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The Mass Casualty Commission issued an update this week, in which they invite citizens to participate in the process (and include a survey to allow people to answer how they would like to do so), remind us of the recently revised schedule, and indicate that progress is being made on the Foundational Documents. The process of creating these documents is a unique feature of this Commission compared to other Inquiries. It is a feature which has some appeal, but also some potential areas of concern, which I will review below.
First, though, it is appropriate to commend the Commission for making an effort to communicate their work to the public, and for inviting public participation on the broad question of how anyone may have been affected by the shootings.
The participation survey attached to the release contemplates the Commission potentially receiving written submissions, organizing in-person discussions, or organizing the preparation of a form of questionnaire on the various effects, and forms of effects, that people might be feeling. In time it will be seen whether many people choose to participate in these ways, and also how the information gathered might be collated into something with a use beyond the inherent individual benefit to a person who has an opportunity to be heard.
There is certainly potential for this information to be used to some effective useful purpose, whether it be for individual insights or group psychological research. On the other hand, a cynic might look at this and see an effort to pacify the public after the hearings were delayed, and to impose structure on any emotional responses that might emerge in the reactions. I think we can wait a bit to pass judgment on that question, and should instead focus on the development of these Foundational Documents.
Questions surrounding what happened on April 19-20, 2020 are going to be determined over a five-week stretch of private meetings among the parties and their lawyers throughout November and December. They will be working with the existing disclosure and trying to construct some sort of cohesive narrative that can operate as what in a criminal or civil case would be called an agreed statement of facts.
The potential good that these meetings might produce is to act as a discovery would in a civil suit, or perhaps a preliminary hearing in a criminal court context. Before trial in a civil suit, a discovery is a chance to interview the other party or key witnesses on the record, with full disclosure having already been made. The rules of evidence are relaxed in terms of what might be a relevant question, so you can ask questions on just about any topic touching on the issue at hand, and by doing so hope to discover what really matters. It allows you to focus your questions at trial on the key areas of dispute, rather than exploring lines of questions during precious trial time that may not end up yielding significant insight.
If that is what is happening, then it would make for a more focused presentation when it comes time to have actual public hearings. A key distinction between this process and a discovery (or preliminary hearing) is the absence of any actual witnesses in these meetings. In a regular criminal or civil case, one of the things a lawyer is trying to evaluate is the witness themself, looking for signs of credibility shortcomings or any significant reactions to being challenged by contradictory testimony or reports. That key element is hard to evaluate from only a written report.
Broadly speaking, the risk is that this Foundational Document exercise becomes a ‘narrative formation’ process that is so controlled that the hearings then take on too much of the character of a PowerPoint presentation, rather than a Court hearing, where facts and narratives can be effectively challenged. Efficiency is a worthy objective, but not at the cost of getting answers.
For reassurance, we will have to rely on the parties, particularly the family representatives, to let us know if significant evidentiary disputes are being brushed aside or glossed over, or if they are under pressure to agree to a version of events that might otherwise be the subject of future scrutiny through public cross-examination.
There is also enough information out in the public such that any attempt to make the hearings into a presentation, or not allow effective probing of witnesses, would be met with informed public criticism, and would rightly undermine the legitimacy of the Commission proceedings.
By the time we turn the calendar over to 2022, we should know which of the two directions this issue is taking, and therefore whether any pushback from the Parties or the public may be warranted.

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Much of the information that the public may be hoping to see examined during the Mass Casualty Commission hearings is already compiled and available, but is sealed by Court Order. The ongoing battle over the disclosure of this information can give us insight into potential serious difficulties with the upcoming Commission hearings.

When the police want to search any private property, they need to provide information to a Judge or Justice of the Peace that is sufficient to justify the search. This application document is called an Information to Obtain (ITO). The police are obligated to disclose all relevant information they have about the case when requesting the search, and the RCMP did just that when they applied for a warrant to search the various properties owned by Gabriel Wortman in the aftermath of the mass shootings.

While, by default, the public is entitled to know what information was submitted, there are exceptions. There is a concurrent process to the search warrant request that allows the police to request that the information be sealed from public view, and only disclosed upon a successful application to have it unsealed.

Such applications are typically made by a defendant seeking to claim that their Charter rights to be free from an unreasonable search may have been violated by the search warrant being granted, but may also be made by media organizations, as is the case with the Mass Casualty document.

Information in the ITO may be blacked out for several reasons. If it might compromise the identity of a confidential informant, compromise the nature and extent of an ongoing investigation, endanger a person engaged in “particular intelligence gathering techniques” (such as undercover work), prejudice the interests of an innocent person, or for “any other sufficient reason”, the Crown may justifiably opposing disclosure.

Though sometimes justifiable, these exceptions can be susceptible to overreach by the police if they have reasons to wish to keep information secret. In my experience, police officers vetting ITO’s tend to lean towards non-disclosure of information. Crown prosecutors have the ultimate responsibility to make the judgment call (subject to judicial oversight), but often seem to side with the police view.

The search warrants in this matter were granted on April 21, 2020, and the battle over disclosure of redacted portions has been ongoing nearly ever since. Multiple media organizations are involved, with multiple lawyers, and the resources dedicated to this have been significant, financially and otherwise.

With the number of parties involved and resources required, the Judge hearing the matter (who has been taken out of ‘regular’ circulation) has been using the Courtroom which was constructed for the Desmond Fatality Inquiry in Port Hawkesbury on days when the Inquiry is not sitting, as it allows for more than a dozen lawyers, with technology to incorporate others on a virtual basis.

Each court appearance involves thousands of dollars in legal fees for each Party, as briefs and affidavits need to be drafted and negotiations take place over what can be released. The judge needs to consider whether there are things going on in the investigation that need to be protected that are not obvious from the ITO itself. That also requires that some of the hearings be “in camera”, or secret from the applicants.

I have reviewed some of the ITO material and the resulting reporting. Much of what has been released during the ongoing process seems to be quite benign, such as names of people we already know from other sources, types of firearms the killer possessed, and locations and details of the geography of Portapique.

All of this is significant because of how it may translate into the Mass Casualty Commission proceedings. Members of the public may have presumed that all of this information, that is to say everything the RCMP did and observed during the shooting spree, would become public during the Commission proceedings.

It is reasonable, therefore, to question why the RCMP and Crown are fighting this disclosure if it is going to become public just a few months anyway during the Commission hearings.

The bigger concern is that it may also be the case that if the RCMP is fighting disclosure now, they may continue to do so. If this is indicative of their approach to disclosure, it may be very difficult for the Commission to get the answers the victims’ families and the public are all seeking.

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The drive along Hwy #2 to the excellent hiking trails of Cape Chignecto is not unlike many secondary NS coastal roads. Portapique is one of a line of communities that takes up a small area along that road. When you drive past the Portapique Beach Road, it seems clear that there were possible escape routes for the gunman through fields behind the houses adjacent to the main road. What did the initial police responders know about the specific area? Also, Truro is the closest large centre yet that is not where the police response originated. How did long-standing jurisdictional issues affect the timeliness and effectiveness of the response?

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Knowing who is going to be suggesting witnesses, conducting cross examinations, and providing expert reports can give some insight into what can be expected during the Commission hearings. Expect to see vigorous advocacy from family members, who are well represented. Also key to watch will be the various police organizations, who all have a keen interest in the outcome. Though the Province has initiated a separate process, Adam suggests this Commission may be where the real police review takes place.

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While a public inquiry, or Commission, has many features of a Supreme Court, it has limits in terms of making recommendations rather than orders. In some ways, an inquiry is a political vehicle as much as a legal one, and public engagement and pressure is essential to any success that may be achieved. Adam discusses those elements in this video.

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Adam Rodgers, who has practiced law in Nova Scotia for the past 6 years, including the past four years representing family members in the Desmond Fatality Inquiry, describes how he will bring insider coverage and analysis of the NS Mass Casualty Commission

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