|
Indigenous - Policing. Canada (Attorney General) v. Dominique
In Canada (Attorney General) v. Dominique (Fed CA, 2025) the Federal Court of Appeal dismissed a Crown appeal, here from a Federal Court ruling that "dismissed the Attorney General’s application for judicial review of a decision of the Canadian Human Rights Tribunal (the Tribunal)", that regarding "the funding of the operating costs for the self‑administered police service that the First Nation chose to establish in 1996 in connection with the First Nations Policing Policy (the Policy) implemented by the federal government ...".
Here the court sets out the nature of the policing regime:[3] More specifically, the complaint at issue is based on paragraph 5(b) of the Canadian Human Rights Act, R.S.C. 1985, c. H-6 (the Act), which states that it is a discriminatory practice in the provision of services available to the general public to differentiate adversely in relation to any individual on a prohibited ground of discrimination under the Act.
[4] The Complainant submitted that is the case here because the funding provided to him for the First Nation’s police service was insufficient and dependent on short‑term agreements that the First Nation had no choice but to sign if it did not want to give up its police service. In his view, this resulted in a subpar level of service to the members of the community, a consequence he said is related to their race and national or ethnic origin.
[5] The Tribunal found that the situation reported by the Complainant was a discriminatory practice within the meaning of the Act, and thus allowed his complaint (the Tribunal Decision). As we have seen, the Federal Court refused to intervene, finding that the Tribunal Decision was reasonable. The Attorney General argues that the Federal Court erred in so finding and invites us to set aside the Tribunal Decision, render the decision that the Tribunal should have rendered—i.e. dismiss the Complainant’s complaint—or, alternatively, refer the matter back to the Tribunal for reconsideration in light of the problems identified by the Court.
[6] For the reasons that follow, I am of the view that this appeal cannot succeed.
....
II. Background
[7] It is necessary to provide a little background information.
[8] The Policy and Program at the heart of this case were adopted in the early 1990s. This took place within the broader context of historically difficult relations between First Nations and law enforcement and policing authorities in Canada, as evidenced in a number of investigation reports on the topic, including the report commissioned by the federal government and issued by a cross-departmental task force in January 1990, the Indian Policing Policy Review Task Force Report.
[9] For all intents and purposes, this report gave rise to the Policy, which generally aims to provide First Nations across Canada with access to "“police services that are professional, effective, culturally appropriate, and accountable to the communities they serve.”" Ultimately, the purpose is "“to contribute to the improvement of social order, public security and personal safety in First Nations communities, including that of women, children and other vulnerable groups”" (Appeal Book at 4416 to 4418).
[10] The preferred approach to achieve this is to establish partnerships "“based on trust, mutual respect and participation in decision-making”", which pave the way for the negotiation and conclusion of tripartite agreements for the provision of cost-shared funding and related support and assistance between the federal government, the provincial or territorial government concerned and the First Nation looking to establish a self-administered police service that will meet its needs (Appeal Book at 4416 to 4419).
[11] More broadly, the Policy is meant to be "“a practical means to support the federal policy on the implementation of the inherent right and the negotiation of self-government”" for Indigenous people (Appeal Book at 4418). It rests on the following "“principles”":(a) First Nations communities should have access to services that are responsive to their particular needs and that are equal in quality and level of service to those found in "“communities with similar conditions in the region""”";
(b) The responsibilities and authorities of police officers serving in First Nations communities should be the same as those of other police officers in Canada;
(c) First Nations communities should be policed by such numbers of persons "“of a similar cultural and linguistic background”" as are necessary;
(d) First Nations communities should have access to "“at least the same police service models that are available to communities with similar conditions in the region”";
(e) First Nations should be involved "“in the selection of a particular model of police service”" that balances "“the need for cost-effectiveness”" and the particular policing needs of First Nations communities; and
(f) First Nations communities that have established their own police services adapted to their particular needs should implement institutional mechanisms to ensure "“police management and accountability, [in addition to] police independence from partisan and inappropriate political influences.”"
(Appeal Book at 4420 and 4421.) [12] Lastly, the Policy, broadly speaking, sets out the following: (i) the form that the funding will take; (ii) the policing models eligible for such funding; (iii) the criteria for assessing the First Nation’s funding requirements; and (iv) a list of the costs eligible for such funding (administration; recruiting, training and education; salaries and benefits; and expenditures). Furthermore, the Policy stipulates that the federal government will pay 52% of the "“government contribution toward the cost of First Nations policing services”" while the province or territory will cover the difference, i.e. 48% of this contribution. In this regard, the Policy states that "“First Nations communities will, where possible, be encouraged to help pay for the cost of maintaining their police service, particularly for enhanced services”" (Appeal Book at 4423 to 4425).
[13] The details of the Policy’s implementation are set out in the Program.
[14] Moreover, the tripartite nature of the agreements concluded under the Policy (and the Program) acknowledges the jurisdiction of the provinces to provide policing services on their territory. In this case, the First Nation is located on the Mashteuiatsh reserve in Quebec. It has around 2,000 residents, although this number varies depending on the season.
[15] The organization and provision of police services in the province are governed by the Police Act, CQLR c. P-13.1 (the QPA). The QPA provides for six levels of service based on the population of the agglomerations served, with level 1 representing the base level. According to the QPA, the Sûreté du Québec provides policing services in any municipality with fewer than 50,000 residents. In other words, these municipalities cannot be served by their own municipal police force in the same way that agglomerations with more than 50,000 residents can.
[16] Since the Policy was adopted, the QPA allows for Indigenous communities within the province wishing to establish their own police service to do so, through an agreement with the Quebec government. This service then becomes a police force within the meaning of this act.
[17] The vast majority of Indigenous communities across the province have their own police service. According to section 93 of the QPA, these police forces shall have jurisdiction to prevent and repress both offences under by-laws applicable in the territory in which they are established and statutory offences applicable across Quebec. The Policy demonstrates the federal government’s willingness to contribute—in this case jointly with the Quebec government—to the funding and implementation of such services in accordance with the objectives set out in the Policy.
[18] As noted above, the First Nation established its own self‑administered police force in 1996. Prior to that, police services in the community of Mashteuiatsh were provided, depending on the time period, by the Royal Canadian Mounted Police, a so-called Amerindian police force ("“peacekeepers”"), or the Sûreté du Québec. When the agreements at issue were signed, these services were provided by the Sûreté du Québec. . Quebec (Attorney General) v. Pekuakamiulnuatsh Takuhikan
In Quebec (Attorney General) v. Pekuakamiulnuatsh Takuhikan (SCC, 2024) the Supreme Court of Canada dismissed a Quebec Crown appeal, that from an allowing by the Federal Court of Appeal, and that from a dismissal of the action at the Federal Court - the action being grounded in the allegation that "Canada and Quebec were in breach of good faith, the obligations flowing from the honour of the Crown or any fiduciary obligation" over a contract whereby the band provided it's own police service and the governments funded it.
Here the court sets out a history of policing in indigenous Canadian communities, drawing on the 2019 Quebec Viens Commission and the 1986 federal Task Force on Policing on Reserves:B. Policing in Indigenous Communities
[22] Historically, policing in Indigenous communities in Canada was characterized first and foremost by the mistrust that these communities felt toward non‑Indigenous police forces. As stated in the Final report of the Public Inquiry Commission on relations between Indigenous Peoples and certain public services in Québec chaired by the Hon. Jacques Viens (2019) (“Viens Commission”), that mistrust reflects the intergenerational trauma resulting from the implementation of the former policy of assimilation:... during the period when the newly formed dominion of Canada was shaping its identity, the Indigenous peoples’ ways of life were being radically transformed. For example, under a wide range of new legislation, First Nations members were confined to reserves, limited in exercising their hunting and fishing rights, forced to renounce their language and spirituality, and cohabit with private companies (forestry, mining, etc.) that gradually made inroads into their territory. In that context, police officers, who had the authority to apply the legislation, quickly became symbols of repression. The rest of the story, including residential schools and police intervention making it possible to forcibly remove children from their families, crystallized that perception and fuelled a profound sense of mistrust. [p. 257] [23] Quoting and adopting one participant’s comments, the Viens Commission reported that, over the years, “that mistrust and repression generated various crisis situations that further amplified the tensions between Indigenous peoples and the general population, including police forces” (pp. 257‑58). Those crisis situations included, in particular, the “Salmon war” episode in the late 1970s and early 1980s, the Oka crisis a decade later and the events in Val‑d’Or, in which the mistreatment of Indigenous women by officers of the SQ came to light in 2015 (pp. 11 and 258).
[24] Another important feature of policing in these communities is the underfunding of Indigenous police forces, “a major, long‑documented problem” (Viens Commission, at p. 267). Underfunding compromises the quality of policing as it affects the number of police officers, their salaries, their recruitment, the equipment available to them (which may be “obsolete or simply inadequate” (p. 271)), police facilities and the services provided. In some cases, underfunding can lead to a situation that “endangers personal safety” (p. 271). This observation is made even more forcefully in a 2010 report, quoted by the Court of Appeal, which stated that [translation] “the safety of First Nations is compromised by a lack of resources in all respects: human, financial, material” (2022 QCCA 1699, at para. 115, quoting N. Bergeron, L’autodétermination des services de police des Premières Nations au Québec: Rapport préliminaire (2010), at pp. 58‑59).
C. Framework for Entering Into and Implementing Tripartite Agreements
(1) Federal Framework
[25] In 1986, Canada established the Task Force on Policing on Reserves. In its final report published in 1990, that task force explained that Indigenous communities in Canada did not have access to the same level and quality of police services as other communities (Indian Policing Policy Review: Task Force Report). It called upon the federal and provincial governments to work together more cooperatively to provide quality police services to Indigenous populations and further advance Indigenous self‑government in matters of public safety. It urged Canada to develop a cohesive policy based, among other things, on the principle that Indigenous communities “are entitled to the same level and quality of policing services as other similarly situated communities in the region” (p. 22).
[26] In 1991, in the wake of that report, Canada adopted the First Nations Policing Policy (“Policy”) to “provide First Nations across Canada with access to police services that are professional, effective, culturally appropriate, and accountable to the communities they serve” (p. 1). The Policy states that, to this end, “the federal government, provincial and territorial governments and First Nations work together to negotiate tripartite agreements for police services that meet the particular needs of each community” (ibid.). The Policy clearly specifies that it is “a practical means to support the federal policy on the implementation of the inherent right and the negotiation of self‑government” (p. 2; see also pp. 1 and 3). It also states that the policing services so provided should be “equal in quality and level of service to policing services found in communities with similar conditions in the region” (p. 4).
[27] With regard to funding, the Policy states that “[t]he federal and provincial governments, because they share jurisdiction, should share . . . the government contribution toward the cost of First Nations policing services” (pp. 5‑6). The federal government pays 52 percent of the contribution, and the provincial or territorial government pays 48 percent (p. 6). In addition, it says “First Nations communities will, where possible, be encouraged to help pay for the cost of maintaining their police service, particularly for enhanced services” (ibid.). Under the Policy, these costs are calculated on the basis of costs “for policing arrangements in other communities with similar conditions in the region” (p. 7).
[28] The Policy is implemented through the First Nations Policing Program (“FNPP”), which is itself governed by the Terms and Conditions for Contribution Funding Under the First Nations Policing Program, December 9, 2015 (online) (“Terms and Conditions”). At para 29-42, the court continues to explain Quebec statutory modifications to implement these measures, the specific tripartite agreement reached with the respondent band - and at paras 71-95, the terms of the agreement.
|
