Lawyers representing the relatives of the 22 people murdered in the 2020 Nova Scotia mass shooting will retake their seats at next week’s mass casualty commission hearings, but they say their clients’ lack of confidence in the process remains.
Tara Miller, a lawyer representing the family of two victims, said in an interview Friday she will return to the public hearings beginning Monday, but “our return next week is by no means an endorsement of the decision made by the commissioners,” who prevented cross-examination of key Mountie witnesses.
Last week, lawyers representing the majority of the 22 victims’ families boycotted the commission proceedings at the direction of their clients. This was in response to the decision to prevent the families’ lawyers from directly questioning Staff Sgt. Brian Rehill and Sgt. Andy O’Brien.
“They’ve lost confidence,” Miller said. “While the lawyers will be there next week, I’m not sure what clients will be there.”
The commission said they agreed to allow the two witnesses to avoid being cross-examined and to testify through video instead of in person due to the officers’ unspecified health concerns. In response, the families of victims took to the streets last week in protest.
Patterson Law, which represents 14 of 22 families, said in a statement last week that their clients are “disheartened and further traumatized” by the commission’s decision. Patterson Law lawyer Michael Scott said in an email Friday his team will attend public proceedings next week.
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Miller said that on May 30, she told the commission she planned to table a motion amending the rules so family participants can question witnesses directly. She said she is waiting to hear back from the commission. The motion, she explained, is critical toward restoring confidence in the commission process for the victims’ families.
Many key RCMP witnesses have yet to testify at the hearing, Miller said, adding that all should be cross-examined.
“The deep concern from my clients and other families as I understand it, is that we will see this again,” she said.
Emily Hill, senior counsel for the mass casualty commission, told reporters Friday it’s possible the commission will grant further accommodations to witnesses that would allow them to avoid being cross-examined or testifying in person. But she said no further requests for accommodations have been made so far.
“At this point we haven’t received any other requests … but if we receive them, then we have to consider them,” she said.
“Family lawyers have been permitted to ask questions of almost every witness,” she said, and some questions asked in the recorded testimony came from families’ counsel.
Miller, however, said she was able to submit written questions to commission counsel, which she said does not equate to adequate questioning of witnesses. “It’s misleading for them to suggest that the ability to ask questions has been allowed.”
“What we’re advocating for is appropriate cross-examination, which is materially different than asking questions, putting them in writing and giving them to commission counsel to ask in place of us doing it ourselves with the appropriate followup,” Miller said.
Wayne MacKay, a professor emeritus at the Dalhousie University law school in Halifax, says it seems there was a lack of communication between the Mass Casualty Commission and the public about why the decision was made to exempt two senior RCMP officers from being cross-examined.
“I realize there is … personal health information that has to be respected. But even with that, the families have walked out with their lawyers for part of it,” he said in a recent interview.
“Surely, there needed to be a more fully developed and thoughtful communication about that whole process,” he added.
This report by The Canadian Press was first published June 3, 2022.
— with files from Michael MacDonald in Halifax