Families of victims of the Nova Scotia mass shooting are considering whether to continue participating in the public inquiry into the tragedy because key witnesses are being shielded from cross-examination.
The inquiry said last week that Lisa Banfield, the spouse of the killer, wouldn’t have to answer direct questions from lawyers for families of the 22 victims because she is a survivor of the murderer’s violence and has already been interviewed by inquiry investigators.
Michael Scott, whose law firm represents 14 of the families, says his clients are “extremely upset” by the decision and are evaluating their future participation in the public inquiry – which is still scheduled to hear testimony from senior RCMP officers.
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“Confidence in the mass casualty commission’s process is not bolstered by another departure from the basic principles of procedural fairness and natural justice,” Scott said in an e-mail.
“The extent to which our clients will continue participating in this process is being considered. We will urge the commissioners to reconsider their decision.”
In a follow-up interview on Wednesday, Scott said his clients have instructed him not to submit written questions for Banfield, to be posed by the public inquiry’s lawyer. Scott said doing so would be ineffective and would lend legitimacy to a flawed process.
“My concern is we’re not going to hear from Ms. Banfield. We’re going to hear an oral version of a written statement that was given behind closed doors, and that’s not testimony,” he said.
Lawyers for some families boycotted proceedings in May after the inquiry prevented cross-examination of two of the staff sergeants who oversaw the early response to the mass shooting.
A gunman driving a replica RCMP vehicle killed 22 people, including of a pregnant woman, during the April 18-19, 2020 rampage that ended when he was shot dead by the RCMP north of Halifax.
The inquiry has said its mandate requires it to be sensitive to the needs of people most directly affected by the killings, and to be “trauma informed” in how it deals with witnesses.
The inquiry also said in an e-mail Wednesday that, “if some participants choose to observe instead of submitting questions, that is unfortunate, but it is their choice.”
“Through five, multi-hour interviews with Ms. Banfield, it became clear that commission counsel … taking the lead on questioning during public proceedings is the most effective way to gather Ms. Banfield’s best evidence.”
However, Scott said he and other lawyers need to question Banfield in a respectful manner while she is under oath, in order to answer families’ questions.
He said Banfield may have crucial insights into the night of the incident, which she has told police began with her being attacked and handcuffed by the killer. She has indicated she escaped from one of the killer’s cars after he locked her in it, and spent the night in the woods.
Scott also said he has questions about Banfield’s potential knowledge on subjects such as how RCMP investigated prior complaints about the killer’s possession of weapons and how the gunman obtained weapons.
“There is no other witness who has better knowledge of the perpetrator than Ms. Banfield, and nobody has more firsthand knowledge from the period leading up to the mass casualty or more knowledge … of the somewhat unexplained cause of this event,” he said.
Regarding the fears his questioning would add to Banfield’s trauma, Scott responded, “I would hope by now we (lawyers for the families) have demonstrated over and over again our ability to examine witnesses professionally and without complaint.”
Megan Stephens, a lawyer for Women’s Shelters Canada, said in an interview on Wednesday the decision to grant Banfield exemption from cross-examination wasn’t surprising, “given the types of experiences she’s been through and the trauma she’s experienced.”
“It’s hard to say if we agree or disagree (with the commission’s decision on Banfield). Some accommodations make sense here,” she said.
Ed Ratushny, a leading Canadian scholar on public inquiries, said in a recent e-mail that the commission’s decisions on cross-examination could effect whether it is perceived to be impartial, potentially leaving its findings open to judicial review.
“The commission’s proper role is not to abolish direct testimony and cross-examination but to control it,” said Ratushny, a professor emeritus at the University of Ottawa’s law school. He also said: “Surely the (inquiry’s) terms of reference did not intend to interfere with the primary function of fact finding.”
Stephens said the inquiry’s trauma-informed mandate could limit the chance of success of any judicial review. She said the greater concern is that if the public loses trust in the process, its recommendations will not have the same impact.
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