October 18, 2021

The Underappreciated Significance of the Ongoing Court Battle Over Mass Shooting Information

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.

(Some of what is still sealed involves details of killings which were, at least in part, witnessed. This may be part of a paternalistic view that somehow people cannot handle difficult news. My view, after 16 years of law practice, is that most adults can handle bad and difficult news, if it is put to them properly and directly. What we have seen in the aftermath of this tragedy has been that the family members and those most affected do not want protection from difficult truths, they just want to know what happened.)

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.