Less than two weeks after the massacre that left 22 Nova Scotians dead, officials within the federal Public Safety and provincial Justice departments were already crafting a possible review of the tragedy, internal government documents show.
Emails obtained through freedom of information legislation reveal that scoping documents for a “Nova Scotia Shootings Review” were exchanged between senior public servants in both departments on May 1, 2020.
“Also looking forward to your thoughts on panel members and getting the name of someone to address the legal issues,” reads the email from deputy Public Safety minister Robert Stewart to Candace Thomas, deputy minister of Justice in Nova Scotia, along with other federal Public Safety staff.
On May 21, the province returned a “revised scoping document” to Ottawa, and by May 28, Public Safety Minister Bill Blair had approved a fourth version of those documents.
By the time that fourth version was circulated, the province had already received heaps of correspondence from legal experts, advocacy groups and private citizens demanding a full public inquiry into the attacks.
Both governments maintain the inquiry option was considered before a review was called on July 23, 2020, but critics who reviewed the internal documents question how thorough those efforts were, given how much work was done on a prospective review so quickly after the shootings.
“These documents contain statements made on May 1st that there was already a scoping document … which suggests that already, something was well formulated such that it had some structure,” said Dalhousie University law professor Archie Kaiser, who has advocated for a public inquiry since last spring.
“It doesn’t appear to have been a public inquiry, because the first iteration of ‘something’ was this totally inadequate and unsatisfactory review.”
An email thread started by Thomas, the deputy justice minister, on May 19, 2020, requests meetings with Ottawa to “advance” discussions of an “independent review (NS).”
The review announced by Furey and Blair two months later could not making binding recommendations to government, and had no power to compel witnesses, subpoena evidence, or challenge any organization that refused to provide information.
Both governments faced immediate backlash for their decision and an inquiry was called just five days later.
‘Premature to consider a public inquiry’
The 241-page package of documents obtained by Global News is limited in scope. It doesn’t capture oral conversations, for example, in which a public inquiry may have been discussed.
Pages of emails and instant messages are also redacted under clauses that prevent the disclosure of drafts, recommendations or advice to a minister; information provided in confidence to a government; and information that could “harm the conduct” or relations of the province.
Emails show, however, that as early as April 20, the day after the shootings, the Nova Scotia Justice Department and premier’s office received emails calling for an inquiry, but the government was not prepared to consider one until at least mid-May — two weeks after early scoping documents for a review had already been exchanged.
“It is premature to consider a public inquiry at this time,” wrote Mark Furey, then-justice minister, in letters to members of the public on May 11, 14 and 15, 2020. In those letters, and in another dated May 26, he also wrote he was “exploring all available options” to ensure Nova Scotians’ questions are answered.
Two days after the last letter, his department received a fourth version of review scoping documents from the deputy minister of Public Safety that had been “approved” by Blair.
Between April and June 2020, the provincial government did not publicly commit to one form of probe over another, leaving open all possibilities, including an inquiry.
The day before Ottawa sent the fourth draft of review scoping documents, then-premier Stephen McNeil said in an interview with the CBC’s Matt Galloway that Furey and Blair were working to determine “the appropriate mechanism” to delve into the attacks.
He also said a public inquiry “would certainly be one of the things we, as a government, would want looked at and be working to look at.”
On June 1, Furey said both the province and federal government aimed to advance the most “effective mechanism” to obtain answers, and on June 4, he referred to a “platform or medium” that’s as broad in scope as possible.
Neither the Nova Scotia Justice Department nor the Public Safety Department agreed to an interview for this story.
In writing, Justice spokesperson Heather Fairbairn confirmed the scoping documents exchanged in May 2020 did outline considerations for a “possible review” of the atrocity but declined to answer any other questions.
“As we said previously, we heard overwhelmingly from families, survivors and Nova Scotians on the importance of a public inquiry. The independent inquiry commission has now been established and their work has begun,” she wrote.
James Cudmore, director of communications for Blair’s office, said Canadians can “be assured that Public Safety officials worked hard to provide the best advice to Minister Blair, and to ensure the interests of Nova Scotians, and indeed, all Canadians were both protected and served.”
Cudmore said the analysis leading up to any government decision — such as the review called on July 23, 2020 — is “robust and deliberate,” considering all objectives, outcomes, structures and scopes.
“Advice and deliberation” led to the decision to announce a review, he added, but after hearing from families, advocates, survivors and members of Parliament, the department called a full public inquiry.
Kaiser said the provincial government’s open-ended public statements about the format of the probe last spring don’t appear to line up with the simultaneous work underway behind closed doors.
“There appears to be a considerable discrepancy between what the public said they wanted, especially the families, what the public was told by the government — ‘Oh it’s too early to consider a public inquiry’ — and what they were actually doing,” he said after reviewing the documents.
“Rather than exploring all options, pursuing something that was much narrower, and what emerged was this totally inadequate, and ultimately rejected, review.”
Kaiser is one of more than 30 Schulich School of Law faculty members who signed a letter on May 15 urging the province to initiate a public inquiry into the shootings. He has also called for the Mass Casualty Commission to investigate the circumstances under which the initial review was called, and then replaced with an inquiry five days later.
“There ought to be a complete sharing of documents and testimony that will explain the debacle that Nova Scotians and Canadians had to face: obfuscation and confusion for week after week when the public’s desires and legitimate expectations were entirely clear,” he explained.
Greg Marquis, a police historian, author and University of New Brunswick history professor, said in the absence of detailed explanations from either government of the consideration that went into a public inquiry, it’s a “fair inference” that one was not seriously considered in the immediate aftermath of the shootings.
“When the government is not transparent, it leads to the sort of conversations we’re having and speculation,” he told Global News.
He also characterized government suggestions that an inquiry would have taken too long to get answers as a “red herring.” The public inquiry into the 1992 Westray Mine disaster, in which 26 Nova Scotians were killed, was called in “less than a week,” Marquis explained, and court delays aside, it did its work in about the same amount of time as is projected for the current inquiry into the Nova Scotia shootings.
Lenore Zann, member of Parliament for Cumberland-Colchester, joined the chorus calling for a public inquiry in June 2020. She said, “of course (the governments) are going to consider all kinds of different options,” and she was “under the impression” a public inquiry was being considered.
While she was “disappointed” one wasn’t called at the first opportunity, she said there was likely a more nuanced conversation happening about options for a probe than is captured in the May 2020 emails.
“There are many conversations that go on in governments, between governments, within a government department and also within the bureaucracy itself,” she said.
“Sometimes the bureaucrats have ideas of their own that they then push on ministers and governments and they’re not the right decision, so I would advise that there could have been a lot more going on that we don’t know about, and that doesn’t meet the eye — but I don’t know, I wasn’t privy to it.”
Sandra McCulloch, a lawyer representing families of the shooting victims in a prospective class-action lawsuit, said it’s “really discouraging to know that what was happening behind the scenes was inconsistent with what was being conveyed to the public.”
“Based on the limited information that has become available, I think it’s fair to be suspicious, but certainly I would absolutely allow that there could be more information out there, more emails that haven’t been disclosed, more documents that haven’t been provided that maybe show that at the same time, there was an attempt to design an inquiry process in the same manner as this review process.”
Earlier this month, the Mass Casualty Commission announced its list of participants in the public inquiry, whose findings and recommendations are due in November 2022. At that time, a spokesperson for the inquiry confirmed commissioners would not investigate the process behind the ordering of a review, as “the creation of the Commission is not included within the Orders in Council.”