Ottawa faces multiple legal challenges on First Nations policing

A number of Indigenous communities are mounting legal challenges against the federal government. They argue the quality of policing services provided to their communities falls below standard and lack of support restricts officers from doing their jobs properly, CBC News has learned.

Some reserves dealing with expired bulletproof vests, lapsed training

The federal government pays about half the cost of policing for close to 400 First Nations and Inuit communities across Canada. The First Nations Policing Program, which started in 1991, covers the cost of about 1,250 officers, who serve more than 338,000 people. (Troy Fleece/Canadian Press)

A number of Indigenous communities are mounting legal challenges against the federal government, arguing the quality of policing services provided to their communities falls below standard, and lack of support restricts officers from doing their jobs properly, CBC News has learned.

While general dissatisfaction with the First Nations Policing Program has been well-documented, a briefing note prepared for Minister of Public Safety Ralph Goodale shows communities in northern Ontario, Quebec and Saskatchewan are taking various legal routes to get better funding.

"Current active litigation, with respect to self-administered police service agreements, focuses predominantly on discrepancies between policing provided to Indigenous communities compared to that provided to non-Indigenous communities," reads the memo obtained under the Access to Information Act.

It also notes some services are dealing with "bullet proof vests beyond expiry date" and lapsed "core training," including firearm education.

The federal government ​pays about half the cost of policing for close to 400 First Nations and Inuit communities across Canada. In some cases, communities manage policing services themselves according to provincial policing legislation. In other cases, the RCMP provides dedicated policing services to a First Nation or Inuit community.

"I think that this issue, the gap in services for Indigenous people versus other Canadians, is probably the most important equality issue in Canada right now," said Kent Elson, counsel for the Mushkegowuk Council, which has a case in front of the Canadian Human Rights Tribunal.

Kent Elson, lawyer for the Mushkegowuk Council, said six officers share this home on Kashechewan First Nation. He said officers spray painted the hearts to cover offensive obscenities. (Kent Elson)

The council represents seven First Nation communities covering a swath of land in northern Ontario.

Their case dates back to 2006, when two men being held for intoxication burned to death at a police detachment on Kashechewan First Nation, a community so far north it's only linked by a seasonal ice road.

"That scarred the community," said Elson. "You would have seen members of the community around the police station as it burned down, hearing two young men screaming for help, and they just couldn't get through the walls in time, and so the two young men died."

A 2009 inquest called for more federal and provincial funding to improve First Nations police facilities and officer training, but Elson said resources still lag behind.

'A quality of life issue for First Nations people'

"Chiefs of communities will get knocks on the door in the middle of the night because there may not be a police officer available, and they will need to attend to a violent situation or a tragic situation," said Elson.

It can also mean that police officers respond to calls alone, he said, "which would never happen in the south, because that's dangerous. Particularly if it's a gun call.

"So it's a safety issue and it's also a quality of life issue for First Nations people."

One issue the Mushkegowuk Council case has been focusing on is housing. Elson said the Ontario Provincial Police provide family homes to officers in Moosonee near James Bay. But in Kashechewan there is a "slum-like rooming house for the officers. It's night and day, and it's not equal. It's completely inequitable," he said.

Minister of Public Safety and Emergency Preparedness Ralph Goodale has said Ottawa's First Nations Policing Program is out of date and needs reform. (Michelle Siu/Canadian Press)

Goodale's office wouldn't comment on this story, saying the case is before the courts.

But the minister has previously said Ottawa's First Nations Policing Program — in place since the early 1990s — is out of date and needs reform.

The current agreements under the First Nations Policing Program are set to expire on March 31, 2018.

"Public Safety Canada remains committed to a flexible, transparent process that will allow for a meaningful dialogue with Indigenous communities on policing agreements," said spokesperson Scott Bardsley. "Federal funding for policing services in FNPP communities will continue and there will be no break in policing services."

"Budget 2017 proposed … investment of $102 million over five years towards policing in Indigenous communities," he said. That investment will start in 2018 while the government examines ways to improve the program.

A report by Public Safety Canada that details persistent problems with the program,which was posted online late last year, recommends that the federal government establish a new model of long-term, stable funding.

Remoteness eating into budgets

Elson is hopeful the Liberal government will resolve the issue before the tribunal case goes to a hearing next year.

"The case is at a bit of a fork in the road. This case could transition into co-operative problem solving on policing issues or the litigation could just grind on," he said.

We're the psychologists, we're the marriage counsellors , we are the undertakers, we are the paramedics. You name it, we do it.- Billy Moffat

Billy Moffat, director of the Naskapi Police Force, isn't as optimistic.

"It's always a political game," he said of the ongoing negotiations.  "We're always caught in a ping pong game in the First Nation community."

The Innu word Naskapi is said to mean "people beyond the horizon,"and it's not far off.

The Naskapi Nation of Kawawachikamach is located in northeastern Quebec, near the Labrador border, and is linked to the nearest town, Schefferville, by a gravel road.

Moffat said it can cost between $5,000 to $6,000 to fly a suspect from Schefferville to a justice of the peace in the small city of Sept-Îles, a distance of about 500 kilometres, so he now only flies out people accused of indictable offences like sexual assault.

The force has enough money for four officers to police about 1,000 people, said Moffat, but the band council funds the salary for three more. The predominant language in the community is Naskapi, resulting in communication problems.

Lawyer Kent Elson said OPP officers in Moosonee, Ont., are offered single-family dwellings, whereas officers in Kashechewan First Nation share "a slum-like rooming house." (Kent Elson)

"We're the psychologists, we're the marriage counsellors, we are the undertakers, we are the paramedics. You name it, we do it," he said.

With more money, Moffat would give his officers more training in areas like administering breathalyzers, noting that Indigenous officers must enforce the same Criminal Code and the same Motor Vehicle Act as officers in the south, and must also "deal with the alcohol, deal with the drug problems and … deal with the suicides."

Besides the Mushkegowuk Council and Naskapi Nation cases, the Mashteuiatsh First Nation, also in Quebec, has filed both a Canadian Human Rights Commission and Superior Court of Quebec claim while the Beardy's and Okemasis First Nation in Saskatchewan has ongoing litigation alleging the RCMP has failed to fulfil its obligations.

This isn't the first time the policing program has come under scrutiny. In 2014, Canada's auditor general visited 16 First Nations communities and found the policing program was not working as intended.

The resulting report noted that in Ontario, the program was not ensuring that policing services on First Nations reserves met standards set in the rest of the province.

About the Author

Catharine Tunney is a reporter with CBC's Parliamentary bureau in Ottawa. She previously worked at CBC in Nova Scotia. She can be reached at catharine.tunney@cbc.ca or @cattunneyCBC.