N.S. medical examiner says he won't call for inquiry into mass killing

Nova Scotia's chief medical examiner says he won't be calling a fatality inquiry into April's killing rampage, amid calls from families of victims, legal experts, women's groups and Canadian senators.

"I am not considering a fatality inquiry under the Fatality Investigations Act at this time," Dr. Matthew Bowes said in a emailed statement to CBC News Monday evening. 

"The Minister of Justice has called for an Independent Review and I believe this process is the best and fastest way to make the public safer."

Wayne MacKay, a lawyer and professor at Dalhousie University's Schulich School of Law, said earlier Monday that a recommendation from the province's medical examiner could compel the provincial and federal governments to launch an inquiry.

MacKay said Nova Scotia's chief medical examiner holds an important tool that could turn things around on the review panel announced last week, which was widely panned.

"The [panellists] themselves are good people," MacKay told CBC's Information Morning. "And the mandate and the issues are good. But the process being recommended is fatally flawed."

Like many others, MacKay highlighted the absence of both subpoena power and transparency in the review process.

A formal inquiry would have both those characteristics, and if the chief medical examiner of Nova Scotia calls for one, the province has to abide.

That power comes from the Fatality Investigations Act and it was used most recently in the case of the Lionel Desmond murders and suicide. That inquiry started earlier this year and went on hiatus because of COVID-19.

When a medical examiner calls for a fatality inquiry, a judge is appointed and granted the same powers as a judge presiding over a public inquiry.

The calls for a public inquiry started days after the rampage in April, which left 22 people dead, and were renewed multiple times until last week, when the province and Ottawa jointly announced plans for a review.

Many people, including several families of the victims, responded with outrage, and on Monday, there were two protests in Nova Scotia — one in downtown Halifax and one in Bridgewater, outside the office of Nova Scotia Justice Minister Mark Furey.

Cooperation with Ottawa

Premier Stephen McNeil drew on the example of the Desmond inquiry last week when he was defending the review panel for this April's tragedy.

He told reporters the federal government "is not sitting at the table," for the Desmond inquiry and suggested their absence is limiting the inquiry's power.

But MacKay disputed the premier's comments.

"I'm sure the premier only inadvertently misled people, but the feds are at the table in the Desmond inquiry," he said.

MacKay pointed to transcripts from the Desmond inquiry that show Canada's attorney general requesting and being granted standing at the inquiry, bringing along his office's jurisdiction over the Canadian Armed Forces, RCMP, Veteran Affairs, Health Canada and Public Safety Canada.

"I think that's a strong argument that there might be some value in having a fatality inquiry," MacKay said.

MacKay said the Desmond inquiry further provides a good template because it allows the presiding judge to take the hearings in camera over some sensitive subject matter. He said that would take care of the concern raised by Furey that a public inquiry could re-traumatize families. 

'We don't want to sacrifice on the altar of speed'

The province and Ottawa have said a review will move more quickly than an inquiry, but MacKay also disputed that point.

"One can understand the desire for speed but I actually think, and most people think, [it's] far more important that we get it right than that we do it fast," said MacKay.

"And in fact, I think the speed in some ways is going to be a liability because a lot of the [police] investigation is still to come."

The review's terms of reference says that "activities undertaken during the review must not compromise any police investigation being conducted in relation to the events of April 18-19, 2020."

MacKay said that caveat could prevent the panel from getting all the information it needs from police before it has to submit its reports. An interim report is due at the end of February, and a final report is due at the end of next August.

"We do not want to sacrifice on the altar of speed an effective and a thorough public inquiry," MacKay said.