Indigenous and Northern Affairs Committee on May 11th, 2021

[Rachel Blaney, NDP, North Island—Powell River, BC]

Thank you.

I think that's my time, Chair.

[The Chair, Liberal, Bob Bratina]

Thank you, Ms. Blaney.

Moving now to the five-minute round, we have Mr. Vidal, Mr. Battiste and so on.

Gary, you have five minutes. Go ahead.

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

Thank you, Mr. Chair.

I'm going to follow up a little bit on some of what Ms. Damoff said around the prosecutions. We've heard this threaded throughout the testimony. I want to start with Staff Sergeant How on this, because we've had some conversations about this in the past.

Last week we also heard from a number of department officials about some of the challenges around prosecution. As I listened to the testimony—and I think it was last Thursday, if I can keep my days straight—I immediately wrote down the words “jurisdictional quagmire”. That was my response to the testimony. I'm not pointing fingers at anybody. That's not my purpose.

Staff Sergeant How, in your policing both on and off reserve, can you share some of your experiences with the challenges and frustrations of that kind of enforcement, followed up by appropriate prosecution on or off reserve in these small northern Saskatchewan communities?

[S/Sgt Ryan How]

Yes. Thank you.

I think I can go back prior to 2014, when I was living even further north on a first nation, and we were able to enforce bylaws pursuant to the Indian Act. The first nation was very pleased with that. It was a dry reserve. We were able to do our best to keep alcohol off the first nation, which, of course, cuts down on serious offences afterwards.

After 2014, we weren't able to enforce the bylaws anymore, and that caused an immediate friction with all of the police, who were seen as the ones who suddenly stopped. It was perceived as our decision. For the poor junior member going out at three o'clock in the morning and being asked to enforce a band bylaw, they would take the heat, the flack and an earful for the decisions made far, far above them and take the community frustration of why they couldn't deal with that problem when the community wanted it dealt with.

In other posts I've had, the most common question was about how they could get to the point where the police could enforce it. My message to the first nation was that the RCMP is standing with you. We support you and we want this to happen; we just can't enforce it until there's prosecution.

We offer whatever support we can to make it happen and guidance within our wheelhouse, but it's certainly a point of frustration and friction, unfortunately, between the police, who are perceived as the face of it, and the communities.

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

Thank you for that.

I'm going to jump over to Mr. Wise to follow up on this.

From the legal perspective, can you help us understand the challenge and potentially offer a solution to this situation? What would be the solution, from a legal perspective, to get rid of the jurisdictional quagmire that I spoke of?

[Amichai Wise]

I'll start by echoing what a lot of my Department of Justice colleagues said on Thursday, which was that the problem is how to effectively enforce and prosecute band bylaws. Because your question goes a little bit more into the prosecution realm, I'm going to tiptoe around it a little bit and leave that to my PPSC colleagues. However, what I can say is that what goes into the operational discretion of RCMP members in enforcing band bylaws is important. Their mandate to preserve the peace and investigate crime is paramount.

When you get a bylaw, to the previous witness's statement that in 2014 there were issues, there was no mandatory review from Indigenous Services Canada at that point. What you had were bylaws that perhaps did not meet constitutional muster or had other problems, which led the RCMP, potentially as part of their decision-making, to decide whether to enforce it or not, and it became a larger issue there.

It's quite complicated, and that's an understatement. You've been hearing that for a couple of days now, but again, with the prosecution piece, the jurisdictional quagmire between the provincial attorneys general and the federal Attorney General exists. I'm no expert on that, but it definitely is a problem that requires a whole-of-government response.

[The Chair, Liberal, Bob Bratina]

Thank you. That brings us to time.

We go now to Mr. Battiste for five minutes.

[Jaime Battiste, Liberal, Sydney—Victoria, NS]

Thank you for this.

I've been listening as this conversation has evolved, and I haven't heard a lot of solutions. I heard a lot of people saying it's complicated and it takes a lot of different jurisdictions. I'm wondering, if there was an indigenous attorney general in Canada who not only looked at the constitutional realm but also at section 35 aboriginal and treaty rights as well as what goes on on reserve, would it not help the situation to have one authority or one voice to be able to make those decisions that need to be made in a timely and effective manner?

I'll open it up.

[The Chair, Liberal, Bob Bratina]

I like that.

[Amichai Wise]

Mr. Chair, is that directed to me, the Department of Justice?

[The Chair, Liberal, Bob Bratina]

It's to anybody. Go ahead.

[Amichai Wise]

That perhaps is a viable solution. I don't know much about that potential solution, but I do think that on Thursday, my colleague at the Aboriginal Law Centre at the Department of Justice pointed to a couple of possible solutions, such as a ramp-up of specific administration of justice agreements. That is something that could definitely help.

You've heard from PPSC during the current pandemic about the short-term solutions on prosecuting COVID-related bylaws. They are out there, but I think a lot of people, the minister and others, share frustration on this issue, which is why it's important to have a conversation like this.

That's all I can respond at this point. If you'd like me to follow up further, I'm happy to.

[Jaime Battiste, Liberal, Sydney—Victoria, NS]

I'm wondering, when you say the minister, which minister? It seems to fall under a number of ministerial portfolios. One of the problems here seems to be that we have the Minister of Justice and Attorney General, we have the Minister of Indigenous Services Canada, and we also have the Minister of Public Safety.

At the end of the day, I'm hearing a lot of discussion about how once a band makes a bylaw, there is also a discretion and national divisional policy that they have to look at. Where does the buck stop at the end of the day? Who is the person who can speed up this process to ensure that bands don't have to continue to be frustrated when the laws that they put in place to protect their community members aren't followed?

Mr. Wise, I'll let you go on that.

[Amichai Wise]

I don't think it's passing the buck when everyone has been saying it's a shared responsibility. I think that actually is true. I'm here to represent the Minister of Justice, personally. That's who I will be speaking for.

When you deal with police and the RCMP, as my colleagues at the RCMP can tell you, there is operational discretion even though they are under the Minister of Public Safety. There is always police operational discretion. That's always a factor, and it's one of the tenets of a free and democratic society that is an important principle to uphold.

That will always be a factor as well, but it is complicated. There are potential solutions, and they're being worked through across departments at this time.

[Jaime Battiste, Liberal, Sydney—Victoria, NS]

Can you talk to me about what the discretion is like? Give me a sense. Let's say I'm a band. I reach out to the police and say I want to put up a blockade because COVID has become serious in my community and certain people aren't following the blockades or the check stops and they're driving right by our safety people. What's the discretion the police would have in terms of saying that they're not going to follow the band bylaw?

[Amichai Wise]

I think that one would be best answered by the RCMP. I'd be happy to pass it to either one of my colleagues.

[Jaime Battiste, Liberal, Sydney—Victoria, NS]

Okay.

[Insp Jeff Preston]

That's an excellent question. In fact, that has happened here in my home detachment, where all three of the first nation communities have put up roadblocks to entering into the community.

Although there is no bylaw in place right now to say that these are enforceable, the RCMP has worked with each of the reserves to ensure that we will be there with them. If they run into issues with people trying to go past the blockade, and they have, we'll stand by and keep the peace and ensure that those laws are enforced.

Unfortunately, the issue is we have to stand by and keep the peace, which means we have to rely on the band representative to stand there and say, “You are not welcome on reserve” for whatever reason, and they are then the ones who are to tell people they have to leave. We will stand by. When I say "keep the peace", we'll be there to ensure that this individual isn't assaulted or threatened. If they are, or if it looks like they're about to be assaulted, then we'll step in, but we don't have the legal authority to stand there ourselves and say that someone can't come in and enforce this bylaw. We have to work with the community.

[The Chair, Liberal, Bob Bratina]

Thanks very much. We're way over time. It's a great question. Sorry, Mr. Battiste.

We'll go to Ms. Bérubé for two and a half minutes.

[Sylvie Bérubé, Bloc, Abitibi—Baie-James—Nunavik—Eeyou, QC]

Thank you, Mr. Chair.

My next question is for Mr. Preston.

Does the RCMP provide specific training to promote good relations with indigenous communities?

[Insp Jeff Preston]

I would have to pass on the training that's going on at Depot right now to our headquarters, because it's been 25 years since I've actually gone through it.

However, we do have online training here. I know that nationally, each officer must take a first nations online course. One thing I would love to see is to have members, when they do come to the community, meet with elders to learn the local customs and meet with chief and council so the new officers understand what problems do exist on reserve.

We do have an orientation package here at my detachment. We give all new members this package, and it has a history that was provided by each of the communities, so we do have something, but I think more could be done in that way.

Staff Sergeant How, I'm not sure what you have at your home detachment.

[S/Sgt Ryan How]

I agree with you about integrating new members from all over Canada into the unique communities they serve. We've written that into our annual performance plan, and I believe that's a provincial mandate this year.

It's so important that when they get to the community, as soon as they're on the ground, they understand and meet the local leaders and the community so that they understand who they're dealing with.

[Sylvie Bérubé, Bloc, Abitibi—Baie-James—Nunavik—Eeyou, QC]

Do you have any recommendations for improving the support you provide to indigenous communities?

[The Chair, Liberal, Bob Bratina]

Go ahead, Inspector.

[Insp Jeff Preston]

For example, in our communities with community tripartite agreements, it's having enough resources for them to go into the communities to have that positive interaction. For a lot of my frontline officers, the only opportunity they truly get to go on reserve is when they're responding to a call, and when people are in crisis is not the time to build a relationship,.

It's having our CTA first nation members go on ahead of time, such as my officer here. I have one officer for three reserves, though, so unfortunately his time is very limited on each reserve. When he can get on reserve, it's important that he have the opportunity to make those positive interactions, especially with the youth.

For example, my officer here just last week went and worked with a grade 5 class and produced 30 carving paddles to work on with the kids so they have a positive interaction with police, as opposed to the only interaction being when the officers come to arrest someone.