Just yesterday, 300 people — family and friends of victims of the mass murders of April 18/19 — marched on the Bible Hill RCMP detachment, demanding a public inquiry into the murders.
Today, Nova Scotia Justice Minister Mark Furey and federal Minister of Public Safety and Emergency Preparedness Bill Blair announced not an inquiry, but rather a three-member Independent Review Panel to look into the mass murders.
The panel will be chaired by former Nova Scotia Courts Chief Justice Michael MacDonald. The other two members are former Liberal cabinet member Anne McLellan and Leanne Fitch, the former chief of police in Fredericton. All three are well-respected, but it’s an open question as to whether they can gain public trust.
That’s because unlike a public inquiry, the review panel will not have the power to compel testimony, nor will it have subpoena power. The government ministers say, however, that all government institutions (i.e., the RCMP, but others as well) have agreed to “participate fully,” and if those government institutions don’t cooperate with the review panel, the panel “may notify the public about the lack of cooperation.”
In the event that the panel needs information from non-government institutions (such as telephone companies, banks, etc), the panel does not have the power to ask the court for production orders. But the government will assist the panel in those matters.
The Terms of Reference for the review panel calls its work to be “guided by restorative principles in order to do no further harm, be trauma informed and be attentive to the needs and impacts upon those most directly affected and harmed.” In short, the desire is to not further harm victims and family of victims through the process of the review. To that end, the testimony of those witnesses will not be public.
But documents and testimony from government institutions will also not be public, although the panel has the ability to refer to such documents and testimony in its published reports.
The panel is charged with producing an interim report on February 28, 2021, and a final report on August 31, 2021 — 15 months after the event.
Defanging the review panel before it begins its work
Under the terms of the Public Inquiries Act, either the federal or provincial cabinet could simply name the three panel members Commissioners, and they’d have the power to compel testimony and subpoena evidence, among other powers.
It’s curious that those powers aren’t being given to the panel, as that’s what Premier Stephen McNeil called for on June 4*, in response to a question from Global News reporter Elizabeth McSheffrey:
We want a joint commitment from both levels of government. We need the national government there. The process needs to be able to compel witnesses to come forward and it needs to have binding recommendations. For us, there needs to be a way for families’ voices to be heard. That families get the answers they are looking for… and it imperative in our view that the national government be a joint participant. We need them at the table leading this.
This afternoon, Rob Pineo, the lawyer representing the families of the victims, issued a statement on their behalf:
The “Independent Review” announced by Ministers Furey and Blair is wholly insufficient to meet the objectives of providing full and transparent answers to the families and the public, identifying deficiencies in responses, and providing meaningful lessons to be learned to to avoid similar future tragedies.
The choices of commissioners, and in particular Former Chief Justice Michael MacDonald, were thoughtful and appropriate for an inquiry. Former Chief Justice MacDonald is of the highest rank in judicial capabilities and is of unassailable integrity. That said, any decision-maker can only render decisions based on the information and evidence presented to them.
The announced “independent review” model, to be conducted in a so-called “non-traumatic” and “restorative” way, will prejudice the panel by restricting the evidence and information being presented.
In a public inquiry setting, such as was employed in the Marshall and Westray public inquiries, interested parties had the opportunity to question the witnesses. It is a very well-held maxim in our common law legal tradition, that cross-examination is the most effective truth-finding mechanism available. Without proper and thorough questioning, the panel will be left with incomplete and untested evidence upon which to base its decision. This is completely contrary to our Canadian notions of fair and transparent justice.
Most disappointingly, Ministers Furey and Blair have hidden behind their contrived notion of a “trauma-free” process to exclude the full participation of the families under the guise of protecting them from further trauma. This is not how the families wish to be treated. I know that Minister Furey has spoken with the families, so he must know that they want to participate, not to be protected by an incomplete process.
The families want a full and transparent public inquiry. Why will Minister Furey not give them this? Why will he not give the citizens of Nova Scotia this. “We are all in this together” has been the slogan throughout 2020 – the families simply want us all, the public, to be in this together now to figure out a better tomorrow for families and the Province?
One family member is Ryan Farrington. His mother Dawn Gulenchyn and stepfather Frank Gulenchyn were killed in Portapique. The gunman burned down their home shortly after killing Greg and Jamie Blair and Lisa McCully.
Ryan Farrington tells the Examiner he is “not happy” with the review panel announced today. Forty-year-old Farrington says the only thing that family members of all 22 victims of the gunman wanted was a public inquiry. He says the process “falls short.”
“It’s being behind closed doors that I don’t like,” says Farrington. “I think the magnitude of this deserves a full-out public inquiry with a judge where testimony is under oath. They keep saying they don’t want to dig stuff up and hurt the families more than they have already been hurt. But a public inquiry is the one and only thing we are asking for and I think we deserve that.”
Farrington supports the scope of the review, but, he says, “I really don’t trust Federal Minister Bill Blair and Nova Scotia Justice Minister Mark Furey.”
“I’m worried we may not get our questions answered; that certain stuff may be hidden from us or swept under the rug. All 22 families were behind a public inquiry, not a review.”
Process ‘without any legal or logical foundation’
Dalhousie University law professor Archie Kaiser described the decision to proceed with a review instead of a public inquiry as “astonishing.” He said the process outlined today is not transparent in the way it should be, nor is it independent.
“I thought that their defence of the methodology they’ve chosen was utterly without any legal or logical foundation,” Kaiser said in an interview.
“It’s as if they’re living in some kind of alternate reality, particularly on the points of independence and transparency that they allege would infuse the independent review. I don’t understand how they maintained their positions, frankly, with a straight face.”
Kaiser said family and friends of the victims, Canadian senators, women’s advocacy groups, and so many others have been very clear in their demands for an open public inquiry. He called it “astonishing” that their input was disregarded.
“If I were a family member, I would be outraged that the minister said, ‘Oh, well we’ve heard what the families want, but effectively we know better.’ What a message to give,” he said.
Review ‘complete opposite’ of transparent approach
Kaiser believes that despite assurances from ministers Furey and Blair that this approach is transparent, the process as outlined Thursday is “the complete opposite.” He said that’s in part because the general public won’t have any means of assessing the work until an interim or final report is released.
“Everything is going to be heard and kept in confidence and we won’t know necessarily who provided information, we won’t know how to assess it ourselves, until the interim or final report or some other communication,” he said. “The minister is entirely incorrect in saying that this process is transparent. It is not.”
By contrast, Kaiser said an open and modern public inquiry is often simulcast with documents and exhibits available to the public to ensure full transparency. It would provide people with the opportunity to continuously assess the inquiry’s work before any final public report. They could ask questions via the media or independently.
“There’d also be chat rooms everywhere, there’d be letters to the editor, there would be the usual attributes of a free, democratic culture where people would be saying what they think about the evidence, what they think about the commissioners,” he explained.
“That process deserves to be honoured, but that it isn’t going to be possible here.”
Kaiser said under the federal Inquiries Act or the provincial Public Inquiries Act, inquiry commissioners have all the powers of a Supreme Court judge in a civil litigation case. They’re fully empowered to demand witnesses attend and bring documents, and they can compel them to testify.
“They (can) also tell the witnesses that they’re liable for crimes of perjury or making contradictory statements if they lie,” he said.
“That’s a normal guarantee of independence. The commissioners decide who they’ll call, they don’t need anybody’s approval, they don’t need the intervention of the minister.”
Although he describes the three panel members as well-qualified and sincere people, Kaiser said having good people onboard isn’t sufficient because the normal structural guarantees of transparency and independence are missing.
Kaiser also described the idea that an independent review would be trauma informed with a harm reduction approach as “deeply problematic” because it suggests a public inquiry wouldn’t have those same attributes.
“That I regret to say, is just nonsense, and I say that because for example, families in a modern inquiry are normally given full party status and can have their legal counsel there protecting the interests of the family and their loved ones,” he explained.
“And inquiry commissioners go out of their way in 2020 to be respectful of family input and to be compassionate towards their suffering, so it’s not as if a regular public inquiry is this brutish insensitive vehicle that hurts families.”
He also said he was “appalled and astonished” that Blair and Furey didn’t apologize to the victims’ families, advocacy groups, senators and members of the public who asked for a full public inquiry. He speculates the uproar over the route they’ve chosen may force them to consider “going back to square one.”
That’s an option he described as entirely possible because the independent review is “a product of the ministers’ decisions” on the terms of reference. Kaiser said they could decide they’ve made a mistake, end the independent review process, and proceed instead with a public inquiry.
“I’d like to see what should have been done from the outset, which is to have an inquiry that’s convened under a statute with appropriately rigorous terms of reference, headed by people who are well viewed with the roles of public inquiries,” he explained.
“I’m not saying these reviewers are not, but what you would expect are really good people that are going to do all their business in the open and in public with no ministerial intervention and no reason to be supplicant to ministers.”
Outraged by today’s decision
The executive director of Adsum for Women and Children said she, her colleagues and many former colleagues with whom she’s spoken were “outraged” by today’s decision.
Sheri Lecker said those working in the field of domestic and intimate partner violence suspected very early on the killer’s actions were rooted in misogyny, and they stood firmly behind the families in demanding a public inquiry to ensure full transparency.
“We’re outraged, and always we stand first and foremost with the families and loved ones and victims,” Lecker said in an interview.
“They’ve talked about what they need in order to heal and that’s who we have to listen to. We may not be comfortable, we may be afraid of what we have to listen to as well, but our job is to listen to the people who are at the centre.”
Like many Nova Scotians, Lecker said she consumed media reports about yesterday’s event where 300 family members and friends representing the 22 victims showed up for a march demanding nothing less than a full public inquiry.
“The families told you what they want and need to heal, and then these former police officers once again are telling us ‘Oh this is really what you need, we’re going to look after you, we don’t think you can handle the real truth,’” Lecker said.
“To have Mark Furey sitting there telling us that it’s going to be restorative because this is what families need when they have been so clear about what they need and want, it just breaks my heart. I was enraged on their behalf.”
Lecker said she personally has serious concerns about a lack of transparency in any review process, especially when media outlets (including the Halifax Examiner) are in court fighting for access to public search warrants and documents related to the tragedy.
“We have governments fighting to continue to redact, as you’re (media) trying to remove those redactions,” she said. “There’s information they don’t want us to have. We know that already. I want to know what they don’t want us to know.”
Lecker said the public has already learned through media reports some disturbing pieces of information, including how one car was returned to a family member with traumatizing contents from the crime left inside.
“To tell victims’ families that they wouldn’t be able to handle an inquiry is just not acceptable,” she said. “If that could happen, why could they not hear the details that they’re actually asking for?”
* due to an editing error, as originally published this article misstated the date of the scrum.
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