Supreme Court says Quebec must provide more money for First Nations police force

The flag of the Supreme Court of Canada flies on the east flag pole in Ottawa, on Monday, Nov. 28, 2022. (Sean Kilpatrick/The Canadian Press)

Ottawa — Quebec must provide more money for a First Nations police force after acting dishonourably by refusing to negotiate the funding terms, the Supreme Court of Canada has ruled.

The top court dismissed the province's appeal of a ruling that said Quebec violated the principle of good faith and failed to uphold the honour of the Crown in refusing to adequately fund the Pekuakamiulnuatsh First Nation's police force.

The Quebec Court of Appeal ruled in December 2022 that the provincial and federal governments owed almost $1.6 million to the First Nation in Mashteuiatsh, Que., to make up for years of underfunding.

The federal government agreed to pay its share of the money, but Quebec asked the Supreme Court to overturn the decision.

In its 8-1 ruling Wednesday, the Supreme Court said Quebec refused to consider the band council's repeated requests to renegotiate funding for its police force, even though it knew the force didn't have enough money.

The ruling means Quebec must pay $767,745 — its portion of the Indigenous community's accumulated deficits from 2013 to 2017 due to the underfunding.

Ghislain Picard, the Assembly of First Nations regional chief for Quebec and Labrador, welcomed the ruling, saying the case highlights chronic underfunding of police services in Indigenous communities across the country.

"Indigenous communities are really at the mercy of two levels of government, the province and the feds, who between the two share the cost, but at the same time they also somewhat impose their conditions," Picard said.

"And at the end of the day, the communities have no choice but to sign on the dotted line, because otherwise they run the risk of losing an essential service."

Historically, policing in Indigenous communities in Canada was characterized "first and foremost" by the mistrust felt toward non-Indigenous police forces, the Supreme Court said in its ruling.

In 1991, Canada introduced the First Nations Policing Policy to provide Indigenous communities with access to police services that are professional, effective, culturally appropriate and accountable to the people they serve.

The federal government, the government of Quebec and Pekuakamiulnuatsh Takuhikan, the band council, entered into successive agreements concerning police services.

The agreements aimed to establish and maintain an Indigenous police force for the community, to set the financial contributions of Quebec and Canada for operation of the force, and to entrust management of the force to Pekuakamiulnuatsh Takuhikan.

A majority of the Supreme Court found Quebec's refusal to renegotiate its financial contribution when the agreements were renewed was not in keeping with the principle of good faith, set out in the Civil Code of Quebec.

The court also concluded the actions were a breach of the obligation to act in a manner consistent with the honour of the Crown — a principle anchored to the goal of facilitating the reconciliation of the Crown's interests with those of Indigenous Peoples.

On the obligation to act in good faith, the top court said although Pekuakamiulnuatsh Takuhikan was not entitled to a specific level of funding, it did have a legitimate expectation that Quebec would consider its perspective in negotiating the extent of its contribution.

Quebec's refusal to discuss an increase in funding therefore amounted to unreasonable conduct contrary to the requirements of good faith, the court concluded. The absence of genuine negotiations left Pekuakamiulnuatsh Takuhikan in a no-win situation: either it continued to impoverish itself to maintain the police force, or it would have to abolish the force.

Shutting down the force would have meant returning to the inadequate services of Quebec's provincial police force and suffering a setback with respect to self-government, the majority said.

Despite the difficulties, Pekuakamiulnuatsh Takuhikan chose to preserve the force and used its own funds to cover annual deficits.

Given that the agreements contemplated the renegotiation of their funding clauses, the Crown had an obligation to conduct itself honourably during the renewal negotiations, the court found.

"By refusing to renegotiate the level of funding despite Pekuakamiulnuatsh Takuhikan's repeated complaints and the precarious situation in which it found itself, Quebec conducted itself in a manner that fell well below the standard of honourable conduct," Justice Nicholas Kasirer wrote on behalf of the majority.

Ultimately, the court said, the honour of the Crown requires the Crown to meaningfully engage in genuine negotiations in a manner conducive to maintaining a relationship that can support the ongoing process of reconciliation.

This report by The Canadian Press was first published Nov. 27, 2024.