This week saw the final two days of evidentiary proceedings in the Desmond Fatality Inquiry, bringing to a partial close a process which opened May 21, 2019, and where hearings began in earnest in January, 2020. The stark contrasts between how the Desmond Inquiry has unfolded, and how the Mass Casualty Commission proceedings have started, brought me back to the opening remarks of Desmond Inquiry presiding Judge, Provincial Court Judge Warren Zimmer.
In his remarks, Judge Zimmer touched on important legal distinctions between a fatality inquiry and a public inquiry, and some of those remarks are helpful for understanding what is now taking place in the MCC. In particular, these remarks can help us understand how the legal nature of the Commission not only allows for, but indeed invites, appropriate political interference.
It may be helpful to recall that the Desmond Inquiry was not voluntarily initiated by provincial government, despite pressure from the Desmond family, community leaders, and Canadian Armed Forces veterans across the country. Rather, the Minister of Justice was obligated by the relevant legislation to do so once the Chief Medical Examiner recommended to him that one be held.
The Fatalities Investigations Act of Nova Scotia then states that the Chief Judge of the Provincial Court appoints a Judge from the Court to preside over the inquiry. When the inquiry is completed, Judge Zimmer files his report with the Provincial Court, not the government, and the report is presumptively a public document. The government has no legal authority to prematurely end a fatality inquiry, and at all times Judge Zimmer maintains his judicial independence from government.
By contrast, the Mass Casualty Commission is created by an Order in Council (that is, an order from the provincial and federal cabinets), and the Executive (the Premier) appoints the Commissioners. The report to be prepared by the Commissioners is submitted to the Governors in Council (the provincial and federal cabinets), and would only be released publicly at their discretion.
The Mass Casualty Commission is, therefore, merely a creature of the Order in Council. It is not independent from government, nor is it designed to be independent in that sense. If the government does not like either the direction taken by the Commission, or the Commission’s interpretation of the Order in Counsel, then the government can make changes. They can amend the Order in Counsel to clarify any areas where they feel the Commissioners have misinterpreted the Order or otherwise have gone astray from the intentions of the Order, and they can even cancel the entire process at any stage should they decide to do so (as was done federally in the Somalia Inquiry).
This is all relevant at this stage of the Commission proceedings, because we have been witnessing continual disputes between the Commission and the main family participants over key procedural questions such as whether witnesses will be called, and the extent to which witnesses might be cross-examined. There is still considerable uncertainty on that latter question, and this alone has the potential to undermine the legitimacy of the entire process.
On the first day of hearings for the Commission, both Nova Scotia Premier, Tim Houston, and Nova Scotia’s representative in the federal cabinet, Immigration Minister Sean Fraser, individually expressed concern and criticism for the apparent reluctance of the Commission to provide the families and other participants with procedural certainty when it came to the calling of witnesses, and related issues.
Some members of the public were critical of these remarks being made at all, considering them to be inappropriate political interference. That day, Commissioner (and former Nova Scotia Chief Justice) MacDonald, in his opening remarks, emphasized that he considered himself and the Commission to be independent of government. While Commissioner MacDonald may have been simply trying to convey a sense that the Commission would not shy away from difficult evidence or conclusions, in an important sense what he said was not accurate.
The Commission is entirely a creature of the federal and provincial cabinets, reports to them, and can be canceled by them at any time. And, unlike a sitting Judge, the Commissioners have no legal guarantees of their ultimate independence.
In thinking about whether it may be appropriate for the government to intervene in the Commission, consider that the Commission was initiated by the previous provincial Liberal government, under the direction of then Justice Minister, Mark Furey, and then Liberal federal Public Safety Minister, Bill Blair. These Ministers initially wanted merely a “review” to take place, and only agreed to call an inquiry after being confronted with overwhelming public pressure to do so.
So far, however, the presentation of evidence, and the tightly controlled access to information in the Commission process, gives it the look and sense of a review, rather than pure inquiry process. So far, we have only heard the Commission’s unchallenged version of events, and it is not clear that all available information has been disclosed to the parties.
The Mass Casualty Commission has not been like the Desmond Inquiry, where all evidence was provided to the parties in advance, and relatively unfettered cross examination of witnesses has been routinely featured throughout.
Should the new provincial government determine that the MCC is not fulfilling its mandate, or is misinterpreting the direction given in the Order in Council, it may appropriately feel compelled to intervene. Given the comments from Minister Fraser, it may be expected that the federal government would support such an intervention. There is nothing conceptually improper about doing so, should the Commission proceed in a manner that is not in the public interest.
