Picard v. Canada (Attorney General)

Picard v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2018-07-18
Neutral citation
2018 FC 747
File numbers
T-1362-16
Decision Content
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 his employer is subject to provincial labour laws. On the contrary, the functional test is whether the police service operated by a band council on reserve land and lands reserved for Indians is a vital “governance” activity that is essential to the exercise of its powers as a federal 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 Nations Policing Policy, Ottawa, Minister of Supply and Services Canada, 1992 and 1996 [First Nations Policing Policy]). Finally, NIL/TU,O and 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 the PBSA), which is the case with the Plan (registered since 1981). However, the Superintendent must be given the authority to determine ex post facto whether a pension plan that is already registered continues to be subject to federal regulations. The doctrine of jurisdiction by necessary implication provides that an administrative decision-maker implicitly has all the powers necessary to accomplish the mandate entrusted to him by the legislature, including the power to make a decision as to whether a matter falls within its jurisdiction (see ATCO Gas & Pipelines Ltd v. Alberta (Energy & Utilities Board), 2006 SCC 4 at paragraph 51; Bell Canada v. Canada (Canadian Radio-Television and Telecommunications Commission), [1989] 1 SCR 1722 at p. 1056, 60 DLR (4th) 682; Canada v. Professional Institute of the Public Service of Canada, 1980 CanLII 2467 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 have included employment, i.e. employment “on or in connection with the operation of any work, undertaking or business that is within the legislative authority of the Parliament of Canada”[federal undertaking] (see the definition of “included employment” in subsection 4(4)) [Emphasis added]. Paragraphs (a) through (i) include a list of works, undertakings and businesses that fall within federal jurisdiction (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 the legislatures of the provinces” [Emphasis added].
[11] Parliament also provides an important clarification. “Employment” means “the performance by an employee of work for remuneration 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 or unincorporated, in respect of employment with which the employee receives his remuneration, and includes the successors or assigns of that 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 employment relationship between the employee and the employer in question, are essential prerequisites under subsection 4(4) of the PBSA that must be satisfied for federal regulations to apply to a pension plan. In this case, although employees performing police duties are employed by federal entities, i.e. band councils that are members of the Plan as employers, the Office was of the view that the employees fell within provincial 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 Employee Pension Plan], the Plan is a multi-employer pension plan whose employer-members are exclusively band councils within the meaning of the Indian Act. The Plan came into force on November 1, 1979, as specified in the February 25, 1981, application for registration [the Plan’s jurisdiction of registration] – the Plan being a pension plan registered by the Superintendent, as shown by certificate of registry number 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 the employees] working in Indigenous communities and who work exclusively for any of the employer-members. It is a defined benefit plan that foresees the accumulation of a guaranteed pension calculated on the basis of years of participation of each employee member of the Plan. The Plan is currently composed of the police departments of 14 band councils serving Indigenous communities that are members of First 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 des Atikamekw 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 de Wemotaci. With respect to its coverage of employees employed by employer-members, the Plan currently covers some 220 active members.
[15] Before going any further, it should also be noted that when the Superintendent registers a pension plan, it is an act of public authority that helps build public confidence in the Canadian financial system and creates legitimate expectations. Once a pension plan has been registered, the Office is responsible for ensuring compliance with the minimum funding requirements and other requirements in the PBSA and its regulations, Pension Benefits Standards Regulations, 1985, SOR/87­19 [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 administers the pension plan and pension fund as a trustee for the employer, the members of the pension plan, former members, and any other persons 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) has been filed in the Court record. In fact, the Plan pension committee has a written investment policy in accordance with the PBSA, its regulations, 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 the Plan 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 first reviewing the Canadian constitutional environment. In this highly nuanced exercise, we must start with the constitutional and statutory texts. We will then examine the use of the functional test in determining ancillary jurisdiction over labour relations. Finally, we will see that the statutory regulations governing policing powers delegated to persons acting as “peace officers” are the result of an exercise of shared 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 federal police forces. Finally, we must consider the impact of subsection 35(1) of the Constitution Act, 1982, being Schedule B of the Canada Act 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 criminal procedure (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 the Criminal Code, RSC, 1985, c. C-46.
[20] Pursuant to its jurisdiction over Indians, Parliament provides for the constitution and legislative recognition of band councils and delegates certain governmental powers to band councils, including the power to legislate on the observance of law and order on reserves and lands reserved for Indians (paragraph 81(1)(c) of the Indian Act). We will discuss this essential aspect of band council governance in more detail later.
[21] Moreover, so long as they remain such, reserve lands are administered by the Federal Government (Derrickson v. Derrickson, [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 members of a First Nation and (2) delegating to an Indian band the power to legislate in all matters that fall within its jurisdiction, including the observance of law and order and the prevention of disorderly conduct and nuisances (see for example the Kanesatake Interim Land Base Governance 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 the Indian Act, which are similar to those of a local government or municipality (see for example Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 SCR 203 at paragraph 77, 173 DLR (4th) 1, L’Heureux-Dubé J., concurring opinion). 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 or merchandise, the removal and punishment of persons trespassing on the reserve or frequenting the reserve for prohibited purposes, or the imposition on summary conviction of a fine or imprisonment, or both, for violation of a by-law. In this case, the band council could not effectively perform its governance activities if it did not have the power to hire special constables and police officers to maintain law and order 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 of justice, (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 “peace officers” for the purposes of the Criminal Code and the enforcement of provincial laws and regulations – partially fall under the administration of justice (see Dickson J.’s comments in Di Iorio v. Warden of the Montreal Jail (1976), [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 organization of police forces, the regulation of professional qualifications for police officers, standards of conduct and external supervision of police activity in Quebec. Of course, we are referring to the Police Act. We will revisit the Act later in these reasons (see Section VI – H. The Quebec perspective). Similar legislation has been enacted in Nova Scotia, Ontario, Manitoba, Saskatchewan and British Columbia (see Section 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 constables to 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, including the power to legislate for the administration of non-provincial territories. Pursuant to these powers, Parliament instituted the North-West Mounted Police in 1873, known in French as the “Police à cheval du Nord-Ouest” [...] (Since then) the Royal Canadian Mounted Police has been given authority to enforce all federal laws across the country, except the Criminal Code in 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 Mounted Police officer is a peace officers in every part of Canada and has all the powers, authority, protection and privileges that a peace officer has 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 new federation. Failing that, pursuant to its jurisdiction over Indians and lands reserved for Indians, Parliament provided for the creation of band 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 this provision 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 economic contingency 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, public security, and personal safety in First Nations and Inuit communities, including the safety of women, children and other vulnerable groups.
[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 the provinces of Canada, Nova Scotia and New Brunswick “to be federally united into One Dominion under the Crown of the United Kingdom 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 the Canadian 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, 1929 CanLII 438 (UK JCPC)). Regarding this point, “[t]he federalism principle requires a court interpreting constitutional texts to consider how different interpretations impact the balance between federal and provincial interests” (R. V. Comeau, 2018 SCC 15 at paragraph 78). The same concern has led, for example, to the development of doctrines like the necessarily incidental doctrine and the ancillary powers doctrine, which brings us to this case concerning the registration 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 Indigenous police forces and the band councils that employ them. However, this depends on how the work, undertaking or activity of the employer in 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, 1925 CanLII 331 (UK JCPC); Letter Carrier’s Union of Canada v. Canadian Union of Postal Workers et al., [1975] 1 SCR 178, 40 DLR (3d) 105). However, Parliament may regulate labour relations – including pension plans – where a worker is employed in a federal undertaking [direct jurisdiction], or the worker’s employment involves an activity that is an integral part of a federal undertaking [derivative jurisdiction](see Validity and Applicability of the Industrial Relations and Disputes Investigation Act, [1955] SCR 529, 1955 CanLII 1 [Stevedores Reference cited to SCR]; Construction Montcalm Inc. v. Min. Wage Com. (1978), [1979] 1 SCR 754 at p. 768, 93 DLR (3d) 641 [Construction Montcalm cited to SCR]; Northern Telecom v. Communications Workers (1979), [1980] 1 SCR 115, 98 DLR (3d) 1 [Northern Telecom cited to SCR]; United Transportation Union v. Central Western Railway Corp., [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 or undertaking’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 federal undertaking (as for example in Stevedores Reference). In either case, we determine which level of government has labour relations authority 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 Telephone Company of Canada, [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 labour relations 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, [1983] 1 SCR 733, 147 DLR (3d) 1 – are cases of derivative federal jurisdiction involving separate entities that provided 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 councils that are members of the Plan. Indigenous police forces do not have a separate existence, and band councils are solely responsible for them.
[38] In Four B Manufacturing v. United Garment Workers (1979), [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 company owned by four members of an Indian band, which mainly employed band members and operated on an Indian reserve. Obviously, under the functional test, the provincial company’s business activities had nothing to do with the band’s affairs or the services provided to the population by the band council. Moreover, the production of leather shoe uppers as a subcontractor for a non-Indian business enterprise was unrelated to Indianness.
[39] First, subsection 91(24) of the Constitution Act, 1867 grants the Government of Canada a power of governance over Indians and lands reserved for Indians. The idea that an Indian band can “legislate” through its council is the very purpose of the provisions of the Indian Act and the recognition and delegation system put in place by Parliament from the earliest days of the Confederation. Cutting to the chase: the regulation of band councils – which owes its existence to subsection 2(1) and section 74 of the Indian Act – is under the exclusive jurisdiction of the federal government. The same applies to the regulation of labour relations when, in performing a governance activity, the band council employs staff.
C. Statutory regulation of powers of peace officers: a delegation exercise shared between 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 are precise and not really open to discussion, it is clear that some matters are impossible to categorize under a single head of power: they may 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 only persons who may act under federal law, but also “a mayor, warden, reeve, sheriff, deputy sheriff, sheriff’s officer and justice of the peace”, as well as “a police officer, police constable, bailiff, constable, or other person employed for the preservation and maintenance of the public peace or for the service or execution of civil process”. The Criminal Code also stipulates the conditions of detention and release from custody of a person who has been arrested with a warrant by a peace officer (see, for example, sections 498 and 503 of the Criminal Code).
[42] Like other regional and municipal police officers, members of an Indigenous police force – including those exclusively employed by a band council – are appointed to serve their own community in the absence of specific agreements to the contrary. But they are not confined in the discharge of their duties to the territorial limits of that community. Their “territorial jurisdiction” is determined instead by relevant statutes and regulations, by agreements to which they are subject and by the terms of their appointment or engagement. For example, 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, where appropriate, empowered under subsection 254 (3) of the Criminal Code to demand that a breath sample be provided and to arrest the accused for failing to comply with that demand (see also R. v. Decorte, 2005 SCC 9 at paragraphs 20-22 [Decorte]). That said, the fact that a person has the status of “peace officer” under the Criminal Code or the Police Act does not change the nature of the relationship with his employer and does not affect the federal or provincial character of his employer’s police activities. Further below, we will see that 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, [1988] 1 SCR 1025 at paragraph 9, 51 DLR (4th) 418 [R v. Francis cited to SCR]; Multiple Access Ltd v. McCutcheon, [1982] 2 SCR 161, 138 DLR (3d) 1 [Multiple Access]). Take for instance the enforcement of traffic 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, operation and parking of vehicles on roads within reserves. The band council is entitled to do the same under the powers vested in it by paragraph 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 enjoining people to comply with provincial laws” since federal traffic regulations referred to “all laws and regulations relating to motor vehicles”, 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 pragmatic answer: “[i]t is also possible that the federal government wanted to have the option of having traffic rules on Indian reserves enforced by 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 arresting an 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 Police Act). However, while the Sûreté du Québec does not have jurisdiction to enforce a band council by-law on a reserve, it does have jurisdiction to enforce applicable municipal by-laws in the territories of the municipalities in which it provides police services (section 50 of the Police Act).
[48] Furthermore, the Royal Canadian Mounted Police does not enforce provincial laws or municipal laws, nor does it enforce the Criminal 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 of Canada v. Canada, 2005 FCA 5 at paragraph 11 [Public Service Alliance]). From an operational standpoint, two separate legislative or regulatory 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 Royal Canadian 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 of discipline, 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, [1987] 2 SCR 591 at paragraphs 16 and 17, 45 DLR (4th) 527; Attorney General of Alberta et al. v. Putnam et al., [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 be based on some constitutional fallacy. It calls for pragmatism. And that is where the necessary cooperation between the federal and provincial authorities comes into play. It will help put in place these statutory glia that ensure the cohesion and support of all the neurons of the Canadian system of justice and enforcement of federal and provincial administrative, criminal and penal laws.
VI. First Nations police services: a historical and contemporary overview
[51] We come to the heart of the issue that concerns us today, constitutional and statutory jurisdiction over First Nations police services and, in particular, those provided on reserves by band councils and other legal entities. Our analytical framework must consider historical and contemporary contexts. From simple subjects of federal jurisdiction, Indians have themselves become indispensable actors in Indigenous governance. This has led to a gradual reassessment of the federal and provincial policy and regulatory framework governing federal, 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, [1989] 2 SCR 357 at pp. 361­62, 61 DLR (4th) 385). That said, it is necessary to start by drawing a distinction between adjudicative facts and legislative facts (Danson v. Ontario (Attorney General), [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 of legislation, including its social, economic and cultural context. Such facts are of a more general nature, and are subject to less stringent admissibility 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 been explicitly sanctioned in Quebec since 1995 under the Police Act. Moreover, it can be said that [translation]”[t]he term governance – a very polysemous concept [...] – applied to Indigenous communities is related to the term self-governance and thus to the process of decolonization and establishment of new relationships between Indigenous communities and the State [...] (Laura Aubert and Mylène Jaccoud, “Politique sur la police des Premières Nations : une avancée en matière de gouvernance” (2012) 54 Can J Corr 265 at p. 267 [Aubert]).
[54] This general analytical framework has led the Court to assess the representations of the parties in the light of the various relevant laws and policies. The Court’s assessment will include the social, economic or cultural reasons for which Indigenous police forces exist today and will of course consider the content of the tripartite agreements that were filed in the record and will be more fully discussed when 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 maintaining order, 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 fact remains that social order was regulated by customary standards and disputes were resolved in an alternative manner (see René Dussault and Georges Erasmus, Bridging the cultural divide: a report on Aboriginal people and criminal justice in Canada, Ottawa, Minister of Supply and Services Canada, 1996 at pp. 13-19 [Dussault-Erasmus report]; Jones at pp. 22-24). Justice took an undeniably collective form: for example, officers were appointed by the community to make decisions and impose sanctions (Dussault-Erasmus report at p. 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 systems noted “[i]t has been through the law and the administration of justice that Aboriginal people have experienced the most repressive aspects 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 over Indians (read Pigeon J.’s dissent in The Queen v. Drybones (1969), [1970] SCR 282 at pp. 303­304, 9 DLR (3d) 473; see also Attorney General of Canada v. Lavell (1973), [1974] SCR 1349, at pp. 1358-59, 1361-62 and 1367-70, 38 DLR (3d) 481; Attorney General of Canada et al. v. Canard (1975), [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 of Indian Affairs – assisted by his agents – assumed the management of the reserves and the lands reserved for them (see Indian Act, RSC 1886, c. 43). His jurisdiction included respect for peace, order, and public safety. However, chiefs and band councils had very few formal legal powers in this regard. In terms of enforcing the Act, section 104 of the Indian Act stipulated that “[a]ny constable may, without process 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]very Indian agent shall be ex officio a justice of the peace […], and shall have the power and authority of two justices of the peace”, which meant the Indian agent had full discretion under section 104 or section 105 to try and impose imprisonment and payment of fines on an Indian 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