The Saskatchewan Court of Appeal is set to hear arguments on whether excerpts from two landmark public reports will remain as evidence in a class action certification process. The hearing, scheduled for May 8, concerns the case of Chantelle Cheekinew, who is seeking certification for a civil suit against the Saskatchewan government over birth alerts.
Background of the Case
Cheekinew, the plaintiff, alleges that birth alerts—notifications issued by the government requiring hospitals to contact child protection authorities when certain individuals attend for prenatal care or childbirth—are discriminatory. Her statement of claim asserts that these alerts are based on "discriminatory assumptions regarding which individuals are likely to be neglectful or abusive parents" and have been disproportionately used against "Indigenous, racialized, and/or disabled pregnant persons." Cheekinew states she was subjected to such alerts during three pregnancies, and in the first two (2009 and 2011), her children were apprehended.
The Saskatchewan government discontinued the use of birth alerts in February 2021, stating that "the removal of a child at birth is an absolute last resort and only occurs when safety of a child cannot be ensured."
The Reports in Question
The upcoming appeal hearing specifically addresses whether excerpts from two federally commissioned reports can be admitted as evidence in the certification process. The first report, released in 2015, is titled Honouring the Truth, Reconciling for the Future: Summary of the Final Report of the Truth and Reconciliation Commission of Canada (TRC report). The second, released in 2019, is called Reclaiming Power and Place: The Final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls (MMIWG report). These reports document historical and ongoing wrongs against Indigenous peoples in Canada.
Class Action Certification
Cheekinew argues that she is not alone in being negatively impacted by birth alerts and seeks to have the lawsuit certified as a class action. Certification is a unique step that determines the form in which a lawsuit can proceed. A class action allows a defendant—in this case, the Saskatchewan government—to be sued on behalf of a large group of people. The court must consider factors such as whether there is an identifiable class and whether there are common issues among the plaintiffs.
As part of the certification application, Cheekinew filed an affidavit—a sworn legal document—attaching excerpts from the two reports. The province has appealed a judge's ruling that allowed this hearsay evidence to be used. The outcome of the appeal could significantly impact the progression of the case.
