Canadian Human  
Rights Tribunal  
Tribunal canadien  
des droits de la personne  
Citation: 2022 CHRT 4  
Date: January 31, 2022  
File No.: T2251/0618  
[ENGLISH TRANSLATION]  
Between:  
Gilbert Dominique (on behalf of the members of the Pekuakamiulnuatsh First  
Nation)  
Complainant  
- and -  
Canadian Human Rights Commission  
Commission  
- and -  
Public Safety Canada  
Respondent  
Decision  
Member: Gabriel Gaudreault  
Table of Contents  
I.  
Preamble...................................................................................................................1  
II.  
Background of complaint ..........................................................................................3  
Tribunals Decision....................................................................................................4  
Issues........................................................................................................................4  
Discrimination law.....................................................................................................5  
Preliminary questions................................................................................................7  
III.  
IV.  
V.  
VI.  
A.  
B.  
Tribunals jurisdictioncollateral attack on the PA........................................7  
Res judicataSuperior Court of Québec and appeal to Quebec Court  
of Appeal......................................................................................................12  
(i)  
Res judicata......................................................................................14  
Final judgment ..................................................................................18  
Identity of the parties.........................................................................18  
Abuse of process and residual discretion.........................................20  
Additional remarkssome of the complainants arguments ............21  
(ii)  
(iii)  
(iv)  
(v)  
VII.  
Analysis...................................................................................................................22  
A.  
B.  
Prohibited grounds of discrimination Race and national or ethnic  
origin ............................................................................................................23  
Adverse treatment on a prohibited ground of discrimination in the  
provision of a service (paragraph 5(b) of the CHRA)...................................24  
(i)  
Police services..................................................................................24  
(ii)  
Public Safety Canada provides a serviceunder section 5 of  
the CHRA..........................................................................................34  
(iii)  
Adverse treatment based on a prohibited ground of  
discrimination....................................................................................41  
C.  
Respondents defence (section 16(1) of the CHRA)....................................67  
VIII. Decision ..................................................................................................................72  
IX. Continuation of the procedure: remedies................................................................73  
I.  
Preamble  
[1]  
The Canadian Human Rights Tribunal (Tribunal), by its very nature, deals with  
sensitive and delicate issues that affect what Canadians certainly value most: their  
self-identity, that is, what they are inherently as human beings.  
[2]  
The Tribunal is a quasi-judicial entity that applies the Canadian Human Rights Act  
(CHRA), an act that guarantees quasi-constitutionalrights (Canada (Attorney General)  
v. Johnstone, 2014 FCA 110 (); Canada (Human Rights Commission) v. Canada  
(Attorney General), 2016 FCA 200 ()).  
[3]  
The purpose of the Tribunal is to review litigation involving fundamental rights and  
freedoms that are undeniably guaranteed to everyone. Guaranteeing these rights is of  
paramount importance in a free and democratic society like Canadian society, and these  
guarantees help to safeguard human dignity (Polhill v. Keeseekoowenin First Nation, 2017  
CHRT 34, at para. 51 [Polhill]).  
[4]  
In Law v. Canada (Minister of Employment and Immigration), 1999 675  
(SCC), [1999] 1 SCR 497, at paragraph 53, the Supreme Court of Canada wrote the  
following:  
Human dignity means that an individual or group feels self-respect and self-  
worth. It is concerned with physical and psychological integrity and  
empowerment. Human dignity is harmed by unfair treatment premised upon  
personal traits or circumstances which do not relate to individual needs,  
capacities, or merits. It is enhanced by laws which are sensitive to the needs,  
capacities, and merits of different individuals, taking into account the context  
underlying their differences. Human dignity is harmed when individuals and  
groups are marginalized, ignored, or devalued, and is enhanced when laws  
recognize the full place of all individuals and groups within Canadian society.  
Human dignity within the meaning of the equality guarantee does not relate to  
the status or position of an individual in society per se, but rather concerns the  
manner in which a person legitimately feels when confronted with a particular  
law.  
[5]  
Complaints involving First Nations across Canada have their own contexts and their  
own specific characteristics, again, by their very nature. No one contests that courts and  
tribunals across the country can take judicial notice of the systemic and historical factors  
 
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affecting First Nations (R v. Williams, 1998 782 (SCC), [1998] 1 SCR 1128 [Williams];  
see also Willcott v. Freeway Transportation, 2019 CHRT 29 () [Willcott], at para. 234;  
Nielsen v. Nee Tahi Buhn Indian Band, 2019 CHRT 50 () [Nielsen], at para. 136).  
[6]  
In First Nations Child and Family Caring Society of Canada et al. v. Attorney General  
of Canada (for the Minister of Indian and Northern Affairs Canada), 2016 CHRT 2 ()  
[Family Caring Society 2016], at paragraph 402, the Tribunal repeated that the social,  
political and legal contexts must be taken into account in its analysis when determining  
whether there has been discrimination in a substantive sense.  
[7]  
In the context of Indigenous peoples, stereotyping and prejudice resulting from  
colonialism, population displacements and the residential school system are all relevant  
(same reference; see also R v. Turpin, 1989 98, [1989] 1 SCR 1296, at page 1332;  
Corbière v. Canada (Minister of Indian and Northern Affairs Canada), 1999 687,  
[1999] 2 SCR 203, at para. 66; Lovelace v. Ontario, 2000 SCC 37, [2000] 1 SCR 950, at  
para. 69; R. v. Kapp, 2008 SCC 41 (), [2008] 2 SCR 483, at para. 59 [Kapp]).  
[8]  
Although the decision was a criminal and penal matter, the Supreme Courts reasons  
in R. v. Ipeelee, 2012 SCC 13 () [Ipeelee], at paragraph 60, are, without doubt, entirely  
relevant in the circumstances. The Court wrote the following:  
Courts have, at times, been hesitant to take judicial notice of the systemic and  
background factors affecting Aboriginal people in Canadian society (see, e.g.,  
R. v. Laliberte, 2000 SKCA 27, 189 Sask. R. 190). To be clear, courts must  
take judicial notice of such matters as the history of colonialism, displacement,  
and residential schools and how that history continues to translate into lower  
educational attainment, lower incomes, higher unemployment, higher rates of  
substance abuse and suicide, and of course higher levels of incarceration for  
Aboriginal peoples. These matters, on their own, do not necessarily justify a  
different sentence for Aboriginal offenders. Rather, they provide the  
necessary context for understanding and evaluating the case-specific  
information presented by counsel.  
[Emphasis in original.]  
[9]  
The Tribunal recognizes the suffering that First Nations, their communities, and their  
families have experienced and continue to experience to this day. The Tribunal salutes their  
strength and their courage in this pursuit of justice and healing, on a path towards truth and  
reconciliation.  
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[10] That being said, the Tribunal must base its decision on the evidence presented to it  
and decide, on a balance of probabilities, whether the complaint is substantiated or not  
(section 53 of the CHRA).  
II.  
Background of complaint  
[11] The case before the Tribunal concerns a complaint filed by Gilbert Dominique, on  
behalf of the Pekuakamiulnuatsh (the Complainant), who are members of the  
Mashteuiatsh community in the SaguenayLac-Saint-Jean region of Quebec.  
[12] The complaint was filed with the Canadian Human Rights Commission  
(Commission) on February 12, 2016, against Public Safety Canada (the Respondent)  
under section 5 of the CHRA.  
[13] Specifically, the Complainant alleges he experienced adverse differential treatment  
by the Respondent in the provision of services (paragraph 5(b) of the CHRA) resulting from  
the implementation of the First Nations Policing Policy (C-4, the Policy), which implements  
the First Nations Policing Program (FNPPor the program), on the basis of his race and  
national/ethnic origin.  
[14] The Complainant essentially submits that the adverse differential treatment was a  
result of the inadequate funding he was provided, the short durations of the agreements he  
is required to sign, and the subpar level of the police services offered to the members of the  
community.  
[15] It must be noted that this decision by the Tribunal only aims to determine whether  
there was any discrimination or not. The parties and the Tribunal agreed to separate the  
hearing into two distinct parts, one leading to a decision on liability and the other to a decision  
on the remedies to be granted, if any.  
[16] The five-day hearing was held on December 15, 16, 21, 22, and 23, 2020. Because  
of the global health crisis, which is also affecting Canada, the Tribunal heard the parties’  
evidence by videoconference. No significant problems arose during the hearing with regard  
to the use of technology, and any minor hiccups were resolved in a timely manner.  
 
4
[17] In this same vein, and although it has no effect on its decision, the Tribunal cannot  
ignore the very high level of professionalism of the representatives of each party in this  
matter. The Tribunal recognizes their sustained work and efforts in bringing this case to  
term. They respected all the Tribunals directives to the letter throughout the case  
management stage, during evidence management, and at the hearing. The collegiality  
between the representatives was palpable, making an inherently litigious and adversarial  
process much more serene and efficient.  
III.  
Tribunals decision  
[18] The Tribunal must inevitably rule on the dispute on the basis of the evidence the  
parties presented to it at the hearing.  
[19] For the reasons that follow, the Tribunal finds the complaint to be substantiated  
(subsection 53(2) of the CHRA).  
IV.  
Issues  
[20] The Tribunal will follow the analysis developed in Moore v. British Columbia  
(Education), 2012 SCC 61 (), at paragraph 33 [Moore], to determine whether the  
complainant was the victim of discrimination by the Respondent in the provision of services  
under paragraph 5(b) of the CHRA.  
[21] The issues are therefore the following:  
(1) Is there a prohibited ground of discrimination under the CHRA?  
(2) Was there adverse differential treatment (adverse impact) in the provision of a  
service customarily available to the general public under paragraph 5(b) of the  
CHRA?  
(3) Was the prohibited ground of discrimination a factor in the adverse impact?  
[22] The Tribunal will first address the two arguments made by the Respondent, who  
raised some concerns regarding the Tribunals jurisdiction to deal with the complaint, on the  
one hand, and regarding the possible application of res judicata, on the other.  
   
5
V.  
Discrimination law  
[23] The purpose of the CHRA is set out in section 2. The CHRA aims to guarantee that  
all individuals have an opportunity equal with other individuals to make for themselves the  
lives that they are able and wish to have and to have their needs accommodated, consistent  
with their duties and obligations as members of society, without being hindered in or  
prevented from doing so by discriminatory practices based on prohibited grounds of  
discrimination.  
[24] It is well accepted in the case law that the onus is on the complainant to, first of all,  
meet their burden of proof on a balance of probabilities. This is what is traditionally called  
proof of prima facie discrimination.  
[25] Specifically, the complainant must present a prima facie case on a balance of  
probabilities. As the Supreme Court of Canada stated in Ontario Human Rights Commission  
v. Simpsons-Sears, 1985 18 (SCC), [1985] 2 SCR 536, at paragraph 28 [Simpsons-  
Sears]:  
A prima facie case . . . is one which covers the allegations made and which, if  
they are believed, is complete and sufficient to justify a verdict in the  
complainants favour in the absence of an answer from the respondent-  
employer.  
[26] In this same vein and as developed in Moore, a complainant must prove the following  
three elements:  
(1) that there is a prohibited ground of discrimination under the CHRA;  
(2) that they experienced an adverse impact (in this case, under section 5); and  
(3) that the prohibited ground of discrimination was a factor in the adverse impact.  
(See also Québec (Commission des droits de la personne et des droits de la  
jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center), 2015  
SCC 789 (), at para. 63 [Bombardier]; SimpsonsSears, at para. 28).  
[27] As the Tribunal has stated on several occasions, an intention to discriminate is not  
required, nor is a complainant required to show that the prohibited ground of discrimination  
was the sole cause of the adverse impact (Bombardier, at paras. 40 and 44).  
 
6
[28] It is also recognized that discrimination is generally neither open nor intentional. This  
is why the Tribunal must consider all the circumstances of the complaint to determine if there  
is a subtle scent of discrimination, as the Tribunal has described it (Basi v. Canadian  
National Railway, 1988 108 (CHRT) [Basi]). The Tribunal can therefore draw certain  
inferences from the circumstantial evidence in cases where the evidence offered in support  
of the allegations makes such an inference more probable than the other possible inferences  
or hypotheses. Nonetheless, this circumstantial evidence must be tangibly related to the  
impugned decision or conduct of the respondent (Bombardier, at para. 88).  
[29] It is also well established that when the Tribunal must decide whether a complainants  
burden of proof has been met, it must consider the evidence as a whole, which includes the  
evidence submitted by the respondent (Bombardier, at para. 58; Lally v. Telus, 2014 FCA  
214 (), at para. 31).  
[30] In doing so, the Tribunal could, for example, find that the complainant did not meet  
the burden of proof for their case if the evidence they presented is incomplete or if the  
respondent is able to present evidence refuting the complainants allegations (Dulce  
Crowchild v. Nation Tsuutina, 2020 CHRT 6 (), at para. 10; Brunskill v. Canada Post  
Corporation, 2019 CHRT 22 (), at paras. 64 and 65 [Brunskill]; Nielsen, at para. 47;  
Polhill, at para. 58; Willcott, at para. 12).  
[31] On the other hand, if the complainant is able to meet the prima facie burden of proof,  
and depending on the circumstances of the complaint, the respondent may rely on defences  
in the CHRA, particularly under paragraphs 15(1)(a) and (e) of the CHRA, which are based  
on the existence of bona fide occupational requirements or justification, and the defence  
under section 16 of the CHRA, regarding special programs.  
[32] Lastly, the respondent could also present evidence to limit their liability under  
subsection 65(2) of the CHRA, when applicable in the circumstances.  
7
VI.  
A.  
Preliminary matters  
Tribunals jurisdictioncollateral attack on the PA  
[33] As the Tribunal noted at paragraph 22 above, the Respondent introduced a major  
argument that the Tribunal does not have jurisdiction in this case. The Tribunal cannot agree  
with the Respondents claims, for the reasons that follow.  
[34] First, the Respondent alleges that the proceeding brought by the Complainant is, in  
part, a collateral attack on the Quebec legislation that provides for police services on its  
territory, the Police Act, CQLR, c. P-13.1 (PA). Because this is a provincial act, the Tribunal  
would therefore not have jurisdiction. In this vein, the Respondent submits that, in his  
statement of particulars, the Complainant argued that the PA and the tripartite agreements  
are responsible for the alleged discrimination and that the tripartite agreements are  
necessarily linked to the provincial act.  
[35] In other words, the Respondent considers that when the Complainant argues that  
the PA and the tripartite agreements do not provide for minimum level 1 police services—  
which would be discriminatoryit is actually a collateral attack on the PA. It therefore argues  
that the Complainant did not challenge the validity of the PA in the appropriate forum and  
that the question of levels of police services offered is closely linked to the PA, a provincial  
act, and therefore excluded from the Tribunals jurisdiction.  
[36] It further argues that any suggestion by the Complainant that the fact the tripartite  
agreements do not set any levels of police service is a discriminatory act amounts to a  
collateral attack on the PA. It adds that it would be impossible for the federal government to  
provide such a level of police service because this is under the exclusive jurisdiction of the  
province (subsection 92(14) of the Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3, reprinted  
in RSC 1985, App. II, No. 5 (Constitution Act, 1867).  
[37] I disagree with the Respondent, and I believe the Tribunal has jurisdiction to hear this  
complaint. As previously noted, I do not agree with the Respondents argument that the  
complaint is, in whole or in part, a collateral attack on the PA.  
   
8
[38] It is undisputed that the Tribunal has no jurisdiction over a provincial act because it  
can only address issues under the Parliament of Canadas jurisdiction. The purpose of the  
CHRA, stated in section 2, is clear on this:  
The purpose of this Act is to extend the laws in Canada to give effect, within  
the purview of matters coming within the legislative authority of  
Parliament . . .  
[Emphasis added.]  
[39] It is also undisputed that police services are under provincial jurisdiction, in  
accordance with the authority the provinces have over the administration of justice  
(subs. 92(14) of the Constitution Act, 1867; see also Quebec (Attorney General) v. Picard,  
2020 FCA 74, at para. 42).  
[40] However, the evidence is clear that the FNPP is a federal program. The three parties  
involved have obligations and rights that result from the application of this program, as set  
out in the tripartite agreements (between the federal government, the provincial or territorial  
government and First Nations).  
[41] It is also clear from the evidence that one of the main components of applying the  
FNPP and implementing the tripartite agreements is the funding itself, which is provided, in  
part, by the Government of Canada. The Tribunal writes in partbecause the  
implementation of the FNPP is funded by the federal government and the province on a  
well-defined pro-rata basis of 52 percent and 48 percent of the cost of the police services,  
respectively.  
[42] However, this funding distribution only becomes effective in implementing the FNPP.  
In other words, if it did not apply the program, the federal government would not be involved  
in Indigenous police services since it is the province that ensures its territory is served by a  
police service, in accordance with the separation of powers set out in the Constitution Act,  
1867 (at subs. 92(14)).  
[43] This funding allows First Nations communities to establish an Indigenous police  
service according to various existing models that are set out in the FNPP. The evidence also  
indicates that the federal governments funding therefore circumscribes the funding offered  
by the provinces or territories; the Tribunal will address this aspect later in the decision.  
9
[44] The Tribunal is satisfied that the FNPP, its application and its implementation fall  
under its jurisdiction.  
[45] Additionally, the Tribunal notes that the Respondents arguments regarding the issue  
of jurisdiction completely ignore the Tribunals analysis in Family Caring Society 2016, at  
paragraphs 78 to 86.  
[46] We must remember that Parliament retains its exclusive legislative jurisdiction over  
Indians, and Lands reserved for the Indiansunder subsection 91(24) of the Constitution  
Act, 1867. On this point, the Tribunal will not repeat the analysis of members Marchildon  
and Lustig in Family Caring Society 2016, but it notes that this analysis, in the circumstances  
of the present complaint, is entirely relevant, convincing and unassailable.  
[47] While the Tribunal understands that Public Safety Canada does not offer direct and  
on the groundpolice services to Indigenous communities on reserve, which was shown  
by the evidence, it nonetheless funds part of the police services that are offered on reserve.  
[48] Depending on the model chosen, these police services can be offered by the  
province or territory or, as in the case of the Mashteuiatsh community, by the First Nation  
directly. In other words, Mashteuiatsh established its own Indigenous police service to  
provide on-reserve policing.  
[49] Therefore, police services on First Nationsreserves necessarily overlap the  
jurisdictions of the Parliament of Canada and of the provinces and territories. The federal  
government retains its exclusive legislative jurisdiction over Indians, and Lands reserved  
for the Indians(subsection 91(24) of the Constitution Act, 1867) while the provinces and  
territories retain their jurisdiction over the administration of justice (subsection 92(14) of the  
Constitution Act, 1867), which includes police services.  
[50] The federal Parliament decided to become involved in Indigenous police services as  
permitted under the Constitution, and in accordance with the division of powers set out in  
the Constitution Act 1867. It did not decide to offer police services on the Mashteuiatsh  
reserve, strictly speaking, but it did make a deliberate decision to become involved,  
10  
specifically by creating a funding program for First Nations police services. In creating and  
implementing the FNPP, it decided to develop a program, implement it and finance it.  
[51] It is acknowledged that once the federal Parliament decides to become involved in  
this regard, it cannot do so in a discriminatory manner; this is reflected in the Supreme  
Courts reasoning in Eldridge v. British Columbia (Attorney General), 1997 327  
(SCC), [1997] 3 SCR 624, at paragraph 42 [Eldridge].  
[52] In that case, and although it was ruling on a comparable situation involving the  
Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being  
Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (Canadian Charter), the Supreme  
Court found that the government cannot escape review under the Canadian Charter by  
entering into commercial or private agreements. The Tribunal adopted this analysis in  
Family Caring Society 2016. These conclusions by the Supreme Court are just as relevant  
in the circumstances of the present case.  
[53] Although the federal government is not necessarily becoming involved by providing  
police services itself in the Mashteuiatsh community, it did decide to implement a funding  
program that is managed by Public Safety Canada.  
[54] The fact that police services are offered by a third party, for example the province or  
territory or even the First Nation itself, as in the case of Mashteuiatsh, does not mean that  
the Government of Canada can escape human rights reviews under the Canadian Charter  
(Eldridge, at para. 42) or the CHRA (Family Caring Society 2016, at paras. 83 to 86).  
[55] In this regard, paragraph 86 of Family Caring Society 2016 is echoed in our case:  
the federal government, because of its constitutional obligation to First Nations, is in a  
situation where it offers Indigenous peoples the possibility of establishing an Indigenous  
police service via the implementation of the FNPP. Acting through a federal department,  
Public Safety Canada, it supervises the program, negotiates tripartite agreements and  
requires a degree of accountability from the First Nations. Thus, the Tribunal has the  
jurisdiction to determine whether Public Safety Canada, in this area, discriminated against  
the complainant.  
11  
[56] On another note, although the Complainant alleges in his statement of particulars  
that neither the PA nor the tripartite agreements [TRANSLATION] . . . provide policing  
coverage that meets the basic minimum level for the communities served by an Indigenous  
police force(Complainants Statement of Particulars, at para. 12), the Tribunal finds that it  
is the part involving the application and implementation of the FNPP and the resulting  
tripartite agreements that is relevant in the case before it.  
[57] This observation is confirmed when paragraph 13 of the Complainants statement of  
particulars is read together with paragraph 12. In that document, the Complainant states  
that the level of funding from the FNPP does not allow him to offer a minimum of policing  
coverage on the reserve, equivalent to the coverage offered by non-Indigenous police forces  
in Quebec.  
[58] The Tribunal does not understand this argument by the Complainant, who aims to  
challenge the minimum threshold of services set out right in the PA, which in any event is  
allegedly not under its jurisdiction. The Tribunal instead understands that he is alleging that  
the funding offered through the implementation of the FNPP, a federal program, does not  
allow him to ensure his members have a minimum level of police service, which would be  
equivalent to the level 1 minimum threshold under the PA. Therefore, the level of services  
is closely linked to the funding itself, which would affect the services offered to members of  
Mashteuiatsh. This assertion was already conceded by the Respondent in its outline of  
argument, at paragraphs 159 and 160.  
[59] Therefore, the Tribunal is not satisfied that the exercise the Respondent is asking it  
to do is required in the circumstances. The Tribunal is not persuaded that the Complainants  
complaint is, in whole or in part, a collateral attack on the PA.  
[60] At any rate, the Tribunal will not need to take a position on the PA. The Tribunal is  
able to determine, on the evidence presented at the hearing, whether the FNPP and its  
application have discriminatory effects under the CHRA stemming from the funding offered  
and the resulting level of police services, as well as from the duration of the agreements.  
[61] For these reasons, the Tribunal dismisses this part of the Respondents arguments  
and continues its analysis.  
12  
B.  
Res judicataSuperior Court of Québec and appeal to Court of Appeal of  
Québec  
[62] The Respondent argued that the Complainant is attempting to present the Tribunal  
with a legal debate that has already been heard before another court of law.  
[63] Indeed, the Superior Court of Québec (Superior Court) ruled on an originating  
application on December 19, 2019, and dismissed the plaintiffs action (Takuhikan c.  
Procureur général du Québec, 2019 QCCS 5699 () [Takuhikan]). That decision was,  
however, appealed. As of the date of the present decision, the parties have not informed the  
Tribunal whether the Court of Appeal has ruled on that appeal.  
[64] The Respondent argues that in the Tribunal proceeding, the Complainant is raising  
the same legal reasoning with regard to the Crowns obligations to negotiate in good faith,  
act with honour and fulfill its fiduciary duty to First Nations  
[65] In its opinion, all the arguments tied to this reasoning were already decided by the  
Honourable Robert Dufresne in Takuhikan and are therefore res judicata, such that the  
Tribunal cannot reconsider them.  
[66] Moreover, the Respondent submits that certain findings of fact, of law and of mixed  
fact and law that were previously decided by the Superior Court should not be brought before  
the Tribunal again. The Respondent listed a series of conclusions the Superior Court drew  
in this regard (Respondents Outline of Argument, at para. 75).  
[67] The Respondent relies on Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63 ()  
[Toronto] and Penner v. Niagara (Regional Police Services Board), 2013 SCC 19 ()  
[Penner] and bases its arguments on the principles of issue estoppel, the availability of more  
appropriate recourse, and the avoidance of multiplicity of proceedings and contradictory  
judgments.  
[68] It is important to note that the Respondent is not asking for the complaint before the  
Tribunal to be dismissed in its entirety on the basis of issue estoppel. It is instead asking  
that the findings of fact, of law and of mixed fact and law made by the Superior Court not be  
 
13  
challenged at the hearing of the complaint before the Tribunal (Respondents Outline of  
Argument, at para. 76).  
[69] The Tribunal finds that it must review the key principles of issue estoppel. First, there  
are multiple doctrines enshrining the finality of judicial decisions:  
issue estoppel and cause of action estoppel (subcategories of res judicata);  
collateral attack; and  
abuse of process.  
[70] These doctrines have a fundamental place in our legal system, under both common  
law and Canadian civil law. They are the vehicles our legal systems have used to embody  
in the litigation process the principles of finality, the avoidance of multiplicity of proceedings,  
and protection for the integrity of the administration of justice. All these principles emanate  
from the greater principle of fairness (British Columbia (WorkersCompensation Board) v.  
Figliola, 2011 SCC 52 () [Figliola], at para. 25).  
[71] As noted by my colleague Colleen Harrington in Beattie and Bangloy v. Indigenous  
and Northern Affairs Canada, 2019 CHRT 45 (), at paragraph 64, confirmed by the  
Federal Court of Appeal in Bangloy v. The Attorney General of Canada, 2021 FCA 245  
[Beattie and Bangloy], and relying on the reasons of our colleague Kirsten Mercer in Todd  
v. City of Ottawa, 2017 CHRT 23 (), at paragraph 36, the greater doctrine of finality  
provides that once an issue is decided by a competent court or tribunal, it cannot be  
relitigated, except in an appeal or a judicial review proceeding.  
[72] First of all, the Supreme Court recognized that this doctrine and its related  
discretionary power apply to administrative tribunals and their decisions (Penner, at  
para. 31; Figliola, at para. 26).  
[73] In the present case, when the Respondent states that the issues of fact, law and  
mixed fact and law that the Superior Court has already decided should not be relitigated by  
the Tribunal, we understand that the respondent is referring to the principle of issue  
14  
estoppel. It is therefore in light of this principle that the Tribunal will analyze the  
Respondents arguments.  
[74] The test for applying the doctrine of issue estoppel as described in Danyluk v.  
Ainsworth Technologies Inc., 2001 SCC 44 (), at paragraph 33 [Danyluk], requires a  
two-step analysis.  
[75] First, for issue estoppel to apply, three conditions must be met:  
(1) the same question has been decided;  
(2) the earlier decision was final; and  
(3) the parties or their privies were the same.  
(See Angle v. Minister of National Revenue, 1974 168 (SCC), at  
page 254 [Angle]; Figliola, at para. 27; Beattie and Bangloy, at para. 66).  
[76] It has also been established that the decision maker retains discretion to not apply  
issue estoppel when its application would work an injustice (Penner, at para. 29). As noted  
by the Supreme Court in Danyluk, at paragraph 1, this discretion is based on the idea that  
[a] judicial doctrine developed to serve the ends of justice should not be applied  
mechanically to work an injustice.”  
[77] In other words, if the three conditions are met, the Tribunal must then ask whether,  
in exercising its discretion, this form of estoppel ought to be applied (Danyluk, para. 33).  
[78] The Tribunal will analyze these three conditions in the next paragraphs.  
(i)  
Res judicata  
[79] First, the issue before the Tribunal was not decided by the Superior Court.  
[80] It is agreed that same facts (or the same factual matrix) can lead to two different  
causes of action (Danyluk, at para. 54; McIntosh v. Parent, 1924 401 (ON CA), at  
page 423). This is true in the present case.  
 
15  
[81] For the purposes of applying issue estoppel, however, care must be taken to not  
confuse cause of actionand issue, the first being covered by issue estoppel, which does  
not apply in this case since the causes of action are clearly different (see for example  
E. Charbonneau, Préclusion, res judicata et préclusion découlant dune question déjà  
tranchée : des éclaircissements simposent, in the Canadian Bar Review, Vol. 93, No. 2,  
371, at page 381).  
[82] The Tribunal also notes that issueand factsmust not be confused (Mangat v.  
Canada (Citizenship and Immigration), 2019 FC 1299 (), at para. 23; Alderman v.  
North Shore Studio Management Ltd., 1997 2053 (BC SC), at para. 15). On this  
subject, the Supreme Court of Canada reminds us that  
. . . [issue] estoppel, in other words, extends to the issues of fact, law, and  
mixed fact and law that are necessarily bound up with the determination  
of that issuein the prior proceeding.  
(Danyluk, at para. 54)  
[Emphasis added.]  
[83] In other words, and again from Danyluk, citing Angle, [t]he question out of which the  
estoppel is said to arise must have been fundamental to the decision arrived atin the earlier  
proceeding(para. 24; see also Donald J. Lange, The Doctrine of Res Judicata, 2nd ed.  
(Markham: Lexis Nexis Butterworths: 2004), at page 385).  
[84] The Tribunal again notes that the Respondent had filed a motion for a stay of the  
Tribunals proceedings in 2017 because of the originating application filed in Superior Court,  
which had striking similarities to the complaint before the Tribunal. The Tribunal dismissed  
the motion for the reasons stated in Gilbert Dominique (on behalf of the members of the  
Pekuakamiulnuatsh First Nation) v. Public Safety Canada, 2019 CHRT 9 ()  
[Dominique 2019].  
[85] Without presenting the Tribunals reasoning in that ruling in its entirety, one of the  
important grounds in support of dismissing the motion was that the Superior Court and the  
Tribunal were asked to perform very different legal analyses, one based in part on the  
Crowns obligations to negotiate in good faith, act with honour and discharge its fiduciary  
duties to the First Nations (Dominique 2019, at paragraphs 16 to 18). It is a notable  
16  
difference, in that the Tribunal must apply an analysis based on human rights and  
discrimination as developed in Moore, among other cases.  
[86] It is relevant to cite certain excerpts from Dominique 2019. At paragraph 12, the  
Tribunal wrote:  
A court or tribunal must rule on the facts, interpret them and apply the law to  
the facts of each case. Based to its own jurisdiction and the nature of disputes  
that it hears, a court or tribunal is required to analyze the facts according to its  
own unique perspective. Therefore, two of them may hear evidence that is  
similar or identical on a number of different aspects, but they must analyze  
this evidence differently with a view to rendering judgments that will not have  
the same effects. Consequently, it is above all the nature of the dispute that  
is important.  
[87] At paragraphs 16 to 18, the Tribunal concluded as follows:  
[16] The proceedings before the Superior Court involve aspects and principles  
which are not part of the analysis performed by the Tribunal and developed  
in Moore. The parties are asking the Superior Court to analyze, among other  
issues, whether the defendants failed to fulfill their obligations to negotiate in  
good faith, to act with honour and to discharge their fiduciary duties to the First  
Nation (see the originating application, as well as the issues set out in in the  
request for setting down for trial and judgment by way of a joint declaration).  
The Tribunal has not been asked to take a position on these aspects in these  
proceedings.  
[17] As noted by the Honorable Sandra Bouchard, this forms the cornerstone  
of the First Nations action in the Superior Court (see paragraphs 32 and 33  
of her judgment, Pekuakamiulnuatsh Takuhikan c. Procureur général du  
Canada, 2017 QCCS 4787). She provides useful insight into the foundations  
of the principle of the honour of the Crown and the Crowns fiduciary duty, as  
well as the potential vulnerability assessment concerning the plaintiff (see  
judgment, para. 46).  
[18] There is nothing in the analysis made by the Honourable Sandra  
Bouchard concerning the notions of fiduciary duties, the honour of the Crown  
or good faith negotiations that would suggest the need to present evidence  
concerning any prohibited ground for discrimination or adverse differential  
treatment that the complainant allegedly suffered in the context of the  
provision or denial of services. Moreover, there is nothing to suggest the need  
to present evidence concerning an existing link between these two aspects  
developed, most notably, in Moore.  
17  
[88] Having now had the opportunity to consult the Superior Court decision (Takuhikan,  
cited above), written by the Honourable Robert Dufresne, the Tribunal is even more  
persuaded that its analysis in Dominique 2019 was reasonable and fair.  
[89] Indeed, the Tribunal notes that the Superior Court did not perform any analysis of the  
plaintiffs originating application in respect of a question of discrimination and did not draw  
any conclusions on this subject.  
[90] The analysis of the Superior Court judge focused solely on contract law, the  
obligation of the governments of Canada and Quebec to act with honour, and the federal  
Crowns fiduciary duties, as these questions were at issue, given the plaintiffs vulnerability  
(Takuhikan, at para. 54).  
[91] At paragraphs 55 and following, the Court then analyzed the rules of contract law  
under the Civil Code of Québec, CQLR c. CCQ-1991, the concepts of free and informed  
consent, the civil liability regime resulting from contractual commitments and the related  
rules of interpretation.  
[92] It continued its analysis of the tripartite agreements and the concepts of contract of  
adhesion, abusive clause and bad faith. Lastly, the judge considered the issues of the  
Government of Canadas fiduciary duty to the First Nation, the First Nations degree of  
vulnerability, the lack of any particular or identifiable collective interest with regard to the  
police services in the community, and the obligation to act with honour.  
[93] This is enough to satisfy the Tribunal that the Superior Courts analysis was vastly  
different from the analysis required in the present case. The Tribunal must determine  
whether there was discrimination, not whether the Respondent failed in its obligation to  
negotiate in good faith, act with honour and fulfil its fiduciary duty to First Nations.  
[94] The issues in both cases are therefore not comparable. The Tribunal concludes that  
the issue in the present case was not decided by the other jurisdiction.  
18  
(ii)  
Final judgment  
[95] This criterion is met. There is little to say since the Superior Court decision is final  
and binding, despite the appeal filed by one of the parties.  
[96] On this point, the Tribunal notes that the finality of a decision does not affect an  
appellants right of appeal or review. Final judgment instead refers to the idea that a  
competent court or tribunal has made a ruling that decides . . . in whole or in part any  
substantive right of any of the parties in controversy in any judicial proceeding(subs. 2(1)  
of the Federal Courts Act, R.S.C. 1985, c. F-7).  
[97] A final judgment addresses an issue essential to the verdict (Duhamel v. The  
Queen, 1984 126 (SCC), at page 558). In other words, the competent tribunal or  
court has exhausted its jurisdiction, its authority; it has fulfilled the mandate assigned to it  
(Constantinescu v. Correctional Service Canada, 2019 CHRT 49, at paras. 78 to 81).  
[98] This is indeed what the Superior Court did; it rendered a final judgment on the  
plaintiffs originating application by ruling on the merits of the case, thereby exhausting its  
jurisdiction.  
(iii) Identity of parties  
[99] There is no identity of parties in either case.  
[100] The third condition for issue estoppel requires that the parties or their privies must be  
the same in both cases.  
[101] To determine whether a person is a partys privy, there must be a sufficient degree  
of common interest between the party and the privy to make it fair to bind the party to the  
determinations made in the previous proceedings (see in particular OConnor v. Canadian  
National Railway, 2006 CHRT 5 (), at para. 48 [OConnor]; Danyluk, at para. 60).  
[102] The Tribunal finds that the Complainant, Mr. Dominique, on behalf of the members  
of the Pekuakamiulnuatsh First Nation, is a privy of the Pekuakamiulnuatsh Takuhikan, the  
administrative organization of the band, of the First Nation. It is the representative of the  
   
19  
Pekuakamiulnuatsh First Nation, which itself is represented by Mr. Dominique in this  
complaint.  
[103] With regard to the identity of the defendants before the Superior Court, already, the  
Attorney General of Quebec is not a party in the case before the Tribunal.  
[104] As for the Attorney General of Canada, he was a defendant before the Superior  
Court, but before the Tribunal, the Respondent is, rather, the Department of Public Safety  
Canada.  
[105] The Tribunals reasoning in Wade v. Canada (Attorney General), 2008 CHRT 9, at  
paragraphs 16 to 21 is relevant in the circumstances. Following this reasoning, it can be  
concluded that the Department of Public Safety Canada does not, in fact, have a legal  
personality. Therefore, the proper respondentto be named before the Tribunal would  
instead be the Attorney General of Canada (see also Carter v. Fisheries and Oceans  
Canada, 2014 CHRT 3, at para. 60, for similar reasoning).  
[106] However, this observation is of little practical use in the circumstances before us  
because, at any rate, there is no identity of parties because of the presence of the  
Commission.  
[107] The Commission was not a party in the Superior Court proceeding, but it is present  
in the case before the Tribunal, having participated fully in this matter.  
[108] The Commission is certainly not a privy of the Complainant, who is himself a privy of  
the plaintiff in the Superior Court case. On this point, three Tribunal decisions are relevant:  
Desormeaux v. Ottawa-Carleton Regional Transit Commission, 2002 61853  
(CHRT), Parisien v. Ottawa-Carleton Regional Transit Commission, 2002 61850  
(CHRT), and Thompson v. Rivtow Marine Limited, 2001 38323 (CHRT).  
[109] In the Tribunals opinion, the Commission and the Complainant are both independent  
parties in this complaint filed under the CHRA (subsection 50(1) of the CHRA). The  
Commission does not represent the Complainant; its precise mandate is to represent the  
public interest (section 51 of the CHRA).  
20  
[110] As such, it would be contrary to the underlying principles of the CHRA to conclude  
that the Commission is a privy of the Complainant. If this were the case, in the words of the  
Honourable Anne Mactavish when she was a member of this Tribunal,  
. . . the ability of the Canadian Human Rights Commission to take positions  
that it believes are in the public interest [would be] inhibited by findings made  
in the context of other proceedings, proceedings of which the Commission  
would likely have had no notice and no opportunity to participate in.  
(Thompson, at para. 26; see also, in particular, Tweten v. RTL Robinson  
Enterprises Ltd., 2004 CHRT 8, at para. 22 et seq.; Campbell v. Toronto  
District School Board, 2008 HRTO 62 (), at para. 34; Ontario (Human  
Rights Commission) v. Naraine, 2001 21234 (ON CA), at para. 64).  
[111] As long as the Commission was not present in the Superior Court case, the Tribunal  
could conclude that there is no identity of parties.  
[112] As a result, and since two of the three issue estoppel criteria were not met, the  
Tribunal cannot apply this doctrine, and no argument on relitigation and res judicata can be  
accepted. The Tribunal therefore does not need to consider whether it is bound by the  
questions decided by the Superior Court, be they questions of fact, of law or of mixed fact  
and law.  
(iv)  
Abuse of process and residual discretion  
[113] Moreover, the Supreme Court, in Toronto, found that if the conditions required for  
issue estoppel to apply are not met, the abuse of process doctrine can apply, in certain  
cases.  
[114] The reasoning is as follows: there would be abuse of process where allowing  
relitigation would violate such principles as judicial economy, consistency, finality and the  
integrity of the administration of justice (Toronto, at para. 37).  
[115] In the present case, the Respondent did not ask the Tribunal to apply the principle of  
abuse of process in the event that all the conditions regarding issue estoppel were not met.  
Even though it does not have to rule on this issue, the Tribunal points out that in this case,  
the Complainant is not seeking to relitigate. The Tribunal notes its conclusion that it is  
 
21  
dealing with different causes of action. As a result, given the circumstances of this case, the  
Tribunal will not apply the principle of abuse of process.  
[116] Lastly, the Tribunal also has residual discretion to refuse to apply the issue estoppel  
doctrine, even when all three conditions are present, if applying it would work an injustice  
(Danyluk, at paras. 1 and 62). The Supreme Court recognized that this power is broader for  
administrative tribunals, considering their raison dêtre (Danyluk, at para. 62). Justice  
Mactavish exercised this residual discretion as a member of this Tribunal, in Parisien v.  
Ottawa-Carleton Regional Transit Commission, 2002 61850 (CHRT), at  
paragraph 34.  
[117] Now, even though the Tribunal has already found that the three criteria have not been  
met, it is not satisfied that, in any event, there would be an injustice if it were to continue its  
analysis on the issue of discrimination. On the contrary, the Tribunal finds that it is in the  
interests of justice to decide the issue of discrimination raised in this case. As a result, even  
if the Tribunal had concluded that issue estoppel applied, it would nonetheless have used  
its discretionary power not to apply it.  
(v)  
Additional remarks regarding some of the Complainants arguments  
[118] Several arguments presented by the Complainant require additional remarks by the  
Tribunal.  
[119] The Tribunal does not intend to dwell on some of the Complainants arguments  
because they are not relevant or necessary for it to decide the case on its merits.  
[120] In particular, the Tribunal will not address the Complainants arguments involving the  
Crowns obligation to act with honour towards First Nations, the fiduciary relationship and  
the duties associated with it, the Crowns commitments to the well-being and safety of  
Indigenous people, the vulnerability of First Nations, specific Indigenous interests, and the  
concept of contracts of adhesion.  
 
22  
[121] The Tribunal notes that the Complainant argued these issues before the Superior  
Court. These arguments have already been the subject of a judicial debate resulting in a  
decision, which is being appealed.  
[122] The Tribunal also does not intend to analyze the Complainants arguments involving  
the Canadian Charter, in particular when the Complainant raises section 7 and the right to  
security, section 35 and the principle of self-government, and section 15 with regard to  
equality rights.  
[123] It is not within the Tribunals jurisdiction to consider these issues in this case or to find  
there is a violation of constitutional rights set out, in particular, under section 7, 15 or 35 of  
the Canadian Charter. The Tribunal will focus its analysis on the approach established in  
Moore to determine whether the Complainant was the victim of discrimination under  
section 5 of the CHRA.  
VII. Analysis  
[124] As stated earlier, the complaint filed by the Complainant concerns police services  
offered in the community of Mashteuiatsh and more specifically as part of the  
implementation of the FNPP.  
[125] The Complainant alleges that he was treated adversely in the provision of services  
customarily available to the general public in three crucial areas relating to the  
implementation of the FNPP: funding, the level of police service, and the duration of the  
tripartite agreements.  
[126] For section 5 of the CHRA to apply, the Complainant must demonstrate  
1) that he has a characteristic protected from discrimination under the CHRA;  
2) that he experienced an adverse impact with respect to the provision of a service  
customarily available to the general public; and  
3) that the protected characteristic was a factor in the adverse impact (Moore, at  
para 33).  
 
23  
[127] The Tribunal must analyze the evidence, including evidence presented by the  
Respondent, as a whole in order to determine whether the Complainant has met his burden  
of proof (Bombardier at para 58). The Tribunal will analyze these three steps in the following  
sections.  
[128] It should be noted that the parties filed a considerable number of documents during  
the hearing. However, the Tribunal does not need to refer to each and every piece of  
evidence that was filed and entered in order to make a finding of discrimination.  
[129] In the interest of brevity and to conduct the proceeding as expeditiously as possible  
(subsection 48.9(1) of the CHRA), the Tribunal will focus solely on the elements it considers  
to be essential, necessary, and relevant in making this decision (Turner v. Canada (Attorney  
General), 2012 FCA 159 (), at para 40; Constantinescu v. Correctional Service  
Canada, 2020 CHRT 3 (), at para 54; Karas v. Canadian Blood Services and Health  
Canada, 2021 CHRT 2, at para 32).  
A.  
Prohibited grounds of discrimination Race and national or ethnic origin  
[130] There is little to say with regard to this first element of the analysis in Moore. The  
Complainant alleges that because of his race and national or ethnic origin he experienced  
an adverse impact in the provision of a service, under section 5 of the CHRA.  
[131] The personal characteristics of race and national or ethnic origin are commonly  
invoked in claims of discrimination against Indigenous peoples (for example, see First  
Nations Child and Family Caring Society 2016; André v. Matimekush-Lac John Nation Innu,  
2021 CHRT 8 (); Nielsen). These prohibited grounds of discrimination are listed in the  
CHRA (section 3 of the CHRA).  
[132] That being said, the Complainant and the Pekuakamiulnuatsh are of First Nations  
heritage is not contested. This is ample reason for the Tribunal to conclude that the  
Complainant has the personal characteristics of race and national or ethnic origin that are  
prohibited grounds of discrimination under the CHRA (section 3 of the CHRA).  
 
24  
B.  
Adverse treatment on a prohibited ground of discrimination in the provision  
of a service (paragraph 5(b) of the CHRA)  
[133] For the reasons that follow, the Tribunal finds that Public Safety Canada provides a  
service as defined in the CHRA to the Complainant through the implementation and  
application of the FNPP. The FNPP is a federally financed police services program created  
for First Nation communities.  
[134] The Tribunal also finds that the Complainant was treated adversely by the  
Respondent in the provision of this service because of his race and national or ethnic origin.  
(i)  
Police services  
[135] The Tribunal believes it is necessary to first provide background information on the  
FNPP and Indigenous policing as well as policing in the province of Quebec. The reader will  
thus be able to better understand the complaint, its context, and the reasoning behind this  
decision.  
(a)  
Indigenous policing and the FNPP  
[136] The Tribunal understands that there is a long history of policing on Indigenous  
reserves in Canada. The Complainant and the Commission have filed several documents  
that describe the history of policing on reserves (for example, exhibits C-2, C-9, C-13, C-36,  
P-19, P-30, P-31, to name a few).  
[137] In particular, the Indian Policing Policy Review Task Force Report (the 1990 Policing  
Report) published in January 1990 (C-2) allows us to contextualize the creation of the  
FNPP. Then, the final report of the Public Inquiry Commission on relations between  
Indigenous Peoples and certain public services: listening, reconciliation and progress (2019)  
(the Viens Report) (C-36) captures the essence of the historical grievances of First Nations  
against police services in a very contemporary context.  
   
25  
[138] Though the Tribunal is aware that these pieces of evidence do not, in themselves,  
demonstrate the existence of discrimination, they are nevertheless relevant and probative.  
The Tribunal has the power to accept evidence that it sees fit, regardless of whether the  
evidence would be admissible in a court of law (paragraph 50(3)(c) of the CHRA). It is in  
considering the reports, studies, and other such documents together that their meaning  
emerges.  
[139] These pieces of evidence make it possible to contextualize policing on reserves and  
allow the Tribunal to better understand past (and present) issues that are necessarily related  
to this complaint.  
[140] Thus, they reveal that policing has definitely evolved over the years and has not  
always been offered or funded under the same model or in the same way. In the interest of  
brevity, the Tribunal will not examine the entire history and will focus its analysis on the most  
relevant and decisive factors in the circumstances.  
[141] The FNPP was created to update the Policy. This program provides First Nations  
communities across the country with, among other things, a professional and effective police  
service that is culturally appropriate and accountable to local populations.  
[142] The program is a response to the 1990 Policing Report. This report was the  
culmination of the work of a federal cross-departmental task force established in 1986. The  
purpose of the task force was to study the national Indian reserve policing policy.  
[143] As the 1990 Policing Report states, prior to this task force, there was no  
comprehensive policy to guide decisions relating to federal government involvement in the  
matter or to the development of future programs. The existence of multiple funding types  
and formulas as well as an increase in requests for expanded police services led the  
Treasury Board of the day to review the federal Indian reserve policing policy in depth. It  
was known at that time, and the task force also noted, that members of First Nations were  
over-represented in the Canadian criminal justice system.  
[144] On page 2 of the 1990 Policing Report, the task force stated that:  
26  
[e]quality of access to appropriate policing services on-reserve, at a level and  
quality available to other similarly situated communities in the region, should  
be the overall aim of the concerned parties.  
[145] The task force added that similar results could not be expected across Indigenous  
communities, as conditions can differ from one community to another. It also acknowledged  
that Indigenous and non-Indigenous societies are markedly different, in socio-economic as  
well as spiritual and cultural terms.  
[146] The 1990 Policing Report also highlighted certain tensions between the constitutional  
and legal jurisdictions of the federal government and the provincial and territorial  
governments. It had already been established that Parliament had the discretion needed to  
define the responsibilities it wished to endorse with regard to policing on reserves.  
[147] However, as of the date of this decision, Parliament has not legislated in the area,  
thereby giving free rein to the provinces. The Government of Canada decided instead to  
contribute financially to policing on Indigenous reserves.  
[148] This being said, the FNPP is based on the principle of partnership between the  
federal government, the provinces and territories, and First Nations. This partnership takes  
the form of tripartite agreements to implement police services that are responsive to the  
needs of Indigenous communities.  
[149] The Tribunal understands that the FNPP has undergone several modifications over  
time, but that these modifications have not substantially altered the underlying principles of  
the program.  
[150] In fact, as stated in the introduction to the Policy that created the FNPP, the federal  
government reaffirmed its commitment to support First Nations in becoming self-governing  
and self-sufficient, and to maintain partnerships based on trust, mutual respect, and  
participation in decision-making.  
[151] More specifically, the objective of the program is:  
. . . [to improve] social order, public security and personal safety in First  
Nations communities . . . .  
27  
Additionally, it:  
. . . provides a practical way to improve the administration of justice for First  
Nations through the establishment of First Nations police services that are  
professional, effective, and responsive to the particular needs of the  
community. This is accomplished through the provision of cost-shared  
funding of police services, and related support and assistance.  
(C-4, at page 3.)  
[Emphasis added.]  
[152] The Policy states that it is also a way of implementing Indigenous peoplesinherent  
right to self-government and to the negotiation of that self-government, which is consistent  
with the application of the federal policy in that regard.  
[153] The three main objectives of the Policy are: 1) to strengthen public security and  
personal safety, 2) to increase responsibility and accountability, and, lastly, 3) to build a new  
type of partnership with First Nations communities. The Policy is based on certain guiding  
principles, some of which are more relevant than others to this case.  
[154] For example, the Policy is based on the principle that communities should have  
access to police services that are adapted to their needs and that are equal in quality and  
quantity to services provided in neighbouring communities with similar conditions. The  
Policy also provides that First Nations should have input regarding the level and quality of  
service provided to them, and that First Nations police officers should have the same  
responsibilities and authorities as other police officers in Canada. Additionally, the services  
must be provided by a suitable number of police officers of cultural and linguistic  
backgrounds similar to those of the communities they serve in order to ensure that services  
are effective and culturally appropriate.  
[155] The Policy also states that police service models in First Nations communities should  
be at least equivalent to those offered in neighbouring communities with similar conditions,  
and that First Nations should be involved in choosing a model that is adapted to their  
particular needs while being as cost-effective as possible. Finally, First Nations should have  
an effective and appropriate role in directing their police service, with the understanding that  
the police service must be accountable to the population.  
28  
[156] That being said, the Policy sets out the manner of funding for police services in First  
Nations communities and provides that this funding is based on tripartite agreements. Under  
these agreements, the federal government pays 52 percent, and the province or territory  
pays 48 percent of the government contribution toward the cost of First Nations policing  
services. The Policy also encourages First Nations communities to pay, where possible, for  
a portion of the cost of their policing service, particularly for enhanced services.  
[157] The Policy also proposes examples of police service models. It should be noted that,  
in this case, Mashteuiatsh chose a self-administered police service model. However, this is  
not the only possible model.  
(b)  
Police services in the province of Quebec  
[158] The evidence shows that the Sûreté du Québec (SQ) is the national police force”  
of Quebec, that is, the provincial police force in the province of Quebec (section 50 of the  
PA).  
[159] It is common ground that the SQ has jurisdiction throughout all of Quebec, including  
Indigenous reserves, as they are not exempt from the application of provincial legislation, in  
this case, the PA (see Cardinal v. Attorney General of Alberta, 1973 980 (SCC)). The  
evidence makes clear that in the absence of an Indigenous police service on a reserve, First  
Nations receive police services from the SQ.  
[160] Mr. Jean-Sébastien Dion (Mr. Dion), who was the Directeur des organisations  
policières aux activités [Director of Police Organization] at the Ministère de la Sécurité  
publique [Department of Public Safety] of Quebec on the date of his testimony, provided the  
Tribunal with much useful and relevant information about the structure of police services in  
Quebec.  
[161] The evidence demonstrates that there are five types of police forces that may act in  
Quebec: 1) the SQ, 2) municipal police forces, 3) Indigenous police forces, 4) the Royal  
Canadian Mounted Police (RCMP), and 5) specialized police forces, which include the  
UPAC (Unité permanente anticorruption, an anti-corruption squad) and the BEI (Bureau  
denquête indépendante).  
29  
[162] The SQs responsibilities include applying the Criminal Code (R.S.C. 1985, c. C-46)  
and municipal regulations applicable in the territory in question. Indigenous police, for their  
part, are assigned the same roles on reserves as the SQ as well as any roles set out in their  
agreements.  
[163] Sections 90 and following of the PA provide for the establishment of Native police  
forces. More specifically, section 90 of the PA allows the Government of Quebec to enter  
into agreements to establish a Native police force.  
[164] In this regard, Mr. Dion testified that the vast majority of these agreements are  
tripartite, that is, between the Government of Quebec, the Government of Canada, and the  
First Nation. That said, he qualified his statement by adding that the PA does not specifically  
provide for tripartite agreements. Rather, section 90 mentions an agreement, which could  
be between the Government (of Quebec) and one or more Indigenous communities, each  
represented by its band council.  
[165] The evidence also demonstrates that police services in Quebec are divided into six  
levels, where level 1 is the lowest level of services and level 6 is the highest level of services.  
Mr. Dion described the levels as follows: the higher the level, the more complex the police  
services provided.  
[166] The levels of service are set out in the Regulation respecting the police services that  
municipal police forces and the Sûreté du Québec must provide according to their level of  
jurisdiction, CQLR, c. P-13.1, r. 6 (Police Services Regulation).  
[167] Each level of services includes the services from the levels below. In other words,  
level 2 comprises services specific to level 2 as well as all services from level 1; level 3  
comprises services specific to level 3 as well as all services from levels 1 and 2; and so  
forth.  
[168] As the provincial police of Quebec, the SQ provides level 6 services  
(subsection 70(3) of the PA) and therefore provides all services from all levels.  
[169] This means that the SQ can play a supplemental role or a superior role. It can assist  
other police forces when the latter are unable to provide certain services for different  
30  
reasons. The SQ plays a supplementalrole when it assists a police force by providing a  
service that the police force should provide according to its level, but which it is unable to  
provide. The SQ plays a superiorrole when it provides a higher-level service that a police  
force does not provide at its level. We will see later in the decision that the SQ does indeed  
assist the Mashteuiatsh police.  
[170] Without getting into all the details and particularities of certain municipalities, we can  
state that the evidence shows that police services are provided by the SQ to municipalities  
with fewer than 50,000 inhabitants and by a municipal police force to municipalities with  
more than 50,000 inhabitants (section 72 of the PA). Payment for police services provided  
by the SQ to municipalities with fewer than 50,000 inhabitants is established by regulation  
using a predetermined formula. It is unnecessary to enter into details on this subject, as it is  
not determinative in the circumstances.  
[171] Mr. Dion testified that, on the dates of the Tribunal hearing, the SQ was providing  
police services to 11 Indigenous communities in the territory of Quebec. Testimony by  
Richard Coleman (Mr. Coleman) is also relevant to this matter. On September 11, 2019,  
the day he testified before the Superior Court, Mr. Coleman was working as the Director of  
the Bureau des relations avec les autochtones [Indigenous Relations Bureau] of the Bureau  
du sous-ministre [Deputy Ministers Office] at Quebecs Department of Public Safety.  
Although Mr. Coleman did not testify before the Tribunal, the parties filed the transcripts of  
his testimony before the Superior Court as evidence in this case.  
[172] Mr. Coleman also confirmed that 11 First Nations, together comprising 55 Indigenous  
communities, are recognized in Quebec. In 44 of these communities, police services are  
provided by an Indigenous police service administered by the First Nations themselves.  
[173] Mr. Coleman explained that in 7 of the 11 communities currently receiving police  
services from the SQ, police services had once been provided by Indigenous police, but had  
been discontinued. The SQ now provides police services in these communities. There are  
communities in other situations, including some that are considered to be municipalities  
within a regional county municipality (RCM), but the Tribunal does not believe it necessary  
to consider them further as they are not determinative in the circumstances.  
31  
[174] What is important to note is that the evidence shows that the communities receiving  
police services from the SQ are not billed for these services. There is no charge to them, as  
Mr. Dion states. Similarly, the assistance provided by the SQ to Indigenous police forces is  
also free of charge. The costs are not billed to the community and are a part of the SQs  
budget and, therefore, covered by the taxpayers of Quebec.  
[175] The evidence shows that the SQ supports and has supported Sécurite publique  
de Mashteuiatsh [Mashteuiatsh Public Safety] by lending, for example, personnel, two  
senior officers for a period of approximately two years, and by providing access to an indoor  
firing range.  
[176] In the same vein, Ms. Ginette Séguin, a police officer with more than 28 years of  
policing experience, including in certain remote regions, explained that the SQ supports the  
Mashteuiatsh police service by providing certain services that the latter is unable to offer, for  
example, services requiring an all-terrain vehicle or marine surveillance.  
(c)  
Police services in the community of Mashteuiatsh  
[177] The community of Mashteuiatsh has an administrative and political body  
(Pekuakamiulnuatsh Takuhikan) that manages various services, including Mashteuiatsh  
Public Safety.  
[178] Mr. Clifford Moar, who was chief of the First Nation at the time of the hearing, and  
who had been chief for many years in Mashteuiatsh, testified before the Tribunal. He  
explained that, given the long history of the Indian Act (R.S.C. 1985, c. I-5) and its objective  
of assimilating Indigenous peoples, the First Nation wanted to provide its members with  
services that were adapted to the needs and culture of the community. The First Nation  
decided to take back as much control as possible over its programs. The protection of the  
Nation and its language, culture, and institutions, as well as its long-term survival, are all  
challenges that the First Nation must face.  
[179] Without going into all the details, the Tribunal understands from the evidence that the  
history of policing in Mashteuiatsh began with the RCMP. Mr. Moar recalled that when an  
32  
RCMP officer came to the reserve, it was to enforce the law. Other than that, there was no  
RCMP presence on the reserve.  
[180] After that, a first police force was created in Pointe-Bleu (Mashteuiatsh); this force  
was replaced by the Amerindian Police in the late 1970s and early 1980s. Mashteuiatsh  
then decided to leave the Amerindian Police Council because of a lack of resources and  
funding. The Mashteuiatsh police service then came into being and was later expanded.  
[181] Mr. Moar testified that it was particularly important for the community to have police  
services. In fact, along with education, it was one of the first services to be created within  
the community.  
[182] For Mr. Moar and his community, police services represent protection and security,  
concepts that have existed since the beginnings of the Nation. In the words of Mr. Moar,  
police services are a shield for protecting themselves from others, but also for protecting  
each other. The Tribunal understands that the police service is a source of pride for the First  
Nation.  
[183] Importantly, Mr. Moar also testified that he has seen a shift in attitudes among the  
members of his community, since the police force, which is Indigenous, is no longer seen  
as an enemy, but rather as a form of protection.  
[184] That being said, the evidence does in fact show that the police service model chosen  
by Mashteuiatsh is that of an Indigenous police force administered by the First Nation itself.  
[185] This choice therefore opens the door to funding from the federal government under  
the FNPP. The First Nation decided, of its own accord, to benefit from the FNPP by signing  
its first agreement in 1996.  
[186] Under the program, tripartite agreements must be signed by the federal government,  
the Government of Quebec, and the First Nation, and the federal government and the  
province are responsible for 52 percent and 48 percent of the funding, respectively. As  
mentioned earlier, the Policy states that First Nations communities will, where possible, be  
encouraged to pay a portion of the cost of their services, particularly for enhanced services.  
33  
[187] The community of Mashteuiatsh did indeed enter into several tripartite agreements  
with the governments of Canada and Quebec. Some of these agreements were filed with  
the Tribunal by the Respondent. In the Tribunals record, the earliest agreement is from  
October 1996 and sets out various methods and timelines for Mashteuiatsh to assume  
complete responsibility for the financial management of police services in the community.  
[188] The agreements cover the following periods:  
July 1996 to March 1999  
April 1999 to March 2004  
April 2004 to March 2009  
April 2009 to March 2010  
April 2010 to March 2011  
April 2011 to March 2013  
April 2013 to March 2014  
o An amendment to the agreement was signed by the signatories in order to  
add a special financial contribution for the 20132014 financial year.  
April 2014 to March 2015  
April 2015 to March 2016  
o An amendment to the agreement was signed by the signatories in order to  
extend the term of the agreement by two years, such that the agreement  
applies to the periods 20162017 and 20172018, and, consequently, to  
add funding for these additional financial years.  
o In another document, the signatories also agreed to modify the payment  
schedule for Canada, remove the requirement to provide ledger accounts,  
and adjust the submission date for audited financial statements.  
[189] Finally, although the Tribunal did not have access to this agreement, the evidence  
shows that Mashteuiatsh signed an agreement for five years, from 2018 to 2023.  
34  
(ii)  
Public Safety Canada provides a serviceunder section 5 of the  
CHRA  
[190] For the reasons that follow, the Tribunal finds that, through the implementation and  
application of the FNPP, Public Safety Canada provides a service within the meaning of the  
CHRA.  
[191] The Respondent conceded in its final arguments that the FNPP is a federally funded  
program established for the benefit of First Nations and that it therefore provides a service”  
within the meaning of section 5 of the CHRA through the combination of the FNPP and the  
tripartite contribution agreements (Respondents plan of argument at para 159).  
[192] The Respondent also concedes that the services offered to First Nations that live on  
reserves are influenced by the funding given to them (Respondents plan of argument at  
para 160.) Nevertheless, the Respondent contests the claim that the Complainant was  
treated adversely in the provision of this service.  
[193] That being said, the Complainant filed his complaint under section 5 of the CHRA.  
The English and French versions of section 5 read as follows:  
It is a discriminatory practice in the  
provision of goods, services, facilities  
Constitue un acte discriminatoire, sil  
est fondé sur un motif de distinction  
illicite, le fait, pour le fournisseur de  
biens, de services, dinstallations ou  
de moyens dhébergement destinés  
au public : a) den priver un individu;  
b) de le défavoriser à loccasion de  
leur fourniture.  
or  
accommodation  
customarily  
available to the general public (a) to  
deny, or to deny access to, any such  
good,  
service,  
facility  
or  
accommodation to any individual, or  
(b) to differentiate adversely in relation  
to any individual, on a prohibited  
ground of discrimination.  
[194] Two key decisions guide the Tribunal on this subject: Gould v. Yukon Order of  
Pioneers, 1996 231 (SCC) [Gould] of the Supreme Court and Watkin v. Canada  
(Attorney General), 2008 FCA 170 [Watkin], of the Federal Court of Appeal.  
[195] First, the legal question of the applicability of section 5 of the CHRA is within the  
Tribunals jurisdiction. In other words, it is for the Tribunal to decide whether section 5 of the  
 
35  
CHRA applies in the circumstances of the case before it (Gould at para 15; West v. Cold  
Lake First Nations, 2021 CHRT 1 at para 76).  
[196] The Tribunal must first determine whether it is dealing with a servicewithin the  
meaning of the CHRA. To do so, the Tribunal must define and analyze the very substance  
of the act, action, or activity reproached by the Complainant (Watkin at paras 31 and 33;  
Gould at paras 16 and 60; First Nations Child and Family Caring Society 2016 at para 30).  
[197] In Watkin at para 31, the Federal Court of Appeal reminds us that a serviceis  
something advantageous or of benefit that is offered or made available to the public.  
[198] Second, the Tribunal must determine whether the service creates a public  
relationship between the service provider and the service user. To do so, the Tribunal must  
consider all factors relevant to the context of the case (Watkin at paras 32 and 33). As my  
fellow members Marchildon and Lustig state in First Nations Child and Family Caring  
Society 2016 at para 31:  
As part of this determination, the Tribunal must decide what constitutes the  
publicto which the service is being offered. A public is defined in relational  
as opposed to quantitative terms. That is, the public to which the service is  
being offered does not need to be the entire public. Rather, clients of a  
particular service could be a very large or very small segment of the public”  
(see University of British Columbia v. Berg, 1993 89 (SCC), [1993] 2  
SCR 353 at pp. 374388; and, Gould per La Forest J. at para. 68). A public  
relationship is created where this publicis extended a serviceby the  
service provider (see Gould per La Forest J. at para. 55).  
[199] As will be explained in the following paragraphs, the Tribunal finds in this case that  
Public Safety Canada offers a servicefor the benefit of the Complainant and the  
Pekuakamiulnuatsh through the FNPP. The Tribunal also finds that a public relationship is  
necessarily created between the Respondent, the service provider, and the Complainant  
and the Pekuakamiulnuatsh, the beneficiaries, who therefore constitute a public.  
[200] Let us be clear: The service is related to the implementation of the FNPP by the  
Respondent, and not the direct provision of Indigenous police services on reserves. The  
evidence is clear in this regard, as Public Security Canada is not the body that provides  
police services on reserves.  
36  
[201] However, though the objective of the FNPP is not to provide police services to First  
Nations, one of the fundamental aspects of the program is to provide funding to First Nations  
for policing on reserves.  
[202] In this regard, there are certain similarities with the decision for First Nations Child  
and Family Caring Society 2016, in which my fellow members Marchildon and Lustig found  
that the funding for the First Nations Child and Family Services Program was a service”  
within the meaning of section 5 of the CHRA. In that case, the Tribunal also found that the  
program went beyond the simple funding of a service and that the role of the federal  
government was not limited to merely funding the service.  
[203] In this case, the Tribunal similarly finds that the implementation of the FNPP involves  
more than simple funding, as Public Safety Canada monitors the program, provides related  
assistance to First Nations, and requires accountability.  
[204] The Policy specifically includes the following in its objectives:  
. . . the improvement of social order, public security, and personal safety in  
First Nations communities . . . .  
The Policy provides a practical way to improve the administration of justice for  
First Nations through the establishment of First Nations police services that  
are professional, effective, and responsive to the particular needs of the  
community. This is accomplished through the provision of cost-shared funding  
of police services, and related support and assistance.  
(C-4, at page 2).  
[205] The testimony of Antoine Bourdage (Mr. Bourdage) on the FNPP is relevant and  
conclusive in the circumstances. Mr. Bourdage provided useful insight regarding not only  
the program funding portion, but also the related assistance provided to First Nations for  
policing services, as well as the need for accountability.  
[206] Although the Tribunal itself did not hear Mr. Bourdage, the parties filed, by  
agreement, transcripts of his examination before the Superior Court. The parties clearly  
agreed that these transcripts were filed as testimony and that the entire contents of this  
testimony formed an integral part of the evidence before the Tribunal.  
37  
[207] The Tribunal carefully read these transcripts and concludes that Mr. Bourdage is  
undoubtedly an important witness in this case, with extensive knowledge of the program, its  
implementation and most of its ins and outs. The Tribunal has no reason to question the  
credibility and reliability of his testimony. The written transcripts are clear, consistent, and  
detailed, and Mr. Bourdages testimony is largely corroborated by the documentary  
evidence filed at the hearing as well as the testimony of other witnesses (including Richard  
Coleman, Dannye Bonneau and Valerie Tremblay).  
[208] At the time of the hearing, Mr. Bourdage was still employed by Public Safety Canada  
and had been since 2011. In 2014, the FNPP fell under his responsibility. According to his  
explanations, he was then the director of the program, overseeing its operation and  
administration and ensuring its management and implementation. He was responsible for  
ensuring that the program was implemented consistently across Canada and coordinating  
all work with his colleagues in the field.  
[209] According to Mr. Bourdage, when an agreement is signed under the FNPP, the work  
does not stop there, as the agreement must still be administered. For example, program  
recipients, including Mashteuiatsh, must submit annual reports, and payment requests must  
be processed by Public Safety Canada. These requests are subject to a review requiring  
quality control measures before payments are made, and it was Mr. Bourdage who signed  
the authorization for these payments.  
[210] He added that when the agreements were renewed, the work necessarily intensified.  
His department worked closely with the policy team, which was responsible for putting  
together the proposals. His team, meanwhile, had the on-the-ground information about  
program administration and results, among other things.  
[211] Mr. Bourdage specified that, during the renewal and negotiation of the agreements,  
he was personally involved in the negotiations with the First Nations. Since the budget  
envelope was his responsibility, he had to [TRANSLATION] keep his finger on the pulse of that  
envelope to make sure we stayed within it(Testimony dated September 10, 2019, at  
page 719).  
38  
[212] Mr. Bourdage characterized the FNPP as a discretionary federal contribution  
program. In this regard, he explained that the Canadian government could have been  
involved in a number of ways but instead opted for a contribution program, in other words,  
a transfer of money. More specifically, these are funding agreements with a specific purpose  
that are signed between the parties involved.  
[213] Without going into detail, Mr. Bourdage testified that these types of contribution  
agreements are subject to a Treasury Board transfer policy and fall under the Financial  
Administration Act, R.S.C. 1985, c. F-11. These agreements, including those under the  
FNPP, have various terms and conditions, including ones related to duration, funding  
amounts and accountability.  
[214] This is also revealed by Ms. Valerie Tremblays testimony before the Superior Court  
on September 9 and 10, 2019, who worked in different positions within Pekuakamiulnuatsh  
Takuhikan (the bands administrative body). This included working in the unit responsible  
for finance, but also as the director of human relations, administration and financial  
resources, since she has a background as a chartered professional accountant. Again, as  
in the case of Mr. Colemans testimony, Ms. Tremblay did not testify before the Tribunal.  
Nonetheless, the parties have filed in the Tribunal record the transcripts of her Superior  
Court testimony as evidence.  
[215] Ms. Tremblay did explain the process surrounding this accountability, the preparation  
of financial statements and external audits of these statements.  
[216] The money for these contributions comes from a consolidated fund of the  
Government of Canada, which is, in the words of Mr. Bourdage, a large bank account  
containing the money needed to administer federal programs. There is a process in place  
to access the money in this consolidated fund.  
[217] Mr. Bourdage also explained that each year, between February and April, the  
expenditures that the Canadian government intends to make are [TRANSLATION] accounted  
for in that budget(Testimony dated September 10, 2019, at page 726). The Tribunal in fact  
understands that the federal Parliament sets a budget for this consolidated fund.  
Mr. Bourdage also explained that the line item for the Department of Public Safety includes  
39  
an amount budgeted and appropriated for the FNPP. This is how Mr. Bourdages team gets  
its annual budget for the implementation of the FNPP.  
[218] The process for receiving money from this consolidation fund follows its own cycle.  
Mr. Bourdage explained that a proposal must first be submitted to the ministersoffices. This  
proposal is based on material documents and data, which serve to inform and advise the  
ministers’ offices. At this stage, the ministers’ offices are not the ones who grant the authority  
to spend money. This is more of a policy stage; it is more of a statement of intent, like a  
business plan.  
[219] Mr. Bourdage testified that when his department had approval from the ministers’  
offices, they had to go and get the necessary funding. The Treasury Board is the authorizing  
body for spending, and his department had to negotiate the funding with them. The  
submission to the Treasury Board was more detailed and rigorous, including the cost of the  
program and the justifications for the expenditures.  
[220] Mr. Bourdage specified that in the case of the FNPP, which is a cost-shared program,  
the provinces and territories had to be contacted to determine if they were able to provide  
funding. Once this was done, negotiations with First Nations could begin.  
[221] The evidence shows that the funding is determined by the federal government, which  
first sets the amount of its contribution. Quebec then provides 48 percent of that contribution.  
This is what Mr. Bourdage explained to the Tribunal, but this information is also corroborated  
by Mr. Colemans testimony:  
[TRANSLATION]  
When we learn from Ottawa thethe level of the envelope available for  
Indigenous policing in Quebec, we must immediately mobilize to be able to  
put that money to work, so if, for example, Mr. Bourdage tells me we have  
thirty million, well, I say to myself, well, I have to find the 48 percent.  
(Examination-in-Chief dated September 11, 2019, at page 1007).  
[222] In the same vein, Mr. Coleman testified that, for Quebec, benefiting from this federal  
program has always been a priority. In fact, Quebec wants to benefit from the money  
available under the FNPP and to secure that money.  
40  
[223] As a result, on the provincial side, Quebecs 48-percent portion is then the provincial  
funding base for Aboriginal police forces, according to Mr. Coleman. He refers to the  
[TRANSLATION] funding basebecause the SQ still provides services of a higher level or  
complexity to these Indigenous police forces when necessary. The costs of these SQ  
services are then paid for by Quebec and are part of the overall costs of public safety in  
Quebec.  
[224] Mr. Coleman went on to say that once the federal governments envelope for FNPP  
funding is established, the Quebec government must then take action to provide its matching  
funding, its 48-percent portion. Steps must be taken to release the necessary funds.  
[225] The implementation of the FNPP is based on exchanges between the First Nations,  
the federal government and the provincial or territorial governments. The statements of  
several witnesses (Mr. Bourdage, Mr. Coleman and Ms. Bonneau, among others) confirm  
that Public Safety Canada works directly with Mashteuiatsh and the Quebec government to  
achieve the program’s objectives.  
[226] The Tribunal notes that there is a lot of work going on behind the scenes that goes  
beyond just funding. As Mr. Bourdage mentioned, there is all the field work, as well as the  
related assistance that can be provided to First Nations where possible.  
[227] For example, in the case of Mashteuiatsh, the evidence reveals that additional  
financial assistance was granted by the Respondent in 2016. In this regard, Mr. Bourdage  
explained that the federal government had a monetary surplus at the time and that it was  
possible to transfer, or reallocate, money from one program to another.  
[228] As a result, Public Safety Canada was able to make a contribution of $400,000 to the  
Mashteuiatsh police for the purpose of training officers and acquiring equipment.  
Mr. Bourdage was aware that in 2016, the Mashteuiatsh police service was experiencing  
financial difficulties. He explained that they (his department) wanted to [TRANSLATION] help  
as best [they] could(Examination in Chief dated September 11, 2019, at page 795).  
However, Mr. Bourdage made it clear that there was no guarantee that this money would  
be available for future years, considering that the money came from a reallocation following  
a budget surplus.  
41  
[229] In light of all of the above and the teachings of the Supreme Court in Gould and the  
Federal Court of Appeal in Watkin, the Tribunal finds that Public Safety Canada, in  
implementing the Policy that led to the FNPP, is providing a service to the Complainant.  
[230] This service consists largely of funding or the provision of financial contributions but  
also includes other actions taken by the Respondent in administering the program, such as  
reporting, negotiating and providing related assistance. As a matter of course, benefits and  
advantages are then offered to the First Nation.  
[231] As the evidence demonstrates, the Tribunal is also satisfied that the Respondent is  
a service provider and that the Complainant and the Pekuakamiulnuatsh are the  
beneficiaries.  
[232] It should be noted that the notion of publicis relational rather than quantitative, just  
as the public may refer to only a small segment of the general Canadian public (University  
of British Columbia v. Berg, [1993] 2 SCR 353 at 374-388; Gould at para. 68; Childrens Aid  
Society 2016 at para. 31). In this regard, the evidence shows on a balance of probabilities  
that the service in question is offered or made available to the public, the public being the  
Complainant and the Pekuakamiulnuatsh, who are drawn from a broader public of First  
Nations. And the First Nations are the ones who can benefit from the advantages and  
advantages provided for in the Policy and the FNPP.  
[233] The Tribunal will now proceed to the next stage of its analysis.  
(iii) Adverse treatment based on a prohibited ground of discrimination  
[234] Now that the Tribunal has found that there is a service within the meaning of the  
CHRA and has established this service’s nature, it must determine whether the Complainant  
suffered adverse treatment on the basis of race and national or ethnic origin in the provision  
of that service.  
[235] In light of the evidence presented, the Tribunal finds that the Complainant was indeed  
treated adversely by the Respondent on the basis of his race and national or ethnic origin.  
 
42  
[236] According to the Complainant, three key elements of the provision of the service (i.e.,  
the implementation of the FNPP) constitute discrimination: the funding itself, the duration of  
the agreements and the level of police services offered to the members of the Mashteuiatsh  
community.  
[237] The Tribunal will analyze these elements in the paragraphs below.  
(a) Funding and level of policing  
[238] For the sake of brevity, the Tribunal will address the funding and the level of police  
services in the same section since it seems logical to do so. Indeed, the level of police  
services that Mashteuiatsh Public Safety can offer is intrinsically linked to the funding that is  
received from the federal and provincial governments. The Respondent conceded this point.  
[239] The funding affects, among other things, the salaries of the staff working for the police  
services, equipment, training and, of course, the services themselves that are offered in the  
community.  
[240] The Tribunal has reviewed the extensive documentary evidence filed by the parties  
in this regard. It consulted, among other documents, the financial statements of  
Pekuakamiulnuatsh Takuhikan from 2010 to 2019 (exhibits I-38 to I-45 and I-98); the  
statements of operations of Mashteuiatsh Public Safety (exhibits P-2 to P-5); a table showing  
the deficits incurred between 1998 and 2016, from Pekuakamiulnuatsh Takuhikan  
(Exhibit I-13); and the tripartite agreements themselves, including their amendments, for the  
period from 1996 to 2018 (exhibits I-14, I-15, I-16, I-4 to I-12, I-22).  
[241] What is important to understand is that each agreement sets out the amount of  
funding that will be provided to the First Nation for its police service. The number of police  
officers is also provided for. From 1996 to 1999, 7 police officers were provided, 8 from 1999  
to 2004, 10 for the years 2004 to 2008 and 11 from 2008 to 2015.  
[242] The evidence unequivocally demonstrates on a balance of probabilities that the  
Complainant, having chosen to take advantage of the FNPP and to have its own self-  
managed Indigenous police service, has found itself in a budgetary deficit, year after year.  
43  
It is not necessary to go into all the figures at this stage of the proceedings, as the Tribunal  
must only decide whether there is discrimination or not.  
[243] Deficits began building up as early as 1998, following the first agreement signed by  
the First Nation. They culminated in a deficit in excess of $1 million for the 20142015 fiscal  
year.  
[244] In 2014, a major event occurred in the Mashteuiatsh police service. In response to  
salary claims made by the police officers, an arbitration award dated July 17, 2014, was  
rendered. In that award, the arbitrator ordered a salary catch-up for the Mashteuiatsh police  
officers, to make their pay comparable to other police officers in other police forces. This is  
why the deficit exploded, as retroactive salary payments had to be made.  
[245] For the 20132014 and 20152016 agreements, amendments were proposed, and  
additional contributions were made to provide financial relief for the First Nation’s police  
services. Mr. Bourdages testimony on the amendments is quite clear:  
[TRANSLATION]  
. . . [W]e were able to stall for time a bit and find ways to putBand-Aids,  
finally, thats what I would call it, wewe were able toto put a little bandage  
on, to stop the bleeding, and to keep the lights on for a little while longer, and  
we were able tokeep the police station from closing.  
(Examination in Chief dated September 11, 2019, at page 798.)  
[246] Although the evidence shows that, throughout the period the FNPP was applied, the  
amounts of the contributions increased (between 1996 and 2009, then plateaued until 2013,  
and increased again from 2013 to 2014 to 2015), it nevertheless clearly demonstrates that  
the actual costs of managing the Mashteuiatsh police force were higher than the amounts  
received under the FNPP.  
[247] The budget deficits are also corroborated by the testimonies of Mrs. Tremblay and  
Mrs. Bonneau, who had specific knowledge of the finances of the Mashteuiatsh police  
services.  
[248] Ms. Bonneau worked for the Mashteuiatsh council for approximately 29 years, during  
which she held several positions, including middle and senior management positions. She  
44  
was also the assistant executive director and, in her last years, the executive director of the  
organization. Importantly, from 2013 to 2015, Ms. Bonneau took on responsibility for the  
executive management of Mashteuiatsh Public Safety, its finances and the budget, and she  
was also involved in the tripartite agreements.  
[249] Ms. Bonneau testified that she remembers meetings with representatives of Quebec  
and Canada during which Mashteuiatsh explained its particular needs for its police services,  
and that the funds granted by the other two levels of government were clearly insufficient to  
meet the organizational needs of its police.  
[250] Again according to Ms. Bonneau, the representatives of Canada and Quebec were  
well aware that these amounts were insufficient. Unfortunately, the answer remained simple:  
there was no more money available in the envelope (Examination on Discovery dated  
May 23, 2018, at page 20). Mr. Bourdage also testified on this point: there is a budget  
available for FNPP; when the envelope is empty, it is empty.  
[251] All parties were therefore well aware that the needs for police services in  
Mashteuiatsh and the related costs were higher than the amounts that were provided for in  
the agreements.  
[252] The evidence also shows that as of the 20152016 fiscal year, the First Nations  
deficits stopped. That year, the financial contributions increased, and the number of police  
officers decreased from 11 to 10. Several witnesses confirmed that Mashteuiatsh Public  
Safety took the decision to abolish an operations manager position, which at the time was a  
managerial employee position. The objective was to minimize the organizational costs  
because of the lack of funding.  
[253] The communitys deficits were absorbed by the First Nation from a self-sustaining  
fund. The money held in this self-sustaining fund is used as economic leverage for the First  
Nation. Mr. Moar and Ms. Tremblay testified to this.  
[254] Ms. Tremblay did explain that the First Nation cannot generate revenues in the same  
way as a municipality and that, for this reason, the First Nation had launched the  
45  
self-sustaining fund project to provide itself with investment power and to take advantage of  
business opportunities that may arise.  
[255] For the purposes of this case, however, it is enough to understand that the First  
Nation dipped into this self-sustaining fund in order to cover its policing deficits.  
Ms. Tremblay testified that when the First Nation was accountable to the Government of  
Canada for the management of the police force and the use of financial contributions, cost  
overruns were not permitted. The First Nation had to achieve a zero deficit. Therefore, what  
was presented to the federal government was not representative of the actual budget of the  
police force, which was in deficit.  
[256] The years 2015 to 2016 were pivotal for the First Nation as the council had made the  
decision to close its police station because of the significant lack of funding. In  
November 2015, Mr. Dominique, who was Chief of Mashteuiatsh at the time, wrote to the  
former Minister of Public Safety of Canada.  
[257] Still on the subject of the closure of the Mashteuiatsh police service, Mr. Bourdage  
explained that both Canada and Quebec then sprang into action, since it was in no ones  
interest to see this police service close. He admitted, however, that it was not possible to  
work miracles, because of budgetary constraints. It was not possible to inject significant  
funds to support the police service. It was in this context that the amendments were signed,  
including for the $400,000 in 20152016.  
[258] Both Ms. Bonneau and Mr. Moar explained that the First Nation continued to sign the  
agreements to keep receiving the funds, knowing that they were going to run deficits.  
According to them, if no money was given to them by the federal and provincial  
governments, the Mashteuiatsh Police Service would simply close. These funds were  
necessary for the survival of their police.  
[259] All this evidence about the lack of funding highlights a huge controversy in the way  
the FNPP is perceived, its funding and the level of services that should be offered to the  
members of Mashteuiatsh.  
46  
[260] The Complainant pleaded that he must offer police services comparable to those  
provide in the neighbouring municipalities and to other citizens of the province of Quebec.  
In other words, the level of funding that results from applying the FNPP does not allow the  
Mashteuiatsh police to offer policing coverage of a level equal to that offered by other  
non-Indigenous police forces.  
[261] The minimum level of service that is offered by these other non-Indigenous police  
forces is necessarily level 1under the PA and its regulations. Despite repeated requests in  
this regard, the First Nation has never been able to have an Indigenous police force that  
provides this minimum level of service to its members. This is one of the reasons why deficits  
have been building up: the real cost of Mashteuiatsh Public Safety exceeds the funding from  
Canada and Quebec.  
[262] The Respondent, on the other hand, argues that the Mashteuiatsh Police Service is  
not obliged to offer a level 1 police service as provided for in the PA, since the levels of  
service are not applicable to Indigenous police. It maintains that the services that must be  
offered to the members of the community are strictly those that are provided for in the  
tripartite agreements.  
[263] Finally, according to the Respondent, since the SQ, as the provincial police force,  
must offer superior or supplementary services, the Mashteuiatsh police force can always  
count on the SQ, which has an obligation to assist it for the services that it cannot offer. It is  
the First Nations responsibility, as set out in the agreements, to financially support the  
enhanced levels of service that it offers in its community.  
[264] In this regard, Mr. Dion testified that Indigenous police forces are not subject to the  
Police Services Regulation because, as provided for in the PA, the terms and conditions for  
Indigenous policing are specifically provided for in the agreements and include, among other  
things, the management of the police force, its independence, the management of  
equipment and infrastructure, government contributions, and eligible and ineligible  
expenses.  
47  
[265] Mr. Coleman also testified along the same lines as Mr. Dion. He explained that  
Indigenous policing is not subject to the PA’s service levels and that the tripartite agreements  
contain a section that reflects the broad policy directions of the PA.  
[266] At the same time, the testimony of Mr. Simon Vanier, who at the time of the Tribunal  
hearing was the director of Mashteuiatsh Public Safety and necessarily a police officer,  
corroborates the fact that Mashteuiatsh Public Safety interprets its mission and  
responsibilities as requiring it to offer a minimum or basic level of service that is in fact  
equivalent to level 1 police services. The evidence shows that Mashteuiatsh Public Safety  
is clearly attempting to provide the community’s members with this minimum level of service,  
which creates an actual cost overrun in relation to the funding provided under the FNPP.  
[267] The Tribunal notes that section 70 of the PA specifically provides that the levels of  
service apply to municipal police forces as well as the SQ. Indigenous police forces are  
therefore excluded from this provision.  
[268] It is also true that the tripartite agreements do not specifically provide for a minimum  
level of service for policing services to be provided in the community. Nevertheless, as  
Mr. Coleman testified, the tripartite agreements reflect the broad policy directions of the PA.  
[269] What then are the services that the Mashteuiatsh Indigenous Police must offer to the  
members of the community?  
[270] The Tribunal finds that in the Mashteuiatsh tripartite agreements between 2009 and  
2014, section 7 sets out the mission of the Indigenous services and the territory they cover.  
In the agreements subsequent to 2014, it is section 2.2 that provides for the mission and  
responsibilities of the Mashteuiatsh police force.  
[271] While the section has changed, the Tribunal notes that there is little change in the  
provisions of the tripartite agreements; the same elements are essentially found in each. For  
the sake of convenience and conciseness, the Tribunal will simply reproduce in part  
section 2.2 of the 2014-2015 tripartite agreement:  
[TRANSLATION]  
2.2  
MISSION AND RESPONSIBILITIES OF THE POLICE FORCE  
48  
2.2.1 The mission of the police force is described in section 93 of the Police  
Act.  
2.2.2 For the purpose of providing police services within the territory  
described in paragraph 1.4.3 and in compliance with the principles set  
out in section 48, paragraph 2, of the Police Act, the police force shall  
be responsible for:  
(a)  
(b)  
providing a police presence to respond within a reasonable time  
to requests for assistance;  
ensuring the conduct of investigations, including but not limited  
to the protection of the scene of the offence, the identification of  
the complainant and witnesses, the taking of statements, the  
gathering of evidence, the arrest of the suspect, where  
necessary, the issuance of statements of offence, and follow-  
up court appearances;  
(c)  
implementing crime prevention measures and programs.  
2.2.3 In conducting police investigations and operations, the director of the  
police force and the police officers shall act freely and independently.  
In this regard, the Council, its employees or any body established by  
the Council shall not attempt to interfere with or instruct, directly or  
indirectly, the members of the police force or its director.  
2.2.4 The parties recognize that effective policing requires mutual assistance  
and operational cooperation between the various police authorities  
exercising their powers in the territory of Quebec, in accordance with  
the applicable acts and regulations and their respective mandates.  
2.2.5 This agreement is not intended to alter the mandate of the Royal  
Canadian Mounted Police (RCMP) or the Sûreté du Québec (SQ)  
under the applicable legislation.  
[272] As for section 93 of the PA, which deals with Indigenous police forces, it provides as  
follows:  
A Native police force and its members are responsible for maintaining peace,  
order and public safety in the territory for which it is established, preventing  
and repressing crime and offences under the laws and regulations applicable  
in that territory and seeking out offenders.  
[273] As for the other police forces (excluding Indigenous police), it is section 48 of the PA  
that sets out their mission. It states the following:  
49  
The mission of police forces and of each police force member is to maintain  
peace, order and public security, to prevent and repress crime and, according  
to their respective jurisdiction as set out in sections 50, 69 and 89.1, offences  
under the law and municipal by-laws, and to apprehend offenders.  
In pursuing their mission, police forces and police force members shall ensure  
the safety of persons and property, safeguard rights and freedoms, respect  
and remain attentive to the needs of persons who are victims, and cooperate  
with the community in a manner consistent with cultural pluralism. Police  
forces shall target an adequate representation, among their members, of the  
communities they serve.  
[274] It is surprising that the Respondent made a great distinction between the level of  
service that must be rendered by a police officer, for example of the SQ, according to the  
PA and the services that must be rendered by a police officer of Mashteuiatsh Public Safety.  
[275] When the Tribunal compared the missions and responsibilities of each of these police  
forces, the evidence reveals that those of the Mashteuiatsh police are essentially the same  
as those of the other police forces in Quebec.  
[276] Not only are they bound by the same guiding principles set out in subsection 48(2)  
of the PA, but they also share the same role: the Indigenous police force is responsible for  
maintaining peace, order and public security within its jurisdiction; preventing and  
suppressing crime and offences under the laws and regulations applicable in the jurisdiction;  
and apprehending offenders.  
[277] The Tribunal notes that section 93 of the PA, which is specific to Indigenous services,  
is not very different from section 48 of the PA, which applies to non-Indigenous police forces  
in Quebec.  
[278] Although this is not explicitly provided for in the tripartite agreements, and the  
Tribunal understands very well the issue of the separation of powers between the federal  
government and the provincial government in matters of the administration of justice, it is  
still reasonable for Mashteuiatsh Public Safety, because of this similarity in language and  
the silence of the tripartite agreements on the modalities for delivering police services, to  
assume and to want to offer to the members of the community a level of service comparable  
to what is offered to other citizens of Quebec.  
50  
[279] This comparable minimum service received by all citizens in the province of Quebec  
as provided by the PA is that of a level 1 police service. And if it is limited to the funding  
under the FNPP, Mashteuiatsh simply cannot offer its members these minimum services.  
[280] As for the services that cannot be offered to the members of Mashteuiatsh, the  
testimony of Mr. Vanier is particularly relevant. He detailed the deficiencies and  
shortcomings of the police services.  
[281] Mr. Vanier confirmed that the police officers working at Mashteuiatsh Public Safety  
have exactly the same powers and duties as all other police officers working in Quebec.  
They have the same training, go to the same school, and do the same work, which includes,  
among other things, patrolling, enforcing the Highway Safety Code, setting up roadblocks,  
responding to emergencies, meeting with community members, and organizing prevention  
and awareness-raising activities.  
[282] However, the Mashteuiatsh police services face particular challenges because of  
the lack of funding. For example, Mashteuiatsh Public Safety cannot offer all-terrain vehicle  
patrols or water patrols. It cannot benefit from an internal resource that would allow it to train  
itself on the use of essential tools for patrolling, such as photo radar, speed guns, conducted  
energy weapons, or breathalyzers.  
[283] These work tools each require periodic training, and having an in-house resource  
person who has the training and can train other officers reduces the expense. Otherwise,  
each officer must be trained individually at the École nationale de police [Quebec’s police  
academy], or a trainer from that academy must be brought in to train the officers, which  
costs money.  
[284] Not only was there a lack of training, but certain work tools were obsolete and had to  
be replaced, for example the photo radar. Without personnel who could handle the photo  
radar, no prevention could be done, especially in the school zone of Mashteuiatsh. It was  
also not possible to issue a statement of offence to enforce the Highway Safety Code for  
the same reasons.  
51  
[285] Similarly, none of the employees were trained to use the breathalyzer. The  
breathalyzer was also outdated and needed to be replaced. Mr. Vanier explained that if a  
suspect was pulled over and alcohol was involved, his officers had to go to Roberval to have  
the individual blow into the breathalyzer. If the breathalyzer in Roberval did not work, they  
would have to go to Saint-Félicien. Since the test must be done within a certain period of  
time, this could affect the charges that could have been laid.  
[286] Police vehicles are not equipped with computers to validate vehicle registrations or  
determine if there is a warrant out for an individual. The police officers must therefore  
communicate with another police intelligence centre in Chicoutimi to have access to this  
information. The Mashteuiatsh police also do not have the same police management  
software that allows them to follow up on convictions, investigations, forms and reports to  
be filed, among other things.  
[287] Mr. Vanier also explained that the salaries of his police officers are lower than those  
of other police officers working in Quebec. It was not possible for him to offer the same salary  
since salaries are necessarily dependent on available funding. Staff retention was difficult  
at the level of both the police officers and the management of Mashteuiatsh Public Safety.  
Management of the service changed three times between 2006 and 2015 because of the  
excessive workload. He added that the police officers know that they can earn higher  
salaries if they choose the SQ or another police force.  
[288] This is one of the reasons for the salary adjustment ordered by the 2014 arbitration  
award, which reduced this difference in the salaries paid to the police officers. That said, the  
retroactive pay, which totalled in the neighbourhood of $850,000, created its share of  
financial difficulties and increased the financial deficit of Mashteuiatsh in 2015. Ms. Tremblay  
testified that various options were considered to reduce costs and the deficit, including  
abolishing the principle of having two police officers at all times.  
[289] Since the positions provided for in the collective agreement could not be eliminated,  
it was the position of operations manager that was abolished in 2015, reducing the staff from  
11 to 10 officers. However, the managers workload had to be delegated, and his position  
was merged with that of the director. Mr. Vanier then explained that as director, at the time  
52  
of the hearing, he personally provided constant supervision to his officers, meaning he was  
on call 24 hours a day, 7 days a week, all year round. He estimated that he was on call for  
a period of four years.  
[290] In 2019, and with increases in financial contributions from the federal government for  
additional staffing, the position of operations manager was finally filled. The Mashteuiatsh  
Police Service had requested 12 officers, but only 11 were authorized.  
[291] Mr. Vanier estimated that 12 police officers were needed to fill important needs,  
including the need for a second investigator so that investigations can be done with two  
officers, as required by the training. He also knows that the SQ conducts its investigations  
and interviews witnesses with two officers. He added that there was a significant  
investigative caseload, which could have been shared with a new officer, as could custody  
and supervision.  
[292] A lack of training prevented an investigator from the Mashteuiatsh police service from  
investigating a sexual crime. The SQ was called in to assist in the investigation. The victims  
did not understand why the SQ was conducting the investigation; they froze up and even  
wanted to withdraw their complaint.  
[293] Relying on the testimonies of Mr. Dion and Ms. Séguin, among other evidence, the  
Respondent pleaded that there is nothing unusual about the staffing, equipment and  
infrastructure problems. The Mashteuiatsh police service, like any other non-Indigenous  
police force, wishes to obtain better funding in order to improve their material and human  
resources. In other words, Mashteuiatsh is not the only one to have these grievances.  
[294] The second part of the Respondents reasoning is based on the fact that the SQ has  
the obligation to supplement, to offer its support, to the Mashteuiatsh police service.  
Therefore, if a service cannot be offered, and Ms. Séguin gave the examples of the all-  
terrain vehicle service and water surveillance, the SQ is there to offer these services, which  
is currently the case with respect to Mashteuiatsh.  
53  
[295] In this regard, Ms. Séguin testified that the SQ is able to adapt its services to the  
Indigenous reality when it must collaborate with an Indigenous police force or when it  
responds to incidents on Indigenous territory.  
[296] The Tribunal understood from the evidence, through the testimonies of Mr. Moar,  
Mr. Vanier and Ms. Tremblay, as well as Ms. Bonneau, that it is truly important for the First  
Nation to have an Indigenous police service. In other words, it is essential to have a police  
service by and forthe members of the Nation, considering the Indigenous context and  
relations with the police.  
[297] Moreover, Mr. Vanier and Mr. Moar, even though they have much respect for the  
work done by the SQ police officers, gave testimony that differed from that of Ms. Séguin.  
Without going into details, Mr. Moar in fact gave a history of the police services in  
Mashteuiatsh, the residential schools, the presence and services of the RCMP, the  
Amerindian police and the SQ on the territory of Mashteuiatsh.  
[298] Mr. Vanier testified to the community membersfear of dealing with SQ officers, such  
as victims who freeze up or want to drop their complaint.  
[299] Although the Respondent asked the Tribunal to reduce the weight of certain  
documentary evidence, an argument that the Tribunal has already weighed, a number of  
important writings that have been introduced into evidence tell of a difficult history between  
the police and First Nations.  
[300] Although these various reports, including the Viens Report, do not constitute proof of  
discrimination in this case, they do highlight the problems and difficulties that Indigenous  
people face with respect to police services.  
[301] This historical background, this context exists and must be considered by the  
Tribunal. It speaks to systemic discrimination against Indigenous people and racism against  
them, but also to other notable social facts affecting them, including their overrepresentation  
in the criminal justice system, high crime rates, poverty, and housing shortages and  
overcrowding, to name just a few.  
54  
[302] On this point, the report of the Royal Commission on Aboriginal Peoples, Bridging  
the cultural divide: a report on Aboriginal people and criminal justice in Canada, 1996, which  
was entered into evidence (Exhibit P-31), is particularly relevant. The Royal Commission  
stated at page 42:  
Cast as a structural problem of social and economic marginality, the argument  
is that Aboriginal people are disproportionately impoverished and belong to a  
social underclass, and that their over-representation in the criminal justice  
system is a particular example of the established correlation between social  
and economic deprivation and criminality.  
We observed in our special report on suicide that Aboriginal people are at the  
bottom of almost every available index of socio-economic well-being, whether  
they measure educational levels, employment opportunities, housing  
conditions, per capita incomes or any of the other conditions that give non-  
Aboriginal Canadians one of the highest standards of living in the world. There  
is no doubt in our minds that economic and social deprivation is a major  
underlying cause of disproportionately high rates of criminality among  
Aboriginal people.  
We are also persuaded that some of the debilitating conditions facing  
Aboriginal communities daily are aggravated by the distinctive nature of  
Aboriginal societies. . . . [T]here is evidential support for a correlation between  
over-crowded housing conditions and interpersonal conflict and violence,  
which often takes place between close family members residing together. . . .  
Socio-economic deprivation not only has explanatory power in relation to high  
rates of Aboriginal crime, but it also contributes directly to the systemic  
discrimination that swells the ranks of Aboriginal people in prison.  
[Footnotes omitted.]  
[303] Moreover, many of these social issues, challenges and difficulties that exist within  
First Nations are also known to the Government of Canada, and by extension, to Public  
Safety Canada.  
[304] This is indeed what emerges from a memo from Ms. Maryse Picard (Exhibit P-79), a  
representative of the Government of Canada who participated in the negotiation of the  
tripartite agreements with Mashteuiatsh, and Mr. Coleman, representing the province of  
Quebec (Examination on Discovery of Dannye Bonneaus dated May 23, 2018, at page 20).  
55  
[305] In her memo, Ms. Picard describes certain criteria that should be taken into  
consideration to determine and justify the unit cost per police officer. Accordingly, the unit  
cost that should be reached for Mashteuiatsh was $100,000 per police officer.  
[306] The Tribunal has adopted some of the criteria considered by Ms. Picard, namely:  
the crime rate and type of crime (i.e., drugs, suicides, impaired driving, assault,  
etc.);  
the police officers’ workload;  
the level of social disorder, including drugs, drug dealing, alcohol, assault, impaired  
driving, suicides, improper handling of a firearm, etc., and the fact that the majority  
of the population (in 2004) was underage (60 percent); and  
geographic location, given that the geographic location of the community of  
Mashteuiatsh makes it the meeting point for several Indigenous groups and that its  
resort site doubles its population during the summer period.  
[307] Moreover, the Respondents argument completely ignores the consistent and  
abundant case law holding that the existence of prejudice against visible minorities, which  
includes First Nations, is a well-known and indisputable social fact of which the Tribunal  
must necessarily take judicial notice.  
[308] This necessarily includes systemic discrimination against Indigenous people, racism  
against them, and known clashes between police and this visible minority (R. v. S. (R.D.),  
1997 324 (SCC), at paras. 4647; R. v. Spence, 2005 SCC 71; Williams; Ipeelee, at  
paras. 59 and 60; Commission des droits de la personne et des droits de la jeunesse  
(Debellefeuille) v. Ville de Longueuil, 2019 QCTDP 11 (), at para. 26; Commission  
des droits de la personne et des droits de la jeunesse (Nyembwe) v. Ville de Gatineau, 2019  
QCTDP 8 (), at para. 19).  
[309] For all of the foregoing reasons, the Tribunal finds that the Respondent is, in fact,  
starting from the wrong premises in making some of its arguments. Some of these  
arguments are as follows:  
The FNPP is only a contribution program, and the federal government offers money  
only to improve the police services put in place by Mashteuiatsh.  
56  
The government is not obligated to contribute fully to Indigenous police services  
under the FNPP or to provide or fund policing services in the territories of the First  
Nations of Quebec.  
The SQ, the provincial police force of Quebec, is still there to offer the police  
services that Mashteuiatsh Public Safety cannot offer.  
SQ services are free of charge, and no other citizen in Quebec is offered free police  
services.  
The SQ is able to offer services that are adapted to Indigenous realities.  
All police forces have grievances in terms of equipment, infrastructure and human  
resources, and they all want to receive more funds to increase and improve these  
conditions, Mashteuiatsh Public Safety being no exception.  
The ratio of police officers per capita in Mashteuiatsh is clearly higher than the ratio  
in surrounding communities such as Chambord, Roberval or Saint-Prime, to name  
a few, and the number of hours actually worked by the police officers of  
Mashteuiatsh exceeds the number of police officers provided for in the tripartite  
agreements.  
[310] Contrary to the Respondents argument that the FNPP is merely a funding or  
contribution program and that the Canadian government has no obligation to fully fund  
Indigenous police services, the Tribunal notes that once the state does provide a benefit, it  
is obliged to do so in a non-discriminatory manner(Eldridge at para. 73). In other words,  
when the Canadian government decides to provide the benefits that come from applying the  
Policy and FNPP, which includes not only funding but also other benefits associated with  
the implementation of the program, then it must do so in a non-discriminatory manner  
(Childrens Aid Society 2016, at para. 403).  
[311] Other arguments also require some comment by the Tribunal. The Respondent, in  
its final arguments, seemed to be inviting the Tribunal to conduct a comparative analysis of  
several different elements to demonstrate that the Complainant was not, in fact,  
disadvantaged in the provision of the service.  
[312] The Respondent argued, among other things, that the current police services of  
Mashteuiatsh, which are offered by an Indigenous police force, reflect a favourable evolution  
of services compared with the police services that the First Nation would have received in  
the past.  
57  
[313] The Respondent also argued that Mashteuiatsh, which is a small community of  
approximately 2,000 inhabitants, could establish an Indigenous police force, which is not  
possible for other small municipalities in Quebec. It added that the ratio of the number of  
police officers in the community is much higher than it is in other Quebec communities, even  
other Indigenous communities. Finally, it argued that the community does not have to pay  
for the superior or supplementary services of the SQ, while other municipalities are billed for  
these police services.  
[314] Using these comparative elements, the Respondent argued the concepts of formal  
equality and substantive equality, claiming that Indigenous Police Forces are in fact an  
exception and that the Indigenous reality has therefore been taken into consideration; First  
Nations are not confined in a statutory (or legislative) straitjacket to which other  
municipalities in Quebec are nonetheless subject. Furthermore, the Respondent added that  
if we compare the evolution of police services in the community of Mashteuiatsh, of the  
creation of its Indigenous police force, since the implementation of the FNPP, the evolution  
is clearly favourable.  
[315] First, the Tribunal finds that in its discrimination analysis, it is not necessary to  
conduct any comparative analysis between groups with the same or similar characteristics.  
In other words, it is not necessary for the Tribunal to identify comparator groups and  
compare the group at issue in the complaint with other groups or subgroups.  
[316] The Supreme Court has already stated its great reluctance to use comparator groups  
in the substantive equality analysis, in Withler v. Canada (Attorney General), 2011 SCC 12  
() [Withler]. In fact, it wrote the following at paragraph 2:  
A formal equality analysis based on mirror comparator groups can be  
detrimental to the analysis. Care must be taken to avoid converting the inquiry  
into substantive equality into a formalistic and arbitrary search for the proper”  
comparator group.  
[317] Similarly, the Federal Court of Appeal in Canada (Attorney General) v. Canadian  
Human Rights Commission, 2013 FCA 75 () confirmed the Federal Courts analysis  
of the use of comparator groups in discrimination analysis under the CHRA. It wrote the  
following at paragraph 18:  
58  
In Moore v. British Columbia (Education), 2012 SCC 61, the Supreme Court  
reiterated that the existence of a comparator group does not determine or  
define the presence of discrimination, but rather, at best, is just useful  
evidence. It added that insistence on a mirror comparator group would return  
us to formalism, rather than substantive equality, and risks perpetuating the  
very disadvantage and exclusion from mainstream society the [Human Rights]  
Code is intended to remedy(at paragraphs 30-31). The focus of the inquiry  
is not on comparator groups but whether there is discrimination, period(at  
paragraph 60).  
In Quebec (Attorney General) v. A., 2013 SCC 5 at paragraph 346 (per  
Abella J. for the majority), the Supreme Court has reaffirmed that a mirror  
comparator group analysis may fail to capture substantive equality, may  
become a search for sameness, may shortcut the second stage of the  
substantive equality analysis, and may be difficult to apply: Withler, supra at  
paragraph 60. The Supreme Court went so far as to cast doubt on the  
authority of Nova Scotia (Attorney General) v. Walsh, 2002 SCC 83, [2002] 4  
S.C.R. 325, an earlier case in which an unduly influential or determinative role  
was given to the existence of a comparator group similar to what the Tribunal  
did here.  
[318] The Tribunal finds that it is difficult, if not impossible in practice, to compare First  
Nations with each other or with other groups in Canada because of their unique position in  
Canada. The Federal Court recognized this exceptional and incomparable status of First  
Nations in Canada (Human Rights Commission) v. Canada (Attorney General), 2012 FC  
445 (), at paragraph 332, where it stated:  
[332] Aboriginal people occupy a unique position within Canadas  
constitutional and legal structure.  
[319] Still on the subject of comparator groups, it wrote the following in paragraphs 337  
and 340 of its decision:  
[337] By interpreting subsection 5(b) of the Canadian Human Rights Act so  
as to require a mirror comparator group in every case in order to establish  
adverse differential treatment in the provision of services, the Tribunals  
decision means that, unlike other Canadians, First Nations people will be  
limited in their ability to seek the protection of the Act if they believe that they  
have been discriminated against in the provision of a government service on  
the basis of their race or national or ethnic origin. This is not a reasonable  
outcome.  
. . .  
59  
[340] I also agree with the applicants that an interpretation of subsection 5(b)  
that accepts the sui generis status of First Nations, and recognizes that  
different approaches to assessing claims of discrimination may be necessary  
depending on the social context of the claim, is one that is consistent with and  
promotes Charter values.  
[Emphasis added.]  
[320] Therefore, the Tribunal does not intend to identify comparator groups in this case as  
there is no need to do so. The Tribunal is in a position to draw its own conclusions on  
whether there is discrimination without embarking on a comparative analysis through  
various comparators as the Respondent would like.  
[321] The Tribunal adds that the Respondent also appears to be distorting the notion of  
substantive equality. This concept is recognized by Canadian courts and tribunals and is  
intended to assess the true situation of the group concerned and the risk that the  
challenged measure will aggravate the situation (Landry v. Wolinak Abenakis First  
Nation, 2021 FCA 197 (), at para. 91).  
[322] In Withler, the Supreme Court wrote the following at paragraph 39 in relation to the  
concept of substantive equality:  
Both the inquiries into perpetuation of disadvantage and stereotyping are  
directed to ascertaining whether the law violates the requirement of  
substantive equality. Substantive equality, unlike formal equality, rejects the  
mere presence or absence of difference as an answer to differential  
treatment. It insists on going behind the facade of similarities and differences.  
It asks not only what characteristics the different treatment is predicated upon,  
but also whether those characteristics are relevant considerations under the  
circumstances. The focus of the inquiry is on the actual impact of the  
impugned law, taking full account of social, political, economic and historical  
factors concerning the group. The result may be to reveal differential  
treatment as discriminatory because of prejudicial impact or negative  
stereotyping. Or it may reveal that differential treatment is required in order to  
ameliorate the actual situation of the claimant group.  
[Emphasis added.]  
[323] And more recently, in Ontario (Attorney General) v. G. 2020 SCC 38, at  
paragraph 47, the Supreme Court added:  
60  
[47] Emerging from the foundation laid in Andrews, substantive equality,  
concerns itself with historical or current conditions of disadvantage, products  
of the persistent systemic discrimination that continues to oppress groups  
(Fraser, at para. 42). Substantive equality demands an approach that looks  
at the full context, including the situation of the claimant group and . . . the  
impact of the impugned lawon the claimant and the groups to which they  
belong, recognizing that intersecting group membership tends to amplify  
discriminatory effects (Centrale des syndicats, at para. 27, quoting Withler, at  
para. 40), or can create unique discriminatory effects not visited upon any  
group viewed in isolation. It must remain closely connected to real peoples  
real experiences(Egan v. Canada, 1995 98 (SCC), [1995] 2 S.C.R.  
513, at para. 53, per LHeureux-Dubé J.): it must not be applied with ones  
eyes shut(McIntyre, at p. 103).  
[Emphasis added.]  
[324] In our case, the substantive equality analysis requires that the Tribunal assess the  
real effects, on the ground, of how the Respondent has implemented the FNPP with respect  
to Indigenous policing services offered to the members of the Mashteuiatsh community.  
[325] Substantive equality requires that the social, political, economic and historical  
contexts of First Nations be taken into account in policing. In her memo of April 16, 2004 (P-  
79), Ms. Picard clearly stated the inherent difficulties and specificities of the problems  
experienced by First Nations and in particular by the community of Mashteuiatsh, such as  
the higher crime rate, the type of crime, the level of social disorder and the workload of the  
police officers, to name just a few.  
[326] The Tribunal notes that the issue is not whether there is less discrimination now as a  
result of the FNPP than before. Rather, the question is whether there is discrimination,  
period (Moore at para. 60). The evidence shows that the implementation of the FNPP is  
perpetuating existing discrimination, not eliminating it entirely. The goal of substantive  
equality is not achieved and cannot be achieved by the FNPP because of its very structure.  
This is highlighted by the gap between the objectives of the policy to develop professional  
and responsive policing services for First Nations and the actual impact of the  
implementation of the program.  
[327] The Tribunal finds that the Commissions submissions and the manner in which it  
has presented the substance of the case and, in particular, the link between the adverse