R. v. Decorte, 2005 SCC 9, [2005] 1 SCR 133

                                                 SUPREME COURT OF CANADA

Between:

Cecil Decorte

Appellant

v.

Her Majesty the Queen

Respondent

Coram: McLachlin C.J. and Major, Bastarache, Binnie, LeBel, Deschamps and Fish JJ.

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.