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Decision reserved in MMIWG certification hearing

REGINA, SASK : September 18, 2020  -- Dianne BigEagle holds a photo of her daughter Danita in front of Court of Queen's Bench in Regina, Saskatchewan on Sept. 18. 2020. Danita has been missing since 2007. BRANDON HARDER/ Regina Leader-Post
REGINA, SASK : September 18, 2020 -- Dianne BigEagle holds a photo of her daughter Danita in front of Court of Queen's Bench in Regina, Saskatchewan on Sept. 18. 2020. Danita has been missing since 2007. BRANDON HARDER/ Regina Leader-Post

It’s now up to a Federal Court of Canada justice to decide whether a $600-million class action lawsuit can proceed against the federal Crown and RCMP in relation to investigations involving missing and murdered Indigenous women and girls.

The hearing, which began on Monday, wrapped up on Thursday with the completion of arguments from counsel from Justice Canada, arguing why a class action should not be certified.

One of the government lawyers, Bruce Hughson, said Canada and the RCMP are “actively involved” in improving relations with Indigenous people and that the RCMP has, for a number of years, established significant projects intended to get to the bottom of the MMIWG problem.

But Hughson added there are no guarantees in any investigation, no matter how intense or what the victim’s background is. He pointed to the unsolved 2017 murders of Barry and Honey Sherman in Toronto as an example of a case involving non-Indigenous victims in which significant police resources and time were spent without success.

While the hearing has included uncontested submissions about the increased risk of violence faced by Indigenous women and girls, government co-counsel Christine Ashcroft argued national statistics show police solve rates in homicide cases are actually approximately the same — just below 90 per cent — for Indigenous and non-Indigenous women.

“There is no basis in fact that this vulnerability requires a different type of investigation,” she added.

Ashcroft argued there are a number of reasons the case shouldn’t proceed as a class action, among them the alleged lack of “common issues.”

An example was raised of a plane crash in which one specific event leads to a common issue among victims’ family members. Ashcroft argued the same doesn’t hold true in this case, where each of the potentially 50 to 60 cases contains its own unique circumstances.

She argued a trial in the matter would require individual and detailed inquiries into each of those claims. She said each case is different — some involve RCMP, some don’t; some are homicides, some were not found to be cases of foul play.

Ashcroft argued each involves different police officers and circumstances, meaning making a determination in relation to one case will not automatically reveal a common issue in the next case.

Another factor to consider, she argued, is that common issues can’t be found through identifying a specific threat from a specific source. Here, the threats to the safety of Indigenous women — or, in fact, all women, Ashcroft said — can and have come from a range of circumstances, such as domestic violence or serial killers.

Government co-counsel Alethea LeBlanc further argued there are multiple cases raised in the lawsuit which weren’t handled by the RCMP, calling into question how it could be found responsible for non-RCMP matters.

Regardless of what comes of the claim, Hughson insisted the government intends to follow up on recommendations made in the MMIWG inquiry — a statement for which Tony Merchant, lawyer for the plaintiffs, argued there is no evidence.

Justice Glennys McVeigh did not provide a date for the return of her decision.

hpolischuk@postmedia.com

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