May 31, 2022

MCC Day 28 – S/Sgt. Rehill’s Pre-Taped Testimony & How the Commissioners Might Rebuild Confidence

While this report covers the Day 28 of the Mass Casualty Commission proceedings, in reality we are actually in the midst of Day 29. The testimony from Staff Sgt. Brian Rehill took place yesterday. He was interviewed over Zoom by Commission lawyer, Roger Burrill, and the video was posted this morning. Currently, another staff sergeant, Andy O’Brien, is having his testimony recorded, for later public posting.

All of the questions for these two witnesses are being asked by Commission lawyers, and there is no opportunity for cross-examination by lawyers for the participants. This is all the result of accommodations sought and granted for these police officers. In a related note, this is also day four of the ongoing boycott by many of the family participants and their lawyers. The boycott began in response to the accommodations being granted to these witnesses.

From watching the evidence of Staff Sgt. Rehill, I come to the same conclusions as I did watching that of Staff Sgt. Carroll last week. There was no indication whatsoever that the officer was uncomfortable giving his evidence. He did not seek any breaks or seem to display anything in his demeanor that would suggest he had been traumatized, was under treatment, or had any difficulty recounting events. The accommodations seem entirely to be a strategy developed by the National Police Federation and the Federal Department of Justice to protect the RCMP as an organization.

One of the ways this chosen procedure protects the RCMP is that hardly anyone will watch these posted videos. I would be very curious to see the data comparing how many people watched these pre-recorded videos versus how many watch the livestream on a regular basis.

Staff Sgt. Rehill was subjected to very gentle and leading questions by Mr. Burrill. For example, at one point, he was asked whether he had “any comment on the quality of mapping, or would you prefer not to answer that?”, as though it were at all a difficult question.

Substantively, Staff Sgt. Rehill admitted that he could have followed up on his orders to Constable Grund regarding containment on the east side of Portapique, and that there were communications issues there which could be addressed. Though there were multiple staff sergeants giving orders, Staff Sgt. Rehill did not see that as a problem. He was glad to have the others helping out, with their many years of experience.

There was one point of departure from the evidence of others. Staff Sgt. Rehill indicated in his evidence that he told Staff Sgt. Halliday about the marked police cruiser being a fully marked replica in their first conversation, early on in the events, that being the factor which prompted him to call in the Critical Incident package of resources. Staff Sgt. Halliday indicated in his testimony that he only became aware that the replica of vehicle was a fully marked replica hours later, at 3:30 AM.

In lieu of cross-examination by lawyers for the parties, they were obligated to give any questions they might wish to have asked Roger Burrill and have him ask them. It is not clear why having the same question asked by a lawyer for the Commission, as opposed to a lawyer for the participants, would be less traumatic or more comfortable for the witness. If one were to think of how the questions could be less traumatic, you might imagine that having your own lawyer asking him would be the way to make the witness most comfortable. The Commission lawyers are supposed to be “tenacious” in seeking the truth and uncovering facts, and yet the RCMP was evidently as comfortable with them questioning their witnesses as they would have been with their own lawyers.

Certainly, if other lawyers were given the opportunity to ask S/Sgt. Rehill questions, they might have done such outrageous things such as politely disagree with his answers, press him for further details, or follow-up in any way at all. Mr. Burrill did none of these things.

All of this just adds to the lack of confidence the participants of the public are feeling about the work of the Commission. In my view, it is incumbent upon the Commissioners themselves to say something that will start to foster public confidence. As it stands, the most we hear from the Commissioners are when they recite these bland, prewritten welcoming remarks, involving vaguely phrased statements about their mindfulness of everyone’s trauma in all forms, or else when they (again, in seemingly prewritten remarks) thank witnesses for their difficult testimony, without any hint that the witness may possibly have made mistakes for which it might be just that they suffer.

In a criminal or civil trial, it is important for the judge to take some care in any remarks they might make, lest they open themselves up to allegations that they have predetermined the outcome in some way. In a trial setting, it is important to maintain neutrality. An inquiry setting is different, where there is a public engagement element to the process, and public confidence is more of a live factor.

In the Desmond Inquiry, Judge Zimmer would ask questions of many of the witnesses, which would, in part, reveal to the participants and the public what he was thinking. In his questions, Judge Zimmer would show some insight and understanding of the evidence, and would be working from his own notes, which he was making during the unfolding of the evidence. As a result, we were able to have confidence that he would not soft-pedal or pull punches when it came to being critical of individuals or institutions.

Here, we have no real sense of what the Commissioners will do, and their interim report and interlocutory decisions on things such as accommodations and objections to evidence do not yet inspire confidence. If they wish to (re?)gain the confidence of the public, they will need to demonstrate that they are engaged with the evidence, and are prepared to be critical of individual witnesses, procedures, and institutions when it is appropriate to do so.

Tomorrow, Staff Sgt. Andy O’Brien’s testimony will presumably be released. As well, there are roundtables scheduled regarding critical incident responses.