January 21, 2022

Reaction to Critical Patterson Law Statement

Patterson Law, the firm representing many of the families who lost loved ones during the shootings of April 18-19, 2020, has issued a statement calling for the Mass Casualty Commission to commit to a start date, and suggesting as well that there is a lack of clarity as to how the MCC hearings will operate. Most significantly, these lawyers, who are the main non-governmental participants, still do not know whether they will be able to cross examine witnesses during the MCC. This is very troubling news, especially at this advanced stage of hearing preparations.

The Commission spokesperson responded to that point by saying “any additional questions participants may have will be addressed through the course of the proceedings”. That could be read two ways. One would be that if parties have questions after each witness is examined during the hearings by Commission legal counsel, they may be permitted to cross-examine.

A more restrictive interpretation would suggest that the Commission feels they have already given each party a sufficient chance to ask questions during the closed-door sessions, and therefore any request for additional questions during the actual hearing might be met with resistance.

We many wonder why Patterson would participate in the secretive foundational documents formation process without knowing that answer. Their statement yesterday suggests they are wondering that themselves. It appears that they did so reluctantly, as something of a show of good faith in the process. Now that they are speaking out in this manner, it would appear that they feel their good faith is being tested.

The MCC spokesperson makes a point of stating in an interview with Global News that there are 61 parties, as though to say or suggest that it would be practically impossible for each of the parties to cross-examine each witness. The implication we are supposed to take from that is that therefore we should abandon thoughts of any court-like cross-examination taking place.

That is an untenable position, and one that dramatically overstates the complications of allowing cross-examination. Though there may be 61 parties, most in fact have limited participation rights, meaning most will not have the expectation or right to cross-examine, but will rather submit briefs, reports, or participate for only some of the witnesses.

The Commissioners have already stated, in their participation decision, how some participants will have limited rights. Victim advocacy, health-related, and firearms groups will all be limited to participating in roundtables and assisting with expert reports to the Commission. The police organizations will be limited to issues relating to “the policing aspects” of the inquiry. So, it would not be the case that all 61 parties will be lined up to examine each witness. It will be for the Commissioners to use their discretion to determine when each party will be entitled to cross-examine each witness, based on their interests, and the potential benefit to the overall understanding of the evidence by having them participate.

In the Desmond Inquiry, the process for most witnesses has been to have Inquiry Counsel to lead them through their evidence, and then for the other parties to examine each in order. Judge Zimmer comes from the Provincial Court, and has followed the practice in that court of having the federal government lawyers go first in cross examination, followed by the provincial government lawyers, and then each of the other 5-7 parties (not all parties appeared every day) examine the witness in order of the seniority at the bar of the lawyer for that party.

This has worked well. I am usually one of the last lawyers to ask questions, and if topics have been covered already, I  simply skip those questions I had prepared. Sometimes, the lawyers will confer beforehand to discuss who will cover certain topics. Also, for most witnesses, the provincial government has not asked any questions (though they have had two lawyers present at all times) and it has not been unusual for the federal government and the health authority lawyers to not have questions either. Judge Zimmer has asked questions after each lawyer has had a chance, and sometimes Inquiry Counsel has had follow-up questions.

For witnesses proposed or presented by any of the parties, that party leads the witness through their evidence, and then Inquiry Counsel goes next, and the order continues as usual after that.

There are many elements of an inquiry that are distinct from a regular criminal or civil trial, but cross-examination of witnesses forms part of the bedrock of our system of justice, and is widely acknowledged to be the most effective manner of shedding light in dark corners, and poking holes through contrived narratives. If the main non-government parties cannot cross-examine witnesses, this process cannot be considered a true public inquiry.