Canada: Amendments To The Summary Offences Procedure Act

The Summary Offences Procedure Act, 1990 (the "Act") has been amended for the purpose of addressing issues associated with enforcing First Nation laws.

The amendments, as set out in Bill 126 under The Summary Offences Procedure Amendment Act, 2022, are intended to create a simplified legal framework that will enable First Nations to enforce laws and bylaws on-reserve through tickets, fines and other measures that can be administered through the Provincial Court.

Notably, the amendments include a definition of "First Nation law":

"(i.1) 'First Nation law' means:

(i) a bylaw made by a council of a First Nation band under the authority of the Indian Act (Canada) that makes the proceedings pursuant to this Act applicable to that bylaw;

(ii) a First Nation law made by a council of a First Nation pursuant to the First Nations Land Management Act (Canada) that makes the proceedings pursuant to this Act applicable to that law; or

(iii) a law made by a First Nation prescribed in the regulations under the authority of a self‑government agreement that it has entered into with the Government of Canada, which has been given effect by a federal Act, that makes the proceedings pursuant to this Act applicable to that law."

While both the Framework Agreement on First Nation Land Management Act ("FAFNLMA") and the Indian Act permit First Nations to enact various bylaws, practically, enforcement has been difficult.¹ This was largely due to a legislative gap in prosecutions. As a result of the division of powers, the province has no jurisdiction under the FAFNLMA or the Indian Act to prosecute First Nation laws unless by agreement with the federal government. Furthermore, enforcement under any federal regime is often extremely arduous, with limited resources. This meant that bylaws and other laws would fall in a legislative gap and remain unenforced.

The primary goal of the amendments is to simplify the enforcement processes for First Nations by allowing the use of tickets, fines, and other measures administered through the Provincial Court, and to rely on the legislative scheme set out in the Act. This will assist community safety officers in laying of charges, prosecution, adjudication and the enforcement of fines, penalties, and other orders. It's important to recognize that the journey toward self-determination and self-governance can be a gradual process, and interim measures like these amendments can make a significant difference in the meantime. They demonstrate a commitment to respecting and supporting the autonomy and jurisdiction of First Nations while ensuring that law and order are maintained within their communities.

The new processes for bylaw enforcement and fine collection may be used by any First Nation in Saskatchewan that chooses to opt into the new provisions under the Act. The Summary Offences Procedure Amendment Act, 2022 received Royal Assent on May 17, 2023. The amendments will come into force by order of the Lieutenant Governor in Council.

Footnote

1. It is important to note that by virtue of The Legislation Act, reference to the First Nations Land Management Act within the SOPA amendments will automatically now refer to the FAFNLMA.