January 31, 2022

Lowering Expectations – The Latest MCC Update

The Mass Casualty Commission has issued an update today, January 31, 2022. In the update, they discuss the upcoming proceedings, the role of Participants, forthcoming reports, and unspecified alternate forms of public engagement. In my view, the real purpose of the update, however, was to manage (that is, lower) expectations as to what take place during the Proceedings.

The release notes that family members have been urging the Commission to begin proceedings quickly, while other (unnamed) participants have been asking for more time. The suggestion from this duality seems to be that the Commission is attempting to reach some kind of balance in the demands of the various participants. Certainly, would seem to be in the interests of the RCMP to continue delaying the beginning of proceedings, as a way to diminish public interest in the activities of the Commission. Hopefully, the Commissioners are aware of such dynamics among the participants.

There are some comments in the release regarding where people will be able to watch. There will be a livestream, with video archived for those not able to watch the proceedings during the day. In addition, for the families, there will be viewing space in Truro, as well as at the Halifax Convention Center (outside of the hearing room itself).

The main section of the release deals with the role of various Participants. The Commission notes that the “Participants” section of their website has been updated, but significantly, there is still no direct statement on whether parties will be entitled to cross-examine witnesses during the proceedings. We were reminded last week that the Commission has a very large staff, so we can presume that the words in this release chosen carefully, and that the failure to answer the question about cross-examination was a deliberate choice.

The Commission has noted that these Foundational Documents “bring together a large volume of information” and that they will have the effect of “limiting the need for lengthy proceedings and reducing the amount of verbal testimony required to do our work”. It is concerning that there appears to be an instinct to avoid verbal testimony in preference to closed door meetings. It is also disingenuous to talk about the volume of material when we could have been having hearings over the past 10 weeks to process some of that volume.

The statement by the Commission points to the Rules that have been adopted by the Commission. They note that participants are entitled to suggest witnesses to the Commission, and also to suggest lines of questioning for particular witnesses. I have never heard of such a technique of examination being used in any setting, and cannot imagine a situation where giving a line of questioning to another lawyer to ask, rather than asking it yourself, could be effective in achieving whatever goals you hope to achieve from that line of questioning.

The Commission undermines that already-limited input even further by stating that ultimately, the Foundational Documents are the Commissions documents and “share the results of the Commission’s investigation”. Note that it does not describe the results as “preliminary” or partial” but “the” results, suggesting that no further probing or questioning would be needed, or would take place.

The Rules certainly do allow for participants to examine witnesses and to cross-examine witnesses. Rule 51 notes that Commission Counsel has the right to “re-examine” any witness at the conclusion of their evidence, which may seem to imply that there must have been cross-examination at some stage. (In a usual criminal or civil trial, you have direct examination, followed by cross-examination, and then the lawyer who did the direct examination is an opportunity to conduct re-examination, but only on topics raised during cross.)

Rule 52 follows that up by saying that Participants “may” have an opportunity to question the witnesses. This means the Commissioners will decide in each case whether a Participant may ask questions of a particular witness. The only guiding language used in the Rules to tell us how that might turn out is that the right to question witnesses is limited by “the extent of their interest is determined by the Commissioners”. Vague language with wide discretion for the Commissioners.

Today’s statement does not explicitly tell us very much that is new. The real purpose behind the statement appears to be to soften the blow for when proceedings start, and instead of witnesses telling us what they did and saw and being challenged on cross-examination, we are presented only with someone reading in an agreed statement, or some form of prepackaged question-and-answer session between Commission Counsel and representative witnesses.

Such an outcome would fall far below what I sense of the public’s expectations of this Commission, and be a further disappointment to those who have invested their time and energy in this important cause.