Federal Court rules in RCMP's favour in battle with MMIWG inquiry over case files

The RCMP has won a legal battle to withhold two files from the National Inquiry into Missing and Murdered Indigenous Women and Girls, after arguing their disclosure could jeopardize ongoing criminal investigations.

Mounties fought to keep 2 files, arguing their release could compromise ongoing criminal investigations

The RCMP has won a legal battle to withhold two case files requested by the National Inquiry into Murdered and Missing Indigenous Women and Girls. (Jeff McIntosh/Canadian Press)

The RCMP has won a legal battle to withhold two files from the National Inquiry into Missing and Murdered Indigenous Women and Girls, after arguing their disclosure could jeopardize ongoing criminal investigations.

The Federal Court decision was delivered on May 27, just days before the inquiry released its final report. It was publicly released Wednesday, after certain details were redacted from the document.

One file the RCMP resisted disclosing involves the murder of an Indigenous woman. The other relates to the case of a missing Indigenous woman. RCMP divisional commanders had fought to keep the files from the inquiry, arguing their release would be "injurious to ongoing criminal investigations."

The ruling noted that at the outset of the inquiry, the RCMP disclosed 119 investigative files, including 23 active files.

"Nothing in the record before the court indicates that the issuance of the certificates in respect of the two cases in question was intended to impede the work of the national inquiry, or that they were issued in bad faith to
shield the RCMP from embarrassment," says the ruling from Justice Richard Mosley.

"The court is satisfied that both certificates were issued to prevent encroachment on a legitimate public interest."

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

The inquiry had requested and subpoenaed files from police forces across the country during the course of its work so that a specialized forensic team could review them to help draw conclusions and make recommendations.

Lawyers for the inquiry fought for access to files on two specific cases, saying they were at the core of the inquiry's mandate to look into the systemic causes of violence against Indigenous women.

A statement from the RCMP said 23 active files were disclosed to the Inquiry, but in these two cases "the risk to ongoing investigations and future convictions was assessed by investigators as too high to disclose them."

"The RCMP has made every effort to cooperate with the national inquiry in support of their important mandate. However, this cooperation must not come at the expense of compromising the integrity of ongoing criminal investigations into cases of missing and murdered Indigenous women and girls," reads the statement from RCMP Staff Sgt. Tania Vaughan.

Women victims not named

A publication ban prevents CBC News from reporting details about the cases, and the Federal Court ruling was redacted to seal certain information. The names of the women are not included in the ruling, for privacy reasons.

The RCMP had argued the inquiry didn't need the two files to fulfil its mandate to examine systemic causes of violence against Indigenous women. Lawyers for the inquiry had argued the disturbing facts of these cases were relevant to the hearings.

The inquiry also questioned the RCMP's claim that the cases are under active investigation and said the files had been made available to other people over the years, including retired police officers.

But Justice Mosley said there was no evidence the files are no longer active.

RCMP 'actively pursuing leads'

"I have no reason to doubt that the case is currently active and that the RCMP is actively pursuing leads that may be compromised by inadvertent disclosure of sensitive information," he wrote of the homicide case.

Mosley's ruling said the argument had been made that the RCMP was resisting disclosure of the two files because they might prove embarrassing to the force, but the court was satisfied the resistance was not because of a fear of humiliation or disclosure of misconduct by RCMP members.

A red ribbon attached to an eagle feather is held up during ceremonies marking the release of the Missing and Murdered Indigenous Women report in Gatineau on June 3, 2019. (Adrian Wyld/Canadian Press)

The Federal Court hearing on the matter took place just weeks before the inquiry was set to release its final report, prompting the RCMP to question whether the inquiry would even have enough time to review the large case files.

The inquiry had insisted it still wanted to see the files, and told the court it would be possible to include an addendum to the final report.

The MMIWG Inquiry's final report includes many recommendations to government, the police and the larger Canadian public to help address endemic levels of violence directed at Indigenous women and girls and 2SLGBTQQIA (two-spirit, lesbian, gay, bisexual, transgender, queer, questioning, intersex and asexual) people.

The 1,200-page report includes 231 "calls for justice."

With files from the CBC's Chantelle Bellrichard