MMIWG inquiry still fighting for access to RCMP files, weeks before closing ceremony

Lawyers for the inquiry are in Vancouver this week fighting for access to files on two cases it says are at the core of the inquiry's mandate to look into the systemic causes of violence against Indigenous women and to make recommendations for effective action.

​​​​​​​RCMP legal team says files can't be handed over because investigations are active

The national inquiry into murdered and missing Indigenous women and girls is in federal court in Vancouver arguing for access to two RCMP files. (Peter Scobie/CBC)

With its final report just weeks away from being released, the national inquiry into murdered and missing Indigenous women and girls was in federal court this week, fighting for access to two files from RCMP.

The hearing wrapped Tuesday afternoon and now it's up to Justice Richard Mosley to decide if he'll order the RCMP to disclose the files to the inquiry. He told those in court he would try to make a decision "as quickly as possible" given the short amount of time left in the inquiry's mandate.

The inquiry has requested and subpoenaed files from police forces across the country during the course of its mandate so a specialized forensic team can review them and put forward findings and recommendations.

Lawyers for the inquiry are in Vancouver, and spent Monday and Tuesday before the court fighting for access to files on two specific cases it says are at the core of the inquiry's mandate to look into the systemic causes of violence against Indigenous women and to make recommendations for effective action.

One of the cases involves an Indigenous woman missing for decades, and the other is a homicide.

A publication ban prevents CBC News from reporting details about the cases.

The RCMP argues disclosing these two files could jeopardize ongoing investigations and says the inquiry does not need access to them in order to fulfill its mandate.

"There is no reason why these two particular files are necessary to examine systemic causes," said Department of Justice counsel Anne Turley.

In these two cases, "the facts are quite disturbing," Ravi Hira told the court on Monday. Hira is a lawyer for the inquiry and says there are reported deficiencies in one of the cases.

"We're not here because these files are not relevant. They are relevant," he said.

Disagreement over how 'active' cases are

According to the RCMP, both cases are still under investigation. The inquiry legal team disputes that characterization.

"It cannot reasonably be said that either of these files is still under investigation," Hira told the court.

He argued further that even if the cases are active, the court could still order the files be disclosed to the inquiry forensics team based on a balance of public interest.

The RCMP's position is that, "the public interest in protecting the integrity of these ongoing investigations outweighs the public interest of giving these files to the national inquiry," said Turley.

"It is not a situation where by giving it to the national inquiry, the public and in particular perpetrators will get information that they wouldn't be allowed to have and be able to scuttle the investigation," said Hira.

He pointed out that under the rules of how the commission operates it is bound to protect the information disclosed in files such as this.

Hira also said the case files have been made available to other people over the years, including retired police officers. He said, in that light, the decision to keep the files away from the inquiry seems unfair and unprincipled.

"Canada's objection to the production of the contested files to the national inquiry regrettably demonstrates a near contemptuous disregard to the national inquiry's mandate and authority," he said in his final submissions.

RCMP lawyers argue files not necessary 

Much of the submissions from the RCMP on Tuesday focused on making several arguments over why it wasn't necessary to disclose these two case files to the inquiry.

 Part of the legal team's argument was the number of files they've already disclosed to the inquiry.

According to court filings from the RCMP, the force has handed over 119 "investigative" files to the inquiry — 23 of which are related to ongoing investigations. 

The RCMP has resisted handing the files over to the inquiry by invoking a section of the Canada Evidence Act under a specific section related to objections of disclosing information to an outside party.

Given the short amount of time left within the inquiry's mandate, the RCMP court filing states, "The usefulness of these two files is minimal at best."

During Monday's hearing Justice Mosley asked how the inquiry team would have enough time to review the large case files if they were ordered to be turned over to the team. The inquiry is scheduled to deliver its final report to the federal government on June 3, in less than three weeks.

The inquiry insists it still wants to see the files and told the court it's possible to include an addendum to the final report if necessary.

With files from Laura Lynch