Portapique inquiry hears why key RCMP officers need to testify in person

An independent law expert and lawyers for the families of Portapique victims say it's critical that RCMP officers testify in person to be transparent and maintain public confidence in the inquiry unfolding in Nova Scotia. 

The Mass Casualty Commission heard arguments Thursday from lawyers on both sides of the issue of RCMP live testimony as part of its work looking into what happened during the April 2020 massacre.

The National Police Federation, which represents regular and reservist RCMP members below the rank of inspector, has argued the 18 officers being asked to testify by lawyers for the victims' families could be re-traumatized by doing so. 

But lawyers for the families have said there are many gaps in the evidence of what happened on April 18-19, 2020, that have to be filled, and testifying about violent crimes is part of an officer's job.

"We are extremely frustrated at the prospect of having to justify seeking facts in a fact-finding process," said Michael Scott of Patterson Law, whose firm represents more than a dozen families.

He said lawyers have spoken with their own clients about testifying and almost every one of them is willing to appear before the commission.

"It will be hard, it will be difficult, but they'll do it. Because it's important," said Scott. 

"We're not looking to attack officers or subject them to any further trauma — we're looking to have an inquiry."

The commission presented documents this week summarizing what it believes happened in Portapique. They state Gabriel Wortman attacked his longtime partner and proceeded to kill 13 neighbours after she escaped and hid in the woods. 

The gunman killed nine more people while disguised as a Mountie the following morning and drove nearly 200 kilometres through rural Nova Scotia, most of it in a decommissioned police cruiser he'd adapted to look like a real one. 

Scott said it's especially important to hear from the initial team of three officers, led by Const. Stuart Beselt, who walked into Portapique after encountering a man who'd been shot by the gunman in his mock police car.

For example, Scott said he wants to know more about why Beselt did not directly head to the Blair family's home, where the original 911 call had come from and two people had been shot.

The inquiry heard that these front-line officers may be called on to participate in a witness circle later in the process to share what they experienced, but multiple family lawyers said that is simply not enough.

On its website, the commission describes a witness circle as "a discussion-based format that is used not to determine facts, but to provide important context to understand what happened." A facilitator does not ask direct questions and the witness circle is not a chance to test evidence.

Joshua Bryson, counsel for the family of victims Joy and Peter Bond, said such an exercise would not be the "best use of the commission's time."  

Tara Miller, lawyer for relatives of Kristen Beaton and Aaron Tuck, said the inquiry can be creative in how it supports RCMP officers as they testify in a way that is trauma-informed, but still allows for sworn, live testimony.

"How does one have an inquiry with a mandate to inquire into what happened and make findings of fact on the responses of the RCMP officers without hearing from a single officer under oath about what happened?" Miller said.

Other lawyers pointed out they'd like to know why Cobequid Court in the south area of Portapique, where other victims were, was never examined by RCMP until more than 12 hours later. 

Nasha Nijhawan, lawyer for the police union, said Thursday there are only a few specific circumstances where the inquiry can subpoena officers to testify. Those include a gap or conflict in evidence, or an area where necessary context is missing.

She said the gaps identified by family lawyers Thursday are already in the evidence from 911 calls, radio logs, and interviews with police and commission investigators. 

But Ed Ratushny, professor emeritus in the faculty of law at the University of Ottawa, said the live testimony segments of public inquiries are fundamental to the process. However, he said they can be sometimes overlooked by "people who are trying to do the right thing."

While Ratushny said he sympathizes with the officers who responded to the events in Portapique, police often have to investigate traumatic incidents like sexual assaults and the murder of children, and then testify before a jury.

"In this particular situation, I believe that it is equally important that they do the same — not to a jury in a criminal case, but to the public in this horrible, terrible thing that has happened to this part of our country," said Ratushny, who has also worked with inquiries as legal counsel and is the author of The Conduct of Public Inquiries: Law, Policy, and Practice.

"This is all about what the police officers were doing that particular night; it's a very important aspect of this. And I believe the public should see them and hear them."

Ratushny pointed to comments by Peter Cory, a former Supreme Court of Canada justice, regarding the Westray tragedy.

Governments and policing organizations like the RCMP prefer to have their business confidential, Ratushny said, which is often necessary. But, he said the whole point of a public inquiry is to restore faith in the institutions that have failed in some way.

Nijhawan had also proposed entering an expert report from a psychologist on what requiring live testimony might mean for RCMP officers. 

However, commissioner Michael MacDonald said Thursday that the report would not be necessary for their decision.

The inquiry does not sit on Fridays. The commission will reconvene Monday when lawyers will continue arguments on why certain RCMP officers should be allowed to testify.