Judge reserves decision in hearing for MMIWG lawsuit
REGINA -- A judge has reserved her decision on whether Diane Bigeagle's attempt to sue the RCMP will be certified as a class-action lawsuit.
During the fourth day of a hearing to determine whether Diane Bigeagle's attempt to sue the RCMP will be certified as a class-action lawsuit, the defence for the Department of Justice outlined why it does not believe there are common issues between the proposed class members.
“There are always innumerable individual issues that remain," Merchant, BIgeagle's Lawyer, said, adding that who would be eligible for compensation and involved in the class would be worked out at the common issues trial not now during the verification process.
Defence lawyer Christine Ashcroft argued to determine a standard of care from police, the court would need to inquire into each member of the classes issues. Ashcroft said this would defeat the common issues of a class-action lawsuit.
Ashcroft said in her arguement that a charter right is individual in nature and doesn’t apply to a group, so each case needs to be examined individually.
Ashcroft argued the methodology proposed relies on the RCMP having a duty of care to the victim's families, but said RCMP have no such duty.
Ashcroft said the class action lawsuit proposed to review police records and would result in a second national inquiry, which she feels is not what a class action lawsuit is meant to do.
Ashcroft continued to argue that Canada knows Indigenous women are vulnerable but said “what this claim tries to do is blame it on the police.”
According to Statistics Canada, in 2018 the solved rate for homicides involving Indigenous and non-Indigenous females was almost the same, 86 per cent and 88 per cent respectively, which Ashcroft argued showed the RCMP is successfully investigating murdered Indigenous women.
Defence lawyer Alathea Leblanc argued that the disappearance of Bigeagle’s daughter continues to be investigated by the Regina Police Service. Leblanc said Bigeagle does not have a cause of action against the RCMP, as she repeatedly went to the Regina police and the RCMP were only acting in a liaison role.
Leblanc said the RCMP investigative teams were never assigned to help and the RCMP officer who spoke to Bigeagle repeatedly told her they were acting as a liaison and not investigating.
“She was aware the [Regina] Police Service was investigating her daughter's disappearance,” Leblanc said.
Leblanc argued there is no evidence that the RCMP had or should have had jurisdiction over the investigation at any time. Leblanc said even if the RCMP became a part of the investigation, it had no duty of care to Bigeagle in this investigation.
Leblanc argued Bigeagle can not be a successful plaintiff for this case. She said if the class-action was more focused, a different plaintiff would need to be presented.
Leblanc argued even with any potential amendments to the common issues, the proposed community class is too vast with not enough connection.
Leblanc argued at any time a missing person could be found, so they would be removed from the proposed class membership. She felt this claim asks to compensate families where an ongoing investigation could be happening.
“Indigenous victims who have been murdered or have gone missing are not in the care of the RCMP” Leblanc said.
Merchant argued the issue is the RCMP should have better performed their duties when knowing about a victim.
Leblanc argued if the court denies the certification, it would prevent a very complex trial that would need to determine participation on a case-by-case basis. She said the amount of individual questions that would need to be asked would overwhelm the process.
Merchant said the common issue of everyone in the class is whether there is a duty of care. He argued a duty was owed by the RCMP, because of the knowledge they have regarding missing and murdered Indigenous women and girls.