SCC hearing case with implications for government funding of First Nations police services

The Supreme Court of Canada recently granted leave to appeal in a Quebec case with implications for governmental funding of First Nations police services across Canada.

In Attorney General of Québec v. Pekuakamiulnuatsh Takuhikan, the SCC will determine whether federal, provincial and territorial governments must fulfill the constitutional principle of the honour of the Crown in their contracts to fund First Nations police services, says Benoît Amyot, a lawyer at Cain Lamarre, and counsel for Pekuakamiulnuatsh Takuhikan.

“The main question in our case is, did the governments of Quebec and Canada fund the police services as they would have done for any other police services in the province?” says Amyot. “The answer is no.”

But the legal question of what adequate First Nation police force funding means is of national relevance, he says. “The situation of First Nation police around the country – it's a disaster everywhere.”

Pekuakamiulnuatsh Takuhikan is the band council representing the Pekuakamiulnuatsh Innu First Nation, a community in the Saguenay–Lac-Saint-Jean region of Quebec. Pekuakamiulnuatsh Takuhikan regulates and administers the First Nation’s police services according to joint agreements with the provincial and federal governments. These tripartite agreements are the result of the federal government’s 1991 First Nations Policing Policy.

Pekuakamiulnuatsh Takuhikan brought an application to the Superior Court seeking reimbursement of certain funding it provided for its police service from 2013 to 2018. During that time, the cost of police services increased because of an arbitration award related to the renewal of a collective agreement. In the funding agreements between 2013 and 2018, the provincial and federal governments had not raised the amount, and the First Nation had to make up the difference.

Pekuakamiulnuatsh Takuhikan argued that Quebec and Canada broke their duty to negotiate in good faith, to act with honour, and to fulfill their fiduciary duties. The Superior Court dismissed the application, but Quebec’s top court allowed the appeal, ordering Canada to pay $832,724 and Quebec to pay $767,745.

According to the Quebec Court of Appeal’s judgment summary, the trial judge had relied on contract law and decided not to consider the principles of the honour of the Crown and the Crown’s fiduciary duty. The appeal court found that the tripartite agreements, on their own, were insufficient for the judge to decide the dispute.

The Court of Appeal found that the trial judge erred in sustaining Quebec’s objection to several evidence exhibits. Pekuakamiulnuatsh Takuhikan said the evidence contextualized its inherent right of self-government and access to professional, effective, and culturally appropriate police services provided by the First Nations Policing Policy.

The appeal court said the trial judge should have examined the constitutional principles surrounding the relationship between provincial and federal governments and First Nations, then used the evidence exhibits in question to analyze the context leading to the agreements.

Under the federal government’s First Nations policing policy, Indigenous communities have a right to police service equal in quality to that of non-Indigenous Canadians, who have a right to “well-funded, culturally responsive, and respectful police services,” according to Public Safety Canada. The Court of Appeal ultimately found that Canada and Quebec had failed to ensure the Pekuakamiulnuatsh Innu First Nation’s police services were equal in quality and breached their duty to act honourably.

In concurring reasons, one appeal court justice added that under the Civil Code of Quebec, when a public entity contracts with an Indigenous person or entity, it must uphold the honour of the Crown. The judge said that failing to do so can invite a finding of civil abuse, which can exist without bad faith or malice.