Supreme Court dismisses appeal application, pushes forward two lawsuits against RCMP

A decision rendered by the Supreme Court of Canada this morning to dismiss an appeal filed by the federal government will move two separate class actions against the RCMP forward.

Canada’s highest court ruled it would not grant leave to hear the appeal in the case of Joe David Nasogaluak, the representative plaintiff seeking to certify a class action proceeding against the RCMP for abuse against Indigenous people in the Northwest Territories, Nunavut and Yukon.

Nasogaluak is Inuvialuit from Tuktoyaktuk, N.W.T. He alleges that when he was 15 years old, the RCMP assaulted him during an arrest and held him in police custody.

Canada made its application to the Supreme Court following the decision by the Federal Court of Appeal, which had certified the class action with some minor adjustments from the lower court.

“We now have an uncontestable certified case in both the north and in the south,” Steven Cooper of the Sherwood Park, Alta. law firm of Cooper Regel told Windspeaker.com.

Cooper Regel is co-counsel for Nasogaluak with Koskie Minsky LLP. The firm is also co-counsel with Murphy Battista LLP in the Shirley Meguinis-Martin and Edie Joseph case, who are representative plaintiffs for RCMP abuse against Indigenous peoples in the rest of Canada.

The Meguinis-Martin action was brought in 2020 about one-and-a-half years after the Nasogaluak action.

“I don't want to call (the Meguinis-Martin action) a companion case, but there's a related case involving similar allegations that applies to the rest of the country. It had already been certified and we were just waiting for the outcome on this case (in the Supreme Court) to determine what would happen with the southern case,” said Cooper.

The Nasogaluak lawsuit alleges that Indigenous people are frequently arrested, detained and abused by RCMP officers in the territories. The class period is from 1928, when the Crown entered into formal police agreements with the territory, to the present. However, only those who were alive as of Dec. 18, 2016, are eligible to claim.

The Meguinis-Martin action covers those not included in the Nasogaluak lawsuit. The class period is from May 14, 1953, and applies to those who were alive as of July 2018.

Both actions claim breach of Sections 7 and 15 Charter rights.

While Nasogaluak sets a combined claim for negligence, breach of Charter rights, punitive and exemplary damages at $600 million, Meguinis-Martin offers no amount.

“When it comes to estimates of damages, we use the limited information that we have before certification and before we have access to the sort of material and reports and expertise we'll have after certification,” said Cooper.

He adds that he does not know how many people are involved in either class.

At this point, he says, damages will be claimed separately in the two actions.

“There's always the possibility of the claims coming together, and that often happens. This has the advantage, fortunately, of existing only in the federal courts, both cases. So there is the potential for both cases to be dealt with harmoniously or separately. I expect there will be some harmony between them,” said Cooper.

As important as the financial compensation is, Cooper stresses that the advantage of a class action over a court-imposed penalty of increased fines is that a class action can bring about “behaviour modification.”

The substance of the claims is systemic negligence and systemic discrimination acts against the Charter on the part of the RCMP, says Cooper.

“We're trying to change the system. We're blaming the system, not individual officers. This is not about individual officers,” he said.

He adds that statements made by prime ministers and RCMP commissioners about problems within the RCMP and complaints filed to the RCMP Complaints Commission have resulted in no changes.

“I'm not naive enough to suggest that this will be the change, but I'm hoping it's going to be one of the factors. I'm hoping it's going to be the spark. I'm hoping it's going to be part of the motivation,” said Cooper.

Now with the Supreme Court’s decision, Cooper says the matter can proceed either through litigation or negotiation.

“Now we'll have the normal exchange of material on both sides…We'll have examinations of both sides. And then, if we can't settle it in the meantime, we'll proceed towards trial,” he said.

He adds that there is a “good chance” Nasogaluak  and Meguinis-Martin will be dealt with concurrently or “in some sort of common discussion or common thread.”

Cooper expects it will take a year or more before any tangible results are seen.

“These things are measured in years not months,” he said.

In the meanwhile, Cooper encourages members of both actions to report their interactions with the RCMP so a database can be created. Information like what happened, when it happened, where it happened and who perpetrated the abuse is needed. No private information will be released, he says, as it will all be amalgamated.

“What we do is we get statistics and statistics is power in the class actions,” he said.

Information can be reported to 1-800-994-7477 or 780-570-8448 or emailed to info@CooperRegel.ca