Quebec (Attorney General) v. Pekuakamiulnuatsh Takuhikan

Quebec (Attorney General) v. Pekuakamiulnuatsh Takuhikan
Collection
Supreme Court Judgments
Date
2024-11-27
Neutral citation
2024 SCC 39
Case number
40619
Judges
Wagner, Richard; Karakatsanis, Andromache; Côté, Suzanne; Rowe, Malcolm; Martin, Sheilah; Kasirer, Nicholas; Jamal, Mahmud; O’Bonsawin, Michelle; Moreau, Mary
On appeal from
Quebec
Subjects
Aboriginal law
Notes
Case in Brief SCC Case Information
Decision Content
SUPREME COURT OF CANADA
Citation: Quebec (Attorney General) v. Pekuakamiulnuatsh Takuhikan, 2024 SCC 39
Appeal Heard: April 23 and 24, 2024 Judgment Rendered: November 27, 2024 Docket: 40619
Between:
Attorney General of Quebec Appellant
and
Pekuakamiulnuatsh Takuhikan Respondent
- and -
Attorney General of Canada, Attorney General of Ontario, Attorney General of Saskatchewan, Attorney General of Alberta, Assembly of First Nations Quebec-Labrador, Congress of Aboriginal Peoples, Assembly of Manitoba Chiefs, Indigenous Police Chiefs of Ontario, First Nations Child & Family Caring Society of Canada, Okanagan Indian Band and Assembly of First Nations Interveners
Official English Translation
Coram: Wagner C.J. and Karakatsanis, Côté, Rowe, Martin, Kasirer, Jamal, O’Bonsawin and Moreau JJ.
Reasons for Judgment: (paras. 1 to 240)
Kasirer J. (Wagner C.J. and Karakatsanis, Rowe, Martin, Jamal, O’Bonsawin and Moreau JJ. concurring)
Dissenting Reasons: (paras. 241 to 325)
Côté J.
Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports.
Attorney General of Quebec Appellant
v.
Pekuakamiulnuatsh Takuhikan Respondent
and
Attorney General of Canada,
Attorney General of Ontario,
Attorney General of Saskatchewan,
Attorney General of Alberta,
Assembly of First Nations Quebec-Labrador,
Congress of Aboriginal Peoples,
Assembly of Manitoba Chiefs,
Indigenous Police Chiefs of Ontario,
First Nations Child & Family Caring Society of Canada,
Okanagan Indian Band and
Assembly of First Nations Interveners
Indexed as: Quebec (Attorney General) v. Pekuakamiulnuatsh Takuhikan
2024 SCC 39
File No.: 40619.
2024: April 23, 24; 2024: November 27.
Present: Wagner C.J. and Karakatsanis, Côté, Rowe, Martin, Kasirer, Jamal, O’Bonsawin and Moreau JJ.
on appeal from the court of appeal for quebec
Aboriginal law — Honour of the Crown — Contracts — Good faith — Remedy — Police services — Successive tripartite agreements entered into by governments of Canada and Quebec and band council to allow Indigenous community to establish and maintain Indigenous police force — Government funding provided for in agreements inadequate to ensure maintenance of police force — Council bringing legal proceedings against governments claiming reimbursement of accumulated deficits — Whether agreements engage principles of good faith and of honour of Crown — Whether Crown breached its obligations — Whether reimbursement of accumulated deficits can be appropriate remedy — Civil Code of Québec, arts. 1375, 1376, 1434.
Successive tripartite agreements concerning police services were entered into by the Government of Canada, the Government of Quebec and Pekuakamiulnuatsh Takuhikan, a band council that represents the Pekuakamiulnuatsh First Nation in Mashteuiatsh, Quebec. These agreements have three main objectives: to establish and maintain an Indigenous police force, Sécurité publique de Mashteuiatsh (“SPM”), providing services adapted to the Indigenous community of Mashteuiatsh; to set the maximum financial contribution by Canada and Quebec to the operation of that police force; and to entrust the management of the force to Pekuakamiulnuatsh Takuhikan. The contracting parties included a clause permitting the renewal of the agreements so as to ensure the maintenance of the police force over time.
Between 2013 and 2017, the government funding provided for in the agreements proved to be inadequate on its own to ensure the maintenance of the SPM. At the end of each fiscal year, the SPM incurred an operating deficit; from 2013 to 2017, Pekuakamiulnuatsh Takuhikan had to assume deficits totalling $1,599,469.95. It brought legal proceedings claiming reimbursement of the accumulated deficits from the governments of Canada and Quebec. It rested its claim on two main grounds: a contractual basis under private law, grounded in the provisions of the Civil Code of Québec, and a public law basis anchored in the principles of Aboriginal law. According to it, Canada and Quebec had refused to genuinely negotiate the funding clauses of the agreements, which was a breach of both the requirements of good faith and the obligations — heavier still for the State — flowing from the honour of the Crown.
The trial judge dismissed Pekuakamiulnuatsh Takuhikan’s application, holding that the contract is the law of the parties and that the honour of the Crown did not apply. The Court of Appeal set aside that judgment and ordered Canada and Quebec to pay their share of the total amount of the accumulated deficits, $832,724.37 for Canada and $767,745.58 for Quebec. In the Court of Appeal’s view, the governments’ refusal to fund the SPM justified finding both a violation of the principle of good faith and a failure to uphold the honour of the Crown. Only Quebec appealed from the Court of Appeal’s decision, Canada having paid the amount awarded against it by that court.
Held (Côté J. dissenting): The appeal should be dismissed.
Per Wagner C.J. and Karakatsanis, Rowe, Martin, Kasirer, Jamal, O’Bonsawin and Moreau JJ.: Quebec’s refusal to renegotiate its financial contribution when the agreements were renewed was not in keeping with the principle of good faith, a source of private law obligations set out in art. 1375 C.C.Q., which requires parties to conduct themselves in good faith in the performance of a contract. It was also a breach of the obligation to act in a manner consistent with the honour of the Crown, an obligation under public law that Quebec had to fulfill in the performance of the tripartite agreements. As to the manner in which the breach of the requirements of good faith should be redressed, the record does not make it possible to assess compensatory damages in conformity with the principles of corrective justice. However, with regard to the remedy meant to restore the honour of the Crown, which is rooted in reconciliatory justice, an award of damages equal to the accumulated deficits is an appropriate measure that will enable the contracting parties to undertake future negotiations with equanimity.
The first element of the applicable analytical framework to address the allegations that the Crown breached its undertakings under the tripartite agreements involves confirming that the general law of obligations, including the requirements of good faith, applies to contracts between an Indigenous community and the State. Under art. 1376 C.C.Q., the general rules on obligations apply to the State, to the extent that they are not excluded or altered by other rules of law. The tripartite agreements in this case are therefore governed by the general law of obligations, including art. 1375 C.C.Q. on good faith; Quebec was required to perform its contractual undertakings toward Pekuakamiulnuatsh Takuhikan in good faith.
Good faith requires that every contracting party consider the other party’s interests in the performance of the contract, but not that one party subordinate its own interests to those of the other. Parties to a contract must conduct themselves loyally by not unduly increasing the burden on the other party or behaving in an excessive or unreasonable manner. This is a duty of conduct that involves making the performance of the contract consistent with what was undertaken. After a contract is entered into, where the parties have provided through a clause that they will have to enter into negotiations, the obligation to conduct the negotiations in good faith flows directly from the contract. A breach of good faith in negotiating a renewal contemplated by a contract may thus be a source of contractual liability. When parties discuss a renewal clause, they must negotiate faithfully; if they begin renewal negotiations pursuant to the very terms of the contract, they are obliged to behave in a manner that is neither excessive nor unreasonable in this final stage of carrying out their agreement. Refusal to act in good faith in the negotiation of a renewal contemplated by the parties may jeopardize the very purpose of the contract where the achievement of that purpose depends on the existence of a relationship over time.
In this case, Quebec had an obligation to act in good faith, including when conducting the negotiations contemplated by the tripartite agreements, and it breached that duty. The parties had provided for an extension mechanism to facilitate renewal; they therefore had an obligation to carry out any renewal negotiations in good faith. This obligation could not serve to require or impose specific outcomes from the negotiations. Moreover, Quebec had no obligation to renew the arrangement for another fiscal year. However, if it sought to do so, the agreements show that renewal would be achieved through negotiation. In such a case, Pekuakamiulnuatsh Takuhikan was not entitled to a specific level of funding, but, by the terms of the contract itself, it did have a legitimate expectation that Quebec would consider its perspective in negotiating the extent of its contribution. Quebec’s refusal to discuss an increase in funding constitutes unreasonable conduct contrary to the requirements of good faith. Quebec chose to continue the contractual relationship while at the same time refusing to revisit its financial contribution, even though it knew that the SPM was underfunded. That conduct disregarded the context and its counterparty’s interests. By adopting an intransigent position through its refusal to negotiate, Quebec acted contrary to what the agreements stipulated and to the binding force of contracts as enshrined in art. 1434 C.C.Q. Quebec caused injury to Pekuakamiulnuatsh Takuhikan by acting in conflict with the expectations raised by the contractual mechanism put in place by the parties for the renewal of the agreements. That conduct was unreasonable because it undermined Pekuakamiulnuatsh Takuhikan’s legitimate expectations and disrupted the parties’ contractual objective of maintaining the SPM. Quebec should have entered into genuine negotiations with its counterparty and should have listened and shown openness. The absence of genuine negotiations left Pekuakamiulnuatsh Takuhikan in a no‑win situation: either it continued to impoverish itself to maintain the SPM and preserve the progress that the SPM represented in terms of self‑government, or it abolished the SPM, which meant both returning to the inadequate services of the Sûreté du Québec and suffering a setback with respect to self‑government. Despite the difficulties, Pekuakamiulnuatsh Takuhikan chose, year after year, to preserve the SPM, which required it to use its own funds to absorb the annual deficits. The governments of Canada and Quebec turned a deaf ear to Pekuakamiulnuatsh Takuhikan’s requests and complaints, and the quality of the SPM’s services suffered as a result.
The second element of the framework involves establishing that the principle of the honour of the Crown also applies to the performance of Quebec’s contractual undertakings in this case. While art. 1376 C.C.Q. provides that the private law of obligations applies to the State, it also specifies that this is subject to any other rules of law which may be applicable to it. This qualification thus refers implicitly to the idea that public common law rules may form a distinct liability regime for the State that supplements the one in the Civil Code of Québec. The principle of the honour of the Crown is one such public law rule that may, in some contexts, broaden the scope of state liability. However, there is no basis for concluding that the principle of the honour of the Crown is implicitly incorporated into contracts by operation of art. 1434 C.C.Q. Consequently, while the honour of the Crown is engaged where the State has contractual obligations, its source, unlike those contractual obligations, is anchored in public law rules.
As a common law rule originating in the special relationship between the Crown and Indigenous peoples, the principle of the honour of the Crown is itself anchored to the goal of facilitating the reconciliation of the Crown’s interests with those of Indigenous peoples, including by promoting negotiation and the just settlement of their claims. The honour of the Crown is a constitutional principle that looks forward to reconciliation in an ongoing, mutually respectful long‑term relationship. Regardless of the means used by the Crown to advance the process of reconciliation, the principle of the honour of the Crown must be applicable when it is required.
Unlike good faith, the honour of the Crown does not apply to the performance of every contract or to every contractual undertaking given by the Crown to an Indigenous entity. Indeed, it applies only in the performance of contracts between the State and Indigenous groups that are intended to foster the modern‑day reconciliation of pre‑existing Indigenous societies with the Crown’s historic assertion of sovereignty. The task is therefore to determine the legal test that can be used in this case to identify contractual undertakings that attract the honour of the Crown. First, the contract in question must be entered into by the Crown and an Indigenous group by reason and on the basis of the group’s Indigenous difference. Because the principle of the honour of the Crown rests on the special relationship between the Crown and Indigenous peoples, the honour of the Crown is engaged only by an obligation assumed by the Crown on the basis of this special relationship, which is different from the one it has with the population in general. Second, the contract in question must relate to an Indigenous right of self‑government, whether the right is established or is the subject of a credible claim. It is not necessary, in order for the principle of the honour of the Crown to apply, that such a right already be recognized by the courts or the Crown. A credible claim is sufficient to impose duties of honourable dealing on the Crown.
To ascertain whether the tripartite agreements in this case satisfy this test, it is necessary to undertake a characterization exercise, through which the contract at issue is linked to a normative category that can serve to determine the applicable legal regime. The purpose of characterizing a contract is to identify its legal nature. This exercise is not governed strictly by the intention of the parties and is based on the legal nature of the act created. It is a question of law. In this case, the characteristic prestation of the tripartite agreements has three aspects. The tripartite agreements provide for the establishment and maintenance of an Indigenous police force, set out a shared funding regime between the governments of Canada and Quebec and Pekuakamiulnuatsh Takuhikan, and provide for the independent management of the police force by Pekuakamiulnuatsh Takuhikan. In light of this characteristic prestation, it appears that the parties entered into the tripartite agreements on the basis and by reason of the Indigenous difference of the Pekuakamiulnuatsh. Only Indigenous communities may enter into an agreement with Quebec to establish or maintain an Indigenous police force. Moreover, the tripartite agreements were entered into in the context of the nation‑to‑nation relationship between Quebec and Pekuakamiulnuatsh Takuhikan, and the aim of the funding is to remedy the historical harm resulting from the imposition of the national police on Indigenous peoples and the difficulties experienced by Indigenous communities in managing their internal security.
The tripartite agreements also concern the Indigenous right of self‑government claimed by the Pekuakamiulnuatsh First Nation in matters of public safety in the community. The establishment and maintenance of Indigenous police forces that are managed by the communities covered by an agreement and that provide culturally appropriate services to those communities distinguish these police forces from those serving the population in general. It was in the context of the claim by Indigenous peoples to the right of self‑government and control over their institutions that Quebec recognized, in the Police Act, the possibility for First Nations to establish a culturally appropriate police force. The need of Indigenous peoples for such police services originates in the difficult, and at times even traumatizing, relationship that Indigenous peoples had, and in some cases continue to have, with the police services imposed on them over the years by the Crown. The opportunity to enter into agreements whose objective is to ensure the provision of culturally appropriate police services managed by the Indigenous communities served therefore contributes to reconciliation.
In sum, the tripartite agreements must be characterized as contracts that engage the honour of the Crown. The fact that the tripartite agreements are not treaties protected by s. 35(1) of the Constitution Act, 1982 and that Pekuakamiulnuatsh Takuhikan is not seeking to establish a right protected by s. 35 of the Constitution Act, 1982 makes no difference to the characterization of the contract. Even though the parties have agreed that there will be no final resolution of the claims of the Pekuakamiulnuatsh through the tripartite agreements, the fact remains that these agreements relate to the subject‑matter of their claims, that is, the right of self‑government in matters of internal security. The question is not whether the agreement recognizes or modifies Indigenous rights, but only whether it relates to this claimed right.
Because it is not a cause of action itself, the principle of the honour of the Crown is expressed through the specific obligations to which it gives rise. The content of these obligations varies with the circumstances. When the honour of the Crown applies to a contract, the Crown must meet a standard of conduct that is higher than in the context of an ordinary contractual relationship and must act in a manner that fosters reconciliation. When the Crown decides to enter into a contractual relationship that engages its honour, it must negotiate, interpret and apply the contracts with honour and integrity while avoiding even the appearance of sharp dealing. This is an obligation that has long been recognized in the context of treaty making and implementation and that can be transposed to the contractual context. The Crown must also avoid adopting an intransigent attitude. Once an agreement has been entered into, the Crown must conduct itself with honour and integrity in performing its obligations. This means, among other things, that it must construe the terms of the agreement generously and comply with them scrupulously while avoiding any breach of them. The Crown must also act honourably in any negotiations to change or renew the agreement.
In this case, because the tripartite agreements contemplated the renegotiation of their funding clauses, the honour of the Crown imposed an obligation on the Crown to conduct itself honourably during the renewal negotiations. Quebec did not comply with this obligation. Through its intransigent attitude, it acted dishonourably by refusing to negotiate the funding terms of the tripartite agreements. Quebec refused to consider Pekuakamiulnuatsh Takuhikan’s repeated requests to renegotiate the level of funding for its police force even though it knew that the SPM was underfunded and that Pekuakamiulnuatsh Takuhikan would accept an inadequate level of funding to avoid resorting to the ill‑adapted services of the Sûreté du Québec. That conduct represents a breach of the obligation to perform the tripartite agreements with honour and integrity. The honour of the Crown requires the Crown to meaningfully engage in genuine negotiations in a manner conducive to maintaining a relationship that can support the ongoing process of reconciliation. By refusing to renegotiate the level of funding despite Pekuakamiulnuatsh Takuhikan’s repeated complaints and the precarious situation in which it found itself, Quebec conducted itself in a manner that fell well below the standard of honourable conduct. Through its breach, Quebec jeopardized the contractual equilibrium and the very purpose of the tripartite agreements. Quebec thus failed to comply with its obligation to act with honour, establishing a second independent basis of liability.
Quebec’s conduct can therefore be characterized as both a civil fault and a breach of a public law obligation. These two legal regimes differ in nature, and the remedies associated with them are grounded in distinct conceptions of justice. The civil law regime is based on corrective justice, and its aim is to place the aggrieved party in the position it would have been in but for the fault committed. The public law regime is concerned instead with the long‑term relationship between the Crown and Indigenous communities, and its aim is to restore the honour of the Crown and thereby foster reconciliation; this is reconciliatory justice.
In the case of the civil law regime and the breach of good faith, once a failure to meet the requirements of good faith has been established, the plaintiff must prove the extent of the injury on the basis of the principle of restitutio in integrum, or full restitution. The damages awarded must not exceed the amount necessary to fully compensate for the injury suffered and place the plaintiff in the position it would have been in but for the breach of good faith. In this case, the Court is unable to carry out this assessment, as it has neither sufficient evidence nor an adequate factual foundation to perform this task properly.
A remedy meant to address the breach of an obligation flowing from the honour of the Crown rests on a basis other than corrective justice. Reconciliatory justice is not intended only to compensate the Indigenous claimant for harm suffered as a result of past wrongs; it serves above all to restore and improve the relationship between the Crown and Indigenous peoples. The aim is to impose a measure that places the parties back on the path to reconciliation. In this exercise, it is important to be sensitive to Indigenous perspectives and to be creative within a principled legal framework. A breach of the obligations flowing from the honour of the Crown makes available the full range of remedies, including damages and other coercive relief. The remedy relating to the honour of the Crown will vary with the circumstances of each case; no type of remedy takes precedence over the others.
In this case, the relationship between the parties was undermined by Quebec’s intransigent attitude at the stage of renewing the tripartite agreements. That attitude benefited it and harmed Pekuakamiulnuatsh Takuhikan, not only in financial terms but also from the standpoint of the quality of policing and its dignity, as its freedom of choice was not respected. By imposing a difficult choice on Pekuakamiulnuatsh Takuhikan — either continue to impoverish itself to maintain the SPM, or abolish the SPM — Quebec did not deal with it on an equal footing and did not act in a spirit of cooperation and respect. This is also part of the damage caused to the relationship, which must now be repaired. In the circumstances, the Court of Appeal could conclude that repairing this damage requires an award of damages. The appropriate quantum of damages must be determined through an analysis focused on reconciliatory justice to ensure that the order made will have the effect of restoring the honour of the Crown. The correct amount to be awarded for a breach of an obligation flowing from the honour of the Crown is a highly contextual issue. In this case, the amount determined by the Court of Appeal should be upheld given the particular circumstances of the case, and having regard to the purpose of the damages, which serve not only to compensate for past injury but also to restore the relationship for the future.
Per Côté J. (dissenting): The appeal should be allowed and the trial judgment should be restored. The principle of good faith and the principle of the honour of the Crown do not allow a court to disregard or ignore certain express clauses of a contract and to impose obligations that are inconsistent with their unambiguous terms.
This case involves a contractual claim for damages in which Pekuakamiulnuatsh Takuhikan did not apply to have the agreements annulled or to have certain clauses in the agreements declared abusive. The agreements limit in express terms the governments’ contribution to a maximum amount determined each year, such that Quebec undertook to contribute financially to the establishment and maintenance of the SPM but did not undertake to pay all of the costs incurred, or to fund services equal to those provided in communities in the region. Furthermore, pursuant to the agreements, Pekuakamiulnuatsh Takuhikan is responsible for deficits incurred in excess of the financial contribution that the governments wish to provide and the governments are not responsible for undertakings given by Pekuakamiulnuatsh Takuhikan. These clauses circumscribe and limit the scope of Quebec’s undertaking.
There is agreement with the majority that the principle of the honour of the Crown is implicitly incorporated into how the contractual undertakings agreed to by the parties must be fulfilled. The tripartite agreements, which provide for the financial support of Indigenous police services by the governments, are not purely commercial contracts. It follows that the principle of the honour of the Crown cannot be ignored in the assessment of Quebec’s conduct in the course of these agreements. Furthermore, Quebec’s objective in enacting certain sections of the Police Act is based on the reconciliation of pre‑existing Indigenous societies with the assertion of Crown sovereignty. Pursuant to art. 1434 C.C.Q., the public law obligations derived from the tripartite agreements in conformity with law are added to the express stipulations of those agreements. The honour of the Crown and the obligations flowing therefrom are therefore implicitly incorporated into the tripartite agreements by operation of art. 1434 C.C.Q. However, that provision does not permit the introduction of an implied obligation that would be inconsistent with the terms of the contract. Obligations that may flow from the principle of the honour of the Crown also cannot be excluded by the entire agreement clause stipulated in the agreements.
There is disagreement with the majority, however, concerning the scope of the contractual undertakings agreed to by Pekuakamiulnuatsh Takuhikan and Quebec. First, the government parties did not undertake to pay all of the costs related to the creation and maintenance of a police force that could ensure the same level of service as that found in communities in the region. Such an obligation appears nowhere in the language of the agreements. Quebec’s undertaking flows strictly from the tripartite agreements given that the parties expressed their intent to be bound solely by the express terms of the tripartite agreements by stipulating an entire agreement clause to exclude any content external to the contract. This entire agreement clause excludes the application of arts. 1425 and 1434 C.C.Q.
Second, Quebec’s undertaking cannot be defined in light of the objectives set out in the First Nations Policing Policy (1996) (“Federal Policy”) and the First Nations Policing Program (“FNPP”). The Federal Policy and the FNPP could not bind Quebec for three reasons. First, Quebec did not undertake to implement the Federal Policy. Second, the Federal Policy does not establish binding rules and is therefore not subject to judicial sanction. Third, nowhere in the Federal Policy is it stated that the governments will fund all of the costs of the police services.
Lastly, the principle of the honour of the Crown cannot serve as a basis for rewriting the terms of the tripartite agreements to introduce into them an obligation for Quebec to pay all of the costs related to the creation and maintenance of the SPM. There is therefore disagreement with the majority regarding their conclusions on the alleged breaches of contractual good faith and of the principle of the honour of the Crown. The majority’s analysis expands the purpose of Quebec’s undertaking to include the obligation to provide services adapted to the community comparable to those of communities in the region even though this objective is nowhere to be found in the agreements. This is tantamount to rewriting the terms of these agreements, which the principle of the honour of the Crown cannot be used to do. Such an approach is also contrary to the implied obligations regime in Quebec civil law. An implied obligation can only fill a gap in the terms of the contract. Article 1434 C.C.Q. cannot be used to frustrate other provisions of the agreement.
With respect to good faith, Quebec fulfilled all of its undertakings and did not abuse any right provided for in the contract, including regarding the renewal of the tripartite agreements. It was not unreasonable for Quebec to rely on the words of the agreements concerning the responsibility for the accumulated deficits. There is no evidence of any right provided for in the agreements that Quebec would have abused. Regarding the principle of the honour of the Crown, its application to how the contractual undertakings must be fulfilled leads to the conclusion that Quebec acted honourably. The government parties proceeded to renew the agreements with the resources available and further to the appropriations given by Parliament and the Assemblée nationale, as contemplated in the agreements.
The evidence shows that, throughout their contractual relationship, Quebec listened attentively to its counterparty’s grievances and was flexible in seeking solutions to the problem of the underfunding of its police force. Quebec provided additional financial support through a variety of measures, particularly to maintain the SPM and to contribute to funding the construction of the community’s police station. Quebec went beyond what was required by the terms of the agreements by providing these additional amounts to financially support the SPM. This additional financial assistance must be taken into account in the assessment of Quebec’s conduct with respect to the renewal of the tripartite agreements and with respect to the injury that may have resulted from it. Moreover, Pekuakamiulnuatsh Takuhikan had financial autonomy during the renewal of the agreements. Its contractual autonomy is particularly reflected in the free and informed choice it made to offer a level of service above the one provided for in the tripartite agreements. Pekuakamiulnuatsh Takuhikan is challenging Quebec’s public policy decisions concerning the giving of financial support to Indigenous police forces. However, the role of the courts is not to interfere in this way in the budget decisions of government parties, which are reflected in the tripartite agreements at issue. Concluding otherwise has the effect of sanctioning a discretionary policy decision concerning the allocation of budgetary resources of the State, which is something the Court cannot do without brushing aside the separation of powers doctrine.
With respect to the remedy, it is not necessary to create a remedial scheme based on reconciliatory justice. The rules of corrective justice under the civil liability regime can be adapted to consider the Indigenous perspective and the imperative of reconciliation. While the exercise of quantifying damages may pose additional difficulties for the courts when it comes to remedying a breach of the principle of the honour of the Crown, they are accustomed to using their discretion in determining an indemnity that is fair and reasonable. When faced with a largely unforeseeable and unquantifiable injury resulting from dishonourable conduct by the Crown, the court may use its discretion to establish a quantum that will take into account restoring the honour of the Crown and be somewhat creative in exercising its discretion. This approach avoids the trap posed by the highly discretionary nature of the remedy anchored in reconciliatory justice in a contractual context. Accepting such a remedial scheme could discourage governments from signing these kinds of agreements with Indigenous entities.
Cases Cited
By Kasirer J.
Referred to: Ponce v. Société d’investissements Rhéaume ltée, 2023 SCC 25; Churchill Falls (Labrador) Corp. v. Hydro-Québec, 2018 SCC 46, [2018] 3 S.C.R. 101; Houle v. Canadian National Bank, [1990] 3 S.C.R. 122; Prud’homme v. Prud’homme, 2002 SCC 85, [2002] 4 S.C.R. 663; Sharp v. Autorité des marchés financiers, 2023 SCC 29; R. v. Desautel, 2021 SCC 17, [2021] 1 S.C.R. 533; Beckman v. Little Salmon/Carmacks First Nation, 2010 SCC 53, [2010] 3 S.C.R. 103; Manitoba Metis Federation Inc. v. Canada (Attorney General), 2013 SCC 14, [2013] 1 S.C.R. 623; Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511; Ontario (Attorney General) v. Restoule, 2024 SCC 27; Bhasin v. Hrynew, 2014 SCC 71, [2014] 3 S.C.R. 494; Uniprix inc. v. Gestion Gosselin et Bérubé inc., 2017 SCC 43, [2017] 2 S.C.R. 59; Hydro-Québec v. Construction Kiewit cie, 2014 QCCA 947; C.M. Callow Inc. v. Zollinger, 2020 SCC 45, [2020] 3 S.C.R. 908; Développement Olymbec inc. v. Avanti Spa de Jour inc., 2019 QCCS 1198; Trizec Equities Ltd. v. Hassine (1988), 27 Q.A.C. 167; Singh v. Kohli, 2015 QCCA 1135; Billards Dooly’s inc. v. Entreprises Prébour ltée, 2014 QCCA 842; Centre de santé et de services sociaux de l’Énergie v. Maison Claire Daniel inc., 2012 QCCA 1975; Jolicoeur v. Rainville, 2000 CanLII 30012; Société sylvicole de l’Outaouais v. Rasmussen, 2005 QCCA 729; Développement Tanaka inc. v. Montréal (Commission scolaire), 2007 QCCA 1122, 65 C.L.R. (3d) 175; Mikisew Cree First Nation v. Canada (Governor General in Council), 2018 SCC 40, [2018] 2 S.C.R. 765; Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), 2004 SCC 74, [2004] 3 S.C.R. 550; Newfoundland and Labrador (Attorney General) v. Uashaunnuat (Innu of Uashat and of Mani-Utenam), 2020 SCC 4, [2020] 1 S.C.R. 15; Finney v. Barreau du Québec, 2004 SCC 36, [2004] 2 S.C.R. 17; Hinse v. Canada (Attorney General), 2015 SCC 35, [2015] 2 S.C.R. 621; Ludmer v. Canada (Attorney General), 2020 QCCA 697, 2020 DTC 5055; Restaurant Le Relais de Saint-Jean inc. v. Agence du revenu du Québec, 2020 QCCA 823; Kosoian v. Société de transport de Montréal, 2019 SCC 59, [2019] 4 S.C.R. 335; Ressources Strateco inc. v. Procureure générale du Québec, 2020 QCCA 18, 32 C.E.L.R. (4th) 231; Poitras v. Concession A25, 2021 QCCA 1182; Tsilhqot’in Nation v. British Columbia, 2014 SCC 44, [2014] 2 S.C.R. 257; Wewaykum Indian Band v. Canada, 2002 SCC 79, [2002] 4 S.C.R. 245; Manitoba Metis Federation Inc. v. Brian Pallister, 2021 MBCA 47, 458 D.L.R. (4th) 625; Ontario First Nations (2008) Limited Partnership v. Ontario Lottery and Gaming Corporation, 2020 ONSC 1516, aff’d 2021 ONCA 592; Saskatchewan (Attorney General) v. Witchekan Lake First Nation, 2023 FCA 105, 482 D.L.R. (4th) 352; Long Plain First Nation v. Canada (Attorney General), 2015 FCA 177, 475 N.R. 142; Pasqua First Nation v. Canada (Attorney General), 2016 FCA 133, [2017] 3 F.C.R. 3; Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, 2024 SCC 5; Dickson v. Vuntut Gwitchin First Nation, 2024 SCC 10; Waldron v. Canada (Attorney General), 2024 FCA 2; Cree Nation of Eeyou Istchee (Grand Council) v. McLean, 2019 FCA 185; Nunavut Tunngavik Inc. v. McLean, 2019 FCA 186; Whapmagoostui First Nation v. McLean, 2019 FCA 187; Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43, [2010] 2 S.C.R. 650; Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69, [2005] 3 S.C.R. 388; R. v. Badger, [1996] 1 S.C.R. 771; Kaska Dena Council v. Canada, 2018 FC 218; Chemainus First Nation v. British Columbia Assets and Lands Corp., [1999] 3 C.N.L.R. 8; Gitanyow First Nation v. Canada, [1999] 3 C.N.L.R. 89; Saadati v. Moorhead, 2017 SCC 28, [2017] 1 S.C.R. 543; Shot Both Sides v. Canada, 2024 SCC 12; Clyde River (Hamlet) v. Petroleum Geo‑Services Inc., 2017 SCC 40, [2017] 1 S.C.R. 1069; Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87; Vancouver (City) v. Ward, 2010 SCC 27, [2010] 2 S.C.R. 28; Montréal (City) v. Octane Stratégie inc., 2019 SCC 57, [2019] 4 S.C.R. 138; Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331; Anderson v. Alberta, 2022 SCC 6, [2022] 1 S.C.R. 29.
By Côté J. (dissenting)
Churchill Falls (Labrador) Corp. v. Hydro-Québec, 2018 SCC 46, [2018] 3 S.C.R. 101; Dominique (on behalf of the members of the Pekuakamiulnuatsh First Nation) v. Public Safety Canada, 2022 CHRT 4; Canada (Attorney General) v. Pekuakamiulnuatsh First Nation, 2023 FC 267; Ontario v. Criminal Lawyers’ Association of Ontario, 2013 SCC 43, [2013] 3 S.C.R. 3; Manitoba Metis Federation Inc. v. Canada (Attorney General), 2013 SCC 14, [2013] 1 S.C.R. 623; Mitchell v. Peguis Indian Band, [1990] 2 S.C.R. 85; R. v. Badger, [1996] 1 S.C.R. 771; Mikisew Cree First Nation v. Canada (Governor General in Council), 2018 SCC 40, [2018] 2 S.C.R. 765; Canada (Attorney General) v. British Columbia Investment Management Corp., 2019 SCC 63, [2019] 4 S.C.R. 559; Beckman v. Little Salmon/Carmacks First Nation, 2010 SCC 53, [2010] 3 S.C.R. 103; R. v. Desautel, 2021 SCC 17, [2021] 1 S.C.R. 533; Prud’homme v. Prud’homme, 2002 SCC 85, [2002] 4 S.C.R. 663; Doré v. Verdun (City), [1997] 2 S.C.R. 862; Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010; Quebec (Attorney General) v. Moses, 2010 SCC 17, [2010] 1 S.C.R. 557; Aéroports de Montréal v. Meilleur, [1997] R.J.Q. 1516; Invenergy Wind Canada v. Éolectric inc., 2019 QCCA 1073; R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190; First Nation of Nacho Nyak Dun v. Yukon, 2017 SCC 58, [2017] 2 S.C.R. 576; Saskatchewan (Attorney General) v. Witchekan Lake First Nation, 2023 FCA 105, 482 D.L.R. (4th) 352; Houle v. Canadian National Bank, [1990] 3 S.C.R. 122; Singh v. Kohli, 2015 QCCA 1135; Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511; Vidéotron, s.e.n.c. v. Bell ExpressVu, l.p., 2015 QCCA 422; Provigo Distribution Inc. v. Supermarché A.R.G. Inc., 1997 CanLII 10209; Ontario (Attorney General) v. Restoule, 2024 SCC 27.
Statutes and Regulations Cited
Act to amend the Police Act and the Act respecting police organization as regards Native police, S.Q. 1995, c. 12.
Canadian Charter of Rights and Freedoms, s. 24(1).
Civil Code of Québec, preliminary provision, arts. 6, 7, Book Five, 1375, 1376, 1425, 1434, 1437, 1607, 1611 et seq., 1613.
Code of Civil Procedure, CQLR, c. C-25.01, art. 18.
Code of ethics of Québec police officers, CQLR, c. P‑13.1, r. 1.
Constitution Act, 1982, ss. 25, 35.
Federal Courts Act, R.S.C. 1985, c. F‑7, s. 18.1.
Indian Act, R.S.C. 1985, c. I‑5.
Police Act, CQLR, c. P‑13.1, Title II, Chapter I, ss. 48, 50, 70, 72, 79, Division IV, 90 [am. 2008, c. 13, s. 3; am. 2023, c. 20, s. 10], 93 [am. 2023, c. 20, s. 11], Sch. G.
Police Act, R.S.Q., c. P-13, s. 79.0.1 [ad. 1995, c. 12, s. 1].
Supreme Court Act, R.S.C. 1985, c. S-26, s. 46.1.
Authors Cited
Baudouin, Jean‑Louis, and Pierre‑Gabriel Jobin. Les obligations, 7th ed. by Pierre‑Gabriel Jobin and Nathalie Vézina. Cowansville, Que.: Yvon Blais, 2013.
Baudouin, Jean‑Louis, Pat