Independent, public inquiry required

Province, Ottawa appear to be wrestling with questions of jurisdiction

Two months have passed since one man's monstrous 13-hour rampage left 22 innocent Nova Scotians dead, but we're still waiting for the provincial government to commit to a broad, independent and public inquiry.

It seems, almost with each passing week, new and disturbing questions emerge about the killer's past, his history of threatening and violent behaviour and his interactions with police, all well before he set out on what became the worst mass murder in Canadian history on April 18 and 19.

Premier Stephen Mcneil said this week that there will be an “inquiry or review” and that the families of the victims will be involved.

But among the concerns of legal scholars like Wayne Mackay, a leading Canadian constitutional and public law expert, is the absence of the word “public” from provincial government responses to questions about an inquiry.

The tendency of provincial officials to insert the word “review” when asked about an “inquiry” is also raising concerns.

A letter to the premier, signed by more than 30 faculty at Dalhousie Law School, said an internal investigation – a review – isn't enough.

“Independence, impartiality and transparency are essential components of maintaining public confidence in the administration of justice. Only a public inquiry can satisfy these requirements,” the Dal law profs wrote.

In response, they got a letter from a Justice Department lawyer stating that “the provincial and federal governments continue to discuss how best to review and inquire into these important matters.”

The province and Ottawa appear to be wrestling with questions of jurisdiction. Some aspects of an inquiry would examine areas of federal responsibility, but Mackay says more are in the province's purview.

He said a joint federal-provincial public inquiry would be “the ideal” because the findings of such an inquiry would compel each level of government to act on its recommendations, but provincial commissions of inquiry have effectively crossed into federal jurisdiction before.

Examples include Nova Scotia's inquiry into the wrongful conviction of Donald Marshall Jr., completed in 1989 and, more recently, British Columbia's inquiry into the missing women who died at the hands of serial killer Robert Pickton.

The Pickton inquiry is more analogous to Nova Scotia's circumstances because the conduct of the RCMP are central to both.

Prime Minister Justin Trudeau has committed his government's cooperation with any inquiry into the horrendous crimes that began in Portapique, Colchester County on April 18, and continued April 19 across central Nova Scotia before ending in Enfield, Hants County, where the killer was shot dead by the RCMP.

Mackay said the inquiry needs to examine a wide range of issues from domestic violence to mental health; from cooperation among police departments to measures intended to alert people to the deadly threat, all of which are provincial responsibilities.

The federal government's role is narrower and includes border security – several of the killer's weapons were acquired in the United States – and broad issues related to the RCMP.

The province has suggested that, because the RCMP is the national police force, the federal government should take the lead, but when they're operating in Nova Scotia the Mounties are the provincial police force, too.

Mackay believes money and politics figure into the buck passing. Commissions of inquiry are expensive, particularly when they are as broad and searching as this one must be.

As for the politics, both levels of government would be alert to the potential for political blowback if they are found wanting in ways that contributed to or might have altered the course of the horrible events.

Families of the victims have launched a class-action lawsuit against the Mounties and the province, but Mackay said that legal action has no bearing on the province's ability to initiate a public inquiry.

He said the norm would be for the province government to call a commission of inquiry, while provincial Justice Minister Mark Furey, a retired Mountie, has taken the opposite view – that the federal government should lead, with the province playing the supporting role.

The victims were Nova Scotians. Most of their families and friends are here, in Nova Scotia. The legal experts tell us the province is responsible for the majority of issues that need examination.

If the two levels of government can't come together in a joint public inquiry than the province needs to step up and strike a provincial commission of inquiry, with broad terms of reference.

Any public inquiry would likely require months of preparation before it calls its first witness, so the time to get started is now.