A 22-year-old Inuk man who video shows being struck by the open door of a moving police vehicle during an arrest in Kinngait, Nunavut, would “absolutely” be eligible for inclusion in a proposed $600-million class-action lawsuit against the RCMP that is currently seeking certification in Federal Court, according to a lawyer representing the class.
“Looking at the video itself, as I’ve done multiple times in disgust, I expect that he would be part of the action,” Steven Cooper, a partner in one of two firms involved in the case, told APTN News.
“It’s up to the individual to get involved. We are hoping to hear from him, because these types of seemingly abusive situations caught on video are really the bedrock of current class-actions of this nature.”
Joe Nasogaluak of Tuktoyaktuk, N.W.T., launched the suit in December 2018 on behalf of all First Nations, Inuit and Métis who suffered harms as a result of improper use of force by RCMP in Nunavut, N.W.T., and the Yukon between 1928 and now.
In 2017 when he was 15, Nasogaluak claims police, punched, kicked, choked and tasered him, calling him a “stupid f**king Native” and “Native punk kid” before they detained and released him after stopping him and others who were operating ski-doos.
The lawsuit alleges RCMP in the territories regularly assault and systemically discriminate against Indigenous people because of their race and that the government is “systemically negligent” in funding and operating RCMP detachments in the North. It argues the government failed to protect people from, and took no steps to prevent or correct, police brutality.
Read the statement of claim: Diane Nasogaluak as litigation guardian of Joe David Nasogaluak v. AGC
A judge still has to determine whether or not it is appropriate for the suit to go forward as class-action before any litigation begins. This process is known as certification. Canada’s lawyers representing the RCMP can fight or consent to certification.
The case spent 2019 winding through court. The coronavirus pandemic slowed things down considerably, but the parties agreed to conduct cross-examinations virtually later this month.
A timeline for a certification hearing is under consideration, said Cooper, who hopes to argue for certification sometime in fall or winter 2020.
“Right now, we’re saying to the federal government, ‘Your federal police force has a problem, has had a problem for decades, needs to recognize the problem, needs to compensate those that have been affected by the problem and ultimately you must reform’,” he said.
As police brutality and systemic racism is grabbing headlines across the world in the wake of a Minneapolis police officer’s alleged murder of an unarmed Black man named George Floyd, Prime Minister Justin Trudeau and his cabinet unequivocally admitted that systemic discrimination exists within Canadian institutions.
“I hear you and I see you as you call out systemic discrimination, racism and unconscious bias, as you call for action and as you call for it now,” Trudeau said after attending a Black Lives Matter solidarity protest in Ottawa last week.
“The reality is that many people in this country simply do not feel protected by the police. In fact, they’re afraid of them. That alone would be bad enough, but systemic discrimination and racism in Canada goes much further than just policing,” he added.
Deputy Prime Minister Chrystia Freeland made the point again on June 10.
“The prime minister has spoken very clearly about racism including anti-Black racism, including racism against Indigenous peoples in Canada. The prime minister is very clear that systemic racism exists in Canada. It exists in all of our institutions and unconscious bias exists in our country.”
For Cooper, it is significant that the federal government openly admits what the class-action puts forward as an allegation – namely, that Indigenous people experience discrimination at the hands of police in Canada.
“It just seems to me that the prime minister is taking the initial steps that are necessary towards an honourable conclusion,” Cooper said of Trudeau’s recent comments.
Cooper’s firm of Cooper-Regel and the other firm involved in this case, Koskie Minsky, were involved in other cases dealing with injustices against Indigenous people, such as the residential schools, day schools and ‘60s Scoop class-action settlements.
Cooper points to the Trudeau government’s history of settling these lawsuits and paying compensation.
“We’ve seen similar resolutions across the country,” he said. “We expect the same here under this prime minister and his regime.”
But there’s been no indication that Ottawa intends to settle, Cooper added.
APTN asked Public Safety Minister Bill Blair, the man in charge of the federal police, whether he intends to negotiate a settlement, given his admission that systemic discrimination exists, but he refused to comment.
“We are aware of this class action against the RCMP and will review the claim in its entirety before commenting further,” spokesperson Mary-Liz Power said in a statement.
However, documents filed by Canada’s lawyers indicate they plan to fight certification in court, though Cooper remains optimistic they may still consent.
Nasogaluak’s arrest
Const. Joshua Savill, one of the N.W.T. RCMP officers accused of assaulting Nasogaluak when he was a minor, disputes the allegations in his account of the altercation, which is detailed in a sworn affidavit filed in February and obtained by APTN.
According to the affidavit, Savill and Const. Nicholas Brame were out on patrol when they saw the snowmobiles, one of which Nasogaluak was driving.
“We decided to effect a traffic stop to ensure the drivers were sober,” said Savill.
The affidavit says he and Brame asked the people for their names, but Nasogaluak refused to identify himself. Savill claims “the driver,” identified later as Nasogaluak, turned on the ski-doo’s lights but not the motor.
“I was concerned that the driver might attempt to flee the scene. To prevent this I moved closer to the snowmobile and placed my left hand on the windshield and left foot on the left ski of the snowmobile,” he said.
Nasogaluak told Savill to remove his arm from the ski-doo. Savill says he told Nasogaluak he’d be arrested if he didn’t identify himself.
According to Savill, Nasogaluak then grabbed Savill’s arm and once again demanded the Mountie remove it.
That’s when things escalated, according to police.
Savill, deciding to execute an arrest for assaulting an officer, “grabbed the driver’s wrist and removed him from the snowmobile. The driver landed on the ground and a struggle ensued” between the two constables and the 15-year-old.
Savill says they didn’t use a taser, didn’t use racial slurs and used lawful force in arresting Nasogaluak. He says they released him to his parents on arriving at the detachment.
Nasogaluak claims he suffered lasting physical and emotional harm from the altercation, including suicidal ideation and isolation, withdrawing from school and extra-curricular activities.
Cooper says incidents like this are common in the territories. He said they have between 30 and 40 complainants in their database already and expect more.
“We’ve heard lots of instances where people have been abused by the police, but they’re also quite afraid. This is a bit different than things like the ’60s Scoop, this is different than residential schools, it’s different than day schools, it’s different than a variety of other Aboriginal-based claims that we have made,” he said.
“The bottom line is we expect people will come forward very slowly and we expect that a majority of the class won’t identify itself until after certification.”
He says altercations like Nasogaluak’s and the one in Kinngait point to racism in the way policing is carried out.
“I’m convinced that if that had been any person not of Aboriginal heritage in Kinngait, that door would not have been opened or that truck would have been stopped sooner,” he said.
“It’s this whole notion and we hear it everywhere, the notion of the ‘drunk Indian’ or the ‘drunk Eskimo,’ and that somehow they’re deserving of less respect and should expect worse treatment. That is still, seemingly, alive and well in at least the RCMP.”
Only First Nations, Inuit and Metis people living in Nunavut, N.W.T., and the Yukon would be eligible as class members if the case is certified.
Cooper is confident it will.
“Nothing in law, nothing in litigation is certain, but I don’t think I’ve had a higher degree of certainty both in terms of the certification and ultimate successful outcome of this claim,” he said.
To learn more about the proposed class-action click here or call 1-800-994-7477.
