Major, Bastarache, Binnie, LeBel, Deschamps and Fish JJ.
Reasons for
Judgment:
(paras. 1 to 31)
|
Fish J. (McLachlin C.J. and
Major, Bastarache, Binnie, LeBel and Deschamps JJ. concurring)
|
Appeal heard and
judgment rendered: December 10, 2004
Reasons delivered:
February 25, 2005
______________________________
R. v.
Decorte, [2005] 1 S.C.R. 133, 2005 SCC 9
Cecil
Decorte Appellant
v.
Her Majesty
The Queen Respondent
Indexed
as: R. v. Decorte
Neutral
citation: 2005 SCC 9.
File
No.: 30081.
Hearing and
judgment: December 10, 2004.
Reasons
delivered: February 25, 2005.
Present: McLachlin
C.J. and Major, Bastarache, Binnie, LeBel, Deschamps and Fish JJ.
on appeal from
the court of appeal for ontario
Criminal law — Police — Powers of First Nations Constables — Whether
First Nations Constables may set up R.I.D.E. operations just outside reserves
they are engaged primarily to serve — Whether First Nations Constables then
remain “peace officers” within meaning of Criminal Code — Criminal Code,
R.S.C. 1985, c. C‑46, ss. 2 “peace officer” (c), 145(3),
254(5) — Highway Traffic Act, R.S.O. 1990, c. H.8, s. 48 —
Police Services Act, R.S.O. 1990, c. P.15, ss. 42(1), 54(3).
Constitutional law — Charter of Rights — Arbitrary detention — First
Nations Constables setting up R.I.D.E. operations just outside reserves they
are engaged primarily to serve — Accused stopped, arrested and charged with two
offences under Criminal Code — Whether accused arbitrarily detained by First
Nations Constables — Canadian Charter of Rights and Freedoms, s. 9 .
The accused was stopped by two First Nations Constables, both members
of the Anishinabek Police Service, just outside the Fort William Reserve
in Ontario. They had mounted a “R.I.D.E.” operation at an intersection through
which motorists pass on their way to and from the reserve. The accused was
charged with refusal to comply with a breathalyzer demand and failure to comply
with a recognizance. He was convicted of the latter offence after the trial
judge held that the First Nations Constables could set up R.I.D.E. operations
just outside the Reserve and therefore did not arbitrarily detain the accused.
The Court of Appeal upheld the accused’s conviction.
Held: The appeal should be
dismissed.
Section 48 of the Highway Traffic Act empowers police
officers in Ontario to conduct roadside stops for R.I.D.E. purposes. Although
First Nations Constables are not “police officers” within the meaning of the Police
Services Act (“P.S.A.”), s. 54(3) P.S.A. nonetheless
expressly attributes them with “the powers of a police officer” for the purpose
of carrying out their “specified duties”. The “specified duties” of these
First Nations Constables, set out in art. 12.2 of the Anishinabek
Police Service Agreement 1999‑2004, correspond in substance to
those vested in police officers by s. 42(1) P.S.A., thereby also empowering
them to conduct roadside stops for R.I.D.E. purposes. The “territorial
jurisdiction” of the members of the Anishinabek Police Service is not confined
to the territorial limits of that community; rather, it is determined by
relevant statutes and regulations, by agreements to which they are subject and
by the terms of their appointment or engagement, and these sources of authority
empower them to act “in and for the Province of Ontario”. Finally, all members
of the Anishinabek Police Service are “peace officers” within the meaning of
para. (c) of that definition in s. 2 of the Criminal Code and
these First Nations Constables were therefore empowered by s. 254(3) to
demand a breath sample and arrest the accused for failing to comply with the
demand. Since the accused was detained pursuant to the lawful exercise by the
First Nations Constables of their power to set up a R.I.D.E. operation just
outside the Reserve, the evidence upon which he was convicted was obtained in a
manner that did not infringe his right under s. 9 of the Canadian
Charter of Rights and Freedoms “not to be arbitrarily detained or
imprisoned”. [14-29]
Cases Cited
Approved: R. v. Stephens (1995),
102 C.C.C. (3d) 416; referred to: Dedman v. The
Queen, [1985] 2 S.C.R. 2; R. v. Hufsky, [1988]
1 S.C.R. 621.
Statutes and Regulations Cited
Anishinabek Police
Service Agreement 1999‑2004, preamble, arts. 2.1, 5.2(c),
12.2.
Canadian Charter of Rights and Freedoms,
ss. 9 , 24(2) .
Criminal Code, R.S.C. 1985, c. C‑46,
ss. 2 “peace officer” (c), 145(3), 254.
Highway Traffic Act, R.S.O. 1990,
c. H.8, s. 48.
Police Services Act, R.S.O. 1990,
c. P.15, ss. 42(1), 54(1) to (3).
Authors Cited
Canada. Solicitor General of Canada. First
Nations Policing Policy. Ottawa: The Ministry, 1996.
APPEAL from a judgment of the Ontario Court of Appeal (Catzman, Abella
and Gillese JJ.A.) [2003] O.J. No. 3497 (QL), upholding the accused’s
conviction for failing to comply with a recognizance, [2002] O.J. No. 1995
(QL), [2002] O.T.C. 346. Appeal dismissed.
Irwin Koziebrocki, for the appellant.
Michal Fairburn, for the respondent.
The judgment of the Court was delivered by
Fish J. —
I
1
Cecil Decorte, driving a black Chevrolet, was stopped shortly before 1
a.m. on November 25, 2000, by two First Nations Constables just outside the
Fort William Reserve, which abuts the City of Thunder Bay, in Ontario.
2
The constables, Murray Pelletier and Derek Johnson, were both members of
the Anishinabek Police Service. They had mounted a “R.I.D.E.” operation at an
intersection through which motorists pass on their way to and from the
Reserve. “R.I.D.E.” has become an acronym for “Reduce Impaired Driving
Everywhere”. The “E” in “R.I.D.E.” initially stood for “Etobicoke”, where this
police procedure was introduced, in the early 1980s: Dedman v. The Queen,
[1985] 2 S.C.R. 2.
3
R.I.D.E. programmes are authorized in Ontario by s. 48 of the Highway
Traffic Act, R.S.O. 1990, c. H.8 (“H.T.A.”), which permits police
officers to randomly stop drivers “for the purpose of determining whether or
not there is evidence to justify making a [breath sample, or ‘breathalyzer’]
demand under section 254 of the Criminal Code ”. Random stops of this
sort pass constitutional muster: R. v. Hufsky, [1988] 1 S.C.R. 621.
4
Mr. Decorte refused to comply with a breathalyzer demand made by Officer
Johnson and he was charged for that reason under s. 254(5) of the Criminal
Code, R.S.C. 1985, c. C-46 . He was charged as well, under s. 145(3) of
the Code, with failure to comply with a recognizance: At the time of
his arrest, Mr. 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 4:00 p.m. and 10:00 a.m. He was stopped at the
wheel of his car, with alcohol on his breath, in breach of the curfew.
5
For reasons that do not concern us here, Mr. Decorte was acquitted of
the breathalyzer offence. He was convicted, however, for having failed to
comply with the recognizance ([2002] O.J. No. 1995 (QL)) and his conviction was
affirmed by the Court of Appeal for Ontario ([2003] O.J. No. 3497 (QL)).
6
There is no question that Mr. Decorte’s conviction is fully supported by
the evidence. The issue is whether that evidence ought to have been excluded
by the trial judge under s. 24(2) of the Canadian Charter of Rights and
Freedoms . Essentially, Mr. Decorte submits that the evidence ought to
have been excluded on the ground that he was “arbitrarily detained”, within the
meaning of s. 9 of the Charter , by the First Nations Constables who
stopped, arrested and charged him.
7
That depends on whether First Nations Constables may set up R.I.D.E.
operations just outside the reserves they are engaged primarily to serve and
whether they then remain “peace officers” within the meaning of s. 254 of the Criminal
Code .
8
After examining the materials placed before us and hearing the parties,
we were all satisfied that these two questions were correctly answered in the
affirmative by the trial judge ([2002] O.J. No. 5511 (QL) (voir dire))
and the Court of Appeal, both relying on the earlier decision of the Court of
Appeal in R. v. Stephens (1995), 102 C.C.C. (3d) 416.
9
We therefore dismissed the appeal, with reasons to follow.
10
These are our reasons.
II
11
Mr. Decorte, as mentioned earlier, was stopped just outside the Fort
William Reserve at a R.I.D.E. checkstop operated by Murray Pelletier and Derek
Johnson, two First Nations Constables employed by the Anishinabek Police
Service.
12
The Anishinabek Police Service was established pursuant to a First
Nations Policing Policy introduced by the Government of Canada in 1991. Under
its auspices, tripartite agreements between federal, provincial or territorial
and First Nations authorities have been negotiated across Canada. Their
objective is to “improve the administration of justice for First Nations
through the establishment of First Nations police services that are
professional, effective, and responsive to the particular needs of the
community” (First Nations Policing Policy (1996), at p. 2).
13
These agreements are meant to afford First Nations communities
professional, well-trained and culturally sensitive police officers with “the
same responsibilities . . . as other police officers in Canada
. . . [and] the authority to enforce applicable provincial and
federal laws (including the Criminal Code ), as well as Band by-laws” (id.,
at p. 4).
14
In Ontario, the statutory underpinning for the appointment of First
Nations Constables is found in s. 54 of the Police Services Act, R.S.O.
1990, c. P.15 (“P.S.A.”), which provides:
54.—(1) With the Commission’s approval, the
Commissioner may appoint a First Nations Constable to perform specified duties.
(2) If the specified duties of a First Nations
Constable relate to a reserve as defined in the Indian Act (Canada), the
appointment also requires the approval of the reserve’s police governing
authority or band council.
(3) The appointment of a First Nations Constable
confers on him or her the powers of a police officer for the purpose of
carrying out his or her specified duties.
.
. .
15
For reasons that are irrelevant here, First Nations Constables are not
“police officers” within the meaning of the P.S.A.; s. 54(3), as we have
just seen, nonetheless expressly attributes to them “the powers of a
police officer” for the purpose of carrying out their “specified duties”
(unless otherwise indicated, the emphasis throughout is mine).
16
When Mr. Decorte was stopped and arrested, the “specified duties” of
Officers Pelletier and Johnson were set out in art. 12.2 of the Anishinabek
Police Service Agreement 1999-2004, which was entered into by 17 First
Nations, including the Fort William First Nation. These duties included but
were not limited to:
(a) preserving the peace and order and public
safety;
.
. .
(c) preventing crimes and providing assistance
and encouragement to other persons in their prevention of crime;
(d) accident prevention through the promotion of
the safe use of vehicles and vessels;
.
. .
(i) apprehending alleged offenders and others
who may lawfully be taken into custody;
(j) laying charges and participating in
prosecutions;
.
. .
17
The “specified duties” of Officers Pelletier and Johnson relevant to
this case thus corresponded in substance to those vested in police officers in
Ontario by s. 42(1) of the P.S.A.
18
Moreover, there is no dispute that police officers in Ontario were
empowered by s. 48(1) of the H.T.A. to establish the kind of R.I.D.E.
operation which led Officers Pelletier and Johnson to intercept and detain Mr.
Decorte and to lay the charge that concerns us here.
19
Officers Pelletier and Johnson thus shared the specified duties
of police officers — and, in virtue of s. 54(3) of the P.S.A. — the powers
of police officers to establish the kind of random roadside stop that resulted
in Mr. Decorte’s detention, arrest and conviction.
20
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. 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.
21
Finally, all members of the Anishinabek Police Service are “peace
officers” within the meaning of para. (c) of that definition in s. 2 of
the Criminal Code . As a “peace officer”, Officer Johnson was therefore
empowered by s. 254(3) of the Code to demand that Mr. Decorte provide a
breath sample and, with Officer Pelletier, to arrest Mr. Decorte for failing
to comply with that demand.
22
It follows inexorably that Officers Pelletier and Johnson were
authorized by the combined effect of s. 48(1) of the H.T.A. and s. 54(3)
of the P.S.A. to set up the roadside checkstop that netted Mr.
Decorte — unless, as Mr. Decorte contends, their power to do so could only
be exercised within the perimeter of the Fort William Reserve.
23
I turn now to that issue.
III
24
As I mentioned earlier, s. 54 of the P.S.A. is the statutory
source of the authority exercised by First Nations Constables in Ontario.
Section 54(1) provides that First Nations Constables are appointed, with the
approval of the Police Commission, by the Commissioner of the Ontario
Provincial Police (the “Commissioner”).
25
Officers Pelletier and Johnson were both appointed by the Commissioner
“to act as a First Nations Constable for the Province of Ontario . . .
for the purpose of performing law enforcement functions in Ontario while
acting as a First Nations Constable pursuant to First Nations Policing
Agreements . . .”. (Ministry of the Solicitor General, Ontario Civilian
Commission on Police Services, First Nations Constable Appointment (pursuant
to the provisions of s. 54 of the P.S.A.))
26
Article 2.1 of the Anishinabek Police Service Agreement 1999-2004,
which concerns us here, provides that a member of the Anishinabek Police
Service “exercises the powers of a police officer in and for the Province of
Ontario . . .”.
27
The oath of office taken by Officers Pelletier and Johnson refers to the
“discharge [of their] duties as a Police Officer with the Anishinabek Police
Service in the Province of Ontario”. And, in each instance, the
Identification Certificate provided to them by the Commissioner states that
they are empowered to exercise their authority “in the Province of Ontario”.
28
The preamble of the Anishinabek Police Service Agreement 1999-2004
reflects the manifest intention of the parties to it: The Anishinabek Police
Service was established “to serve the policing needs of the Member Nations”
and, generally, to discharge its duties on the “Anishinabek Territory” — which
includes the Fort William Reserve. But its members are plainly empowered by
the sources of their authority, including their formal appointments, to
discharge their policing duties outside that Territory, anywhere in
Ontario, in relation to the First Nations communities they are employed
primarily to serve. I say “primarily” because art. 5.2(c) of the Anishinabek
Police Service Agreement 1999-2004 expressly includes, as a “goal” of the
Anishinabek Police Service, to provide police services, upon request, “to
non-aboriginal communities in Ontario, when possible or when resources permit”.
29
Mr. Decorte was detained pursuant to the lawful exercise by Officers
Johnson and Pelletier of their power to set up a R.I.D.E. operation just
outside the Fort William Reserve. Since he was not “arbitrarily detained or
imprisoned”, the evidence upon which he was convicted was obtained in a manner
that did not infringe his right under s. 9 of the Canadian Charter of Rights
and Freedoms . His application to exclude that evidence under s. 24(2) of
the Charter was therefore properly dismissed by the trial judge.
IV
Conclusion
30
There are two issues in this case. The first is whether the officers
who stopped and detained the appellant, Cecil Decorte, were authorized by law
to set up a R.I.D.E. 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 .
31
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.
Appeal dismissed.
Solicitor for the appellant: Irwin Koziebrocki,
Toronto.
Solicitor for the respondent: Ministry of the Attorney
General of Ontario, Toronto.