Certification hearing set to begin for excessive force class action against RCMP in the North

Lawyer hopes top Mountie’s systemic racism admission allows suit to move forward


Joe David (J.D.) Nasogaluak, lead plaintiff in the claim, dancing at the MMIWG national inquiry's closing ceremony in 2019. Photo courtesy Diane Nasogaluak

A lawyer involved in a $600-million systemic racism class action against the RCMP in the territories says comments from top federal officials may come back to haunt them when a five-day certification hearing begins in Federal Court on Monday.

“Systemic discrimination is really ubiquitous to the point where the prime minister has acknowledged it and the commissioner for the RCMP has acknowledged it,” said Steven Cooper, whose firm Cooper Regel is one of two pursuing the claim.

“One of our best points of evidence is what the prime minister and the commissioner of the RCMP have already said.”

The suit was filed in 2018 with Joe David (J.D.) Nasogaluak as lead plaintiff. The lawsuit claims Indigenous people in Nunavut, Northwest Territories and the Yukon are “regularly assaulted” and mistreated by police because they are Indigenous.

Nasogaluak, a young Inuvialuit man from Tuktoyaktuk, N.W.T., accuses the RCMP of assaulting him and calling him a “stupid f—cking Native” while he was snowmobiling with friends in 2017. He was 15.

RCMP Commissioner Brenda Lucki testifying at the MMIWG national inquiry where she apologized to families for being let down by the Mounties. Photo: APTN

She hesitated at first, but Commissioner Brenda Lucki eventually conceded “systemic racism exists in the RCMP” last June.

“Systemic racism isn’t about the behaviour of a single individual or the actions of one person. It’s in the institutional structures that reflect the inequities that persist in our society,” Lucki said in a statement.

Meanwhile, Prime Minister Justin Trudeau never equivocated. He took a knee during a protest in the capital against police brutality and, in his 2020 throne speech, committed to RCMP reform.

Cooper agrees with Lucki’s comments. He also thinks the RCMP should have to pay damages and immediately commit to institutional reform.

“This is not about individual officers and/or individual actions,” he said. “It’s about the collective. This is about RCMP officers who operate in a dysfunctional system.”

Class actions allow a lead plaintiff to advance a common cause on behalf of a group. They must meet certain criteria and secure a judge’s consent to proceed, which is known as certification.

“We’re quite confident that’s going to happen,” said Cooper. “It’s not often that you have the chief representatives of the defendant’s organization admitting, essentially, our essential case.”

Numerous others have since come forward with allegations of racist police misconduct. Cooper said their database of potential claimants is growing.

Lawyers submitted affidavits from five more plaintiffs who accuse Mounties of subjecting them to humiliating and cruel instances of brutality and neglect.

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Documents filed by RCMP lawyers dispute the accusations. The documents include arresting officer Const. Joshua Savill’s conflicting account of his altercation with Nasogaluak.

The filings also state that an internal records search found evidence of only one other alleged incident. Government lawyers submitted nearly 200 pages of redacted RCMP records that describe in detail the plaintiffs’ past interactions with police.

Cooper insists that the plaintiffs’ police history is irrelevant and, in any case, doesn’t excuse discriminatory conduct.

“It doesn’t matter what your history is. You’re entitled not to be treated differently because of your skin colour,” he said.

“The bottom line is that our action is all about skin colour. It’s all about race. It’s all about the fact that the RCMP treat Indigenous populations differently than they would if they were non-Indigenous.”

APTN News sent an interview request to RCMP headquarters on Jan. 21. A spokesperson sent us a long statement instead explaining why the Mounties oppose certification.

“All interactions with the plaintiffs occurred on an individual basis in unique situations,” said spokesperson Robin Percival.

“Any allegations that RCMP officers did not meet their legal duties or respect Charter rights do not have enough in common to meet the legal test to be grouped together and certified.”

Instead, police say individuals can bring forth their complaints via civil claims or the Civilian Review and Complaints Commission.

They say a group proceeding “may not benefit the very people who allege wrongdoing” because it could prove long, costly and give them less control over the process.

“Our position that obligations about broad-based policy decisions are owed to the public as a whole and not to particular individuals or groups of individuals follows existing legal precedent.”

J.D. and mom Diane Nasogaluak. She filed the suit as his litigation guardian because he was a high schooler when the incident occurred. Photo courtesy Diane Nasogaluak

Cooper said this sort of argument is a common one which they aim to shoot down.

“Strategically, our friends across the aisle know full well it’s not practical for most individuals to sue individually. It’s just the cost and risk and investment of both lawyers and client in a claim like that are just not viable,” he said.

“It’s these types of actions that give strength to a population that has been disenfranchised and ostracized and – because of the very things we’re complaining about – have had, literally and figuratively, a boot on their neck.”

The RCMP also provided an 11-point list of modernization initiatives they are working on. They insist interactions with the public are guided by a policy of non-discriminatory and bias-free policing.

The outcome of the certification hearing will significantly impact a similar suit they’ve filed alleging police racism in southern Canada, said Cooper.

He encourages First Nations, Inuit and Metis who feel they’ve been mistreated by police to come forward.

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