|
Indigenous - Policing. 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.
|
