Before explaining their reasons for fighting a class-action lawsuit on behalf of murdered and missing Indigenous women and girls Wednesday, lawyers for Canada wanted to get one thing straight.
They told court in Regina they were not putting the National Inquiry into Murdered and Missing Indigenous Women and Girls on trial.
“Canada’s decision to oppose this action is a principled one,” said Bruce Hughson, lead counsel for the federal justice department.
“The opposition is based strictly on law.”
Hughson said the inquiry that Canada initiated and funded from 2016-18 was not under attack.
“We are not responding to the national inquiry, but to the application by a private law group that we believe is deeply flawed,” he said of the $600-million class-action lawsuit against Canada and the RCMP proposed by First Nation’s mother Dianne Bigeagle on behalf of her missing daughter, Danita.
“This claim (by the Merchant Law group) is completely separate (from the inquiry).”
Hughson, who declined to be interviewed outside court, said Canada was well aware of the circumstances driving Dianne to find relief.
“We acknowledge the national tragedy that is murdered and missing Indigenous women and girls,” he said. “We acknowledge the personal tragedy experienced by her family.
“Canada in no way questions her sincerity in advancing this action on behalf of murdered and missing Indigenous women and girls (MMIWG).”
Dianne, who did not attend Wednesday, was in the courtroom for the first two days of the five-day hearing that began Monday. Her daughter was a 22-year-old mother of two when she was last seen in Regina on Feb. 11, 2007.
Her missing person case is being handled by the Regina Police Service cold case unit, with RCMP involved in a liaison role because Dianne “doesn’t trust” the Regina force, Christine Ashcroft, another federal co-counsel Christine Ashcroft told Justice Glennys McVeigh.
That means Dianne is not a good representative plaintiff for those who would make up the class, Ashcroft added.
The lawyer addressed lead counsel Tony Merchant’s reliance on findings from the national inquiry by agreeing it could be entered as evidence but should be viewed as having “frailties.”
Among them was its “very critical” view of the RCMP and the way they handled missing and murdered cases.
Ashcroft also defended the RCMP when it came to sharing files with the inquiry, which Merchant labelled as “uncooperative.”
She said the Mounties turned over 119 files with thousands of pages of information and only fought the inquiry in court over two cases to protect ongoing investigations.
Ashcroft then zeroed in on Merchant’s main argument for seeking compensation for victims’ families and communities by saying no court has found police owe anyone “a private duty of care.”
She said police have “a public duty to investigate” but judges in Canada have rejected attempts by families to sue officers. Without a “duty of care” there can be no “systemic negligence” by the force, as Merchant alleged in his statement of claim.
“If there is no duty of care to an individual plaintiff there is no duty of care to a group,” Ashcroft said.
Similarly, the RCMP Act only holds officers to public duty – not private, she added.
The national inquiry, which wrapped up in June 2019, delivered 231 Calls for Justice in its final report. Although its four commissioners and hundreds of participants are still waiting for the Trudeau government to turn those recommendations into an action plan.
It did get a mention in Wednesday’s Throne Speech, however.
Gov. Gen. Julie Payette said the governing Liberals plan to accelerate “work on the National Action Plan in response to the National Inquiry into Missing and Murdered Indigenous Women and Girls’ Calls for Justice.”
The court hearing continues Thursday in Regina.