Families’ boycott of N.S. mass shooting inquiry puts spotlight on balancing act between trauma-informed approach and fact-finding mission

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HALIFAX — The public inquiry into Nova Scotia’s April 2020 mass shooting is at a critical juncture, and its commissioners will have to act swiftly or risk losing the trust of the public, one observer says.

Wayne MacKay, professor emeritus at Schulich School of Law at Dalhousie University in Halifax, says the Mass Casualty Commission seems to be wobbling in its fine balancing act between being trauma-informed and getting to the truth of the events surrounding Canada’s deadliest mass killing.

And in accommodating appeals from the RCMP to have its senior officers testify in a manner that would apparently cause them the least trauma, the commission may, in fact, be visiting more trauma on the families of the gunman’s victims.

“It appears that this is one of those collisions and they’ve decided obviously to accommodate requests from the senior RCMP people who are testifying,” said MacKay. “But the price of doing that at the moment seems to be another blow to the confidence of at least a significant number of the families of the victims.”

That observation came on the heels of an announcement that relatives of most of the victims and their lawyers would boycott four days of the public inquiry to protest the decision that key RCMP witnesses would not have to testify in person.

In a Wednesday morning release, Robert Pineo of Patterson Law said the firm has been instructed by its clients to not attend the inquiry for the rest of this week and for two days next week to protest the commission’s decision to allow RCMP Staff Sgt. Brian Rehill and Sgt. Andy O’Brien to testify to the inquiry through pre-recorded video interviews.

Patterson Law represents 14 of 22 victims’ families, as well as others most affected by the killings.

“Our clients are disheartened and further traumatized by the Commissioners’ decision to not allow their own lawyers to be present and participate in the questioning of whom they view to be amongst the most crucial RCMP “in command” members, Staff Sgt. Brian Rehill and Sgt. Andy O’ Brien,” Pineo said in the release.

“Our clients firmly oppose the Commissioners’ decision and take this action to send a clear message that they will not be associated with this restricted fact-finding process for such critical evidence.”

The commission’s latest decision adds to a long list of frustrations on the part of lawyers for the victim’s families. For much of the inquiry, participant lawyers have had to negotiate with the commission for access to important witnesses in order to cross-examine their testimonies.

In many cases, those lawyers have been asked to submit their questions to commission counsel to ask instead. In some cases, the representative lawyers have been able to pool their questions and have them asked by one of their number.

Neither situation is ideal for testing evidence, lawyers have said.

Concern is ramping up, as are frustrations, as the inquiry begins to call more senior RCMP officers for accounts of their actions during the mass shooting.

And as the stakes get higher, the commission needs to be aware not only of being transparent and independent, but also of maintaining the appearance of being transparent and independent, said MacKay.

“The accommodations would be much less concerning if they weren’t in respect to fairly critical witnesses, ones where the families and the public generally are quite concerned about what steps were taken and whether they were doing the right thing,” said MacKay.

“Most of us, I think, still are trusting in the commission that they’re trying to do the right thing, but for anyone with any kind of suspicions, it would be easy to assume that this is just a smokescreen for allowing people to not be tested quite as strongly as they might otherwise be by cross-examination.”

Lawyers for the National Police Federation and the Attorney General of Canada, both of which represent the RCMP, had requested that Rehill and O’Brien be allowed to testify via a pre-recorded video interview next week, citing health concerns and fears that the officers would be re-traumatized.

The commission ruled that the two RCMP officers would be allowed to do so, with only commission counsel being able to question them directly. Victims’ families’ lawyers would be able to submit questions for commission counsel to ask.

A third officer, Staff Sgt. Andy Carroll, would testify in person over video conference, but only commission counsel would be allowed to question him.

In 13 hours over April 18 and 19, 2020, 51-year-old denturist Gabriel Wortman killed 22 people in northern Nova Scotia, beginning in Portapique, before being shot and killed by police at a gas station nearly 100 kilometres from where he began.

Rehill was the RCMP officer in charge in the first few hours of RCMP response to the mass killing. O’Brien, though off-duty at the time, assisted in giving directions to the first-responding officers. Carroll worked on mapping and containment planning at a nearby detachment in the first hours of the shooting.

Part of the reason for the commission’s decision is a shortened timeline — an inquiry that was once to take place over 15 months has had its timeline compressed to under nine months.

Part of that is being sensitive to not re-traumatizing people affected by the mass shooting.

And, according to commission senior counsel Emily Hill, given the first two factors, it was decided the pre-recorded video testimonies of Rehill and O’Brien, absent cross-examination by participant lawyers, was the best way for the inquiry to get the information it needed.

“The commission’s trying to understand what happened and learn from those who were on the front lines and making big, important decisions on those days, and then be able to take that information and put it into recommendations. That’s our main focus,” Hill said.

“It’s not just about drilling down on individual questions on their own. It’s also about allowing witnesses to reflect and share their experiences so we can learn from them again, not to point fingers, not to lay blame, but to make changes going forward.”

MacKay said, that in the face of “ongoing and episodic displeasure” from the victims’ families, the commission needs to directly address the doubts of those participants.

And that could be done, he said, by the commission acknowledging that its process is not working ideally, meeting with the victims’ families and their lawyers, and working on ways to alleviate those doubts, both in the minds of the families and that of the general public.

“We want to be careful about being sensitive to the impact on people, but not at the expense of getting to the truth. That’s what people start to get concerned about. Is this too high a price when it comes to fairly critical information on matters that a lot of people have concerns and suspicions about?” he asked.

“Because if the commission basically has lost the trust of key players, then whatever they do is greatly reduced as far as its credibility and effectiveness.”

Steve McKinley is a Halifax-based reporter for the Star. Follow him on Twitter: @smckinley1