January 25, 2022

What It Means for the MCC to be “Trauma-Informed”

There are seven sections in the matching Federal and Provincial Orders in Council which established the Mass Casualty Commission and gave it a mandate. The Orders set out a list of issues to be explored, set deadlines, give the Commissioners power to enact procedures, and they also give direction that the whole enterprise be “guided by restorative principles in order to do no further harm, be trauma-informed, and be attentive to the needs of and impacts on those most directly affected and harmed”.

For many, it may be unclear what, if any, legal effect those words may have.

Restorative justice is a still-developing, but increasingly familiar concept in Canadian law. It emerges mainly from aboriginal concepts of justice, where both the offender and the relationship between the offender and the victim or community are seen as things in need of healing and restoration. This is either in addition to, or instead of, punitive measures. In lower-level criminal matters, this can involve the perpetrator engaging in counselling, writing an apology letter, or making a financial donation to an appropriate charity.

It is less clear what that might mean in an inquiry context. We have a very recent example of an inquiry that was explicitly restorative, the Nova Scotia Home for Coloured Children Restorative Inquiry. In that inquiry, there was very much a collaborative approach to the process and the resulting reports, with meetings rather than hearings, and no judge sitting as a Commissioner but rather a team. This Restorative Inquiry was focused more on having this team strengthen relationships among relevant stakeholders and build community capacity, rather than a more traditional outcome of having a Commissioner deliver a report to government dealing directly with polices for public agencies.

In that sense, the process itself was part of the outcome, and for parts of the MCC mandate, such an approach may have merit. Where the MCC is tasked with identifying contextual factors such as police training and procedures on intimate partner violence and supports available to the community and first responders, then meetings and roundtable discussions may be more appropriate than having individual witnesses be cross-examined.

For the initial portion, however, where the MCC is scheduled to examine “What Happened”, the more familiar scenario of witnesses on the stand being challenged under oath is the only way to proceed. That evidence will only properly emerge if it is dealt with in a precise and adversarial manner. Any relationship (re)building between the police and the communities affected will need to come afterwards.

The MCC has not confirmed publicly that they will be following this structure, but they must know that they will face a public backlash should they try to extend the restorative approach into highly contested factual findings. “Restorative principles” cannot get in the way of basic fact finding, even if those facts are unpleasant.

The second part of that guiding directive is for the MCC to be “trauma-informed”. There are concrete steps the MCC might take in this regard, but again, it should not prevent any topic from being explored, not matter how difficult the subject matter, so long as it is relevant to something the MCC has to determine.

The MCC lists “trauma-informed approach” as a Key Term on its website. It says it is meant to “minimize the potential for further harm and re-traumatization, and to enhance safety, control, and resilience”, and then notes that this is why the MCC does not use the gunman’s name.

Trauma-informed court procedures, or at least the conscious development of them, is a relatively new phenomena in Canadian law, and western law generally. “Trauma-informed” has not been judicially considered, though there are some law journal articles which discuss its applicability. Essentially it means being aware of the specific ways in which people experience trauma, and developing policies and practices which reflect this understanding.

So, if a witness suffers from anxiety, being trauma-informed may mean allowing them to testify with a support person, or from another room by closed circuit video. It may also mean refraining from posting photos of deceased individuals, or at least (as was done in the Desmond Inquiry) from posting the photos to the livestream feed. If something said during a 911 call is relevant, then a transcript of the call may suffice rather than playing the actual audio.

Being trauma-informed can extend beyond a testifying witness. Prior to what might be anticipated to be tough evidence, there can be warnings given for members of the public, and for court staff, who may wish to leave the room. In the Desmond Inquiry, separate viewing rooms and Victim’s Services staff were also made available for family members.

It is impossible to have any meaningful discussion about the deaths of 22 people without getting into difficult emotional territory. Being trauma-informed is not meant to avoid difficult subjects if they are relevant to the core issues to be examined. It does, however, mean trying to not exacerbate anybody’s personal trauma experiences through specific, tailored steps designed to protect the person while still allowing them to participate in the MCC in a fulsome manner.