November 4, 2021

Potential Benefits and Risks of Mass Casualty Commission’s Unusual Foundational Document Creation Process

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.