4. Additional Documents

House of Commons

Standing Committee on Public Safety and National Security

August 16, 2022, 11 a.m. to 12 p.m.

Additional Documents

Table of Contents

Annex 1

The Honourable Thomas A. Cromwell C.C.
Commission Counsel Director
T: 604.632.3460 X 53460
E: tcromwell@blg.com

June 22, 2022

Delivered by email

Ms. Lori Ward
General Counsel
Justice Canada
Suite 1400 Duke Tower
5251 Duke St
Halifax NS B3J1P3
Email: Lori.Ward@justice.gc.ca

Dear Ms Ward

Re Disclosure of Supt. Campbell’s notes

I am writing to follow up on our discussion concerning the disclosure of Supt. Campbell’s notes. I am concerned that four pages of those notes were not initially disclosed and no indication was given that four pages of them had been deleted from the disclosed version. Later, the notes with the four pages added back to them were disclosed but without indication that they had been added. I understand that these four pages were identified as requiring review for possible claims of privilege, but I ask that you provide an explanation that can be shared with participants about the reason these pages were not initially disclosed and no indication given that they were not being disclosed.

I also ask that you advise whether any other material subject to subpoena has been withheld for privilege review or otherwise without an indication that this is the case. While I of course recognize the need to ensure that there is appropriate review for potential privilege claims, it is important that the existence of the material be disclosed even if there is a claim for privilege over some of the contents.

As witness interviews of senior RCMP officers are imminent, I trust that your response will be a high priority.

Yours very truly

Thomas A Cromwell

Thomas A Cromwell

Annex 2

Department of Justice Canada

Atlantic Region
National Litigation Sector
5251 Duke Street Suite 1400
Halifax, NS B3J 1P3

Telephone: (902) 426-4472
Fax: (902) 426-2329
Email: Lori.Ward@justice.gc.ca

Via Email

Our File Number: LEX-500028241

June 24, 2022

The Honourable Thomas A. Cromwell, C.C.
Commission Counsel Director
Mass Casualty Commission

Dear Mr. Cromwell:

Re: Disclosure Issues

This is in response to your letter of June 22, 2022 with respect to the disclosure of the notes of Supt. Campbell and other documents.

The Department of Justice (DOJ) Canada has been working to comply with every subpoena, and has so far disclosed approximately 75,000 documents in response to over 1,800 line items contained in 32 subpoenas to date, both general and specific. Many items seek information spanning ten or more years. In the normal course, where there is a claim of privilege, we redact information before it is disclosed to the MCC. We have had many discussions with you with respect to privileges and redactions that have resulted in mutual agreement on information to be withheld.

On February 11, 2022 and March 2, 2022, we produced to the Commission two packages of documents totaling 2,414 pages of notes from seven senior officers. Thirty-five pages of those notes, including the four pages of Supt. Campbell’s notes referenced in your letter, were retained for an assessment of whether they were privileged. With respect to the four pages of Supt. Campbell’s notes referred to in your letter, DOJ counsel completed its review of the notes and concluded that the pages were not privileged. They were disclosed to the Commission on May 30, 2022 without redactions.

Overall, of the 35 pages of senior officers’ notes retained for privilege review from the two productions mentioned above, 15 pages have now been released, 17 pages will be released today in the notes of Chief Supt. Chris Leather, and three pages remain under privilege review.

We acknowledge that the Commission was not advised that these pages were being reviewed for privilege. DOJ counsel should have done so. We always contemplated that all of these pages would be disclosed, either with redactions (if privileged) or without redactions (if not privileged), further to the privilege review.

You have also asked that we advise whether any other material subject to subpoena has been withheld for privilege review or otherwise without an indication that this is the case. To the best of our knowledge, we have identified above in this letter all situations where this occurred. To be clear, document production is ongoing, and within that process there are documents being reviewed for privilege before disclosure to the Commission. In addition, we have identified for Commission counsel various categories of documents over which privilege is claimed.

We will continue to work with the Commission to ensure that our process for review is transparent and fully supports the work of the Commission. We welcome your proposals in this regard and look forward to our continued collaboration so as to ensure there are no further misunderstandings.

Yours truly,

Lori Ward

Lori Ward
General Counsel

c. Rachel Young

Annex 3

The Honourable Thomas A. Cromwell C.C.
Commission Counsel Director
T: 604.632.3460 X 53460
E: tcromwell@blg.com

June 30, 2022

Delivered by email

Ms. Lori Ward
General Counsel
Justice Canada
Suite 1400 Duke Tower
5251 Duke St
Halifax NS B3J1P3
Email: Lori.Ward@justice.gc.ca

Dear Ms Ward

Re Your letter of June 24, 2022

Thank you for your letter of June 24 and for the additional clarification that you have provided.

Further to our discussions and the invitation in your letter to advance proposals to ensure that your process for review is transparent and fully supports the work of the Commission, I am writing with a specific suggestion. It would be helpful to our review if you could provide us with a list of the GOC numbers for documents containing additional pages (and the page ranges of these additions, if they were not disclosed in a standalone manner), and that if there is future disclosure of the additional pages contemplated in your letter, you identify to us that these pages are within the class of documents that were initially withheld (again, with page ranges if relevant). This will significantly assist our review of the material.

I too look forward to continued collaboration.

Yours very truly

Thomas A Cromwell

Thomas A. Cromwell

Annex 4

Department of Justice Canada

Atlantic Region
National Litigation Sector
5251 Duke Street Suite 1400
Halifax, NS B3J 1P3

Telephone: (902) 426-4472
Fax: (902) 426-2329
Email: Lori.Ward@justice.gc.ca

Via Email

Our File Number: LEX-500028241

July 4, 2022

The Honourable Thomas A. Cromwell, C.C.
Commission Counsel Director
Mass Casualty Commission

Dear Mr. Cromwell:

Re: Disclosure Issues – Letters of June 24, 2022 and June 30, 2022

Further to your letter of June 30, 2022, here is a list of the documents referenced in my letter of June 24, 2022 that contain additional pages that were initially withheld for review.

GOC Number Handwritten Notes of Total pages Pages initially withheld (range)
GOC00072789 Supt. Darren Campbell 136 49-52
GOC00072791 Supt. Darren Campbell 76 12-17
GOC00072793 Supt. Darren Campbell 79 23-25
GOC00073130 C/Supt. Chris Leather 61 35-48; 52-54
TBD C/Supt. Janis Gray 29 23-25
GOC00072795 Insp. Murray Marcichiw 17 8-9

All pages initially withheld have been disclosed, with the exception of the three pages from the notebook of C/Supt. Janis Gray, which are forthcoming.

Sincerely,

Lori Ward

Lori Ward
General Counsel

Annex 5

The Honourable Thomas A. Cromwell C.C.
Commission Counsel Director
T: 604.632.3460 X 53460
E: tcromwell@blg.com

August 5, 2022

Delivered by email

Ms. Lori Ward
General Counsel
Justice Canada
Suite 1400 Duke Tower
5251 Duke St
Halifax NS B3J1P3
Email: Lori.Ward@justice.gc.ca

Dear Ms Ward

Re Testimony of C/Supt. Leather

I am writing to follow up on the appearance of C/Supt Leather before the Commission last week. Some aspects of his testimony have given rise to some serious concerns that I want to raise with you.

I watched the video of portions of C/Supt Leather’s testimony. In the portions that I have reviewed, he testified as to his concern about advice he received from Department of Justice counsel to speak about certain topics – topics that in his view were obviously relevant to the Commission’s work – only in a reactive way – ie, if he was specifically asked about them. I am concerned, if his testimony is accurate in this regard, that he was given advice of this nature in the context of an interview for the purposes of an inquisitorial commission of inquiry in which participants, and especially your clients, have an obligation to assist the Commission to achieve its public interest mandate. While I understand that this sort of advice is standard for witnesses in civil litigation, whether testifying on discovery or at trial, it is in my view not appropriate to give this advice to a senior officer of the RCMP participating in this Commission of inquiry. I would like your assurance that this sort of advice has not and will not be given to other witnesses appearing for interviews with or who testify before the Commission. Rather, I would hope and expect that witnesses would be encouraged to share the relevant information that they have.

I would also be grateful if you could advise me whether clearly relevant material (whether testimony, documents or things) has been withheld because it was not specifically requested either in interviews, testimony or by subpoena. With respect to documents, I note that the general subpoena remains in effect. It is particularly pressing that we understand what, if any, additional material relating to the wellness interviews about which C/Supt. Leather spoke has not been produced and to have it produced immediately given the Commission interviews of A/Comm (ret’d) Bergerman and Comm. Lucki took place this week, the interviews of Deputy Commissioner Brennan and Insp Moser are imminent and the dates for the appearances by A/Comm (ret’d) Bergerman and Comm. Lucki are coming up quickly.

There was another aspect of C/Supt Leather’s testimony that was concerning. My understanding is that your client is asserting the so-called “Wigmore privilege” in relation to information provided to the Quintet workplace assessment process including information contributed by C/Supt Leather. The existence of the Quintet assessment was disclosed to us on July 6, although my understanding from what you have told me is that counsel had only just become aware of its existence and did not at that point have a copy. The actual summary report, with some redactions, was provided to the Commission on the afternoon of July 29.

My current understanding from what you have told me is that the original notes and interviews in relation to the Quintet study were likely destroyed as contemplated by the terms of Quintet’s engagement and that all that is now available is the anonymized summary which you have provided to us with redactions. I would be grateful if you could confirm that my understanding is correct or provide any correction and additional relevant information about the availability of the records relating to this study, and, without limiting the generality of this request, how Quintet was selected for this work, the full statement of work, the full report as well any working papers, notes etc generated in the course of or in response to it and any action plan developed in response. I also request that you produce an unredacted copy of all such material for my review pursuant to Rule 19 and that you set out in writing your client’s position with respect to privilege in relation to this material. I understand that you are aware of correspondence recently received from the National Police Commissioned Officers Professional Association.

As you know, the “Wigmore privilege” is a case by case (not a class) privilege that may arise with respect to information that is communicated in confidence, where maintaining confidentiality is essential to the relationship in which the communication was made and the relationship is one that should be -- to use Wigmore’s expression -- “sedulously fostered” in the public interest.

It was at least implicit in C/Supt Leather’s testimony that he has no issue with his statements made in the course of the Quintet assessment process being made public and, if that is so, it follows that the foundation of any claim to Wigmore privilege falls away, at least with respect to the information that he provided. I am concerned that other contributors to that process may have the same view and ought to have the option of independent legal advice before deciding whether they do or not. I therefore want to be able to contact independent legal counsel for other participants in that process. I would like to get your assurance that the option of independent legal advice has been explained to participants in the Quintet process who have been or will be interviewed by, or have or will be testifying before the Commission and that their consent to put me in touch with their independent legal advisors, if any, has been requested. If consent is provided, I want to obtain the contact information so I can follow up.

I am deeply concerned that the advice to C/Supt Leather, if it was indeed given, to be simply reactive rather than forthcoming and the delay in becoming aware of the existence of and of producing clearly relevant documentation such as the Quintet assessment will hamper the Commission in fulfilling its mandate, including making useful and implementable recommendations in the public interest. Of course, the threshold for production is not “clearly relevant” but rather whether the information sought is “requisite” to the Commission’s investigation of these matters.

Yours very truly

Thomas A Cromwell

Thomas A. Cromwell

Annex 6

Department of Justice Canada

Atlantic Region
National Litigation Sector
5251 Duke Street Suite 1400
Halifax, NS B3J 1P3

Telephone: (902) 426-4472
Fax: (902) 426-2329
Email: Lori.Ward@justice.gc.ca

Via Email

Our File Number: LEX-500028241

August 9, 2022

The Honourable Thomas A. Cromwell, C.C.
Commission Counsel Director
Mass Casualty Commission

Dear Mr. Cromwell:

Re: Disclosure of Documents

Thank you for your letter dated August 5, 2022 and the opportunity to address the issues raised therein.

The Government of Canada fully supports the work of the Mass Casualty Commission. As counsel to the Government of Canada, we are working diligently to assist the Commission in achieving its important mandate. We also understand our professional and legal obligations as counsel for the Government of Canada in the Inquiry. We take those obligations seriously and are committed to upholding them.

Preparation of C/Supt. Leather for MCC Testimony

Your letter refers to portions of C/Supt. Leather’s testimony regarding his interactions with Justice Canada counsel. Before the Commission on July 28, 2022, we agreed to a limited waiver of solicitor-client privilege regarding the advice provided to C/Supt. Leather in advance of his interview with the Commission. We met with C/Supt. Leather on July 5, 2022, the day before his interview. At that time, we reviewed the areas that we anticipated would be raised with him based on the outline provided to us by Commission counsel, and given our general knowledge of the file. When discussing the format of the interview, we advised that Commission counsel would have specific areas of interest that they wished to canvass. Further, we advised that if there was relevant evidence that he wished to share that did not come out in the course of the interview, to let us know and we would ask some additional questions to ensure he had the opportunity to address those issues.

During the course of that meeting, when discussing his notes of the April 28, 2020 meeting, C/Supt. Leather advised that while he did not have extensive notes, he had discussed the meeting with the Commissioner in the context of what he explained was an internal workplace assessment done in “H” Division in 2021 specific to the officer cadre.

This was the first time we became aware of the assessment, so we asked further questions to try to determine if it was relevant to the Commission’s mandate and whether privilege would apply. As we did not have enough information to determine relevance or whether privilege attached, we suggested that he not raise the assessment. However, we stated that should he be asked a question that would require him to discuss it, to answer truthfully and we would address it with Commission counsel. We advised him that whether the report came up during his interview or not, we would be looking into it. In addition, we were mindful that C/Supt. Leather would have another chance to canvass the matter during his appearance on July 27-28, 2022.

It is important to note that there was no attempt to conceal the existence of the assessment. The following day, we made inquiries to acquire a copy of the assessment and to learn more about its inception and objective. In the meantime, we notified Commission counsel of its existence right away and the fact that we were making efforts to obtain a copy for review. We eventually did obtain a copy of what we now know as the “Wellness Report” and it has been disclosed to the Commission with redactions.

With respect to C/Supt. Leather’s evidence at the hearing that “the advice that I received is not to proactively disclose the conversation and the emails leading up to the meeting of the 28th,” this can only be the result of a misunderstanding. Counsel did not provide such advice. C/Supt. Leather’s emails with respect to obtaining the firearms inventory and forwarding it to the Assistant Commissioner, who then forwarded it to the Commissioner, were disclosed to the Commission on May 19, 2021. Notes of the attendees at the April 28, 2020 meeting had been disclosed, and the fact of the meeting and its context were already in the public domain. There would have been no logical reason to advise C/Supt. Leather not to speak freely on this issue, as C/Supt. Campbell did at his interview six days later. As for C/Supt. Leather’s call from the Commissioner on April 22, 2020, it did not appear in his notes, and we do not recall being apprised of it until his appearance on July 27, 2022. Again, if we had known of it, there would have been no reason to advise him not to speak of it. Had C/Supt. Leather’s role in obtaining the firearms inventory been raised during his interview, which we anticipated it would, we would have expected him to answer fully and truthfully. We did not find it remarkable that the issue did not arise in the course of his interview, as we were certain it would be canvassed during his appearance, and we had no knowledge or indication that C/Supt. Leather wished to specifically address the matter in the course of his interview. Had we known, we would have asked the question.

It is significant to note that with respect to the interviews of senior officers, we were advised by Commission counsel that, as they had many topics that they wished to cover, and time was short, they would like us to remind the witnesses to focus on answering the questions posed. For that reason, in C/Supt. Leather’s preparation, we shared this information, with the caveat that he should feel free to share whatever additional information he believed to be relevant.

Disclosure of Relevant Material to the Commission

With respect to the disclosure of relevant materials, we understand our professional responsibility to gather and disclose relevant non-privileged materials. As you know, this has been an enormous task in a compressed timeframe and this process is never perfect, but we have not limited our efforts to materials specifically requested in subpoenas. We have made and continue to make best efforts to gather and disclose all materials relevant to the Commission’s mandate. We and our clients understand the need to be completely truthful and to share any relevant evidence they have with the Commission to facilitate its work. We will continue to advise the Commission when we identify new documents that require a privilege review, as we did with the Wellness Report.

Redactions Made to the Wellness Report

You raise another issue with respect to redacted information in the Wellness Report. The redacted information is privileged under the legal test known as the “Wigmore Criteria”. The redacted information was given in the context of voluntary interviews with assurances of confidentiality. In addition, statements made contain sensitive personal information, and although not attributed, could still reveal the identities of those officers who made them. The nature of the workplace assessment relies on the ability of participants to share information in a confidential setting without fear of reprisal either personally or professionally. To disclose information that would reveal the identity of the officers who participated and the nature of their input would erode confidence in the entire process. Workplace assessments are important tools relied upon to uncover and explore issues that may be contributing to difficult work environments. To allow the release of the redacted material would seriously compromise the process. In fact, publicly releasing the report, even with redactions, could cause significant distress to those who participated in what they believed to be a confidential process.

Your observation that the Wigmore privilege would fall away if C/Supt. Leather has no issue with his statement becoming public applies only insofar as his own statement is concerned. As you note, we are following up to confirm that the handwritten notes of interviews were all that existed in that regard and were destroyed by Quintet, the company that conducted the assessment. In any event, C/Supt. Leather’s views should not impact the privilege claim as it applies to the information of others in the summary report.

We are in the process of gathering the documents related to Quintet’s engagement and the assessment process for disclosure to you.

You have also inquired as to whether the participants in the Wellness Report have been advised of the option of seeking independent legal counsel with respect to whether the information they shared in that context is disclosed. To ensure the participants have an opportunity to express their perspective regarding the disclosure of the Wellness Report, RCMP Senior Management will contact them and advise that the Commission is interested in hearing their views. We will inform them that they may speak with Commission counsel directly or through legal counsel, and will advise them of their options in this regard.

We hope this addresses the concerns expressed in your letter, and as always, are available to discuss further.

Sincerely,

Lori Ward

Lori Ward
General Counsel