Mass Casualty Commission’s recommendations will not be binding on government

在2020年4月18日至19日的新斯科舍省大规模谋杀案之后的两个月中，当时的总理斯蒂芬·麦克尼尔（Stephen McNeil）和总检察长马克·福里（Mark Furey）承受着巨大的压力，要求他们致电询问。

After rejecting a previously announced federal-provincial “review” — a procedure that lacked power to compel witnesses to testify — families of victims and their many supporters fought tirelessly for a public inquiry. Sniffing the wind, the province chose not to use Nova Scotia’s Public Inquiries Act, insisting it needed Ottawa as a partner in a full inquiry.

“We want a joint commitment from both levels of government. We need the national government there,” McNeil said on June 4, 2020. Continuing his response to a question from Global TV’s Elizabeth McSheffrey, he went on to say’

The process needs to be able to compel witnesses to come forward and它需要有约束力的建议。对于我们来说，需要有一种方式来听到家庭的声音，家庭得到他们正在寻找的答案……我们认为，国家政府必须成为共同参与者。我们需要他们在桌子上领导这一问题。[添加了强调]

这场大屠杀始于安静的乡村海岸，继续穿越几个社区，提出了许多严重的问题。加拿大皇家骑警对杀手以前的暴力行为有何了解？他非法获得的枪？他对收集警车的痴迷？为什么加拿大皇家骑警在13小时的追捕过程中不与新斯科舍省北部的其他警察部队联系？为什么没有加拿大皇家骑警或省级紧急措施组织锁定门并留在里面的公民没有正确提醒公民？

没有约束力的建议

On July 28, 2020, Ottawa and Nova Scotia announced a joint public inquiry known as the Mass Casualty Commission. Recommendations will be made by the three commissioners in November of 2022. As noted above, former Premier McNeil stated the public inquiry would have the authority to make binding recommendations.

But it turns out there will be nothing to bind governments to act on the inquiry’s recommendations regarding government agencies such as the RCMP, Canada Border Services, and the Canada Firearms Agency.

The Mass Casualty Commission’s Director of Investigations and former Toronto deputy police chief, Barbara McLean, delivered that message to family members of the killer’s victims and the two reporters who attended last week’s Open House in Debert (one of four held in different communities) to ask questions of commission staff.

“当我们明年11月制作最终报告时，它将充满建议，这些建议将成为更好的公共安全途径。但是他们只是这样 - 它们是建议。”麦克莱恩说。“它们没有约束力。因此，将成为社区成员和社区领导人成为改变的代理商。”

McLean went on to explain neither the federal nor provincial Public Inquiry Acts empower the recommendations from commissions to be binding. The mandate given to the Mass Casualty Commission is contained in Orders-in-Council. The documents direct the commissioners, “to set out lessons learned as well as recommendations that could help prevent and respond to similar incidents in the future.” The word “binding” appears nowhere.

根据Dalhousie法学院教授Archie Kaiser的说法，这是所有公开查询的标准程序。在新斯科舍省举行的令人难忘的联邦省会询问也是如此，该询问审查了唐纳德·马歇尔（Donald Marshall）案中的韦斯特雷矿业灾难和司法流产。其他例子包括Krever对污染血液的调查，或最近的真相与和解委员会。

“If recommendations were binding, this would mean that government would essentially be delegating lawmaking and budgetary authority to the inquiry,” explains Kaiser. “The inquiry itself has no further power after it discharges its responsibilities under the terms of reference. Making it mandatory that its recommendations be adopted would entail this ‘institutional ghost’ to continue to direct and guide law and public policy and public spending. In a democracy, despite the legitimacy accorded to public inquiries, this would be unacceptable.”

But what of the families of victims who advocated for a public inquiry with the power to compel witnesses to testify? Will they be upset to hear final recommendations from this Commission have no legal teeth?

Kaiser offers this observation:

Although their recommendations are not binding, the independence of an inquiry and its public proceedings and decisions mean that there is a very high level of expectation that its factual findings and recommendations will be accepted and implemented by government. There would be public uproar if the findings and recommendations of an inquiry are completely ignored… and ongoing media attention is absolutely essential. This enables the voices of members of the public who have been adversely affected by the events spawning an inquiry to be heard. It ensures that politicians continue to be answerable for gaps and weaknesses in the law, policy and services…at the very least, one would expect regular report cards from governments to demonstrate a high level of deference and adoption.

Governments and accountability

The Halifax Examiner reached out to both levels of government for comment about the non-binding nature of recommendations.

加拿大公共安全发言人Magali Deussing回答说：“尽管公众调查建议没有约束力，但政府将考虑它们。”“加拿大和新斯科舍省政府对2020年4月的悲剧作出了全面的联合公众询问，以帮助确定发生了什么事，并提出建议，以防止将来类似的悲惨事件。”

Heather Fairbairn, media advisor to the Nova Scotia Attorney General told the Examiner, “Both levels of Government will fully consider the recommendations and implement changes needed to help prevent similar events from happening again. As part of the announcement in July, the question about binding recommendations was asked and it was stated that recommendations coming out of public inquiries and/or reviews across the country are traditionally non-binding.”

尽管如此，凯撒（Kaiser）指出了一些备受瞩目的询问的遗产，例如联邦真相与和解委员会，唐纳德·马歇尔（Donald Marshall Jr. Royal Commission）和韦斯特雷矿山（Westray Mine）的公众询问。Kaiser说：“这些询问都没有能力提出具有约束力的建议，但毫无疑问，他们继续对公共生活产生巨大和积极的影响，包括对司法决策和立法议程的强大影响。”

匿名证词

从本月底开始在哈利法克斯（Halifax），大规模伤亡委员会将举行公开听证会，以确定发生了什么事，以及导致悲剧和22人丧生的背景或环境。该委员会不得以民事诉讼中的法官的方式归咎于责备。

The commissioners are tasked with looking at the “role of gender-based and intimate partner violence” and “access to firearms.” The mandate also calls for examination of the killer’s “interactions with police, including any specific relationship between the perpetrator and the RCMP and between the perpetrator and social services, including mental health services,” prior to April 2020.

一些证词将在公开场合提供。但是其他证人将在匿名条件下与委员会交谈，他们的证据将在在线发布之前总结在文件中。

理事会命令的第1（g）条指示专员：

（iii）在《隐私法》（加拿大）第3节（加拿大）或《信息自由自由和保护隐私保护法》第3（1）条中所定义的任何“个人信息”或“个人健康信息”第3（1）条所定义的任何“个人信息”或“个人健康信息”在《个人健康信息法》第3节中定义的，这些法案在相机中进行的任何联合公共询问中的任何部分都收到了证据unless the person to whom it relates consents或者，专员认为，公开披露的公共利益大于披露可能导致的任何隐私的入侵。[添加了强调]

The Commission drew up these rules to comply with a mandate to conduct proceedings in a “trauma-informed” manner to reduce harm to survivors/witnesses such as the children of murder victims and to front-line responders such as RCMP officers and volunteer firefighters, some of whom suffer from PTSD.

Concerns have been expressed that allowing anonymity may create a slippery slope where a public inquiry becomes less “public” and all the facts may not come out. Kaiser says this is an important point and one that the Inquiry chaired by former N.S. Supreme Court Chief Justice J. Michael MacDonald will want to weigh carefully each time.

“It would be truly surprising, indeed undermining of its legitimacy,” says Kaiser, “if the Mass Casualty Commission acceded to any request for an intrusion upon the principle that the inquiry should be open and transparent without the strongest possible justification, which itself would have to be made in the public domain and subject to public scrutiny and criticism.”

Kaiser goes on to quote from the 2021 Supreme Court of Canada Sherman Case. “As the Supreme Court has said, (albeit in the setting of judicial proceedings), anyone asking for ‘a sealing order, a publication ban, an order excluding the public from a hearing, or redaction order’ would have a very high burden to demonstrate that openness presents a serious risk to a competing interest of public importance. The applicant looking for suppression would have to demonstrate that any secrecy order was ‘necessary to prevent’ some harm…”

One cannot overstate the public’s expectation of clarity — and consequences — regarding the actions (or inaction) of government agencies before, during, and after the 2020 massacre. Institutional hierarchies will have their national reputations on the line and there are hopes testimony given under oath will cut through the murky circumstances and expose failures to protect so many innocent people.

但是，正如凯撒（Kaiser）所指出的那样，一旦专员向新斯科舍省和加拿大政府提供了非约束力的建议，将成为公民和记者的责任，使民选官员专注于采取行动“预防或回应任何类似类似的事情可能发生的悲剧。”

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