Judge in ruling says Indigenous police chiefs have strong human rights case against Canada

Three First Nations police services in Ontario have had their funding reinstated, albeit for just a year, after being abruptly cut off by the federal government. 

On June 30, a federal court granted an emergency motion to immediately reinstate funding to the Anishinabek Police Service, Treaty Three Police Service and the United Chiefs & Councils of Manitoulin (UCCM) Anishnaabe Police through the federal First Nation Inuit Policing Program.

Money to the three police services stopped flowing March 31 when they failed to successfully conclude negotiations with Public Safety Canada to renew their funding agreements under the policing program. The police services refused to comply with two clauses they called discriminatory within Section 6 of the Terms and Conditions that comprise the program.

The terms set out in these two clauses stated that First Nation Inuit Policing Program funding could not be used for amortization or interest on loans for policing infrastructure, nor for legal costs related to negotiations, disputes or funding concerns brought about through the agreement.

Federal court Justice Denis Gascon ruled that the three police services did not have to comply with the clauses for a 12-month period, and he ordered Public Safety Canada to immediately fund the police services in “at least” the same amount it was giving them through the previous agreement.

Gascon agreed with the argument put forward by the Indigenous Police Chiefs of Ontario (IPCO) organization that without immediate funding there would be “irreparable harm… to social order, public security and personal safety of Indigenous people residing in the communities serviced by” the three police services. They police 45 Indigenous communities with a combined population of about 30,000 people. The IPCO represents nine Indigenous police services that receive funding through federal program.

There is nothing in the Justice’s order, however, saying what is to happen during this 12-month timeframe. It may come down to the response to a complaint filed with the Canadian Human Rights Commission on March 29 by the IPCO.

It alleges discriminatory and systemic underfunding of Indigenous police services under Canada’s Indigenous policing program.

“Our services have always been forced to operate with less funding and less resources than those of municipal police services,” said Kai Liu, chief of police for Treaty Three Police Service and president of the IPCO.

“We have always had to do more with less. Not only does the decision of the federal court save our three services from being forced to cease operations, but the court also found that Canada has not been honourable in its dealings with us.”

In his decision, Gascon writes, “In my view, and without deciding the merits of the issues to be determined by the Commission on IPCO’s Complaint, the evidence on the record amply supports a conclusion that IPCO has a high likelihood that its underlying Complaint will ultimately succeed, given that it is predicated on numerous findings previously made by the CHRT and the courts on the (policing program) and its attributes.”

The commission has yet to decide whether to move the complaint forward to the Canadian Human Rights Tribunal.

However, Julian Falconer, legal counsel for IPCO, has no doubt that the commission will “be aware” of Justice Gascon’s 70-page decision.

He says it is “very rare” for a court to state so clearly the strength of a case as a human rights complaint.

The argument presented to Gascon by Falconer drew heavily on findings already made by CHRT and two other courts.

“Canada needs to actually take proactive steps to cease the discrimination. They haven't done that. Communities across the country operate under these funding agreements that are inherently discriminatory and the current state of affairs is absolutely unconscionable,” said Falconer.

In March, as the policing agreements were expiring, Public Safety Canada offered the three policing services an increase in funding, ranging from 40 per cent to 78 per cent, if they signed the agreement as presented and with out change to the disputed clauses.

Falconer expects that same increased dollar figure to still be available to the three police services.

“We're taking the position that Public Safety would be acting by way of reprisal if they fail to simply make the money available now without those offensive conditions being in place. So, it's our position that, in fact, the additional monies should be made available,” said Falconer.

“Canada always has an obligation to act in ways that maintain the honour of the Crown vis-à-vis Indigenous peoples and that are in line with the objective of reconciliation,” wrote Gascon in his decision.

“The court is quite clear that in…basically erecting a concrete wall in terms of any willingness to negotiate the underlying terms and conditions, Canada acted inconsistently with its obligations in reconciliation and acted dishonourably in terms of its honour of the Crown obligations…There's really no other way to interpret it,” said Falconer.

Gascon further stated that Public Safety Canada “did not consistently follow its duty to act honourably and in the spirit of reconciliation,” pointing out that the ministry, Canada, and Public Safety Minister Marco Mendicino stated they were “constrained” by the Terms and Conditions of the policing program.

However, points out Gascon, on June 24, Mendicino unilaterally modified the program’s Terms and Conditions.

“At the stroke of a pen,” Mendicino removed the prohibition on specialized police services in section 6 of the Terms and Conditions, wrote Gascon.

He said the only constraints Canada had when it came to the program were constraints it imposed itself.

The Assembly of First Nations (AFN), which had intervener status in the case, lauded the federal court’s decision.

“This decision exemplifies why First Nations policing must be made an essential service. It’s time to stop making excuses and fund First Nations policing in an equitable manner,” said British Columbia Regional Chief Terry Teegee, who co-chairs the AFN taskforce on policing.

At the AFN’s annual general assembly in Halifax next week, the agenda includes a resolution to support equitable funding for First Nations policing. Among the actions being recommended is for AFN to support complaints and legal action brought forward by First Nations and First Nations national chiefs of police associations “with respect to (Public Safety Canada’s) discriminatory conduct.”

At this point, says Falconer, the message Canada is sending Indigenous people is that they’re “not worthy” of making their own policing decisions or signing funding agreements worth tens of millions of dollars.

“Minister Mendicino has a public safety ministry, and Prime Minister Trudeau and his Cabinet ministers have a Department of Justice that are completely, utterly misaligned with the rest of Canadian society on duties of reconciliation and the duties to act honourably towards Indigenous people,” said Falconer.

He says the best way for Canada to show true reconciliation would be to collaborate with First Nations on policing so that the complaint with the human rights commission can be dropped.

“But I want to emphasize, Public Safety has shown little or no inclination to rectify its discriminatory practices. It is a sad day that it took a court order to relieve these services of such racist and draconian provisions,” said Falconer.

Local Journalism Initiative Reporters are supported by a financial contribution made by the Government of Canada.