2011 QCCA 977, 2011 QCCA 977

Unofficial English Translation Conseil mohawk de Kanesatake/Mohawk Council of Kanesatake c. Isaac 2011 QCCA 977 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-019329-093 (700-17-002518-057) DATE: June 27, 2011 CORAM: THE HONOURABLE ANDRÉ BROSSARD, J.A. JACQUES A. LÉGER, J.A. JEAN BOUCHARD, J.A. CONSEIL MOHAWK DE KANESATAKE / MOHAWK COUNCIL OF KANESATAKE and STEVEN L. BONSPILLE APPELLANTS – Defendants v. TERRY ISAAC JR.

ROBERT PATTON TERRENCE McBRIDE PHILIPPE SIMPSON HANK CONDO JUSTIN PETONOQUOT EDWARD MAMEANSKUM ROLAND BRISK COREY STANGER RESPONDENTS - Plaintiffs and COMMISSION DE POLICE DE KANESATAKE / KANESATAKE MOHAWK POLICE COMMISSION Defendant CORRECTIVE JUDGMENT [ 1 ] A clerical error was made in the judgment rendered by this Court on May 26, 2011, with regard to the costs. [ 2 ] Paragraph [7], which is drafted as follows: With costs before both courts in favour of the respondents .

Should read as follows instead: With costs before both courts in favour of the appellants . [ 3 ] It is therefore appropriate to rectify this error pursuant to

article 520 of the Code of civil procedure . FOR THESE REASONS, THE COURT : [ 4 ] SUBSTITUTES paragraph [7] of the judgment rendered on May 26, 2011 for the following:

Unofficial English Translation [7] With costs before both courts in favour of the appellants ANDRÉ BROSSARD, J.A. JACQUES A. LÉGER, J.A. JEAN BOUCHARD, J.A. Mtre Kurt A. Johnson Irving, Mitchell, Kalichman For the appellants Mtre Jonathan Frédéric Poitras Mtre Yves Picard Picard Sirard avocats For the respondents Date of hearing: October 25, 2010 Conseil mohawk de Kanesatake/Mohawk Council of Kanesatake c. Isaac 2011 QCCA 977 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-019329-093 (700-17-002518-057) DATE: May 26, 2011 CORAM: THE HONOURABLE ANDRÉ BROSSARD, J.A. JACQUES A. LÉGER, J.A.

JEAN BOUCHARD, J.A. CONSEIL MOHAWK DE KANESATAKE / MOHAWK COUNCIL OF KANESATAKE and STEVEN L. BONSPILLE APPELLANTS – Defendants v.

TERRY ISAAC JR. ROBERT PATTON TERRENCE McBRIDE PHILIPPE SIMPSON HANK CONDO JUSTIN PETONOQUOT EDWARD MAMEANSKUM ROLAND BRISK COREY STANGER RESPONDENTS - Plaintiffs and COMMISSION DE POLICE DE KANESATAKE / KANESATAKE MOHAWK POLICE COMMISSION Defendant JUDGMENT [1] THE COURT ; - On the appeal from a judgment rendered on December 17, 2008, by the Superior Court, District of Terrebonne (the Honourable Mr. Justice Mark G.

Peacock), which granted in part the respondents' action in damages and jointly condemned the appellants to pay the following amounts: Terry Isaac Jr.: the amount of $21,464.50, with interest at the legal rate, plus the additional indemnity provided by law to accrue from the date of service of the originating motion herein; Robert Patton: the amount of $37,257.00 with interest at the legal rate plus the additional indemnity provided by law to accrue from the date of service of the originating motion herein; Terrence McBride: the amount of $678.80, with interest at the legal rate plus the additional indemnity provided by law to accrue from the date of service of the originating motion herein; Philippe Simpson: the amount of $16,538.67, with interest at the legal rate plus the additional indemnity provided by law to accrue from the date of service of the originating motion herein; Hank Condo: the amount of $37,082.50, with interest at the legal rate plus the additional indemnity provided by law to accrue from the date of service of the originating motion herein; Justin Petonoquot: the amount of $21,544.16, with interest at the legal rate plus the additional indemnity provided by law to accrue from the date of service of the originating motion herein; Edward Mameanskum: the amount of $551.63, with interest at the legal rate plus the additional indemnity provided by law to accrue from the date of service of the originating motion herein; Roland Brisk: the amount of $16,063.30, with interest at the legal rate plus the additional indemnity provided by law to accrue from the date of service of the originating motion herein; and Corey Stanger: the amount of $32,415.30, with interest at the legal rate plus the additional indemnity provided by law to accrue from the date of service of the originating motion herein; [2] After having examined the file, heard the parties, and on the whole deliberated; [3] For the reasons of Bouchard, J.A., with which Brossard and Léger, JJ.A. agree: [4] ALLOWS the appeal; [ 5 ] SETS ASIDE the trial judgment; [ 6 ] DISMISSES the motion to institute proceedings. [ 7 ] With costs before both courts in favour of the respondents.

ANDRÉ BROSSARD, J.A. JACQUES A. LÉGER, J.A. JEAN BOUCHARD, J.A. Mtre Kurt A. Johnson Irving, Mitchell, Kalichman For the appellants Mtre Jonathan Frédéric Poitras Mtre Yves Picard Picard Sirard avocats For the respondents Date of hearing: October 25, 2010 REASONS OF BOUCHARD, J.A. [ 8 ] The appellants appeal the Superior Court judgment condemning them jointly to pay damages to the respondents for having reneged on their employment contracts as police officers for Kanesatake. Background [ 9 ] The facts were described at length by the trial judge.

Except for one inconsequential point that does not affect the issues in dispute, the parties have declared themselves to be satisfied with his account. [ 10 ] It all began on September 26, 2001, in Kanesatake, when a search was performed in the home of one Robert Gabriel, who was suspected of growing and trafficking marijuana. This search, which was conducted by Larry Ross, the chief of police at the time, lit a powder keg. [ 11 ] In the hours and days that followed this large-scale police operation, the police officers were threatened. The police station was stormed by Robert Gabriel and his henchmen.

Shots were fired. [ 12 ] On September 28, the Band Council terminated Larry Ross's employment and named the respondent, Terry Isaac, interim chief of police for three months, until December 31, 2001. [1] His contract was then extended until March 31, 2002. [ 13 ] Faced with a serious situation and the urgent need to restore order in Kanesatake, Terry Isaac immediately got to work.

With the support of the Band Council and the Kanesatake Mohawk Police Commission, a body which I will discuss later, Isaac prepared a report in support of an application to the federal and provincial governments for additional funding to hire more police officers to fight the organized crime that is becoming endemic to the reserve. [ 14 ] Toward the end of December, Terry Isaac was informed that his request for additional funds had been granted by the public authorities.

Following instructions received from Louise Bonspille, the president of the Kanesatake Mohawk Police Commission, he began the requisite steps to hire additional aboriginal police officers in Kanesatake. He asked about fifteen police officers to come in for an interview. [ 15 ] On February 15, 2002, Terry Isaac and Louise Bonspille, on behalf of the Kanesatake Mohawk Police Commission, offered contracts to eight aboriginal police officers of various origins. The interviews were carried out and the contracts settled in the same day, except for the signature of the Band Council chief, the appellant Steven L.

Bonspille, who was unaware of the interviews being held at that moment. It was only late that afternoon, following an unexpected telephone call from a journalist informing him of the situation, that Steven L. Bonspille went to the police station where the interviews were being held to find out what precisely was going on. [ 16 ] He was displeased. According to his understanding, the applicable hiring process had not been followed.

It should be noted that there was a significant difference of opinion at the time between the Band Council and the Kanesatake Mohawk Police Commission concerning their respective roles in the hiring of police officers. In fact, this issue is at the heart of the present dispute. In short, on February 15, 2002, Steven L. Bonspille refused to execute the contracts given to him to sign. He asked to think about it. [ 17 ] On February 26, he wrote to Terry Isaac.

He laid down a series of prerequisites that must be met and stated "Failure to do so will further delay the contracting of any new KMP officers". [ 18 ] Terry Isaac and the Kanesatake Mohawk Police Commission understood from this letter that Steven L. Bonspille and the Band Council refused to follow through with the contracts executed on February 15. In the following days, Terry Isaac reluctantly informed the eight police officers that their contracts would not be honoured. [ 19 ] As for Isaac himself, on March 27, 2002, the very day he executed a contract with the Kanesatake Mohawk Police

Commission to renew his position as interim police chief, Steven L. Bonspille told him that the Band Council would not be extending his contract ending on March 31. [ 20 ] Finally, on February 15, 2005, three years later, without any prior demand letter, the respondents filed a motion to institute proceedings in damages against Steven L. Bonspille, the Mohawk Council of Kanesatake, and the Kanesatake Mohawk Police Commission, [2] claiming from them the disbursements incurred as a result of this unfortunate experience and the anticipated income from the contracts that were not honoured.

It should be noted that the judge dismissed the respondents' claim for moral damages they allegedly suffered. [ 21 ] Before saying any more about the judgment rendered in the court below and for the sake of clarity concerning the following comments, it is appropriate to begin with a brief discussion of the legal rules applicable to native police forces, which the Superior Court somewhat shied away from but which will show things in their true light.

The legal framework [ 22 ] Whereas the Federal Parliament is competent to legislate regarding Indians and the territory reserved for Indians pursuant to section 91(24) of the Constitution Act, 1867 , it is not disputed that the expression "administration of justice in the province", used in section 92(14) of this same Act , allows provinces to legislate regarding police forces on their territories. [3] [ 23 ] Exercising its jurisdiction, in 1991 the Canadian government adopted the First Nations' Policing Policy (FNPP) to allow aboriginals to create policing services that respected their culture and traditions.

The preferred method of doing so is to conclude agreements or understandings involving all three levels of government concerned: federal, provincial, and the Band Council. [4] [ 24 ] For its part, Quebec modified the Police Act in 1995 to add a new

section that enabled the government to conclude agreements with native communities to establish or maintain a police force. [5] The relevant provisions of this statute are drafted as follows: [6] 1. The Police Act (R.S.Q.,

chapter P-13) is amended by inserting, after

section 79 , the following division after

section 79 : DIVISION IV.0.1 NATIVE POLICE FORCE 79.0.1 The Government may enter into an agreement with a Native community represented by its council to establish or maintain a police force in a territory determined under the agreement. A police force thus established or maintained shall, for the duration of the agreement, be a police force for the purposes of this Act. 79.0.2 The agreement must include provisions relating to the swearing-in of police officers and the independence of the administration of the police force.

The agreement may also include, in particular, provisions relating to (1) standards governing the hiring of police officers; (2) the appointment of members to the Comité de déontologie policière charged with hearing an application for review or a citation concerning the conduct of a police officer pursuant to the Act respecting police organization (chapter O-8.1 ). The provisions relating to the standards governing the hiring of police officers may vary from the standards established by regulation of the Government under this Act and shall, in case of incompatibility, take precedence over the latter.

The provisions of the agreement relating to the appointment of members to the Comité de déontologie policière are binding on the Comité. 79.0.3 The Minister shall table the agreement before the National Assembly within 15 days of the day on which it is signed if the Assembly is in session or, if it is not sitting, within 15 days of resumption. 79.0.4 A Native police force and its members are responsible for maintaining peace, order and public safety in the territory for which it is established, preventing crime and offences under the laws and regulations applicable in that territory and seeking out offenders. [ 25 ] As for the Mohawk Council of Kanesatake, it has the capacity of a natural person.

As such, it may enter into contracts or agreements, as appears from sections 5 and 6 of the Kanesatake Interim Land Base Governance Act , [7] which are drafted as follows: 5. The Mohawks of Kanesatake have the capacity of a natural person and, in particular, may ... (

b) enter into contracts or agreements; ... 6. The Mohawks of Kanesatake shall act through the Council in exercising the jurisdiction and powers under this Act. [ 26 ] This brings us to the agreement of August 19, 1999, entitled: "Agreement concerning the establishment and the maintenance of a Police force in Kanesatake" entered into by the Mohawk Council of Kanesatake, the Government of Quebec, and the Government of Canada. It is this agreement that is at the heart of the present dispute. Thus, it is crucial to quote long excerpts from it. [ 27 ]

Section 1 of the agreement begins by giving the following definition to the expression "Police officer":

(c) “Police officer”: means a member of the Kanesatake Mohawk Police Force, including the chief, whose basic police training has been successfully completed at the Institut de police du Québec or at a recognized Canadian establishment, and who has been duly appointed and sworn in accordance with the provisions herein. [ 28 ]

Section 4.5 then provides that the police officers of Kanesatake are employees of the Band Council: 4.5 It is agreed that the members of the Kanesatake Mohawk Police Force will exercise their powers as employees of the Mohawk Council of Kanesatake under the direction of a Chief of police, subject to sub-section 5.3 . [ 29 ] It is further agreed, in

section 4.6, that the Band Council alone is responsible for selecting and recruiting the police officers of Kanesatake according to specific criteria: 4.6 It is agreed that the Mohawk Council of Kanesatake shall be solely responsible for the recruitment and selection of the Kanesatake Mohawk police officers in accordance with the following standards: (

a) be at least 18 years of age; (

b) be a member of he Mohawk Nation or another First Nation; (

c) possess the attributes, benefits and rights of a Canadian citizen; (

d) be of good character ; (

e) possess a Quebec driver's licence of at least the same class as that required of police officers; (

f) possess a high school diploma or the equivalent; (

g) never have been found guilty nor have admitted to guilt following an information for an offence under the Criminal Code (R.S.C., 1985, c. C -46 ) prosecuted by way of indictment, except when the applicant has been pardoned; (

h) provide a set of fingerprints, which must be submitted to the Kanesatake Chief of police of the Commissioner of the RCMP for verification and archiving; (

i) submit to the medical examination prescribed for police officers in Quebec, or the equivalent, and be declared in good health; (

j) have successfully completed a police basic training course at a Canadian establishment chosen by the parties to this Agreement or at the Institut de police du Québec; and (

k) speak, read and write English or French and have a working knowledge of the other language, or be willing to acquire such a working knowledge, Mohawk language ability being an asset. [ 30 ] In addition to the establishment of a Kanesatake police force, the 1999 tripartite agreement provides for the creation of the Kanesatake Mohawk Police Commission, [8] which is charged with ensuring the independence of the police force.

Section 5.1 reads as follows: 5.1 It is agreed that, in order to ensure the independence of the Kanesatake Mohawk Police Force , the Mohawk Council of Kanesatake will maintain the Kanesatake Mohawk Police Commission (the "Commission") accountable to the Mohawks of Kanesatake for the orientation of the Kanesatake Mohawk Police Force and responsible for establishing its goals, objectives, priorities and management policies and for overseeing its administration. [ 31 ] Sections 5.2 and 5.3 then list the responsibilities of the Kanesatake Mohawk Police Commission: 5.2 It is agreed that the responsibilities of the Kanesatake Mohawk Police Commission shall be the following:

a) consult with and advise the Mohawk Council of Kanesatake on policing and related matters;

b) establish, in consultation with the Mohawk Council of Kanesatake, the goals, objectives and priorities of the Kanesatake Mohawk Police Force and ensure their implementation;

c) bring concerns regarding the policing of the community of Kanesatake to the attention of the Chief of police and the Mohawk Council of Kanesatake;

d) assist in the identification and implementation of community policing initiatives;

e) ensure that Kanesatake Mohawk Police Force objectives, to protect life and property, enforce the law and implement preventative policing services, are met in an efficient, effective and professional manner;

f) establish policies and standards for the effective management and administration of the Kanesatake Mohawk Police Force, including performance standards for the Chief of police;

g) establish a Code of discipline and ensure that the Kanesatake Mohawk Police Force has mechanisms for the impartial and independent appeal of grievances and redress on matters related to discipline and dismissal;

h) monitor to use of the Budget set out in subsection 9,1 of this Agreement for the Kanesatake Mohawk Police Force and provide ongoing financial and administrative advice concerning the Kanesatake Mohawk Police Force;

i) provide an annual report to the Mohawk Council of Kanesatake with regard to the operation and administration of the Kanesatake Mohawk Police Force;

j) ensure that the Kanesatake Mohawk Police Force maintains a complete and up-to-date occurrence reporting system and provides such reports as may be required;

k) develop and conduct programs of public information and education relating to the Kanesatake Mohawk Police Commission's roles and responsibilities;

l) select a Chair from among its members; and

m) meet not less than quarterly. 5.3 The Kanesatake Mohawk Police Commission is responsible for establishing and maintaining the objectives and priorities of Kanesatake Mohawk Police Force. Such responsibilities shall include all decisions relating to hiring and dismissal of members of the police force , as well as ultimate responsibility for disciplinary measures against members of the police force. [ 32 ] An attentive reader may have noticed the difficulty of jointly and coherently interpreting sections 4.6 and 5.3 of the agreement, which in

section 4.6 attributes complete responsibility for selecting and recruiting Kanesatake police officers to the Band Council, while in

section 5.3 it makes the Kanesatake Mohawk Police Commission responsible for decisions involving the hiring and firing of police officers. Before we can begin our own analysis, as the issue is a material one in the context of this appeal, we will briefly review the method employed by the trial judge to resolve this interpretive difficulty and reach his conclusion regarding the proceeding brought by the respondents. Superior Court Judgment [ 33 ] The analysis by the judge is more than 80 paragraphs long. [9] Consequently, there is no question here of reviewing his reasoning in detail.

The shortcuts I will take make it possible, however, to assert without too much risk of truncating the intelligence of his commentary that, in his view, the Band Council delegated its hiring power to the Kanesatake Mohawk Police Commission pursuant to the tripartite agreement. This resulted in the Commission being entitled to proceed on its own with the hiring of the respondents, without the Band Council’s assistance. [ 34 ] Then, addressing the non-compliance of the Kanesatake Mohawk Police Commission with the hiring criteria set out in

section 4.6 of the agreement, the judge characterized the agreement as a contract within the meaning of the Civil Code . Furthermore, these criteria were without effect on the respondents who were strangers to the agreement. [ 35 ] Finally, the judge addressed the personal liability of the appellant Bonspille who, in his view, exceeded his jurisdiction by interfering in the hiring of the respondents and the firing of Terry Isaac, these duties being the Kanesatake Mohawk Police Commission's pursuant to the tripartite agreement.

The judge saw this as an extracontractual fault making the appellant jointly liable with the Band Council for the damages suffered by the respondents. Analysis [ 36 ] In my opinion, the issue before us in not whether the Band Council delegated its hiring power to the Kanesatake Mohawk Police Commission, but simply how to interpret the terms of the tripartite agreement by giving them a meaning that permits their reconciliation. By finding that the Kanesatake Mohawk Police Commission could hire the respondents on its own pursuant to 5.3 of the agreement, the judge completely set aside, even nullified,

section 4.6 in which the parties to the agreement agreed that the Band Council alone would be responsible for selecting and recruiting the police officers of Kanesatake. [ 37 ] Given that the facts presented as evidence reveal that the Band Council was in no way associated with the process of selecting and recruiting the respondents prior to the interviews held on February 15, 2002, or with the renewal of Terry Isaac's contract by the Kanesatake Mohawk Police Commission on March 27, 2002, it is unnecessary for the purposes of the present appeal to trace the exact line between the duties conferred on the Band Council by the agreement and those conferred on the Kanesatake Mohawk Police Commission.

The fact of the matter, however, is that the Band Council must necessarily have a role to play. [ 38 ] Two Federal Court judgements interpreting the 1999 tripartite agreement support this first finding. [ 39 ] Seized with an application for judicial review by the Kanesatake interim police chief, Larry Ross, disputing the band Council's decision to terminate his employment, the Federal Court found that the band Council had acted in violation of the agreement by not consulting the Kanesatake Mohawk Police Commission. [10] Admittedly, we are dealing with the opposite situation here, where it is the Kanesatake Mohawk Police Commission that acted alone, but the Federal Court's reasoning necessarily applies both ways: [93] There may be some inconsistency between sections 4.6 and 5.3 of the 1999 Agreement but the fact remains that as a signatory to the Agreement, the Respondent acknowledged a role for the Commission in dealing with the firing of members of the Police Force.

The two provisions can reasonably be interpreted to mean that the Commission will have some involvement in decisions to terminate other than for cause. [ 40 ] In another judgment, the Federal Court went even farther by asserting that the final decision to terminate a police officer pursuant to the tripartite agreement was the Band Council's: [11] [31] A key determination was whether it was the KMPC or the Council who possessed the ultimate decision-making authority with regard to the applicant’s employment status. Mr. Lauzon cited

section 5.3 of the governing 1999 Agreement relating to the KMPC’s

responsibilities, including “… all decisions relating to hiring and dismissal of members of the police force …”. He also cited

section 5.1, which stipulated that the Council “… will maintain the Kanesatake Mohawk Police Commission accountable to the Mohawks of Kanesatake …” for overseeing the administration of the Force, among other things. ... [34] I agree with Mr. Lauzon that although the 1999 Agreement gives the KMPC the authority to make decisions relating to hiring and dismissals, the August 27, 2002 resolution demonstrates that the KMPC sought to have its decision approved by the Council in order for it to take effect.

This, and ample other evidence referenced by the adjudicator, clearly shows that that the Council had the ultimate authority to approve or deny the KMPC’s recommendation. ... [37] All of this clearly demonstrated that the Council possessed the final authorization power in these matters , and directly supports the adjudicator’s conclusions in this regard.

In light of the above, was the arbitrator correct in finding that the applicant’s status had not changed? [ 41 ] To repeat myself, it is not necessary to see the analysis through to its end to verify whether the Federal Court's conclusion complies with the intent expressed by the parties to the tripartite agreement.

It is sufficient to observe that the Band Council and the Kanesatake Mohawk Police Commission both have a role to play and that in the present case the Band Council did not play its own role in a timely manner. [ 42 ] The conduct of the parties, moreover, confirms that the Kanesatake Mohawk Police Commission could not act without the Band Council's assistance. It was the Commission that prepared the contracts that the respondents signed on February 15, 2002.

Yet, each of these contracts also had to be executed by two members of the Band Council responsible for the justice and police portfolio, including Bonspille himself, a formality that was incompatible with the position argued by the respondents before us. [ 43 ] As for the respondent Isaac, in the days prior to the expiry of his contract as interim police chief on March 31, 2002, he wrote to the Band Council to find out its decision regarding the renewal of his contract, an action that was also inconsistent with his legal position: March 20, 2002 Interim Grand Chief Steven L.

Bonspille Chief Clarence Simon Justice & Policing portfolio Mohawk Council of Kanesatake Subject: Extension on employment contract . Dear Chiefs: The following letter is pertaining to the above-mentioned subject. As per our conversation, I am requesting to stay as interim Chief of Police for a longer period of time. It is imperative that I know as soon as possible regarding your decision , so I can contact my Chief and advise him of my extension. Please call me on my cell before the end of the week, so I can make appropriate arrangements in regards to my word at home. My cell # is 506-759-4010.

Sincerely, Terry Isaac #010 Interim Chief of Police Kanesatake Mohawk Police

[ 44 ] On October 5, 2011, a few days after having been named as Larry Ross's replacement, Terry Isaac made the following remarks to the federal and provincial authorities, making it clear that he understood that the Band Council and the Commission would both have a role to play when the time came to choose a new police chief: On September 28 th , 2001, the Mohawk Council of Kanesatake fired interim Chief of Police Larry Ross and named me as interim Chief of Police.

I accepted the temporary position and assured them that I would help out until a new Chief of Police is selected by he Mohawk Council and the Kanesatake Mohawk Police Commission . [ 45 ] Like the Federal Court, I find that the 1999 tripartite agreement, correctly interpreted, does not support the trial judge's finding in paragraph 81 of his judgement: [81] The Court finds that the fixed-term contracts and the Isaac fixed-term contract were binding and executory on the Police Commission through the sole signature of the Police Commission . [ 46 ] I now turn to the question of whether the agreement can be set up against third parties.

According to the trial judge, it is nothing more than a simple contract. Accordingly, non-compliance with the formalities provided therein could not be raised as against the respondents. [ 47 ] For my part, I find it difficult to admit that the respondents could present such an argument that supposes that they could benefit from the agreement without having to comply with its formalities. [ 48 ] The respondents could apply for the position of police officer because of an agreement entered into on August 19, 1999, between the Kanesatake Mohawk Council, the Government of Quebec, and the Government of Canada.

Pursuant to the powers conferred upon it by the Indian Act [12] and the Kanesatake Interim Land Base Governance Act , [13] the Band Council, acting alone, does not have jurisdiction to establish a police force in Kanesatake. As for the Federal, assuming that its jurisdiction over Indians and the territory reserved for Indians allows it to delegate this power to the Band Council, it has not done so.

In short, without an agreement, there could not be any contracts. [ 49 ] Also, insofar as the respondents based their action on the tripartite agreement, they must agree to comply with it. [ 50 ] Moreover, while there is no doubt among the parties that the tripartite agreement is a contract that must be interpreted as such —for example, by identifying their common intent—that is not the case for third parties. [ 51 ] I cannot conceive that a political agreement between three levels of government to establish and maintain a police force on a portion of territory could be considered a contract within the meaning of the Civil Code with repercussions only among the contracting parties.

To rebut such a proposition, I will begin by referring to the Police Act in effect in 1999, when the tripartite agreement was executed. [14] [ 52 ] This statute provided for the establishment of a police force, the Sûreté du Québec, whose jurisdiction covered all of Quebec. [15] It also provided for the possibility by any municipality of 5000 inhabitants or more to create its own police force through a municipal by-law. [16] If, for the moment, we set aside aboriginal police forces, we observe that the establishment of Quebec police forces operating on the province's territory has legislative and regulatory roots. [ 53 ] The same goes for aboriginal police forces that, as we have seen, base their legal existence on an agreement with the Government of Quebec, a possibility also rooted in the statute, at

section 79.0.1 of the Police Act . [ 54 ] It is important to note that the legislature decreed a mandatory content for the agreement in the form of provisions relating to the swearing in of police officers and the independence of the aboriginal police force's management. [17] Parliament also stipulated that the agreement may contain provisions relating to hiring standards, in which case these will prevail over other standards adopted through government regulation. [18] Finally, the agreement must be filed at the National Assembly. [19] [ 55 ] It follows from the Police Act that the formalities prescribed in the tripartite agreement must be considered formalities prescribed by statute.

They establish standards that are mandatory and, in some cases, overriding in the event of conflict with government-created standards.

That the legislature requires that the agreement be filed at the National Assembly, just as it does any other statute, is revealing of the status that it must be given. [ 56 ] And what is the consequence of all this? [ 57 ] The respondents should have made sure, like any other individual entering into a contract with a public authority, that the formalities set out in the agreement had been followed before claiming that the Band Council was bound, as public interest (meaning the protection of public funds) overrides their private interests in this case. [20] Since the formalities imposed by the tripartite agreement were not complied with, the contracts executed on February 15, 2002, and March 27, 2002, are invalid. [ 58 ] We have seen that, while the Band Council alone is responsible for selecting and recruiting Kanesatake police officers according to specific criteria it is charged with applying pursuant to

section 4.6 of the agreement, it was the respondent Isaac, along with the president of the Commission, Louise Bonspille, who hired the police officers on February 15, 2002. [ 59 ] Admittedly, Chief Clarence Simon is a member of the Band Council and he executed the contracts in question. Chief Simon is not, however, the Band Council, which is the competent body under the tripartite agreement. [ 60 ] Furthermore, in addressing the criterion of the medical examination that the candidates must undergo under

section 4.6(

c) of the agreement, which the Band Council is duty bound to apply, the trial judge set it aside, stating that the Band Council had often ignored it in the past. It being a mandatory formality set out in the agreement, the judge could not make this finding.

[ 61 ] The same conclusion is necessary regarding the criterion of the good character of the candidates. Based on the evidence, the judge accepted that five of the eleven candidates interviewed on February 15, 2002, were not recommended by the Sûreté du Québec. This is how he addressed the issue: [124] Police Chief Isaac's evidence from he filed transcript of his examination on discovery was to the effect that the eight officers had passed the background check regarding criminal records. However, in oral evidence at trial, he noted that 5 of 11 candidates were not recommended by the Sûreté du Québec. The only relevance that the Court can see to this relates to paragraph 4.6 (

d) of the 1999 Agreement which is the standard requiring the candidate "be of good character" . However, the Court determines that this non- recommendation cannot be held against the eight officers for the following reasons:

a) there is no evidence as who of the five officers were not recommended. The Band Council failed to meet this burden of proof;

b) moreover, there was no evidence linking the lack of recommendation to "good character" , a highly subjective criteria. The Band Council already agreed that "some faith must be given to the Acting Chief of Police [Isaac] in the selection officers …" There is no evidence to question the judgment of Police Chief Isaac on this issue of "good character" and it is not the role of the Court to "second guess" this exercise of his administrative discretion in view of the existing evidence that the eight offices had police expedience; and

c) the letter from Mr. Bonspille, Exhibit P-5, constituted a premature repudiation by he employer without any of the eight officers being given an opportunity to address this issue. [ 62 ] Evidently, the fact that the Sûreté du Québec did not recommend five candidates was material information that should have been brought to the Band Council's attention, whose responsibility it was, during the selection and recruitment of police officers, to ensure that they were of good character pursuant to 4.6(

d) of the tripartite agreement. [ 63 ] Because I find that the Kanesatake Mohawk Police Commission could not hire the respondents without the assistance of the Band Council, it goes without saying that the trial judge could not characterize the conduct of the appellant Bonspille as wrongful.

Far from encroaching in bad faith upon the powers of the Kanesatake Mohawk Police Commission, the appellant Bonspille was demanding merely what he saw as compliance with the formalities set out in the agreement in a context featuring a deep difference of opinion between the two entities as to their respective powers and responsibilities. [ 64 ] For these reasons, I would allow the appeal with costs. JEAN BOUCHARD, J.A.