January 7, 2022

How the Three Commissioners Might Run the Mass Casualty Hearings

The Mass Casualty Commission is being lead by three Commissioners, who have very important duties to fulfill. They have been directing the preparation work for the proceedings, will preside over the proceedings once they begin, and will write a report (including recommendations) once the hearings are complete.

It is unusual for there to be three Commissioners appointed for an Inquiry. As I covered in a previous post, other recent Nova Scotia examples, such as the Desmond Inquiry, the Hyde Inquiry, and the Nunn Commission, have all had only one Commissioner. Only in the Marshall Inquiry has there been more than one, though in other jurisdictions, and federally, there are other examples.

The fact that there are three Commissioners in the Mass Casualty Commission proceedings can be explained at least in part by the evolution of the inquiry from first being structured simply as a “review”, before public pressure forced the governments to amend the terms of reference to make it into a full public inquiry. When that happened, I suspect the governments were concerned that if they reduced the number of Commissioners, that it would be misperceived as creating a ‘smaller’ inquiry when they were otherwise trying to show that they ‘got’ the message from the public and were expanding the scope and scale of the inquiry.

If this had been a review, as originally structured, three experienced and independent sets of eyes with somewhat distinct viewpoints would be a clear improvement over having one person. In the same way that Courts of Appeal have three or five Justices, and the Supreme Court of Canada has nine for the most important cases, allowing for dissenting voices and nuanced analysis, the importance of the subject matter of the review justified having at least a three-person panel.

Now that it is a more fulsome public inquiry, it still seems useful to have three rather than one Commissioner, but it remains to be seen how the three Commissioners will interact, and what the dynamic will involve during the hearings. The three Commissioners have different backgrounds, which could lead to some task specialization, or perhaps to them reaching entirely different conclusions.

Though he is technically no longer a judge, I would expect that former Chief Justice Michael MacDonald will be comfortable handling most of the presiding duties involved in the hearings. In some ways, a judge is like the MC of a wedding reception, getting things to start on time, welcoming the participants, and ensuring the right people are at the microphone. With his time in the Court of Appeal, he will also be accustomed to including his fellow Commissioners in discussions and other parts of the proceedings.

Commissioner Leanne Fitch is the former Chief of the Fredericton Police, and has been a police management consultant for some time. It would seem likely that police tactics and organizational structure issues would be her forte, though she also appears to have fairly extensive experience in the field of intimate partner violence. That is a topic that will no doubt be covered extensively in the Commission hearings.

Finally we have Dr. Kim Stanton, who is a lawyer based out of Toronto, and the former head of LEAF, the Women’s Legal Education and Action Fund. She has some experience as an adjudicator, according to her law firm biography, and has published and worked in the fields of violence against aboriginal women, and gender-based violence more generally. While all Commissioners will be conscious of acting in a manner that is “trauma-informed”, we might expect that Dr. Stanton will perhaps have more highly developed notions of what that might mean in practice.

A comparison of these Commissioners to those appointed to head other recent inquiries raises an issue to me that connects with the Foundational Documents, which are now being developed by the lawyers for the parties over the course of weeks of closed-door meetings. I talked about these Foundational Documents before, which are designed to put agreed upon facts or narratives before the Commission without the need of having anyone testify about them. That approach makes good sense for things like maps of the Portapique area, call log times, or authentication of photos or videos. It does not work for disputed eye-witness testimony.

Previous Commissioners, including current Desmond Inquiry Commissioner, Judge Zimmer, have been sitting trial-level judges, who are used to dealing with conflicting evidence and resolving factual disputes. With former Chief Justice MacDonald, Chief Fitch, and Dr. Stanton, we may not have that skill set or comfort level.

That could lead to a situation where more of the narrative is included in the Foundational Documents and less of it unfolds through testimony on the stand, where witnesses can be cross-examined. This can be a problem, and we have seen already that there have been significant issues with the only two official reports from the mass casualty to date, from the Serious Incident Response Team, as I covered in earlier posts.

If the Commissioners lean too heavily on the Foundational Documents, and thereby relieve police officers and supervisors of the risk of being cross-examined, that would be a disservice to the people affected and would undermine the work of the Commission. Inquiries are unique experiences for nearly everyone involved in one, and so hopefully the Commissioners are prepared to go beyond their comfort levels, and allow us to see and evaluate disputed evidence during the hearings, rather than leaning too heavily on the Foundational Documents to do the work.