June 2, 2022

MCC Day 31 – Critical Incident Experts Avoid Criticizing Incident & Possible End to Boycott

This was the second day in a row where the Mass Casualty Commission had hosted experts from a wide range of locations to discuss approaches to critical incidents. Unfortunately, as was the case yesterday, there was no discussion whatsoever of the events of the April 18-19, 2020 mass casualty in Nova Scotia.

There were two panel discussions. The first one in the morning dealt with issues around making decisions under stress. The afternoon session involved discussions on the societal context of policing, which included discussions on budgeting priorities, training, and use of force training.

The moderators were the same as we saw in yesterday’s panels. Krista Smith moderated the morning session, which also included Dr. Laurence Alison from the University of Liverpool, University of Toronto psychology professor Dr. Judith Anderson, York Regional Police Superintendent Wallace Gossen, Dr. Matthew McAllister from Texas State University, and Dr. Neil Shortland from the University of Massachusetts Lowell.

There would appear to be considerable study taking place on how stress can impact decision making. The research and discussion can be summarized by stating that it is more difficult to make a good decision when a person is under stress, whether that be physical or mental stress, that nevertheless such decisions often must be made, and that therefore police officers should be self-aware of their own stress levels and if at all possible should take an extra moment before making crucial decisions.

It is unlikely that any of that, or any of what was discussed this morning, would strike any thoughtful person as insightful or unintuitive.

The afternoon session was moderated by Dr. Emma Cunliffe, and included Dr. Anderson, Dr. Paula Di Nota from the HART Lab at UTM, Dr. Benjamin Goold from the Allard School of Law at UBC, Dr. Kimmo Himberg from the Police University College in Finland, Dr. El Jones from Mount Saint Vincent, and Dr. Hunter Martaindale from Texas State University.

Dr. Jones, the only local representative who was present for either panel, was the only person over the past two days to even mention the mass casualty, which she did in her introduction. Dr. Jones later spoke about her work with the Halifax Board of Police Commissioners subcommittee report which recommended defunding the police. This was a report which I suspect many people dismissed due to its incendiary language around defunding the police, but which was compelling in its recommendations on police reform once you get past the title call.

In civil and criminal trials, experts are brought in to discuss some element of the fact scenario under examination, and to then give their opinion on things within their field of expertise. Here, there was no connection between the expertise and the actual events of the mass casualty. This is less helpful for the Commissioners, as they will now have to shoulder the task of making those connections, but the larger issue as I see it is how this procedural choice protects the police.

There will be no headlines tomorrow of such and such an expert being critical of the RCMP response to the mass casualty, because nobody was asked the question. The choice of procedure was deliberate, and I suspect the experts were all told not to discuss any elements of the mass casualty. The Commissioners did not explain why such a choice was made, but one of the primary effects will be to spare the police some (further) terrible headlines.

It was also rich with irony for the panelists to be discussing the problems associated with making decisions without enough time and without key information, all while wasting time on these theoretical critical incident discussions, rather than digging into the evidence, all while facing a November deadline by which they are to make big decisions and file their final report. Dr. Himberg talked about decision avoidance as being “cognitively lazy”, which would seem to accurately describe the decision to fill proceeding time with vaguely relevant discussions, rather than digging into the details of what happened and having experts testify about what they think of the actual events.

Prior to proceedings starting this morning, there was an interesting story published by CTV news about the ongoing boycott by participants, which could result in a pathway to ending the boycott. In the article, one of the lawyers for the participants, Tara Miller, noted that she is going to make an application to the MCC on her client’s behalf to ask the Commissioners to amend their Rules of Procedure.

The amendment would be to section 52 of the Rules, which deals with questions to witnesses. It currently states in part that “Participants may have an opportunity to question the witnesses, to the extent of their interest as determined by the Commissioners.”

The proposed amendment would change that “may” to “shall”. There would still remain discretion for the Commissioners to limit questions based on the degree of interest of a party, and they can also limit the “scope and manner of questioning” based on their discretion. The last restriction would be applied only to ensure that questions are relevant (scope) and that the questions are not being asked in a hectoring or otherwise uncivil manner.

Having set the Rules in the first place, it may seem unlikely that the Commissioners would now amend them, particularly since they could have allowed regular cross examination under the existing version of Rule 52. What an application would do, however, is bring the cross-examination/boycott issue to the forefront and on the record.

Should the Commissioners refuse to hear or grant the application, the other option for changing the Rules would be for the Provincial and Federal cabinets to jointly amend the Orders in Council which formed the MCC and which (very loosely at times) guides their work.

The MCC is back on Monday for further proceedings, though details of what will take place have not yet been posted on the Commission’s website.