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Extra-Jurisdictional Policing: A National Dilemma

 

Author: Inspector Gord Schumacher L.L.B., Winnipeg Police Service, February 2003

Most police officers falling within the baby boom era can recall the weekday sightings of the Dukes of Hazard speeding down county roads in General Lee, being closely followed by the Sheriff Rosco P. Coltrane, or on rare occasions, by Boss Hogg himself. Watching the Dukes drive their speedster over creeks and through trees was fun to imagine but impossible to believe. One thing however, inevitable in most episodes, was that the escape would many times be accomplished by crossing the county line; the veritable safe haven where the sheriff lost his authority to continue. Darn those Dukes.

Though the Dukes narrow escapes and accomplishments seemed fantastical, one aspect with a disturbing air of reality is the difficulties experienced by the sheriff with jurisdictional boundaries. The following discussion examines the jurisdictional difficulties being experienced police officers in Canada and the progress that will hopefully see police officers with the ability to cross-jurisdictional boundaries without losing their legislated authority.

In Canada, approximately seventy-one percent of all appointed police officers are sworn in under local, municipal or regional Police Services established pursuant to Provincial Acts1. These "provincially appointed" officers are restricted to the jurisdiction of the province appointing them; at no time can they exceed provincial boundaries while maintaining their power as a police officer2. This restriction has created difficulty in effectively enforcing crimes that span provincial boundaries, specifically with regard to investigations of organized crime and drug related offenses. In many cases police members encounter situations where an investigation takes them outside of their jurisdictional area. This is most prevalent when assisting extra-provincial police agencies or conducting surveillance / investigations pertaining to Outlaw Motorcycle Gangs.

The Canadian Law Enforcement community has established a National Strategy to Combat Outlaw Motorcycle Gangs. This strategy includes the need for police agencies to work in concert. It is imperative that police agencies become organized and that the Federal and Provincial Governments support initiatives of the National Strategy by amending the Criminal Code or otherwise providing/facilitating a unilateral provincial solution, to allow for the authorized extra-provincial movement of police officers who are involved in criminal investigations.

At this stage in Canadian history, the disheartening realization is that Outlaw Motorcycle Gangs and Organized Crime Groups are organized; the police are trying to be. This is not to say that intelligence information isn't being communicated by Police across the country; on the contrary, an intelligence network has been established for some time and appears to operating efficiently. The difficulty arises most prominently when extra-jurisdictional resources are required to assist local authorities. An example of this type of situation arose in 1997 in the City of Red Deer, Alberta, and has served as the catalyst for discussions with government since that time. In Red Deer, a City of 60,000 people, hundreds of motorcycle gang members from Canada and the United States converged to celebrate the take over of the Grim Reapers Motorcycle Gang by the Hells Angels. It was only with the help of police officers from across Canada that the situation was contained and controlled. Subsequent examination of the processes followed in Red Deer identified that many police officers who attended from outside Alberta were doing so without peace officer status, which meant they were without Criminal Code protections established for police officers including the right to carry a firearm.

In past years, extra-provincially appointed police officers simply attended these types of gatherings at the request of the local police agency. They did so in ignorance of liability concerns or in disregard of them, either way it was a dangerous practice that in most cases has been stopped. Currently the only method available to allow extra-provincial travel and assistance is to have members sworn in as "Special Constables" in the province of destination, as well as each province in between3. This procedure is cumbersome, time consuming and at times, ineffective. The alternative is to assign extra-provincial police officers to roles of observer or resource person, leaving them without police powers of arrest or the ability to carry a firearm. This is not acceptable.

Since the Red Deer experience, Police Agencies across the country have examined their everyday practices and have realized the impact of the lack of protections and authority when providing assistance or following up on investigations that are outside of their appointed jurisdiction. Even the simplest scenarios such as an Ottawa-Carlton Police officer crossing the bridge into Quebec have become severely problematic.

There has been some suggestion that section two of the Criminal Code might allow for an extension of police power into another province. While there is no definitive, the case of Nolan v. The Queen is instructive, though seemingly unsupportive. The Chief Justice stated:

On a level of principle, it is important to remember that the definition of 'peace officer' in s.2 of the Criminal Code is not designed to create a police force. It simply provides that certain persons who derive their authority from other sources will be treated as 'peace officers' as well enabling them to enforce the Criminal Code within the scope of their preexisting authority, and to benefit from certain protections granted only to "peace officers.4"

There are also a number of lower court decisions and articles which acknowledge that peace officer status ends when the officer is outside of the appointing jurisdiction5. Two exemptions have been identified in which police officers maintain their status when crossing jurisdictional boundaries: 1) hot pursuit (R v. Roberge)6 and 2) when there is a "sufficient nexus" between activity outside their jurisdiction and their police duties within it (Nolan, Stewart ibid.). Neither of these exemptions addresses a sustained extra-provincial authorization.

While the Criminal Code does not provide clear direction, it does appear that extra-provincial competence of peace officers, has at least in part been contemplated. CCC section 513 identifies that warrants specific to Part XVI, will be directed to a peace officer within the territorial jurisdiction of the issuing authority. Section 514 then goes on to clarify that the warrant could be executed by a peace officer to whom it was directed "whether or not the place in which the warrant is to be executed is within the territory for which the person is a peace officer"7. In other words, the Criminal Code is purporting to allow an individual, who is not a police officer within the defined area, to attend an outside jurisdiction and execute a warrant as if he was a peace officer within the jurisdiction of arrest8. Though providing a glimmer of hope for a federal solution, this section is likely unconstitutional, not in the Charter sense but based on original Constitutional principles, and was likely not clearly thought out by the original drafters9.

While a 1998 Resolution submitted by the Canadian Association of Chief's of Police supported a Criminal Code solution10, and the Criminal Code itself hints at a possible codified answer, discussion between the Federal Department of Justice, the Ministry of the Solicitor General and various Provincial Justice Departments indicate that a provincial approach may be more effective and appropriate; the emerging picture may see each province amend local legislation with corresponding federal changes that allow for extra-provincial travel of a police officer and the maintenance of peace officer powers and protections. While this process may appear cumbersome, even untenable given the myriad of required legislative changes and Agreements, the Constitutional restraints upon Federal authority over provincial policing may make this solution reasonable.

Though reasonable as a base approach, the mechanics of actually putting the model in place may be difficult given discrepancies, even within the police community, as to how the process should work. Should extra-provincial authority be valid in all cases when a police officer crosses a provincial boundary or should authority be specific to certain investigations? Must there be a notification to, or required approval from the police of jurisdiction and could they refuse to allow the police officer within their jurisdiction? Are time limits appropriate? What should the reporting structure look like?

Many questions will emerge from all sides once a framework has been established. It will be extremely important for all affected to be cognizant of the ultimate goal and facilitate less than complicated solutions.

Civil Liability and Discipline

Concern has been expressed regarding how civil liability and discipline processes attach to police officers leaving their authorized area. One way in which these concerns can be addressed is with an acknowledgement of status obtained when the police officer enters the outside jurisdiction. If a police officer, with authorization from their originating agency, enters another jurisdictional area, he/she does so with the knowledge that their authority, responsibility, and accountability will be mandated under the legislation applicable within the specific area they are entering. As an example, if a Winnipeg Police Officer enters Ontario, that Officer would be subject to those protections legally available to police officers in Ontario. The Winnipeg Police Service would provide any additional protection against both civil and criminal liability, as negotiated within the terms of their Collective Agreement and within the parameters of the Provincial Law Enforcement Review Act and other applicable legislation.

This suggestion may not be as simple as it appears as conflict and challenge can be anticipated from Police Associations and local discipline regimes regarding jurisdiction, competence and cost. The answer may lie in a duel track approach that would see the host jurisdiction maintaining primary jurisdiction with a defined role being maintained within the appointing area.

The Canadian Police community recognizes the mobility of Organized Crime and the escalating problems associated with the boundaries imposed on provincially appointed police officers. Since 1997, the Hells Angels have effortlessly crossed provincial boundaries growing from fifteen chapters in four provinces to thirty-five chapters in eight provinces and their number will continue to grow along with the carnage which includes 163 murders, 181 attempt murders, 18 missing OMG members, 29 innocent bystanders being injured or killed and millions of dollars in property damage due to bombings and arson11.

In keeping with the National Strategy to Combat Outlaw Motorcycle Gangs, and the desire to keep Canadians safe from Organized Crime, it is imperative that the Federal and Provincial Governments work together to provide for multi-jurisdictional peace officer status. This status must carry all the protection and authorization as appointed by the rendering province, including the right to carry a firearm.

These comments do not advocate the abolition of provincially appointed police officers, nor the erosion of powers designated under the Constitution. The intent is only to identify some of the current issues being discussed and to point out that police officers across Canada are in need of Federal and Provincial support to facilitate a fluidity of law enforcement in order to better protect the citizens of Canada.


Footnotes

1Law Reform Commission of Canada, Legal Status of the Police by Philip C. Stenning (Montreal, Que.: Supply & Services Canada, 1982).
2 This excludes appointments by M.O.U. with the Royal Canadian Mounted Police.
3 The process of obtaining Special Constable status is different in each province, for example in Saskatchewan the process is expedited by simply sending a letter to the Provincial Firearms Officer, while Ontario has more rigid controls that can take up to six months for authorization.
4 41 D.L.R. (4th) 295
5 R v. Schroeder 22 MVR. (2d) 307, R. v. Stewart 66 C.CC. (2d) 481, R v. Soucy 23 C.C.C. (2d) 561, R v. Arsenault 55 C.C.C. (2d) 39, P. Ceyssens, "Legal Aspects of Policing" (Toronto: Earlscourt,1994) at 1.5
6 [1983] 1 S.C.R. at 332
7 CCC section 514.
8 This potentially could include situations involving high-risk takedowns or armed entry into a building. See also CCC section 528(2).
9 Comments influenced through discussion with Superintendent Tom Grue from the Edmonton Police Service.
10 The CACP Resolution called for the Federal Government to amend sec. 2 of the CCC to provide protection for police officer who leave their jurisdiction in the furtherance of a boni fide police investigation.
11 Statistics obtained through the WPS OMGU and are cumulative beginning July 1994