N.S. shooting inquiry sets example for 'how not to run a commission': expert
Expert says delays, shifting focus, inability to cross-examine key witnesses affected public's confidence
The commission examining the Nova Scotia mass shooting lost the public's trust through an "unusual" structure that prioritized closed-door interviews and limited questions for key witnesses in attempts to be trauma-informed, says one expert.
The Mass Casualty Commission leading the joint federal-provincial inquiry into the April 2020 shootings in Nova Scotia wrapped up seven months of public hearings in September.
"Because of its unique attempts to do what it did — without really providing a very good reason for why they did it — I think it could establish a precedent of how not to run a commission," said Ed Ratushny, an emeritus professor of law at the University of Ottawa.
"It's the kind of thing that is a backward step in terms of the things that public inquiries bring to society."
The commission is standing by the format of the inquiry that is expected to cost around $47 million in provincial and federal funds by the time the final report is released in March 2023.
On its website, the commission says "the focus of a trauma-informed approach is to minimize the potential for further harm and re-traumatization, and to enhance safety, control and resilience." The approach means the commission doesn't refer to the gunman by his name, for example.
Emma Cunliffe, the commission's research and policy director, said she wouldn't change how the commission has interpreted its trauma-informed mandate because it helped build the "most accurate and complete" factual record.
"It's allowed individuals to participate in our process who may not otherwise have been able to do so," Cunliffe said.
On April 18, 2020, a gunman killed 13 people in the small community of Portapique, N.S., and burned homes before fleeing in a replica cruiser. He would kill nine more people the next day, including a pregnant woman and an RCMP officer, as he drove south through the province before being killed by police at an Enfield, N.S., gas station.
Ratushny, who has worked with inquiries extensively as a commissioner and participating counsel, has echoed concerns raised by the victims' families and their lawyers.
The hearings began in February after the victims' families fought for a more transparent public inquiry model rather than a review. The commission's mandate included not only looking at what happened during the massacre, but its root causes and what could be done to prevent something like it in the future.
The commission took months to gather documents, set up advisory committees and start interviewing witnesses behind closed doors before the inquiry even began — a delay that Ratushny said was "a big mistake."
"They just got off on the wrong foot and they never got on track at all," Ratushny said.
The commission has said the interviews completed behind the scenes were needed to build a foundation of evidence that could be supplemented by live testimony to fill in any gaps.
Commission investigators described their initial plans in many of these conversations with witnesses.
"We want to … flush out the information for the greater good of the commission's inquiry, and so we don't have to bring you back in the future," investigator Paul Thompson told RCMP Const. Terry Brown in a March interview.
Sixty people testified in person during the public hearings and more than 230 were interviewed overall. Thousands of documents were submitted from the RCMP and various levels of government.
Ratushny said it's clear the commission looked for answers, but in a way "that did not generate confidence."
"That independent panel has to have public confidence or the commission's been wasted," he said.
The first major crack in that public confidence came quickly: in the first weeks of the inquiry, family lawyers pushed to hear live testimony from both front-line and senior RCMP officers, and key civilians such as the gunman's partner, Lisa Banfield.
The National Police Federation, which represents regular and reservist RCMP members below the rank of inspector, had argued the 18 officers being asked to testify by family lawyers could be re-traumatized by doing so.
Many of the lawyers' requests were granted, but others were not. Some people who did eventually testify were granted accommodations like appearing virtually, writing answers in an affidavit, or only being questioned by commission counsel.
While the commission offered to consider questions from family lawyers and put them to witnesses with accommodations, Ratushny said cross-examinations are "crucial" in situations where there's conflicting evidence.
"With each answer, you have to consider, 'Well, doesn't that leave out this? What about this?' It's fluid. It's ongoing. That's the whole purpose of the cross-examination, to get the witness engaged in aspects that didn't show up in their main testimony," Ratushny said.
Family lawyers have also criticized the quality of the commission's questioning, saying it didn't ask obvious followup questions, resulting in incomplete interviews that formed the basis of the inquiry. Transcripts of many commission interviews show investigators zeroing in on certain themes or assuring people they wouldn't go into areas already covered by police statements.
In April, commission counsel Jamie VanWart focused solely on the shooting at the Onslow, N.S., fire hall while questioning Portapique resident Richard Ellison and two volunteer firefighters.
At one point, Ellison testified the gunman had shown him his illegal firearms like a kid at Christmas "showing me a pair of skates."
VanWart then asked "what could have been done better" at Onslow — never asking Ellison more about the firearms.
In May, Sgt. Andy O'Brien testified he'd jumped into help from home in the early hours of the RCMP response in Portapique after having four to five drinks of rum in the four hours before 10 p.m. AT.
Commission counsel Anna Mancini, the only lawyer to question him directly, asked O'Brien whether his judgment was impaired that night. When he said no, Mancini replied OK and moved on.
O'Brien later said it would have been easier for him to be at the command post with other RCMP senior officers, but "I wasn't working." Mancini again didn't challenge that statement, but said OK and moved on.
The commission conducted an hour-long phone interview with key witness Sean Conlogue, the gunman's friend in Maine who was the source for two handguns the shooter carried with him on the day of the rampage.
Commission investigator Paul Thompson told Conlogue he wouldn't "go over every little bit of detail" the American had shared with RCMP and the FBI, and did not ask him about what he knew about the gunman's firearm smuggling.
Conlogue did mention that an FBI member had walked him out of a meeting and "said some things to me that … had taken the world off of my shoulders."
It's unclear what the FBI told Conlogue because Thompson didn't ask him about it. Thompson only commented, "Yeah, I would think so."
Despite the family lawyers' concerns about questioning, the chair of the commission has repeatedly said its approach was thorough.
Commissioner Michael MacDonald said in March the accommodations fit its trauma-informed mandate and created conditions where the commission could get the "best, most reliable evidence."
Ratushny has taken issue with the commission's interpretation of trauma-informed. He noted the orders-in-council setting out the terms of the inquiry stated they must be "trauma-informed and be attentive to the needs of, and impact on, those most directly affected and harmed."
To the average person, he said, this means the commission should consider that the victims' families might need help throughout the process and the inquiry should be "gentle" with them.
Instead, Ratushny said it seems the commission considered trauma-informed through the lens of "that police officer must feel so badly about this."
He said to deny cross-examination of Banfield especially seemed "very unusual," as she was perhaps the most important witness.
Banfield did four interviews with police after the massacre, a video walk-through of Portapique, and five interviews with the commission. She spoke many times about the years of physical and emotional abuse she endured from the gunman.
Ratushny said courts have many examples of how to support abuse victims during testimony, but they must testify and be cross-examined.
"It's not a court, but they're doing exactly the same thing as the … courts are doing. They're trying to find the facts," Ratushny said.
Michael Scott of Patterson Law, the firm representing most victims' families, told reporters in July that a better trauma-informed approach would have been bringing Banfield in once to testify in public, rather than repeated lengthy interviews.
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Ratushny said he was surprised to hear how many times this happened, since most lawyers wouldn't allow it.
"They can't be … questioning you and then questioning you again and again and again. That's not fair, quite frankly, unless you want to correct certain things," Ratushny said.
But counsel for the federal Justice Department, the National Police Federation and Banfield have praised the commission's format.
Nasha Nijhawan, a lawyer for the federation, told the inquiry that traditional criminal or civil legal processes aim "for the truth at any cost" and are inflexible to the needs of those impacted by trauma. At the beginning of the public hearings, she said the commission "can do better," and be creative without sacrificing the ability to discover what happened.
Banfield's lawyer, Jessica Zita, told the commission last month that the experience has been a "humanizing process" for Banfield and helped her process the situation.
Too many side panels, experts, advisory committees
The vast majority of witness interviews and other documents were never brought up in public hearings, which family lawyer Tara Miller said relegated important evidence to "paper fact-finding" that would never be fully explored.
Sandra McCulloch of Patterson Law also suggested the commission had issues with pacing. McCulloch said too much time was spent "far afield" on expert panels exploring side issues related to policing theory, community safety, or the experiences of marginalized communities rather than taking the time to explore the tragedy itself.
Ratushny agreed, and said it seems like the commission was in some "academic wonderland … and they forget that there's a reality going on out there."
He added there are already many "excellent precedents" of how inquiries can be done — like the one examining the outbreak of E.coli in the Ontario town of Walkerton's water supply that cost just under $10 million.
The Mass Casualty Commission seems to be at the high end of what Canadian inquiries have cost in the past, which range from $1 million to more than $50 million.
Numbers show the largest percentage of the funds — nearly $10 million of the $25.6 million spent by March 2022 — are going to salaries and benefits for the commission's staff of 68 people. This also includes the per diems of the three commissioners.
Barbara McLean, investigations director for the commission, said in an email recently it hasn't requested additional funding despite extending the submission of the final report by nearly five months to next spring.
She said the funding committed by both the Nova Scotia and federal governments totals up to $47 million and the commission is approved to spend up to this amount.
During proceedings in April, commission chair MacDonald acknowledged the process and sheer scale of the effort may at times be frustrating. He said it may often seem like there's too much information, or the format doesn't provide answers quickly enough for some.
But he said the commission's mandate is much broader than a criminal trial, and it is focused on coming up with meaningful recommendations for public safety while not laying blame.
The commission's final report is due March 31, 2023.