2022 QCCA 1699, 2022 QCCA 1699

Unofficial English Translation of the Judgment of the Court Takuhikan c. Procureur général du Québec 2022 QCCA 1699 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF QUEBEC No.: 200-09-010153-200 (155-17-000027-173) DATE: December 15, 2022 CORAM: THE HONOURABLE MARIE-FRANCE BICH, J.A. JEAN BOUCHARD, J.A. SIMON RUEL, J.A. PEKUAKAMIULNUATSH TAKUHIKAN APPELLANT – Plaintiff v.

ATTORNEY GENERAL OF QUEBEC and ATTORNEY GENERAL OF CANADA RESPONDENTS – Defendants CORRECTED JUDGMENT (July 3, 2023) [ 1 ] The appellant appeals against the judgment rendered on December 19, 2019, by the Superior Court, District of Roberval (the Honourable Robert Dufresne), which dismissed its originating application seeking the reimbursement by the respondents of the deficits, totalling $1,599,469.95, incurred by its police service between April 1, 2013 and March 31, 2018. [1] [ 2 ] For the reasons of Bouchard, J.A., with which Bich and Ruel, JJ.A. concur, and for the concurring reasons of Bich, J.A., with which Bouchard and Ruel, JJ.A. concur, THE COURT: [ 3 ] ALLOWS the appeal; [ 4 ] SETS ASIDE the judgment of the Superior Court; [ 5 ] CONDEMNS the respondent Attorney General of Canada to pay the appellant $832,724.37 with interest at the legal rate and the additional indemnity as of August 13, 2017; [ 6 ] CONDEMNS the respondent Attorney General of Quebec to pay the appellant $767,745.58 with interest at the legal rate and the additional indemnity as of August 13, 2017; [ 7 ] The whole with legal costs.

MARIE-FRANCE BICH, J.A. JEAN BOUCHARD, J.A. SIMON RUEL, J.A. Mtre Benoît Amyot Mtre Léonie Boutin Cain Lamarre

For the appellant Mtre Annick Dupré Lavoie, Rousseau (Justice-Québec) For the respondent Attorney General of Quebec Mtre Vincent Veilleux Mtre Pavol Janura Department of Justice Canada For the respondent Attorney General of Canada Date of hearing: February 10, 2022 Date reserved: March 1, 2022 REASONS OF BOUCHARD, J.A. Context [ 8 ] The appellant is a band council within the meaning of the Indian Act [2] and is the government entity that represents the Pekuakamiulnuatsh Innu First Nation established in Mashteuiatsh, on the western shore of Lac Saint-Jean, near Roberval.

Pursuant to tripartite agreements entered into over the years with the federal government and the government of Quebec, it is the appellant that administers and regulates police services in the community of Mashteuiatsh. [ 9 ] The origins of Indigenous police forces as they currently operate can be traced back to 1990. That year, the federal Indian Policing Policy Review Task Force published its report.

It noted that First Nations do not have access to the same level and quality of police services as non-Indigenous communities, despite the fact that crime rates on reserves are significantly higher than the Canadian average. [3] [ 10 ] In response to this report, the very next year, in 1991, the Government of Canada adopted its First Nations Policing Policy .

It also established the First Nations Policing Program (hereinafter, the “ FNPP ”), which was designed to allow it to work together with provincial and territorial governments and First Nations to negotiate tripartite agreements for police services that are professional, effective and responsive to the needs and culture of each community, thereby highlighting its commitment to supporting First Nations to become self-sufficient and self-governing. [4] [ 11 ] Since this policy is at the heart of the parties’ arguments, it is important to cite significant portions thereof, as the trial judge did, to provide a better understanding of the reasons that will follow: II PURPOSE AND SCOPE OF THE POLICY [...] The Policy provides a practical way to improve the administration of justice for First Nations through the establishment of First Nations police services that are professional, effective, and responsive to the particular needs of the community. * This is accomplished through the provision of cost-shared funding of police services, and related support and assistance.

The Policy is also a practical means to support the federal policy on the implementation of the inherent right and the negotiation of self- government . The Policy is implemented consistently across Canada through tripartite agreements negotiated among the federal government, provincial or territorial governments and First Nations. […] III OBJECTIVES OF THE POLICY Strengthening Public Security and Personal Safety : To ensure that First Nations peoples enjoy their right to personal security and public safety.

This will be achieved through access to policing services that are responsive to their particular needs and that meet acceptable standards with respect to the quality and level of service . Increasing Responsibility and Accountability : To support First Nations in acquiring the tools to become self-sufficient and self-governing

through the establishment of structures for the management, administration and accountability of First Nations police services. Such structures will also ensure police independence from partisan and inappropriate political influence. Building a New Partnership : To implement and administer the First Nations Policing Policy in a manner that promotes partnerships with First Nations communities based on trust, mutual respect, and participation in decision-making.

IV POLICY PRINCIPLES Quality and Level of Service First Nations communities should have access to policing services which are responsive to their particular policing needs and which are equal in quality and level of service to policing services found in communities with similar conditions in the region. First Nations communities should have input in determining the level and quality of the police services they are provided . […] Police Service Options First Nations communities should have access to at least the same police service models that are available to communities with similar conditions in the region .

They should also have input in determining the model appropriate to their community. Selection of Police Service Model The selection of a particular model of police service should balance the need for cost-effectiveness and the particular policing needs of First Nations communities. […] Cost-shared Arrangements The federal and provincial governments, because they share jurisdiction, should share the cost of First Nations policing services.

Within the funds available , the federal government should provide such funding support as is necessary to promote national standards and to support the aforementioned principles on the basis of consistent and equitable funding arrangements. […] V FUNDING Funding for all types of First Nations police services is based on tripartite agreements between the federal and provincial/territorial governments and First Nations.

Tripartite agreements provide that the federal government pay 52 per cent and the provincial or territorial government 48 per cent of the government contribution toward the cost of First Nations policing services.

First Nations communities will, where possible, be encouraged to help pay for the cost of maintaining their police service, particularly for enhanced services . […] Assessment of Funding Requirements Within the funds available , the federal and provincial/territorial governments and First Nations will determine the number of police officers and civilian staff to be supported by government funding on the basis of: • the demographic characteristics of the population to be served (i.e. age and number of people); • the size and nature of the geographic area to be covered; • the police workload in the community, based on crime statistics and crime prevention activities.

Calculating the costs of a policing arrangement for a community should be consistent with the calculation of costs for policing arrangements in other communities with similar conditions in the region . Criteria for Funding To qualify for funding, the following criteria must be met: • All police officers in non-First Nations administered policing services must be First Nations people, except where the First Nation agrees to and participates in the staffing of a non-First Nation person.

The duration of such staffing will be negotiated by the federal government, the relevant province/territory and the First Nation. • The First Nations police service must meet the standards of the province or territory in which it operates. • First Nations police officers must be properly appointed as peace officers and empowered to enforce all applicable laws. • The police service must consult with and be accountable to the community it serves through a police board, commission or advisory

body. […] [5] [ 12 ] From this description of the main components of the Policy, one notes that, through agreements negotiated with the provincial (territorial) governments and First Nations, the federal government has undertaken to fund 52% [6] of the costs for the establishment and operation of Indigenous police forces, whose level and quality of services must be equal to that of communities with similar conditions in the region. [ 13 ] Is it important to note that the Policy states that costs will be shared “[w]ithin the funds available” to the governments.

Moreover, as the Policy is a means for implementing the inherent right of Indigenous self-government through the establishment of management, administration and accountability structures, it specifies that First Nations must, where possible, help pay for the cost of maintaining their police service. [ 14 ] This is the crux of the dispute.

We will return to this point later. [ 15 ] In short, this is the context in which, since 1996, the parties have entered into and renewed agreements dealing with the delivery of police services in the community of Mashteuiatsh, which agreements are, practically speaking, similar from one to the other. [ 16 ] At this stage, it is worthwhile noting the main provisions of these agreements, particularly because the trial judge relied primarily on them to dismiss the appellant’s proceedings. [ 17 ] Taking the 2015-2016 tripartite agreement as a reference, it begins by stating, in

section 1.1, that it [ translation ] “constitutes the entirety of the parties’ undertakings and responsibilities” and, in

section 1.2, that it [ translation ] “shall be governed by and construed in accordance with the laws and regulations in force in Quebec”. Moreover, it does not [ translation ] “recognize, define, prejudice, limit or create Aboriginal rights or treaty rights”, nor shall it [ translation ] “be interpreted to be an agreement or treaty within the meaning of

section 35 of the Constitution Act, 1982 ”. [7] [ 18 ] The appellant is the one in charge of the police force’s administrative management and provides for its organization.

It is the employer and, as such, is in charge of hiring police officers, including the director. [8] [ 19 ] Incidentally, the tripartite agreement can be terminated by any of the parties, at any time, even where no party has defaulted. [9] [ 20 ] As regards the funding of police services, the agreement reiterates that the annual contributions of Canada and Quebec are, respectively, 52% and 48% [10] and that the payment of those contributions is conditional on budgetary appropriations voted by Parliament and the National Assembly. [11] [ 21 ] These are close-ended contributions in the sense that [ translation ] ”[w]here funds have been received by the Council [the appellant] under a prior agreement and have not been spent, the Council acknowledges that it owes them to Canada and Quebec”. [12] The latter may, however, authorize the appellant to retain the unspent amount as partial payment of their respective obligations and thereby reduce their disbursements proportionately. [13] Similarly, all funds that have not been spent upon the expiry of the agreement constitute a debt owed to Canada and to Quebec and must be reimbursed to them in proportion to their contribution. [14] In a similar vein, if sums paid to the appellant from another government source directly or indirectly contribute to the achievement of the tripartite agreement, the respondents may reduce their contribution by the same amount or seek its reimbursement. [15] [ 22 ] Lastly, and crucially for purposes of this appeal,

section 4.5.2 of the agreement specifies that [ translation ] “[t]he Council shall be responsible for any budgetary deficits incurred during a fiscal year […]”. [ 23 ] These are the provisions that serve as the backdrop for the proceedings instituted in the Superior Court, pursuant to which the appellant claims from the respondents the deficits incurred by its police service between April 1, 2013 and March 31, 2018.

Not surprisingly, the respondents filed a motion to dismiss alleging that the originating application is [ translation ] “clearly unfounded in law”, which motion the Superior Court dismissed for reasons related to the respondents’ constitutional obligations to the appellant. [16] [ 24 ] Going forward, it is important to paint an overall picture of the appellant’s originating application and the legal basis on which it rests.

The originating application [ 25 ] The appellant’s action does not contain any request seeking the annulment, in whole or in part, of the agreements entered into for the period covered by its claim.

Nor does it contain any conclusions seeking the declaration of an Aboriginal right in its favour. [17] [ 26 ] The appellant alleges, instead, that the respondents breached their 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 and unilaterally setting the amount of their contributions, although they knew that these contributions did not correspond to the actual costs incurred for establishing and operating the police service. [ 27 ] Moreover, given that the possibility of refusing to sign the tripartite agreements or terminating them was not an option because the services offered by the Sûreté du Québec are not responsive to the needs, habits and customs of the community the appellant represents, [18] it alleges that it never had a choice but to accept the respondents’ contribution and, in so doing, to incur the additional costs of $1,599,469.95, which it believes it is entitled to claim from the respondents.

[ 28 ] These, in essence, are the allegations that support and serve as the basis for the appellant’s action, as Bouchard, J.S.C. noted in her judgment dismissing the respondents’ motion to dismiss: [19] [15] According to the defendants, the only obligations they had committed themselves to were those set out in the tripartite agreements, which are binding on the parties and prevail among them over any other document. Mashteuiatsh does not allege any contractual breach or identify any clause of the tripartite agreement that was not complied with.

Moreover, the tripartite agreements specifically stipulate that any deficit is to be assumed by the plaintiff. […] [32] In support of its claim, Mashteuiatsh submits that Canada and Quebec breached their duties in three respects: (1) to negotiate in good faith; (2) to act with honour; (3) to fulfil their fiduciary duties towards the Mashteuiatsh First Nation. [33] These breaches alleged against the defendants are the basis of Mashteuiatsh’s action. [ 34] The plaintiff acknowledges that the strict terms of the tripartite agreement were technically complied with.

It is the constitutional duties that were breached . [35] For the plaintiff, this action is not limited to the tripartite agreement set out in a contract characterized as a contract of adhesion, but rises to the level of the establishment and maintenance of a Nation’s police force, and the creation of a Program or the signature of an agreement cannot limit the constitutional duties. [References omitted; emphasis added] [ 29 ] That being said, this is not how the judge seized of the matter on the merits analyzed the claim submitted to him.

The trial judgment [ 30 ] Although the appellant’s action alleges that the respondents failed to discharge their constitutional obligations, the trial judge’s analysis focused primarily on the law of contracts. [20] [ 31 ] The chief consequence of this approach is that the judge maintained the respondents’ objection to the filing by the appellant of several reports which, while they recognize that the establishment of First Nations police services is an expression of their self- governance, also note that, in practice, those police services suffer from significant gaps in funding, such that the principles and objectives of the federal policy are not met; [21] the judge agreed with the respondents that this evidence was irrelevant. [ 32 ] With respect to the merits of the case, the judge referred to the applicable rules of the law of contracts, [22] relying on those rules to then interpret the text of the tripartite agreements.

In this regard, he emphasized that these agreements [ translation ] “constitute the entirety of the agreements entered into between the parties”. [23] That said, the agreements specify that the appellant is responsible for the deficits generated by its police service. [24] [ 33 ] The judge also explained that it is the appellant alone that is responsible for managing its police force and that it alone determines the higher level of service it wishes to fund. [25] The judge, who emphasized the possibility for the appellant to unconditionally terminate the tripartite agreements, [26] was thus of the view that the appellant knowingly entered into the agreements. [27] He found that the agreement is not a contract of adhesion, contrary to the appellant’s allegation. [28] [ 34 ] The judge further determined that, based on the evidence, he could not conclude that the respondents had acted in bad faith.

He noted that all communications had been respectful, appreciative and transparent. [29] [ 35 ] Still referring to the evidence, the judge pointed to the text of the federal policy, which states that First Nations policing services must be equal in quality and level of service to policing services found in communities with similar conditions in the region.

In his view, however, [ translation ] “no evidence of the existence of such communities in the region or of the level of policing services they have was presented in the case at bar”. [30] [ 36 ] With respect to the respondents’ alleged breaches of their constitutional obligations, the judge stated that the appellant [ translation ] “cannot base its proceedings on the violation of Aboriginal rights, given the clear terms of

article 1458 [C.C.Q.]”, which prohibits it from opting for an extracontractual liability regime. [31] He nevertheless set out the law applicable to the recognition of an Aboriginal right and noted that [ translation ] “the right claimed must be an element of a practice, custom or tradition integral to the distinctive culture of an Aboriginal community or a defining feature of the culture in question prior to contact with Europeans”. [32] In that regard, based on the evidence he noted that the first Indigenous police force in Mashteuiatsh was established in 1974. [33] [ 37 ] The judge also concluded, for several reasons, that the respondents did not breach their fiduciary duty.

First, he was of the view that [ translation ] “the tripartite agreements are not trust agreements” and that the respondents [ translation ] “do not act as trustees in managing the affairs of the plaintiff’s police force since it is the [appellant] alone who holds this managerial power”. [34] Indeed, according to the judge, [ translation ] “[t]he potential liability of a trustee results from the trustee’s poor management of the affairs of others, which therefore does not apply to the matter at hand”. [35] Second, the appellant did not prove its vulnerability, one of the

components of the fiduciary relationship.

On the contrary, [ translation ] “[t]he financial statements point instead to several million dollars of accumulated budget surpluses”, and [ translation ] “[t]he plaintiff’s own-source revenue is much greater than the deficit of its Public Security department”. [36] Third, the judge stated that [ translation ] “the defendants have a fiduciary duty where there is a specific or cognizable collective Aboriginal interest in relation to which they exercise discretionary control”. [37] However, [ translation ] “[t]here is no specific or cognizable collective interest in relation to the Public Security department.

This is a matter relevant to all Canadians and is not part of the distinctiveness of the members of the Pekuakamiulnuatsh First Nation community”. [38] [ 38 ] Lastly, the judge noted that the Crown’s duty to act with honour [ translation ] “can give rise to obligations only with respect to established or asserted Aboriginal rights or with respect to treaty implementation negotiations”, [39] which is not the case in the matter at hand.

In short, the respondents’ obligation to act honourably does not imply the duty to fund the appellant’s police services at the level the latter desires. [40] He therefore concluded that the tripartite agreements should be given their full effect and the appellant’s proceedings dismissed.

The issues in dispute [ 39 ] This appeal raises three questions. [ 40 ] First, 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 to the effect that providing police services is a component of self-governance and that, consequently, the respondents failed to discharge their constitutional obligations by insufficiently and knowingly underfunding its police service? [ 41 ] Second, were the tripartite agreements the parties entered into between 2013 and 2018 sufficient, on their own, to allow the judge to adjudicate the dispute, namely to determine whether or not the deficits incurred by the appellant’s police service during those years should be reimbursed? [ 42 ] Third, do the principles of 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? _ _ _ _ _ [ 43 ] Before addressing these three questions, I believe it useful to make the following clarification. [ 44 ] It is important to note that the judge took the objection under reserve and ruled on it at the same time as he ruled on the merits, finding, as we have seen, that the exhibits the appellant wished to file were irrelevant. [41] [ 45 ] Why did he consider them irrelevant?

Because, when ruling on the merits, the judge dismissed the appellant’s proceedings by relying primarily on the law of contracts, doing so after having rejected the application of the principles of the honour of the Crown and the Crown’s fiduciary duty. [ 46 ] Thus, in order to properly grasp the issues at stake in this appeal, I believe it appropriate to begin the analysis with a brief overview of these constitutional principles.

Only after outlining these principles will it be possible to determine whether the appellant is correct in arguing that they apply notwithstanding the wording of the tripartite agreements and that the judge erred in maintaining the objection. Analysis Honour of the Crown [ 47 ] The honour of the Crown is a fundamental principle governing the relationship between the Crown and First Nations.

It arises “from the Crown’s assertion of sovereignty over an Aboriginal people and [from] de facto control of land and resources that were formerly in the control of that people”. [42] It goes back to the Royal Proclamation of 1763 [43] and has been characterized by the Supreme Court as a constitutional principle. [44] [ 48 ] Concretely, the honour of the Crown can give rise to different duties in different circumstances.

It is therefore not an incantation, but a core principle with effects. [45] [ 49 ] Does the principle of the honour of the Crown, which is binding on both the federal Crown and the provincial Crown, come into play each time the Crown contracts with First Nations? [ 50 ] In 2004, in Haïda Nation , the Supreme Court stated that “[t]he honour of the Crown is always at stake in its dealings with Aboriginal peoples”. [46] [ 51 ] In 2013, in Manitoba Metis Federation , the Court specified that the honour of the Crown imposes a heavy obligation, but that not all interactions between the Crown and Aboriginal people engage it. [47] However, “when the issue is the implementation of a constitutional obligation to an Aboriginal people, the honour of the Crown requires that the Crown: (1) takes a broad purposive approach to the

interpretation of the promise; and (2) acts diligently to fulfill it”. [48] [ 52 ] In 2018, in Mikisew Cree First Nation , the Supreme Court reaffirmed that “[t]he honour of the Crown is always at stake in its dealings with Aboriginal peoples”, [49] stating, a little further on, that the principle applies “when the Crown acts either through legislation or executive conduct”. [50]

[53] Lastly, it should be noted that “the Crown cannot contract out of its duty of honourable dealing with Aboriginal people” and thatits obligation “applies independently of the expressed or implied intention of the parties”,[51] which is crucial in the matter at hand whenone considers that the judge discarded this principle due to the wording of the agreements. Fiduciary duty [54] In Williams Lake Indian Band v.

Canada (Aboriginal Affairs and Northern Development), the Supreme Court explained that “[a]fiduciary obligation may arise from the relationship between the Crown and Indigenous peoples in two ways”,[52] drawing a distinctionbetween a sui generis fiduciary duty and an ad hoc fiduciary duty. [55] A sui generis fiduciary duty “arise[s] from the Crown’s discretionary control over a specific or cognizable Aboriginalinterest”.[53] It is an obligation that “is specific to the relationship between the Crown and Indigenous peoples” and is thereforecharacterized as “sui generis”.[54] A fiduciary duty may also “arise where the general conditions for a private law ad hoc fiduciaryrelationship are satisfied”.[55] This is the case “where the Crown has undertaken to exercise its discretionary control over a legal orsubstantial practical interest in the best interests of the alleged beneficiary”.[56] [56] It is worth noting that both situations that can give rise to a fiduciary duty are relatively well delimited, such that they do notcover all dealings between the Crown and First Nations, as the Supreme Court noted in Wewaykum Indian Band: 81.

But there are limits. The appellants seemed at times to invoke the “fiduciary duty” as a source of plenary Crown liability coveringall aspects of the Crown-Indian band relationship. This over​shoots the mark. The fiduciary duty imposed on the Crown does not exist atlarge but in relation to specific Indian interests. […] [57] [Emphasis added] [57] As regards the specific Aboriginal interest the fiduciary duty is intended to protect, case law has recognized such an interest inrelation to land rights asserted by First Nations.

The Supreme Court affirmed this interest in its 2002 judgment in Wewaykum: 81. […] In this case we are dealing with land, which has generally played a central role in aboriginal economies and cultures. Landwas also the subject matter of Ross River (“the lands occupied by the Band”), Blueberry River and Guerin (disposition of existingreserves).

Fiduciary protection accorded to Crown dealings with aboriginal interests in land (including reserve creation) has not to datebeen recognized by this Court in relation to [other] Indian interests other than land outside the framework of s. 35(1) of the ConstitutionAct, 1982.[58] [Emphasis added] [58] To date, however, the Supreme Court has not had to rule on a matter involving a fiduciary duty in the context of Crown conductin relation to Aboriginal interests other than land, although it does not appear closed to the idea of recognizing the application of thisprinciple to other types of dealings between the Crown and First Nations.

Nonetheless, it seems that such recognition would be limited tosituations where the Crown’s responsibility arises from an obligation that is “in the nature of a private law duty”, as can be seen from thispassage, drawn once again from the ruling in Wewaykum: [82] Since Guerin, Canadian courts have experienced a flood of “fiduciary duty” claims by Indian bands across a whole spectrum ofpossible complaints, for example: (

i) to structure elections (Batchewana Indian Band (Non-resident members) v. Batchewana Indian Band, (FCA),[1997] 1 F.C. 689 (C.A.), at para. 60; subsequently dealt with in this Court on other grounds); (ii) to require the provision of social services (Southeast Child & Family Services v. Canada (Attorney General), (MB KB), [1997] 9 W.W.R. 236 (Man. Q.B.)); (iii) to rewrite negotiated provisions (B.C. Native Women’s Society v. Canada, (FC), [2000] 1 F.C. 304 (T.D.)); (iv) to cover moving expenses (Paul v. Kingsclear Indian Band (1997), 137 F.T.R. 275; Mentuck v. Canada, [1986] 3 F.C. 249 (T.D.);Deer v. Mohawk Council of Kahnawake, (FC), [1991] 2 F.C. 18 (T.D.)); (

v) to suppress public access to information about band affairs (Chippewas of the Nawash First Nation v. Canada (Minister of Indianand Northern Affairs) (1996), 116 F.T.R. 37, aff’d (1999), 251 N.R. 220 (F.C.A.); Montana Band of Indians v. Canada (Minister ofIndian and Northern Affairs), (FC), [1989] 1 F.C. 143 (T.D.); Timiskaming Indian Band v. Canada (Minister ofIndian and Northern Affairs) (1997), (FC), 132 F.T.R. 106); (vi) to require legal aid funding (Ominayak v.

Canada (Minister of Indian Affairs and Northern Development), (FC),[1987] 3 F.C. 174 (T.D.)); (vii) to compel registration of individuals under the Indian Act (rejected in Tuplin v. Canada (Indian and Northern Affairs) (2001), 2001PESCTD 89 , 207 Nfld. & P.E.I.R. 292 (P.E.I.S.C.T.D.)); (viii) to invalidate a consent signed by an Indian mother to the adoption of her child (rejected in G. (A.P.) v. A. (K.H.) (1994), (AB KB), 120 D.L.R. (4th) 511 (Alta.

Q.B.)). [83] I offer no comment about the correctness of the disposition of these particular cases on the facts, none of which are before us fordecision, but I think it desirable for the Court to affirm the principle, already mentioned, that not all obligations existing between theparties to a fiduciary relationship are themselves fiduciary in nature (Lac Minerals, supra, at p. 597), and that this principle applies to therelationship between the Crown and aboriginal peoples. It is necessary, then, to focus on the particular obligation or interest that is the

subject matter of the particular dispute and whether or not the Crown had assumed discretionary control in relation thereto sufficient toground a fiduciary obligation. [84] I note, for example, what was said by Rothstein J.A. in Chippewas of the Nawash First Nation v. Canada (Minister of Indian andNorthern Affairs), supra, at para. 6: The second argument is that the Government of Canada has a fiduciary duty to the appellants not to disclose the information in questionbecause some of it relates to Indian land. We are not dealing here with the surrender of reserve land, as was the case in Guerin v.Canada.

Nor are we dealing with Aboriginal rights under s. 35 of the Constitution Act, 1982. This case is about whether certaininformation submitted to the government by the appellants should be disclosed under the Access to Information Act. [Emphasis added.] See also Lac La Ronge Indian Band v. Canada (2001), 2001 SKCA 109 , 206 D.L.R. (4th) 638 (Sask. C.A.); Cree RegionalAuthority v. Robinson, (FC), [1991] 4 C.N.L.R. 84 (F.C.T.D.); Tsawwassen Indian Band v. Canada (Minister ofFinance) (1998), (FC), 145 F.T.R. 1; Westbank First Nation v.

British Columbia (2000), 2000 BCSC 1139 ,191 D.L.R. (4th) 180 (B.C.S.C). [85] I do not suggest that the existence of a public law duty necessarily excludes the creation of a fiduciary relationship. The latter,however, depends on identification of a cognizable Indian interest, and the Crown’s undertaking of discretionary control in relationthereto in a way that invokes responsibility “in the nature of a private law duty”, as discussed below.[59] [59] These constitutional principles having been set out, let us first consider whether the judge was correct in upholding therespondents’ objection to the evidence.

First question: Did the judge err by maintaining the respondents’ objection to the appellant filing several exhibits as evidence insupport of the allegations set out in its originating application? [60] In my opinion, this question must be answered in the affirmative. [61] As discussed, the judge’s analysis focused primarily on the law of contracts and the wording of the tripartite agreements, despitethe fact the appellant had alleged a breach of the respondents’ constitutional obligations.

This is what he wrote at paragraphs 51 and 52of his judgment:[60] [translation] [51] At issue is whether the defendants “breached their obligations to negotiate in good faith, act with honour and discharge theirfiduciary duties to the Mashteuiatsh First Nation for the maintenance and funding of police services for the Mashteuiatsh territory”. [52] As regards the subject matter of the dispute, none of the submitted exhibits is relevant.

It would be an error of law to admit themas evidence based on the principle that, in all respects, the Court can take judicial notice thereof. [References omitted; italics in the original] [62] With all due respect, the judge’s conclusion is questionable. Even if the law of contracts is taken as the starting point foranalyzing the issues in dispute,

article 1426 C.C.Q. inevitably leads to a consideration of the particular nature of the tripartite agreementsand the circumstances in which they were entered into: 1426. In interpreting a contract, the nature of thecontract, the circumstances in which it wasformed, the

interpretation which has alreadybeen given to it by the parties or which it mayhave received, and usage, are all taken intoaccount. 1426.

On tient compte, dans l’interprétation ducontrat, de sa nature, des circonstances danslesquelles il a été conclu, de l’interprétation queles parties lui ont déjà donnée ou qu’il peutavoir reçue, ainsi que des usages. [63] Admittedly, the agreements provide that they constitute the entirety of the undertakings and obligations of the parties, aprovision the judge in fact relied on at paragraph 64 of his judgment, but, as we saw in Beckman, in reference to the Crown’s duty ofhonourable dealing with First Nations, the Supreme Court very clearly stated that this duty applies independently of the expressed orimplied intention of the parties and that the Crown cannot contract out of that duty.[61] For the moment, however, I will leave aside thenotion of the fiduciary duty of the Crown. [64] The First Nations Policing Policy clearly states that it is a means to implement the inherent right to self-government ofIndigenous peoples so that they can have police services that are professional, effective, and responsive to their cultures.[62] The purposeof the exhibits contemplated in the respondents’ objection to the evidence was precisely to provide context for the foregoing statementby demonstrating (1) the systemic and historic factors affecting First Nations and (2) that the FNPP, as applied, is not capable ofensuring that on-reserve services are delivered in a manner consistent with the principles of the Policy, and that this constitutes a breachof the respondents’ constitutional obligations. [65] I will not reproduce the full text of these exhibits, which consist of over 4,000 pages.

Nevertheless, I believe it helpful to notecertain passages from the report of the Public Inquiry Commission on relations between Indigenous Peoples and certain public servicesin Québec, chaired by retired Superior Court of Quebec Justice Jacques Viens,[63] which report is the most recent one addressing thevery long-standing issues raised by this appeal. [66] It is important to remember the event that triggered this inquiry: a news story broadcast on October 22, 2015, in which some tenIndigenous women from the Val d’Or region who, having been given an opportunity to speak out, said that they had been subject toabuse by police officers from the Sûreté du Québec between 2002 and 2015.[64] This sad reality was acknowledged by the Association

des policières et policiers provinciaux du Québec (“APPQ”): [65] Consequently, it is not surprising that members of First Nations and Inuit should point to these unfortunate episodes of our shared history to explain their distrust of public services .

The Québec government affirmed as much in its own final observations, as did the Association des policières et policiers provinciaux du Québec (APPQ): Indigenous peoples were subject to different laws, forcing them to remain on one or more reserves, outlawing traditional dances and religions, forbidding the use of Indigenous languages, banning alcohol consumption, prohibiting or limiting hunting and fishing, etc.

The relationship between Indigenous peoples and the police charged with enforcing these laws and punishing offences was therefore built on an extremely negative foundation . […] Based on these considerations, and without listing the various measures imposed by the government in its attempt to assimilate First Peoples during that period, the distrust of the latter toward police forces charged with enforcing laws and punishing offences is understandable . [References omitted; emphasis added] [ 67 ] Further on in its report, the Commission revisited its observation regarding the mistrust of police by First Nations, providing the following historical explanation: [66] Because of the historically difficult relations between Indigenous peoples and police forces, the police profession is not highly respected in those communities.

The history of the relations described earlier in this report clarifies the origins of those difficulties. As explained, during the period when the newly formed dominion of Canada was shaping its identity, the Indigenous peoples’ ways of life were being radically transformed. For example, under a wide range of new legislation, First Nations members were confined to reserves, limited in exercising their hunting and fishing rights, forced to renounce their language and spirituality, and cohabit with private companies (forestry, mining, etc.) that gradually made inroads into their territory.

In that context, police officers, who had the authority to apply the legislation, quickly became symbols of repression . The rest of the story, including residential schools and police intervention making it possible to forcibly remove children from their families, crystallized that perception and fuelled a profound sense of mistrust . The same can be said of the massive slaughter of sled dogs in Nunavik in the late 1950s by officers from the Royal Canadian Mounted Police (RCMP) and the SQ, which left an entire population without its primary means of transportation and subsistence.

Over the years, as the Association des policières et policiers provinciaux du Québec very clearly explained in the brief produced for the Commission, “that mistrust and repression generated various crisis situations that further amplified the tensions between Indigenous peoples and the general population, including police forces”. In particular, there was the “Salmon war” episode in the late 1970s and early 1980s, the Oka Crisis a decade later and then what the media called the “Val-d’Or events” leading to the creation of this Commission.

In other words, the relations between Indigenous peoples and police officers are built on foundations that the police themselves qualify as “very unstable and negative”. [References omitted; emphasis added] [ 68 ] This is undoubtedly a fundamental element of this case, which explains the need – indeed the urgency – for First Nations to establish and manage their own police forces, an element the respondents cannot disregard when they assume obligations towards First Nations to help them achieve this objective in accordance with the FNPP .

That said, the Commission’s findings in this regard are anything but glowing. [ 69 ] When discussing the budgets for Indigenous police forces – the matter at the heart of this appeal – the Commission noted that they are insufficient, which is a problem that has long been documented and has numerous, severe consequences: [67] 7.4.2 Budgets of Indigenous police forces Officer training is not the only element affected by budgetary concerns. The underfunding of Indigenous police forces is a major, long- documented problem .

In fact, just a few years after the First Nations Policing Policy was adopted in 1991, the Royal Commission on Aboriginal Peoples was already clearly pointing to the difficulties inherent in this issue. Before this Commission, Indigenous representatives did not hesitate to refer to chronic underfunding, characterizing the situation as a crisis.

For a number of communities, the underfunding has led to accumulated deficits of up to several million dollars , according to Indigenous representatives heard at the hearings […]. [References omitted; emphasis added] [ 70 ] The Commission found that this underfunding has an impact on the number of police officers as well as their salaries, which are significantly lower than those of other provincial police forces, and adversely affects the quality of equipment and the services themselves: [68] Moreover, in almost all of the Indigenous police forces, underfunding creates salary conditions that are significantly below those paid by the province’s other police forces .

Witnesses at the hearing spoke of a wage gap of up to 40.0% or 50.0%. According to the President of the First Nations Chiefs of Police Association, the salaries are lowest in Québec , because colleagues in other provinces are all paid on par with the provincial police forces and RCMP. A situation that rightfully raises the ire of Québec’s Indigenous police authorities. Many directors of Indigenous police forces confirmed that their staff are underpaid, and that salary

conditions hamper both recruitment and retention . […] Infrastructure and equipment Underfunding also affects infrastructure and equipment . In fact, according to witnesses, the vast majority of police departments in Indigenous communities are using equipment – vehicles, bullet-proof vests and technology – that is obsolete or simply inadequate, making their jobs much harder. The lack of a 911 system for emergency calls and a lack of displays and computers in vehicles is an example.

Before the Commission, Indigenous authorities repeatedly emphasized the magnitude of the needs in this area. […] The general condition of the infrastructure (police stations and cells) is also a problem and, in some cases, endangers personal safety , […] However, building a new police station is not within the department’s annual budget.

Called on for help, most communities can’t pay the high costs of building or redeveloping an obsolete police station. […] [References omitted; emphasis added] [ 71 ] The present matter, therefore, must be approached as follows. [ 72 ] Given that the Supreme Court’s jurisprudence on the fiduciary duty of the Crown is not settled, I consider it risky to base my analysis thereon. This is so because the commitment to contribute funding to the police services of a public body does not give rise to a duty on the part of the respondents that, at first glance, is “in the nature of a private law duty”.

In this regard, I echo the above-cited reasons of Binnie, J. in Wewaykum Indian Band . [69] [ 73 ] Conversely, the Crown’s duty to act with honour applies, thereby giving rise to different duties in different circumstances. [70] [ 74 ] The respondents (the federal government, by adopting its policy, and the Quebec government, by agreeing to participate in the FNPP and to enter into an agreement with the appellant as s. 90 of the Police Act [71] allows it to do) 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 . [72] The honour of the Crown is clearly at stake here. [ 75 ] The judge, therefore, was not entitled to rely solely on the strict wording of the tripartite agreements when determining whether the respondents had failed to fulfil their obligations.

He should also have considered the government policy surrounding these agreements, the general context in which on-reserve police services are provided in Quebec and elsewhere in Canada, and the damning findings made over many years by various commissions of inquiry having examined the matter. [ 76 ] For the appellant, the exhibits the judge excluded constitute important evidence for discharging its burden of proof and establishing the facts having given rise to the right claimed in its originating application. The judge should have overruled the respondents’ objection.

Second question: Were the tripartite agreements the parties entered into between 2013 and 2018 sufficient, on their own, to allow the judge to adjudicate the dispute? [ 77 ] As just discussed, the judge erred in maintaining the respondents’ objection. He should have begun by analyzing the constitutional principles applicable to the relationship between the parties, and then, in light of the exhibits in question, he should have applied those principles to his consideration of the context that led to the signing of the tripartite agreements and to their wording.

Only after such a process could he have truly ruled on the appellant’s claim and determined whether or not the respondents acted honourably in the circumstances. [ 78 ] The second question must therefore be answered in the negative.

Third question : Do the principles of 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? [ 79 ] For the reasons set out above, [73] only the principle of the honour of the Crown will serve as the backdrop for my analysis of the third question. [ 80 ] The appellant argues that the respondents did not act with honour in that they knowingly and in violation of the principles set out in the FNPP maintained and renewed tripartite agreements based on arbitrary budgets that were not representative of the actual costs incurred for its police service.

What does the evidence reveal in that regard? [ 81 ] The appellant began to participate in the FNPP in 1996. From 1998 onwards, deficits started to accumulate, reaching over one million dollars for 2014-2015. [ 82 ] This situation is due to the fact that the collective agreement governing the working conditions of police officers in the Sécurité publique de Mashteuiatsh expired on March 31, 2009, and since the parties were unable to come to an agreement, an arbitration decision was rendered on July 17, 2014, ordering a significant upwards wage adjustment for the police officers.

Indeed, the appellant had to pay a retroactive amount of $853,000 for the period from August 1, 2009 to July 17, 2014. [74]

[ 83 ] The main point of contention between the police officers’ union and the appellant arose from the union’s desire to obtain wages comparable to those of police officers doing similar work elsewhere in Quebec, while the appellant claimed its inability to pay due to the respondents’ underfunding of its police force.

The following are the arbitrator’s findings in this regard: [75] [ translation ] [27] The record shows that, at all times relevant to this case, the sums allocated by Canada and Quebec for the police services in Mashteuiatsh were never increased, notwithstanding the remonstrations of the Band Council, which, unlike a municipality, and this is a fact, does not have taxation powers, and unlike a higher level of government, does not have the power to impose levies or tax income. [ 84 ] The arbitrator then noted that the appellant cannot use the budgetary envelopes allocated for other services to fund its police force: [76] [ translation ] [32] As stated above, the Band Council, unlike a municipality, does not have taxation powers, and unlike a higher level of government, does not have the power to impose levies or tax income.

Its operations are financed by higher levels of government, primarily the federal government, as we saw with respect to public security, for example. [33] The services the Band Council offers its citizens are therefore funded by higher levels of government, particularly the federal government. Each program the Band Council manages has its subsidies. The employer’s witnesses stated that a subsidy intended for a given service, such as health and social services, cannot serve to fund another service, such as public security.

If there is a surplus for a given service, the government can ask for a reimbursement or it can reduce future contributions for this service. [34] In short, as the employer’s witnesses testified, the Band Council cannot fund the public security service by dipping into the budgetary envelopes which, according to the higher levels of government, particularly the federal government, must be applied to other services. [ 85 ] Based on the evidence, however, he found that the appellant has substantial income stemming from its own-source revenue, thereby echoing the submissions of counsel for the police officers’ union, who had posited that there was nothing prohibiting the appellant from using these funds to finance its police force: [77] [ translation ] [38] Counsel for the union contends that, beyond subsidies, the Band Council has other income, namely income from its own-source revenue (income from businesses established by the Band Council or from interests the Band Council holds in businesses).

Counsel for the Association argued that while, admittedly, the employer’s witnesses stated that these funds must serve to create jobs and wealth within the community, to provide for the future of the community’s youth, the Band Council is not prohibited from using these funds for other purposes, such as setting up a police service offering standard quality services.

The evidence shows that the Band Council’s own- source revenue is substantial. [ 86 ] At this point of the analysis, it is important, for two reasons, to consider the matter of the appellant’s use of its own-source revenue. [ 87 ] First, because, as I explained at the beginning of these reasons, [78] the federal Policy states that “First Nations communities will, where possible, be encouraged to help pay for the cost of maintaining their police service […]” and, second, because the trial judge referred to this own-source revenue, which is [ translation ] “much greater than the deficit of its Public Security department”, [79] thereby implying that the appellant has the means to absorb the deficit from its police service so as to participate, commensurate with its resources, in the implementation of the tripartite agreement.

The appellant’s various types of funding [ 88 ] At the Superior Court hearing, Valérie Tremblay, employed by the appellant as an accountant, testified about the Pekuakamiulnuatsh Nation’s financial structure.

She distinguished between the appellant’s various types of funding, namely: the “ contributions globales / [ translation : block contributions]”, the “ contributions préétablies et fixes / [ translation : predetermined and fixed contributions]”, the “ contributions locales / [ translation : local contributions” and the “ fonds autonomes / [ translation : own-source revenue]”. [ 89 ] She began by explaining that block contributions and predetermined and fixed contributions are sums paid by the state, while local contributions and own-source revenue come from the Nation itself. [ 90 ] Block contributions are sums which, when not entirely expended, can be reinvested in other programs or services, at the appellant’s discretion.

That said, it appears that the appellant has established a guideline pursuant to which activities, programs and services funded by block contributions are those related to the Nation’s continuity, culture, territory and language:

[ translation ] So, we have a… a… a… a funding method we call “block contribution”, and we have others that are “predetermined and fixed contributions”, and, well, the names also changed, you know, over the course of the funding agreements, but I’ll try to make it as simple as possible.

In terms of block contributions, their uniqueness is that it’s a funding method that is, I would say, a little more flexible , you know, considering that we have predetermined programs in our agreement that we… that we have to, as a First Nation, service, for example, post-secondary studies, but we… and we receive an… an amount of money for that, but if our expenditure is less than the funding, well, the unused funds can be reinvested in services or activities other than the program concerned . So that, that’s in the most flexible contribution, you know, the block contribution.

For example, if, for example, I receive… and these are completely fictional numbers, you know, if I receive two million (2

M) dollars for post-secondary studies, but it costs me one point five million (1.5 M), well, I have five hundred thousand dollars ($500,000) I can reinvest in activities, other services. For us, as a guideline, our elected Band Council asks us to fund activities that are not funded at all or are minimally funded, such as culture, territory and language, which are issues of identity and continuity of our First Nation. So, it’s … it allows us to… to do that. [80] [Emphasis added] [ 91 ] The accountant, Ms.

Tremblay, continued, explaining that funding through predetermined and fixed contributions represents a type of funding method that is more rigid than block contributions. Unexpended sums cannot be spent for purposes other than those for which they were paid: [ translation ] The predetermined and fixed contribution method is a funding method that is much more rigid , so, we receive funding for an activity or a […] a very specific program, and the unused funds can’t be reinvested in other things , so, you know, they’re exclusively for that.

For example, we have a program that’s called a fringe benefits program for the Band, so, it’s… it’s funding we receive for the pension fund, so, it has… it has to be taken only for… for that. [81] [Emphasis added] [ 92 ] Local contributions are income collected directly by the Nation: [ translation ] We also have in our other income, we call that in our… our.… our in-house jargon, local contributions, so, local contributions, this is revenue, for example, rent , so, I mentioned that we have a pool of community apartments, so we have rental income that is collected, uh… for those who… who live in… in these apartments, you know, we have revenue, for example, for… we have a fitness centre, so, we have revenue from memberships , revenue from room rentals, etc. , so that all goes in local contributions, but for sure this revenue also entails operating expenses, you know, it’s not net … [82] [Emphasis added] [ 93 ] At the hearing, the accountant, Ms.

Tremblay, referred to Exhibit D-67. [83] She specified that the sums listed there include [ translation ] “a lot of accounts receivable”; [84] these sums are revenue that has been invoiced, but that does not mean the accounts receivable have actually been paid. [85] When asked by the appellant’s counsel whether she knew [ translation ] “the net amount of these local contributions”, she answered: [ translation ] ”Well, I would say that when I look at the list, these contributions as a whole show a deficit.” [86] [ 94 ] Lastly, as regards own-source revenue, this would appear to be funds dedicated to the community and its development. [87] The accountant explained that these funds are spent in accordance with the guidelines established in consultation with citizens and approved by the Band Council:

[ translation ] Then, as part of our revenue, we also have what we call “ own-source revenue ”. So, these are funds that belong to the Band, you know, so, to the First Nation, this own-source revenue, you know, is also not… free of any restrictions on use , so the guidelines on the use of the own-source revenue were, uh… they were subject to a consultation process among our citizens, but are ultimately approved by the Band Council , so there are parameters we have to comply with to use those funds.

The own-source revenue, in fact, serves as an economic lever, so, as a power to invest in business opportunities that arise , because we had a problem with funding, we weren’t able to get the same financing conditions as a municipality, for example, due to the Indian Act . So we started a little project and, you know, it… it… it bore… it bore… fruit and now we have own-source revenue from that.

And the accountability, well, rather than doing it like our other funding agreements, to providers of funds, well, we, the accountability is to the citizens , so once a year there’s an information session to inform the citizens about the revenue that was ge… generated through own-source revenue, but also, also how it’s used annually, and, until recently, uh, I know we’re only looking at two thousand and twelve (2012) to two thousand and seventeen (2017), but, uh, there are still consultation rules when dealing with larger projects to be carried out, projects now get submitted for consultation to take the pulse of the population. [88] [Emphasis added] [ 95 ] This own-source revenue also includes a reserve created for the purpose of absorbing potential deficits.

When questioned on this subject, the accountant, Ms. Tremblay, filed Exhibit D-70, which is the

summary of the regular Band Council meeting of June 17, 2013. [89] It states: [ translation ] The overall result of the annual budget process is a deficit in the order of $609,116 , which it is suggested to cover using the deficit reserve from own-source revenue, which has a balance of $621,949.24. [90] [Emphasis added] [ 96 ] The accountant then explained the following: [ translation ] Until two thousand and six (2006), there was no operating deficit that had been covered through own-source revenue, and in two thousand and six (2006) we found ourselves… because, be it a good year or bad year, from year to year, there were accumulated surpluses in… in our fiscal years, and when we had deficits, well, we drew from our accumulated surpluses, it’s a kind of… of little nest egg, that’s what we called it.

In two thousand and six (2006), we faced a situation in which our accumulated surpluses had been used up, so, you know, we told ourselves, when we present our annual budget to the citizens and we show a deficit, we have to cover it through a source of funding , so, in the short term we created, and we knew it wasn’t ideal, but we created, well, the Band Council made the decision to create a one million dollar ($1

M) reserve from the own-source revenue.

So, this reserve still exists, it was initially one million (1 M), we used it twice, we used it in two thousand and seven–two thousand and eight (2007-2008), in two thousand and twelve–two thousand and thirteen (2012-2013), I hope I haven’t got the wrong years, but the current balance is about six hundred and fifty-thousand (650,000), so we used about… about three hundred and fifty thousand (350,000), uh , for… in… during those two financial years, you know, but, if not, they… the reserve is still there with a balance. [91] [Emphasis added] [ 97 ] With all due respect for the trial judge, the statement he made in paragraph 83 of his judgment should have been more nuanced.

It does not reflect the appellant’s true financial situation. [ 98 ] When questioned by counsel for the appellant, the accountant, Ms. Tremblay, then explained the following: [ translation ] Q So, Ms. Tremblay, that… that’s a lot of numbers, eh, that’s a lot of… A Yes.

Q …of budgets. During the pre-trial examination, you were examined on these numbers,… A Uhuh. Q …and, among other things, you were asked about page fifty-seven (57) [of exhibit D-70], essentially, it’s what’s left at the end of the line, so, at the end of a year, you know, does the Band Council have surpluses, and if so, how much. Are you in a position to answer these… this question?

A In fact, it’s… it’s… it’s not simple , as I explained earlier, when we look, for example, at our surplus for the year in our audited financial statements, which are our annual reports, there’s a line item that may… that may be a surplus that might appear very large, except that when I deduct all the restrictions we have regarding funding, well, the actual room to manoeuvre, we didn’t see any in our audited financial statements . […] So, in recent years, we even added some… some additional information for citizens because we told ourselves that even as regards our citizens, we… we were getting comments like, “well, you have money, you have thirty… thirty million (30 M)”, for example, as a surplus, you know, but, uh, these are not the correct numbers, so, you know, we told ourselves that we had to find a way to explain to our citizens what our real room to manoeuvre was regarding the delivery of … of programs and services, because in our financial statements, everything is consolidated together , we have all our… our… our related companies, our business partnerships, our… so everything is consolidated, and it can be confusing.

So, since then, I believe, I think this is our third year presenting some… some additional information in our… in our financial statements, which now explains the… the operating surplus or deficit in relation to programs and services . [92] [Emphasis added] [ 99 ] Moreover, when cross-examined by the respondent Attorney General of Canada, the accountant emphasized that the funding received for the police service was markedly insufficient, stating that the appellant [ translation ] “operated at the very lowest of the lowest”. [93] Notwithstanding this frugal management of resources, it was impossible for the service’s budget not to be in a deficit: [ translation ] Q Ms.

Tremblay, when you budgeted [for the police service], you balanced at zero (0), it balanced? A No, we didn’t balance at zero (0). Sometimes, we are… we… when we… we put… The work

schedule is set by a collective agreement, the pay is obviously set by a collective agreement, so all of that together means that, I, once I’ve put salaries and fringe benefits in my budget and I’ve taken the ten percent (10%) of administration costs, I’m left with ten thousand (10,000). There are… You know, the years where… we’re talking about today, there was ten thousand dollars ($10,000) left over, how do I operate a police station with ten thousand dollars ($10,000)?

I have no vehicles, no gasoline, no clothing, no… I have nothing . [94] [Emphasis added] [ 100 ] She also stated that the appellant had repeatedly informed the respondents about this situation at each renewal of the tripartite agreements, but [ translation ] “it was always a non-starter”. [95] [ 101 ] When questioned by the judge, she answered as follows: [ translation ] THE COURT: Q So, when you accepted the offer of [government funding], you knew the sums were insufficient?

A We knew it, but we had a knife to our throats and we didn’t have a choice if we wanted to continue having our … [96] [Emphasis added] [ 102 ] At the risk of repeating myself, by merely noting in the judgment under appeal that the financial statements indicated [ translation ] “several million dollars of accumulated budget surpluses”, and that the appellant’s [ translation ] “own-source revenue is much greater than the deficit of its Public Security department”, the judge failed to apply the necessary nuances. [97] Like the accountant, Ms.

Tremblay, I am of the opinion that the financial statements do not reflect the actual room to manoeuvre available to the appellant. Instead, based on the evidence, I note that, since 2006, the reserve fund created by the appellant in order to absorb potential deficits was

used twice and that the appellant’s local contributions also show a deficit. As for the unspent block contribution funds and the appellant’s own-source revenue, it appears that they are spent in accordance with guidelines established by the Nation itself, which, given the objective of reconciliation between Indigenous and non-Indigenous peoples, merits deference. That is how I read the following passage from the Supreme Court judgment in Anderson v.

Alberta , which dealt with the notion of the impecuniosity of a First Nation in connection with the awarding of advance costs where the First Nation otherwise had various sources of revenue: [98] [44] Further, and as we have already observed (at para. 25), the goal of reconciling Aboriginal interests with the broader interests of society will inform how a court identifies the pressing needs of a First Nation government.

Reconciliation requires a court to consider the pressing needs of a First Nation government applicant from its perspective as a government that sets its own priorities and is best situated to identify its needs . […] [Emphasis added] [ 103 ] I am of the view that the allocation of a First Nation’s resources must be analyzed first and foremost based on the needs and priorities determined by it and not based on those a government may impose on it. This is how the federal Policy must be applied, but as will now be discussed, that is not how it was applied.

The respondents did not act with honour [ 104 ] First, a few words about police services in Quebec are in order. [ 105 ] It is the Sûreté du Québec, as the national police force, that has jurisdiction to enforce laws throughout Quebec, [99] including on Indian reserves. [100] [ 106 ]

Section 90 of the Police Act , however, makes it possible for the Government of Quebec to enter into agreements with Indigenous communities to establish an Indigenous police force. [101] [ 107 ] Thus, failing the presence of an Indigenous police service on a reserve, First Nations are served by the Sûreté du Québec, and such services are provided at no cost, unlike other municipalities in the province.

This was the testimony given at the hearing by Richard Coleman, director of the Bureau des relations avec les autochtones in the Ministère de la Sécurité publique, whose testimony the respondents relied on to rebut the appellant’s allegations that they did not act honourably towards it. [ 108 ] The respondents’ argument is bewildering.

Their reliance on the gratuitous nature of the services offered by the Sûreté du Québec to demonstrate their good faith shows total insensitivity to the findings of the various commissions of inquiry and studies which have examined the problem of police services on reserves and which have all concluded that such services are unsuitable when applied to First Nations because they are not responsive to their culture and their specific needs. [ 109 ] As discussed, the Viens Commission found that the mistrust and dissatisfaction of First Nations towards the Sûreté du Québec did not occur on a whim.

This is a long-documented finding that applies to all police services offered in Canada and led to the adoption of the First Nations Policing Policy , whose very purpose is to provide First Nations with professional police services that are comparable to those offered to non-Indigenous communities while being responsive to their particular needs. [ 110 ] Moreover, the fact that the services offered to First Nations by the Sûreté du Québec are free of charge cannot under any circumstances be an answer to the appellant’s grievances. [ 111 ] The same can be said of the respondents’ contention that the Sûreté du Québec’s services are of the highest level.

But the problem does not lie there. Without going into too much detail, it is worthwhile noting that police services are divided into six levels, level 1 being the lowest and level 6 the highest, that is, the level in which police services are the most extensive. This results from s. 70 of the Police Act , which reads as follows: [102]

70. The territory of a local municipality must be under the jurisdiction of a police force.

A municipal police force must provide, in the territory under its jurisdiction, (1) level 1 services, if the population to be served is less than 100,000 inhabitants; (2) level 2 services, if the population to be served is 100,000 or more and not more than 249,999 inhabitants; (3) level 3 services, if the population to be served is 250,000 or more and not more than 499,999 inhabitants; (4) level 4 services, if the population to be served is 500,000 or more and not more than 999,999 inhabitants; or (5) level 5 services, if the population to be served is 1,000,000 inhabitants or more.

The Sûreté du Québec shall provide level 6 services . […] 70. Le territoire de toute municipalité locale doit relever de la compétence d’un corps de police.

Un corps de police municipal doit fournir, sur le territoire relevant de sa compétence, les services de l’un des niveaux suivants: 1° des services de niveau 1, si la population à desservir est de moins de 100 000 habitants; 2° des services de niveau 2, si la population à desservir est de 100 000 à 249 999 habitants; 3° des services de niveau 3, si la population à desservir est de 250 000 à 499 999 habitants; 4° des services de niveau 4, si la population à desservir est de 500 000 à 999 999 habitants; 5° des services de niveau 5, si la population à desservir est de 1 000 000 d’habitants ou plus.

La Sûreté du Québec fournit des services de niveau 6 . […] [ 112 ] In response to the appellant’s contention that it is not even in a position to offer the members of its community level 1 services because of insufficient funding, the respondents argue that the appellant is not required to do so because s. 70 applies only to municipalities and therefore does not apply to the Mashteuiatsh reserve. [103] [ 113 ] Such an argument is unworthy of the respondents in light of the federal Policy, which explicitly states that First Nations police services must be equal to those offered to non-Indigenous communities.

Moreover, a comparison of the mission of Indigenous police forces and that of other police forces in Quebec, as set out in ss. 93 and 48 of the Police Act , indicates that they are essentially the same: [104] 93. 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 and repressing crime and offences under the laws and regulations applicable in that territory and seeking out offenders. 93.

Un corps de police autochtone et chacun de ses membres sont chargés de maintenir la paix, l’ordre et la sécurité publique dans le territoire pour lequel il est établi, de prévenir et réprimer le crime ainsi que les infractions aux lois et aux règlements applicables sur ce territoire et d’en rechercher les auteurs. 48 .

The mission of police forces and of each police force member is to maintain peace, order and public security, to prevent and repress crime and, according to their respective jurisdiction as set out in sections 50, 69 and 89.1, offences under the law and municipal by-laws, and to apprehend offenders. In pursuing their mission, police forces and police force members shall ensure the safety of persons and property, safeguard rights and freedoms, respect and remain attentive to the needs of persons who are victims, and cooperate with the community in a manner consistent with cultural pluralism.

Police forces shall target an adequate representation, among their members, of the communities they serve. 48 . Les corps de police, ainsi que chacun de leurs membres, ont pour mission de maintenir la paix, l’ordre et la sécurité publique, de prévenir et de réprimer le crime et, selon leur compétence respective énoncée aux articles 50, 69 et 89.1, les infractions aux lois ou aux règlements pris par les autorités municipales, et d’en rechercher les auteurs.

Pour la réalisation de cette mission, ils assurent la sécurité des personnes et des biens, sauvegardent les droits et les libertés, respectent les personnes victimes et sont attentifs à leurs besoins, coopèrent avec la communauté dans le respect du pluralisme culturel. Dans leur composition, les corps de police favorisent une représentativité adéquate du milieu qu’ils desservent. [ 114 ] The appellant cannot be reproached for wanting to offer the members of its community the minimum services offered to Quebec’s other citizens.

The appellant’s police service, however, suffers from numerous deficiencies and shortcomings. During the Superior Court hearing, Simon Vanier, who has held a number of positions within the Sûreté publique de Mashteuiatsh, including that of director, provided the following description of the police services offered by the appellant:

[ translation ] FOR THE PLAINTIFF Q […] On what are you basing yourself to say that Mashteuiatsh has… has experienced or suffers from underfunding of police services?

A Well, as I mentioned earlier, you know, regarding salaries, there’s… there’s really a big difference in salaries ; uh, it’s not just salaries either, we’re also talking about the… the police technology , we, we don’t have computers in the cars , we don’t have a nine-one- one (911) central to dispatch calls directly , it’s outside of business hours, it’s our patrollers who answer citizens directly on their radios; uh, and also, well, we don’t have a fingerprinting device , you know, right at the station; at the time, we didn’t have a cinemometer, which is for radar; we didn’t have a breathalyzer,… Q When, excuse me, you say at the time, what time are we talking about?

A Well, two thousand and twelve (2012) to two thousand and fifteen (2015), you know… Q O.K. A …this… I’m going back a bit to… to two thousand and twelve – two thousand and fifteen (2012-2015), because actually, we had an adjustment, uh, in two thousand and eighteen – two thousand and nineteen (2018-2019) which allowed… us… which also allowed us, you know, to… to… to… THE COURT Q Upgrade. A …to start to move forward… a little bit.

However, from two thousand and twelve (2012) to two thousand and fifteen (2015), what made us think we were underfunded is that we were never trained , we could… let’s say, we were trained, we couldn’t maintain our knowledge because the École nationale, when you’re trained to use the cinemometer, well, every five (5) years, you have to requalify, if you don’t do it, well, you can no longer use the tool, and if you don’t have the tool, well, it’s useless to have the training, so that was… that was a little bit of the reality we were living with this… in… in… in the operating environment. […] [105] [Emphasis added] [ 115 ] This testimony, just as the findings of the Viens Commission in many other instances, [106] reveals inadequate training of the members of the appellant’s police force, as well as a flagrant lack of the technological equipment that would allow its members to perform their normal tasks.

The respondents were aware of this situation, which stems directly from their insufficient contributions under the FNPP , a finding which, once again, was put forth by the Viens Commission [107] and which is also evidenced in the following: • a study published in 2016 by Public Safety Canada, which states: [108] SA [self-administered] police services have a funding model that is inconsistent with how budgets are most appropriately set and applied. • the 2014 report of the Auditor General of Canada, in which he wrote: [109] 5.72 Overall, we concluded that Public Safety Canada’s First Nations Policing Program is not adequately designed to deliver and does not adequately ensure that policing services on First Nations reserves are delivered in a manner that is consistent with the principles of the First Nations Policing Policy that we examined. • a study by Laura Aubert and Mylène Jaccoud published in 2012 in the Canadian Journal of Criminology and Criminal Justice, in which the authors wrote: [110] [ translation ] At the end of this overview of the conditions under which Indigenous police forces operate and exercise their functions, it is clear that, for many of them, carrying out their mission successfully, given the resources at their disposal, is a challenge.

Indeed, while the FNPP’s objectives are ambitious, the means allocated for the achievement of these objectives are not equal to the task . Indigenous police forces have – on paper – the same powers and prerogatives as regular police organizations and seem to have to demonstrate equivalent effectiveness.

The fact remains, however, that the resources they receive are much lower than those allocated to regular police organizations, even though they deal with more serious problems . • the preliminary report published in 2010 and entitled “L’autodétermination des services de police des Premières Nations au Québec”, which concluded as follows: [111] [ translation ] In the current context, the safety of First Nations is compromised by a lack of resources in all respects: human, financial, material .

The First Nations police organization is a real bargain for the governments of Canada and Quebec when compared to the costs incurred by the Sûreté du Québec to serve the communities with which there is no agreement. Under the Police Act , Quebec’s Ministère de la Sécurité publique – which is responsible for public safety throughout Quebec – would never accept a police organization plan presented by an Indigenous police force with the personnel and budget currently provided by the governments of Canada and Quebec .

[…] Moreover, one of the elements of the federal government’s First Nations Policing Policy that relates to the assessment of funding requirements, namely “the police workload in the community, based on crime statistics and crime prevention”, is being completely ignored by the government authorities . [Reference omitted] [ 116 ] In my view, and contrary to the judge’s assertion at paragraph 64 of his judgment, [112] the evidence, including the evidence whose filing he refused, should have led him to conclude that the funding provided by the respondents to the appellant did not enable the latter to provide services to the members of its community, at the relevant time, in accordance with (1) the principles of the federal Policy, that is, police

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