Can Mounties avoid testifying at Portapique massacre inquiry? Lawyers are arguing

HALIFAX—It’s been a recurring sight over the past few days at the public inquiry into the worst mass killing in Canadian history.

Time and again, lawyers make the long trek to the podium across cavernous Hall B at the Halifax Convention Center to ask that various RCMP officers be subpoenaed to testify about their actions and reactions in Portapique, NS, during a gunman’s 2020 rampage.

“We would submit that the importance of creating a fulsome factual record absolutely has to be front and foremost to your commissioners’ minds when it comes to determine whether or not any of these individuals will be called as witnesses,” said Sandra McCulloch, one of the lawyers representing the majority of the victims’ families, to the commission Monday.

And, time after time, lawyers for the RCMP and its union make the same long trek to reiterate their arguments that those Mounties not be called to testify — each time mentioning “trauma-informed” in their reasoning.

“It would be our submission that you should not ask them to do too much,” Nasha Nijhawan, lawyer for the Mounties’ union, the National Police Federation, told the commission last Thursday.

“We should look at what evidence is already available, what questions must be asked of the members and find ways to allow them to participate meaningfully in a trauma-informed way, which, in our submission, will not include live testimony.”

Trauma-informed approaches — that is, efforts to “minimize the potential for further harm and re-traumatization” — have for years been increasingly brought into the justice system, but rarely have they been as prominent as during this inquiry.

Now, the Mass Casualty Commission is on the cusp of making decisions that might test the boundaries of what it is willing to do to take the well-being of those participating into consideration, balanced against the importance of ascertaining the facts about one of the province’s worst crimes.

Depending on whom you ask, the tension reflects either the bumpy evolution of a judicial process that is now more keenly aware of the need to protect those who have been traumatized, or a shield being wielded by a police force keen not to face scrutiny.

“Some of these guys, and these women … who saw 22 people killed, including one of their own, experience trauma, just as any other Nova Scotian, probably more so,” said Lori Ward, a lawyer for the attorney-general of Canada , representing the RCMP.

On April 18 and 19, 2020, 51-year-old denturist Gabriel Wortman killed those people, torched several houses and terrorized much of Colchester County in northern Nova Scotia for 13 hours before he was killed by police. The actions of the RCMP over those hours have been the subject of much commentary ever since.

From the Mounties’ perspective, the officers went through a traumatic experience—and Const. Heidi Stevenson is among the dead. Officers should not, the union and the attorney-general argue, have to revisit that experience by testifying before the commission.

It says the statements of officers contained in the commission’s foundational documents — both to police and to the commission — should be adequate. It also says any further questions from the commission could be submitted in written form to RCMP counsel, who will determine if they merit a response.

Tamara Cherry, a communications specialist who works with trauma survivors and the media, told The Canadian Press that officers should testify, but that their participation must be handled in a trauma-informed way.

“We need to be having thoughtful, meaningful conversations … about how every action, every decision, every question could potentially be harmful to anybody in the room,” she said.

There are examples of accommodations the justice system has made elsewhere. In sexual-assault cases, complainants are given the option of testifying from another room, rather than facing the alleged perpetrator. During public inquiries, graphic crime-scene and autopsy photos are no longer shown.

However, keeping Mounties off the stand would be a step too far for some.

To Michael Scott, one of the lawyers representing the families of the majority of Wortman’s victims, not having live testimony from the first officers on the scene in Portapique would destroy the credibility of anything that comes out of the inquiry.

“I think it’s a ridiculous argument to suggest that, as a blanket proposition, RCMP officers are so traumatized that they can’t give evidence. They do that every day, in horrible, horrible situations,” he said.

“Our concern is that (the trauma-informed concept) is being used as an excuse to avoid subjecting those members to uncontrolled evidence.

“What they don’t want is me asking those members questions live with people watching because then if something is said, it can’t be retracted,” he said. “I don’t think that their concern is specifically for those officers … the implications that might have on the institution, I think, is probably the larger concern.”

In a transcript of a July 22, 2021 interview, inquiry counsel Roger Burrill asked the first officer on the scene that night how he felt about testifying at the eventual inquiry.

“I’ll testify,” said Const. Stuart Beselt, the leader of the Immediate Action Rapid Deployment team that was trying to track the gunman. Beselt said he had expected he would be asked to: “If I can prevent other people from having to go through this process and that, I would be more than happy.”

Scott said that the arguments from the RCMP to shield its members on a trauma-informed basis are in fact creating further pain for the families of victims and others who want substantial answers from the inquiry.

“It is a high bar to traumatize these people beyond what they’ve already experienced, and they will be the first ones to tell you that this process today has made it worse,” he said.

Scott said that if the commission were to accept the RCMP’s premise and give its members a pass on testifying, that would certainly have an impact on the construction of future public inquiries, which would be informed by the perceived success or failure of the commission.

Not compelling officers to testify could set a “dangerous” precedent, added a professor of sociology at Brandon University. Christopher Schneider said the case involves a rare circumstance, but not compelling officers to testify could lead to police pointing to it as an example when they don’t want to testify in other cases that are more common.

Schneider said victims of crimes often must relive their trauma in courtrooms and don’t have access to the kind of training, counseling and other services available to police.

“We hold police officers, sworn members, to a higher standard,” he said, arguing that these Mounties should be required to testify.

“I think, in this case, the interests of the public (in) making sure this doesn’t happen again outweigh the possibility of some of the police officers reliving their trauma.”

The inquiry takes a brief break Tuesday, while the commission contemplates the submissions on calls for witnesses.

“One of the justice lawyers said last week that we shouldn’t be seeking truth at any cost,” said Scott.

“And it is. We absolutely should be seeking truth at any cost. When we talk about things being trauma-informed, we’re talking about mitigating against those harms, so that we don’t do unnecessary harm.

“But the object here is the truth.”