Indigenous and Northern Affairs Committee on May 11th, 2021

[The Chair, Liberal, Bob Bratina]

I call this meeting to order.

I am acknowledging first of all that in Ottawa we meet on the traditional unceded territory of the Algonquin people. Here in Hamilton East—Stoney Creek we have the territorial lands of the Anishinabe, Haudenosaunee and Chonnonton nations.

Pursuant to Standing Order 108(2) and the motion adopted on April 29, 2021, the committee is continuing its study of enforcement on first nations reserves.

To ensure an orderly meeting, I remind our guests that participants may speak and listen in the official language of their choice. On the globe in the bottom centre of your screen, you can select “Floor”, “English” or “French”. Whichever one you select, if you change from one language to another as you're presenting, there's no need to change the technology. You can simply switch languages. When speaking, ensure your video is turned on, and please speak slowly and clearly. When you are not speaking, your microphone should be on mute.

Pursuant to the motion adopted on March 9, 2021, I must inform the committee that all witnesses have completed a technical pretest.

With us today for the first hour by video conference, we have the following witnesses: From the RCMP, we have Staff Sergeant Ryan How, detachment commander, Meadow Lake, Saskatchewan; Inspector Jeff Preston, officer in charge, Campbell River, British Columbia; Inspector Dustin Rusk, officer in charge, indigenous relations services; and hopefully soon we'll have Amichai Wise, the counsel from legal services.

Than you all for appearing with us today.

Inspector Preston, do you have your opening remarks in front of you?

[Inspector Jeff Preston, Officer in Charge, Campbell River, British Columbia, Royal Canadian Mounted Police]

Yes, sir.

[The Chair, Liberal, Bob Bratina]

Go ahead for six minutes.

[Insp Jeff Preston]

Good morning, everyone. Thank you for having us today.

My name is Jeff Preston. I'm the officer in charge of the Campbell River detachment on Vancouver Island, British Columbia. I'm speaking on behalf of Inspector Dustin Rusk from RCMP indigenous relations services. He's having technical difficulties, so I'm going to read his opening remarks on his behalf.

I'd like to start off by recognizing that I am speaking from the traditional territories of We Wai Kai, Wei Wai Kum and Homalco first nations here on beautiful Vancouver Island.

The RCMP has an important role, along with other government and non-governmental agencies, to support the enhanced safety and well-being of indigenous communities. It is one of the RCMP's strategic priorities.

It is important for all frontline enforcement service providers, including the police, to be kept abreast of any legislative developments involving aspects of indigenous legal matters that are pertinent to law enforcement activities for indigenous communities. The RCMP and other policing service providers work in partnership with the ministries responsible for the safety and well-being of indigenous communities. The RCMP supports the need for enforcement on first nation reserves in relation to COVID-19 measures to control the spread of the disease and will continue to engage with the leaders of indigenous communities where the RCMP is the police service of jurisdiction.

At the onset of the pandemic, the importance of enforcing band-created bylaws related to COVID-19 became acute. The RCMP's response was to work with indigenous communities, the Public Prosecution Service of Canada—known as PPSC—and other partners to find ways that were lawful and respectful. Under sections 81 and 85 of the Indian Act, first nation communities may establish band bylaws relevant to the COVID-19 pandemic. Of particular relevance, section 81(1)(a) states that a band bylaw may be passed “to provide for the health of residents on the reserve and to prevent the spreading of contagious and infectious diseases”.

When investigation is warranted, the RCMP will carry it out and determine if there are reasonable grounds to lay a charge under a band bylaw. Generally speaking, band bylaws are treated as federal laws that are enforceable by the RCMP, the police of jurisdiction or the band bylaw enforcement officers. A contravention of the band bylaw is a summary conviction offence. The offence and circumstances will determine the appropriate form of release, appearance notice, undertaking or summons.

RCMP personnel continue to exercise judgment and operational discretion to enforce the COVID-19-related band bylaws, in accordance with relevant statutory and constitutional law as well as national and divisional policies. If there are any questions or concerns about whether charges are warranted or supported, RCMP personnel may consult the regional PPSC office for a Crown opinion.

With respect to COVID-19-related band bylaws, first nation communities may elect to consider entering into a prosecution and enforcement protocol agreement with the PPSC regional office and local law enforcement, often the RCMP, for the enforcement of a specific bylaw that relies on section 81 and/or subsection 85(1) of the Indian Act as a legal authority. There are several published examples of this protocol approach currently in effect in which the RCMP as well as other police agencies were involved.

A key example of this emanates from Duncan, British Columbia, where a protocol with the Cowichan Tribes was signed into effect in January 2021.This protocol sets out a procedure for the investigation by the RCMP and prosecution by the PPSC of offences set out in bylaws adopted by Cowichan Tribes and specifically enforced to address the COVID-19 pandemic through the bylaws. A significant aspect of this protocol is the option to consider restorative justice. Before submitting a report to the Crown for charge approval, the RCMP will consider whether the matter is appropriate for diversion to the Cowichan Tribes restorative justice program.

As indigenous communities continue to deal with the pandemic and to protect their members, the RCMP will continue to work with these communities in a collaborative manner and to prioritize their safety.

Thank you for having us today. We look forward to your questions.

[The Chair, Liberal, Bob Bratina]

Inspector, thank you very much for that presentation.

We will now go on to a round of questioning. We'll have six-minute rounds, starting with Mr. Vidal.

Gary, please go ahead.

[Gary Vidal, Conservative, Desnethé—Missinippi—Churchill River, SK]

Thank you, Chair.

Thank you to our witnesses from the RCMP today. We appreciate your taking the time to join us so that we can learn from your experience and your knowledge as we consider the study on enforcement in first nations communities. We look forward to the advice you can offer to us as we develop a report and bring recommendations forward to the House of Commons.

I'm going to focus my questions on Staff Sergeant How this morning, because we have some history and relationship.

Staff Sergeant How, I think you have a unique opportunity to offer advice to us. If I'm not mistaken—and please correct me if I'm wrong—you grew up in a northern community that had many first nations surrounding it. Your entire time in the force has been in serving northern Saskatchewan communities, where you have shared borders between a town and first nations and a village and first nations. I think the detachment you command now serves a small city, a rural municipality, a couple of first nations and a Métis community as well.

With that unique experience and that kind of perspective, what lessons could you share with the members of this committee on the things you have learned about successful enforcement in first nations communities that have relationships with neighbouring communities?

[Staff Sergeant Ryan How, Detachment Commander, Meadow Lake, Saskatchewan, Royal Canadian Mounted Police]

Thank you for the question.

Good morning, Mr. Chair, and good morning, everybody.

That's correct. I grew up in northern Saskatchewan. I have been fortunate enough to be posted here for my entire service.

Many of the communities I have worked in have first nations communities literally separated by a hedgerow from non-first nations communities. One thing I have learned in dealing with the leadership on those first nations communities is that they feel the inequity, that they aren't in control of some of the laws and in requesting enforcement that the non-first nations communities are able to enact under their own bylaws.

In my current situation, I am managing a municipal policing contract for a city, a provincial contract for the regional municipality, two CTAs and a Métis community. They're very unique communities with unique demands, all in a very small geographic area.

Even our two first nations—Waterhen and Flying Dust—though they are only 60 kilometres apart, are very different communities. The ability for them to tailor laws and enact their own bylaws causes some frustration for them, being unique communities. Flying Dust is, again, right next to Meadow Lake, which is the city we police. They are essentially one community, but there are very different policing aspects, and very different approaches are needed from our young members when they are responding to calls in the different communities.

If that answers your question, I will leave it there.

[Gary Vidal, Conservative, Desnethé—Missinippi—Churchill River, SK]

Thank you.

Can I maybe get you to expand on the lessons you've learned that have allowed you to be successful in that relationship?

In my preamble, I never expressed the one comment I was going to make. I'm not sure I ever shared this with you, Staff Sergeant. When you were transferred out of one of those communities, the chief of that neighbouring first nation reached out to me and expressed his disappointment at losing your leadership in that community.

I don't do this to stroke your ego; that's not my point. You obviously learned some things in that you were successful in building relationships with those communities. I would be interested in hearing some more about what works and what the positive things are that you have learned that work in the first nations policing.

[S/Sgt Ryan How]

Sure.

I will go back to some experiences I have had on the negative.

Some of the first nations leaders and all the community leaders have told me that for quite a few years, they felt the RCMP told them what their policing needs were. Reverse that and approach the community leaders and have them tell us what their needs are, because the community knows best.

I think the biggest lesson I take from that is to approach policing in any community with humility and open communication. Listen to what the community wants. What we may feel as a detachment is a policing priority may not be recognized as what the community wants. Unless there's that communication, we're not understanding, and then there's a complete disconnect. As hard as the RCMP may be working to achieve goals that they feel are important for the community, they may be missing the mark on what the community wants.

Humility and communication were the two lessons I've taken away from all the communities I've worked in.

[Gary Vidal, Conservative, Desnethé—Missinippi—Churchill River, SK]

Thank you.

I'm going to switch over for just a minute to Inspector Preston and ask him basically the same question.

Inspector Preston, could you respond with your experience of what works in policing in the first nations community and maybe add to what Staff Sergeant How shared with us?

[Insp Jeff Preston]

Not to copy Staff Sergeant How, but I too find the best way to make a positive difference in any of the first nation communities that I've worked in—which have been many—is having open, honest communication with the officials and the public at large, listening to what they want and what they need; and then working with them to try to accomplish that.

A lot of the aspects of policing become legal and are hard to understand, so if you work together so that everyone has a common understanding of what needs to happen in order to get to the desired goal, it's the best way to move forward.

[The Chair, Liberal, Bob Bratina]

That's just about time, Gary. Thank you.

Ms. Damoff, please go ahead. You have six minutes.

[Pam Damoff, Liberal, Oakville North—Burlington, ON]

Thanks, Chair.

Thanks to our witnesses for being here today.

Outside of Ontario and Quebec, the RCMP are contracted by provincial and sometimes municipal governments. There is often confusion from Canadians who think that the federal government is actually directing the RCMP when they're in first nations communities outside Ontario and Quebec.

I know there's a tripartite table that is established, but in terms of where the RCMP is receiving their direction in provincial jurisdictions—we've got Saskatchewan and British Columbia here, but regardless of the province—could you explain that to us a little bit?

[Insp Jeff Preston]

I don't mind taking this question, Staff Sergeant How.

Within any of the contract provinces—so essentially outside of Ontario and Quebec—the policing is a responsibility of the provincial government. With regard to policing on reserve, again it is a provincial responsibility, but the RCMP obviously has to uphold all statutes and regulations that apply to that province. Every year we do approach the first nation communities and ask them to sign a letter of expectation as to what they would like the main priorities to be for that coming year. We also will meet throughout the year to determine if those priorities are being met, and if not, how we can better approach things.

From year to year, sometimes those expectations do not change. A lot of times it's to deal with drug dealers on reserve or people coming onto the reserve to sell drugs or alcohol—

[Pam Damoff, Liberal, Oakville North—Burlington, ON]

Can I stop you there for a second, though? You're contracted by the province, so it's not like the federal government is providing direction to you directly. It's the provincial government that has contracted you.

I want to go back to the drug dealer you just mentioned. You said the RCMP can enforce bylaws on reserve, right?

[Insp Jeff Preston]

We can enforce certain bylaws, yes. This is part of the problem, because some are—

[Pam Damoff, Liberal, Oakville North—Burlington, ON]

If there's a drug dealer on a reserve and the reserve wants to lay charges. who do they call, and what's the process? We know it's not just during COVID. This has been an ongoing issue. Could you go through the process for that, and where the barriers are?

[Insp Jeff Preston]

With regard to, for example, drug dealing, that is a Criminal Code or Controlled Drugs and Substances Act offence, so that's a federal statute. It's fairly easy; you call the RCMP or police of jurisdiction for that area, and then we would do our investigation.

The issue becomes whether we're successful in gathering enough evidence to support a charge under the CDSA or Criminal Code. A lot of times the first nation communities would like to get that individual off reserve. Then we have to start dealing with band bylaws, which may or may not even exist, and if they do exist, there's the issue of whether or not they are enforceable by the RCMP.

[Pam Damoff, Liberal, Oakville North—Burlington, ON]

Even when you have enough evidence to lay a charge, we heard from the Public Prosecution Service of Canada that there's a bit of a disconnect in terms of the prosecutions and that some communities have had to hire private prosecutors. Are you saying that if you're able to get enough evidence, it will always result in a prosecution?

[Insp Jeff Preston]

I think it's very important to differentiate between a criminal matter and a bylaw matter.

In a criminal matter, here in British Columbia at least—I know it's different in some contract provinces—if we have enough evidence, we will forward all the information to the prosecutor, who will determine whether or not a charge is approved. That's for offences under the Criminal Code or the CDSA, which are federal statutes.

The disconnect is that in most cases brought under bylaws, the Public Prosecution Service of Canada will not prosecute. They will have the individual band hire lawyers to act as the prosecutor. It becomes very expensive. You can well imagine that for some communities of 100 or so individuals, it's unattainable, because the costs are prohibitive.

[Pam Damoff, Liberal, Oakville North—Burlington, ON]

Do you have any recommendations on how we could make it easier for these communities to enforce their bylaws?

[Insp Jeff Preston]

I look at it as a wheel. There are spokes. Some of those spokes are the enforcement folks like me. Other spokes on that wheel are Public Prosecution Service of Canada, and a spoke is obviously the first nations community itself, which would want to enact that law. If all those spokes aren't working together, the wheel is going to be flat and it's not going to work. It's not going to roll.

We need to have a system in place such that it's not cost prohibitive for first nations communities to have their bylaws enacted and enforced, “enforced” meaning the prosecution of it. The RCMP, if properly funded and staffed, could have the ability to enforce those laws, but that's only one thing. Enforcement—

[Pam Damoff, Liberal, Oakville North—Burlington, ON]

I only have 30 seconds left.

In Ontario right now, there are conversations to try to come up with a solution. Do you think it would be helpful across Canada to bring all these parties to the table to ask how to resolve all these issues?

[Insp Jeff Preston]

Any time we can get all the partners at one table talking is definitely a positive step.

[Pam Damoff, Liberal, Oakville North—Burlington, ON]

Okay, thank you.

Thank you, Chair.