Indigenous and Northern Affairs Committee on May 13th, 2021

[Julian Falconer]

Thank you for the very insightful question.

I would say that all of those recommendations are essential. We need to respect and recognize the reality of women and girls and indigenous victims honestly, in general, and that their being treated as less than worthy victims is part of the reality of colonialism and racism. The truth of the matter is, there is a long journey ahead of us.

Let me be a practical lawyer for a minute. You have a policy that says the following.... This is the 1996 policy, which you can't find on Public Safety's website. You can't find it in any of their literature. I'm told and I know it's still in force, but it has disappeared. This is what the policy says. It says—

[The Chair, Liberal, Bob Bratina]

I'm sorry. Where did you find it, Mr. Falconer?

[Julian Falconer]

I found it buried in the 2014 Auditor General's report. It was very interesting. Here's the quote from the Auditor General's report in 2014. For the record, this is chapter 5, section 5.28 of the report:

According to Public Safety Canada, the principles of the 1996 First Nations Policing Policy are outdated and impractical, and the First Nations Policing Program has evolved since these principles were endorsed. The Department plans to update the principles of the Policy and incorporate them in the Program’s terms and conditions.

This calls black white, and calls white black, because the terms and conditions are not in any way an evolution. They actually are a means by which they keep first nations down. Let me read to you from the 1996 policy:

First Nations communities should have access to policing services which are responsive to their particular needs and which are equal in quality and level of service to policing services found in communities with similar conditions in the region. First Nations should have input in determining the level and quality of the police services they are provided.

MP Zann, I appreciate your question, but I would say, yes, I want to see all of that happen, but you actually have an existing policy that they're hiding and they replaced it with the terms and conditions.

The most disturbing.... On March 11, Grand Chief Fiddler, the grand chief of Nishnawbe Aski Nation, and Chair Metatawabin, the chair of NAPS, wrote a letter to Minister Blair, a letter that has yet to be acknowledged—a letter dated March 11, two months ago—citing the phantom policy, asking what happened to it, and then citing the terms and conditions.

This is the last part I need you to know about these terms and conditions. They prohibit first nations from accessing legal counsel to interpret their funding agreements, to give them legal advice in respect of disputes around the funding agreements, or to get legal advice around negotiating their funding agreements. That is reminiscent of the Indian Act prohibition on accessing lawyers, and all of that is in a letter of March 11 to the minister. All of that is in the terms and conditions. None of it is consistent with the existing policy, but they buried the policy.

It's a shell game. I'm sorry to sound so dramatic. I call it the phantom policy. What they did, I'm assuming, is they realized they couldn't afford to do what the policy provides, so they made it disappear.

I ask you as a committee, to find the phantom policy and make them adhere to their own policy today. Yes, we should do all the things we're talking about, but, my God, you have what you need.

I'm sorry for the speech.

[Lenore Zann, Liberal, Cumberland—Colchester, NS]

No, thank you very much. It was very informative.

Does this older policy also mention two-spirit, lesbian, gay, bisexual, transgender, queer, questioning, intersex and asexual people and how we can help protect them or how they can be protected?

[Julian Falconer]

No, but here's the “but”. It specifically mentions legislated services at the same level of equity as the rest of the country. If you take that requirement for equity and transpose it to 2021, presto: The very issues you identify could be done. I'm not saying it's the answer; I'm saying telling the truth is to tell police leadership....

By the way, AFN just had a conference on policing. Everybody knows that. However, the phantom policy wasn't mentioned once, because nobody knows about it. It's a trick. I'm sorry to sound so dramatic, but it's really quite extraordinary.

You're quite right that there are many things missing. As a human rights lawyer, what you're saying is music to my ears.

[Lenore Zann, Liberal, Cumberland—Colchester, NS]

Yes, and times have progressed, haven't they?

[Julian Falconer]

That's right. Yes, they have.

[Lenore Zann, Liberal, Cumberland—Colchester, NS]

We need to deal with systemic racism, poverty and the intergenerational abuses. We need to put a stop to this to try to make equality right across the board.

[Julian Falconer]

That's fantastic.

[The Chair, Liberal, Bob Bratina]

Lenore, I apologize for my intervention, but I felt it was helpful for the analysts to be able to access that—

[Lenore Zann, Liberal, Cumberland—Colchester, NS]

I appreciate it.

[Julian Falconer]

Our materials include the policy. We are sending you, Mr. Chair, a full package. Attached to the letter to Minister Blair is the policy and the terms and conditions. We've attached a full package for the committee's consideration and all at Chief Morrison's instruction. I want to say he's quite a chief of police.

[Lenore Zann, Liberal, Cumberland—Colchester, NS]

We will make sure it gets there. Thank you so much.

I'm sure my time is up.

[The Chair, Liberal, Bob Bratina]

Yes. Thanks, Ms. Zann.

Go ahead, Madam Bérubé, for six minutes.

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

Thank you, Mr. Chair.

I represent the territory of the Anishinaabe Crees of northern Quebec, Abitibi—Baie-James—Nunavik—Eeyou.

My question is for the chief of police.

We were just talking about systemic racism in policing, which leads to a lot of distrust of law enforcement, and the over-representation of indigenous inmates.

How do you build trust within your communities?

[Chief Roland Morrison]

Thank you very much for the question.

To give some context, my kokoom and mooshum, I would call them, my grandmother and grandfather, are originally from northern Quebec, the Cree nation, the Eeyou Eenou, so I'm very familiar with what's happening up there.

Certainly what's happening in those communities with respect to incarceration is occurring in our communities as well. When I mentioned earlier only enforcing the Criminal Code in our communities, in NAN communities, in NAPS, Nishnawbe Aski Police Service communities, we are charging people under the Criminal Code because that is the only law in many of our communities.

So what are we doing? We're just exacerbating the problem by putting people into jail. Indigenous culture has been here for thousands of years. We were a functioning society. We had laws, traditions, values and customs, and we need to get back to that, because the colonial system that we were using for law and order is not working.

That's why when we look at the first nations policing program, we need to be creative in how we're going to look at protecting indigenous people, their culture, their traditions, their values and their customs. We have to look at meeting those needs, because the current system is not working. Until we can look at alternative measures and get appropriate measures for indigenous people, we are always going to see overrepresentation of indigenous people in our corrections system, not only for our adults, but for our youth. It's going to keep happening until we can look at providing a system that fits the indigenous peoples across Canada.

As I mentioned earlier, a lot of communities are implementing their own systems. Is that working? I couldn't tell you. We'd have to find out from those communities whether or not it is. I can't speak to any alternative measures that are happening other than that cases are diverted at the criminal court. But they are still criminal cases, so people are getting criminal records for something that could be diverted. However, because it's the only system in place, many people are ending up with criminal records and that will hinder them in their own development. If they want to leave their communities to further themselves, that is going to be a hindrance to them. Yes, we have a pardon process, but we're still going to be creating people with criminal records.

[The Chair, Liberal, Bob Bratina]

Ms. Bérubé, you have two minutes left.

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

You still have a great organization.

Have you had difficulty recruiting police officers during the pandemic?

[Chief Roland Morrison]

Fortunately, we have been creative in how we recruit. We have gone into other parts of Canada. Actually, we've been to Manitoba to do a lot of recruiting.

Prior to COVID our human resources department always travelled to these colleges and universities to attract people. They have remembered the Nishnawbe Aski Police Service because we are a large service. We offer a very unique schedule of going in for two weeks and coming out for two weeks. We offer a good quality of work and home life, which is attractive to people. We offer competitive salaries that are comparable to those for the OPP and benefits as well, so we do get people who come to us.

However, because we are only a program, we are a revolving door. We get officers for a short period of time, and then they go on to larger police services with sustained funding. For example, my badge number is 1059 and our badge numbers are now in the 1700s. That's in the 24 years I've been with NAPS.

[The Chair, Liberal, Bob Bratina]

Thanks, Chief, and thanks, Madam Bérubé.

Next is Ms. Blaney for six minutes.

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

I want to thank everyone for their testimony today.

I would come to you first, Mr. Falconer. Thank you for what you've shared today. I think it's incredibly important, but I'm just trying to clarify. I think you said there's a tripartite agreement, and I'm just wondering, if that's the case, whether you can tell us what the process was for negotiating that, how long it took and who was involved.

I can't help it. I'm going to come back to you, Chief Morrison. I'm just feeling hit by that reality, and I heard it earlier today about having a service if you are non-indigenous, and having a program if you are indigenous. That is just resonating in my brain.

Perhaps I can start with you, Mr. Falconer, and I'll come back to you, Chief Morrison.

[Julian Falconer]

The funding agreements operate under this umbrella of the FNPP, keeping in mind it's a program that was initiated pursuant to that policy in the 1990s that I referred to. In order to administer that policy, each first nation either does it in the so-called stand-alones—they're pure indigenous police services, and in Ontario there are nine—or through a shared arrangement. It could be with the OPP in Ontario, or it could be with the RCMP elsewhere in the country.

I don't mean to do a lecture—and thank you for the question, MP Blaney. I do want to emphasize the Ontario case is special. It's special because we successfully, over a period of years, negotiated amendments to the Police Services Act that are about to come into force in January. They permit the exercise of a legislative option by first nations to become a legislated police service in Ontario. This is very important because it does away with the discussions about “being an essential service”, and all that stuff. In Ontario, a first nation can apply and, if constituted, can actually become just like other police services, so that's important.

Getting back to MP Blaney's question, really it's been consistent with all other vestiges of colonialism, which is, whereas for the rest of Canada, health is legislatively protected, whereas for the rest of Canada, education is legislatively protected, when it comes to first nations, when it comes to indigenous people across the country, of course, these are all done by programs. Policing was no exception. The history has been that they show up with a cheque to indigenous people, and they say, “This is your allotment under the funding agreement for this round.” That was historically called a negotiation. It was nonsense. They simply said, “This is what's there. Take it or leave it.”

So, indigenous services struggled along.

Along came, frankly, Grand Chief Yesno and then Grand Chief Fiddler of Nishnawbe Aski Nation, along with Chief Terry Armstrong, the predecessor to Roland Morrison, and then Chief Morrison. They said to Ontario and Canada, “Do you know what? If you don't, one, give us a process for creating a legislated service”—and that's that option I talked about—“and, two, sign these terms of reference that will actually determine how we negotiate in good faith, we're not doing it anymore. We're going to give you back the vehicle that has no brakes and you drive it.”

Because of what Chief Morrison does, which is police so many remote communities, no surprise, they ran the numbers and found out it would cost them a zillion dollars to police these communities. So, all of a sudden, NAN and NAPS enjoyed a leverage, and used it in the negotiations. Now, funding agreement negotiations for NAPS, I'm told, and I've been a negotiator for them—with them—for two or three rounds now, look different than they used to.

What I need to communicate to everybody is that that is not the case for the smaller services. That is not the case for the smaller indigenous communities. They remain complete hostages to this totally “keep first nations down” approach. I'm sorry to sound shrill, but it is important to appreciate that the people who suffer more today are...these services that don't have the leverage. They continue to believe they're not allowed to have legal advice. They continue to engage in this tripartite process, which is not a negotiation. It's, “Here's your cheque and this is what you get,” and they leave.

I hope that answers your question.

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

It does answer my question, and quite well, might I add.

Chief Morrison, you talked about the victim services, emergency response and so on that are not considered eligible expenses, which is interesting. You talked about how you deal with that by bringing the other police in. I'm wondering if you could talk about that and what that does to your relationship building and trust building within the community. I know there's a history there that can be very painful, and I would assume there's trust for your police force, but maybe not for other police forces.

[Chief Roland Morrison]

That is correct. We rely heavily on the OPP to supplement our service gap deliveries. They come in for major crimes, obviously for homicide investigations. They have the capacity to do so. When we look at providing emergency response and access to specialized units, such as their tactical and emergency response unit, helicopters, identification units and forensics, these are programs or services that we have to access from our policing partners. We don't have them.

Comparing the size of our service to Thunder Bay, Thunder Bay has all those services. We don't. That's why the terms and conditions are so restrictive in the first nations policing program.

[The Chair, Liberal, Bob Bratina]

I'm sorry to interrupt. This is quite important, but we have time for only four more questions, one from each of the parties, before our allotted time is up.

Ms. Blaney, thank you.

Mr. Viersen, you're up next for five minutes.