Moved second reading of Bill S-224, An Act to amend the Director of Public Prosecutions Act.

She said: Honourable senators, I am pleased to rise today to speak at second reading of Bill S-224, An Act to amend the Director of Public Prosecutions Act. I again wish to acknowledge the tremendous amount of work, dedication and perseverance demonstrated by the Manitoba Keewatinowi Okimakanak, or MKO, in close collaboration with the Lands Advisory Board, or LAB, on both this bill and its sister legislation Bill S-223.

I had the privilege of collaborating with MKO and LAB on the creation of these bills and bringing them to the Senate floor on their behalf.

Colleagues, Bill S-224 will amend the Director of Public Prosecutions Act to include the following definitions of First Nation law:

(a) a bylaw made under the Indian Act;

(b) a First Nation law as defined in subsection 2(1) of the Framework Agreement on First Nation Land Management Act; or

(c) a law enacted by a council, government or other entity that is authorized to act on behalf of a First Nation under a self-government agreement implemented by an Act of Parliament. . . .

Bill S-224 is important legislation that is necessary to clarify and conclusively confirm that the Public Prosecution Service of Canada, or PPSC, has the jurisdiction and mandate to initiate and conduct prosecutions of summary conviction offences under First Nation laws, as well as any appeal or other proceeding related to such a prosecution, on behalf of the First Nation that made or enacted the First Nation law.

As I stated in my previous speech on Bill C-223, Parliament intended to create new and enhanced law-making authorities to support the self-determination of First Nations through former Bill C-49, the First Nations Land Management Act in 1999, and former Bill C-428, the Indian Act Amendment and Replacement Act in 2014.

One published official summary of Bill C-49 says:

Bill C-49 would expand the range of powers that First Nations could exercise and no longer leave them at the discretion of the Governor in Council or Minister.

A departmental summary states that Bill C-428:

. . . eliminates the Minister’s oversight in regards to the submission, coming into force and disallowance of by-laws and gives First Nations the autonomy and responsibility over the development, enactment and coming into force of by‑laws. . . .

Despite the intent of Parliament to enhance the self-determining law-making powers of First Nations through the passage of Bill C-49 and Bill C-428, in practice these bills have created what have been called “stranded regimes” of First Nation laws that are not enforced by the RCMP and have not been subject to prosecution by the Public Prosecution Service of Canada. These refusals go against the goal and intent of Bill C-49 and C-428.

Honourable senators, in the June 2021 report of the House of Commons Standing Committee on Indigenous and Northern Affairs, or INAN, entitled Collaborative Approaches to Enforcement of Laws in Indigenous Communities, the committee heard that since amendments to the Indian Act removed the minister’s power to disallow a bylaw in 2014, there is no mandatory departmental review of bylaws.

While the PPSC of Canada only prosecutes bylaws that have been reviewed by Indigenous Services Canada, or ISC, ISC now reviews draft bylaws for comment only. Why was this not addressed immediately in 2014? Why didn’t the Attorney General, PPSC and ISC raise this with the federal government back in 2014?

In the testimony to the INAN Committee on May 6, 2021, Jeff Richstone, Director General and Senior General Counsel of the Office of the Director of Public Prosecutions, stated:

There has existed for many years a gap with respect to the prosecution of Indigenous Community laws. Those laws are enacted by communities under a number of law-making authorities, but the common theme is the nation-to-nation relationship that Indigenous Communities share with Canada.

The prosecution of these laws is not part of PPSC’s mandate. . . .

Mr. Jeff Richstone, along with Mr. Stephen Harapiak, Legal Counsel, Legal Services, Department of Justice, explained:

We’ve been reviewing some of the draft bylaws at the request of first nations, to provide them some guidance and to assist. Those would be the bylaws that are being enforced. Without the power of disapproval —

— by ISC —

— some of the problems that can come up are whether a bylaw is within the scope of the authority of the Indian Act, or whether it is charter-compliant, as required since 2011.

Honourable senators, my question is this: Why was the power of disapproval by ISC removed without a process put in its place to ensure the effective recognition, respect, enforcement and prosecution of First Nations laws?

More importantly, why has the government placed First Nations in a position that won’t allow them to do the work they need to do to protect their people and lessen the violence in their communities?

Why did a federal action of removing disapproval then become, in itself, a barrier to self-determination and self-governance?

Jeff Richstone explained that:

Despite our limited statutory role, PPSC is committed to working with partners to explore options and develop long-term solutions. To that end, prior to the pandemic, PPSC was in the early stages of initiating discussions with other stakeholders to see how to bring this issue to the forefront, in the hope of identifying solutions to fit the needs of Indigenous Communities.

The INAN Committee report states:

PPSC has entered into protocol agreements with some First Nations to prosecute Indian Act by-laws made to address the COVID-19 pandemic. The committee was told that only by‑laws that have been reviewed for compliance with the Indian Act and the Canadian Charter of Rights and Freedoms can be prosecuted, understanding that not all sections of the Indian Act itself are compliant with the Charter.

Colleagues, is that not a paradox? Did they identify what sections of the Indian Act are not compliant with the Charter? And what would take precedence? The Charter or the Indian Act? The limitation of review is, again, a major barrier. How did PPSC pick the protocol agreements they would agree to support?

The INAN Committee report states:

Self-governing First Nations can make laws in relation to the law-making authority that is set out in their self-government agreement or their modern treaty. In addition, First Nations that have adopted a land code pursuant to the Framework Agreement on First Nation Land Management (brought into force by the First Nations Land Management Act) can make laws in relation to their lands, including development, protection and possession. These laws enable First Nations to opt out of the relevant Indian Act land management provisions.

The Framework Agreement includes provisions relating to enforcement of land codes and First Nations laws. However, this does not mean that laws made under land codes are enforced.

As the Lands Advisory Board explains in its brief:

Unfortunately, there has been chronic under-enforcement of Indian Act by-laws. Much of the difficulty in building effective enforcement of First Nation laws under the Framework Agreement can be traced back to difficulties in overcoming the legacy of failure under the Indian Act.

As part of the Senate’s consideration of Bill C-32 in December 2022, Grand Chief Garrison Settee of Manitoba Keewatinowi Okimakanak provided our Standing Senate Committee on Indigenous Peoples and our Standing Senate Committee on National Finance with a clear written explanation of why Part 4, Division C of Bill C-32 should have been amended to ensure clarity on the enforcement and prosecution of First Nations laws enacted pursuant to the Framework Agreement on First Nation Land Management.

Although MKO was not invited to appear before either of the committees regarding Bill C-32, several honourable senators rose in the chamber and joined me in expressing support for MKO’s request to appear before the National Finance Committee.

I also rose in this chamber to support and draw attention to the importance of the amendments that were then being proposed by MKO. In addition, Senator Loffreda posed a question in committee to the Deputy Prime Minister and Minister of Finance, saying:

. . . MKO made a submission to our Indigenous Peoples Committee, voicing some concerns with this section of the bill and calling for consequential amendments to the Royal Canadian Mounted Police Act and the Director of Public Prosecutions Act.

I would appreciate your comments and opinion on these claims and concerns.

The Minister of Finance’s response to Senator Loffreda was:

That is a very broad set of issues that you have raised. It is beyond the few minutes that Senator Mockler is going to give us for me to address all of them. Let me just say: duly noted.

I am confident that reconciliation and a nation-to-nation relationship with Indigenous people in Canada really are one of the most important issues for our government. That sort of permeates the work across all departments. It is an issue we take seriously. The comments that you make are duly noted by me and by Mr. Jovanovic.

The MKO submission on Bill C-32 also referenced the statement made on May 25, 2021, by Lands Advisory Board Chairman Robert Louie to the INAN Committee:

Many land code First Nations have faced refusal from police forces when they ask for help, with police forces expressing concerns regarding the validity of land code laws, concerns about potential liability of police officers, and uncertainty regarding who will prosecute laws if charges are laid. It has been difficult to this point to reach agreement with either federal or provincial prosecutors to tackle First Nation laws under the Framework Agreement.

On November 22, 2022, Lands Advisory Board Chairman Robert Louie advised our Indigenous Peoples Committee during its consideration of Bill C-32:

We have come to find out over the last 20-plus years that Canada and the RCMP are not readily backing and enforcing the First Nation laws that First Nations have passed.

It was 26 years.

It’s an issue that is bubbling. It’s something that we didn’t quite expect at the outset, but we’re working now with Canada and with provinces and with Attorneys General both at the Canadian and provincial levels to deal with this issue.

RCMP Commissioner Brenda Lucki’s letter dated February 17, 2020, addressed to MKO Grand Chief Settee, provides an earlier confirmation of Lands Advisory Board Chairman Robert Louie’s statements that land code First Nations faced a “. . . refusal from police forces . . .” and that “. . . the RCMP are not readily backing and enforcing the First Nation laws that First Nations have passed.”

The commissioner advised Grand Chief Settee:

The RCMP recognizes First Nations’ authority under the FNLMA. However, there are concerns as to whether the FNLMA Land Codes provide the legal authority to enact COVID-19 related laws. Pending further direction, the RCMP will continue to follow the processes in place with respect to the enforcement of COVID-related bylaws passed under the Indian Act, as well as enforcing applicable provincial laws.

On March 15, 2021, Dr. Kelley Blanchette, Assistant Deputy Minister, Lands and Economic Development of Indigenous Services Canada, wrote to LAB Chairman Robert Louie:

I appreciate the frustration felt by First Nations who have taken on such fundamental aspects of their governance through the enactment of a Land Code, only to be forced to rely on Indian Act authorities to address the current COVID-19 pandemic.

While more analysis will need to be done, I have instructed my team to collaborate with you on options to expand and clarify authorities through the next amendments to the Framework Agreement.

However, honourable senators will recall that amendments to address effective enforcement and prosecution of land code laws were not part of Bill C-32.

On May 31, 2023, Mr. Michael Foote, Chief Federal Prosecutor for Manitoba, speaking to MKO leadership and representatives, stated:

I have been a prosecutor for 25 years at the federal level and another three years at the provincial level. And know in all of that time we have not done any prosecutions. So, it certainly predates my tenure as even the most junior prosecutor. I think Michael Anderson referred us back to a case from 1996 where it was the Department of Justice that was responsible for doing it at the time that prosecute a case, and it’s never been done since, as I alluded to in my presentation.

When responding on June 1, 2023, to a question from Chief Hubert Watt of the God’s Lake First Nation on the second day of the symposium, the Chief Federal Prosecutor for Manitoba also said:

With respect to your question, with respect to specifically the issue of the Indian Act bylaws, it’s always been the position of the Federal Prosecution Service that we don’t prosecute those bylaws. So, I take it that the RCMP, once they get that message from us, they take the position that if the Crown’s not going to prosecute, we’re [the RCMP] not going to lay charges.

However, RCMP Inspector Jeff Preston, Officer in Charge of the Campbell River, British Columbia, detachment told the Standing Committee on Indigenous and Northern Affairs in the other place on May 11, 2021:

Generally speaking, band bylaws are treated as federal laws that are enforceable by the RCMP, the police of jurisdiction or the band bylaw enforcement officers. . . .

In a May 11, 2021, statement to the Standing Committee on Indigenous and Northern Affairs in the other place, RCMP Staff Sergeant Ryan Howe of the Meadow Lake Detachment, RCMP F Division, Saskatchewan, told the committee that enforcement of First Nations laws by RCMP in northern Saskatchewan had stopped after 2014.

As part of an exchange of communications between Michael Anderson, MKO’s Policing and Public Safety Adviser, following up on Staff Sergeant Howe’s statement to the Standing Committee on Indigenous and Northern Affairs, Staff Sergeant Howe wrote on May 6, 2021, and advised MKO:

After the changes to legislation made in December 2014, the direction and guidance to RCMP serving First Nations in Northern Saskatchewan was that without prosecution, the police would no longer arrest or lay a charge.

Honourable senators, as you can see, there are conflicting statements made by the RCMP from different areas. We are requesting information from the RCMP in B.C. to see the following: When they enforced the bylaws, were they then prosecutable? We’re still waiting for the response.

On May 27, 2021, MKO filed a formal access to information request for a copy of this guidance to the RCMP to cease enforcement of First Nations laws after December 2014 without prosecution. More than two years later, MKO continues to pursue a response from the RCMP regarding MKO’s request for this RCMP guidance. At a request from my office in the Senate for this response, which included consent granted from MKO, my office was informed that it would take a further 1.5 years to get the information, and I have been told by a privacy lawyer that this is deemed a refusal.

Honourable senators, First Nations from coast to coast to coast are experiencing a crisis in public safety and well-being, largely driven by virtually uncontrolled drug dealing and bootlegging. And the complex community harms are the consequences. The failure and refusal of the RCMP to enforce and the Public Prosecution Service to prosecute First Nations laws, including intoxicants, prohibitions, trespass and curfew laws, is directly contributing to this national crisis of violence that First Nations communities are facing.

In the article entitled “Solving the Indian Act by-law enforcement issue: Prosecution of Indian Act by-laws” by Olthuis Kleer Townshend LLP, the author states:

First Nations by-laws are ignored by many police forces across the country because those police forces know that in most cases, there is no effective way to prosecute or convict those who violate these by-laws. While section 81 of the Indian Act allows bands to make on-reserve by-laws in areas including traffic control, residency, public health, and intoxicants, and while some of these by-laws can include penalties such as fines and/or imprisonment, the Indian Act does not specify whether the provinces/territories, federal government, or First Nations themselves are responsible for prosecuting by-law infractions. Lack of federal and provincial/territorial coordination or leadership on this issue has led to a situation where oftentimes neither federal nor provincial/territorial levels of government are choosing to prosecute these laws.

The author continues:

Many police forces view Indian Act by-laws as not having the same legitimacy as federal, provincial/territorial or municipal law, and as not being worth the liability risk and resource expense required to enforce them.

The author concludes:

The fact that the Indian Act doesn’t specify whether the provinces/territories, federal government, or bands themselves are responsible for prosecuting by-law infractions leads to both the provincial government and the federal government claiming that it’s not their problem, with First Nations stuck with the resulting lawlessness and insecurity.

Remember, this has gone on for 26 years now.

The federal and provincial governments need to step up, take the security and well-being of First Nations communities seriously and ensure these bylaws are being enforced and prosecuted, particularly for Indigenous citizens with whom the government has a fiduciary relationship.

Honourable senators, Chief Robert Louie of the Westbank First Nation, acting in his capacity as Chairman of the Lands Advisory Board, wrote to MKO Grand Chief Settee on April 5, 2023, to endorse the type of amendments to the Director of Public Prosecutions Act that were pursued in MKO’s submission on Bill C-32. These amendments now appear in the bill before us — Bill S-224 — with the endorsement of the Lands Advisory Board.

Acting in his capacity as Chief of the Westbank First Nation, Chief Louie also wrote to MKO Grand Chief Settee with a request:

I would like to see any change to federal law encompass Indian Act by-laws, the Framework Agreement and other self-government agreements such as the Westbank Self-Government Agreement.

Colleagues, therefore, in addition to addressing the currently “stranded regimes” of Indian Act bylaws and land code laws, the enactment of Bill S-224 into law is intended to address and clarify with conclusive certainty that the Public Prosecution Service of Canada has a duty to prosecute offences under:

. . . a law enacted by a council, government or other entity that is authorized to act on behalf of a First Nation under a self-government agreement implemented by an Act of Parliament.

Bill S-224 also provides that the Public Prosecution Service of Canada will not initiate or pursue a prosecution:

. . . if the First Nation that made or enacted the First Nation law has appointed or retained a prosecutor or entered into an agreement with a provincial or territorial government for the prosecution of summary conviction offences created by its First Nation laws.

The enactment of Bill S-224 into law will clarify with conclusive certainty that it is the will of Parliament that offences pursuant to all duly enacted First Nations laws are to be effectively prosecuted by the Public Prosecution Service of Canada on behalf of the Attorney General of Canada, unless a First Nation has expressly made other arrangements to pursue prosecution.

MKO has also recently engaged in a legislative co‑development exercise with Manitoba’s Minister of Justice to secure the introduction, consideration and passage, on May 30, 2023, of amendments to Manitoba’s Provincial Offences Act, which will — for the first time in Manitoba — create a ticketing regime for First Nations law.

Similar provincial laws to create a ticketing regime for First Nations laws were pursued by First Nations and were passed into law by Alberta on December 9, 2020, and by Saskatchewan on May 11, 2023.

Together with the enactment of the amendments to this bill and Bill S-223, these ticketing regimes for First Nations law will significantly enhance the ability of the Public Prosecution Service of Canada, or PPSC, to potentially prosecute offences under First Nations law in Alberta, Saskatchewan and Manitoba.

I mentioned yesterday there was a two-year pilot project where the Director of Public Prosecutions was working with Manitoba for the enforcement and prosecution of Indian Act bylaws beyond those related to the COVID-19 pandemic. This kind of pilot would not be a permanent solution but rather a joint opportunity to expand on the work done to date beyond the crisis posed by the pandemic.

In addition, it would be an opportunity to gather evidence and experience that can inform the development of solutions to better serve the communities in the long-term. The two-year pilot is unique in Canada and applies to 23 lawmaking MKO First Nations that have elected to participate.

Honourable senators, First Nations have fought to change the story that Canada has proclaimed for them and forced upon them. The deleterious effect of removing self-determination and the horrible consequences that flow from that are a story of an environment that made them vulnerable. It is not the First Nations that were broken.

Colleagues, in the early 1980s, the Charter of Rights and Freedoms had a section providing constitutional protection for treaty and Aboriginal rights.

In November 1983, the House of Commons Special Committee on Indian Self-Government presented its findings and urged expanded powers for First Nations governments, which, in some instances, would go beyond the traditional municipal model. In the 1990s, Indian Affairs announced a policy on the inherent right of self-government. In 2023, we had the First Nations Land Management Act.

It is time to end the 247 years of formal Indian administration which is still grappling with an Indian question that they created and supported, which was a racist act and has left First Nations with stranded regimes.

Honourable senators, as I stated at the beginning, I am deeply honoured to have had the privilege of collaborating with representatives from MKO and the First Nations Lands Advisory Board, or LAB, who played a major role in developing the version of this bill. This represents a concrete example of co‑development in action of proposed legislation affecting First Nations.

Such legislative co-development reflects and is consistent with articles 19 and 38 of the United Nations Declaration on the Rights of Indigenous Peoples. And, therefore, with the federal government’s United Nations Declaration on the Rights of Indigenous Peoples, I call upon all honourable senators to fully support the self-determination and enhanced law-making powers of all First Nations in Canada that were intended by Parliament through the former Bill C-428 and for those First Nations that choose to exercise the law-making authority intended by the former Bill C-49.

I call upon my honourable colleagues to fully support, endorse and pass Bill S-224, which will enact amendments to the Director of Public Prosecutions Act that will clarify and confirm, with conclusive certainty, the jurisdiction of the PPSC to potentially prosecute offences under First Nations law on behalf of the Attorney General of Canada.

Sending these sister bills, Bill S-223 and Bill S-224, to the committee as quickly as possible will allow us to investigate this quagmire that continues to increase uncertainty in First Nations lives. This would then be a step towards restoring what should never have been taken away.

Kinanâskomitinawow. Thank you.