March 28, 2022

MCC Day 9 – Police Witness Panel, and a Look at Collaborative Cross Examination

Today was a significant day at the Mass Casualty Commission, as it featured the first substantive witnesses, testified together in the unusual structure of a witness panel. It also featured our first look at how the Commissioners will address the issue of participants’ ability to cross-examine witnesses.

The panel of witnesses included the three RCMP officers who initially responded to the original 911 calls, Cst. Stuart Beselt, Cst. Adam Merchant, and Cst. Aaron Patton. Together, they described their reactions to getting the initial messages shortly after 10 PM on April 18, 2020, their first steps down Portapique Beach Road, and their mindset and actions over the next several hours as they dealt with the active shooter situation in the community.

Despite some initial questions as to whether the 911 call may have been a mental health call (which appears to be quite common for RCMP officers to have to address) and some natural incredulity about the nature and scale of the threat, it is clear from the officers’ testimony that they took the call seriously. They drove from their various positions around Colchester County to the scene as fast as their police vehicles could take them.

Upon their arrival, Cst. Beselt spoke with shooting victim Andrew MacDonald, who he knew from playing hockey, and learned that there was an active shooter, and some details about the shooter’s identity. The officers (who were wearing 70 pounds of body armor and other gear) ran down Portapique Beach Road in search of the shooter. The officers described that their training for such situations told them they should not be in their vehicles, as that would make them sitting ducks for any potential ambush.

The officers described how they followed the sounds of gunfire and other explosions, came across houses on fire, dealt with the children who were hiding in the McCully home, and ran through the woods using unmarked trails. Cst. Patton discovered after the fact, when he looked at the data from his fitness tracker watch, that they had traveled about 10 km on foot over their time in Portapique.

Procedurally, I thought the use of a witness panel worked well. It allowed the three officers to draw on their collective memory, and for us to get a sense of how the dynamics of the team may have manifested itself during these critical hours. They appeared to function well in that regard, with Cst. Beselt at the clear leader.

The fact that none of the participants lawyers had objected to the three sitting as a panel led me to expect that there would not be dramatic revelations, or particularly difficult questioning of these witnesses. Had there been significant evidentiary holes which the participants were looking to explore with these witnesses, they likely would have insisted on questioning the officer separately.

A key issue that arose during the testimony was that of individualized GPS units for officers. RCMP police cars are tracked with GPS units, but individual officers are not once they get out of the car. As it turned out, however, under cross-examination questioning from Rob Pineo, it was revealed that in fact each officers’ radio has a built-in GPS capabilities.

Follow-up questions were not asked as to whether there are any live tracking capabilities in these radios, whereby supervisors or other officers could track officers in a live shooter situation in real time. Perhaps they will be when some of the senior officers from the RCMP testify. Certainly, that would seem to be a valuable resource for the police to have, and one which would allow supervising officers at headquarters to be of much more use in coordinating a response. As it was, Cst. Beselt said that he was not expecting to receive much help from anyone other than the two other officers with him.

Cst. Beselt also testified about his comment at 11:16 PM that perhaps an emergency alert of some kind should be sent out to the public. Cst. Merchant was asked about emergency alerts, and noted that he did not know much about how they worked, and that that was not a “constable decision”. Among the things we are learning is that perhaps it should be a decision that can be made by an officer of any rank who is on the scene and is aware of an active shooter situation.

The testimony was quite compelling at times, and was certainly superior to having a presentation of a Foundational Document on the topic by Commission lawyers. One can imagine that maps and other graphics utilized by Commission lawyers during their presentations could be utilized in the course of direct examination to police witnesses and others who directly involved, rather than we have seen so far. The presentations could be dropped entirely, and replaced with these more compelling witness accounts.

Our first look at cross-examination during the MCC was fairly brief. The lawyers evidently spoke over the lunch break about who would ask the questions, and Rob Pineo from Patterson Law was chosen. Mr. Pineo appeared by Zoom (for some reason that was not explained), and had a brief cross-examination. The GPS issue arose, and there were some questions about locations of fires and whether the officers had seen a white Ford F-150 truck at any point in their travels.

This collaborative form of cross-examination may seem preferable where there are very few questions of substance to ask, but where interests of the parties diverge and collaboration is more difficult, or where there are just more questions to be asked, the Commission may need to show some flexibility in their approach.

The Commission is back on Wednesday to hear from a witness, Deborah Thibeault (who will speak to the condition of the ‘gate’ into the blueberry field), and to give a presentation on the Foundational Document for the Wentworth and Hunter Road portions of the mass shooting.

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