OTTAWA—The recent shooting incident in Wiikwemkoong has added impetus to the urgency being felt by Indigenous police services and the communities they serve. An emergency injunction hearing was held recently seeking interim funding extensions while a human rights challenge seeks to change the agreements being proffered by the agency overseeing a joint funding program.
Following a daylong series of representations seeking an emergency injunction forcing funding to flow to three Indigenous police forces in Northern Ontario, including Manitoulin’s UCCM Anishnaabe Police Service (UAPS), Federal Court Justice Denis Gascon reserved his decision on the emergency motion brought by the Indigenous Police Chiefs of Ontario (IPCO). His decision is expected sometime before the end of June.
The crux of the matter under dispute lies within three Section 6 provisions of the First Nations and Inuit Policing Program (FNIPP), the program which administers funding for police services in 425 First Nation and Inuit communities across Canada. In addition to the UAPS, Treaty Three Police Service and the Anishinabek Police Service are party to the dispute. Together, the three services serve communities with a combined population of more than 30,000, spread over territories that cover a vast swath of Northern Ontario.
The federal government covers 52 percent of the FNIPP budget with the provinces and territories covering most of the other 48 percent (First Nations also contribute a portion of policing costs in their communities). Dozens of other Indigenous police services will be renegotiating their own agreements over the next few months and are closely watching the case.
During the injunction hearing, Julian Falconer of Falconer LLP, one of the lawyers representing the impacted Indigenous police services, outlined how the three Section 6 provisions prevent the services from owning their own property and from operating special police units such as a canine unit, a major crimes unit, a specialized drug unit and a domestic assault unit—or even hiring legal representation to assist them in negotiating the terms of the FNIPP. Mr. Falconer characterized those provisions as insultingly paternalistic and discriminatory, being a marked departure from the terms governing any other Canadian police force.
During the proceedings, Mr. Falconer repeatedly brought forward the comments of Public Safety Minister Marco Mendicino, whose ministry oversees the FNIPP.
“I believe that a number of their concerns in fact have merit, which is why I’ve now become directly engaged with the community and I’ve instructed my department to find solutions quickly so that we can resolve any ongoing issues with regards to the flow of monies to the community.”
Minister Mendicino said that while it’s not strictly “convention” for ministers to get directly involved with negotiations, he has decided to override convention to ask for the police services to receive funding they need over the next 90 days. “First thing’s first—let’s get funding going back to the community as quickly as possible,” he said. “Then we’ll get parties back to the table negotiating in good faith so that we can take the next steps to reconciliation.”
Mr. Falconer challenged lawyers for the Crown, Michael Roach and Sean Stynes to reconcile their claims that the IPCO case “has no merit” with Minister Mendicino’s statement. Their response was essentially “no comment” and to advise that they had been instructed to move forward with their opposition to the motion.
While a funding increase had been offered during protracted negotiation, an affidavit from Treaty Three Police Chief Kia Liu said the terms and conditions prevent the services from owning their own property and, most critically, from operating special police units, such as a canine unit, a major crimes unit and domestic assault unit.
“If I was to describe policing as a vehicle, the Ottawa police, which I spent 22 years with, would be a Ford SUV,” Police Chief Liu said in his affidavit. “Gananoque would be a little Honda Civic. Coburg might be a Ford SUV. All of these vehicles would have four wheels, engine, full tank of gas and passed vehicle safety.” Chief Liu contrasted that with the situation in Treaty Three as being like “a vehicle that was missing an engine, run down, missing a wheel and a leaky gas tank. And this is the chronic underfunding in the 20 years that Treaty Three has been operating.”
For their part, the lawyers for the Crown disputed that the situation was an “emergency” given that the police services were “causing” the funding issue by refusing to sign the FNIPP agreement. They argue that the Human Rights Commission hearing would resolve the matters under dispute after the fact.
They also argued that, under the terms in which the original FNIPP agreements were negotiated, it was agreed the First Nations would fund their own legal representation.
As to the question of special units, the Crown lawyers pointed out that the OPP supplies most of those services, as they do with their own smaller detachments in communities across the province.
The point of these restrictions being, they assert, to ensure that all dollars spent are aimed at the ground level of policing, boots on the ground in the communities.
Finally, the federal lawyers insisted that the Quebec Dominic Case upon which the plaintiffs are basing a previous finding of discrimination within the FNIPP agreements, is not yet complete and awaiting trial, further that the findings in that case do not reference the specific Section 6 provisions being cited by the ICPO, but rather were based on discriminatory funding shortfalls.
Mr. Falconer rebutted that, given the problematic relationship between Indigenous communities and the OPP, citing in particular example the shooting of Dudley George during a 1995 confrontation at Ipperwash, having the OPP come into the community during periods of exceptional trauma inherent in serious crimes adds yet another level of victimization of community members.
The plaintiff’s lawyer noted that the inclusion of the objectional Section 6 provisions is anathema to the Indigenous communities and, despite the take it or leave it ultimatum being put forward by the Crown, they feel so strongly about the principle involved that they are willing to go to the wall over the issues and face the closure of their services.
Rather than being new, these issues have long been contentious and repeated assurances that they will be dealt with over the past number of decades have gone unfulfilled. Despite clear instances where the terms of the FNIPP have been adjusted in the past, the Crown has maintained that the FNIPP is inviolate and cannot be changed.
During the Crown’s representations, Justice Gascon interjected a number of times to “adjust” the federal lawyers’ assertions.
In addition to the law firm of Falconer LLP, Associate Legal Counsel Julie McGregor attended the hearing as an intervenor on behalf of the Assembly of First Nations. Ms. McGregor invoked the “honour of the Crown” during the proceedings, a concept also cited by Mr. Falconer. Ms. McGregor relinquished part of her time before the hearing to facilitate Mr. Falconer’s rebuttal to the Crown’s defence.
Justice Gascon pointed out that he has a considerable amount of material and submissions to review in the case but added that he was cognizant of the urgency of the matter and that he would render a decision before the end of June.
In the meantime, all three police services vow to continue to serve and protect their communities—although Treaty Three have now exhausted their funds and issues their last paychecks and the other two services have lines of credit that will likely be exhausted by month’s end.
