Will the mass casualty commission report even matter?

Last week, Examiner editor Tim Bousquet asked ‘What’s the point of the Mass Casualty Commission?’ In his column today, Stephen Kimber offers a (slightly) more hopeful take. He says it’s too soon to know.

The Mass Casualty Commission, with (left to right) commissioners Leanne Fitch, Michael MacDonald, and Kim Stanton, in February 2022. Pool photo by Andrew Vaughan/ Canadian Press

So… is it already too late for the Mass Casualty Commission’s final report to matter?

Was its credibility irreparably shredded even before it began, thanks to the circumstances of its unwanted-by-governments birth? By its ever-escalating costs? By the encyclopedic weight of its mandate? By its slowness in beginning its public hearings? By its overly trauma-informed interpretation of how it should go about its business? By its seemingly restrictive rules around questioning important witnesses? By endless, earnest research reports, expert opinions, round-table discussions and panels delving into broader social issues like domestic violence that few seemed to pay attention to and even fewer believed the commission’s consideration would improve? By the by-now inevitable cover-up conspiracy theories that have dogged its every decision? By an unrealistic, too tight deadline to complete its work.

My own answer to my first question is that we don’t simply know. Not yet.

Let’s circle back to those other issues.

The public inquiry into the horrific mass murders of April 2020 did not get off to an auspicious start. Neither Ottawa nor the provincial government wanted one. Instead, they announced a review they could limit and control.

The families of the victims rightly pushed back, the governments eventually backed down and created a public inquiry with a broad mandate and a restricted timeline.

The families’ success in forcing governments to change their minds gave some among them a sense of empowerment and entitlement. They felt they now had the right to direct the process.

But the inquiry’s broad mandate (“causes, context and circumstances”) meant that this was never just about them or the deaths of their individual loved ones.  Intimate partner violence, family violence, gun regulations, police responses, public alert systems…

At the same time, the inquiry’s restricted timeline — its work is supposed to be done and dusted by November 1, less than two years after it began — created an impossible burden for the commission.

Oh, and then there was COVID. The mass shooting happened early in the pandemic and the inquiry’s work was inevitably slowed and hampered by its ongoing impact.

Oh, and then there was its trauma-informed mandate. That’s a reflection — for good and ill — of the times in which we live. But the commissioners’ understandable desire not to retraumatize families already traumatized by the events of April 2020 quickly smacked up against the reality that many of those same families felt they were being more re-traumatized by the commissioners’ attempts to protect them.

Instead, the main beneficiaries of the commission’s trauma-informed approach seem to be some RCMP officers whose union and lawyers asked for special treatment for them.

It’s worth noting that only six witnesses asked for accommodation to testify. One was denied outright, two were allowed to testify as a panel and three were granted various other levels of accommodation.

So far as we know, none of the Mounties’ most senior officers — the ultimate decision-makers — have been excused or will be accommodated. Darren Campbell and C/Supt. Chris Leather will testify for two days each this week. In late August, Lee Bergerman and Brenda Lucki are scheduled to appear

That said, the inquiry’s timeline means not every question will ultimately be resolved by testimony and/or cross-examination.

Let’s consider two examples.

Two on-the-ground RCMP officers provided investigators with different accounts of what they did in the first seven minutes after they arrived at the scene where Heather O’Brien had just been shot by the killer.

Their memories of which one did what when in those chaotic minutes differ. Each remembers being the one to open O’Brien’s car door, check her pulse and believe — briefly — that she might be alive.

What appeared to make that discrepancy significant was the fact that O’Brien’s family later said they had data indicating her FitBit continued to show a pulse hours later.

Did the police leave her to die?

The commission didn’t call either officer to provide public testimony. Why not?

Well, consider their full statements to investigators and then fast forward to how those first six minutes ended.

One officer, a trained medic, who initially said he’d thought he’d detected a pulse with his thumb had called for a LifeFlight air ambulance.

His partner, also a trained medic, wasn’t so sure. Given the gravity of her injuries, he wondered if what his partner had felt was the result of his own adrenaline, or perhaps the result of hopeful tunnel vision.

He suggested they perform “a systematic parallel check of the pulse at her carotid, brachial, and femoral arteries for 10 to 15 seconds each. They did not detect a pulse. Cpl. Ivany then conducted a pupil check with his flashlight and found them unresponsive. Due to these findings, and the severity of her injuries, he determined that Ms. O’Brien was deceased.”

The commission did call the chief medical examiner, who ultimately conducted the autopsy on O’Brien, as a witness. His expert testimony — based on 16 years’ experience — was that her death had been instantaneous or had occurred within minutes.

The unscientific FitBit data didn’t change his view.

He was, it should be noted, cross-examined.

The other example involves retired RCMP constable Troy Maxwell, who responded to a 2013 complaint from Brenda Forbes about GW, the man who would become the mass killer.

We have testimony from Forbes, that the complaint involved an alleged domestic assault by the killer on Lisa Banfield, his common-law spouse.

Maxwell denied that to investigators. He claimed the complaint had been about the killer driving dangerously on local roads in a replica Mountie car.

In her own testimony, Banfield not only confirmed the assault happened as Forbes had described but also testified that the killer didn’t own a replica RCMP car until six years later.

That’s a significantly different version of events. And it’s important because it raises questions about how seriously the Mounties took allegations of domestic abuss, including, in particular, by GW himself.

Maxwell was called to testify. He stuck to his original story, but during cross-examination by one of the lawyers for the families — yes, they were able to ask questions — he offered a telling explanation of why he hadn’t bothered to seek statements from those whose names he wrote down, including Banfield’s, before closing the file.

“We don’t have the ability to sit around and say, ‘Oh yeah, we’re going to spend an hour on this,’” he testified.

We don’t know what the commissioners will make of Maxwell’s testimony — or, really, anything else they’ve heard. Other than emphasizing that the inquiry is trauma-informed, they haven’t said much.

They will have plenty to consider. There are now more than 60 so-called foundational documents, supplementary reports and policy documents, deep dives into everything from minute-by-minute accounts of what happened when during the killer’s rampage, to his family and personal history of violence, to his financial misdealings.  Those documents include cross-referenced investigator interviews, statements, audio recordings, photos, transcripts of police calls, etc.

And all are available to anyone with just a few mouse clicks. They’re worth a read.

Despite suggestions from some critics that the commission was created to exonerate the RCMP, those documents paint a damning picture of police incompetence and failure at every level.

The commissioners will have all of that to consider.

Plus, there are close to 20 more research and technical reports on everything from “Communications Interoperability and the Alert Ready System,” to “Crime Prevention and Community Safety in Rural Communities,” to “Police and First Responder Decision-making During Mass Casualty Events.”

Not to forget the transcripts of all the roundtables and panels that have occupied the commissioners’ attention during the public hearings.

Does any of that matter?

In Thursday’s Morning File, my colleague, a frustrated Tim Bousquet, who has probably spent more time and energy covering this story than almost any other journalist, asked “What’s the point?”

For sure, the inquiry has helped us understand what happened before and during the murders of April 18 and 19, 2020. There is a veritable treasure trove of documentation released, the likes of which I’ve never seen publicly available before.

And the inquiry is at least raising important questions about the “why?” of it all, questioning that looks at issues of policing, emergency responses, care for first responders, how next-of-kin notifications work, intimate partner violence, political and bureaucratic intervention in police operations, and more.

In November, the three commissioners will release their final report, including a long list of recommendations. I have no doubt the recommendations will be thoughtful, and also that they will mostly be ignored.

He may be right.

But he may not be.

Many people, including some critics of the current commission, consider the 1990 Royal Commission on the Donald Marshall, Jr., Prosecution to be the “gold standard” for such inquiries.

We tend to remember its key factual finding — that Marshall, who’d spent more than a decade in prison for a murder he didn’t commit, was failed by the criminal justice system…

at virtually every turn, from his arrest and wrongful conviction for murder in 1971 up to, and even beyond, his acquittal by the Court of Appeal in 1983. The tragedy of the failure is compounded by evidence that this miscarriage of justice could — and should — have been prevented, or at least corrected quickly, if those involved in the system had carried out their duties in a professional and/or competent manner. That they did not is due, in part at least, to the fact that Donald Marshall, Jr. is a Native.

But, as the commission itself pointed out a few paragraphs later, its role was not…

just to determine whether one individual was the victim of a miscarriage of justice, or even to get to the bottom of how and why that miscarriage occurred. The Nova Scotia Government, which appointed this Royal Commission on October 28, 1986, also asked us to “make recommendations” to help prevent such tragedies from happening in the future.

The commission’s final report, which ran to seven volumes, included research studies that — like the various research reports and roundtables of the current mass casualty commission — were largely ignored by the media and the public as they unfolded. But they helped shape the most far-reaching of the report’s 82 recommendations.

These covered legal procedures for righting wrongful convictions, as well as new criminal justice system policies regarding visible minorities, and police. They recommended, for example, that the Crown make full and timely disclosure to the defence of all relevant information. The commission also recommended that public provincial prosecutors remain totally independent from any political interference. These prosecutors, argued the commission, should be answerable only to a province’s legislature, not the attorney general. In the case of federal prosecutors, they are answerable to Canada’s Parliament…

The Marshall Inquiry’s recommendations led to the creation of the first independent public prosecution service in Canada. As well, the Nova Scotia Barristers’ Society established its first race relations committee. The inquiry and its recommendations helped bring more inclusion and diversity to Nova Scotia’s and Canada’s law schools and public service.

No one will pretend the Marshall report ended racism in the criminal justice system in Nova Scotia, or that all its recommendations were implemented.

As Michelle Williams, the then-chair of the Dal Law School’s Indigenous Blacks a& Mi’kmaq program — itself a result of the report — told a 2018 panel on the report’s impact: “Many of the Marshall Commission’s recommendations have yet to be implemented… There are no specific restorative justice programs. Black and Indigenous peoples are still overrepresented in the criminal justice system.”

Still… I think it’s fair to say the Marshall commission not only led to some significant positive changes but also changed the conversation around race in Nova Scotia.

Can the Mass Casualty Commission do the same for issues around gun violence and gender-based violence?

I don’t know.

It will depend.

On the report that the commissioners write.

On the willingness of governments to address the recommendations.

And on our own individual and collective commitment as citizens to push for change.

I live in hope.

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A version of this column originally appeared in the Halifax Examiner

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