Docket: A-432-13
Citation:
2015 FCA 211
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CORAM:
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PELLETIER J.A.
STRATAS J.A.
WEBB J.A.
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BETWEEN:
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THE NISHNAWBE-ASKI POLICE SERVICES BOARD
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Applicant
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and
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THE PUBLIC SERVICE ALLIANCE OF CANADA
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Respondent
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and
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THE ATTORNEY GENERAL OF ONTARIO
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Intervener
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REASONS FOR JUDGMENT
STRATAS J.A.
[1]
In 2005, the Canada Industrial Relations Board
(“CIRB”), acting under the federal Canada Labour Code, R.S.C. 1985, c.
L-2, certified the respondent, the Public Service Alliance of Canada, as the
bargaining agent for two bargaining units of employees employed by the
Nishnawbe-Aski Police Services Board. The certification orders were based upon,
among other things, the view that the labour relations of the Nishnawbe-Aski
Police Service—a police service for certain areas of the Nishnawbe-Aski
Nation—are federally regulated.
[2]
A few years later, the Supreme Court released
two cases: NIL/TU,O Child and Family Services v. B.C. Government and Service
Employees’ Union, 2010 SCC 45, [2010] 2 S.C.R. 696; Communications, Energy and
Paperworkers Union of Canada v. Native Child and Family Services of Toronto,
2010 SCC 46, [2010] 2 S.C.R. 737. In NIL/TU,O and Native Child,
the Supreme Court held that the labour relations of employees of agencies that
provide services to Aboriginal families and children were provincially
regulated.
[3]
After the release of NIL/TU,O and Native
Child, the Nishnawbe-Aski Police Services Board thought that the labour
relations of the Nishnawbe-Aski Police Service might be provincially regulated.
So it applied to the CIRB for an order setting aside the certification orders.
[4]
In a decision dated November 25, 2013, the CIRB
upheld the certification orders it had made and dismissed the application: 2013
CIRB 701. The CIRB found that the labour relations of the Nishnawbe-Aski Police
Service are federally regulated and so it had the authority to make the
certification orders it did.
[5]
Dissatisfied, the Nishnawbe-Aski Police Services
Board now applies to this Court for judicial review of the CIRB’s decision. It
submits that the labour relations of the Nishnawbe-Aski Police Service are
provincially regulated, not federally regulated, and so the Board should have
revoked the certification orders it made. The Attorney General intervenes,
supporting the position of the Nishnawbe-Aski Police Services Board. The Public
Service Alliance of Canada opposes.
[6]
All of the parties agree that we must review the
Board’s decision on the standard of correctness because it turns upon an issue
of constitutional law. I agree: Dunsmuir v. New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190 at paragraph 58. It is for this Court to determine whether
the labour relations of the Nishnawbe-Aski Police Service are federally regulated
or provincially regulated, without any deference to the decision of the CIRB.
[7]
In my view, the labour relations of the
Nishnawbe-Aski Police Service are provincially regulated and so the CIRB did
not have the authority to make the certification orders it did. Accordingly, I would
grant the application for judicial review, set aside the decision of the CIRB
and direct it to grant the application of the Nishnawbe-Aski Police Services
Board and set aside the certification orders.
A. Background facts
[8]
The following is a distillation of many of the
facts recounted in the reasons of the CIRB and in an agreed statement of facts
filed with the CIRB. I will also refer to certain legislative facts.
[9]
The Nishnawbe-Aski Nation is comprised of 49
First Nations communities who agreed to either Treaty No. 5 (1875) or Treaty
No. 9 (1905). The Nation covers a broad area, roughly two-thirds of the
Province of Ontario, stretching from the Manitoba border in the west to the
Quebec border in the east and to James Bay in the north.
[10]
The history of the policing of the
Nishnawbe-Aski area goes back to 1873. At that time, the Royal Canadian Mounted
Police began to supply policing services to the area. However, starting in the
1960’s, the RCMP gradually withdrew. As the RCMP withdrew, the Ontario
Provincial Police took over.
[11]
Around this same time, Band employees started to
serve as Band Constables. At the direction of Band Chiefs and Councils, these Constables
provided front-line policing of Band by-laws and other local matters. However,
they were not police officers within the meaning of the Police Services Act,
R.S.O. 1990, c. P.15. Instead, they referred cases involving the Criminal
Code, R.S.C. 1985, c. C-46 and other provincial or federal legislation to
the OPP.
[12]
Later, the OPP also started a Special Constable
program as an alternative to the Band Constable system. In this program, Aboriginal
officers were hired, trained and then assigned to a specific First Nation
community. These Special Constables were employed by the OPP, not any Band.
[13]
In the late 1980’s, the federal government
reviewed policing in Aboriginal communities and developed a First Nations
Policing Policy. This policy was to be applied to all First Nations in Canada.
Under this policy, a First Nation or Band council was to establish a First
Nation police service, usually through a police commission.
[14]
Consistent with this policy, in 1992 Canada,
Ontario, the Nishnawbe-Aski Nation and other First Nations signed an agreement
known as the Ontario First Nations Policing Agreement. This Agreement enshrined
and implemented the principle that First Nations in Ontario should decide the
policing arrangements that are best suited to their communities. Among other
things, the Agreement set out certain options for the delivery of police
services, such as First Nations entering into an agreement with municipal or
regional police services or the OPP for police services, First Nations establishing
their own police service, or First Nations creating a regional police service
controlled by a First Nation police governing authority operating in a group of
First Nation territories.
[15]
The Nishnawbe-Aski Nation chose this
last-mentioned option. It decided to establish the Nishnawbe-Aski Police
Service under the management of the Nishnawbe-Aski Police Services Board. The
Nishnawbe-Aski Police Service was to provide effective, efficient and
culturally-appropriate police services for the people of the Nishnawbe-Aski
area.
[16]
To this end, Ontario, the Nishnawbe-Aski Nation
and Canada signed the Nishnawbe-Aski Police Services Agreement. It took effect
April 1, 1994. Subsequent agreements to similar effect have been signed. The
1994 Nishnawbe-Aski Police Services Agreement set out the composition of the
Nishnawbe-Aski Police Services Board and a schedule for the transfer of all
policing responsibilities for the Nishnawbe-Aski Nation communities from the
OPP to the Nishnawbe-Aski Police Service. When the Nishnawbe-Aski Police
Service first came into being, all of its officers were transferred from the
OPP. The OPP’s labour relations are provincially regulated.
[17]
The Nishnawbe-Aski Police Service did not assume
any policing functions from a federal agency or a federal police service. The
officers transferred to the Nishnawbe-Aski Police Service perform essentially
the same functions they performed when they were employees of the OPP, but are obligated
to do so in a culturally-sensitive manner.
[18]
The Nishnawbe-Aski Police Services Agreement
also set out funding arrangements. Core funding was provided 48% from Ontario
and 52% from Canada. Ontario has given additional funding for the purposes of
recruitment, the province's anti-violence strategy and community policing.
[19]
The Nishnawbe-Aski Police Service is responsible
for most policing services within a portion of the Nishnawbe-Aski area. The
portion is that occupied by 35 participating First Nations.
[20]
The Nishnawbe-Aski Police Services Board has
entered into operational agreements with the OPP. Section 4 of one such
agreement sets out clearly the responsibilities of the Nishnawbe-Aski Police
Service:
4. (1) The
Nishnawbe-Aski Police Service has the primary responsibility for the
enforcement of all laws and shall be involved in all police operations on its
First Nation Territories described in Section 3.
4. (2) The Nishnawbe-Aski Police Service
will be responsible for, as applicable, the enforcement of First Nations laws,
the Criminal Code of Canada, Ontario Provincial Statutes, and other Federal
Statutes within the Nishnawbe-Aski Police Service Area. The Nishnawbe-Aski
Police Service will be involved in all police operations that occur on the
Nishnawbe-Aski First Nation communities.
[21]
The Nishnawbe-Aski Police Service has roughly
150 officers and 38 civilian employees, both First Nations citizens and
non-First Nations citizens. Of the 188 employees, 66 work off-reserve at either
the General Headquarters in Thunder Bay, Ontario or the Northwest Region
Headquarters located in Sioux Lookout and Cochrane, Ontario.
[22]
The human resources department for the
Nishnawbe-Aski Police Service is located in Thunder Bay, Ontario. Among other
things, it recruits police officers, using criteria similar to those used by
municipal police services and the OPP.
[23]
Recruitment is pretty much independent of the
involvement of the Nishnawbe-Aski First Nations. Although Chiefs and Councils
may provide letters of reference for individual candidates, the Nishnawbe-Aski
First Nations have no formal role in the selection process. Candidates
recommended for hiring are sent to the Chief or Deputy Chief of the
Nishnawbe-Aski Police Service for assessment. Once selected, recruits, like all
other recruits across the province, are required to complete training at the
Ontario Police College.
[24]
After the completion of training at the Ontario
Police College, the Commissioner of the OPP can appoint the recruit as a First
Nations Constable under section 54 of the Police Services Act. Once
appointed by the Commissioner of the OPP, First Nations Constables have all the
powers of a “police officer” under the Act:
subsection 54(3). This means, among other things, that they can enforce laws
throughout Ontario and this is reflected in the operational agreement with the
OPP set out above. All Nishnawbe-Aski Police Service officers are First Nations
Constables holding appointments from the OPP Commissioner under section 54 and
all can enforce laws throughout Ontario.
[25]
This is confirmed by the latest Nishnawbe-Aski
Police Services Agreement (2009-2012) in the record before us, which defines a
First Nations Constable as “a person appointed pursuant
to Section 54 of the Police Services Act, R.S.O. 1990, c. P-15, who
exercises the powers of a police officer throughout Ontario for the purpose of
carrying out his or her duties.”
[26]
As employees of the Nishnawbe-Aski Police
Service, First Nations Constables serve both First Nations and non-First
Nations citizens in the areas covered by the Nishnawbe-Aski Police Services
Agreement and enforce Ontario and federal laws and Band by-laws in those areas.
[27]
As they perform their duties in Nishnawbe-Aski
areas, Nishnawbe-Aski officers are subject to various provisions of the Police
Services Act and various regulations made under the Act: see, e.g.,
O. Reg. 268/10 (“General”), R.R.O. 1990, Reg.
926 (“Equipment and Use of Force”), and O. Reg.
550/96 (“Violent Crime Linkage Analysis System Reports”).
Nishnawbe-Aski officers are ultimately responsible to the OPP Commissioner and
the Ontario Civilian Policing Commission, both of whom can suspend or terminate
their appointment: Police Services Act, subsections 54(5) and 54(6).
B. The
decision of the CIRB
[28]
The CIRB recognized that the decisions of the
Supreme Court in NIL/TU,O and Native Child controlled the outcome
of its decision. Of the two, NIL/TU,O contains the operative principles
and Native Child is an application of those principles.
[29]
The CIRB correctly noted that the Supreme Court
reaffirmed in NIL/TU,O that labour relations are presumptively
provincially regulated. In order to determine whether that presumption is
rebutted, a two-step inquiry must be followed.
[30]
First, the CIRB stated that it must follow a
functional test to examine the nature, operations and habitual activities of
the entity to determine whether it constitutes a federal undertaking. If the
CIRB were inconclusive on that, it would have to proceed to the second step.
[31]
The CIRB stated that under the second step, it
must ask whether provincial regulation of the entity’s labour relations would
impair the “core” of the federal head of power.
[32]
Having charged itself correctly as to the
applicable law, in my view the CIRB then proceeded not to follow it.
[33]
For one thing, the CIRB did not begin with the
presumption in favour of provincial regulation of labour relations. Rather, it
went right into the first step of the NIL/TU,O test.
[34]
And here—rather than conducting a functional examination
of the nature, operations and habitual activities of the Nishnawbe-Aski Police
Service to determine whether it constitutes a federal undertaking, as it was
supposed to do—it focused almost exclusively on the more abstract question of
whether policing was federally or provincially-regulated (at paragraphs 32-33).
On that abstract question, it concluded that policing is not subject to the
exclusive jurisdiction of either Canada or the provinces because policing is “a governance function that flows from the need of organized
societies to maintain peace and social order within their communities”
(at paragraph 33).
[35]
Still purportedly following the first step in NIL/TU,O,
the CIRB went on to focus upon the statutory authority of a First Nation to establish
a police commission and a police service. At best, this bore upon only a small
part of the factually-suffused functional approach prescribed in NIL/TU,O.
[36]
On this, the CIRB found that a First Nation’s
policing authority stemmed from the federal Indian Act, R.S.C. 1985, c.
I-5, not provincial legislation. In particular, the CIRB found that the
Nishnawbe-Aski Police Service’s authority did not stem at all from Ontario’s Police
Services Act (at paragraphs 34-37). Further, in its view, section 54 of the
Police Services Act permitted the OPP Commissioner to grant certain
powers to First Nations Constables, nothing more.
[37]
I disagree with the CIRB’s conclusions on this
point. In my view, the Police Services Act affects the nature,
operations and habitual activities of the Nishnawbe-Aski Police Service in a
far more significant way than the CIRB found. I shall return to this later.
[38]
Having found as it did, the CIRB concluded that “the [Nishnawbe-Aski Police Service] situation is
distinguishable from that which existed in [the NIL/TU,O case]”
(at paragraph 38). In its view, NIL/TU,O concerned the provision of
child and family services, a matter within provincial jurisdiction (at
paragraph 39). Here, it was concerned with policing and policing is not
exclusively federal or provincial. In its view, the police are concerned with “polic[ing] Indians and lands reserved for Indians”
(at paragraph 40). Reiterating some of its earlier conclusions, the CIRB added
(at paragraph 41):
As noted earlier,
policing is an aspect of governance. The basis for the existence of the
[Nishnawbe-Aski Police Service] is found in the Indian
Act, federal legislation enacted pursuant to
Parliament’s exclusive jurisdiction over Indians and lands reserved for the
Indians. Consequently, with respect to aboriginal policing generally, and
police service created pursuant to the [Nishnawbe-Aski Police Services
Agreement] specifically, the [CIRB] concludes that the operations of the
[Nishnawbe-Aski Police Service] are a matter of federal jurisdiction pursuant
to section 91(24) of the Constitution Act, 1867.
[39]
As this passage shows, the CIRB did not examine
whether the presumption that labour relations is provincially regulated is
displaced by the particular functions of the police service before it. Rather
than analyzing in detail the function of the Nishnawbe-Aski Police Service—a
factually-suffused matter—it very much restricted its analysis to legal matters
such as the legal provenance of the policing power.
[40]
The CIRB went on to the second step in the in NIL/TU,O
inquiry, namely whether provincial regulation of the Nishnawbe-Aski Police
Service’s labour relations would impair the “core”
of the federal head of power, here “Indians”
under subsection 91(24) of the Constitution Act, 1867. This requires a
granular, factual examination.
[41]
Here the CIRB rested upon general assertions. It
asserted in the abstract that labour laws affect a vital part of the management
and operation of any undertaking and here the undertaking was policing which is
part of Aboriginal self-government, something being discussed between the
federal government and many First Nations. Thus, in the CIRB’s view, it
followed that Aboriginal policing had to be federally regulated.
[42]
The CIRB’s analysis on this point appears at
paragraph 42 of its decision:
Furthermore, the
Board is of the opinion that provincial regulation of the [Nishnawbe-Aski
Police Service’s] labour relations would impair the “core” of the federal
authority over Indians and lands reserved for the Indians. As noted above, the
federal government is actively engaged in self-government negotiations with
many First Nations. By definition, these negotiations go to the heart of
governance functions, including policing. Labour laws affect a vital part of
the management and operation of an undertaking (see Bell
Canada v. Quebec (Commission de la santé et de la sécurité du travail), [1988] 1 S.C.R. 749). It would be inconsistent with federal
responsibility over Indians and lands reserved for the Indians if provincial
labour legislation were to apply to the instruments of aboriginal governance
such as policing.
[43]
Overall, the CIRB concluded that “jurisdiction over the [Nishnawbe-Aski Police Service] rests
with the federal government, and [so] the [federal Canada Labour Code]
applies to its relations with its employees” (at paragraph 43).
[44]
It dismissed the application of the
Nishnawbe-Aski Police Services Board challenging the certification of the
respondent, the Public Service Alliance of Canada.
[45]
The Nishnawbe-Aski Police Services Board now
applies for judicial review of the CIRB’s decision.
[46]
Although the CIRB’s decision suffers from a
number of flaws, it does not logically follow that its conclusion is wrong. This
Court must still answer the central question: are the labour relations of the Nishnawbe-Aski
Police Service federally regulated or provincially regulated?
C. Analysis
[47]
Relatively recently, the Supreme Court has set
out a useful and comprehensive methodology for determining whether particular
legislative subject-matters fall within federal or provincial authority: Canadian
Western Bank v. Alberta, 2007 SCC 22. [2007] 2 S.C.R. 3.
[48]
That methodology, however, does not apply here.
For reasons that escape me, the area of labour law is regarded as special area
with special rules that must be followed. As the Supreme Court put it in NIL/TU,O,
above at paragraph 12, to determine whether an entity’s labour relations are
federally or provincially regulated one must follow a “distinct
approach,” one entailing “a completely different
analysis from that used to determine whether a particular statute is intra
or ultra vires the constitutional authority of the enabling government.”
[49]
The Constitution Act, 1867 does not
explicitly assign the subject-matter of labour law to provincial legislatures
or the federal Parliament. However, ever since 1925, Canadian law has
recognized that labour law is presumptively a matter for the provincial
legislatures calling under subsection 92(13) (“Property
and Civil Rights”) and subsection 92(16) (“Matters
of a merely local or private Nature in the Province”) of the Constitution
Act, 1867: Toronto Electric Commissioners v. Snider, [1925] A.C. 396
(P.C.). “Exclusive provincial competence is the rule”:
Northern Telecom Ltd. v. Communications Workers of Canada, [1980] 1 S.C.R.
115 at page 132.
[50]
The federal Parliament has jurisdiction over
labour relations only by way of exceptions: NIL/TU,O, above at paragraph
11; Consolidated Fastfrate Inc. v. Western Canada Council of Teamsters,
2009 SCC 53, [2009] 3 S.C.R. 407 at paragraphs 27-28. These exceptions have “always been narrowly interpreted”: NIL/TU,O,
above at paragraph 11.
[51]
Supreme Court jurisprudence suggests that the
exceptions fall in two categories and if a case falls into either of them,
federal authority is established. The two categories are as follows:
• Matters that are “related
to an integral part of the operation of the undertaking, service or business” are removed from provincial jurisdiction and immune from the effect
of provincial law if the undertaking, service or business is a “federal one.” Whether an undertaking is federal “depends on the nature of its operation” and this is determined by “the normal or habitual activities of the business as these of “a
going concern”, without regard for exceptional or casual factors.” This is a “functional,
practical one about the factual character of the ongoing undertaking.”
• Matters that are “an integral part of [Parliament’s] primary
competence over some other single federal subject.”
(See Northern Telecom, above at pages 132-33 per Dickson J. (as he then was); see
also Construction Montcalm Inc. v. Minimum Wage Commission (1978),
[1979] 1 S.C.R. 754, 93 D.L.R. (3d) 641.)
[52]
Soon after the seminal case of Northern
Telecom, the Supreme Court had to consider whether these exceptions applied
to a shoe manufacturer that was owned by four Aboriginal band members, operated
on a reserve under a federal permit and employed mainly band members: Four B
Manufacturing v. United Garment Workers (1979), [1980] 1 S.C.R. 1031, 102
D.L.R. (3d) 385. The Aboriginal context did not make a difference: the presumption
in favour of provincial jurisdiction remained, rebutted only if the case fell
into one of the two categories of exception.
[53]
Thus, in Four B, the Supreme Court conducted
an inquiry into whether the presumption of provincial jurisdiction was
rebutted, i.e., whether the case fell into one of the two categories of
exception. As in Northern Telecom and Construction Montcalm, both
above, the inquiry in Four B consisted of two questions (at pages 1045-47):
• Functionally speaking, was the nature of the manufacturer’s business
and its normal activities a federal undertaking? In particular, did the
ownership of the business by Indian shareholders, the employment by that
business of a majority of Indian employees, the carrying on of that business on
an Indian reserve under a federal permit, or certain federal loan and subsidies
received by the business, taken separately or together, have any effect on the
operational or functional nature of that business?
• If the answer to that question is inconclusive, did the power to
regulate the labour relations of the manufacturer form an integral part of
primary federal jurisdiction over “Indians and Lands reserved for the Indians” under subsection 91(24) of the Constitution Act, 1867?
[54]
In Four B, the Supreme Court answered the
first question in the negative and held that the general presumption of
provincial jurisdiction over labour relations stood unrebutted. It held that
the manufacturer’s labour relations were provincially regulated.
[55]
In its most recent foray into this area of law—NIL/TU,O
and the companion case of Native Child—the Supreme Court has preserved
this idea of two categories of exceptional federal jurisdiction.
[56]
Thus, as in the former cases, the inquiry
remains the same. We start with the presumption that labour relations are
provincially regulated. Then, in order to see whether that presumption is
rebutted, we must conduct an inquiry into the same two questions. In short, we
must conduct:
… an inquiry into
the nature, habitual activities and daily operations of the entity in question
to determine whether it constitutes a federal undertaking. This inquiry is
known as the “functional test”. Only if this test is inconclusive as to whether
a particular undertaking is “federal”, does the court go on to consider whether
provincial regulation of that entity’s labour relations would impair the “core”
of the federal head of power.
(NIL/TU,O, above at paragraph 3.)
[57]
The majority of the Supreme Court in NIL/TU,O
takes great pains to stress that the two questions are separate: the functional
question must proceed first, and the second question about whether the “core” has been impaired proceeds only if the answer
to the first question is inconclusive.
[58]
In stressing this point, the Supreme Court
specifically disapproved of a contrary approach followed in certain cases
involving the federal power over “Indians” in
subsection 91(24) of the Constitution Act, 1867 (at paragraph 19). In
its view, “[t]here is no reason why, as a matter of
principle, the jurisdiction of an entity’s labour relations should be
approached differently when s. 91(24) is at issue” (at paragraph 20). Aboriginal
cases do not call for a different approach.
[59]
In light of the above authorities, our first task
is to examine the essential nature or function of the Nishnawbe-Aski Police
Service, focusing upon its normal or habitual activities as a going concern
without regard for exceptional or casual factors.
[60]
The decided cases offer some guidance on the
approach to be followed. They show that the approach is very much a factual one.
But not exclusively so. As we examine the facts, we must assess whether they point
to the undertaking, organization or business being provincial or federal in
nature.
[61]
NIL/TU,O shows us that we must examine the services provided and the
functions performed by the entity under scrutiny, as influenced by the
statutory context and foundational agreements (paragraphs 25-33), the source of
funding (paragraph 35), and whether the regulation of the entity’s activities,
ultimate decision-making power and “essential nature”
is federal or provincial (paragraphs 36-38 and 40). In NIL/TU,O, the
Supreme Court also examined whether “federal
operational involvement [was] necessary” such that the entity must be
regarded as federal (at paragraph 40). After examining the nature and functions
of the entity, the Supreme Court found that its “essential
nature” and function was “to provide child and
family services,” a “matter within the
provincial sphere” (at paragraph 45).
[62]
In Native Child, the
Supreme Court identified and examined the nature and functions of the Native
Child agency and who exercised ultimate decision-making power over it. Then it
assessed whether the agency should be regarded as a federal or provincial undertaking
(at paragraphs 5-7). The Supreme Court also considered agreements that the Native
Child agency entered into with the province and funding arrangements (at
paragraphs 7 and 9). It concluded that functionally the agency was a provincial
undertaking, and so the presumption in favour of provincial jurisdiction was
not rebutted.
[63]
In Four B, the Supreme Court considered similar matters. It focused on the nature and function of the
shoe-manufacturing business itself. It also examined regulatory matters such as
whether there were significant federal permits or other forms of federal
involvement important to the function of the business. It concluded that the
business was a provincial undertaking. As we shall see later, the Supreme Court
also offered important comments on whether the Aboriginal nature of the
business mattered.
[64]
With the guidance of these cases front of mind,
I start with the presumption that the Nishnawbe-Aski Police Service’s labour
relations are provincially regulated. In considering whether that presumption
is rebutted, I must first examine the essential nature and function of the
Nishnawbe-Aski Police Service. I find that its essential nature and function is
to provide policing services just like other provincial and municipal police
forces in Ontario, a matter within the provincial sphere. The presumption that
its labour relations are provincial has not been rebutted.
[65]
Many of the adjudicative and legislative facts
supporting this conclusion are in paragraphs 9-27, above. But I would summarize
them as follows:
• Ontario has
the constitutional authority to establish and regulate provincial and municipal
police services and to regulate officers under subsection 92(8) (“Municipal Institutions in the Province”) and subsection 92(16) (“Matters of a merely local or private Nature in the Province”) of the Constitution Act, 1867. Since 1895, these heads of
power have been interpreted to include policing powers: Re Provincial
Jurisdiction to pass Prohibitory Liquor Laws (1895), 24 S.C.R. 170; De
Iorio v. Montreal (City) (1976), [1978] 1 S.C.R. 152; O’Hara v. British
Columbia, [1987] 2 S.C.R. 591, 45 D.L.R. (4th) 527. It has done so,
primarily through the Police Services Act.
• As the analysis at paragraphs 24-25,
above, shows, the statutory source for the appointment of First Nations
Constables is the provincial Police Services Act. The Supreme Court
itself has confirmed this in R. v. Decorte, 2005 SCC 9, [2005] 1 S.C.R.
133 at paragraph 24. The Court of Appeal for Ontario has also confirmed this,
declaring that “the status of
being a First Nations Constable flows directly from the provisions governing
First Nations Constables in the Police Services Act”: R. v. Stephens (1995), 26 O.R. (3d) 417, [1996] 1 C.N.L.R.
200.
• The CIRB held that the statutory
authority for the Nishnawbe-Aski Police Service is paragraph 81(1)(c) of
the Indian Act, which provides that a band council may pass a bylaw for
the purpose of the “observance
of law and order.” I disagree. Paragraph 81(1)(c)
gives a band council the power to make by-laws maintaining law and order,
nothing more. One of the duties of the Nishnawbe-Aski Police Service is to
enforce bylaws enacted under paragraph 81(1)(c) of the Indian Act but
its overall function is to provide police services that are authorized by the Police
Services Act. As both the Supreme Court and the Court of Appeal for Ontario
have found, the status of being a First Nations Constable flows directly from
the Police Services Act, not any federal law.
• Section 54 of the Police Services
Act vests the Nishnawbe-Aski’s constables with the powers of a police
officer for the purposes of carrying out their duties. These powers include the
power to detain, arrest and, where necessary, to use force.
• Section 54 of the Police Services
Act also regulates some aspects of labour relations within the
Nishnawbe-Aski Police Service. Section 54 allows the OPP Commissioner to
suspend or terminate a First Nations Constable and sets out the procedure for
doing so.
• The First Nations Constables employed
by the Nishnawbe-Aski Police Services Board are regulated under several
provisions of the Police Services Act and several regulations
thereunder. They are subject to the same regulatory bodies as are officers in
other police services in Ontario.
• The essential nature of the
Nishnawbe-Aski Police Service is to provide policing services to all persons,
Aboriginal or non-Aboriginal, who are in the Nishnawbe-Aski area. Its First
Nations Constables are required to enforce the law against all persons. This is
the same as all police officers in Ontario.
• The appointment of Nishnawbe-Aski First
Nations Constables under section 54 of the Police Services Act allows
them to exercise policing authority anywhere in Ontario, but not outside of
Ontario. Section 7.1 of the 1998 agreement reflects this, empowering
Nishnawbe-Aski First Nations Constables to enforce “all laws, primarily within the
Nishnawbe-Aski area and elsewhere in the Province of Ontario, as required.”
• The Nishnawbe-Aski Police Service is not
limited to policing on reserves. Roughly one-third of its staff is located
off-reserve.
• Recruits for the Nishnawbe-Aski Police
Service must receive training at the Ontario Police College, like all other
police officers regulated by the province.
• When the Nishnawbe-Aski Police Service
was created, all of its officers were transferred from the OPP. Nishnawbe-Aski
officers continue to perform essentially the same functions they performed as
OPP officers.
• The Nishnawbe-Aski Police Service is functionally
integrated in many ways with other police services in Ontario such as the OPP.
For example, the Nishnawbe-Aski Police Service often makes use of provincial
and municipal facilities to detain offenders. The Nishnawbe-Aski Police Service
and the OPP enlist each other’s assistance when transporting offenders. The
Nishnawbe-Aski Police Service has protocols to ask for the OPP’s assistance in
certain circumstances. When pursuing an offender, the Nishnawbe-Aski Police
Service is directed by the OPP. Nishnawbe-Aski police supervisors are subject
to standardized provincial testing. Lastly, the Nishnawbe-Aski Police Service
and the OPP have an unofficial reciprocal agreement allowing each to assist the
other in certain circumstances.
• The Nishnawbe-Aski Police Service is funded
48% by Ontario and 52% by Canada but under certain programs, Ontario provides
more funding.
• The Nishnawbe-Aski Police Service is
independent and autonomous from the Nishnawbe-Aski Nation and its First Nations
band members.
• Section 2 of the Police Services Act
excludes from the definition of “police officer” a First Nations
Officer. This means that many of the general provisions in the Act applying to
police officers throughout Ontario do not apply to First Nations Constables.
The practical effect of this is to allow First Nations communities, in
consultation with Canada and Ontario, to develop tripartite policing agreements,
such as the Nishnawbe-Aski Police Services Agreement, to specify the type of
police services that are suitable for Aboriginal communities. Thus, any special
features of the Nishnawbe-Aski Police Service that make it suitable for
policing the Nishnawbe-Aski area are permitted by the provincial Police
Services Act. In no way do they stem from the federal power over “Indians” under
subsection 91(24) of the Constitution Act, 1867.
[66]
As I have mentioned, the Nishnawbe-Aski Police
Service must deliver its policing services primarily to Aboriginal peoples, in
a culturally sensitive way. It must occasionally apply and enforce Band by-laws.
Do these matters rebut the presumption that the labour relations of the
Nishnawbe-Aski Police Service are provincially regulated? I think not.
[67]
In the NIL/TU,O case, the agency in
question operated within an Aboriginal community. Its services were directed at
the welfare of families, something at the very centre of Aboriginal life and
culture. It was obligated to provide its services in a culturally sensitive way.
But the Supreme Court held that these factors did not displace the provincial
nature of its activities. Functionally speaking, the Supreme Court found that “[t]he community for whom NIL/TU,O operates as a child
welfare agency does not change what it does, namely deliver child
welfare services,” a provincial undertaking (at paragraph 45).
[68]
Similarly, in the Native Child case,
after examining the function of the agency, the Supreme Court concluded that it
too was a provincial undertaking. Although it had to deliver its services in an
effective, culturally appropriate way to the Aboriginal community and although
it did so operating on-reserve, this did not alter the essential nature of what
the agency did. In the words of the Supreme Court, “[while] the identity of Native Child’s clients undoubtedly
has, and should have, an impact on the way the agency delivers services, it
does not alter the essential nature of what Native Child does” (at
paragraph 11).
[69]
Similarly, in Four B, the fact that the
shoe-manufacturing concern was owned by Aboriginal shareholders, employed
Aboriginal workers, and carried on business on-reserve did not affect the
functional nature of the business, which was provincial (at page 1046):
There is nothing
about the business or operation of Four B which might allow it to be considered
as a federal business: the sewing of uppers on sport shoes is an ordinary
industrial activity which clearly comes under provincial legislative authority
for the purposes of labour relations.
Again, the focus must be on what the entity
does, not the community for whom it operates.
[70]
The fact that the Nishnawbe-Aski Police Service
has a distinct character as a police service for Aboriginal communities does
not take away from its essential character as a police service that is in all
respects regulated by the province. The following words of the Supreme Court in
NIL/TU,O, above at paragraph 39 are equally apposite to the
Nishnawbe-Aski Police Service:
Neither the
cultural identity of NIL/TU,O’s clients and employees, nor its mandate
to provide culturally-appropriate services to Aboriginal clients, displaces the
operating presumption that labour relations are provincially regulated. As the
Court of Appeal pointed out, social services must, in order to be effective, be
geared to the target clientele. This attempt to provide meaningful services to
a particular community, however, cannot oust primary provincial jurisdiction
over the service providers’ labour relations. NIL/TU,O’s function is
unquestionable a provincial one.
[71]
It is true that Nishnawbe-Aski police officers
enforce, among other things, bylaws passed by Bands, though this constitutes
only a small part of the officers’ task: Nishnawbe-Aski Police Services
Board Annual Report 2011-2012 (only 0.6% of total incidents in the
operational year). It is true that the enforcement of Band bylaws might assist
the Nishnawbe-Aski Nation in its governance of Nishnawbe-Aski areas. It is true
that an important objective of the Nishnawbe-Aski Police Service is to further
and assist Aboriginal self-governance. But these things have nothing to do with
the factual character of what the Nishnawbe-Aski Police Service actually does.
Like the child welfare agencies in issue in NIL/TU,O and Native Child,
the functions and activities of the Nishnawbe-Aski Police Service can only be
characterized on this record as provincial in nature, tailored to serve its
particular community, nothing more.
[72]
As mentioned above, only if the result of the
first inquiry—the nature, habitual activities and daily operations of the
entity in question—is inconclusive need we proceed to the next inquiry, which
is whether provincial regulation of the entity in question would impair the “core” of a federal head of power. In this case, the
result of the first inquiry is conclusive. The nature, habitual activities and
daily operations of the Nishnawbe-Aski Police Service are provincial in nature.
Therefore, it is unnecessary to proceed further.
[73]
As a result of the foregoing, the labour
relations of the Nishnawbe-Aski Police Service are provincially regulated, not
federally regulated. Therefore, the CIRB did not have the authority to make the
orders it did, certifying the Public Service Alliance of Canada as the
bargaining agent for two bargaining units of employees employed by the
Nishnawbe-Aski Police Services Board. The CIRB should have granted the application
of the Nishnawbe-Aski Police Services Board to set aside the certification
orders.
D. Proposed disposition
[74]
For the foregoing reasons, I would grant the
application for judicial review, set aside the decision dated November 25, 2013
of the Canada Industrial Relations Board in Board file 29211‑C, and
direct the Board to grant the application of the Nishnawbe-Aski Police Services
Board to set aside the certification orders. I would grant the Nishnawbe-Aski
Police Services Board its costs of the application.
“David Stratas”
“I agree
J.D. Denis Pelletier J.A.”
“I agree
Wyman W. Webb
J.A.”
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