The Rodgers Brief (Adam Rodgers)

This week in Nova Scotian and Canadian law, I give a preview of the Mass Casualty Commission's final report, which is set to come out March 30th. The MCC stated this week that the report will be between 2000-3000 pages, a statement that seemed designed to ward off 'instant' reactions or critiques as being necessarily ill-considered. The final decision on the search warrants issued about Gabriel Wortman's properties was delivered last week. I take a look, and discuss how the police and governments can be more transparent. On government transparency, Parker Donham had a decision go against him regarding an application under freedom of information legislation. He was seeking information on the Seal Island Bridge, and opposed the granting of an extension of time for the government to provide the information. In a small claims court case released this week, a dog breeder successfully sued a couple who bought a White German Sheppard, and then had it neutered, in violation of their contract with the breeder. There was a decision released this week on riparian rights in Nova Scotia, which is the right of anyone who owns land adjacent to waterways to access navigable waters from their shoreline. This lawsuit arose when neighboring property owners built a wharf that interfered with the ability of the plaintiff to access waters from her property. Finally, I look to an open letter on the federal government's efforts to craft legislation on online safety, signed by a dozen or so civil liberties organizations.

This week in law, I look at prominent cases in the United States and Nova Scotia. The charges against Alec Baldwin, arising from the shooting on the Rust movie set, have been dropped by special prosecutors brought in to handle the matter. My Pillow founder, and prominent election denier/conspiracy theorist, Mike Lindell, has been ordered to pay $5 million to a software forensics expert who won a contest to "Prove Mike Wrong". This case reminds me of one of the first contracts cases every law student learns, the Carbolic Smoke Ball case from 1892. Fox News and Dominion Voting Systems have settled DVS's defamation claim against Fox for $787 million. I compare that to the most famous Canadian defamation case, Hill v. Church of Scientology. In Nova Scotia, the Court broadcast the parole eligibility hearing of William Sandeson, the almost med student who was recently convicted of killing a fellow Dal student. Also in NS, the 15 year old student from CP Allen High School in Bedford who is accused of attempted murder after bringing a knife to school, has been found fit to stand trial. I review what I see as several problems with the way this case is unfolding. Finally, I review the appeal decision on my former colleague, Donn Fraser, who was found not guilty at trial of criminal harassment of another former colleague. The appeal has little to do with the lawyers allegedly involved in the dispute, but rather focuses on the Judge who acquitted Mr. Fraser. Justice Gabriel of the Supreme Court of NS was highly critical of Judge Begin of the Provincial Court for his interactions with Crown Prosecutor Darcy MacPherson. I disagree with some of Justice Gabriel's conclusions, and in doing so discuss the relationships between judges and lawyers, the obligations of the judge to be free from bias, and how it is the job of the lawyer to understand and be respectful of the judge before whom they are appearing.

This week's analysis starts with three cases out of Nova Scotia - a homicide on a home invasion in Halifax where the occupier of the home killed one of the intruders and was determined to be acting in self defense, a small claims court case involving a legal bill on a divorce where the adjudicator incorrectly agreed to keep the names of people involved anonymous, and the failed attempt by Ernest Fenwick MacIntosh to claim defamation against the victims of his historical sexual assaults.  Then, I review the tragic death of OPP Cst. Pierzchala, and the calls by many, including CPC leader Pierre Poilievre, to strengthen Canada's bail regime for violent offenders. I analyze Bill C-75, which in 2019 made significant changes to the approach to bail.  I review the arrest of the head of the Justice Centre for Constitutional Reforms, John Carpay, on a charge of intimidating a justice system participant, and his wrongful lengthy arrest procedure in Calgary.  Finally, I discuss the Ontario College of Psychologists' attempt to discipline Jordan Peterson over social media postings. This seems to involve someone at the College trying to use Peterson's fame to draw attention to themselves. I do not expect this to go well for the College, and review how professional disciplinary matters can unfold, and how they can be appealed to the (more) legitimate court system.

On the final day of hearings before the parties make closing submissions next week, the Mass Casualty Commission had a half day of proceedings featuring speakers from the BC Civil Liberties Association, the East Coast Prison Justice Society, and the NS Department of Justice. That was followed  by a presentation by the Avalon Sexual Assault Centre on their findings from meetings held with marginalized individuals who knew Wortman from his denturist work.  The justice organizations all had issues to discuss that were only marginally connected to the work of the MCC. This disconnect was partly reflected in the lack of moderation of the discussion. Speakers went on at great length, on tangential topics. There was some discussion of police oversight and police standards, including comment from the DOJ that police standards (which are currently 'under development') will be legally enforceable regulations when they are finalized.  The revelations from the Avalon consultations showed how Wortman was able to obtain sexual favours from clients in exchange for denturist work, and how DCS really did not seem to provide much oversight for such private sector service providers.

As part of their continuing effort to reduce the size of their viewing audience, the Mass Casualty Commission today featured a roundtable discussion on “Rurality and Community Well-Being”. The information on the MCC website suggested that the goal of the discussion was to address culture and attitudes of rural life in Nova Scotia, limited and differential service delivery in rural areas, and health and safety of those working in rural communities and how the rural context affects their working lives. The roundtable as facilitated by Dr. Emma Cunliffe, Research and Policy Director for the MCC, and featured Robin Campbell, PhD Candidate at Dalhousie University, Madonna Doucette, Director, Youth Project, Dr. Karen Foster, Associate Professor of Sociology in the Department of Sociology and Social Anthropology, Dalhousie University, Dr. Lesley Frank, Professor at Acadia University, and Dr. Marilyn MacDonald, Professor at Dalhousie University’s School of Nursing.  It is difficult to understand what the MCC Commissioners think they are getting from these discussions, particularly considering the time and resources being expended in having ‘expert’ reports prepared and then scheduling days and days of hearing time to listen to them. Dr. Cunliffe and the research team seem to be fascinated by these academic discussions, but they are only marginally connected to the events of the mass casualty.

After a 3-week hiatus, the Mass Casualty Commission will be holding proceedings again starting Monday August 22nd. There are proceedings scheduled for the following four weeks as well, and then a break for the month of October, before the Commissioners release their report on November 1st.  This week, we will be hearing from Assistant Commissioner Lee Bergerman, the head of the RCMP in Nova Scotia at the time of the events of April 18-19, 2020. We will also hear from national RCMP Commissioner Brenda Lucki. AC Bergerman will be asked about her role in the highly critisized NS RCMP operational reaction and press conferences after the active shooter situation was brought to an end. Both will be asked about the brewing political controversy about Comm. Lucki's complaint that the NS RCMP did not release details about the particular firearms the killer used.  In this post, I discuss those topics, and consider what the MCC might do with the four weeks of scheduled hearings remaining. So far, details are not yet available as to witnesses or what experts the MCC might bring back to have discuss potential recommendations.

There were two discussion panels held today by the Mass Casualty Commission, dealing with responses to critical incidents. The first one dealt with how best to prepare the police and other first responding stakeholders for a critical incident. The second session dealt with how to corporate civilians, 911 operators and others into the response package.

Knowing who is going to be taking part in the Mass Casualty Commission proceedings can give us important insight into what might unfold as those hearings begin later this month. The Commission has released a 22-page decision detailing who may participate, and to what degree each will be involved.

The decision also includes funding recommendations for many of the individuals and non-profit groups who have been granted the right to participate (also known as “standing”, in the more common legal phrasing). Those recommendations are not Orders per se, but do tend to carry great weight with government funding sources, as to reject such a recommendation would be tantamount to denying someone the right to participate when the Commission has said that they indeed have such a right. To deny that would undermine the Commission’s independence.

Those participating include families of the victims of the gunman (though, perhaps notably, not the family of Cst. Heidi Stevenson), three Canada-wide victim advocacy groups, health-related groups like the Nova Scotia Nurses Union, two firearms organizations, three justice advocacy groups (including Nova Scotia Legal Aid), numerous gender-based violence organizations, and several police-related organizations.

The final week of the Mass Casualty Commission proceedings will be used to hear closing submissions by the participants. After so many days of proceedings, with such a large volume of evidence, closing submissions are an opportunity for the parties to give their perspective on what has been heard, and to make recommendations.  Notably, there is one participant that will not be making closing submissions, and that is the MCC itself. Normally, Commission Counsel would lead off the closing submissions, and speak to all relevant issues. The leading Canadian legal textbook on Inquiry Law says that Commission Counsel should make closing submissions, as they are supposed to act in the public interest and are therefore concerned with all outstanding issues. We should be told why they are not going to be speaking. Submissions were made today by Sandra McCulloch from Patterson Law, Josh Bryson from Windsor Law, MDW Law's Tara Miller, and self-represented participant Tara Long. I discuss their main points in the video, and the reactions (or lack thereof) from the Commissioners.

In video posted yesterday evening, retired Sergeant Andy O’Brien testified about his role in the response to the mass casualty events. Sgt. O’Brien oversaw operations for the Colchester County RCMP, but was off duty on April 18, 2020 when he was contacted about the initial reports out of Portapique. He has stated that he had 4-5 drinks of rum that night, and though he was initially reluctant to take on any role, he soon had a radio and was giving directions to officers on the scene from his home. Many of the participants in the MCC continued their boycott of proceedings, as a result of the accommodations granted to Sgt. O’Brien. The testimony was conducted by Zoom, and was not broadcast live. There was also no cross examination permitted, but rather the participants were to provide questions to Commission lawyers to ask. Nothing about Sgt. O’Brien’s presentation or demeanor would convince a neutral observer that he required any accommodations. He was treated very gently at first by Commission lawyer Anna Mancini, who initially tended to read out long paragraphs of Foundational Documents relating to Sgt. O’Brien’s previous experience, then his involvement, and then asked him whether he agreed or had anything to add.

This week in law, a final update from the Mass Casualty Commission, where they urge everyone to work on their recommendations, and note that they will not longer monitor their social media or emails. The spring sitting of the Nova Scotia Legislature has ended after 14 days. There were very few mentions of the MCC in the legislature after the final report was issued. I review some of the legislation that passed during this session. The 15 year old who was arrested for a knife incident was back in court, where the judge ordered a psychological assessment. I discuss what that might mean. The Supreme Court of Canada issued two decisions this week. In one, they say that for a DUI breath demand, the officer must have the approved screening device on hand, or be able to have immediate access to it. In the other, the Court confirmed the right of Quebec to restrict people from growing cannabis, even though it is legal by federal law. The Prairie Premiers and the Federal Justice Minister had words over comments from Minister Lametti about potentially revisiting the 1930 agreement that gave Alberta, Saskatchewan, and Manitoba the same authority over natural resources that other provinces already enjoyed. I talk about who is right, and the question of how this all interacts with the United Nations Declaration on the Rights of Indigenous Peoples. Finally, a 'fun' case out of Australia of a self represented person in a prolonged foreclosure case who won out in the end, in what the judge called a 'comedy of errors'.

I read through the MCC Interim Report, which was released late today. It contains little by way of information or conclusions, but is rather mostly a further reminder of the plans the Commissioners have for the future, and the design of the MCC proceedings. This report could easily have been entirely written before the proceedings started.  The Commissioners are taking full ownership of the proceedings. First they talk about how it is an Inquisitorial process, which they are directing. Then, they make the (slightly misleading) point that they are independent of government. Whatever emerges from this process, they will not be able to credit or blame anyone else after the strongly-worded section where they discussed their role.   One of the main takeaways from the report was that the Commissioners did not react in any way to criticisms that have been publicly leveled at them. The two months of secret meetings prior to the proceedings, which were heavily critiqued by lawyer for the participants, are here called an "effective collaborative mechanism". No complaints about the trauma-informed mandate, or the disorienting approach to the presentation of evidence is even mentioned.

The second in command RCMP officer in Canada, Dep. Commissioner Brian Brennan, testified today at the Mass Casualty Commission. He discussed the relationship between the NS RCMP and the national leadership, the difficulties being experienced by the top RCMP officers in NS, and operational issues like emergency alerts and decommissioned vehicle sales. DC Brennan also mentioned the lessons he felt were learned by the RCMP, which were applied in Saskatchewan last week. There, the police did issue emergency alerts, and had air support. They have not learned, however, to be forthcoming with operational details, and their refusal to discuss the death of the main culprit in the stabbings has echoes of the RCMP press conferences in NS following the April 18-19, 2020 shootings. There were examples raised of DC Brennan being a force for secrecy within the RCMP, including his advice not to proactively reveal the existence of the 2011 Criminal Intelligence Bulletin regarding the killer wanting to "kill a cop".

The Rodgers Brief is back after a summer hiatus. In this episode, I discuss some of the political developments from the federal and provincial cabinet shuffles, as well as my reflections on the Conservative Party national convention in Quebec City, a place that is truly a national treasure as a city. I discuss the Halifax Alehouse attempt to make a Liquor Control Act hearing confidential, with two of their bouncers being charged criminally. On the more national scale, I review the first week of the Tamara Lich/Chris Barber 'trucker convoy' trial, and also the Canadian Civil Liberties Association lawsuit against the New Brunswick Department of Education regarding the changes to a policy that would require schools to obtain parents' consent before using the chosen name of a transgender/nonbinary student.

Today represented the first opportunity at the Mass Casualty Commission for the non-Commission participants to be heard in a substantive manner. After four days of sitting and listening, the Commission finally allowed the participants to make submissions regarding any gaps they feel may be relevant with respect to the factual record, and any recommendations they may have for further witnesses and evidence that might fill in those gaps. This was their first real opportunity to openly challenge the Commission’s work, and they did so to various degrees.  Some of the tension that has been taking place (mainly) behind the scenes was exposed in the first presentation from Patterson Law lawyer Sandra McCulloch. In her submission on behalf of the many family members that firm represents, she said that the families were disappointed with the proposed procedure, that they expected they would be speaking about any relevant gaps the had identified in the evidence presented to date (as per Justice McDonald’s opening comments), but were told by Commission Counsel that they would be limited to proposing individual witnesses and giving reasons for those individual proposals.  Ms. McCulloch stated that the draft Foundational Documents that they had been provided by the Commission were significantly different from what was entered as exhibits this week. She said two of the three doubled in size while the other was reduced by half, and that they do not endorse these Documents as presented. At some stage (which they had hoped would be today) they want to be heard about their disputes with the narrative as presented so far. Chief Justice MacDonald said that time would come at the end of phase one of the MCC, which Ms. McCulloch correctly noted will mean the existing, apparently problematic, narrative will become unduly 'settled' within the minds of the public.  The other major question of the day was whether any police officers below the rank of Staff Sergeant might be testifying. Nasha Nijhawan represents the National Police Federation, which is an organization representing all officers below the level of Staff Sergeant. That includes most of the officers involved in the MCC. Whether any officers would be testifying was the question that was to occupy most of the afternoon, but instead an issue arose regarding a potential expert report, and so the MCC adjourned until tomorrow to allow matters to proceed in a more logical order.  All of this will really challenge the MCC to define more specifically what they mean by ‘trauma-informed’. It seems clear that Commission counsel will be advising against any meaningful witnesses, and there is disagreement among the other participants, so it will be up to the Commissioners to make a ruling that gives the parties, and the public, some clarity. This will go a long way to determining whether the public will have faith in the process.  There will be submissions on the police witnesses tomorrow, and then the Commission will hopefully outline what we can expect for evidence next week.

This week, I review the controversy around the National Security and Intelligence Committee of Parliamentarians report on foreign interference, and the allegation that some MP's are witting participants in such interference. Also, I examine the government's Charter Statement on the proposed Online Harms Act, the Supreme Court's view on 'secret trials' in Canada, the NS justice minister's announcement that 1200 cases in Nova Scotia are at risk of being dismissed because of delays in the system, the (related) ongoing complaints of Judge Rickola Brinton about her refusal to take the Covid vaccine, Judge Perry Borden's use of an Impact of Race and Cultural Assessment in sentencing an 18 year old on gun and cocaine charges, and Justice Arnold's decision on the Chief Electoral Officer's decision to sanction on signage in the Preston by-election last summer. Finally, I review the decision this week on cannabis dispensaries on Mi'kmaq reserves in NS, and whether they represent a treaty right.

It was a busy day for those following the analysis of actions of senior RCMP officers during the events of the mass shooting of April 18-19, 2020 and the press conferences which were held in the aftermath. Superintendent Darren Campbell, who was the third ranking officer in NS at the time of the mass shooting, was testifying in Halifax in the Mass Casualty Commission proceedings. At the same time, Federal Public Safety Minister Bill Blair, RCMP Commissioner Brenda Lucki, and Chief Superintendent Chris Leather were all appearing before the Public Safety and National Security Committee.  I was watching both proceedings during the early afternoon when there was an overlap of a few hours. There was a time when Commissioner Lucki was in Ottawa talking about how she wanted to be open and transparent, while at the same time in Halifax, Sup. Campbell was saying the same thing. Meanwhile the evidence was showing that Commissioner Lucki had quashed an idea to participate in a CBC Fifth Estate documentary, and Sup. Campbell had withheld information on firearms during a press conference. It was more than a little disorienting.  The officers seem to recognize that their collective performance has received a failing grade, and are now trying to deflect blame from themselves to others in the senior roles in Nova Scotia and nationally, while at the same time protecting the reputation of the RCMP itself.

Link to buy the book; https://www.amazon.ca/Post-Atheist-21st-Century-Democratic-Governance/dp/1778104223

The MCC heard from Cst. Greg Wiley, who was the officer who knew Gabriel Wortman as a community contact, and had approximately 15 interactions with him in the years before the mass shooting. Cst. Wiley was granted the most unusual of accommodations by the MCC, so that the video or audio from his testimony cannot be broadcast, under threat of criminal sanction should the order be violated. Cst. Wiley showed no obvious signs of requiring accommodation, and in an attack on the media at the end of his testimony that was dripping in irony, claimed to be speaking for the families in criticizing the media for making errors in reporting. He said that he could take it, but it was unfair to them. That was a bit rich, coming from someone who literally asked for accommodations because he could not 'take it'.

This week, on his final day in office, Prime Minister Trudeau released a brief position paper on the future direction of the RCMP. This unexpected announcement called for a narrower mandate for the Force, with Provinces taking over responsibility for community policing when current contracts with the RCMP expire in 2032. Author Paul Palango and lawyer Adam Rodgers discuss the White Paper, its timing, whether the new Prime Minister is likely to adopt the recommendations, and what the report gets right and wrong. Also discussed - St. Patrick's Day, the Ides of March, the five year anniversary of the pandemic, and the Gretzky-Ovechkin dynamic.

The MCC proceedings continued to focus today on the leadership of the RCMP, featuring continuing testimony from the now-retired former Commanding Officer for the RCMP in Nova Scotia, Lee Bergerman, and the current national Commissioner of the RCMP, Brenda Lucki. The contrast in leadership style and competence between the two was on stark display, and it was not a contrast that favoured Ms. Bergerman.   Some of the same questions that were asked of Ms. Bergerman yesterday about RCMP culture, ability to change, and her knowledge and understanding of the events of the mass casualty were also asked of Comm. Lucki. Where Ms. Bergerman gave short, vaguely worded answers, and claimed time and time again not to have asked questions or been informed about the RCMP’s operational response to the active shooter, Comm. Lucki gave long, detailed, and specific answers, and appeared to be engaged in the details of operational and policy shortcomings.

Today was the first day that the Mass Casualty Commission really engaged with the evidence that has been gathered regarding the tragic killings of April 18 - 19, 2020. Commission Counsel, senior legal aid lawyer, Roger Burrill, presented from the “Portapique April 18-19, 2020” Foundational Document. This is a 91-page summary prepared by the Commission that covers the first hour or so of the killing spree, up to the time when the shooter was able to escape Portapique.  In terms of significant new evidence (or perhaps it would be better to say descriptions of evidence, since none of this was given as testimony, per se), the revelation that the killer was practically in sight of the RCMP officers as they were being told by one of the killers neighbors that he had just been shot, seems to be the most significant in terms of the mandate of the Commission.  Also new is the mention that the DNA of Corrie Ellison was found on the killer’s boots. There had been some speculation that Mr. Ellison may have been accidentally shot by an officer in the confusion of the search, but this fact would certainly run counter to that theory.  For those who had not previously heard, or read any of the reports of the 911 call made by the McCully and Blair children, who ranged in age from 8-12, the poise and courage which they displayed, while in close proximity to the killer, and under impossibly difficult circumstances, may have made the strongest impression of anything that was outlined by Mr. Burrill.  We will find out more tomorrow what the police and other first responders may have known as events were unfolding. It is clear from the evidence unveiled today that they either knew, or should have known, by 11 PM on April 18, 2020, who the killer was, that he was disguised as a police officer, and that there was a chance he had escaped.

There were foundational documents presented today dealing with the (ultimately futile) helicopter efforts, assistance from the Halifax Police, and the 911 and radio systems in NS.  The one RCMP helicopter that serves NS and NB was out of service for nearly two and a half months around the time of the mass shooting, and there was no backup plan in place. There were military helicopters in Greenwood and Halifax, but (despite also being federal agencies) they were not deployed. NS Department of Natural Resources has four helicopters, but they could only fly during the day, and when they did become involved were always a step or two behind the action. Helicopters could have been the most valuable response tool for the RCMP, but they were never involved in a helpful manner.  Today also marks three months since Lisa Banfield was referred to restorative justice, rather than proceeding with her charge of supplying ammunition. There has been no update over that time on her cooperation with the MCC, or with the RJ process. On Monday, the Frank Magazine application to have the videos from the Big Stop released will be heard by the Commissioners. It is an application that should be supported by all parties, as it gives the best evidence available of those final moments, yet we can expect its release to be opposed by lawyers for the RCMP, and perhaps the MCC itself.

This week, Paul Palango and Adam Rodgers discuss the Conservative and Liberal justice proposals released this week in the Canadian federal election campaign. The Conservatives say “three strikes and you’re out”, while the Liberals look to tackle gun crimes. Related, this week the National Post published an excerpt of Tristin Hopper’s new book, Don’t Be Canada. The excerpt we analyse deals with Hopper’s critiques of the Canadian justice system, particularly as it deals with bail matters, and indigenous offenders.Also, there is a case unfolding in BC, involving former officer Bill Majcher, who has been accused of espionage against Canada. Two other officers allege that they have been subjected to a spyware attack from the RCMP on their police-issued phones.The show starts out with Paul describing an unusual invitation to join with retired police officers, ostensibly to join in their efforts to reform policing in Canada. It did not go as (they) planned.

The Mass Casualty Commission hosted two talking circles today, featuring indigenous persons from across Nova Scotia. The participants discussed their experiences of the morning of April 19, 2020, their views on the institutions serving Nova Scotians, and their views on policing. An interesting comparison was made with the lack of a trusting relationship between the police and indigenous communities, and the current lack of trust that Nova Scotians more broadly are feeling following the events of the mass casualty. The Commissioners were very respectful of the participants, perhaps to the point of being patronizing, but perhaps genuinely. The three Commissioners participated in the talking circle along with everyone else, and leaned less on scripted remarks than on other days.  There were also some news articles that came out in the past few days dealing with other elements of the MCC. Seemingly in an attempt to rehabilitate his own reputation, former Justice Minister Mark Furey (who was an RCMP Staff Sergeant prior to running for office) has claimed in an affidavit that it was the RCMP's failure to accept his 2012 recommendation to adopt emergency alerts that lead to his early retirement. This is difficult to swallow from the very person who may have been best positioned in years that followed to have implemented an emergency alert system for active shooter situations.  I also discuss the election of Pierre Poilievre as leader of the Conservative Party of Canada, and what impact that may have on potential adoption of MCC recommendations.

First, a look at the big political story of the week - the government announcing a carve out of the new carbon tax for those heating with oil. This announcement has been criticized from all sides, and may be the biggest political blunder of this government. Notably, it appears to have been spearheaded by the NS MP's, lead by Atlantic Caucus Chair, Kody Blois, who briefly practiced law before being elected. Other national stories I discuss include the recommendation that responsibility for correctional services for Indigenous offenders be devolved to those communities, as overrepresentation of Indigenous offenders in federal prisons has climbed again in the last ten years from 25% to 32%. I also review the Foreign Interference Inquiry, which is going to look into interference into the 2019 and 2021 elections. In Nova Scotia legal news, William Sandeson has been denied bail by our Court of Appeal, new Judge Bronwyn Duffy was critical of police for not ensuring there was strong identification evidence in an prowling/arson trial, and Judge Del Atwood assisted a self represented accused on a resisting arrest charge. Finally, I review the tragic death of Hollie Boland this week in Cole Harbour, and the questions it raises about the bail system in Nova Scotia. The questions are fair, though I am concerned with some of the comments coming from the President of the Crown Prosecutors Association of NS about the incident, and discuss why.

This week, I review two major reports, the Nova Scotia Mass Casualty Commission Progress Monitoring Committee report and the Foreign Interference Commission interim report. Before that, I discuss the lack of a Charter Statement for the new Online Harms Act, the irony of the government critiquing the opposition for alluding to the Notwithstanding Clause, the rejected injunction application for the McGill campus protests, the police paraphernalia guilty plea in Sydney, and the failed Provincial Court application by Diagalon founder Jeremy MacKenzie.

The focus of the MCC was on the Town of Truro today, with a Foundational Document and witness discussing the interaction between the RCMP and Truro Police as Gabriel Wortman made his way towards, and ultimately through, the Town of Truro.  We have heard from Chief Dave MacNeil before today, as he has been interviewed about the Truro Police role in and knowledge of the killer’s movements through Truro, and the Truro Police relationship with the RCMP. Chief MacNeil has been critical of the RCMP’s response, their lack of information sharing with Truro Police during the mass shooting, and their efforts after the fact to keep important information from being made public.

This week in The Rodgers Brief, I review the pending dispute in the federal election boundaries in Cape Breton. One MP neglected to speak up when consultations were ongoing, and is now trying to claim that the boundary changes violate the UN Declaration on the Rights of Indigenous Peoples. 

In other NS cases, a man was convicted after confessing to a sexual assault and attempting to claim his diabetes may have affected his thinking when he made his confession. 

William Sandeson's trial continued this week, with warnings from Justice Chipman for the jury to not be influenced by anything they read in the news. That would include the news reports from the original trial, and also the story this week about the Canada-wide arrest warrant issued for one of the Crown witnesses. 

Finally, I review a case out of the NS Supreme Court of a woman who applied to be allowed to move with her four-year old to Ottawa, away from the child's father. Mobility cases can be a challenge, and this one provides some helpful guidance for those considering the same. 

I also discuss the shortage of Judges in NS, and some national news stories involving repatriation of ISIS-involved Canadians, the Shaw/Rogers merger appeal decision, and the lack of evidence on allegations that the Alberta Premier interfered with the prosecution of Coutts, Alberta trucker/freedom protestors.

The Mass Casualty Commission took a welcome break from academic discussion panels today to explore evidence about the finances of the killer, and to hear from an RCMP officer who dealt with the complaint from Brenda Forbes, which she described in her evidence last week. The financial misdealings Foundational Document gave a window into the degree of illegal activity in which Gabriel Wortman was engaged, while Cst. Troy Maxwell’s testimony forced us to choose between two starkly different versions of a key event.

This week, Paul Palango and Adam Rodgers discuss stories from Ottawa, Nova Scotia, New Brunswick, Ontario, as well as a school shooting report from Nashville. Some US lawyers are reacting to being targeted by the Trump administration by refusing to take on cases against the government. The implications for the justice system are discussed. PM Carney delayed dropping candidate Paul Chiang despite his advocating for his opponent to be turned in to Chinese officials. Paul explains how politicians are enamored with police officers, even as candidates.In NS, the government is trying to regulate on-reserve cannabis sales.An RCMP officer in New Brunswick has been cleared of wrongdoing in a shooting on a First Nations reserve. A school shooting report out of Nashville has cleared the shooters parents and care providers of responsibility. There are lessons for parents in the case.Finally, a case out of Ontario has been tossed due to delay. The accused had been found with over 8kg of cocaine.

The drive along Hwy #2 to the excellent hiking trails of Cape Chignecto is not unlike many secondary NS coastal roads. Portapique is one of a line of communities that takes up a small area along that road. When you drive past the Portapique Beach Road, it seems clear that there were possible escape routes for the gunman through fields behind the houses adjacent to the main road. What did the initial police responders know about the specific area? Also, Truro is the closest large centre yet that is not where the police response originated. How did long-standing jurisdictional issues affect the timeliness and effectiveness of the response?

Just after 10am on April 19, 2020, with the Nova Scotia mass shooting killer still on the loose, having left Portapique 12 hours earlier and having committed further killings in the Wentworth area, two RCMP officers erroneously fired multiple shots at a fellow officer and a civilian emergency responder at the Fire Hall in Onslow.  Such incidents draw investigations by the Serious Incident Response Team (SIRT), which is designed to review police shootings to see whether charges may be warranted against an officer. SIRT is civilian-led, and independent from the police or government. SIRT is now led by retired NS Supreme Court Justice Felix Cacchione, and has a team of investigators made up of former and current police officers.

The SIRT report states that two officers drove up to the Onslow Fire Hall in an unmarked Nissan Altima, saw a person they thought was Gabriel Wortman standing next to a marked RCMP car while wearing a high visibility orange and yellow vest, yelled to him to show his hands, and then shot when the person instead ducked behind the police car.

Credible eyewitness reports describe a situation where there was either a sudden, panicked (or at least not cool-headed) reaction to seeing someone who might be the killer, or else one where the officers were deliberately fooled into thinking it was Wortman standing outside the Fire Hall. If it was the former, these officers are in the wrong line of work, and the SIRT report is flawed. If it is the later, then there is potentially much more to uncover about Wortman’s relationship with the RCMP.

After months of delay, the Mass Casualty Commission (MCC) has begun their public proceedings. The Commissioners and parties were in Halifax at the new Convention Centre, while many family members watched from a viewing site in Truro. I was watching the livestream, which features closed captioning and French-English translation services.  It was not a full day. There was about two and a half hours of Commission content in total. For the first hour of the Mass Casualty Commission proceedings, the Commissioners took turns making opening remarks. Notably, there were no opportunity provided to the other participants to make opening remarks, which is consistent with some of the criticism of the Commission that they are overly controlling of information, and of the proceedings more generally.  In the afternoon, a spokesperson for the Commission walked everyone through the MCC website contents. The website is quite user-friendly, and so this presentation seemed superfluous.  The other part of the afternoon involved a panel, which was called Human Impact. This was a discussion of the mental health impacts of the shootings on the people of the communities affected, as well as beyond that.

The MCC today featured a panel discussion on “IPV, GBV and Family Violence: Personal and Community Responses”, and featured Pamela Cross, Legal Director, Luke's Place Support and Resource Centre, Dr. Deborah Doherty, former Executive Director of the Public Legal Education and Information Service of New Brunswick, Emma Halpern, Executive Director, Elizabeth Fry Society of Mainland NS, Professor Janet Mosher from Osgoode Hall Law School, Lorraine Whitman, President of the Native Women Association of Canada, and Dr. Rachel Zellars, Associate Professor, Saint Mary's University.  This represented the eighth MCC discussion focused on domestic violence. Several of the panelists referenced the previous panel discussions, stating that they supported the submissions made so far. It is noteworthy that this panel, like every other IPV/GPV discussion held so far, was made up entirely of women.  Those who have been watching the MCC proceedings will have noted that the Commissioners start each day with a land acknowledgment. Today, there was an additional solemn and/or ceremonial prayer-like introduction, which was lead by Ms. Whitman. Everyone in the room stood for this.  Another thing that stood out in the ‘presentation’ element of what the MCC was hosting today was the highly visible sticker on the back of Ms. Cross’ laptop. The sticker was for “Thelma & Louise Live”, which is a play based on the 1991 movie.  Those two items foretold the tone and content of the discussion, which was emotional (for the speakers) at times as they described many stories of abuse suffered by women in a wide range of circumstances. Discussions covered women suffering abuse who were also struggling with racism, their precarious immigration status, drug additions, sex work, and rural living.

This week, the focus is on two Nova Scotia Court of Appeal decisions, the Federal government attempting to override the independent Electoral Boundaries Commission, and how to have a legal Christmas party.  

In R. v. Mitchell, the NSCA called out an RCMP Corporal for deliberately violating the Charter rights of an accused by kicking down his door and attempting to arrest him without a warrant inside his house. The Appeal Court agreed with the lower Court ruling that the behaviour of the police was so serious as to justify a stay of proceedings on the charges for which Mitchell was being arrested.  

In another NSCA decision, the wealthiest man in Nova Scotia lost an appeal over his divorce agreement. John Risley claimed to have paid the $10 million he owed his former spouse, but the Court of Appeal stated that he had not even presented a genuine issue, and dismissed his appeal. They said that his "baldly stated opinion" was not evidence, and was contradicted by emails he had sent discussing the very issue that was under appeal.  

The politically independent Federal Electoral Boundaries Commission has adjusted the electoral map for Nova Scotia, and now a member of the Liberal government is threatening to override the resulting report for political purposes.   

I start this video with some advice on Christmas parties. I briefly discuss host liability, and also found support for those who might not want to go to the office Christmas party, but are worried that there will be employment consequences. A French court has sided with an employee who did not wish to attend an office function, calling it the "right to be boring".

The second day of phase three of the Mass Casualty Commission proceedings featured presentations and discussions on how gender based violence can be addressed. I discuss how it may not be through the MCC that such issues are best addressed, as it has not yet been compellingly argued that domestic violence is the best lens through which to assess what happened.  The RCMP 'psychological autopsy' suggested that the killings were Wortman's way of humiliating his spouse, but it seems just as likely, if not more so, that his target was the RCMP itself.

This was a dramatic day of evidence in the Mass Casualty Commission. For the first time, we have heard the voice of Lisa Banfield, and were able to walk in her shoes, in a sense, as she did a re-enactment of her movements during the overnight hours of April 18-19, 2020. This was all in advance of her expected appearance on Friday, and seemed designed to remove all drama from that appearance. Before the presentation, we heard from two Australian experts on gender-based violence.

Just before being appointed as one of the three Commissioners of the NS Mass Casualty Commission, Toronto-based lawyer, Kim Stanton finished writing a book on Inquiries, called Reconciling Truths. There are several themes and lessons the MCC may draw from this work, which might help it fulfill its mandate, and increase the level of public trust in the Commission.

There were three important happenings today relating to the Mass Casualty Commission. Two of the three took place within the Commission proceedings, while the third occurred across the harbour in the Dartmouth Provincial Court.  In Dartmouth this morning, Crown Prosecutors advised the Court that they were referring Lisa Banfield’s criminal charges to restorative justice. She had been scheduled to go to trial later this month on charges of supplying ammunition to her spouse, Gabriel Wortman. That trial will now not take place.  In the Commission proceedings itself, the day started off with a presentation from Commission Counsel, Roger Burrill, addressing the Commission’s findings on the perpetrator’s movements overnight, when he left Portapique and drove to Debert.   Video surveillance from businesses along the route show that Wortman drove north into Debert, took a right down Ventura Boulevard, then drove into the Debert Business Park. It was there where he parked behind Brian MacDonald’s welding shop for nearly six hours. The next video evidence is of him driving west on Ventura Boulevard at 5:42 AM.  The final matter of significance the proceedings today was a decision by the Commissioners with respect to witnesses who will be called to testify. To their credit, the Commissioners not only returned with a decision in a timely fashion, giving it now, rather than when the proceedings come back on at the end of March, and they also approved nearly every witness that was requested by the parties. That means that Lisa Banfield, the first responding officers, all of the involved Staff Sergeants and other supervisors, as well as the commanding officers for the Province and the head of the RCMP.   This was the first clear indication from the Commissioners of what ‘trauma-informed’ means in the context of this inquiry. There will be witnesses, and they will be subjected to cross examination. This is a key moment not only for the families, but also for the public confidence in the MCC.   The first witnesses will be called on March 28th, and they will be the three officers who were the first ones in Portapique after the initial 911 calls. Cst. Stuart Beselt, Cst. Adam Merchant, and Cst. Aaron Patton will testify together as a panel, and there will be other witnesses that week. The supervisors are expected to testify in late May, when the MCC takes a closer look at the command decisions that were made during the mass casualty.

On the second day of proceedings this week before the Canada Day long weekend, there were three featured items on the MCC agenda. First, there was an announcement on a schedule of significant witnesses who have been subpoenaed to appear over the summer. Then, there were two roundtable discussions, one on mental health impacts on first responders, and one on policing rural communities.  Commissioner MacDonald read from a statement that the MCC has released on their website this morning, regarding significant witnesses from whom the Commission will hear over the summer months. They include Lisa Banfield (July 15), Supt. Darren Campell (July 25-26), Chief Supt. Chris Leather (July 27-28), Assistant Commissioner Lee Bergerman (August 22-23), and Commissioner Brenda Lucki (August 23-24).  We will also hear from Cst. Greg Wiley (who has stated that he visited with Wortman over 15 times), Cst. Troy Maxwell, and Wortman’s former Portapique neighbour Brenda Forbes, though the dates have not been published. Cpl. Rodney Peterson will not testify, but will rather submit a sworn affidavit.  The most notable part of that announcement is with respect to Ms. Banfield. Officers who participated in press conferences are testifying for two days, while the person who lived with the killer for 19 years, and spent the day with him before he went on his killing spree is going to testify for only one. It does not bode well for an in-depth examination of their lives together, or any hope that we will get a thorough examination of what lead to Wortman killing 22 people. In the midst of approximately 7-8 hours of available time, there will be breaks for lunch, two lawyer meetings to discuss what further questions should be asked, and perhaps additional breaks for Ms. Banfield to gather her strength.  Just as significantly (and perhaps more so), there will be no cross examination of Ms. Banfield by lawyers for other participants. Instead, questions will need to be submitted to Commission lawyers, who will decide what questions will be asked.

This week, I review a Dalhousie Law School graduate who challenged the Alberta Law Society's requirement to swear allegiance to the Queen, the Federal Crown asking the court to impose a retroactive publication ban (and then threatening to charge the Halifax Examiner with violating that publication ban) after an embarrassing display from a witness protection program witness, indigenous fishers charged in 54 cases in Nova Scotia, and a warning from the Supreme Court of NS about lawyers using artificial intelligence in their legal arguments. Before getting into the big stories, I mention the Trump lawyers who plead guilty this week to election interference charges, the Saskatchewan Parents' Bill of Rights passing, and the five year anniversary of the legalization of cannabis in Canada.

This week, I discuss some reconciliation videos being filmed, including one I did with Chief Stephen Augustine on the legacy of Donald Marshall Jr., the most impactful individual litigant in Canadian history, in my view. In the news this week, the NS Mass Casualty Commission continues to release new information, even though proceedings have concluded. This week featured a memo regarding the Onslow Belmont Fire Hall shootings, which was quite critical of the officers who did the shooting, and SiRT for clearing them of liability. The NS Court of Appeal wrote an unusual letter to the NS Bar Society complaining about the large number of appeal hearings being adjourned in recent months.  A doctor from Amherst has had three sexual assault charges stayed, as the court tries to sort out whether a Crown prosecutor who had previously represented a potential victim in a civil suit against the doctor is in conflict.  NS Power has extortionary legal authority by virtue of the NS Power Privatization Act. One is an insulation against liability for power outages. I discuss how that might change.  Finally, this week in the Emergencies Act Inquiry, the National Security Advisor to the Prime Minister sought to re-define how the Inquiry should interpret what it means to be a "public order emergency". I discuss why I do not find her submission persuasive.

The Mass Casualty Commission continued to hear from senior NS-based RCMP commanders today, with testimony from Chief Superintendent Chris Leather. C/Sup Leather was the second ranking officer in Nova Scotia at the time of the events of the mass casualty. He was in Halifax after having testified Monday in Ottawa before the Federal Public Safety and National Security Subcommittee.  Among the observations I was able to make from being at the Harbourside Marriot in person were that there were many empty seats (there were about 25 people watching, in addition to the lawyers, MCC staff, and media), perhaps a reflection of the choice to have these key witnesses appear during one of the hottest, nicest, weeks of the Nova Scotia summer.  Speaking with people during breaks, I was able to learn (to my complete lack of surprise) that the lawyers for participants are getting increasingly frustrated that they are being marginalized as they have been. The MCC choices have made it very difficult for these lawyers to properly represent their clients, by cutting off any real opportunity for questioning witnesses.  Also, I learned that Superintendent Darren Campbell’s acknowledgement at the end of his testimony yesterday of mistakes that the RCMP made, and his apology to the families, made an impact. Sup. Campbell spent 45 minutes speaking with one of the family members after he testified, and was reportedly quite genuine in his remarks.  C/Sup. Leather seemed to be quite subdued in his demeanor. Perhaps this is his natural personality presentation, but he was certainly a low-energy witness. One of the first topics he discussed was emergency alerting, and the training for that. He seemed to be advocating for a limited group of supervisors to have access to the system, noting that you had to take care to properly craft an emergency message. This seems likely to reinforce the problem of messages getting out too slowly, which is all contrary to the expert advice the MCC received on emergency alerts. In discussing the main topic of his testimony, the press conferences that he lead, C/Sup. Leather did express some regret and contrition, while also deflecting blame to communications staff. He suggested that he had very little training in press conferences, or time to prepare for questions. It may be fair to argue that less training, rather than more, is appropriate for police communications with the media. Such training seems designed to help the officer conceal information from the public, rather than properly and fulsomely reveal it.

The Mass Casualty Commission is sitting for two days this week, during which there will be a series of “Small Group” sessions, which we are assured is different than a “Roundtable” or “Witness Panel”, despite their similar appearance.  We had been expecting to hear about the resolution of an application to the Commissioners by Frank Magazine (and supported by many others) first thing Monday morning, but there was no mention of the videos at any point during the day, and they are still not posted to the MCC website. This would seem to be contrary to the expectations of the applicant, so something may be going on there. Whatever it is, the Commissioners evidently felt no compulsion to tell us anything about it.  The first small group session involved paramedics Jeff Aucoin, Jesse Brine, Bruce Cox, and Melanie Lowe. Each of them responded to calls during the mass casualty events, with Mr. Aucoin, Mr. Brine, and Ms. Lowe among the first to arrive at Portapique.  In the afternoon, two 911 call takers participated in a discussion. Both Bryan Green and Kirsten Baglee were in the Operational Communications Centre on the morning of April 19, 2020. They spoke of the sheer volume of calls and information they had to process, and gave a sense of a room where there was ‘controlled chaos’ taking place.

The MCC’s short week of proceedings continued and concluded today with two further ‘small group’ sessions. The morning session featured service providers from Victim’s Services, the Medical Examiners office, and a funeral director. In the afternoon session, we heard from MLA Tom Taggart, and Mayor Christine Blair. It is in the mandate of the MCC to look at the services that were available and provided to victims, their families, and the community, and so it was necessary in a way to hear from these individuals. I suspect the audience numbers for today and yesterday’s sessions were considerably lower than for days where there were factual witnesses testifying about the events of the mass casualty itself.  The morning session, in particular, was not exactly riveting television. The speakers, following the lead to the (two, for some reason) moderators, spoke slowly, and in low tones. Similar to the paramedics and 911 call takers from yesterday, these participants were trying to convey what it is like to be them, or to be in their role, during an event such as this. They were not called to provide factual narratives of what took place, but rather to give us a window into their worlds, and to comment on any changes that they may recommend.

After providing his direct testimony yesterday, Superintendent Darren Campbell was cross examined by lawyers for the participants today. Sup. Campbell was the third ranking RCMP officer in Nova Scotia at the time of the April 18-19, 2020 mass shooting, and is the first of the senior ranking RCMP officers to testify at the Mass Casualty Commission. Before Sup. Campbell’s testimony began, we learned that the criminal charges against Lisa Banfield of supplying ammunition to Gabriel Wortman were withdrawn by a Crown lawyer for the NS Public Prosecution Service. The families have not been told what conditions may have been attached to Ms. Banfield’s restorative justice process, which lead to the charges being dropped, but given the timing of the withdrawal, it seems clear that her appearance before the MCC must have been the main, or perhaps only, condition.  I have been told that the families have been told by a lawyer for the MCC that this was not the case. It strikes me that this answer lacks credibility. It is often the case that when a matter returns to Court to be withdrawn after the completion of restorative justice, there is mention of what was done outside of the Court process as part of the RJ agreement. That should be done here, given the high profile and high stakes of this particular matter.

This week, I review the reason for, and impact of, the inquiry on foreign interference decision on standing, which limited political parties' participation. Also, newly appointed Chief Judge Perry Borden has initiated a complaint against Judge Al Begin, over a decision I covered last week where the Court of Appeal overturned a decision of Judge Begin. Finally, the citizens group challenging the Antigonish Town and County councils over their approach to consolidation were dealt a setback with a decision from Justice Gabriel about the validity of the motions the two councils adopted, which asked the Provincial government to enact special legislation to consolidate the two municipal units.

This week in law, I examine why Crown Prosecutors in Nova Scotia are speaking out about the frailties of the NS justice system. I compare some of the early information from the Lewiston, Maine shootings to the NS Mass Shooting and lessons learned through the MCC. There is a new Supreme Court of Canada Justice - I cover the suspect reasons for the vacancy, and the process for appointing a SCC Justice. John Carpay and Randal Cameron, the lawyers behind the effort to follow a judge around with a private investigator during the covid lockdowns, have been banned from practicing law in Canada for three years as part of a plea deal. I examine that situation. Finally, I cover two NS cases that were published this week - one a sad story of a missed diagnosis on a newborn, and the other an unusual case of the Crown applying to have a defense lawyer removed from a homicide trial.

This week I focus on two NS Court of Appeal decisions. One relates to the delay in Judge Rickola Brinton's decision in the sexual interference and exploitation trial of Brandon McNeil (who now goes by the name Brynn Milner), and the plentiful blame that can be laid at the feet of Judge Brinton, as well as former Provincial Court Chief Judge Pam Williams. The other is the successful appeal of a 2nd Degree Murder charge by Gregory Purvis. The Court of Appeal found that his rights were violated through improper instructions by the trial judge to the jury deciding his case. I review those errors, and the allegation of ineffective counsel. Also covered are the appointment of former Lieutenant Governor Myra Freeman to chair the Mass Casualty Commission implementation committee, the Trump verdict (with some commentary on the performances of the two main lawyers on the case), the lawsuit filed by the Province of Newfoundland and Labrador's Justice Minister John Hogan against the Federal Government regarding equalization, along with some comments on the death of Robert Pickton and the decision to drop all charges against world #1 golfer Scott Scheffler.

This week, Paul and Adam discuss the revelations that a reporter for The Atlantic was invited to join a high level group chat on Signal, which involved attack plans for Yemen. Also discussed, the case of Turkish national Rumeysa Ozturk, a student on a study visa in the US being abducted by ICA agents and transferred out of state contrary to a court order. Paul has some sources telling him about operations within the OPP, and Adam discusses how 'Mr. Big' operations work, and why they are seen as problematic. Finally, the guys end with a chat about baseball, and whether Mike Trout may end up on a decent team for once.

This week in law, I examine the writ of mandamus application by an Ontario lawyer to force the Federal Government to name judges, the new Federal 'Action Plan' re: the United Nations Declaration on the Rights of Indigenous Peoples, the NS MLA suing the government over a resolution aimed at expelling her from the Legislature, an estate case where a dying beneficiary asked her mother to give her share to her husband, a sexual assault trial where the admissibility of Tinder messages was discussed, and a dispute between Sipekne’katik First Nation and Mi'kmaq Family and Children's Services over the value of a building on the Reserve after MFCS was told to vacate the property.

The Mass Casualty Commission started Phase 3 of their work, which is to be focused on parsing through potential recommendations from participants, and determining which might form part of the final report. That report, which was expected to be delivered November 1st, is going to be five months late, after the MCC received permission from the Provincial and Federal governments to do so. I discuss the reasons given for this significant delay.  Today, there was a presentation from MCC lawyer Jennifer Cox on the many previous inquiries and commissions which have made recommendations on subjects being covered by the MCC. This was done to avoid duplication, and also as a warning of sorts to avoid making recommendations that do not lead to action. Finally, there were presentations from victim advocacy groups, with their recommendations. This involved lots of victim advocacy lingo and pleas for more resources, but not much connecting of the recommendations to the actual events of the mass casualty. There are no proceedings tomorrow. Wednesday the MCC is back, and will be hearing from gender-based organizations.

On a day when the MCC proceedings included a technical roundtable on communications interoperability, followed by an expert witness presentation on supporting survivors, the main public focus turned to (or remained focused on) a brewing political controversy. The Commissioner of the RCMP, Brenda Lucki, has become the subject of heavy criticism following the revelation that she tried to compel senior NS-based RCMP officers into releasing the makes and models of the firearms used by Gabriel Wortman in the April 18-19, 2020 mass shootings during one of the initial press conferences. She is alleged to have done so at the direction of Prime Minister Trudeau and Federal Public Safety Minister Bill Blair. I think many people have things wrong when it comes to Commissioner Lucki.

This is going to be the last video prior to a summer break for the Rodgers Brief. If any major stories arise, I will be back with videos, and regular scheduled weekly analysis will return in September. This week, I review the Supreme Court of Canada's decision in R. v. Basque, where the Court made a major change to how driving prohibitions are done following convictions for driving while impaired. Now, pre-conviction driving prohibition time will count towards a sentence. Also this week, the NS Civil Liberties Association was denied standing to argue that the highway blockade bans in NS in January and February 2022 were unjustified, a decision granting a mother's move to Ottawa with her child was overturned by the Court of Appeal, and a man who was convicted of shooting his brother was found not guilty of intent to endanger his brother's life. Finally, I review the decision of the US Supreme Court to strike down the affirmative action admission programs at Harvard and the University of North Carolina

We are learning more about the RCMP command structure as the Mass Casualty Commission proceedings continue. Today, two further recently retired staff sergeants testified. Staff Sgts. Jeff West and Kevin Surette testified together as a panel. They were working together in command of the mass casualty response for the bulk of the 13 hours over which it took place. Staff Sgt. West was in charge, with Staff Sgt. Surette in support. No reason was offered by Commission lawyer Roger Burrill in the introduction as to why these two witnesses should testify together, and certainly no compelling reason was obvious. Command decisions and structures within the RCMP are certainly a major focus of the Commission, and so it would have seemed sensible to me that these witnesses would have been examined separately. As it stood, there was a great deal of mutual support offered by each for the answers of the other witness, and this can have the effect of giving artificial credibility to answers that might otherwise leave the listener in doubt. Staff Sgt. West retired in July, 2021, and Staff Sgt. Surette retired in August, 2021. They are the latest in a growing line of RCMP supervisors who have retired since the mass casualty events. Such a mass exodus in the upper ranks of the force certainly fosters suspicion about the felt quality of decisions made at the time, though also may clear the ground, in a sense, for new leadership to take over.  The staff sergeants today spoke about getting called into the situation, information they received, setting up the command posts at the Great Village Fire Hall, and then coordinating the response and deployment of resources. Though they are both retired, neither staff sergeant was seemingly prepared to acknowledge any errors made, or recognize the potential for meaningful improvement.

The NS Mass Casualty Commission issued an update this week on their progress, as we approach the March 31st (extended) deadline for their report. I review the update, and a talk with St. F.X. students I will be giving this week. Small Claims Court Adjudicator, Tuma Young K.C. issued a decision this week in the Mi'kmaw language. In doing so, he referenced the Mi'kmaw Language Act which was passed last year, and which enshrined Mi'kmaw as Nova Scotia's 'first' language. The devolved Scottish Parliament in Edinburg is attempting to pass gender recognition legislation that is generating major controversy and push-back in the UK. Canada has been cited as an example by the governing SNP of how such legislation might operate. British Columbia is starting a three-year pilot project, with the approval of the federal government, to legalize the possession of up to 2.5 grams of hard drugs, in an effort to treat the issue as one best primarily dealt with as a public health matter. I discuss how this is expected to work, and why it does not directly address the main cause of the thousands of deaths this policy is designed to prevent. Finally, I review two cases released by the Supreme Court of Canada last week dealing with Charter challenges to the validity of mandatory minimum sentences in cases involving gun violence. The defendants claimed that reasonable hypothetical situations showed that the mandatory minimum sentences amounted to cruel and unusual punishment. The Court agreed in one case but not in the other. I explain why, and why some may prefer Justice Cote's dissenting opinion in the one where the Court struck down the law.

This week in Canadian law, the Emergencies Act Inquiry looked at the protests that were taking place at the Ambassador Bridge in Windsor, ON, as well as those at Coutts, Alta. In both cases, evidence presented seems to show that both protests were disruptive, but that the Emergencies Act was not necessary to deal with them. Also during the Inquiry, one of the lawyers collapsed in the middle of questioning a witness. I discuss how a lawyer needs to be physically ready for court in order to be mentally sharp when it matters. This week the Supreme Court of Canada upheld a mandatory minimum sentence for a woman convicted of importing nearly 2kg of cocaine through the Toronto Pearson Airport. This broke something of a trend of courts striking down Harper-era legislation on sentencing. The SCC said that it was up to Parliament to make changes to this legislation, as it did not offend the Charter as it was applied here, despite the accused being an Ojibwe woman and the issue of overincarceration of indigenous offenders. Next, I review C-11 and C-18, both of which deal with online content regulation in Canada. C-11 would allow the CRTC to regulate user-generated content, and C-18 would restrict how news articles are shared on social media. Combined, these Bills would restrict freedom of expression online, and are not an appropriate response to revenue issues in the traditional media landscape. Finally, I review a criminal case out of the NS Court of Appeal, where the Court reviewed how apologetic text messages sent after an alleged sexual assault may be used in a trial. It is not correct to have "repetition enhance credibility" but okay where the content amounts to an "admission".

Looking back on 2022 in Canadian Law means looking back at three public inquires that took place, some notable decisions from the Supreme Court of Canada, and some thoughts on pandemic-related litigation.  

The Desmond Inquiry and the Mass Casualty Commission were based in Nova Scotia, but are national in scope, examining re-integration of our military members, and the way we are policed. The Public Order Emergency Commission is examining whether it was proper to invoke the Emergencies Act back in February during the trucker protests. Each of those inquiry reports are expected to be released in early 2023.  The Supreme Court made decisions dealing with mandatory minimum sentencing, rights to counsel, and drug-induced automaton defenses.  

In 2023, we will see the reports from the various inquires, and will potentially see a privately funded inquiry examining the governments' response to the pandemic. I will also be watching to see whether there is any development in the Federal Department of Fisheries towards establishing a regulated, Marshall decision-based aboriginal fishery on the east coast, which might help put an end to violent confrontations on the wharves and waters in our fishing communities.

In my piece yesterday, I noted how Comm. Lucki was able to answer questions at length, and with reference to specific details, in contrast to the answers of the RCMP’s NS Commanding Officer Lee Bergerman. Today we saw a different version of that kind of answer from Comm. Lucki. She was still answering at length, but was more often unable to provide details on elements of the RCMP operations, which are all ultimately under her command.  Many of the questions were relating to operational details of the RCMP response to the events of the mass casualty, as well as the RCMP’s ability to adopt recommendations made by previous outside reviews from third parties. Comm. Lucki seemed less aware than one might expect from the leader of the RCMP about the progress of recommendations from the review of the death of Colten Boushie, and the MacNeil Report from the Justin Bourque shootings in Moncton.  This is all important for two reasons. One is simply that the MCC is going to be making a series of recommendations, and the RCMP will no doubt be the subject of many of those. So, it is helpful for the Commissioners to know whether the RCMP has a good or bad track record of incorporating recommendations, and if the track record is bad, what oversight protections must be in place to ensure that the forthcoming recommendations will be implemented in a timely fashion.  The second reason is to examine the culture of the RCMP itself to determine whether it is an organization that is capable of contrition and change, and thus can be trusted to regain the trust of Nova Scotians and remain as the de facto provincial police force.  There was a mixed bag of examples from Comm. Lucki’s testimony today that leave the answers to those questions unclear. At the end of her testimony, Comm. Lucki did apologize on behalf of the RCMP, for the force not being all that the public expected and needed. This was not an emotional apology from the Commissioner, but (in part because it was not emotionally driven) struck me as sincere.  The MCC Commissioners had a few questions for Comm. Lucki. Commissioner Fitch asked about how it was possible to change the RCMP without changing the culture, to which Comm. Lucki said that the culture is changing, and that change is being measured in detail through such things as detailed annual member surveys, code of conduct case analysis, and exit interviews with departing members.  Commissioner Stanton asked about the structure of contract policing, and noted that there have been reports, such as the 2007 Brown Report, as well as more recent efforts in BC and Alberta to reassess their contract relationship with the RCMP. Comm. Lucki was quite interested in this area of questioning, and was naturally determined to persuade us that contract policing was sustainable, with some reform.  The biggest news of the day may have come in the final moments, when Chief Commissioner MacDonald implored Commissioner Lucki to be a courageous champion for whatever recommendations emerge from the MCC process. One might see this as a sign that the MCC is not going to recommend that the province form their own police force and end the contract with the RCMP. That may be reading too much into the remarks, but that is how they sounded to me.  The MCC will be back tomorrow with Halifax Regional Police Chief Dan Kinsella. He will be testifying starting at 2pm.

There were some interesting cases out of Nova Scotia this week, including the Crown's successful appeal of Colin Tweedy's acquittal on the death of 10 year old Talia Forrest, and the retrial of Dal Med student William Sanderson for the murder of fellow student Taylor Samson. There is a new Federal tax in place, which seem to be encroaching on Provincial jurisdiction. The Underused Housing Act targets residential properties that are owned by non-citizens or non-residents, and imposes an annual tax of 1% of the value.  The big story of the week internationally is the announcement that Alec Baldwin would be arrested for involuntary manslaughter (the equivalent of Criminal Negligence Causing Death in the Canadian Criminal Code) following the shooting death of the cinematographer on the set of the film 'Rust' in 2021. Baldwin had a gun that was to be a prop in the film. The charges should not have been laid against Baldwin, and this seems to be an effort by the District Attorney to get her 15 minutes.

Happy Father's Day! This week in law, I cover the controversy over the shortage of Judges in NS's Provincial Court, the Crown cross-appeal of the William Sandeson verdict, the rejected claim for $170,000 compensation for illegally caught lobster, the 15 year old accused C.P. Allen student's plea on attempted murder by stabbing allegations, the tragic life and death of the wrongfully convicted Glen Assoun, the Canadian Civil Liberties' complaints about Bill C-20, the Supreme Court of Canada's verdict on the Safe 3rd Country legislation, the early and controversial retirement of Supreme Court Justice Russel Brown, and finally the use of former President Donald Trump's lawyer's notes in forming the case against him.

Today was an important day at the Mass Casualty Commission. Four RCMP officers whose actions had been the subject of many critical questions testified about their involvement in the effort to stop the active shooter. In the morning, Csts. Terry Brown and Dave Melanson testified together as a witness panel about the shooting at the Onslow Belmont Fire Hall. In the afternoon, Cst. Ian Fahie and Cpl. Duane Ivany testified individually about their involvement in the treatment of Heather O’Brien, after she was shot.  The Union representing RCMP officers had objected to any of these officers testifying, suggesting that it would be too traumatic for them to do so. As expected, there was little evidence of any such trauma in the officers when they actually testified. They all answered the questions asked of them without difficulty or hesitation. The content of those answers, however, was less than satisfactory.

I start this episode by discussing a visit I had with 4th year forensic psychology students at St. F.X., their thoughts on my Deficits of Trust report, and on the psychology of the killer, Gabriel Wortman.  This week also saw the federal government file its defense to the lawsuit started by Wortman's spouse, Lisa Banfield. I discuss the strengths and weaknesses of the defense.  The murder trial of William Sandeson took a dramatic turn this week, with Sandeson himself taking the stand and (for the first time) claiming that he shot Taylor Samson in self-defense. I go through he claims, and evaluate how the Crown's case is now looking, as well as what kind of special instruction the judge may now have to provide to the jury.  This week in Canadian law, non-disclosure agreements and bail reform were under discussion at the Canadian Bar Association conference. Justice Minister Lametti suggested that the federal government will heed the calls from the opposition and the Premiers to make changes to our bail system for alleged offenses where guns are involved.  I also review the change of plea for former MLA Hugh MacKay, the proposed class action lawsuit against the Canadian Hockey League, Dalhousie Law students claims of racism, and the Law Society of Alberta vote on mandatory education on indigenous legal culture and traditions.

The final day of Mass Casualty Commission proceedings before a three week break featured some revelations, expressions of regret, and careful answers from Chief Superintendent Chris Leather, who was the second ranking RCMP officer in Nova Scotia at the time of the events of the April 18-19, 2020 mass shooting. These all emerged from cross examination by lawyers for the family participants, though I noticed that in her introduction to the day, Commissioner Fitch did not say the words “cross examination” but rather stated that MCC lawyer Rachel Young would facilitate questions from participants’ counsel. Nothing really turned on that characterization, but it is another subtle example of participants’ lawyers being marginalized by the MCC. All Ms. Young was called upon to do was state the order in which the other lawyers would be speaking, and rough time estimates for them to do so. Michael Scott from Patterson Law was the first lawyer to question C/Sup. Leather. He started by picking up on a comment that C/Sup. Leather made yesterday that he did not want to answer a question without speaking to legal counsel. It seemed yesterday that Ms. Young should have followed up on that statement, but she did not. Today, C/Sup. Leather was prepared to speak further, and it was a significant exchange. Perhaps most striking from C/Sup. Leather’s testimony was his refusal to agree that, if the same circumstances happened today, an emergency alert would be issued. Leather vacillated on his answer, and would only go so far as to say that it would be something for the Critical Incident Commander to consider. I suspect C/Sup. Leather was conscious of the civil case against the RCMP when he gave this answer. If he were to explicitly say that an alert would definitely be issued, that would be used against the RCMP in the class action by the families to show that the RCMP’s response to the mass casualty events fell below the expected standard.

This week, I focus on some Nova Scotia-based cases, as well as the Supreme Court decision on a Quebec police officer, Jordan Peterson's rejected appeal, and the upcoming Parliament. In Nova Scotia, a 22-year old has been charged with setting the Shelburne fires, former political staffer and candidate Nargis DeMolitor has sued the Premier for wrongful dismissal and defamation after she was fired for an anti-semantic tweet, and a judge has declared that the rampant lockdowns in NS jails are illegal. Following up on some cases discussed in earlier videos, Ernest MacEvoy has been sentenced for aggravated assault after shooting his brother in the leg with a shotgun, and a Bedford teenager is seeking to have his attempted murder charge tossed due to Charter violations. The Supreme Court of Canada has upheld the conviction of a Quebec police officer who was on long term medical leave, and was convicted of fraud over $5000 for minimizing his ability to work while on leave. This will reverberate through employment law circles. Jordan Peterson has lost his bid to have the Ontario Court of Appeal hear his appeal of a requirement by the Ontario College of Psychologists to have him take mandatory social media training. Finally, I look ahead to the upcoming session of the House of Commons, which will include debates on legislation dealing with cross-border device privacy, offshore energy development, and RCMP oversight, along with the public inquiry into election interference.

This week saw the final two days of evidentiary proceedings in the Desmond Fatality Inquiry, bringing to a partial close a process which opened May 21, 2019, and where hearings began in earnest in January, 2020. The stark contrasts between how the Desmond Inquiry has unfolded, and how the Mass Casualty Commission proceedings have started, brought me back to the opening remarks of Desmond Inquiry presiding Judge, Provincial Court Judge Warren Zimmer.  In his remarks, Judge Zimmer touched on important legal distinctions between a fatality inquiry and a public inquiry, and some of those remarks are helpful for understanding what is now taking place in the MCC. In particular, these remarks can help us understand how the legal nature of the Commission not only allows for, but indeed invites, appropriate political interference.  The Commission is entirely a creature of the federal and provincial cabinets, reports to them, and can be canceled by them at any time. And, unlike a sitting Judge, the Commissioners have no legal guarantees of their ultimate independence.  In thinking about whether it may be appropriate for the government to intervene in the Commission, consider that the Commission was initiated by the previous provincial Liberal government, under the direction of then Justice Minister, Mark Furey, and then Liberal federal Public Safety Minister, Bill Blair. These Ministers initially wanted merely a “review” to take place, and only agreed to call an inquiry after being confronted with overwhelming public pressure to do so.  So far, however, the presentation of evidence, and the tightly controlled access to information in the Commission process, gives it the look and sense of a review, rather than pure inquiry process. So far, we have only heard the Commission’s unchallenged version of events, and it is not clear that all available information has been disclosed to the parties.  The Mass Casualty Commission has not been like the Desmond Inquiry, where all evidence was provided to the parties in advance, and relatively unfettered cross examination of witnesses has been routinely featured throughout.  Should the new provincial government determine that the MCC is not fulfilling its mandate, or is misinterpreting the direction given in the Order in Council, it may appropriately feel compelled to intervene. Given the comments from Minister Fraser, it may be expected that the federal government would support such an intervention. There is nothing conceptually improper about doing so, should the Commission proceed in a manner that is not in the public interest.

As we delve further into the Mass Casualty Commission proceedings, we are seeing a variety of formats for the conveying of information. Today, the MCC proceedings featured six individuals in what was called a ‘round table’ discussion, answering questions about police paraphernalia and those who impersonate police officers.  (Information was conveyed, and questions were answered, but I am purposefully avoiding using the word ‘testimony’, as the witnesses were not sworn in, nor was there any suggestion that these individuals would potentially be subjected to cross examination.)  Krista Smith from the MCC was the moderator, and the speakers were former Kentville Police Chief Julia Cecchetto, retired RCMP officer Brian Carter, retired Edmonton Police Inspector (and memorabilia collector) Phil Baily, self-described “settler lawyer” Meaghan Daniel from Montreal, and Oxford University Professor Ian Loader (speaking from Melbourne, Australia).  Carter spoke about earning your uniform as an officer, and that the ceremonial uniform was an important possession for retired officers. Baily spoke about the community of collectors, and how collecting and exchanging memorabilia can be a social connector with other police officers. Cecchetto was less sentimentally attached to the police uniform or paraphernalia ,and suggested that if citizens are unsure of whether someone is an officer, they should call dispatch for confirmation or drive to the police station to have the status confirmed.  The key points from the day came from Prof. Loader and Ms. Daniel. Prof. Loader noted how venerated and revered the RCMP brand has become, like the British police, and that it is difficult to have a sober conversation about reforming police structures and practices because of that status. Ms. Daniel added that for marginalized individuals, the brand is not a symbol of safety, but rather terror. She also made an important point when asked about the risk/benefit analysis of allowing police memorabilia to be possessed outside of actively serving officers. She said we should look at who bears the risk, and who gains the benefit when we ask that question.  After the discussion concluded, Commissioner MacDonald spoke about a decision the Commissioners have made with respect to Cst. Vicki Colford. They are going to allow Cst. Colford, who was stationed at the head of Portapique Beach Road during the early hours of the killing spree, to answer questions in writing by sworn affidavit. This is certainly not the most effective way to get answers, but Cst. Colford must have presented compelling evidence of her mental health condition or concerns.  The other note was from Commissioner Fitch, who confirmed that the MCC’s interim report would be released on May 1st, as scheduled, and that it would be posted to the MCC website. Expectations are quite low for this report, given that we have not completed the examination of witnesses for any portion of the killing spree. Commissioner Fitch said that there would be no recommendations contained in this initial report.  The MCC is back then next Monday, May 2nd, when there will be presentations on firearms access and the laws surrounding the possession of certain guns. I am going to be reviewing the seven published reports that are now on the MCC website to see what, if any, wisdom may be gleaned from them.

There was an interesting discussion of a potential new model of policing today at the Mass Casualty Commission. Unfortunately, that discussion was mostly hidden among long, academic discussions that purposefully avoided discussing the events of the April 18-19, 2020.  The new kind of policing is meant to take a broader look at community safety and wellness, rather than a narrow focus on such things as arrest rates and police budgets. The fact that the MCC held this discussion is significant in a way, as the recommendations one might pull from the discussions seem to run counter to the current experience of policing Nova Scotians are having with the RCMP.  It may be that the MCC is seeking to foster public support for change by hosting this discussion, or it may simply be a way of placating the many participants who were part of today's discussions. The Commissioners expressed appreciation for the quality of the discussion, though did so in their usual rehearsed/formulaic manner, which makes it difficult to judge their sincerity.  Tomorrow there is a further discussion on policing, this on the structure of policing in Nova Scotia.

A comment from Commission investigator, Barbara MacLean, in the CBC article on the Mass Casualty Commission open houses caught my attention, and may help us all understand some of what is going on with the Commission.

Ms. MacLean told a community member that it was important that community members remain engaged and involved after the final report is issued in November, 2022, as the recommendations from the Commission are not legally binding.

It was correct of Ms. MacLean to point this out to those attending the open house, and is something we should all keep in mind. In fact, it goes to the very nature of this public inquiry.

The Mass Casualty Commission is like a Supreme Court in many good and important ways. It can subpoena documents and witnesses, and can compel production just like a Justice in a civil trial could do.

The Commission is very unlike a Court in that it cannot make something happen in the final instance. Unlike a Court, it cannot order that its recommendations actually be put into action. A Court can order, for example, that ownership be declared in someone’s favour, or that money needs to be paid from one party to another, and then there are enforcement mechanisms that can be utilized to give teeth to those orders.

In the Inquiry setting, instead of orders there are recommendations, which can be either followed or ignored. Therefore, the real outcome of an Inquiry comes from sustained public pressure after the fact, after the final report is issued.

The Mass Casualty Commission issued an update this week, in which they invite citizens to participate in the process (and include a survey to allow people to answer how they would like to do so), remind us of the recently revised schedule, and indicate that progress is being made on the Foundational Documents. The process of creating these documents is a unique feature of this Commission compared to other Inquiries. It is a feature which has some appeal, but also some potential areas of concern, which I will review in this episode.

There were two witnesses today appearing before the Mass Casualty Commission, one civilian member, and one staff sergeant, each of whom had a role in public communications during the events of the mass casualty. In the morning Director of Strategic Communications, Lia Scanlan testified. In the afternoon, Staff Sergeant Addie MacCallum gave his account of the events of April 18-19, 2020. Both witnesses had strong emotional responses at times during their testimony.

This week, I start with a look down south to the charges against world #1 golfer, Scott Scheffler, before the second round of the PGA Championship. I also examine the cross examination of former personal lawyer to Donald Trump, Michael Cohen, in the trial against the former President. In Canadian stories, I discuss the McGill University injunction application, seeking to end the student protests. I also review the case of the Nova Scotia government versus the Federal government over the needed upgrades to the Chignecto Isthmus. Also covered are the conviction of Colin Tweedy in his retrial over the death of 10-year old Talia Forrest, the not-guilty pleas and seeking of bail in the death of Halifax teen Ahmad Al Marrach, and the retirement of Ron MacDonald, former Anitgonish prosecutor, head of SiRT, and for the past seven years the head of the BC equivalent. Ron had some wise parting words, which other like organizations should heed.

This week, I start by reviewing the Cameron Ortis sentencing hearing, including the intervention of Michael Kovrig, who wrote a letter in support of Ortis that brought to mind the movie 'Catch Me If You Can'. I explain why the Crown and Defense positions can sometimes be so far apart from one another. Next, I discuss the RCMP's failure to meet their year end deadline to submit a response to the recommendations of the Mass Casualty Commission. Also, I review the stalled efforts to have the wrongful conviction of Glen Assoun investigated, and what SiRT should do next. The Prime Minister took another Christmas vacation to Jamaica, and is now the subject of another complaint to the Ethics Commissioner. There have been conflicting statements from the PMO and the office of the Commissioner. I review the Conflict of Interest Code to try to provide clarification. Then, I look internationally to the case brought before the International Court of Justice by the South African government, accusing Israel of genocide, looking at the merits and the politics of the allegations. Finally, I comment on the difference between Canada and the United States when it comes to elected judges (wherein I work in a Bob Dylan quote), and how that is manifesting itself in the various cases involving Donald Trump.

In criminal investigations and trials, it is not uncommon to see the involvement of confidential informants or police agents. Confidential informants, in particular, are commonly used as sources of information that can lead to search warrants being obtained by police for drug trafficking allegations. Police agents are most commonly used in organized crime investigations.  Though any linkage has been denied, there are some emerging facts which are causing reasonable people to wonder whether the mass casualty gunman, Gabriel Wortman, had some relationship with the police, as either an informant or an agent.  Wortman had a history of cross-border weapons and drug smuggling. His friend that made the RCMP decals for him has been linked with a Mexican drug cartel. While the killing spree was still ongoing, this same friend was reportedly evacuated from his home by the RCMP before children who were hiding in a basement were rescued. The RCMP called in other RCMP units rather than close by municipal police forces. Previous complaints to the RCMP about guns and domestic violence were seemingly ignored. In addition, Wortman withdrew a large amount of cash from a Brinks depot weeks prior to the shootings, in a manner that has been described as how undercover operators might behave.  That has all lead some to speculate that he may indeed be an agent or informant, and that the police are just not telling us. If that is the case, the question becomes whether we will be able to find it out during the MCC hearings, or whether there is something that would allow the State to keep that a secret.

On a day when the MCC proceedings included a technical roundtable on communications interoperability, followed by an expert witness presentation on supporting survivors, the main public focus turned to (or remained focused on) a brewing political controversy. The Commissioner of the RCMP, Brenda Lucki, has become the subject of heavy criticism following the revelation that she tried to compel senior NS-based RCMP officers into releasing the makes and models of the firearms used by Gabriel Wortman in the April 18-19, 2020 mass shootings during one of the initial press conferences. She is alleged to have done so at the direction of Prime Minister Trudeau and Federal Public Safety Minister Bill Blair. I think many people have things wrong when it comes to Commissioner Lucki.

This week I analyze the proceedings of the Emergency Act Inquiry (including Premier Ford's invocation of parliamentary privilege in refusing to testify), the Canadian Civil Liberties Association victory over NS Public Health at the NS Court of Appeal re: an injunction against protesting the Covid-19 restrictions, a BC Supreme Court case on mandatory vaccine policies in non-union workplaces (the first such decision in Canada), Dal Law's new course on African Nova Scotian legal history and Critical Race Theory, the Annapolis Group victory over Halifax at the Supreme Court of Canada re: lands in Birch Cove Lakes, and President Biden's pardoning of Americans with Federal marihuana convictions and how that compares to the Canadian approach.  I will be joining Jordan Bonaparte on the Nighttime Podcast tonight (Sunday, Oct 30th) from 8:30-10pm to discuss my Mass Casualty Commission alternative report, which is published as an ebook, and is called "Deficits of Trust". I will be on the live YouTube show along with author Paul Palango.  https://www.youtube.com/c/NighttimePod 

You can find the book (and read 15% of it as a free sample) on the following links;  https://www.smashwords.com/books/view/1174444 https://books.apple.com/ca/book/deficits-of-trust-the-rodgers-brief-report-on-the/id6444015396

This week in law, I review the appointment of retired Court of Appeal Justice Linda Oland as temporary chair of the Mass Casualty Commission implementation committee, the not-guilty verdict of former RCMP officer Kevin O'Brien on an allegation of sexual assault by a former colleague, the Crown application to have Brian Marriott declared a Dangerous Offender, the slip and fall claim by Garnet MacPherson against the Strait Regional Centre for Education, the novel property division in the case of Nadeau v. LaKing, and finally the non-quota tobacco issue in Membertou.

Staff Sergeant Brian Rehill testified yesterday, by Zoom, and the video was released this morning. S/Sgt. Rehill had asked for accomodations to allow the testimony to not be broadcast live, and for him to not be cross examined.  The MCC Commissioners granted his request, but should be having second thoughts after watching him testify without trouble for over five hours.   S/Sgt. Rehill testified about miscommunications on the containment efforts in Portapique, the dynamic of having multiple commanders giving orders over the radio, and distinctions between his evidence and S/Sgt. Halliday's when it came to knowledge of the gunman's replica police car.   MCC lawyer Roger Burrill asked the direct questions, and then asked some questions on behalf of the other participants. It is not clear why this procedure was considered less traumatic for the S/Sgt. than having  another lawyer ask the same questions, though Burrill's gentle approach and lack of any follow-up may be the answer.   In the video, I talk about what I think the Commissioners need to start doing in order to start fostering and establishing some confidence among the participants and the public. It is *not* more pre-written, vaguely phrased remarks about how difficult all this must be for everyone.

Last week, Northern Pulp filed a lawsuit against the Province of Nova Scotia, claiming for damages of $450 million on the allegation that the Province conspired to shut down “The Mill”, and in so doing cost Northern Pulp lost profits adding up to that amount. This was a predictable development, and there is a strategy behind what at first read may seem like an outrageous claim.

Many are now wondering how any kind of a lawsuit could even be possible. Northern Pulp was given a five-year legislated deadline to fix its effluent treatment system or else be shut down. It failed to build a new treatment system, the Province held fast to the deadline, and so the mill had to cease operations. It sounds simple, and if it were an interpersonal matter, and if the amount of money involved was less, perhaps that simplicity would be retained. This, however, is the world of corporations and shareholders, and so different principles apply.

After a week of dramatic testimony and revelations which made national news, the MCC is looking to be much quieter as we end the month of June. Today, there was a seven-person roundtable discussion on the mental health needs of families and communities after a mass casualty incident. On Thursday, there will be a similar discussion, focused on the needs of first responders after a mass casualty. Part of the mandate for the Commission is to examine issues around supports offered to the families of victims, affected citizens, police personnel, and the community. That means that there is a requirement to try to understand what supports might have been seen to be effective in other cases, and to compare them to what has happened in Nova Scotia following the shootings. Like with other areas that are to be studied, the MCC has taken that requirement and adopted a very (and perhaps overly) thorough approach. There was no discussion of the specific events of the mass casualty of April 18-19, 2020 in Nova Scotia. Instead, the discussion (which lasted nearly five hours) was a broadly based one that brought in other examples of tragedies in other places, such as Norway, the 9/11 attacks in New York, and the Swiss Air crash of the coast of Nova Scotia. The discussion was lead by Dr. Emma Cunliffe, who is the Research and Policy Director for the MCC. There were seven panelists (or, rather, roundtable participants) for the discussion. They were Grete Dyb from the University of Oslo, Levant Alten from Victim Support Europe, Mary Fetchet from Voices Centre for Resilience (a 9/11 support group), Great Village resident and former Norther Zone Grief Coordinator Serena Lewis, Megan McElheran from Wayfound Mental Health Group, Terry Mitchell from Wilfred Laurier University, and University of New York Associate Professor Jaclyn Schildkraut. The introduction portion of the discussion took half an hour to complete.

This week in law, I discuss my day at the Applied Forensic Psychology Day at St. F.X., the successful appeal by former IWK CEO Tracy Kitch, how a Quebec Judge says giving 'the finger' is a god-given right, the Province of NS's defense to the Allison Holtoff lawsuit, the trial of retired RCMP officer Kevin O'Brien on an allegation from 29 years ago, and an erroneous video on the distracted driving laws.  Finally, I review the Tim Horton's App case, and conclude that Tim's has more questions to answer and information to provide to contest 'winners' and the public, and how they should probably just go back to the physical rolling rims.

Heather O'Brien's death was described by MCC lawyer Roger Burrill in yesterday's Foundational Document presentation. Very important details, however, were omitted, and these were described by Ms. O'Brien's daughter, Darcy Dobson, in a Facebook post yesterday evening. Included in the post was the FitBit data from Ms. O'Brien from April 19, 2020, which showed she had a heart beat until approximately 6pm, some eight hours after she was presumed dead by police.  No EHS were permitted on site to treat Ms. O'Brien, or confirm her death, and family members were heartlessly prevented from having a moment with her.   Fitness trackers are used in legal proceedings, including most prominately personal injury cases, and are sufficiently accurate and reliable for such purposes. The MCC has the FitBit data, but did not mention this yesterday in their presentation. The officers who declared that Ms. O'Brien was deceased have not provided follow-up reports or statements to the MCC, and their comments at the time suggested that there may have been mistakes made as they rushed through assessments with one eye down the road, worried that the shooter may be nearby.   All of this is quite troubling, and it would seem that the MCC has once again mistakenly taken the position that such traumatic information is too much for the public to handle. This stance only serves the interests of the police, and is not appropriate for an inquiry that is seeking answers to difficult questions.   The MCC should have experts evaluating the data to determine what it might mean, and provide an opportunity for the participants to question the officers at an early opportunity.

The Mass Casualty Commission hosted a 'roundtable discussion' today on the structure of policing in NS. There were 20 participants, which made it difficult for any real discussion to take place. Rather, there was a series of vignettes from each participant. None of the lawyers for the parties were permitted to ask questions.  The three main points from today's proceedings were that the Province does not seem to want to take on the responsibility for setting up a provincial police force, that the reputation of the police has been getting worse, and that there needs to be much more robust oversight of the police by us citizens.

This week saw the end of the fall sitting of the NS Legislature, with long sitting days, and a few pieces of legislation passed, as the PC government passes the halfway point of its mandate. The trial of Cameron Ortis, the former Director of the RCMP Operations Research group, a high level intelligence unit, brings to mind what would happen if Ethan Hunt or James Bond were brought to trial. Ortis is alleged to have shared secret information with money launderers, while he claims to have been trying to root out moles in the upper echelons of the RCMP. At the same time, the National Security and Intelligence Committee is looking to change the way the RCMP is structured. It is not clear that anyone with the power to make those changes is paying attention. In BC, a husband in a highly acrimonious divorce was convicted of voyeurism after his wife found a hidden camera in their bedroom. In NS, two cases involving large amounts of money stolen - in one, former investment advisor Quinton Sponagle is at risk of going to jail if he does not pay back $1.1 million stolen. In another, Dawn Ellis-Abbot is found to have stolen $3.2 million from Millbrook First Nation. Finally, I look to the appeal of the stay of proceedings involving Dr. Fashoranti, a doctor in Amherst who had been accused of sexual assault against three patients. This case raises serious question about the conduct of the crown prosecutors on the case.

The Mass Casualty Commission proceedings today included two presentations on Foundational Documents by Commission lawyer, Roger Burrill. These presentations revealed several missed opportunities to stop the killer, a terrifying (seemingly impromptu) visit, and two tragic deaths. After killing Lillian Campbell while she was out walking, the killer proceeded south on Highway 4, which would have eventually led him back to the TransCanada Highway and Masstown. At 9:47 AM, Cpl. Rodney Peterson met the killer’s mock RCMP vehicle while Cpl. Peterson was traveling north on Highway 4. He immediately radioed that he thought he had encountered the perpetrator. Unfortunately, Cpl. Peterson did not immediately turn his vehicle around to follow the killer, but rather waited until he felt he had a safe spot to make a U-turn, which turned out to be 1.2 km beyond the meeting point. By the time he turned around to pursue the killer, he was out of sight. The Commission will have to confront the difficult issue of how aggressive police should be in active shooter situations. This meeting is one of several examples where it appears that more aggressive action would have been appropriate. Being aggressive is dangerous, of course, but police are supposed to protect citizens from danger, and so the Commission will need to think about what an appropriate level of personal risk for a police officer might be. Cpl. Peterson continued to drive south towards the TransCanada Highway, hoping to catch up. Meanwhile, the killer had turned into the driveway of Adam and Carole Fisher, a couple who were known to him, though not well. (The killer had asked Mr. Fisher to give him a quote on an excavating job some years prior, and had been to their home before.) Wortman drove up the driveway, parked his mock cruiser where it could not be seen from the road, and with gun in hand knocked on Fisher’s door. The Fishers did not answer the door, and in fact each of them had called 911 to alert the police of the killer’s presence. Adam Fisher had actually also called 911 earlier when he found out the name of the killer, to let the police know about the vehicles owned by Wortman. (The killer had told Fisher about his plans to assemble a mock RCMP vehicle some years earlier.) Unfortunately, because they were hiding out of sight in their home, the Fishers were not able to advise that the killer had left after just over two minutes in their yard. It would seem that the killer had only gone into this familiar location to elude Cpl. Peterson, as when he left he went north, rather than following Cpl. Peterson’s route south.  Kristin Beaton was working that morning, traveling to clients’ homes as part of her work for the VON. She had pulled over to check her phone and text with her husband when the killer pulled over next to her, went to her window and shot her. Some passersby witnessed the interaction, though not the actual shooting. Heather O’Brien was also working for VON, though at the moment was going to visit her grandchildren for her weekly Sunday socially distanced visit. She was on the phone with her friend when she was pulled over by Wortman and killed not far away from Ms. Beaton. 911 calls alerted police that these further killings had taken place, and therefore the police knew to leave the Fisher residence. The killer drove south on MacElmond Road back towards Hwy 2/4 between Portapique and Truro, and headed east on Hwy 2/4, passing the Onslow Fire Hall some minutes later.

This week, the governments of Canada, Nova Scotia, and New Brunswick reached an agreement on funding the protective infrastructure between NS and NB. This followed a Court of Appeal reference hearing, and is in advance of a federal election call. I discuss the legal issues, and how the appeal hearing may have lead to the funding announcement.Also this week, the National Judicial Institute visited the Court in Wagmatcook, to see the Gladue/Wellness/Trial/Bail court in action and learn what they might bring to their judicial education programs. I was there, and discuss what took place. Finally, with the new Prime Minister taking office, questions of his wealth and potential conflicts of interest have arisen. I review what is involved in a blind trust, and whether that is sufficient for political leaders.

After hearing yesterday about the capabilities of our emergency alert system, and the way it is organized and used in Nova Scotia, today we heard an international perspective on public safety on how such alerts are used in Australia and the UK. Michael Hallowes is an expert on the subject, who lead the development of the emergency alert system in Australia, after a career as a police officer in England. He testified today about his efforts to advise Canadian governments on emergency alert system developments.  I then look back at the conflicting accounts of the RCMP officers who claim to have examined the scene of the Heather O'Brien shooting, and discuss how a judge might approach the evidence and attempt to resolve the conflicts. The extent to which the Commissioners may examine the details of the evidence is unclear, but if they do, there are some guideposts they may use.

The Mass Casualty Commission held its final research and policy roundtable today. This one was focused on civilian oversight advice for the Commissioners, and featured 19 speakers, in addition to the moderator.  The biggest news of the day may have been the sudden announcement that Frank Magazine was not going to be publishing any more issues. Frank has been a unique and important source of investigative reporting on the MCC over the past two years, and on all things Nova Scotia for 35 years. There will be a large void to fill.  The MCC learned today that much of the current civilian oversight of the RCMP is quite limited in its ability to hold the force to account, and very little of that oversight is local to Nova Scotia.  There will be an afternoon session tomorrow, featuring a presentation from the Avalon Sexual Assault Centre and input from other "justice related" organizations. There are four days of proceedings on the calendar for next week, though there are no details available as to what will be taking place during those sessions.

There were less than two hours of proceedings on Day 7 of the Mass Casualty Commission. The process that was cut short by the winter weather last Thursday continued this morning, whereby lawyers for the various participants argued over whether, and if so when, certain officers might give testimony in the MCC.  Today was dedicated mainly to discussing RCMP supervisors, including Staff Sergeants Halliday, MacCallum, Rehill, West, and O’Brien, along with Cpl. Mills, who was the supervisor for the Emergency Response Team (ERT). Each of the Staff Sergeants were involved in supervisory roles throughout the relevant timeframe, and the ERT squad (aka – the SWAT team) was called in to assist with the search for the killer.  Unlike with the ‘regular’ members of the RCMP, Commissioner MacDonald stated that for these supervisors, the question was not whether they would testify, but when. He said that there is expected to be a further Foundational Document prepared which deals with the ‘RCMP Command Decision Narrative’, and that we can expect to hear from the officers who were calling the shots at that later (the exact time was not stated) time.  Given the Commissioners’ rejection of the NPF’s expert last week, who was planning to argue for a blanket ‘trauma-informed’ exemption from testifying for all officers, it seems unlikely the MCC will be inclined to make many broad statements about trauma experiences among police officers. They seem inclined, rather, to look at each individual on a case-by-case basis. That said, it also does not seem illogical in any way to suggest that there are distinctions between trauma directly experienced, and that which results from supervising the experiences of others. The (somewhat-manufactured) offence from the federal lawyers is unlikely to persuade the Commissioners otherwise.  These questions around witnesses are key decisions for the Commissioners to make, and though Chief Justice MacDonald said they would be making them as soon as possible, he tempered expectations somewhat as well, and so I do not necessarily expect those decisions to be made public on Wednesday when the MCC proceedings continue.  Instead, the plan for Wednesday is to have Commission Counsel, Roger Burrill, continue his presentations of the Foundational Documents, this one dealing with the overnight movements of the perpetrator. We will also hear from lawyers for the parties who have questions arising from that Foundational Document, and will recommend particular witnesses to address any gaps they identify or other questions they may have.

Welcome to the new version of The Rodgers Brief. Instead of daily analysis of the NS Mass Casualty Commission, I will be doing weekly summaries of news stories with legal angles which are either underappreciated or which I think you will find interesting.  This week, I examine; 1. Week 1 of the Emergencies Act Inquiry 2. Hockey Canada and the issue of non-disclosure agreements in sexual assault cases 3. Dalhousie Homecoming street parties 4. Antigonish Town and County consolidation votes 5. New recordings released by the Mass Casualty Commission of the RCMP conference call which generated national political controversy   I hope you enjoy the new format. For those interested in my alternate report on the Mass Casualty Commission, you can follow the link below to check out the ebook. The first 15% is available as a free preview; https://www.smashwords.com/books/view/1174444

This week in NS and Canadian law, there were reviews announced, reports released, new judges named, and a progress monitoring committee meeting. The two new NS Provincial Court judges are Alonzo Wright and Mark Heerema. Judge Wright was most recently the Director of the Serious Incident Response Team, which investigates potential misbehaviour among police officers in NS. He was new to that position, and now SIRT is in the hands of an interim Director. Judge Heerema was a Provincial Prosecutor, who had recently been defending the government's secretive approach to releasing information on the NS mass shooting. The Mass Casualty Commission Progress Monitoring Committee met this week, and released very little information afterwards. It has now been six months since the release of the MCC final report, and few (if any) of the recommendations have been implemented. One recommendation had been to conduct a review of policing in NS. The government announced this week that there would be a review, with the report expected in about a year and a half from now, just before the next election. The same timing is applicable to the other review announced this week, that of the Freedom of Information system in NS. There was news out of the Cape Breton Regional Municipality, where the fire chief, Michael Seth, resigned. It was then revealed that Chief Seth had made a harrassment complaint against four councilors regarding comments made about changes to celebrations planned for July 1st. A report from an employment lawyer found that harassment had taken place. I take a critical view of that report. Finally, the Saskatchewan Supreme Court has granted an injunction against the government implementing an education policy aimed at ensuring parental consent before any student under age 16 can use their choice of pronouns or names in school. Premier Moe has indicated the government will use the notwithstanding clause of the Charter to ensure the policy is followed. I examine the decision, and predict how the issue will play out in courts and legislatures in the months to come.

This week in law, I remember my late client, Barbara Reddick, who was so much more than people know from the chase-the-ace case that put her in the spotlight. I then discuss new federal legislation on bail reform, as well as the just-passed firearms legislation C-21. Then, in caselaw this week, I discuss a small claims court decision on collectable cars and action figures that was appealed from the Residential Tenancies Board to the Small Claims Court, and how the landlord inadvertently helped the tenant make their case, increasing their damages by ten times. A Truro man was sentenced for threatening Provincial Court Judge Begin, a process which required a New Brunswick Judge to be brought in. In R. v. MacEvoy, two brothers who had not spoke in 20 years had an argument that lead to one shooting the other with a 12 gauge shotgun. He claimed self-defense in a case heard by Judge Ross. Finally, I review the CBC story about a Police Review Board decision on the allegations of racism made by Kayla Borden. I comment on the decision, and whether Ms. Borden would be wise to proceed to judicial review, as her lawyer has indicated she is considering doing.

Continuing the focus of the week on emergency alert systems, the mass casualty commission proceedings today included two roundtable discussion panels on how best to communicate emergency alerts to the public. We also learned today that the Commission is still refusing to disclose the videos from the scene at the Enfield Big Stop when the killing spree was brought to an end, with the police shooting of Gabriel Wortman. Thanks to Coltfoots Publishing’s efforts, the Commission is at least now prepared to hear an application regarding their use and disclosure.

This week, I cover the recommendation from former Governor General David Johnston that there not be an inquiry into allegations of foreign interference in our elections. One of his concerns was how an inquiry would deal with top secret documents, and I have some suggestions for that. This week saw the first "State of the Courts" event in Nova Scotia, where the chief justices of the court of appeal, supreme court, and provincial courts all spoke about the issues facing the NS court system, including Covid backlogs, a shortage of judges, and new technology being utilized. The court also reaffirmed its independence, in remarks aimed at the general public. In caselaw this week, I discuss the legal fees paid by a Newfoundland school board for a failed defense on a human rights case, a Deputy Sheriff being charged with breaching a publication ban in the CP Allen stabbing case, the delay in former Better Business Bureau CEO Peter Moorhouse's child luring case, and the not guilty verdict in the Carrie Low sexual assault case.

I am going to be taking a summer break from recording the Rodgers Brief. Legislatures are not sitting, and Courts tend to slow down some over the summer. Also, I am focusing my time on seeking the federal Conservative nomination in the newly configured riding of Cape Breton-Canso-Antigonish. In this video, I describe the riding, and discuss my connections to each region of this vast geographical area. I also talk about what makes CBCA unique, and what gives us a leadership responsibility within Canada.

The second last day of proceedings from the Mass Casualty Commission featured closing submissions and recommendations from Lisa Banfield's lawyer Jessica Zita, as well as those from LEAF/Avalon Sexual Assault Centre, Feminists Against Femicide, the RCMP Veterans Association of NS, the Truro Police, as well as firearms advocacy and opposition groups. Ms. Zita spoke about how Ms. Banfield (who, it appeared, was not present) was revictimized by the deceptive manner in which she was treated by the RCMP. She urged the MCC to accept what Ms. Banfield has claimed, and to agree that Ms. Banfield bore no responsibility for anything that her spouse did (despite, she did not add, her knowledge of him having a replica police car, illegal guns, and deteriorating mental health). Erin Breen rightly identified cross-border smuggling as a central issue, and noted how Wortman obtained a Nexus pass despite having a firearms complaint on the national police database at the time he applied for it.  Neither Brian Carter for the RCMP Veterans nor Charles Thompson for the Truro Police explicitly called for the removal of the RCMP from NS, but that conclusion flowed naturally from both presentations. The Truro Police are hopeful that new RCMP leadership in NS is reason for optimism.  The MCC will be back (weather depending) tomorrow for the final submissions by the BC Civil Liberties Association, the NS Dept. of Justice, National Police Federation, and the Federal Dept. of Justice.

The second day of the Mass Casualty Commission proceedings consisted of two presentations. One was a panel on rural living, and the other was a presentation from one of the lawyers for the Commission on policing in Nova Scotia. Outside of the Commission proceedings, we have also heard from the lawyer for the gunman’s spouse, Lisa Banfield, on his advice to her about cooperation with the MCC.  The first two days of the Commission seemed designed to very slowly ease into the topics that will ultimately be covered. The first specific findings will be released next Monday, in Foundational Documents and a presentation of the evidence by Roger Burrill, a lawyer for the Commission.

In this section, I will outline and review what we know about the events of April 18-19, 2020. Much of this information comes from the MCC investigations, but there are other important sources as well. I have attempted to organize the details in a cohesive narrative, covering what happened, and what could have happened instead, if police had made better decisions as events unfolded. 

This reading is of the sections 11-14 of that part of the Rodgers Brief report

The final day of proceedings prior to the second anniversary of the tragic deaths featured joint testimony from the two officers who shot and killed Gabriel Wortman. They described their actions overnight and into the morning, why they went to the Big Stop, and their developing knowledge base throughout the ordeal. They answered questions well, giving thorough and coherent accounts of what took place. In their telling, the takedown has its elements of luck, but is also an example of how well prepared and competent people just seem to make their own luck.  They were chasing someone, who, unknown to anyone, had very recently switched vehicles, and who was carrying five loaded firearms. They both needed gas, and stopped at the same pump. Cst. Hubley thought quickly and acted quickly, with Cst. MacLeod in support. In total, they fired 23 bullets, killing Wortman. In the early moments, Wortman turned his gun on himself and took one shot which Dr. Bowes stated would have killed him eventually as well. (This last part of information was newly released yesterday through Dr. Bowes’ testimony, and expanded upon today by the officers.)  Anyone watching Cst. Craig Hubley and Cst. Ben MacLeod testify today might naturally be caught up in the intense and at times emotional atmosphere in which the officers found themselves. Cst. Hubley was emotional in describing finding the McCully family dog, and the vindictiveness it would take to shoot a 20lb animal that posed no threat. Both officers took their time recounting the final moments of the rampage by Gabriel Wortman when they shot him at the Big Stop in Enfield.  Certainly, having these particular officers testify at this time, prior to a long weekend, as well as the two-year anniversary of the killings, was a deliberate choice by the Commission. One might ask why these officers have been called to testify about their quick-thinking heroics, rather than having officers from the earlier portions of the narrative who have yet to testify. There are still many of them.  The other question I had yesterday, and have even more so today, is why the video from the Big Stop was not shown and discussed. It was not even publicly acknowledged that there is video in existence (which there is, and which I have watched) which covers the final confrontation from several angles. The MCC has not stated whether the Commissioners have made a particular decision about playing the video.