The province’s push for a more secretive restorative justice approach for a promised joint government inquiry into April’s mass killings could come at the expense of Nova Scotians being denied the full story behind the tragedy, says a Dalhousie University law professor.
“What worries me about importing aspects of restorative justice into this proposed review is that they are often behind closed doors and it's a more secretive process, which would be totally inappropriate for the Portapique tragedy that demands a full, independent public inquiry," said Wayne MacKay, an expert in constitutional law and public law.
MacKay’s stance echoes calls from more than two dozen anti-gender-based-violence groups across the country, urging the provincial and federal government to do the same.
The Canadian Press reported Wednesday that the coalition sent a letter to Prime Minister Justin Trudeau, Premier Stephen McNeil and several cabinet ministers, insisting a restorative approach would undermine the need for an independent, fully transparent public inquiry into the April 18-19 rampage that claimed the lives of 22 people.
"We were shocked to see media reports that the launch of an inquiry into the April 2020 massacre in Nova Scotia was being held up by an attempt to graft a 'restorative approach' onto the traditional federal-provincial public inquiry," says the letter. The group included Women's Shelters Canada and the National Association of Women and the Law.
Restorative justice focuses on addressing the harm caused by crime while holding the offender responsible for their actions, by providing an opportunity for the parties directly affected by the crime – victims, offenders and communities - to participate. But it is a process that happens outside of the criminal justice system.
Mirroring MacKay’s concerns about the need for a full, transparent examination of the critical events that contributed to the country’s deadliest mass shooting, the letter points out the secretive nature of the restorative justice process - hearings are typically held in private and without a mechanism to compel witnesses to testify.
"The public outcry for an inquiry was not a demand to have discrete groups of affected individuals participate in a series of private meetings," the letter says.
"The families and individuals who lost loved ones as a result of this massacre, the women and children who are subjected to misogynistic violence every day in Canada, and the Canadian public traumatized by ...(the) mass killing are entitled to the full and public justice of an inquiry that ensures public accessibility ... public accountability and transparency."
MacKay said a well-run public inquiry overseen by a judge would typically allow for some in-camera witness testimony if considered necessary. Censoring information beyond what an independent judge deems appropriate could create public doubt in the legitimacy of the review. But it could also be perceived as a tactic to cover up any potential failings by the RCMP in preventing the large-scale tragedy, said MacKay.
“The public inquiry process usually has a significant component of accountability and given some of the questions around the conduct of the RCMP and its alleged connections with the gunman, there needs to be an element of accountability,” said MacKay.
Furey, a retired RCMP officer, has maintained that the inquiry will include typical features of a public inquiry, including judge oversight and authority to compel witnesses to testify and the ability to make recommendations. He also said a restorative approach is key to getting people and families to participate in the review.
Last week, the minister largely blamed the delay in announcing the inquiry on technicalities in discussions with the federal government about what the review would look like.
"We want to take a different approach to sourcing the questions that individuals would have, particularly the family members," Furey said. "We're taking a human-centred and trauma-informed approach consistent with some of the principles of restorative methodologies."
In 2015, the province called a restorative inquiry into allegations of long-term abuse at the former orphanage, Nova Scotia Home for Colored Children. The province appointed a committee to oversee the inquiry.
But much of the testimony made by former students was held in private and the inquiry's final report offered only a "road map” to address failings identified in the report.
Part of the inquiry's mandate points to its secrecy: "Not every process will be held in public or open to everyone who wishes to participate, every process will consider how to ensure the knowledge and learning gained therein is accessible to the broader public.”
In the same year, a restorative approach was used to investigate the Dalhousie University dentistry program and male members of the graduating class that had created a Facebook page targeting female students with misogynistic and sexually degrading posts.
Neither restorative-based approach contained binding recommendations. In the Dalhousie dentistry case, the chair of the task force overseeing the investigation was selected by the president of the university. All personal information about individuals mentioned in the review process and all information that could lead to the discovery of personal information was withheld from the public in the final report.
Claudia Chender, NDP justice critic, also agrees that April’s large-scale tragedy warrants a full public inquiry that includes a thorough examination of unequal power relations and domestic violence.
But the Dartmouth South MLA also said it’s far past time that government commits to an inquiry, approaching three months after the killings.
"There has been too much delay and too much secrecy and in the absence of any details," said Chender. “Without any information, all I can say is that it’s been a long time since we had a clear and transparent announcement of a process to go forward and address the numerous questions Nova Scotians have about how this happened so we can prevent it from happening again.”
