SYLVAIN PICARD v. RBA FINANCIAL GROUP, 2018 FC 747

Date: 20180718 Docket: T-1362-16 Citation: 2018 FC 747 [ENGLISH TRANSLATION] Ottawa, Ontario, July 18, 2018 PRESENT: The Honourable Justice Martineau BETWEEN: SYLVAIN PICARD AND RBA FINANCIAL GROUP Applicants And ATTORNEY GENERAL OF CANADA Respondent And ATTORNEY GENERAL OF QUEBEC Intervener JUDGMENT AND REASONS I. Introduction [ 1 ] This case raises important issues of statutory

interpretation and constitutional applicability arising from co-operative federalism with respect to policing in Indigenous communities in Quebec. " “[A] certain degree of predictability with regard to the division of powers between Parliament and the provincial legislatures is essential” " ( Canadian Western Bank v. Alberta , 2007 SCC 22 at paragraph 23 [ Canadian Western Bank ]).

When the Royal Canadian Mounted Police [RCMP], the Sûreté du Québec or a municipal police force provides police services to First Nations, the federal or provincial nature of labour regulations applicable to police officers is not a problem. But what happens when a band council provides these services? [ 2 ] In this case, for many decades, all interested parties – including federal and provincial governments – agreed that federal regulations apply to employees hired by a band council to perform the duties of a special constable or a police officer on a reserve.

Except that, on July 21, 2016, the Office of the Superintendent of Financial Institutions of Canada [Office] revised its position by decreeing that (1) the employees in question are not employed in a federal undertaking, (2) their pension plan " “is therefore not registered” " under the Pension Benefits Standards Act, 1985 , RSC 1985, c. 32 (2nd Supp.) [PBSA], and (3) it will be transferred to the appropriate provincial authority [impugned decision], hence this application for judicial review. II.

This application for judicial review [ 3 ] The applicants are now seeking to have the impugned decision set aside, as well as a declaration that the members of the First Nations Public Security Pension Plan [Plan] are employed in a work, a business or an activity under federal jurisdiction, and that the PBSA applies to the Plan. The Attorney General of Canada (the respondent) maintains that the impugned decision is legal and that provincial regulations apply to the Plan. [ 4 ] A Notice of Constitutional Question was duly served on all attorneys general pursuant to

section 57 of the Federal Courts Act , RSC, 1985, c. F-7. The intervener, the Attorney General of Quebec, simply adopted the respondent’s position, without making any representations in this case. [ 5 ] The Constitution of Canada views the division of powers between the central authority and the provinces from a dualistic perspective, within the traditional framework of the " “federal-provincial” " dichotomy, which must respond to the reality of various forms of Indigenous governance. In short, there are two opposing arguments in the case at bar.

For purely logical purposes, I believe it is preferable to first present the respondent’s position (which was also adopted by the intervener). [ 6 ] The respondent does not dispute the fact that Parliament has the legislative authority to enact laws regarding Indigenous policing, but that is not the issue. It clearly can pursuant to its authority over Indians ( NIL/TU,O Child and Family Services Society v. BC Government and Service Employees’ Union , 2010 SCC 45 at paragraph 2 [ NIL/TU,O ]).

However, currently, Parliament has not exercised this jurisdiction, and the Indigenous police forces at issue here therefore derive their existence and powers from the Police Act , RSQ, c. P- 13.1, which constitutes a material element of qualification. In this case, the status of " “peace officer” " under the Police Act clearly shows that employees participating in the Plan perform a provincial activity according to the functional test, and the Federal Court of Appeal ruled the same way in 2015 in Nishnawbe-Aski Police Service Board v.

Public Service Alliance of Canada , 2015 FCA 211 [ Police Service Board ]. [ 7 ] The applicants see things very differently. The fact that certain aspects of Indigenous police forces – such as training and professional conduct – are regulated by the province does not preclude the application of federal labour and pension legislation when a band council

is the direct employer. It is not because an Indigenous police officer is authorized to act as "“peace officer”" under the Police Act that hisemployer is subject to provincial labour laws. On the contrary, the functional test is whether the police service operated by a bandcouncil on reserve land and lands reserved for Indians is a vital "“governance”" activity that is essential to the exercise of its powers as afederal institution.

The answer is affirmative when one considers the federal nature of the powers under the Indian Act, RSC 1985, c. 1-5,which are implemented in the provinces pursuant to the First Nations Policing Policy (Solicitor General of Canada, First NationsPolicing Policy, Ottawa, Minister of Supply and Services Canada, 1992 and 1996 [First Nations Policing Policy]). Finally, NIL/TU,Oand Police Service Board dealt with provincial entities independent of band councils. [8] For the reasons that follow, the application for judicial review is allowed. III.

Superintendent’s limited jurisdiction [9] It should be noted that the PBSA came into force on January 1, 1987, and replaces the Pension Benefits Standards Act, RSC 1985,c P-7, and pension plans registered under the original Act are deemed to have been registered under the PBSA (sections 42 and 46 of thePBSA), which is the case with the Plan (registered since 1981). However, the Superintendent must be given the authority to determine expost facto whether a pension plan that is already registered continues to be subject to federal regulations.

The doctrine of jurisdiction bynecessary implication provides that an administrative decision-maker implicitly has all the powers necessary to accomplish the mandateentrusted to him by the legislature, including the power to make a decision as to whether a matter falls within its jurisdiction (see ATCOGas & Pipelines Ltd v. Alberta (Energy & Utilities Board), 2006 SCC 4 at paragraph 51; Bell Canada v.

Canada (Canadian Radio-Television and Telecommunications Commission), (SCC), [1989] 1 SCR 1722 at p. 1056, 60 DLR (4th) 682; Canada v.Professional Institute of the Public Service of Canada, (FCA), at paragraph 4 (FCA) 113 DLR (3d)262; also see subsection 31(2) of the

Interpretation Act, RSC, 1985, c.I-21). [10] Now, under subsection 4(2) of the PBSA, a pension plan can only be registered by the Superintendent if the participants haveincluded employment, i.e. employment "“on or in connection with the operation of any work, undertaking or business that is within thelegislative authority of the Parliament of Canada”"[federal undertaking] (see the definition of "“included employment”" insubsection 4(4)) [Emphasis added]. Paragraphs (

a) through (

i) include a list of works, undertakings and businesses that fall within federaljurisdiction (see also sections 2 and 4, and subsections 123(1) and 167(1) of the Canada Labour Code, R.S.C., 1985, c. L-2). Of course,the statutory list is not exhaustive and includes "“a work, undertaking or business outside the exclusive legislative authority of thelegislatures of the provinces”" [Emphasis added]. [11] Parliament also provides an important clarification.

"“Employment”" means "“the performance by an employee of work forremuneration for an employer under an express or implied contract of service or apprenticeship”" (subsection 2(1) of the PBSA)[Emphasis added]. The "“employer, in relation to an employee, means the person or organization, whether incorporated orunincorporated, in respect of employment with which the employee receives his remuneration, and includes the successors or assigns ofthat person or organization”" (subsection 2(1) of the PSBS) [Emphasis added].

In employment law, the employer is the entity that hires,establishes working conditions and has the power to discipline and dismiss employees in his employ. [12] Consequently, the identification of the employer and the federal business that it operates, as well as the existence of an employmentrelationship between the employee and the employer in question, are essential prerequisites under subsection 4(4) of the PBSA that mustbe satisfied for federal regulations to apply to a pension plan.

In this case, although employees performing police duties are employed byfederal entities, i.e. band councils that are members of the Plan as employers, the Office was of the view that the employees fell withinprovincial jurisdiction. IV. First Nations Public Security Pension Plan [13] Formerly known as the "“""Régime de rentes pour les employés de la Police amérindienne”" [Amerindian Police EmployeePension Plan], the Plan is a multi-employer pension plan whose employer-members are exclusively band councils within the meaning ofthe Indian Act.

The Plan came into force on November 1, 1979, as specified in the February 25, 1981, application for registration [thePlan’s jurisdiction of registration] – the Plan being a pension plan registered by the Superintendent, as shown by certificate of registrynumber 55864 issued on September 18, 1981. [14] The purpose of the Plan is to provide retirement benefits for police officers, firefighters and special constables [collectively theemployees] working in Indigenous communities and who work exclusively for any of the employer-members.

It is a defined benefit planthat foresees the accumulation of a guaranteed pension calculated on the basis of years of participation of each employee member of thePlan.

The Plan is currently composed of the police departments of 14 band councils serving Indigenous communities that are members ofFirst Nations in the province of Quebec: Conseil de la Première Nation Abitibiwinni; Pessamit Band Council; Kebaowek First Nation;Micmacs of Gesgapegiag Band Council; Conseil de la Nation Anishinabe du Lac Simon; Kitigan Zibi Anishinabeg Nation; Conseil desAtikamekw de Manawan; Conseil des Atikamekw d’Opitciwan; Conseil des Abénakis d’Odanak; Conseil des Innus de Pakua Shipi;Pekuakamiulnuatsh Takuhikan; Innu Takuaikan Uashat Mak Mani Utenam; Timiskaming First Nation and Conseil des Atikamekw deWemotaci.

With respect to its coverage of employees employed by employer-members, the Plan currently covers some 220 activemembers. [15] Before going any further, it should also be noted that when the Superintendent registers a pension plan, it is

an act of publicauthority that helps build public confidence in the Canadian financial system and creates legitimate expectations. Once a pension planhas been registered, the Office is responsible for ensuring compliance with the minimum funding requirements and other requirements inthe PBSA and its regulations, Pension Benefits Standards Regulations, 1985, SOR/87​19 [regulations] (see paragraph 4(2.1)(

a) of the Office of the Superintendent of Financial Institutions Act, RSC, 1985, c. 18 (3rd Supp.)). For its part, the plan administrator administersthe pension plan and pension fund as a trustee for the employer, the members of the pension plan, former members, and any otherpersons entitled to pension benefits under the plan in accordance with the requirements of the PBSA and its regulations (subsection 8(3)

of the PBSA). [16] The Plan is administered in accordance with the Plan Regulations, the most recent version of which (effective July 1, 2011) hasbeen filed in the Court record. In fact, the Plan pension committee has a written investment policy in accordance with the PBSA, itsregulations, the Income Tax Act, RSC 1985, c. 1 (5th Supp.), and the Canada Revenue Agency’s administrative rules [collectively,federal regulations]. Currently, the co-applicant, RBA Financial Group, is responsible for administering the Plan in accordance with thePlan Regulations and federal regulations. V.

Canadian constitutional environment [17] We cannot really understand the sequence of events and appreciate the arguments raised by the parties in this case without firstreviewing the Canadian constitutional environment. In this highly nuanced exercise, we must start with the constitutional and statutorytexts. We will then examine the use of the functional test in determining ancillary jurisdiction over labour relations. Finally, we will seethat the statutory regulations governing policing powers delegated to persons acting as "“peace officers”" are the result of an exercise ofshared constitutional jurisdiction.

A. Constitutional and statutory texts [18] There is a distinction to be made between constitutional jurisdiction over Indians and criminal law, which is a federal responsibility,and the administration of justice, which is a provincial responsibility. This has led to the statutory creation of provincial and federalpolice forces. Finally, we must consider the impact of subsection 35(1) of the Constitution Act, 1982, being

Schedule B of the CanadaAct 1982, (UK), 1982, c 11. i. Indians and criminal law [19] Parliament has exclusive jurisdiction to regulate Indians and lands reserved for Indians, as well as criminal law, including criminalprocedure (see subsections 91(24) and (27) of the Constitution Act, 1867, 30 & 31 Victoria, c. 3 (U.K.), reprinted in RSC 1985,Appendix II, No. 5 [Constitution Act, 1867]. Legislative expression of these concurrent powers can be found in the Indian Act and theCriminal Code, RSC, 1985, c.

C-46. [20] Pursuant to its jurisdiction over Indians, Parliament provides for the constitution and legislative recognition of band councils anddelegates certain governmental powers to band councils, including the power to legislate on the observance of law and order on reservesand lands reserved for Indians (paragraph 81(1)(

c) of the Indian Act). We will discuss this essential aspect of band council governance inmore detail later. [21] Moreover, so long as they remain such, reserve lands are administered by the Federal Government (Derrickson v. Derrickson, (SCC), [1986] 1 SCR 285, 26 DLR (4th) 175 at paragraph 26).

Also, nothing prevents Parliament from (1) setting aside other"“reserved lands”" – which do not constitute a "“reserve”" within the meaning of the Indian Act – for the benefit and use of the membersof a First Nation and (2) delegating to an Indian band the power to legislate in all matters that fall within its jurisdiction, including theobservance of law and order and the prevention of disorderly conduct and nuisances (see for example the Kanesatake Interim Land BaseGovernance Act, SC 2001, c. 8). [22] No one is questioning the fact that a band council already exercises delegated governance powers under sections 81 and 83 of theIndian Act, which are similar to those of a local government or municipality (see for example Corbiere v.

Canada (Minister of Indianand Northern Affairs), (SCC), [1999] 2 SCR 203 at paragraph 77, 173 DLR (4th) 1, L’Heureux-Dubé J., concurringopinion). Take for instance the regulation of traffic, the observance of law and order, the prevention of disorderly conduct and nuisances,the regulation of the conduct and activities of hawkers, peddlers or others who enter the reserve to buy, sell or otherwise deal in wares ormerchandise, the removal and punishment of persons trespassing on the reserve or frequenting the reserve for prohibited purposes, or theimposition on

summary conviction of a fine or imprisonment, or both, for violation of a by-law. In this case, the band council could noteffectively perform its governance activities if it did not have the power to hire special constables and police officers to maintain law andorder on the reserve (paragraph 81(1)(

c) of the Indian Act). ii.

Administration of justice [23] Provincial legislatures have exclusive jurisdiction to regulate municipal institutions, property and civil rights, the administration ofjustice, (provincial) criminal law and generally all matters of a merely local or private nature (see subsections 92(8), (13), (14), (15) and(16) of the Constitution Act, 1867). [24] Logically, the creation and oversight of provincial and municipal police forces – whose members have the status of "“peaceofficers”" for the purposes of the Criminal Code and the enforcement of provincial laws and regulations – partially fall under theadministration of justice (see Dickson J.’s comments in Di Iorio v.

Warden of the Montreal Jail (1976), (SCC), [1978]1 SCR 152 at p. 200, 73 DLR (3d) 491 [Di Iorio cited to SCR]). iii. Provincial and federal police forces [25] In Quebec, there is a framework act that deals with the organization of professional training for police personnel, the organizationof police forces, the regulation of professional qualifications for police officers, standards of conduct and external supervision of policeactivity in Quebec. Of course, we are referring to the Police Act. We will revisit the Act later in these reasons (see

Section VI – H. TheQuebec perspective). Similar legislation has been enacted in Nova Scotia, Ontario, Manitoba, Saskatchewan and British Columbia (seeSection VI – F. First Nations police forces: today’s reality and

Section VI – G. The Ontario perspective).

[26] From the federal standpoint, Parliament also has the power to create police forces and to appoint peace officers or special constablesto administer and enforce any federal statute (Michel Deschênes, "“Les pouvoirs d’urgence et le partage des compétences au Canada”",Les Cahiers de droit (1992) 33:4 C from D 1181 to pp. 1200-1201 [Deschênes]). As Mr. Deschênes explained at p. 1201: […] [translation] following a constitutional amendment in 1871, Parliament was granted certain additional powers, includingthe power to legislate for the administration of non-provincial territories.

Pursuant to these powers, Parliament instituted theNorth-West Mounted Police in 1873, known in French as the “Police à cheval du Nord-Ouest” [...] (Since then) the RoyalCanadian Mounted Police has been given authority to enforce all federal laws across the country, except the Criminal Codein the provinces, because enforcement of the Code falls within provincial jurisdiction. (See also the Constitution Act, 1871, reprinted in RSC 1985, Appendix II, No. 11,

section 4; Peter Hogg, Constitutional Law of Canada, 5th ed supplemented, Toronto, Thomson Reuters, 2007 (loose-leaf series updated in 2017), at pp. 19-13–19-14;Di Iorio at p. 197). [27] Now, under subsection 11.1(1) of the Royal Canadian Mounted Police Act, RSC 1985, c. R-10, every Royal Canadian MountedPolice officer is a peace officers in every part of Canada and has all the powers, authority, protection and privileges that a peace officerhas by law until the officer ceases to be an officer. [28] Everything appears to be in order. The case is straightforward.

Here is where things start to get a little complicated. iv. Subsection 35(1) of the Constitution Act, 1982 [29] In 1867, the Fathers of Confederation had not imagined that First Nations could one day soon have governments in the newfederation. Failing that, pursuant to its jurisdiction over Indians and lands reserved for Indians, Parliament provided for the creation ofband councils whose powers are statutorily governed by the Indian Acts. Today, under subsection 35(1) of the Constitution Act, 1982,the existing aboriginal and treaty rights of the aboriginal peoples of Canada are recognized and affirmed. A liberal

interpretation of thisprovision has led to official recognition by governments of Indigenous peoples’ right to self-governance. [30] However, self-governance of First Nations will remain wishful thinking by political actors due to lack of funding.

This economiccontingency opens the door to various forms of "“co-operative federalism”" – for lack of a better term – with the provinces or territories.This is particularly true in the policing sector, if we are to substantially strengthen First Nations’ ability to ensure social order, publicsecurity, and personal safety in First Nations and Inuit communities, including the safety of women, children and other vulnerablegroups. [31] The British North America Act of 1867, 30 & 31 Victoria, c. 3 (U.K.) (which in 1982 became the Constitution Act, 1867),establishing the Confederation, has long remained an unfinished work of the British Parliament.

Initially, it considered the desire of theprovinces of Canada, Nova Scotia and New Brunswick "“to be federally united into One Dominion under the Crown of the UnitedKingdom of Great Britain and Ireland, with a Constitution similar in Principle to that of the United Kingdom”".

However, over time,Canadian political actors have had to adapt to historical conjectures that led to the division of powers in 1867 and the evolution of theCanadian federation which, between 1870 and 1949, expanded with the addition of the western provinces and Newfoundland. [32] We should therefore refer to Canada’s Constitution as a "“living tree”", to use Lord Sankey’s famous metaphor (Edwards v.Canada (Attorney General), [1930] 1 DLR 98 at pp. 106-107, (UK JCPC)). Regarding this point, "“[t]he federalismprinciple requires a court interpreting constitutional texts to consider how different

interpretations impact the balance between federaland provincial interests”" (R. V. Comeau, 2018 SCC 15 at paragraph 78). The same concern has led, for example, to the development ofdoctrines like the necessarily incidental doctrine and the ancillary powers doctrine, which brings us to this case concerning theregistration of the Plan which, until the date of the impugned decision, was registered by the Superintendent. B.

Ancillary jurisdiction over labour relations: the functional test [33] Today, the issue is the constitutional jurisdiction over labour relations between police officers who are members of Indigenouspolice forces and the band councils that employ them. However, this depends on how the work, undertaking or activity of the employerin question is characterized. [34] In principle, under subsection 92(13), labour relations come under provincial jurisdiction (see Toronto Electric Commissioners v.Snider, [1925] 2 DLR 5, (UK JCPC); Letter Carrier’s Union of Canada v.

Canadian Union of Postal Workers et al., (SCC), [1975] 1 SCR 178, 40 DLR (3d) 105). However, Parliament may regulate labour relations – including pensionplans – where a worker is employed in a federal undertaking [direct jurisdiction], or the worker’s employment involves an activity that isan integral part of a federal undertaking [derivative jurisdiction](see Validity and Applicability of the Industrial Relations and DisputesInvestigation Act, [1955] SCR 529, [Stevedores Reference cited to SCR]; Construction Montcalm Inc. v. Min.

Wage Com.(1978), (SCC), [1979] 1 SCR 754 at p. 768, 93 DLR (3d) 641 [Construction Montcalm cited to SCR]; Northern Telecomv. Communications Workers (1979), (SCC), [1980] 1 SCR 115, 98 DLR (3d) 1 [Northern Telecom cited to SCR]; UnitedTransportation Union v. Central Western Railway Corp., (SCC), [1990] 3 SCR 1112 at pp. 1124-1125, 76 DLR (4th) 1;Tessier Ltée v.

Quebec (Commission de la santé et de la sécurité du travail), 2012 SCC 23 at paragraphs 11-18 [Tessier]. [35] In order to determine whether labour relations fall within federal jurisdiction, we must first assess whether the work, business orundertaking’s essential operational nature brings it within the head of power mentioned in

section 91 of the Constitution Act, 1867,whereas in the case of "“derivative jurisdiction”", we assess whether the nature of the work renders the work integral to a federalundertaking (as for example in Stevedores Reference). In either case, we determine which level of government has labour relationsauthority by assessing the work’s "“essential operational nature”" (Tessier at paragraph 18). [36] In short, the functional test involves analyzing the enterprise as a going concern, considering only its ongoing character, which calls

for a fairly complete set of factual findings (Northern Telecom at pp. 139-140; Commission du salaire minimum v. Bell TelephoneCompany of Canada, (SCC), [1966] SCR 767, 59 DLR (2nd) 145; see also Tessier, at paragraph 19). Only if the"“functional test”" is found to be inconclusive are further steps taken to consider whether provincial regulation of that entity’s labourrelations would impair the "“core”" of the federal head of power (NIL/TU,O at paragraph 3). [37] Both Stevedores Reference and Northern Telecom – which was followed by Northern Telecom v.

Communication Workers, (SCC), [1983] 1 SCR 733, 147 DLR (3d) 1 – are cases of derivative federal jurisdiction involving separate entities thatprovided integrated and essential services for the active operation of other separate entities whose federal character was not in dispute(shipping company and telecommunications company). In this case, there are no entities separate and independent from band councilsthat are members of the Plan. Indigenous police forces do not have a separate existence, and band councils are solely responsible forthem. [38] In Four B Manufacturing v.

United Garment Workers (1979), (SCC), [1980] 1 SCR 1031, 102 DLR (3d) 385[Four B], which was subsequently was considered by the Supreme Court in NIL/TU,O, the case involved a shoe manufacturing companyowned by four members of an Indian band, which mainly employed band members and operated on an Indian reserve. Obviously, underthe functional test, the provincial company’s business activities had nothing to do with the band’s affairs or the services provided to thepopulation by the band council.

Moreover, the production of leather shoe uppers as a subcontractor for a non-Indian business enterprisewas unrelated to Indianness. [39] First, subsection 91(24) of the Constitution Act, 1867 grants the Government of Canada a power of governance over Indians andlands reserved for Indians. The idea that an Indian band can "“legislate”" through its council is the very purpose of the provisions of theIndian Act and the recognition and delegation system put in place by Parliament from the earliest days of the Confederation.

Cutting tothe chase: the regulation of band councils – which owes its existence to subsection 2(1) and

section 74 of the Indian Act – is under theexclusive jurisdiction of the federal government. The same applies to the regulation of labour relations when, in performing a governanceactivity, the band council employs staff. C.

Statutory regulation of powers of peace officers: a delegation exercise sharedbetween the federal and provincial governments [40] While it is true that the enumerations of sections 91 and 92 of the Constitution Act, 1867 contain a number of powers that areprecise and not really open to discussion, it is clear that some matters are impossible to categorize under a single head of power: theymay have both provincial and federal aspects (see Canadian Western Bank at paragraphs 29 and 43 and the case law cited). [41] We should bear in mind that

section 2 of the Criminal Code has a very broad definition of "“peace officer”". It includes not onlypersons who may act under federal law, but also "“a mayor, warden, reeve, sheriff, deputy sheriff, sheriff’s officer and justice of thepeace”", as well as "“a police officer, police constable, bailiff, constable, or other person employed for the preservation and maintenanceof the public peace or for the service or execution of civil process”".

The Criminal Code also stipulates the conditions of detention andrelease from custody of a person who has been arrested with a warrant by a peace officer (see, for example, sections 498 and 503 of theCriminal Code). [42] Like other regional and municipal police officers, members of an Indigenous police force – including those exclusively employedby a band council – are appointed to serve their own community in the absence of specific agreements to the contrary. But they are notconfined in the discharge of their duties to the territorial limits of that community.

Their "“territorial jurisdiction”" is determined insteadby relevant statutes and regulations, by agreements to which they are subject and by the terms of their appointment or engagement. Forexample, in Quebec, it is useful to refer to sections 49 and 93 of the Police Act. [43] In such a case, as "“peace officers”" within the meaning of

section 2 of the Criminal Code, Indigenous police officers are, whereappropriate, empowered under subsection 254 (3) of the Criminal Code to demand that a breath sample be provided and to arrest theaccused for failing to comply with that demand (see also R. v. Decorte, 2005 SCC 9 at paragraphs 20-22 [Decorte]). That said, the factthat a person has the status of "“peace officer”" under the Criminal Code or the Police Act does not change the nature of the relationshipwith his employer and does not affect the federal or provincial character of his employer’s police activities.

Further below, we will seethat this was a fatal error made by the Office in the impugned decision. [44] It is also clear that federal and provincial laws that merely duplicate one another but do not conflict can exist side by side (R v.Francis, (SCC), [1988] 1 SCR 1025 at paragraph 9, 51 DLR (4th) 418 [R v. Francis cited to SCR]; Multiple Access Ltdv. McCutcheon, (SCC), [1982] 2 SCR 161, 138 DLR (3d) 1 [Multiple Access]). Take for instance the enforcement oftraffic regulations on the Indian reserves. [45] Under paragraph 73(1)(

c) of the Indian Act, the Governor in Council may make regulations for the control of the speed, operationand parking of vehicles on roads within reserves. The band council is entitled to do the same under the powers vested in it byparagraph 81(1)(

b) of the Indian Act. On the other hand, the province also has jurisdiction to regulate traffic on the roads of the province,which Quebec did by adopting the Highway Safety Code, CQLR,

chapter C-24.2. [46] In R v. Francis, the Supreme Court wondered "“why the federal government would engage in the idle exercise of simply enjoiningpeople to comply with provincial laws”" since federal traffic regulations referred to "“all laws and regulations relating to motorvehicles”", which constituted the incorporation by reference of a provincial law as a federal law (R v. Francis at paragraph 7).

Given"“the then prevalent wider view of federal paramountcy”" (before Multiple Access), the Supreme Court provided the following pragmaticanswer: "“[i]t is also possible that the federal government wanted to have the option of having traffic rules on Indian reserves enforcedby either federal or provincial officials”" (R v.

Francis at paragraph 7) [Emphasis added]. [47] On the other hand, according to the "“double aspect”" doctrine, nothing prevents a Sûreté du Québec police officer from arrestingan individual on an Indian reserve who is reasonably believed to have committed a criminal act within the meaning of the Criminal

Code. The latter power is conferred by a law of general application, the Police Act, throughout the province (section 50 of the PoliceAct).

However, while the Sûreté du Québec does not have jurisdiction to enforce a band council by-law on a reserve, it does havejurisdiction to enforce applicable municipal by-laws in the territories of the municipalities in which it provides police services (section 50of the Police Act). [48] Furthermore, the Royal Canadian Mounted Police does not enforce provincial laws or municipal laws, nor does it enforce theCriminal Code, within a province, unless authorized by the province or a municipality to act as a provincial or municipal police force.That is because those aspects of police work are within the exclusive legislative authority of the provinces (Public Service Alliance ofCanada v.

Canada, 2005 FCA 5 at paragraph 11 [Public Service Alliance]). From an operational standpoint, two separate legislative orregulatory empowerments are therefore required: a federal one and a provincial one (Public Service Alliance at paragraphs 11, 12 and 25;Société des Acadiens et Acadiennes du Nouveau-Brunswick Inc. v.

Canada, 2008 SCC 15 at paragraph 13 [Société des Acadiens]). [49] Conversely, when a provincial government enters into a service agreement with the Government of Canada to have the RoyalCanadian Mounted Police ensure peace, order and security in a territory, the Royal Canadian Mounted Police retains its status as a"“federal institution”" (Société des Acadiens at paragraph 14; Doucet v. Canada, 2004 FC 1444 at paragraph 35).

In short, all matters ofdiscipline, organization and management of Royal Canadian Mounted Police, even in relation to its activities as a provincial police force,are within the sole legislative authority of Parliament (Public Service Alliance at paragraph 26; O’Hara v. British Columbia, (SCC), [1987] 2 SCR 591 at paragraphs 16 and 17, 45 DLR (4th) 527; Attorney General of Alberta et al. v. Putnam et al., (SCC), [1981] 2 SCR 267 at pp. 277-278, 123 DLR (3d) 257). [50] This has been clearly demonstrated. Constitutional jurisdiction over police forces is not an exercise in pure rhetoric.

It cannot bebased on some constitutional fallacy. It calls for pragmatism. And that is where the necessary cooperation between the federal andprovincial authorities comes into play. It will help put in place these statutory glia that ensure the cohesion and support of all the neuronsof the Canadian system of justice and enforcement of federal and provincial administrative, criminal and penal laws. VI.

First Nations police services: a historical and contemporaryoverview [51] We come to the heart of the issue that concerns us today, constitutional and statutory jurisdiction over First Nations police servicesand, in particular, those provided on reserves by band councils and other legal entities. Our analytical framework must consider historicaland contemporary contexts. From simple subjects of federal jurisdiction, Indians have themselves become indispensable actors inIndigenous governance.

This has led to a gradual reassessment of the federal and provincial policy and regulatory framework governingfederal, provincial and Indigenous police forces. A. General analytical framework: importance of the statutory facts [52] Decisions regarding constitutional matters must not be made in a factual vacuum (Northern Telecom at pp. 139-140; Mackay v.Manitoba, (SCC), [1989] 2 SCR 357 at pp. 361​62, 61 DLR (4th) 385). That said, it is necessary to start by drawing adistinction between adjudicative facts and legislative facts (Danson v.

Ontario (Attorney General), (SCC), [1990]2 SCR 1086 at page 1099, 73 DLR (4th) 686 [Danson cited to SCR]). Adjudicative facts are those that concern the immediate parties.They are specific and must be proved by admissible evidence. Legislative facts are those that establish the purpose and background oflegislation, including its social, economic and cultural context.

Such facts are of a more general nature, and are subject to less stringentadmissibility requirements (Danson at p. 1099). [53] Therefore, the purpose of this case is not for the parties to try one another under the guise of reviewing the "“legislative facts”".Rather, we must try to understand where the "“racial”" or "“ethnic”" concept of "“Indigenous police force”" originated. It has beenexplicitly sanctioned in Quebec since 1995 under the Police Act.

Moreover, it can be said that [translation]”[t]he term governance – avery polysemous concept [...] – applied to Indigenous communities is related to the term self-governance and thus to the process ofdecolonization and establishment of new relationships between Indigenous communities and the State [...] (Laura Aubert and MylèneJaccoud, "“Politique sur la police des Premières Nations : une avancée en matière de gouvernance""”" (2012) 54 Can J Corr 265 atp. 267 [Aubert]). [54] This general analytical framework has led the Court to assess the representations of the parties in the light of the various relevantlaws and policies.

The Court’s assessment will include the social, economic or cultural reasons for which Indigenous police forces existtoday and will of course consider the content of the tripartite agreements that were filed in the record and will be more fully discussedwhen applying the functional test. B. A word on the pre-confederation period [55] Prior to contact with Europeans, there were already policing mechanisms in Indigenous communities.

Also, the task of maintainingorder, which would now be considered police work, was more or less formal and varied between Indigenous nations (see Nicholas A.Jones et al., First Nations Policing: A Review of the Literature, Regina (SK), Collaborative Centre for Justice and Safety, 2014 at p. 21[Jones]).

Although Indigenous communities did not have law enforcement systems – in the European sense of the word – the factremains that social order was regulated by customary standards and disputes were resolved in an alternative manner (see René Dussaultand Georges Erasmus, Bridging the cultural divide: a report on Aboriginal people and criminal justice in Canada, Ottawa, Minister ofSupply and Services Canada, 1996 at pp. 13-19 [Dussault-Erasmus report]; Jones at pp. 22-24).

Justice took an undeniably collectiveform: for example, officers were appointed by the community to make decisions and impose sanctions (Dussault-Erasmus report atp. 14).

C. Indigenous people: subjects of confederative colonialism [56] As the Royal Commission on Aboriginal Peoples’ 1996 report on the recognition and establishment of Aboriginal justice systemsnoted "“[i]t has been through the law and the administration of justice that Aboriginal people have experienced the most repressiveaspects of colonialism”" (Dussault-Erasmus report at p. 57).

In the 1970s, the Indian Act still contained a statutory system of offences(see sections 94 to 100 of the Indian Act since repealed), which can only be explained by the exclusive jurisdiction of Parliament overIndians (read Pigeon J.’s dissent in The Queen v. Drybones (1969), (SCC), [1970] SCR 282 at pp. 303​304, 9 DLR(3d) 473; see also Attorney General of Canada v. Lavell (1973), (SCC), [1974] SCR 1349, at pp. 1358-59, 1361-62 and1367-70, 38 DLR (3d) 481; Attorney General of Canada et al. v.

Canard (1975), (SCC), [1976] 1 SCR 170 at pp. 187-88, 191-93 and 206-07, 52 DLR (3d) 548 [Canard cited to SCR]). [57] A century earlier, according to the colonialist and paternalistic view of Confederation-era relations, the Superintendent General ofIndian Affairs – assisted by his agents – assumed the management of the reserves and the lands reserved for them (see Indian Act, RSC1886, c. 43). His jurisdiction included respect for peace, order, and public safety. However, chiefs and band councils had very few formallegal powers in this regard. In terms of enforcing the Act,

section 104 of the Indian Act stipulated that "“[a]ny constable may, withoutprocess of law, arrest any Indian or non-treaty Indian whom he finds in a state of intoxication, and convey him to any common gaol,house of correction, lock-up or other place of confinement, there to be kept until he is sober.”"

Section 117 stipulated that "“[e]veryIndian agent shall be ex officio a justice of the peace […], and shall have the power and authority of two justices of the peace”", whichmeant the Indian agent had full discretion under

section 104 or

section 105 to try and impose imprisonment and payment of fines on anIndian or non-treaty Indian found guilty of intoxication or refusing to say where he had obtained the intoxicant. [58] It is worthwhile providing a history of the North West Mounted Police – now the Royal Canadian Mounted Police – if only to pointout that it was called upon to enforce order on reserve, although the bands themselves could have done the policing.

The force also had toenforce infamous measures such as compulsory school attendance for Indian children and the placement of Indian children in residentialschools, the prohibition of traditional spiritual practices, which became offences under the Indian Act (see former

section 114), and thepass system under which residents of reserves had to obtain written permission to leave the reserve (see Jones at pp. 30​34; see alsogenerally Marcel-Eugène Lebeuf, The Role of the Royal Canadian Mounted Police During the Indian Residential School System, Ottawa,Royal Canadian Mounted Police, 2011, online: http://publications.gc.ca/collections/collection_2011/grc-rcmp/PS64-71-2009-eng.pdf[Lebeuf]).

"“The RCMP exercised social control over many activities pertaining to Aboriginal peoples, especially in Northern andWestern Canada”", even beyond the residential schools program (Lebeuf at p. 3). [59] With the exception of the areas served by the Sûreté du Québec and the Ontario Provincial Police, the Royal Canadian MountedPolice continues to provide on-reserve and off-reserve policing services in most provinces under government agreements, whereas, withthe exception of Quebec and Ontario, there are still very few Indigenous police forces.

There appears to be only one Indigenous policeforce in British Columbia (the Stl’atl’imx (Stat-la-mic) Tribal Police Service); three in Alberta (the Blood Tribe Police Service, theLakeshore Regional Police Service, and the Tsuu T’ina Nation Police Service); only one in Saskatchewan (the File Hills First NationsPolice Service); and only one in Manitoba (the Manitoba First Nations Police) (see John Kiedrowski, Michael Petrunik and Rick Ruddell,Illustrative Case Studies of First Nations Policing Program Models, Ottawa, Public Safety Canada – Research Division, 2016 at p. 13[Kiedrowski]; First Nations Policing, Government of British Columbia, online: https://www2.gov.bc.ca/gov/content/justice/criminal-justice/policing-in-bc/the-structure-of-police-services-in-bc/first-nations [Government of British Columbia]; First Nations Policing,(2018), Alberta Solicitor General, online:https://www.solgps.alberta.ca/programs_and_services/public_security/law_enforcement_oversight/Pages/first_nations_policing.aspx[Alberta Solicitor General]; About us, (2018), File Hills First Nations Police Service online: http://www.filehillspolice.ca/about.html [FileHills]; Dakota Ojibway Police Service (2013), Manitoba First Nations Police online: http://www.dops.org/Overview.html [ManitobaFirst Nations Police]).

Other communities served by the RCMP. In 2016, the RCMP provided police service to more than 600Indigenous communities in Canada (“Serving Canada’s Indigenous People” (February 1, 2016), Royal Canadian Mounted Police (webpage), online: http://www.rcmp-grc.gc.ca/aboriginal-autochtone/index-eng.htm). D.

Growth of Indigenous policing: introduction of special constables andmodernization of the Indian Act [60] As the Royal Commission on Aboriginal Peoples pointed out, "“[o]ne approach to making the current justice system moreaccommodating of Aboriginal people is to have Aboriginal faces present throughout the court process in roles other than that of accusedpersons”" (Dussault-Erasmus at p. 103). It is obvious that, while limited, the federal statutory framework already has law enforcementmechanisms on reserves that fall under the exclusive jurisdiction of the federal government and band councils.

Nothing prevents thefederal government from appointing Indigenous justices of the peace and peace officers to exercise the powers described in theprovisions of the Indian Act. Regardless of whether the jurisdiction stipulated under the Indian Act is exercised by the government doesnot change the nature of the powers granted to Parliament pursuant to subsection 91(24) of the Constitution Act, 1867. [61] In the current version of

section 107 of the Indian Act, the Governor in Council may appoint persons to be, for the purposes of thisAct, justices of the peace and those persons have the powers and authority of two justices of the peace with regard to any offence underthe Act, and any offence under the Criminal Code relating to cruelty to animals, common assault, breaking and entering and vagrancy,where the offence is committed by an Indian or relates to the person or property of an Indian. Under

section 103 of the Indian Act,whenever a peace officer, a superintendent or a person authorized by the Minister believes on reasonable grounds that a by-law madeunder subsection 81(1) or 85.1(1) has been contravened or an offence against

section 90 or 93 has been committed, he may seize allgoods and chattels by means of or in relation to which he believes on reasonable grounds the by-law was contravened or the offence wascommitted. [62] While the Indian Act does not explicitly provide for the creation of Indigenous police forces, the fact remains that in 1971, thefederal government decided to allow band councils to hire "“special constables”". However, they were not to replace federal andprovincial police officers. Furthermore, these special constables had very little training, and they did not enjoy all the powers of true

" “peace officers” " .

They could not carry weapons, and their powers to arrest an offender were not all that different from those of ordinary citizens under the Criminal Code (see Rick Linden, " “Policing First Nations and Métis People: Progress and Prospects” " (2005) 68 Sask L Rev 303 at pp. 303-304 [Linden] citing Rick Linden, Donald Clairmont and Chris Murphy, Aboriginal Policing in Manitoba: a Report to the Aboriginal Justice Implementation Commission, Winnipeg, Aboriginal Justice Implementation Commission at p. 19, online: http://www.ajic.mb.ca/policing.pdf; Don Clairmont, Aboriginal policing in Canada: an overview of developments in First Nations , Halifax, Atlantic Institute of Criminology, Dalhousie University, September 2006 at p. 16, online: https://dalspace.library.dal.ca/bitstream/handle/10222/64600/Aboriginal_Policing_in_Canada_Overview_2006.pdf? sequence=1&isAllowed=y [Clairmont]).

E. First Nations Policing Policy [ 63 ] In June 1991, the federal government announced the adoption of a new First Nations Policing Policy on reserves and lands reserved for Indians that are not Indian reserves within the meaning of the Indian Act , as well as lands inhabited by Inuit communities: First Nations Policing Policy. Its purpose is to improve the administration of justice and the maintenance of social order, public safety and personal safety in the communities in question (see Aubert; Linden; Jones; Jim Harding, " “Policing and Aboriginal Justice” " , (1991) 33 Canadian J Crim 363; Nicholas A.

Jones et al., First Nations Policing: A Review of the Literature , Regina (SK), Collaborative Centre for Justice and Safety, 2014; Conseil mohawk de Kanesatake /Mohawk Council of Kanesatake v. Isaac , 2011 QCCA 977 at paragraph 23 [ Isaac ]). [ 64 ] The respondent does not dispute that the First Nations Policing Policy is a valid exercise of federal jurisdiction over Indians under subsection 91(24) of the Constitution Act, 1867 (see Isaac at paragraph 23 ; Pitawanakwat v. Wikwemikong Tribal Police Service , 2010 FC 917 at paragraph 25 [ Pitawanakwat ]; Decorte at paragraphs 12-13] .

The First Nations Policing Policy is the result of extensive consultations with a broad range of First Nations communities, a large number of First Nations police services and all provincial and territorial governments. In particular, the Policy is a means to support federal policy on the implementation of Indigenous peoples’ inherent right and the negotiation of self-government (see First Nations Policing Policy at pp. 1-2; see also Aubert, at p. 266).

The policy is applied consistently across Canada through tripartite agreements negotiated between the federal government, the provinces or territories and First Nations. These are therefore not bilateral agreements between Canada and a province. [ 65 ] In the case of a reserve, the band council – a federal body – may be a signatory to such an agreement, precisely because of the delegation of the power to maintain law and order and peace under the Indian Act . However, when ancestral lands and other treaty lands (or areas subject to land claims) are involved, the scope needs to be broadened.

We may be dealing with already independent Indigenous governments acting not as representatives of an Indian band recognized under of the Indian Act , but on behalf of an Indigenous people recognized as a First Nation (see, for example, Pamela D. Palmater, Beyond Blood: Rethinking Indigenous Identity , Saskatoon, Purich Publishing Limited, 2011 at pp. 30, 67, 129-130, etc.

The distinction between the right of Indigenous peoples to self-determination and their organization in bands is at the heart of this essay, Shin Imai, " “Indigenous Self-Determination and the State” " in Benjamin J Richardson, Shin Imai and Kent McNeil’s collection of essays, Indigenous Peoples and the Law , Oxford, Hart Publishings, 2009, 285 at pp. 294-296). F. First Nations police forces: today’s reality [ 66 ] In practice, today’s First Nations police services involve a variety of approaches and entities, both in terms of their operation and regulation.

These police services may be provided by Indigenous police forces under the direct authority of band councils (this case); small separate entities (e.g. File Hills First Nations Police Service); independent interregional police commissions managing a large provincial area (e.g. Nishnawbe-Aski Police Service Board; the Cree Nation Police Department); provincial bodies (e.g. Sûreté du Québec and the Ontario Provincial Police), municipalities (e.g. Aboriginal Peacekeeping Unit in Toronto and Diversity and Aboriginal Policing

Section in Vancouver); and in most provinces and territories, Royal Canadian Mounted Police officers. [ 67 ] Aside from Quebec and Ontario, whose specific schemes will be examined in detail below, only Nova Scotia and Manitoba have specific legislation governing Indigenous police. In Nova Scotia, the Police Act , RSNS 1989,

Chapter 348 was amended in 1992 to add

section 42D which provides that the " “Solicitor General” " may appoint Aboriginal police officers assigned to a particular territory (subsection 42D(1)). The Act stipulates that Aboriginal police officers have all the powers of peace officers (subsection 42D(2)). If the officer’s duties relate to a reserve, the appointment requires the approval of the band council (subsection 42D(3)). The termination of a police officer assigned to a reserve also requires band council approval (subsection 42D(4)). This scheme is described in

section 87 of the new Police Act , SNS 2004,

Chapter 31, in force since 2004. [ 68 ] In Manitoba, it was only in 2009 that the new Police Services Act , CCSM c. P94.5 was adopted, wherein subsection 45(1) authorizes the provincial government, the Government of Canada and one or more First Nations, or an entity representing a group of First Nations, to enter into an agreement to establish a police service to provide policing services to a First Nation community or a group of First Nations communities (subsection 45(1) – enacted in 2012). However, the jurisdiction of the police service is limited to the areas specified in the agreement (

section 46 ). The Act defines a First Nation as a band within the meaning of the Indian Act (subsection 1(1)). [ 69 ] In British Columbia, Alberta and Saskatchewan, police services are generally provided to the public under provisions giving the Minister or Lieutenant Governor broad discretionary powers to create a police service in a designated area (see, for example,

section 5 of the Police Act , RSA 2000 c P-17 or subsection 4.1 of the Police Act , RSBC 1996 c 367. [ 70 ] In 2016, there were 21 self-governing Indigenous police forces in Quebec, 11 in Ontario, one in Manitoba, one in Saskatchewan, three in Alberta and one in British Columbia (see Kiedrowski at p. 13). G. Ontario perspective [ 71 ] Because the issue in Police Service Board was jurisdiction over police officers employed by an interregional police commission

recognized under Ontario law, it appears necessary to discuss this scheme. [ 72 ] In 1989, the first Ontario First Nations Policing Agreement was entered into between the Government of Ontario, the Government of Canada and five First Nations ( Ontario First Nations Policing Agreement , March 2, 1989; see also Clairmont, at p. 7). This agreement provided that a band council could by resolution inform the Commissioner of the Ontario Provincial Police of its desire to enter into an Aboriginal policing agreement (

section 2 ). The Commissioner could then appoint First Nations officers with the consent of band councils or a new police authority created under the agreement (sections 3 and 4). The agreement also provided that First Nations officers so appointed would have the powers of special constables under the Ontario police act in force at the time (subsection 1(c)). [ 73 ] With the enactment of the new Police Services Act in 1990, the Ontario government enshrined in the Act the nascent First Nations officers scheme that was initiated with the 1989 agreement.

Indigenous officers now have full powers as police officers, not just special constables. Under subsection 54(1), the Commissioner of the Ontario Provincial Police may appoint First Nations Constables to perform specified duties. The appointment of a First Nations Constable confers on him or her the powers of a police officer for the purpose of carrying out his or her specified duties (subsection 54(3)). The Constable may or may not be assigned to a reserve (subsection 54(2)).

If the Constable’s specified duties relate to a reserve, the appointment requires the approval of the reserve’s police governing authority or band council (subsection 54(2)). Similarly, while the Act confers upon the Commissioner and the Commission the power to suspend or terminate the appointment of the Constable (subsections 54(5) and (6)), the reserve’s police governing authority or band council must be consulted if the Constable’s duties are related to a reserve (subsection 54(4)).

These provisions are still in effect today. [ 74 ] In 1992, the Ontario government signed a new First Nations Policing Agreement with the federal government and other First Nations (see Police Service Board at paragraph 14 ; also Clairmont at p. 8).

Among other things, it broadens the various options for the delivery of police services: First Nations can enter into an agreement with municipal or regional police services or the Ontario Provincial Police for police services, establish their own police services, or create a regional police service controlled by a First Nation police governing authority operating in a group of First Nation territories (see Police Service Board at paragraph 14 ; Clairmont at p. 8). H.

Quebec perspective [ 75 ] In Quebec, the Police Act enacted in 1968 first gave a judge the authority to appoint special constables for a designated period. Their role is to maintain peace, order and security in a designated area , to prevent crime and apprehend offenders (see sections 64 and those following of the 1968 Act). These special constables may only exercise the powers of peace officers subject to the restrictions outlined in their deed of appointment.

This scheme has remained essentially the same since then, with the exception that today special constables are appointed by and report to the Minister of Public Security, rather than the Attorney General and a judge (see sections 105 and 111 of the current Police Act ).

The first Indigenous special constables in Quebec were appointed under this Act. [ 76 ] In 1979, Quebec amended the Police Act to implement the James Bay and Northeastern Quebec Agreements to allow Cree Village municipalities and the Naskapi Village municipality to create and establish their own police forces for territories over which they have jurisdiction (see

section 52 of the Police Act as amended in 1979). However, these police forces had to be made up of special constables (see subsection 63(a)). Municipalities could, through by-laws subject to the approval of the Attorney General, set the qualifications for becoming a member of their police force (see subsection 63(b)).

Under subsection 63(b), municipalities were authorized to enter into police agreements, either with the Attorney General for the Sûreté du Québec to provide all or part of the police services, or with the Cree Regional Authority, the Kativik Regional Government or a band within the meaning of The Cree Villages and The Naskapi Village Act. With regard to the employment relationship,

section 62 (adopted in 1968) also states that municipal police officers are deemed to be employees of the Attorney General when they act as peace officers other than in the performance of their duties on behalf of the municipality that employs them – which seems to indicate that each municipality is the police officers’ " “employer” " . [ 77 ] We note parenthetically that in the new Police Act adopted in 2000, police officers in the Cree Villages and the Naskapi Village were given full status as " “police officers” " for the purposes of the Act (see

section 94), with powers of peace officers, rather than the restricted status of special constables. Also, in 2008, the Police Act was amended to ensure the establishment and maintenance of a regional police force to serve the Cree communities (subsection 102.1). If it decides to exercise this power, the Cree Regional Authority is considered a municipality for the purposes of the Act (subsection 102.1). The existing police forces of the Cree villages are then amalgamated with this regional police force (subsection 102.2).

The Cree Regional Authority then has the power to appoint and discipline members of its police force (subsection 102.3), but hiring requirements are determined by agreement with the provincial government (subsection 102.4). The subsection also provides for cooperation between the regional police force and the Sûreté du Québec (subsections 102.7, 102.9).

With these amendments, the legislator aims to give effect to the " “ " " Paix des Braves ” " , an agreement between the Government of Quebec and the Cree Nation reflecting a desire to work together on a " “nation to nation” " basis (see Québec, Assemblée nationale, Journal des débats, 38 e lég, 1 re session, vol 40 n o 55 (June 3, 2008) ( Benoît Pelletier )).

Beginning in 2013, the term Cree Nation Government was used following the adoption of the Act establishing the Eeyou Istchee James Bay Regional Government and introducing certain legislative amendments concerning the Cree Nation Government, whose objective was once again to [ translation ] " “harmonize relations between the government, Jamesians and the Cree regarding the governance of the municipality of James Bay” " (see Québec, Assemblée nationale, Journal des débats, 40 e lég, 1 re session, vol 43 n o 57 (May 28, 2013) ( Gaétan Lelièvre )). [ 78 ] I return now to the legislative recognition of Indigenous police forces that are created pursuant to agreements with band councils or First Nations representatives. [ 79 ] In 1985, the National Assembly of Quebec had already adopted a resolution on the recognition of Indigenous rights (Québec, National Assembly of Quebec, March 20, 1985 Resolution of the Quebec National Assembly on the Recognition of Indigenous Rights (March 20, 1985) (René Lévesque), online: https://www.sqrc.gouv.qc.ca/relations-canadiennes/positions-historiques/motions/1985-05- 30.pdf [1985 Resolution]; see also the

preamble to the Act Respecting the Exercise of the Fundamental Rights and Prerogatives of the Québec People and the Québec State , CQLR

chapter E-20.2, which reiterates this recognition). The National Assembly recognized that First Nations have the right, under Quebec laws, to govern themselves on lands allocated to them. Under agreements with the government, First Nations are entitled to have and control institutions that meet their cultural, language, health, social services and economic development needs. This led the Quebec government to negotiate and enter into several agreements with First Nations

involving various areas of activity, including public safety and more specifically police services (see generally the 1985 Resolution, but also the 15 principles that form the basis of government action regarding Indigenous people, adopted by the Quebec cabinet on February 9, 1983: Québec, Secrétariat aux affaires autochtones [Aboriginal Affairs Secretariat], " “Mission and orientations of the " " Secrétariat ” " online: http://www.autochtones.gouv.qc.ca/secretariat/mission_secretariat_en.htm). [ 80 ] In 1990, the Oka crisis involving a dispute between the Mohawks of the Kanesatake and Kahnawake Reserves and the provincial and federal governments highlighted the breakdown of the relationship between Indigenous people, non-Indigenous people and governments at a time of constitutional instability.

Beginning with local land claims in response to the municipality of Oka’s plan to expand a golf course and build condominiums on Mohawk ancestral lands, the conflict soon became violent. There were protests and blockades.

This led to a response by the Sûreté du Québec , which was called in by the mayor of Oka to intervene, and then the Canadian army became involved in the standoff (see John Borrows, Freedom and Indigenous Constitutionalism , Toronto, University of Toronto Press, 2016 at pp. 75-77 [Borrows]; Pierre Trudel, " “La crise d’Oka de 1990 : Retour sur les évènements du 11 juillet” " (2009) 39 :1-2 Recherches Amérindiennes au Québec 129).

Culminating in the death of Corporal Lemay of the Sûreté du Québec , the conflict led to the mobilization of Indigenous communities across the country, in support of the idea that they were once again being deprived of lands they considered their own (see generally Borrows). Despite the negotiations that followed, many aspects of the conflict have never really been resolved (see Borrows at p. 77). However, the Oka crisis opened up a Canada-wide debate about the relationship between governments and First Nations.

It was instrumental in establishing the Royal Commission on Aboriginal Peoples in August 1991 (see Royal Commission on Aboriginal Peoples, People to people, nation to nation: highlights from the report of the Royal Commission on Aboriginal Peoples , Ottawa, Minister of Supply and Services Canada, 1996; see also Borrows, at p. 77). At the same time, the federal government announced the adoption of the First Nations Policing Policy , which provides for the establishment of Indigenous police forces pursuant to the signing of tripartite agreements. [ 81 ] In 1995, Quebec amended the Police Act , to add a new

section stipulating that the Government of Quebec may enter into an agreement with an Indigenous community to establish or maintain a police force in a territory specified in the agreement.

It was the wish of the Quebec government that [ translation ] " “the amendments to the Police Act will facilitate the enforcement of negotiated agreements by providing Indigenous police officers with all the tools they need to enforce applicable laws and regulations in their territory” " ( Québec, Assemblée nationale, Journal des débats (Hansard),35 e lég, 1 re session, n o 19 (January 27, 1995) at pp. 1252-1257 ( Serge Ménard ) [Hansard, January 27, 1995]). [ 82 ] As Serge Ménard , the Minister of Justice at the time, noted [ translation ], " “Every agreement made under this Act will be a step in the right direction to put an end to the confusion surrounding the status of police officers acting as special constables.

This term often has a pejorative connotation in the minds of both Indigenous and non-Indigenous people dealing with these constables. Indigenous police officers will have the status of peace officers equivalent to any other police officer working in Quebec.” " [Hansard, January 27, 1995]. [ 83 ] The relevant provisions of the Act read as follows: 90 . The Government may enter into an agreement with one or more Native communities, each represented by its band 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 . 91 . The agreement must include provisions relating to the employment status and swearing-in of police officers, the independence of the administration of the police force, civil liability, internal discipline and accountability.

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 this Act. The provisions relating to the standards governing the hiring of police officers may vary from the standards prescribed by this Act or the regulations under it 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 . 92 . 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. 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. [Emphasis added] [ 84 ] It should be noted that one of the objectives of the First Nations Policing Policy is to ensure that, at the national level, members of an Indigenous police force have received adequate training and meet the requirements in the province or territory covered by a tripartite agreement.

Since Parliament does not have jurisdiction over education, the Police Act addresses the problem of training and qualifying members of an Indigenous police force.

A candidate wishing to be hired as an Indigenous police officer in Quebec must (1) be a Canadian citizen, (2) be of good moral character, (3) not have been found guilty of a criminal offence and (4) hold a diploma awarded by the École nationale de police du Québec or meet equivalency standards (section 115 of the Police Act ). [ 85 ] Provisions of the agreement relating to the standards governing the hiring of police officers who are members of an Indigenous

police force may vary from the standards prescribed in the Police Act (or Government of Quebec regulations under the Act) and, in caseof incompatibility, take precedence over the latter (section 91 of the Police Act). We should also bear in mind that although

section 90 ofthe Police Act authorizes the Government of Quebec and a band council representing the Indigenous community to enter into anagreement, this case clearly deals with trilateral agreements also involving the Government of Canada. Negotiated agreements are notlimited to the topics mentioned in

section 91 of the Police Act. That said, according to the tripartite agreements in the Court record, thefunding formula for annual contributions from Canada and Quebec is 52% for Canada and 48% for the province, which is consistentwith the general formula set out in the First Nations Policing Policy. VII. Origins of this dispute [86] To better understand this dispute, which is essentially the result of an administrative disagreement over the legal scope of the 2015Federal Court of Appeal decision in Police Service Board, we now turn to the Office’s past conduct.

There are three pivotal periods, orbetter yet, three acts of a play whose ending is not yet written. Act One: The Plan is federal [87] In 1981, the Superintendent did not find any grounds to decline jurisdiction and refuse to register the Plan. This outcome is in linewith consistent case law throughout the country that employees – including special constables and police officers – employed by a bandcouncil are governed by federal labour regulations (see Public Service Alliance of Canada v. Francis et al., (SCC),[1982] 2 SCR 72, 139 DLR (3d) 9 [Francis SCC], overturning Francis v.

Canada (Labour Relations Board) (1980), (FCA), [1981] 1 FC 225, 1980 CarswellNat 96F (FCA) [Francis FCA cited to Carswell], but only on the issue of the employer – thereasoning on jurisdiction still stands; Whitebear Band Council v. Carpenters Provincial Council of Saskatchewan, (SK CA), 132 DLR (3d) 128, [1982] 3 WWR 554 (CA Sask) [Whitebear]; R. v. Paul Band, 1983 ABCA 308 [Paul Band]; Mohawks ofthe (Bay of Quinte) Tyendinaga Mohawk Territory, [2001] 1 CNLR 176, 2000 CCRI 64 ; Pitawanakwat). Moreover, this hasbeen the law between the parties for about 40 years.

Act Two: The Plan is still federal [88] In 2011, the Office informed the First Nations sponsors of a pension plan registered under the PBSA that it would conduct anadministrative review of the applicability of federal regulations as a result of the two Supreme Court of Canada decisions renderedconcurrently in NIL/TU,O and Communications, Energy and Paperworkers Union of Canada v.

Native Child and Family Services ofToronto, 2010 SCC 46 [Native Child]. [89] A few months earlier, after having applied the functional test to the facts under review, the highest court had ruled that the twoentities involved, as well as their employees, were governed by provincial labour laws rather than by the Canada Labour Code.

Althoughthe mission of a provincially regulated child welfare agency is to provide Indigenous clients and communities with effective andculturally appropriate services, this does not change the fact that the essential function of this separate entity is, by nature, a provincialactivity. [90] To ensure administrative consistency, following the NIL/TU,O and Native Child decisions, the Office did in fact review 665 FirstNations pension plans, based on the definition of "“included employment”" in the PBSA.

About 25% of these plans will be transferred tovarious provincial jurisdictions; most of the plans involved employment in education, health and child-family services. As of October2017, the OSFI still oversaw approximately 520 First Nations pension plans. [91] However, pension plans established by band councils that directly provide services to Indigenous communities will not betransferred. The explanation is simple: the two entities formed to provide services in NIL/TU,O and Native Child were separateemployers.

This fundamental structural difference was well noted by the Office, whose July 11, 2011 media release was reassuring: […] [translation] [the Supreme Court] has held that the jurisdiction of an entity established to provide services to FirstNations depends on the nature of its activities […] As such, an employer whose activities are limited to areas such as health care and education will be subject to provinciallabour relations and pension plan administration laws.

However, an employer who is involved in exclusively federalactivities, such as the administration of a First Nations band councils, will be subject to [federal] [sic] labour relationslegislation and pension plan administration laws. [Emphasis added.] [92] Two years later, on February 25, 2013, the Office notified the applicant that the Plan’s registration would not be changed, unlessthe applicant provided, before April 30, 2013, additional information that could be required to amend assessment. On March 19, 2013,the applicant confirmed the Office’s assessment.

Let the people be the judge, but this administrative assessment can rely not only on theprevious jurisprudence (1980-2010), but also on the jurisprudence following NIL/TU,O and Native Child: Canada (Attorney General) v.Munsee-Delaware Nation, 2015 FC 366 [Munsee-Delaware Nation]; Berens River First Nation v. Gibson-Peron, 2015 FC 614 [BerensRiver]; Cahoose v. Ulkatcho Indian Band and another, 2016 BCHRT 114; United Food and Commercial Workers Canada Union, Local864 v.

All employees of Waycobah First Nation working as shore based fishers and deck hands, Captains and Mates on fishing vessels,excluding office staff and managers., 2015 CIRB 792; Association of employees of Northern Quebec v. Matimekush-Lac John InnuNation Band Council, 2016 CIRB 843 affirmed by the Federal Court of Appeal ruling in Conseil de la Nation Innu Matimekush-LacJohn c Association des employés du nord québécois (CSQ), 2017 CAF 212 [Lac John]. Act Three: The Plan is no longer federal

[ 93 ] On April 25, 2016, the Office changed course: it advised the applicant that it believed the Plan could be subject to provincial legislation because, on October 2, 2015, the Federal Court of Appeal rendered its Police Service Board ruling, overturning the Supreme Court’s decision in NIL/TU,O and Native Child . Police Service Board became final on April 7, 2016. The Office therefore asked the applicant, Mr. Picard, to provide it with information contrary to this new administrative assessment, otherwise the Plan would be transferred to Retraite Québec . [ 94 ] In May 2016, the applicant, Mr.

Picard, provided the Office with a legal opinion from the prosecutors in this case that labour relations regarding police officers hired and remunerated directly by band councils fell within federal jurisdiction. Essentially, the police services in question were inseparable from governance activities of band councils and were the band councils’ responsibility under the Indian Act to ensure peace, order and public safety on Indian reserves. Reference was also made to the essential differences between Indigenous police forces in Quebec and the Nishnawbe-Aski Police Service Board.

The Board is a separate, independent legal entity serving several Indian bands, as well as large off-reserve areas where police services are provided to Indigenous and non-Indigenous populations in Ontario. [ 95 ] In June 2016, the applicant also provided the Office with three standard Indigenous policing agreements between the Government of Quebec, the Government of Canada and the communities of Wendake, Masteuiatsh and Opitciwan.

However, unlike the Nishnawbe- Aski Nation, which made the decision to have police services managed by a Police Service Board, band councils that are parties to these tripartite agreements are the employers of the police and are responsible for the administrative management, organization, hiring and selection of police officers. [ 96 ] On July 21, 2016, the Office rendered the impugned decision.

Purporting to rely on the " “functional test” " applied by the Supreme Court of Canada in NIL/TU,O , and the Federal Court of Appeal in Police Service Board , the Office used the following reasoning to find that the Plan was now subject to provincial regulations and not federal labour regulations: [ translation ] As you know [...], the Federal Court applied the functional test [...]; the test is used to examine the nature, operation and usual activities of the entity and identify the labour code that governs its use.

Although the organizational structure of the entity should not be overlooked, the examination must focus on the type of activities it carries out . As a rule, band councils are governed by the Canada Labour Code because of the administrative nature of their duties. However, in certain circumstances, some groups of band council employees may be subject to a provincial labour code when the work they perform is under provincial jurisdiction. The information you have given us clearly indicates that band councils are the employers of the police forces that serve their respective territories.

However, as stated on page 6 of the legal opinion you submitted to us, “ when an employer is a band council, the activities in question must be reviewed to see whether these activities are an inherent part of the band’s responsibilities as an entity that provides programs and services to its members .” In the case of the Plan, it is important to examine the operation and nature of the activities of the police forces participating in the Plan separately from typical band council activities .

Although the administrative activities of band councils are governed by the Canada Labour Code , the essential nature and function of police operations is an area of provincial jurisdiction . The power given to police officers in the performance of their duties and the power conferred on band councils for the administration of police services derive from the provincial Police Act . Activities delegated to band councils are detailed in the agreements. These agreements also stipulate that these activities must be governed and interpreted in accordance with the laws and regulations in force in Quebec.

In addition, if these agreements did not exist, police services in these territories would be provided by the Sûreté du Québec, which, under

section 50 of the Police Act , has jurisdiction to enforce law throughout the province. In the case of the Plan, it is all the more obvious to us that police force activities are separate from band council activities because the agreements stipulate that police forces must act independently of band councils […] [Emphasis added.] [ 97 ] This has therefore become the new reality: the Plan can no longer be registered under the PBSA . As a result, the Plan will be transferred to Retraite Québec " “in the coming weeks,” " hence this application for judicial review. VIII.

Applicants’ legal interest and practical reasons for a declaration [ 98 ] In this case, Sylvain Picard is acting as the Plan administrator, while RBA Financial Group sees to its day-to-day management. The legal interest of the applicants, who defend the band councils’ interests, as members-employers of the Plan, is not disputed. [ 99 ] On September 15, 2016, concurrent with the institution of these judicial review proceedings, the applicant, Mr. Picard, served a notice of objection on the Superintendent, under

section 32 of the PBSA . It should be noted that this provision refers to subsection 10(4) and

section 11.1 of the PBSA, under which the Superintendent may send the plan administrator a notice of non-compliance or revoke the registration and cancel the certificate of registration in respect of a pension plan if the administrator has not complied with the notice of non-compliance. [ 100 ] On October 5, 2016, the Office provided the applicant, Mr. Picard, with confirmation that [ translation ] " “our letter dated July 21 informing you of the transfer of the Plan does not involve either subsection 10(4) or

section 11.1 of the PBSA ” " , so the Superintendent

will follow up on the applicant’s notice of objection. The Plan therefore complies with federal regulations. The problem is that federalregulations would no longer apply to the Plan because of the new reality described in the impugned decision. That said, the Office isprepared to continue to monitor the Plan until a final ruling is obtained from the Court. [101] Admittedly, a transfer to Retraite Québec will not invalidate the Plan – it is simply a contract – and will not automatically result inits liquidation. However, the fact remains that the Plan will then be subject to provincial regul

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