Defence argues against certification of MMIWG class-action suit
REGINA -- During the third day of a hearing to determine whether Diane Bigeagle's attempt to sue the RCMP will be certified as a class-action lawsuit, lawyers for the Ministry of Justice stated why they believe the case should not be certified.
Bruce Hughson, a defence lawyer with the Ministry, said the Canadian government acknowledged the tragedies experienced by Indigenous families, including Bigeagle, but says the choice to oppose the certification is based strictly in law.
Hughson argued the claim is asking the RCMP to compensate the families and extended families of those missing and said Canada rejects the notion that a class action lawsuit is the best vehicle for compensation.
During the first two days of the hearing, Tony Merchant, Bigeagle’s lawyer, argued the RCMP should have become more involved in the investigation into her daughter’s disappearance.
On Wednesday, Hughson argued when a person goes missing it’s directed to the police of the jurisdiction and RCMP have no involvement, unless asked by the local police to help. He added the law does not require the families to be compensated.
Defence lawyer Christine Ashcroft said the RCMP clarified it was acting in a liaison role initially in the Bigeagle case, and highlighted an email where an RCMP officer contacted the Regina Police Service, after being asked to conduct a review.
Ashcroft said RPS responded to the email the next day, asking the RCMP to act as a liaison in Bigeagle’s case, as they believed she did not trust Regina police. Ashcroft said the service said the Federation of Sovereign Indigenous Nations (FSIN) had asked RPS about the case and Bigeagle’s trust levels, in an email, which is what prompted the service to reach out to RCMP.
Ashcroft also argued courts across Canada find police do not owe a private duty of care, meaning officers are not responsible for the future safety of victims or their families or friends. Instead, Ashcroft argued the duty of police is to carry out investigations for the public.
She added that limited exceptions come to specific threats to the victim or specific threats to a narrow and defined group of people.
“Unfortunately Indigenous women are at risk of violence from many different sources. There’s not a specific source, and you need a specific source to put a case within the exceptional group.” Ashcroft said
Ashcroft says she’s not trying to minimize that there’s no private law for families who report a missing person, but argued just because a family provides information to RCMP and asks for an investigation, does not mean police owe a private duty of care to the family.
She also argued that systemic negligence does not apply in this case, saying the RCMP owe a duty of care to the public, but not private situations.
Ashcroft also argued there is no fiduciary obligation in this case, as the RCMP have no mandate to provide extra protection to indigenous peoples specifically, but instead are in charge of protecting the entire public.
Ashcroft argued there’s not enough common issues between the classes for a class action lawsuit to go forward.
“If there are common issues, they are so small that they would not advance the litigation,” Ashcroft said.
Hughson also argued despite the Prime Minister agreeing to genocide in the enquiry, the basis of genocide does not apply in this case. Saying there isn’t evidence to legally determine genocide.
Ashcroft and the rest of the defence are expected to finish their submissions on Thursday.