Is Ottawa to blame for the half-baked Portapique review?

At Friday’s Covid-19 update, without exactly saying so, Premier Stephen McNeil implied that the Trudeau government had rejected his entreaties to empower a robust public inquiry into the Portapique calamity.

McNeil obviously expected to be asked about the panel fiasco. He didn’t bat the questions away, as he sometimes does when reporters raise non-Covid matters. He had scripted talking points at the ready, and he struggled, with only partial success, to suppress his penchant for anger when challenged.

CBC reporter Yvonne Colbert cut through the bumpf with this question:

On June 4th you were asked about an inquiry into the April mass murders. At the time you said you had made it very clear to Ottawa what you were looking for, and you said, “The process needs to be able to compel witnesses to come forward and it needs to have binding recommendations.” The review your government announced yesterday does neither. So how can you support a review which doesn’t do what you said just last month?

McNeil responded by pointing to the Desmond inquiry, which is being conducted under the Nova Scotia Fatalities Act.

We cannot compel federal witnesses; we cannot compel the federal government to implement any recommendations that are coming from that inquiry even [with the] Canadian armed forces and other federal agencies.

Because the Desmond Inquiry was called under a provincial law, the province believes it can’t subpoena federal documents or federal witnesses who have probative information. This is a serious deficiency (and a surprising hint from the premier that the Desmond Inquiry may be ineffective). The review panel, he noted, is a joint, federal-provincial project. He argued that this arrangement would oblige the feds to pony up all relevant information.

Not so. The panel mandate commits the two governments only to “participate fully.” It’s not participation that’s needed. It’s testimony under oath on penalty of perjury, and production of documents under subpoena on penalty of contempt. Lawyers and judges know that oaths and subpoenas serve a purpose: they focus the mind. An official who is merely “participating” might overlook documents that could prove embarrassing, whereas a witness responding to a subpoena will think twice before exercising such discretion.

Under questioning from Colbert and Canadian Press reporter Michael Tutton, McNeil repeatedly asserted that the panel’s three members — Chair Michael MacDonald and panelists Anne McLellan and Leanne Fitch — are “distinguished Canadians,” each experienced in either policing or the judicial system.

This is reassuring only to a point. MacDonald does enjoy a good reputation as a former Chief Justice of Nova Scotia, and Fitch is the recently retired chief of the Fredericton police force. But McLellan is a former Alberta Liberal MP who now advises Prime Minister Justin Trudeau on political matters. A savvy Liberal fixer, she will never do anything to embarrass the current federal government. Far from being proof of independence, her presence on the panel fuels suspicion the feds are determined to keep it on a short leash.

The panel mandate is larded with touchy-feely commentary about its “restorative,” “trauma-focused” approach. McNeil cited this as a reason not to hold public hearings that might re-traumatize family members of victims. Inconveniently for this argument, family members continue to insist on a full public inquiry, with open hearings and the powers of a court. Even if they hadn’t, the criminal justice system is supposed to be an instrument of public policy and the rule of law, not private revenge or restoration.

McNeil pointed out that the mandate includes a litany of questions everyone wants answers to. That’s true, but it omits broad policy questions that need to be addressed after repeated RCMP failures across Canada. Should Nova Scotia continue to use the RCMP as its rural police force? Should the Mounties suffer the fate of the Canadian Airborne Regiment, replacement by a new organization? The panel will find it hard to probe those matters.

Senior RCMP officials doubtless lobbied hard to exclude consideration of existential issues. They likely met a receptive audience in senior Liberals who see no political upside, and much potential downside, in taking on this hoary Canadian symbol. Senior officials soured on public inquiries after the Gomrey and Somalia affairs. Real reform may have to await another horrific policing failure in a province Ottawa politicos care about more than Nova Scotia.

So I’m inclined to accept McNeil’s implication that Ottawa refused to have a real public inquiry. But he must shoulder part of the blame. He could have stood up to Trudeau by publicly challenging him to do the right thing. That’s not how small provinces usually deal with Ottawa, but in this special case, the moral pressure would have been hard to withstand.

In his seven years as premier, McNeil has done some tough things that needed to be done. In this case, he’s done a weak thing he didn’t have to.