APPEAL WATCH: SCC to Rule on Fair Funding of Indigenous Police Services

In Takuhikan c Procureur général du Québec, 2022 QCCA 1699, [Takuhikan], the Court of Appeal of Québec (“QCCA”) held that the governments of Canada and Québec breached their honour of the Crown obligations to a First Nation by knowingly underfunding the latter’s Indigenous police service and refusing to fund it to the same level as that provided to non-Indigenous communities. On October 5, 2023, the Supreme Court of Canada (“SCC”) granted leave to appeal the judgement of the QCCA in Takuhikan. In doing so, the SCC will have an opportunity to clarify the scope of the honour of the Crown in this context as well as its connection to the inherent right to self-government. The SCC’s decision could fundamentally impact Indigenous policing services throughout Canada and Indigenous peoples’ inherent rights to self-government and self-determination, as well as influence how Indigenous peoples implement their traditional laws and ways of managing harm within their communities.

  

Context

In 1991, the federal government created the First Nations Policing Program (“FNPP”). I pause here to note that this was renamed the First Nations and Inuit Policing Program around 2021 or 2022, but I will continue referring to it as the FNPP since this was the abbreviation used by the QCCA. The FNPP is the program through which the federal and the relevant provincial or territorial governments both provide funding to First Nations for establishing and operating their own self-administered police services. Funding for Indigenous police services is secured through tripartite agreements concluded between the government parties and the First Nation (Takuhikan, paras 10 and 12). Through these agreements, the First Nation is the employer of the Indigenous police service and oversees its administrative management and organisation (Takuhikan, para 18).

The FNPP is governed by the First Nations Policing Policy (the “Policy”), which was adopted by the federal government in 1991 and was last updated in 1996—this becomes important later in my analysis. There are several keystones of the Policy, including:

• the recognition that the Policy is meant to help practically implement the inherent right to self-government by providing First Nations with self-administered police services;
• the tripartite funding model, which provides for cost-shared funding of police services, and related support and assistance, within the funds available to the governments;
• the promises that police services are to be culturally appropriate and responsive to the particular needs of the community, and that First Nations have a voice in determining the quality and level of services they need; and,
• the promises that the assessment of funding required for policing in Indigenous communities is consistent with, and the quality and level of their Indigenous policing services is equal to, that which is provided for policing in similarly situated communities in the region.

Under the tripartite agreements, the federal and provincial or territorial governments respectively contribute 52% and 48% of the funds to the First Nation for its police service, while the First Nation is expected to help pay for maintaining the service where possible (Takuhikan, paras 11-13).

An important contextual factor to consider is that when a tripartite agreement expires, funding for the Indigenous police service stops. If an agreement expires and is not terminated, but nothing is provided to temporarily extend the flow of funds while a new agreement is negotiated, a First Nation may have to incur the costs of funding its police service or risk having it cease operations. The former can leave First Nations in precarious financial situations, as they might need to secure alternative sources of funding and incur large debts. The latter presents several major problems. For instance, if the Indigenous police service is forced to cut costs to maintain operations or to dissolve entirely, the absence of effective policing creates a risk to the community’s safety and security. Placing First Nations in a situation where they may have to abandon their police services is not only antithetical to the raison d’être of the agreements, but colonial police forces may be inserted into First Nation communities to fill these policing gaps. Manuscripts could be written about why this idea is unacceptable to many Indigenous communities (see Takuhikan, paras 108-109 and 130-136), not least because of colonial police forces’ contributions to the historical and contemporary intergenerational traumas of Indigenous peoples. Nonetheless, if a First Nation pushes back on a new agreement because the terms and funding offered by the government parties do not adequately respond to the community’s actual needs, the government parties have little incentive to negotiate. This effectively transforms the policing service and safety needs of the First Nations community into bargaining chips, as the government parties can wait First Nations out.

While I do not allege that government parties are implementing bad faith negotiation tactics, like waiting out First Nations when agreements expire, First Nations cannot be faulted for believing this to be true. Indeed, the above point illuminates the unequal bargaining power between First Nations and the government parties, lending credence to the perspective that tripartite agreements resemble contracts of adhesion (‘à prendre ou à laisser’ or ‘take it or leave it’). Even if a First Nation capitulates, it saddles the bill to fill gaps in the level and quality of police services beyond what is already provided in the agreements. 

This leads us to the facts of the instant case.

 

 Facts

Pekuakamiulnuatsh Takuhikan (“Takuhikan”) is the band council and government entity representing the Pekuakamiulnuatsh Innu First Nation, who are established on the Mashteuiatsh reserve near Roberval, Québec (Takuhikan, para 8). Since 1996, the federal government, the Québec government, and Takuhikan have entered into several similarly structured tripartite agreements to fund Indigenous police services in Mashteuiatsh (Takuhikan Trial, para 23; Takuhikan, paras 8, 15 and 17). While there are several important provisions of the agreements (see Takuhikan, paras 17-22), for our purposes, the clause at the heart of this dispute specifies that “‘[t]he [Band] Council shall be responsible for any budgetary deficits incurred during a fiscal year […]’” (Takuhikan, para 22).

Between April 2013 to March 2018, Takuhikan incurred deficits just shy of $1.6 million for its police service (Takuhikan, paras 1, 23 and 27). Takuhikan attributed this deficit to the failures of the governments of Canada and Québec to discharge their constitutional obligations “to negotiate in good faith, act with honour and discharge their fiduciary duties to it with regards to the funding of its police force” by arbitrarily, unilaterally, and knowingly underfunding its police service (Takuhikan, paras 26 and 28). Takuhikan characterised the tripartite agreements as contracts of adhesion, arguing that it had no choice but to accept the insufficient government contributions and incur this deficit because the alternatives—refusing to sign the agreements or terminating it—were unviable (Takuhikan, para 27). Takuhikan therefore initiated an application at the Superior Court of Québec seeking reimbursement for this deficit (Takuhikan, paras 26 and 27).

 

 Procedural History

Robert Dufresne J.S.C., of the Superior Court of Québec, took a strict contract law lens approach to his analysis and dismissed the application for two reasons: (1) the agreement’s provisions provided that Takuhikan was alone responsible for deficits generated by its police service, and (2) there were no breaches of any constitutional obligations.

Dufresne J.S.C. began by maintaining the respondents’ objection to Takuhikan’s evidence which showed that significant funding gaps for its police service led to the Policy being unmet, believing this to be irrelevant (Takuhikan Trial, paras 44-53). Looking through the lens of contract law, he considered the tripartite agreements to be sufficient for adjudicating the dispute because they “constitute the entirety of the agreements entered into between the parties” (Takuhikan, para 32, citing Takuhikan Trial, para 61).

Based on the agreement’s wording, Dufresne J.S.C. found that Takuhikan was solely responsible for deficits generated by its police service and for financing its service beyond the amount fixed in the agreements (Takuhikan Trial, paras 61, 66; Takuhikan, paras 32-33). He further reasoned that because the freedom of contract technically allowed Takuhikan the possibility of unconditionally terminating the agreements, Takuhikan had therefore entered into them aware that the funding offered could not meet the quality of services desired (Takuhikan Trial, paras 66-67).

Finally, Dufresne J.S.C. did not believe that any constitutional obligations were breached. First, there was no evidence that the respondents negotiated in bad faith (Takuhikan Trial, para 72). Second, the agreements did not turn the respondents into trustees who owed a fiduciary duty for the management of the police service, and, in any event, several components of a fiduciary relationship were not evident (Takuhikan Trial, paras 82-85). Finally, the obligation to act honourably did not imply a duty to fund the police services at the level desired (Takuhikan Trial, paras 86-87).

 

 Issues

(1)  Did the judge err by maintaining the respondents’ objection to the appellant filing several exhibits as evidence in support of the allegations set out in its originating application?

 (2)  Were the tripartite agreements the parties entered into between 2013 and 2018 sufficient, on their own, to allow the judge to adjudicate the dispute?

 (3)  Do the honour of the Crown and the Crown’s fiduciary duty apply to the case at bar and, if so, did the appellant discharge its burden of proving that the respondents breached their constitutional obligations?

 

 QCCA Decision

Jean Bouchard J.A. wrote the QCCA’s main judgement, with a brief concurring opinion written by Marie-France Bich J.A. 

Bouchard J.A. answered the first and third questions in the affirmative, and the second question in the negative (see Takuhikan, paras 60, 78, 118 and 124). The QCCA allowed the appeal, set aside the Superior Court judgement, and condemned the governments of Canada and Québec to pay Takuhikan legal costs in addition to its deficit incurred between 2013 to 2018 (see Takuhikan, paras 1 and 125).

 The Respondents’ Objection Should Have Been Overruled

Bouchard J.A. began with an overview of the relevant constitutional principles (Takuhikan, paras 47-59). In keeping with the SCC’s jurisprudence that the honour of the Crown applies in all its dealings with Aboriginal peoples, she found that the Crown’s honour was “clearly at stake here”:

… The respondents … solemnly undertook to fund the appellant’s police services at a level comparable to that of “communities with similar conditions in the region”, a commitment that, in the words of the Policy itself, reflects the objective of supporting First Nations in acquiring the tools to become self-sufficient and self-governing, one of the purposes of s. 35 of the Constitution Act, 1982. (Takuhikan, para 74; footnotes omitted).

The QCCA reasoned that the trial judge erred by maintaining the respondents’ objection because the evidence objected to was directly relevant to “(1) the systemic and historic factors affecting First Nations and (2) that the FNPP, as applied, is not capable of ensuring that on-reserve [policing] services are delivered in a manner consistent with the principles of the Policy”. The latter was especially relevant, as it spoke directly to the alleged breach of the government parties’ constitutional obligations to Takuhikan—and specifically, the honour of the Crown (Takuhikan, paras 64 and 75-76).

The Trial Judge Should Have Considered ALL The Evidence

The trial judge also erred by only considering the tripartite agreements to adjudicate the dispute, neglecting the honour of the Crown. Bouchard J.A. explained that the trial judge should have analysed the applicable constitutional principles, and then applied them both to the context in which the agreements were signed and to their wording in light of all the evidence (Takuhikan, paras 78-79).

 The Honour of the Crown was Breached

After canvassing the evidence relating to Takuhikan’s financial situation, including the sources of its deficit and its various types of funding, Bouchard J.A. accepted that “it was impossible for the [police] service’s budget not to be in a deficit” due to its underfunding (Takuhikan, paras 80-99). The record also revealed that the government parties were aware that underfunding Takuhikan’s police service under the FNPP led to “numerous deficiencies and shortcomings” which failed to satisfy the Policy. This led Bouchard J.A. to find that the trial judge’s brief reasons for dismissing the claim that the honour of the Crown was breached were insufficient in this situation (Takuhikan, paras 114-116).

Moreover, the trial judge could not solely rely on the tripartite agreements and the clause that Takuhikan is responsible for its budgetary deficits in arriving at his decision. Bouchard J.A. explained that doing so would effectively allow the government parties to impermissibly contract out of their constitutional duty to act honourably towards Takuhikan—a duty which applies “independently of the wording of the agreements” (Takuhikan, para 117, citing in support Beckman v Little Salmon/Carmacks First Nation, 2010 SCC 53, para 61).

Considering the foregoing, the QCCA concluded that the respondent government parties had violated their honour of the Crown duties to Takuhikan. It found so for two reasons: first, “by refusing to fund [Takuhikan’s] police force in a manner that would allow for the same quality of service as that provided to non-Indigenous communities;”, and second, “[b]y turning a deaf ear to the grievances of the appellant – who […] agreed to be served by a police force of lesser quality” (Takuhikan, paras 118 and 124).

 

Analysis

Possible Error … But Not A Material One

Recall that the QCCA identified a breach of the Crown’s honour because the government parties “refus[ed] to fund the appellant’s police force in a manner that would allow for the same quality of service as that provided to non-Indigenous communities” (Takuhikan, para 118. Emphasis added). As noted earlier, the Policy commits the government parties to funding Indigenous police services that are “equal in quality and level of service to policing services found in communities with similar conditions in the region” (Takuhikan, para 11. Emphasis added).

In concluding that the honour of the Crown owed to Takuhikan was breached, the QCCA drew on evidence that deficiencies in the quality and level of Takuhikan’s police services were caused by its underfunding (Takuhikan, paras 114-115). However, Bouchard J.A. compared the level and quality of police services in Mashteuiatsh against what was available in Québec generally; she did not examine the level and quality of services in specific communities in the region, such as Roberval, as the Policy directed. Indeed, as the trial judge pointed out, “no evidence of the existence of such surrounding communities or the level of police service available to it is presented in this case” (Takuhikan Trial, para 64). Bouchard J.A. also based her conclusion on evidence showing that Indigenous police services throughout Canada are underfunded under the FNPP (Takuhikan, paras 115-116).

While the FNPP is chronically underfunded, this general evidence fails to speak to the specific level and quality of policing services in either Mashteuiatsh or in nearby communities. If what gives rise to the Crown’s honour in this case is the interplay between the Constitution and the Policy’s promise to fund Indigenous police services at a standard comparable to communities in the region, be they Indigenous or non-Indigenous, then failing to meet this standard is what leads to a breach of the constitutional obligation. The honour of the Crown is not breached simply because policing in Mashteuiatsh is different from the rest of the province or Canada: the conditions and policing needs can vary drastically because of differences in population, geography, size, etcetera. In other words, it does not follow that the honour of the Crown was breached because the Policy was unmet based on the general evidence cited by Bouchard J.A. What was required was specific evidence of the policing conditions from communities in the region that could be compared against that which was provided for the Indigenous police service in Mashteuiatsh. Therefore, it is possible that Bouchard J.A. erred in her analysis by not examining the level and quality of police services provided in communities in the region, as the Policy contemplates.

That said, even if Bouchard J.A. did err, I do not believe this constituted a material (reversible) error in light of the trial judge’s findings regarding the level of services in Mashteuiatsh and nearby communities, under s. 70 of Québec’s Police Act. As the QCCA explained, “police services [in Québec] are divided into six levels [under s. 70 of the Police Act], level 1 being the lowest and level 6 the highest, that is, the level in which police services are the most extensive” (Takuhikan, para 111). Dufresne J.S.C. found that Indigenous police services in Mashteuiatsh were “more similar to level 1”, while “[t]he surrounding communities are served by the Sûreté municipal de Ville de Saguenay or by the Sûreté du Québec whose level of service is 6” (Takuhikan Trial, paras 63-64).

While greater evidence would certainly be preferable, the finding that the statutory level of policing in Mashteuiatsh lies at the opposite end of the spectrum compared to other communities in the region supports the QCCA’s conclusion that Takuhikan’s police service did not receive a level or quality of funding equal to that provided to non-Indigenous communities. Based on this finding, the evidence showing that the government parties’ underfunding had led to several deficiencies with Takuhikan’s police service—including inadequate training, equipment, and pay for officers (Takuhikan, paras 114-115)—and the evidence that the government parties were aware of this situation but still refused to fund the police service in a way that would meet the Policy’s promises, I believe that the QCCA reasonably concluded that the honour of the Crown was breached.

 How Should The Policy Be Characterised?

It is settled law that “[t]he honour of the Crown is always at stake in its dealings with Aboriginal peoples” (Haida Nation v British Columbia, 2004 SCC 73, para 16). The Crown is always under a constitutional obligation to act in a manner that maintains its honour vis-à-vis Indigenous peoples. However, there is uncertainty about whether the honour of the Crown is engaged every time the federal and provincial Crowns contract with Indigenous peoples. While the Policy holds that tripartite agreements are concluded within the funds available, it also provides that the quality and level of Indigenous policing services should be equal to nearby communities. An important question connected to whether the honour of the Crown is engaged is: whether the promises in the Policy are binding on the government parties because the Policy governs the FNPP, or if they are simply aspirational goals because the Policy does not form substantive law?

This is where the changes to the Policy in 1996, which the QCCA acknowledged in its decision, could be highly probative for the SCC (see Takuhikan, footnote 4). Among the (many) important differences between the 1991 and the 1996 Policy are linguistic changes: the language denoting the 1991 Policy as a “guideline” for the negotiation of the tripartite agreements was replaced in 1996 with the more authoritative wording that these agreements are negotiated “[u]nder the Policy” (1996 Policy, page 1). This change points to the government parties’ intention for the tripartite agreements to be governed by the Policy, and not merely guided by it.

In my view, this elevates the status of the Policy to a solemn promise that is binding on the government parties in their dealings with Indigenous peoples. As a result, the government parties’ likely position that the Policy is merely aspirational and was not intended to create any binding promises to Takuhikan is greatly weakened to the point of rejection. What’s more, this strengthens the QCCA’s findings that the trial judge erred by only considering the tripartite agreements, and by ignoring the Policy and maintaining the objection to the evidence concerning the Policy that would have been relevant to determining the claim that the honour of the Crown was breached.

Final Remarks

In any event, the SCC must consider the message it wants to send about Indigenous peoples’ inherent right to self-government. If the government parties can acknowledge that they chronically underfund the FNPP but still ignore the requests and complaints of contracting Indigenous communities about their policing needs, this gives little effect to the Policy and its goal of practically implementing the right to self-government. 

What may prove important in this regard is the QCCA’s confirmation that the right to self-government is “recognized and affirmed” under s. 35 of the Constitution Act, 1982 (see Renvoi à la Cour d’appel du Québec relatif à la Loi concernant les enfants, les jeunes et les familles des Premières Nations, des Inuits et des Métis, 2022 QCCA 185, at para 364 [the “Reference“]). To date, the SCC has only directly addressed the right to self-government in R v Pamajewon, [1996] 2 SCR 821, where it was willing to “[a]ssum[e] without deciding that that s. 35(1) includes self-government claims” (para 24). Although the Reference is currently on appeal at the SCC, the fact that Québec law considers the right to self-government to be constitutionally protected is significant because of its application in the Takuhikan appeal, in addition to its constitutional gravity and potential impact on other activities which implement this inherent right.

Of course, pending its decision in the Reference appeal, the SCC in the Takuhikan appeal may be wary of submissions directed at the right to self-government that would confirm its constitutionalisation beyond Québec. However, it will be equally cautious about submissions that curb this right or which open a backdoor for governments to avoid their constitutional obligations to Aboriginal peoples under s. 35 of the Constitution Act, 1982 (i.e., the “Policy is only aspirational” argument). It will also be interesting to see if the SCC in the Takuhikan appeal will make use of the honour of the Crown, or perhaps the Van der Peet Aboriginal rights test, as conduits to ascertain and confirm that certain activities are integral to Indigenous self-government.

We shall wait with great anticipation.

 

This article was edited by Ariel Noemi Montana.