More than two years after gunman Gabriel Wortman went on a shooting spree that killed 22 people in rural Nova Scotia, questions of why and how this atrocity happened still weigh heavily on Nova Scotian hearts. Families of the victims and the citizens of Nova Scotia have demanded accountability from the authorities under whose watch this massacre occurred in April 2020.

The governments of Canada and Nova Scotia established a commission, simply called the Mass Casualty Commission, in October 2020 to investigate the Royal Canadian Mounted Police’s (RCMP) response to the shooting. The RCMP’s actions have attracted widespread criticism from members of the Nova Scotian public, who say that, if the RCMP acted appropriately, the shooter would not have claimed 22 lives.

Law professor Kent Roach of the University of Toronto wrote in an op-ed that the RCMP’s response exemplified a pervasive issue with its policing model and argued that the RCMP should reorganize to allow for more local-oriented policing. He cited testimony from the commission that said RCMP called in reinforcements from the neighboring province of New Brunswick instead of the nearby town of Truro. Inadequate RCMP staffing, according to Roach, was also partially responsible for the extent of the massacre.

The Mass Casualty Commission was created to investigate the events that led up to the shooting and to make recommendations on how a similar tragedy could be avoided in the future. However, the Commission is not a civil court. The Commission’s Interim Report says “Public inquiries are often defined by what they are not: neither criminal trials nor civil trials… This Commission, like all public inquiries, is prohibited from making findings that could be seen as conclusions of criminal or civil liability.”

In addition, the Commission is undertaking a “restorative” and “trauma-informed” approach. This means that the Commission’s hearings will be structured in a non-adversarial manner and in such a way to avoid distressing those who were involved in the tragedy.

In an ironic twist, the Commission has also become the subject of criticism due to its non-judicial character and trauma-informed approach. Certain actions, like the Commission’s reluctance to compel RCMP officers to testify, have led to accusations that the Commission is putting the protection of officers over truth.

The RCMP’s response to the April 2020 shooting

To understand the Mass Casualty Commission, we have to look at what questions and criticisms it was created to address. Before the shooting happened, Wortman was known to the police. He pled guilty to assault in 2002, and he was reported to the police for domestic violence in 2013. The gunman had an unusual interest in law enforcement; he decorated a car to look exactly like an RCMP cruiser, a car that would later be used to disguise his movements during the shootings. Questions abound as to why the gunman was successful in smuggling weapons into Canada given his prior behavior and why he was allowed to create a mock-RCMP car practically indistinguishable from authentic cruisers.

The most widespread criticism of the RCMP is rooted in its refusal to send out an emergency alert notifying residents that there was an active shooter in the area.  At around 10 pm the night of April 18, 2020, Wortman attacked his wife, burned his own house down, and entered a party where he shot seven people, commencing a rampage that would continue through the night. His last victim was shot between 11 and 11:30 am on April 19, shortly before the gunman was killed by an RCMP officer. Since around twelve hours elapsed between the time the gunman shot seven partygoers and the time he was killed, many Nova Scotia residents assert that an emergency alert could have prevented the deaths of 15 people.

The Mass Casualty Commission’s foundation

On May 15, 2020 a group of 34 Dalhousie Law professors and faculty sent an open letter to then-Nova Scotia premier Stephen McNeil urging him to open a public inquiry into the shooter’s behavior and interactions with police before the shooting and the RCMP’s response to the shooting itself. The professors wrote, reflecting emerging criticism of the RCMP’s actions:

[I]n light of recent accounts that reports had been made to the RCMP about the shooter’s violence against his intimate partner and his possession of illegal firearms years prior to the April 2020 murders, and growing calls for the province to treat this matter with the public seriousness it requires, we believe that the time has come to act. Nova Scotia is responsible for law enforcement and the administration of justice in our province.

The professors also noted that Nova Scotia relies on the RCMP for much of its policing, and an inquiry was necessary in order to “promote public confidence in the Nova Scotia legal system.”

Accordingly, then-Public Safety Minister Bill Blair announced that the governments of Canada and Nova Scotia would conduct a full public inquiry into the shooting. This move came after victims’ families voiced opposition to the provincial government’s initial proposal, which would have established an independent review panel whose hearings and documents may not have been public. The public inquiry differs from the panel as the inquirers have the authority to summon witnesses under oath and are required to make documents public.

The commission was formally established on October 21, 2020. The orders in council, passed by the Federal and Nova Scotia governments, mandated the commission to investigate

[t]he responses of police, including the Royal Canadian Mounted Police (RCMP), municipal police forces, the Canada Border Services Agency, the Criminal Intelligence Service Nova Scotia, the Canadian Firearms Program and the Alert Ready program… The role of gender-based and intimate partner violence.. access to firearms… [and] prior interactions and relationship of the perpetrator with the police and social services.”

However, as the Commission began its work in private, criticism of the process kept emerging from families and experts. It was revealed in June 2021 that two men the RCMP sent to collaborate with the inquiry were the husbands of high-ranking RCMP officers, causing concern that information they might give to the commission would be compromised. Commenting on this point, Professor Wayne MacKay of Dalhousie’s Schulich School of Law told Global News that “[the public] should be confident that the commission had all the evidence available to them to make the correct findings and make the most useful recommendations that they can” and that the two should be removed to preserve public confidence. The two were then replaced in July.

In October 2021, the commission was criticized again for its lack of transparency. The commission allowed the RCMP and others to make non-public submissions and to review documents before their release. Professor MacKay again criticized this decision when speaking to Global News, saying that “If they’re allowed, as they appear to be, to make submissions about the facts without making that public, that’s concerning” and “Public is the first word in public inquiry.” The commission also postponed the beginning of its public hearings from October 2021 to January 2022.

The Commission’s controversial approach

When proceedings began in January, the public questioned many of the procedures put in place by the commission for the hearings. Its “trauma-informed” approach, in particular, has been the subject of much debate.

However, one of the more pressing concerns that families and the public put forth was the commission’s initial reluctance to compel front-line and senior RCMP officers to testify. Professor MacKay said that RCMP officers should be compelled to testify and cross-examined, commenting to CBC that “in a case like this, to have evidence which is not tested evidence puts the whole inquiry under a cloud from which it may never escape.”

The Commission says that:

A trauma-informed approach does not automatically excuse someone from testifying, but rather seeks to create conditions in which testifying will be less traumatic. This is accomplished by giving clear direction about what is being asked, a respectful environment, the possibility of taking breaks, etc. It may also mean seeking accommodations such as Participant counsel suggested, insofar as a person’s testimony may be gathered in ways other than through subpoena (such as written questions, sworn affidavits, appearing by video, etc.).

The RCMP’s lawyers and union, the National Police Federation, also defended the approach. Lori Ward, a lawyer for the RCMP argued that the commission should not re-traumatize RCMP officers who responded to the shooting. Ward said to the commission, “We are simply asking that the Commissioners make their decisions with respect to witnesses while balancing the sometimes competing interests of a trauma-informed approach.” Ward also said that:

Witnesses should not be interviewed more than once. They should not be called to appear more than once. We had a situation where witnesses were scheduled to appear to the point of making travel arrangements and then put off to a time uncertain. That should not happen in a trauma-informed approach. If the evidence is necessary, there needs to be a proportionality to how it’s elicited.

However, lawyers for the families made different arguments. Stephen Topshee, a lawyer for two of the families, spoke on the necessity of compelling certain RCMP officers to testify, saying:

It’s imperative that the factual foundation of this Mass Casualty Commission is firm, not only to inform the recommendations of the Commission, but also to ensure future studies of this mass casualty, looking to improve policing in the future, are based on the most accurate facts… As I said, not with a view of assigning blame, but getting to the truth and for future generations so that this doesn’t happen again.

Witnesses may receive accommodations during testimony so they are not retraumatized while they recount events. The Commission states that “While the Commission will make reasonable efforts to accommodate such requests, the Commissioners retain the discretion to determine whether, and to what extent, such requests will be accommodated.”

This has caused controversy in recent days as families and their lawyers began to boycott the commission’s public hearings over accommodations three RCMP officers received to facilitate their testimony. Two of the officers were permitted to speak with “commission counsel in pre-taped video interviews, with the chance for other lawyers to submit questions” while the other was permitted to testify over Zoom without cross-examination. Some families said that the decision of the Commission to allow these accommodations will prevent crucial evidence from surfacing.

What comes next?

The Commission released a preliminary report at the beginning of May, detailing its activities up to that point. After public proceedings are concluded in October, the Commission will release its final report in November where it will issue recommendations for the prevention of further mass shootings in Canada.

The Commission will not assign liability or award damages.

William Hibbitts is a JURIST Features correspondent based in Halifax, Nova Scotia. He is a recent graduate of Bates College.