Police services are usually a provincial responsibility, however the federal responsibility for "Indians and Lands reserved for the Indians" means policing falls into federal jurisdiction on reserve.¹³⁵ The Department of the Solicitor General of Canada (SolGen) has had responsibility for First Nations Policing Policy¹³⁶ since 1992; the Aboriginal Policing Directorate is responsible for the implementation and administration of the Policy. SolGen, in partnership with First Nation communities or their regional organizations, and the provinces and territories, makes Tripartite Policing Agreements. The result is that reserves most commonly receive policing services from the RCMP-First Nations Community Policing Services (FNCPS) or establish their own police force, although other arrangements also exist which may incorporate policing from provincial or municipal forces.

Response to Domestic Violence

First Nations policing guidelines for handling family violence are adapted from the province in which the community is located. Therefore, the procedure may vary from one province or territory to another. In Ontario, the Policing Services Division's Model Police Response to Domestic Violence is composed of four guidelines. The four guidelines are:

• Domestic Violence Occurrences,
• Bail and Violent Crime,
• Criminal Harassment, and
• Preventing or Responding to Occurrences Involving Firearms.

The RCMP follow a modified form of the provincial guidelines but do not have any written guidelines for responding to violence in the home on reserve. The Ontario Model is a detailed procedure for officers to follow. A brief summary of the steps involved to remove the abuser and have the other family members stay in the home on reserve are:

1. The police respond to a complaint of violence. They respond to calls about threats by known abusers, parole violation, etc.
2. An investigation of the complaint takes place. The parties are questioned and so are witnesses. The officers are to ensure any children in the home are taken care of and are safe during the questioning and investigation.
3. Following the investigation, if the police are certain an assault or an offence under the Criminal Code of Canada¹³⁷ has occurred the person will be charged.
4. When the abuser is charged, the police may intervene for the safety of the other family member(s) and ask the Justice of the Peace for an order of restriction (an undertaking) that the accused is to have no contact with the individual in the house or not come within 100 feet of them or the house.
5. The police can enforce the order issued by the Justice of the Peace because it is a court order.
6. Once the charges against the accused are settled in court, the undertaking does not continue in force. The police in conjunction with other on-reserve service providers such as wellness initiatives and social services may make recommendations for residency. The ultimate decision rests with the Band Council. The court does not determine the issue of residency.¹³⁸

The order provided by the Justice of the Peace is only a temporary solution. It is not a permanent exclusive possession order.

RCMP Constable Wes Heron suggested to the author that a potential solution for the current non-application of provincial law to the division of matrimonial property on reserves might be found in a combination of the negotiated tripartite agreement for policing services with Band by-laws.¹³⁹ He provided his basis for this suggestion by an example from the Lexus Island First Nation, Prince Edward Island, which relates to child protection. The tripartite agreement incorporates the provisions of the relevant child protection laws applicable on the reserve. Before the RCMP can assist the provincial authorities in apprehending a child on reserve, a fax must be received from the Band's on-reserve social worker granting permission. The tripartite agreement delegates the social worker to provide approval for the apprehension. Without the agreement, the approval would have to come from the Chief and Council.¹⁴⁰ However, the author suggests that it is unclear in law whether the tripartite agreement/by-law combination could function in relation to exclusive possession of the home on reserve. Furthermore, not all First Nations have policing agreements.

Officer John Syrette, of the Anishinabek Police Services, described to the author the difficulty in getting Band by-laws prosecuted. He stated that First Nations ask for their by-laws to be enforced by the police services but there is no place to prosecute. He elaborated that there is no problem with enforcing traffic tickets, but by-law infractions are a problem. The provincial court will not handle the enforcement; Crown Attorneys in charge appear either not to know how to deal with the prosecution, or confused about it. Anishinabek Police Services has been asking the provincial courts to provide a specific date during the month to hear the First Nation by-law infraction cases, however as of discussion with the author, there had been no solution.¹⁴¹

The author suggests that a by-law designed to address the division of matrimonial property on reserves might encounter similar enforcement challenges unless jurisdiction and procedure for their prosecution are clearly established.

Role of Aboriginal Policing in ADR Enforcement

The agreements arising from ADR processes reviewed earlier in this paper are primarily designed to take the parties outside an official resolution forum such as court. Policing has no role in enforcing ADR agreements or resolution unless there is some court order attached.¹⁴² Once the police are brought in for enforcement of an agreement, the process becomes official and the nature of the ADR mechanism is lost.¹⁴³

Restorative Justice

Restorative Justice Initiatives, such as sentencing circles, allow for the stay of criminal proceedings while the accused follows through with an approved alternative process. A comprehensive review of the nature and practice of restorative justice is beyond the scope of this paper, however, it may for present purposes be said that the main goal in the criminal law context is resolution of the wrongdoing without incarceration. On successful completion of the alternative process, the accused's charges will be dropped. If the accused does not follow through, then the court charges and processes will continue.

Justice Canada started the Aboriginal Justice Strategy (AJS) approximately five years ago. Its objectives include supporting Aboriginal communities taking on greater responsibility in the administration of justice, assisting in the reduction of crime and incarceration rates in Aboriginal communities with justice programs, and fostering justice system improvements that respond to the needs of Aboriginal peoples. The AJS program now has partnerships in 90 Aboriginal initiatives in 280 communities. There are four program models that communities may adopt: "diversion or alternative measures; community sentencing and peacemaking; mediation and arbitration in family and civil case; and justice of the peace or tribal courts."¹⁴⁴

The associated Aboriginal Justice Learning Network (AJLN) is a network of volunteers that are trained to facilitate various programs in the community. The volunteers are, for instance, community members, lawyers, justice personnel, judges, police officers and corrections officers and receive training as appropriate to facilitate community programs such as circle sentencing and peacemaking circles, community justice committees, court diversion programs, and Elders councils among others.

RCMP Aboriginal Policing Services are one of the AJLN partners who help train volunteer facilitators for their Community Justice Program.¹⁴⁵ The Community Justice Forums (CJF) training involves three areas of discussion. The three components to the CJF learning map are:

1. Traditional vs Restorative Approaches: The first component, represented by key theme words surrounding the process of CJF, outlines traditional and restorative approaches to justice.
2. The Processes of CJF: The second component or circle of the map illustrates the process of Community Justice Forums (CJF).
3. Theory of Community Justice Forums: The final inner circle of the learning map, represents the sociological and psychological theory behind the CJF process.¹⁴⁶

The aim of the training is to engage the volunteers in discussing the issues in the three components.

Cheryl Joyce is a trainer for the RCMP and has travelled to many Aboriginal communities. She told the author that some of the communities have successfully established their Community Justice Programs and have Justice Committees and co-ordinators; however, to date an assessment of the communities implemented and their success rate has not been done.¹⁴⁷

¹³⁵ Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3, s. 91(24), reprinted in R.S.C. 1985, App. II, No. 5.
¹³⁶ First Nations Policing Policy, online: Solicitor General of Canada, http://www.sgc.gc.ca/publications/abor_policing/fnpp_handbook_e.pdf.
¹³⁷ Criminal Code, R.S.C. 1985, c. C-46.
¹³⁸ Interview of RCMP Officer D. Gray by the author, (20 July 2002 at RCMP Headquarters, Ottawa) [Gray] and interview of RCMP Constable W. Heron by the author, (15 August 2002 at RCMP Headquarters, Ottawa) [Heron].
¹³⁹ Heron, ibid.
¹⁴⁰ Heron, ibid.
¹⁴¹ Interview of Anishnabek Police Services Officer J. Syrette by the author, (9 September 2002, Garden River, Ontario).
¹⁴² Ibid.
¹⁴³ Ibid.
¹⁴⁴ "The Aboriginal Justice Strategy", online: Justice Canada http://canada.justice.gc.ca/en/ps/ajln/strat.html.
¹⁴⁵ The Community Justice Program includes Group Family Conferences and Victim-Offender Models.
¹⁴⁶ RCMP Community, Contract and Aboriginal Policing Services, Community Justice Forum Facilitator's Guide To The RCMP Learning Map (Ottawa: RCMP, 2002) at 2, online: RCMP http://www.rcmp-ccaps.com/ccaps.htm.
^{147 RCMP C. Joyce, (RCMP Cadet Training Facility, Regina: orally, 10 September 2002).}

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