May 5, 2022

MCC Day 19 – Key RCMP Officers Testify re: Onslow Belmont Shootings and Heather O’Brien

Today was an important day at the Mass Casualty Commission. Four RCMP officers whose actions had been the subject of many critical questions testified about their involvement in the effort to stop the active shooter. In the morning, Csts. Terry Brown and Dave Melanson testified together as a witness panel about the shooting at the Onslow Belmont Fire Hall. In the afternoon, Cst. Ian Fahie and Cpl. Duane Ivany testified individually about their involvement in the treatment of Heather O’Brien, after she was shot.

The Union representing RCMP officers had objected to any of these officers testifying, suggesting that it would be too traumatic for them to do so. As expected, there was little evidence of any such trauma in the officers when they actually testified. They all answered the questions asked of them without difficulty or hesitation. The content of those answers, however, was less than satisfactory.

In previous posts, I have covered the Onslow Belmont Fire Hall shootings, where officers Brown and Melanson stopped their vehicle just under 100 m short of the fire hall, jumped out and began shooting. In their testimony today, the officers indicated that Cst. Brown shouted some commands to person they suspected to be the killer, and then started shooting after the person ducked and ran toward the fire hall door.

The officers further testified that, when Cst. Gagnon radioed back to them that they were shooting at him, and not a proper suspect, that they stopped, assessed the situation to ensure everybody was uninjured, checked around the building, and then left the area to continue their pursuit of the killer. They testified that Cst. Brown called Staff Sergeant Carroll immediately afterwards, and was told to continue on, and that any consequences of the fire hall shooting could be addressed after the active shooter situation was resolved.

Much of this account conflicts with available evidence from other witnesses, as well as what an objective observer may consider reasonable under the (admittedly unusual) circumstances. Most significantly is the contention that commands (or anything) was yelled toward the potential suspects prior to shots being fired. All other witnesses (including Cst. Gagnon, David Westlake, Jerome Breau, and occupants of neighboring houses) say that no warnings or commands were shouted prior to the shooting.

In fact, Cst. Melanson could not really recall Cst. Brown yelling anything either. When pressed, he said he thought he heard “something”, but since he was trying to get through to others on the radio, his focus was elsewhere. This part of the testimony helps illustrate why it can be important for witnesses to be questioned individually, rather than as a panel. Without Cst. Brown sitting next to him, one wonders what Cst. Melanson’s more fulsome answers may have been. It is worth noting that Cst. Melanson only fired one shot.

In his cross-examination, Patterson Law lawyer Michael Scott asked a crucial question in a very incisive manner. He asked the officers whether, now that they understand what was really happening, whether they thought it was strange that David Westlake (who was wearing the reflective vest, and was suspected by Brown and Melanson to be the killer) ducked and ran while speaking to an RCMP officer and while receiving instructions from other RCMP officers. The witnesses did not have a real answer to that question.

For those unfamiliar with cross-examination in real life, as opposed to television courtrooms, this is about as good as you can expect to get from the perspective of the lawyer asking cross examination questions. You cannot expect that witnesses will break down on the stand and admit that anything they have said is untrue. They almost always stick to their story, even in the face of obvious contradictions. As the lawyer, the best you can to achieve is for the witness’s answers to clearly lack credibility, as was the case this morning.

The sheer distance between the officers and the suspect created difficulties that the witnesses were not able to adequately address. They said they were 100% sure the suspect was the active shooter based on seeing the RCMP police cruiser, the reflective vest, and his actions in ducking after receiving commands. Yet, they could not see that there was a person inside cruiser, they could not see the callsign on the back of the cruiser (so as to identify whether it was the replica), they could not see whether the person was holding a gun, and could not see the person’s face. Fortunately, the distance, coupled with the perhaps excited state of the officers, meant they could not accurately hit their intended target.

Another point raised by Cst. Brown, which he seemed to think helped his credibility, but I suspect many will find does the opposite, was his intense and singular focus. He described an “auditory exclusion”, in the sense that he could not even hear the gunshot next to him from his partner, and also his visual focus, which led him to see only the individual he was targeting, and not any other vehicles, orange cones, or anything else within his field of vision.

There were other notable moments in the testimony. I noticed that Cst. Melanson referred to Mr. Banfield at one point as “Lisa”, and then later referred to the killer by his first name as well. In my experience, police officers almost exclusively use last names when testifying or speaking about any matter in which they are involved. That may not mean anything, but it struck me as unusual.

The officers were in an unmarked car, which they (rightly perhaps) felt gave them an advantage over others chasing the killer, who may have only been watching out for marked police cruisers. This may also have given them the sense, however, that they were the only ones who might succeed in catching Wortman. They seem to have had an overeager approach, which led to the mistakes they made. They themselves were not in any danger at the distance from which they took their shots, and they said they had no awareness that there may have been anyone in the fire hall, so it would not seem unreasonable for them to have approached more closely to get a better assessment of the situation before shooting.

All of this made me wonder whether someone had provided them with information in advance telling them that a person standing next to a police car wearing a reflective vest outside the fire hall, and that they thus made the decision to engage with lethal force before stopping their car. Commissioner Stanton asked the officers whether they made any other phone calls on their personal phone, other than to Staff Sergeant Carroll after the incident, and the answer given back was that they have not. The question was not asked whether any messages had been received prior to the incident on these cell phones, and it does not appear from the records that these phones have been seized or analyzed.

We also had our first sets of objections during the testimony (though it was difficult for anyone listening online to hear the first one). Patricia McPhee, lawyer for the federal government, objected to several lines of questioning, including when Michael Scott asked the officers about an internal RCMP investigation. Inquiries are not supposed to be as strict about the rules of evidence as a civil or criminal trial, in an effort to learn as much as possible about the scenario, yet lead Commissioner MacDonald granted the objection, and did not allow Mr. Scott to ask about the internal RCMP investigation. Certainly, objections of this nature make it clear that there is something the federal government wishes to conceal.

In the afternoon, Cst. Ian Fahie testified about the death of Heather O’Brien. Cst. Fahie has been stationed in Antigonish, though I do not know him well. His testimony today was difficult, as he had some poor choices of words in his earlier statement that he needed to explain, but overall I think his testimony helped his own personal credibility, and is another example of the mistaken view of the National Police Federation that no officers should testify. Cst. Fahie certainly held up under questioning, and came off much more competently than he did from a narrow reading of his statement.

Cst. Fahie thought he felt a pulse on Heather O’Brien, but was quickly relieved by Cpl. Duane Ivany, who is a medically trained officer. Cst. Fahie had to explain why he said Ms. O’Brien was “barely alive”, and later that the police “had to let her die”. These words, coupled with the Fitbit data that the family provided to the MCC, has lead to questions as to when Ms. O’Brien actually died. Cst. Fahie says she was in the course of dying and he did not think she could be saved, and may have “wanted to feel a pulse”.

Another interesting note from Cst. Fahie’s testimony was that he and Cst. Coleman were travelling together through Debert just before they arrived at the scene, and had a discussion about what they would do if the encountered the killer driving his replica cruiser. They decided that Cst. Fahie would ram the car and Cst. Coleman would start shooting through the windshield at the killer.

This was interesting, not so much for the plan itself so much, but rather in comparison to the evidence of Csts. Brown and Melanson, who essentially denied having any conversations with each other about the situation unfolding around them. Certainly, it would be more natural to expect that there would be significant conversations going on throughout this entire time.

After Cst. Fahie, Cpl. Duane Ivany testified about his involvement. Cpl. Ivany is a medically trained officer who attended at Portapique and Hunter’s Road. He treated Lisa Banfield when she called police at 6:30am on April 19, 2020, and observed that her skin was pale, she had blue lips, and her teeth were chattering. On cross examination, he agreed that he had not mentioned the chattering teeth in his earlier statement, that the ambulance report did not mention anything about hypothermia, and that he did not check her hands to see if there was any evidence of her having escaped from handcuffs.

He also took over the treatment of Heather O’Brien from Cst. Fahie. Cst. Ivany and Cst. Fahie’s evidence conflicts as to whether Ms. O’Brien’s driver’s door was able to be opened. Cst Fahie said he checked Ms. O’Brien through the driver’s side door, while Cpl. Ivany said they had to bust open the window in order to access her, and that he was the first to treat her. Cpl. Ivany spoke at length about his qualifications and experience, which seemed extensive, yet he improperly (at first) took Ms. O’Brien’s pulse with his thumb, not his fingers. He and his partner did subsequent checks and were confident that she was deceased at that time.

It must have been very difficult evidence for the family to hear, but it all may have been unnecessary but for the trauma-informed approach to evidence. Cpl. Ivany seemed to inadvertently mention that Ms. O’Brien was shot in the eye by the killer. Nobody wants to talk about gruesome details, but in this case, the failure to do so seems to have lead to a great deal of unhelpful speculation.

It was a long day for the MCC, and an impactful one in terms of the witness testimony. Along with everything else that was learned, we were reminded of the benefits of having witnesses testify rather than having presentations from Commission lawyers.

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