Cross-examination isn’t the only valid — or always best — truth-seeking method of testing evidence. And, in light of last week’s controversy over Lisa Banfield’s appearance before the mass casualty commission, it’s worth asking whether the truth was all that was being sought.
“We keep getting confronted by people who seem to have a perception of what a cross-examination is from television,” [Michael Smith, lawyer for families of victims of the Nova Scotia mass shooting] said. “They say, ‘Why do you want to berate this person?’ That really shows a misunderstanding of what this is.” The principles of cross-examination and testing a witness’s evidence through questioning have been a foundation of the courts for centuries, he said.
Globe and Mail
July 13, 2022.
Well, yes but no.
The notion that cross-examination is the only valid — or always best — truth-seeking method of testing evidence may fly in a first-week, first-year law class, but anyone who has spent any time in a courtroom knows that truth is, at best, an occasional by-product of cross-examination.
In the real world, cross-examination is mostly about undermining the credibility of the other side’s witnesses, about establishing a narrative that supports the interests of the lawyer’s client.
That’s not necessarily a bad thing. But it can be.
Consider just one high-profile Nova Scotia court case I covered and which the chief commissioner of this inquiry, Michael MacDonald, presided over.
Former Nova Scotia Premier Gerald Regan had been credibly accused of sexually assaulting more than three dozen women. The most serious allegations became the subject of a 1998 trial. Regan was found not guilty of all charges.
Why? Because, thanks to rigorous cross-examination, we learned the truth?
No. Because Regan’s lawyer, Fast Eddie Greenspan used his cross-examinations to berate, hector, humiliate and undermine the complainants — not about what they said Regan had done to them, but about who they were. Greenspan spent days “proving” that one of the complainants had lied once when she was a teenager so she would be placed in a grade with children her own age. You lied about that, you’d lie about anything, became Greenspan’s mantra for days. He attacked another woman for not being able to locate the quarry where she said Regan had raped her 30 years before. There is no quarry, there was no rape. There was a quarry, but the damage was done.
So, if you think cross-examination is a pristine path to truth, I have a bridge or three I’d be happy to sell you.
Don’t get me wrong. I do wish the Mass Casualty Commission had not decided — unilaterally and in advance — to allow Lisa Banfield, the long-time common-law partner of the man who murdered 22 Nova Scotians, to answer questions last week only from commission counsel. At the very least, the commissioners should have worked with counsel for other participants to find a better way for Banfield to be questioned, if only to avoid the kind of wrong-headed attacks on the commission’s overall credibility by advocates like Scott, who has now publicly dismissed the commission as “a three-ring circus.”
That’s another question for another day.
Let’s explore the Banfield issue more closely.
What was it that lawyers for the families were so eager to ask Lisa Banfield that they didn’t already know?
Keep in mind that Lisa Banfield was not only interviewed four times by the RCMP but on five separate occasions by the commission’s investigators and lawyers. Before each of those commission interviews, lawyers for the families and other participants were invited to submit questions that the commission counsel would ask. In advance of Banfield’s testimony on July 15, they were invited again to submit questions. During breaks in her day-long testimony, they were invited to raise potential follow-up questions or raise other issues.
Many of the families chose to boycott instead. “We have communicated to the commission that we won’t be submitting questions unless our instructions change,” Scott said in advance of Banfield’s testimony. “The concern is No. 1, it serves no function. Simply writing our questions and giving them to commission counsel is not an effective way to get those questions answered. Secondly, we are resisting any sense of legitimizing the process as it has been proposed. As it stands now, what’s going to happen on Friday is not anywhere near what we would consider to be witness testimony.”
What was it they wanted to know so badly? And what was it that they couldn’t have asked — and had answered — through commission counsel?
Here’s what Michael Scott told the Globe and Mail:
Many of the questions his clients want answered are focused on the story Ms. Banfield told police after the mass shooting. In particular, they want to know how she freed herself from the handcuffs she said the gunman put her in and how she managed to survive a night hiding in the woods in sub-zero temperatures wearing nothing but a T-shirt and yoga pants, he said.
Those questions seem to suggest Scott doesn’t believe Banfield’s version of events or is at least skeptical. They fit, rather too nicely, with fact-free internet conspiracy theories that Banfield was part of some scheme with GW to perpetrate the mass murder.
One might suggest — with respect, as they say in the courts — that Scott re-read Banfield’s testimony or the 23-page section of the foundational document Perpetrator’s Violence Towards His Common-Law Spouse that focuses on “April 18, 2020: Immediately Preceding the Mass Casualty.”
That document is not only based on Banfield’s recollections during those five in-depth interviews with the commission, four with the Mounties and her video re-enactment of the events of the night of April 18, but also on evidence gathered at the scene by investigators.
For example, Banfield described the moments after GW set their Portapique cottage on fire as the rampage was beginning.
The perpetrator and Ms. Banfield began walking towards the path back to the warehouse. When they reached the middle of Portapique Beach Road, Ms. Banfield got on the ground and began screaming and trying to kick him away from her. She was unsuccessful: “He’s bigger than me and he got on me, and then he took my sneakers and threw them and I didn’t have socks on, cause I didn’t have time to put socks on.” …
Ms. Banfield described her sneakers as “black Nike” sneakers. During the RCMP’s search of the Portapique area following the mass casualty, a pair of sneakers were located and logged in the Exhibit Ledger as “Nike shoe” located on “200 Portapique Rd.” Photos of the shoes appear below…
During her RCMP interview on April 28, 2020, Ms. Banfield was asked if she lost any jewellery that night. Ms. Banfield responded that she might have been wearing a gold chain and pendant that “was round and had an angel on it” during this incident. During the RCMP tact troop search of Portapique, a pendant with a chain that matched the description given by Ms. Banfield were located in the woods and logged in the Exhibit Ledger as “pendant & chain,” located on “path 200 Portapique Rd.” Photos of the pendant and chain are below.
So, photos… And physical corroboration of the story she told.
Later, inside the warehouse at the back of the cottage…
The perpetrator demanded that Ms. Banfield get up. She stayed on the floor and continued pleading. When she refused to get up, the perpetrator fired his pistol into the ground on either side of her. Ms. Banfield told the Mass Casualty Commission that she does not know whether the perpetrator shot “down on the floor” or somewhere else, but after she heard the two shots on either side of her…
The RCMP Forensic Identification Services team conducted a search of the perpetrator’s burnt warehouse after the mass casualty. In his occurrence report of the scene, Cpl. Kevin Redden noted that “3 shell casings were located by [Cpl. Justin Anthony] in the area just east of the southwest corner. One casing was ruptured, one had the projectile still in place and the third was empty. In all three casings the primers were empty and were consistent with having been burnt out.”
More corroboration for her “story.”
What about Scott’s doubts about how Banfield “freed herself from the handcuffs she said the gunman put her in?”
They were inside [the warehouse] standing by the bar area when the perpetrator pulled out a pair of handcuffs and handcuffed her left hand. When the perpetrator demanded her other hand:
… I said [perpetrator] please just don’t do this, ‘cause I thought, I don’t want to be confined, ‘cause I’ll need my hands if I have, if I have any chance to get away…
Ms. Banfield refused to give the perpetrator her second hand so that he could finish applying the handcuffs…
Later, locked in GW’s fake police cruiser, Banfield says she…
… then managed to slide the handcuff from her left hand. In her interviews with the Commission, Ms. Banfield described sliding the handcuff off her wrist while in the back of the replica RCMP cruiser:
Lisa BANFIELD Oh, while I was in the back seat. That’s the thing. While I was in the back seat, the whole time I was ripping it off me ‘cause I thought, I don’t want to be confined. And I felt like I was confined. I mean, I still have the scar, but I just kept pulling and pulling and ripping it off me. And I didn’t care how much it hurt, I wasn’t even thinking that I just wanted it off me, because I felt confined.
One hand handcuffed… Still have the scar… Investigators later located a badly burned set of handcuffs near where the fake police car was found.
Investigators cannot determine if these were the handcuffs that Lisa Banfield had on that night although the circumstances suggest that they may be. [Emphasis added.]
How about Banfield’s actual escape from the backseat of the fake police car, which was separated from the front by a plexiglass barrier and the rear doors of which could not be opened from the inside?
That must be suspicious.
Luckily, Banfield’s sister was able to provide previously taken photos of the inside of the cruiser with its plexiglass silent patrolman showing the slider opening, which was large enough for Banfield to crawl through and escape while GW was otherwise occupied.
To answer Scott’s skeptical question of how Banfield “managed to survive a night hiding in the woods in sub-zero temperatures wearing nothing but a T-shirt and yoga pants,” let’s return to the foundational document.
At 6:30 the next morning, soon after Banfield emerged from the woods where she’d been hiding overnight, police officers arrived on the scene. Cst. Ben MacLeod described her as being “in a state of terror and had a distraught dishevelled appearance… completely distraught, emotional, upset… extremely fearful… a quivering voice… The best way to describe it other than distraught, she was scared, fearful for her life, that he was coming to get her.” He told investigators later “he had only seen one other person in his career who was petrified to the same extent: a woman who had been kidnapped and held for three days.”
Another corporal, Duane Ivany, a trained medic and a coordinator of an RCMP Emergency Medical Response Team, conducted a preliminary medical assessment of Banfield. He said he was confident she was “hypothermic.”
She appeared very cool and clammy, her skin was very pale, she was shivering, you could see the bluish in her lips. And looking at her clothing, and when you feel, even through her shirt, where she said she had the pain, you could feel that her body was cold. So, the lack of her body to circulate heat indicated to me that she was outside for an extended period of time.
There is more of that sort of observation from other officers who dealt with her that morning, including Cst. Terry Brown, who told investigators he had “‘dealt with a lot of domestic violence type files’ in his work as a police officer, and that based on his interactions with her, Ms. Banfield’s actions were ‘consistent with somebody who had been the victim of domestic violence in the past.’”
Oh, and then there’s this — A Summary of Medical Records — that shows that, after her night in the woods, Lisa Banfield spent five nights in the Colchester Regional Hospital where she was treated for her injuries, which included….
“many superficial abrasions, basically on her hands, feet and legs.” Doctors also noted that Banfield had a contusion on her scapula and a fracture posterior to the medial right eleventh rib and fractures of the transverse processes of L1 to L4.
She was discharged on April 24, 2020. The discharge report noted the “Most Responsible Diagnosis” as: Assault with trauma and transverse process fractures of L1 to L4 and right rib fracture.”
She is, she told the commission Friday, is still on various medications she didn’t take before the shooting.
So, what was it that Scott really needed to find out in cross-examination? And why?
At the end of the day — unless there really is some factual basis to support the conspiracy theories, evidence of which has never been presented — how does rehashing an already detailed account of what happened to a victim of domestic violence in the woods on the night of April 18 have to do with advancing the commission’s mandate, which is to “inquire into what happened and make findings on…”
- The causes, context and circumstances giving rise to the April 2020 mass casualty;
- The responses of police, including the Royal Canadian Mounted Police (RCMP), municipal police forces, the Canada Border Services Agency, the Criminal Intelligence Service Nova Scotia, the Canadian Firearms Program and the Alert Ready program;
- The steps taken to inform, support and engage those most affected.
How important is it to question the minute details of how Lisa Banfield survived her seven hours in the woods while Gabriel Wortman was holed up in a gravel parking lot in Debert preparing to strike again?
Which raises a question. Could there be another agenda at play here?
On February 5, 2021 — soon after Lisa Banfield and two of her relatives were charged with illegally supplying ammunition to the gunman — lawyers for the families filed amended court documents adding Banfield to its list of defendants in their already filed class action lawsuit over the killings.
The filing alleged that Banfield “was aware of and facilitated [the gunman’s] preparations, including but not limited to, his accumulation of firearms, ammunition, other weapons, gasoline, police paraphernalia and the outfitting of a replica Royal Canadian Mounted Police vehicle.”
The police — it’s important to note — never suggested that Banfield or her relatives had any idea of what the gunman was planning, and the charges themselves were later referred to a restorative justice process, which means that if she completes the process, she won’t have a criminal record.
But if you were the law firm seeking information to bolster a class action lawsuit in which you claim Banfield’s participation wasn’t “limited to” providing ammunition, you’d probably be keen to find ways to undermine her credibility about anything and everything.
It’s worth noting that the law firm behind that class action lawsuit is Patterson Law, the same firm for which Michael Scott also works.
I ask again — could there be more than one agenda at play here?
A version of this column originally appeared in the Halifax Examiner.
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