3 northern Ontario Indigenous police services await federal judge's ruling on funding stalemate

A federal judge has reserved a decision on an injunction over funding being sought by three northern Ontario Indigenous police services, who say if the ruling isn't in their favour, they'll be forced to shut down.

Treaty Three, United Chiefs and Councils of Manitoulin Anishnaabe and Anishinabek police say they aren't funded well enough to be able to provide the same quality or range of police services as other municipal services.

The three Indigenous forces cover 45 First Nations surrounding the coast of Lake Huron from Kettle Point to Fort William. They also include Manitoulin Island. They have been without a contract since March 31 and want a judge to order the government to lift three conditions included in the funding framework called the First Nations and Inuit Policing Program (FNIPP), established in 1996.

Their lawyer, Julian Falconer, says the terms include a prohibition on Indigenous police services having specialised units to investigate serious crime; a prohibition from spending money on legal representation that could help them review funding agreements; and a prohibition on obtaining financing to purchase their own buildings and facilities.

Falconer says these terms are enshrined in the FNIPP, but these three Indigenous police chiefs are no longer willing to accept them because they are demoralising and discriminatory.

He described the three police chiefs' refusal to sign as a matter of conscience.

"You are not going to buy our dignity," said Falconer.

The lawyer read from an affidavit provided by Kai Liu, the chief of Treaty Three Police, to illustrate the inadequacy of funding under the FNIPP.

"If I was to describe policing as a vehicle, the Ottawa police, which I spent 22 years with, would be a Ford SUV," Liu said in the 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." 

In contrast, Liu said Treaty Three was 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."

Other First Nations are watching closely as their police contracts near expiration.

Falconer noted that Brian Perrault, the Chief of Couchiching First Nation, said during a May 24 spring assembly that Canada is again asking them to administer their own misery.

"They will not administer their own misery any longer," said Falconer.

Response from government lawyers

Two lawyers for Public Safety Canada rejected the argument that the services are being discriminated against.

Sean Steynes said a funding extension was offered to Treaty Three, albeit without lifting the conditions.

He said Treaty Three was offered increased funding and suggested policing could continue while lawyers argue about the merits of the terms of the funding formula before the Canadian Human Rights Tribunal.

Steynes said Treaty Three was given funding for 88 officers in its 2023 budget.

He said the total amount of the budget was $21 million — almost $17 million went to salaries for officers and civilian staff. He said a new offer of $25.5 million would allow for the hiring of 105 officers, rising to 109 by 2025.

Steynes also said Public Safety Canada showed a willingness to send representatives to a location nearer to the community for negotiations to mitigate the expense of not allowing them access to legal advice and having to travel for contract talks.

Another lawyer, Michael Roach, addressed the issue of why Indigenous services are not allowed to spend money on specialized units to investigate serious crimes such as murder, drug trafficking and sexual assaults.

He says it's simply that the Ontario Provincial Police (OPP) could be called in to help, noting a successful joint forces operation into drug trafficking on Manitoulin Island involving First Nations police and OPP working together.

Overall, he said the three terms were in place to make sure the vast proportion of the Indigenous police budgets would be spent on salaries for front line police officers and civilian staff.

Falconer said the suggestion that Indigenous people aren't entitled to legal representation in respect to funding agreements worth tens of millions of dollars and aren't entitled to have standard police units is indefensible.

"That indigenous services can't be trust to manage financing alone, these are indefensible prohibitions," he said. 

Falconer noted the fraught relationship between the OPP and Indigenous people, considering the OPP shooting of Indigenous protester Dudley George at Ipperwash in 1995, which led to the formation of culturally appropriate Indigenous police services.

Funding issue before Canadian Human Rights Tribunal

Also at issue and discussed by both sides was the application of a ruling by the Canadian Human Rights Tribunal (CHRT) last year.

The CHRT upheld a complaint from a small Quebec police service on the Pekuakamiulnuatsh First Nation that it was discriminated against because it received inadequate funding.

Public Safety Canada lawyers said they were appealing that ruling. They said the issue it discussed was overly broad and not applicable to the specific conditions being argued in the more recent court proceeding.

Falconer said inadequate funding was the very basis of the complaints of the three Indigenous services.

"What you also heard in [Public Safety Canada's] submissions is a very artful dance around justifying these prohibitions," said Falconer. "I did not hear one single explanation of any cogent value as to why these prohibitions are necessary."

Justice Denis Gascon says he will take about two weeks to consider the case and whether to issue an injunction to suspend the conditions and order emergency funding.

The three police services say that's all the time they have before they'll run out of money entirely and have to shut down.