We are now six days into the Mass Casualty Commission proceedings, and frustration is brewing. So far, the process designed by the Commissioners seems intended to sap as much dramatic interest as possible from the proceedings, as though that were synonymous with being “trauma-informed”. Witness statements and officer notes have been published in full, parties have been forced to beg for witnesses, lawyers have had to give advance warning of their lines of questioning, police have tried to exploit “trauma-informed” into a blanket exemption from testifying, and in all the talk about Portapique we have not yet heard a single word spoken from a person who was actually there.
The material that is available on the Commission website is a treasure trove for the curious. Full transcripts of witness statements, officer notes and reports, phone records, and maps of the area have been made available. At times it feels invasive, especially when reading about interpersonal relationship histories and other personal matters which can arise in a thorough police interview, but which have no real bearing or pertinence to significant facts. At one point, a Staff Sergeant speculates that the suspect may be an active officer, and he names the officer in his notes.
These kinds of statements are not typically made public. Instead, each of the lawyers would be given a copy of the statement, any part of which they can reference when the witness testifies, if they feel it might be relevant to the matter at hand. Among the benefits of doing things that way is that parts of the statement that may be embarrassing or otherwise sensitive, and not germane to any key fact, do not become public. With multiple lawyers examining each witness, it is safe to expect a thorough review of such matters, without providing the entire statement to the public.
The better, more trauma-informed, approach is to provide the parties with the statements, and then lead the witness through the relevant parts of the story on the stand. Taking this approach could also likely have allowed the Commission to start hearings much earlier.
One thing that has become clear to anyone observing the first six days is that there are a variety of interests at play in the proceedings. Public interest in the Mass Casualty Commission is part of the field of battle among these various interests. It is in the interests of the families and community members, and all those who want to see changes emerge from the MCC for that interest to remain strong. The police and government interests, on the other hand, are served if interest drops off, or if at least the fallout from the bad publicity can be managed.
So, instead of the stoic 6’5” Mountie, Stuart Beselt leading off proceedings with a first-hand account of the harrowing first steps into Portapique, we had kindly, self-deprecating legal aid lawyer, Roger Burrill, giving us an extended Ted Talk.
Then, instead of allowing for the possibly of a witness being surprised by cross-examination questioning and thus revealing something they were otherwise trying to conceal, the lawyers for the parties were forced to show their hands, and reveal what questions they intended to ask, failing which whatever witness they had in mind would not be asked to appear. Not only does this give witnesses a chance to prepare, but it removes some dramatic energy when we all know the questions that are coming.
Another public interest maneuver is releasing all the news at once, rather than having it unfold day by day. We now already know what any witnesses are going to say, or at least most of it. The Commission must be conscious that this will mean fewer people will be inclined to watch such witnesses.
In fact, the Commission must be conscious that all of these features of the proceedings thus far (not to mention starting proceedings with a highly technical witness presentation on the 911 system that would have fit just as well at a later stage) will reduce public interest. The Commission may not consider it their responsibility to be interesting, but they should be aware of how their decisions impact the engagement level of the public.
Judging by their limited remarks during the requests by the parties for particular witnesses, the Commissioners seem inclined to adopt a default position of no witness being called to testify if it can be avoided, believing that being “trauma-informed” means avoiding trauma at all costs, even at the cost of accurate fact-finding.
That was not even the most misguided interpretation of the Commissions trauma informed mandate. The National Police Federation argument that none of their officers should be subjected to the potential trauma involved in testifying to what they saw and did will be an early test for the Commissioners. That the NPF would even attempt this argument might be considered a sign of how malleable the term “trauma-informed” has been allowed to appear.
The NPF seem to have made a serious strategic error in trying to exploit the mandate in this manner. Just because you can think of an argument that might help your ultimate position does not mean you should always make it. The NPF looked like they have something to hide, made all the worse when their proposed expert had his qualifications rejected, in an exchange that also certainly highlighted the potential benefits of an effective cross-examination. After one of the families’ lawyers, Rob Pineo, was finished with him, it was clear to anyone watching that Dr. Carlton was going to provide biased conclusions, of limited scientific merit. The Commissioners quickly rejected the application to have him named an expert, and so now for the rest of the inquiry, the NPF will be fighting to regain credibility.
None of this is fair to the public. Questions as to who would testify should have been determined long ago (with trauma-informed support allowances made when needed) so that when the proceedings started, we could have heard what happened, from the people who were there. We did not, and may never, get that opportunity. The MCC has moved very quickly through one of the central timelines, and so far, the public interest has not been served by what we have seen in the first six days.