Judge orders Ottawa to fund Ontario Indigenous police forces

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A judge has issued a temporary injunction telling the federal government to fund three Ontario First Nations police forces without delay – and without arbitrary funding conditions.

In a ruling released on Friday, Federal Court Justice Denis Gascon ended a contract-negotiation impasse by ordering funds to flow to First Nations police forces for the next year. His ruling criticizes Public Safety Minister Marco Mendicino and his ministry for being inflexible in their negotiations with the forces, and their administration of the First Nations and Inuit Policing Program.

The program provides government grants to First Nations forces through fixed-year funding deals. But a dispute over what kinds of police costs the policy will cover led to stalled negotiations this spring for new contracts between Public Safety Canada and three Ontario First Nations police forces.

Because the previous deals expired on March 31, the forces had been operating without government funding for the past three months. Groups representing dozens of reserves patrolled by the police forces declared states of emergency for fear that officers would be laid off this summer.

In May, the Indigenous Police Chiefs of Ontario, an umbrella group of Indigenous police leaders including the three in the dispute, launched an emergency legal action urging the court to order the government restore the funding.

“What is just and equitable in this case is to ensure that the self-administered Indigenous police services remain in place in the short term,” Justice Gascon said, telling the government that it “must continue to flow funds.”

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His ruling said the situation risked causing irreparable harm to First Nations. And he blamed Public Safety Canada officials for being overly rigid. The department “did not consistently follow its duty to act honorably and in the spirit of reconciliation as it kept insisting on the impossibility to negotiate.”

Justice Gascon’s ruling stresses that Ottawa officials must be flexible in their relations with First Nations. He said this means they cannot claim that they are powerless to alter terms and conditions that they themselves imposed on funding deals. The ministry and Mr. Mendicino, he said, “repeatedly state that they are ‘constrained’ by the Terms and Conditions but the reality is they can unilaterally modify them at the stroke of the pen as they see fit.”

The minister’s office did not respond immediately to a request for comment.

Police leaders involved in the dispute say they no longer fear they will have to lay off officers, as they expect their funding will now be restored. “It’s unfortunate that it took a Federal Court judge to order Canada to do what’s right,” said Police Chief Kai Liu of the Treaty Three Police Service in Northern Ontario.

The other two police forces affected by the dispute are the Anishinabek Police Services across Ontario and the UCCM Anishnaabe Police Service on Manitoulin Island. Together, the three police forces patrol places where more than 30,000 people live. “I’m very pleased for our 45 First Nations communities,” Chief Liu said.

Lawyer Julian Falconer, who represents all three police services, said 30 other First Nations police forces in Canada will likely take inspiration from this ruling when it comes time to renegotiate their own deals.

“I believe this is a groundbreaking judgment. But this is far from the end. I believe this is only the beginning,” he said.

Started in the 1990s, the federally led granting program splits the operational costs of police on First Nations between federal and provincial governments. The standard terms of these deals imposed by Ottawa have precluded the funds from being used to pay for specialized squads, legal counsel, or mortgage-related costs for buildings.

The three Ontario First Nations police services said over several months that they would not sign any new deals containing these restrictions. But Public Safety Canada did not budge until last weekend. That’s when Mr. Mendicino wrote the police forces to say that he would lift the restriction blocking funding for specialized policing squads.

Justice Gascon wrote in his ruling that none of the restrictions at issue need to be kept, and the minister’s 11th-hour intervention showed that he and his department had had the power to be more flexible throughout negotiations.

The emergency-funding injunction ordered by Justice Gascon will expire in one year. It does not remove the funding restrictions in place for other forces. Negotiations for new contracts for the Ontario forces are to continue.