Too much happening ‘behind closed doors’ at inquiry into N.S. shooting spree, experts say

Click to play video: 'Public hearings for Nova Scotia shooting delayed by months'
Public hearings for Nova Scotia shooting delayed by months
WATCH: Tuesday was supposed to mark the beginning of another phase in the painful process of understanding the shooting spree that shook N.S. in April 2020. But public hearings are being delayed by months and some say that raises new questions about transparency in the process. Sarah Ritchie has more – Oct 25, 2021

It’s the public inquiry that so far has happened mostly in private.

The Mass Casualty Commission (MCC) is tasked with examining how and why a gunman dressed as an RCMP officer killed 22 people in rural Nova Scotia last year during a 13-hour shooting spree.

The commission was launched in July 2020 following intense public backlash over the government’s decision to hold an “independent review” into the killing spree rather than a public inquiry.

At the time, victims’ families, lawyers and members of the public were angry about the decision, claiming anything less than a full-scale inquiry would obscure the truth and potentially shield the RCMP and others from scrutiny.

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On its website, the commission promises that its work will be “inclusive, accessible, transparent, and conducted with humanity.”

Now, 15 months later, legal experts tell Global News they’re concerned that too much of the inquiry’s work is happening “behind closed doors.”

They also say they’re concerned that the RCMP, whose actions are being investigated by the commission, has been given a chance to privately review, comment on and potentially challenge documents that outline the basic facts of what happened during the killing spree.

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RCMP and CBSA subpoenaed by Nova Scotia’s mass shooting inquiry

Global News asked the commission if draft versions of these documents will be made public. The commission did not answer this question, but said it wants its summary of the facts to be the “most comprehensive and accurate” version possible before sharing it with the public.

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The commission also said sharing information with participants before releasing details to the public will allow it to identify any “issues or gaps” in its understanding of what happened during the killing spree.

The RCMP, meanwhile, said its submissions to the commission during this phase of the inquiry “will not be made public,” according to the rules established by the MCC.

“Public is the first word in public inquiry,” said Wayne MacKay, professor emeritus at the Schulich School of Law at Dalhousie University in Halifax.

Commission needs public presence

Aside from a handful of open houses in rural Nova Scotia and a few online updates, nearly all of the commission’s work to date has occurred in private.

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This is a problem, MacKay said, because Canadians want to know that the commission is doing its work in a transparent and open manner.

“People are eager to have a bit more public presence from the commission,” MacKay said. “They’ve certainly been busy doing a lot, but much of that has been behind closed doors.”

MacKay said he understands why the RCMP and other participants are allowed to review documents and offer submissions to the commission. But, he said, this work should happen in the open, with the public’s knowledge and full participation.

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This is especially important given how little trust many people have in the RCMP because of perceived failures with its response to the killing spree, he said.

“If they’re allowed, as they appear to be, to make submissions about the facts without making that public, that’s concerning,” MacKay said.

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The list of participants who are allowed to review and offer submissions on the commission’s “Foundational Documents” before they’re shared with the public includes the RCMP, various police unions, the provincial and federal governments, victims’ families and the gunman’s common-law spouse.

The RCMP’s response to the killing spree has been widely criticized by public safety and policing experts, as has the response of provincial emergency management officials.

The gunman’s common-law spouse and two of her relatives have been charged with illegally providing the gunman with ammunition that was used in the attacks.

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The police have said that neither the gunman’s common-law spouse nor her relatives were aware of the gunman’s actions prior to the killing spree and that they have co-operated with investigators.

The commission, meanwhile, insists that sharing these details with the police and other participants before sharing anything with the public is a normal part of the process and that these kinds of behind-the-scenes exchanges happen as a “matter of course” during public inquiries.

In an email sent to Global News, a spokesperson for the commission said establishing the facts of what happened during the killing spree is being done in private as a means of “preventing the spread of misinformation” and to make sure the Foundational Documents are “as accurate as possible” when released.

“As we move into public proceedings at the end of January and February, that’s when the public will have the opportunity to really have the answers to the questions that they have about what happened,” said Emily Hill, a lawyer who represents the commission.

Commission is being ‘paternalistic’

On Oct. 13, the commission announced that it is delaying public hearings into the shooting spree until February 2022. That’s four months later than they were scheduled to start.

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The commission said one of the reasons for the delay is because it’s taking longer than expected to review and redact the roughly 40,000 pages of information it’s gathered.

Redactions are being made to protect the privacy of certain individuals, including children, the commission said. This means hiding phone numbers, birthdates, addresses and other personal information.

But the commissioners are also redacting “graphic” information that they believe the public doesn’t need to know in order to understand what happened during the killing spree. This could include specific details and photos from crime scenes or facts that the commission thinks could be harmful.

“It appears to be just an excuse not to disclose what may be damaging information or information critical of the police,” said Adam Rodgers, a lawyer involved in a separate inquiry taking place in Nova Scotia.

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Rodgers represents the Desmond family in the inquiry looking into Lionel Desmond, a military veteran who murdered his wife, mother and daughter before killing himself.

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He said the commission is being “paternalistic” in its approach and that efforts to shield the public from the worst of what happened during the killing spree are a potential overreach.

“These witnesses need to be heard and cross-examined,” Rodgers said. “That’s the best way to uncover what really took place.”

The commission said final versions of its Foundational Documents and source materials will be shared with the public before the start of public proceedings. It also said commissioners are redacting certain graphic material to avoid voyeurism and out of respect for the victims and their families.

Once public hearings begin in February, commissioners and authorized participants will be able to challenge facts and evidence in an open forum, the commission said.

The commission is planning to hold public proceedings between January and July 2022.

The commission must complete an interim report by May 1, 2022 and submit a final report six months later.

These reports will be shared with the Nova Scotia and federal governments, which will then decide when and how to release them to the public.

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