January 10, 2022

A Compellable Witness – Why the Gunman’s Spouse Must Testify

The person who might be expected to provide the most in-depth, insightful look at the life and motivations of the Nova Scotia mass shooter, and therefore the most anticipated witness for the Mass Casualty Commission (MCC) hearings, is his common-law partner of nearly 20 years, Lisa Banfield. Despite that status, there is considerable doubt as to whether she will actually testify, doubt which has been fostered in great part due to related criminal charges she herself is facing. In this piece, I look at the laws governing such situations, and explain why she is indeed a compellable witness for the MCC hearings.

For anyone unfamiliar with the background, Ms. Banfield emerged from the woods to the home of a neighbour early in the morning of April 19, 2020, and told police she had escaped from her partner at the beginning of his rampage, and had hidden from him in the woods overnight. Ms. Banfield not only lived with Gabriel Wortman, but also worked in the denturist clinic he operated in Dartmouth for many years.

Ms. Banfield has not spoken publicly since the mass casualty, but some of her comments have been released through police documents and court filings. She has claimed that she was the victim of intimate partner violence on the night of April 18, 2020, and at other times during the relationship.

Many questions have arisen regarding Ms. Banfield’s account of the night of April 18th, particularly given her apparent lack of injuries that would support an account of being attacked, or aftereffects consistent with a barefoot, lightly clothed person spending a night in the woods in zero-degree temperatures. In addition to addressing those questions, one would expect Ms. Banfield to be able to provide significant background details on Wortman that might help explain what caused him to go over the edge as he did.

Then, in December, 2020 ,something unexpected happened which has created some doubt as to whether Ms. Banfield will testify. Along with her brother and brother-in-law, Ms. Banfield has been charged under s. 101 of the Criminal Code with providing ammunition to Wortman. She has plead not-guilty, and a five-day, judge-alone trial is scheduled for late March and early April of this year.

On the broad spectrum of criminal allegations, it is a very minor charge. The police have stated publicly that they do not believe Ms. Banfield had prior knowledge of Wortman’s intent to go on a killing rampage, and the Crown has elected to proceed by summary conviction, rather than indictment, and so even if she were to be convicted, it seems unlikely she would face jail time. It would be like someone under the old drug laws who brought some marihuana to a friend’s house being charged for trafficking drugs. Technically, “transporting” and even sharing a joint could be considered trafficking, but in reality nobody was ever charged on that basis. Ms. Banfield being charged at all, especially if we accept that she has been a long-time victim, strikes me as being in that territory. Given her status, it tells me there is likely something else going on.

There has been speculation that this charge may mean that Ms. Banfield will not testify at the MCC, for fear that she will have to talk about her own role in assisting Wortman acquiring ammunition and potentially other items (or at least her knowledge of his acquisitions) and might thus prejudice her criminal trial.

Further speculation, given the relatively minor nature of the stand-alone charge, suggests that Ms. Banfield was charged with this crime for the express purpose of keeping her from testifying at the MCC. That speculation would say that she had/has a connection of some sort with the RCMP, or that the RCMP knows she has things to say that they wish to keep concealed, and so laid this charge in order to keep her quiet.

She has hired James Lockyer, a Toronto-based criminal lawyer who would be well-known among lawyers, if not perhaps the general public. That is an interesting decision, and seems to show perhaps an unusually sophisticated knowledge of the legal marketplace. She has a Dartmouth-based lawyer, Peter Rumscheidt, for her claim against Wortman’s estate, but chose to go to a different firm, and province, to deal with this relatively minor criminal charge. That alone suggests this has a high level of complexity, as does the length of the trial.

None of that should matter when it comes to the question of Ms. Banfield testifying. She should. The question has been settled since the 1995 Supreme Court of Canada decision Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy), dealing with this very issue.

In the Westray case, two mine managers had been charged with manslaughter and criminal negligence causing death.  They applied to have the Westray Inquiry declared invalid, or else to have the Court grant an injunction preventing it from starting hearings until after the criminal trials had concluded. The Supreme Court rejected that position, stating that the importance of public inquiries requires that all persons with relevant evidence to be given will be subject to subpoena and compellable to testify as witnesses, and there are adequate protections in place to address any potential prejudice testifying might have on the accused’s criminal trial.

There are two kinds of protections in place for Ms. Banfield. First, nothing she says at the MCC, nor any ‘derivative’ evidence (that is, evidence that would not have been discovered otherwise) can be used against her in the criminal trial. Secondly, if there was a concern that the publicity of her testimony would taint a jury pool, limited publication bans or in camera testimony could be used for her MCC testimony.

That second protection, however, is only relevant for those accused who are facing a jury, not for judge-alone trials, as Ms. Banfield has coming up. The Supreme Court said that judges will be presumed not to be affected by any publicity associated with an accused.

Given what the Supreme Court has said about judge-alone trials, there is also no reason for delaying her testimony until after her trial takes place, though I suspect her lawyers will make that application. They have already made allusions to the potential for an unfair trial in relation to earlier information being unredacted from search warrant documents.

So Ms. Banfield will be a compellable witness at the MCC, and we will finally hear her much-anticipated account, hopefully in the coming weeks as one of the MCC’s earliest witnesses.