Q 1 How many documents did the government disclose to the Commission?
So far, the Government of Canada has disclosed over 75,000 documents to the Mass Casualty Commission.
Documents are disclosed on a rolling basis over the course of the proceeding.
The Government of Canada’s document disclosure was in response to over 2000 separate requests for documents contained in 39 subpoenas from the Commission.
The Government of Canada’s disclosure includes records from the RCMP, Department of Public Safety, Canada Border Services Agency, National Defence, Transport, Correctional Services, and Public Service and Procurement.
The Government of Canada began collecting documents in November 2020 and began disclosing them to the Commission in February 2021.
Document production is an ongoing process as the Commission pursues its Inquiry. The Government of Canada’s document production efforts are driven by the Commission’s needs and upcoming hearings.
When new issues and questions come up in the Inquiry, this can lead to new requests for documents by the Commission. The Government of Canada then gathers, reviews, and produces documents in response to those requests.
Q 2 Why did the Commission issue so many subpoenas to get disclosure from Canada?
The Government of Canada is a major source of documentary evidence for the MCC Inquiry.
In general, subpoenas identify documents or categories of documents that must be produced.
They also facilitate tracking the production of large volumes of documents.
Canada began proactively producing some documents even before subpoenas were issued.
Q 3 What is the involvement of the Minister of Justice or the Minister’s Office in the document production process?
The Minister and Minister’s Office have no involvement in this process.
Lawyers and paralegals in the Department of Justice Canada are responsible for responding to subpoenas and producing federal government documents in the MCC Inquiry.
Document production in the MCC Inquiry is managed by lawyers and paralegals in the Department of Justice. It is a standard practice in public inquiries and civil litigation.
Decisions about relevance, privilege, and how documents are prioritized for review and production are made by lawyers and paralegals in the Department of Justice based on legal standards, including the MCC’s mandate and rules for document disclosure, as well as the law regarding legal privilege.
Determining whether information is relevant and whether it is privileged is not always straightforward, and regularly requires consultation with client departments and with experts in the Department of Justice.
Q 4 What is the mandate of the MCC Inquiry?
The MCC was established by joint Orders in Council of the Government of Canada and the Government of Nova Scotia on October 21, 2020.
The mandate of the MCC is set out in these Orders in Council.
In general terms, the MCC’s purpose is to learn what happened in the mass casualty, to understand how and why, and to make meaningful recommendations to help prevent and respond to similar incidents in the future.
Q 5 How does the MCC gather information and evidence for the Inquiry?
To conduct its Inquiry, the Commission gathers evidence in various ways.
The Commission collects documentary evidence by issuing subpoenas that require individuals or organizations to produce documents to the Commission.
The Commission also carries out interviews to gather information. The Commission’s Interim Report, which was released on May 1, 2022, indicated that the Commission had conducted over 150 interviews. It has done many more since that time.
The Commission also holds public hearings in which witnesses give live testimony and documents are entered as exhibits. Public hearings began on February 22, 2022, and are ongoing.
Q 6 What was the purpose of the Commission’s pre-hearing interviews of witnesses?
To prepare for the hearings, the Commission requested voluntary interviews with witnesses, which were audio recorded and transcribed by the MCC.
Many interviews became exhibits at the hearings, and stand in the place of more formal evidence.
In some cases, such as with the senior officers of the RCMP, voluntary interviews provided preliminary evidence and the Commission called the witness to give evidence at the hearings.
For these witnesses, Commission counsel did not always fully canvass all of the issues they then covered with a witness, but instead left some matters for questioning only during the hearing.
Q 7 What happens to documents once they are disclosed to the Commission?
The Mass Casualty Commission would be best placed to answer questions about it own internal processes.
However, as a participant in the Inquiry, the Government of Canada has some insight on those processes.
Documents disclosed to the Commission do not automatically become public. They are reviewed by Commission counsel. They are then distributed to participants in the Inquiry.
In general, documents disclosed to the Commission only become public if they are entered as an exhibit at a hearing, placed on the record during a witness interview, or if they are referenced in one of the Foundational Documents prepared by the MCC. Foundational Documents summarize evidence on particular issues in the Inquiry.
The MCC sometimes applies redactions to documents, for example to protect personal information, or when information is graphic, sensitive or irrelevant to its mandate.
Q 8 What findings or recommendations do you think the Commission will make? What do you think about the evidence heard to date?
It would not be appropriate for me to comment.
The MCC Inquiry is in progress, and the Commission is still hearing evidence.
The Commission will consider the evidence, hear submissions, and arrive at its findings and recommendations.
The Inquiry must run its course.
The Government of Canada will continue to support the work of the Commission, and looks forward to receiving its findings and recommendations.
Disclosure
Q 9 Why were Commissioner Lucki’s emails to the Minister of Public Safety’s office disclosed later than the majority of the documents that were provided to the Commission?
These emails were not withheld from the Commission or intentionally disclosed later than any other documents.
Documents are prioritized for review and production based on the priorities identified by counsel for the MCC and immediate needs for upcoming public hearings. Canada has produced over 75,000 documents to the Commission.
At the request of the Commission, the Government of Canada’s initial productions focussed on disclosing the RCMP’s investigative records. Prioritizing these documents meant that other types of documents were reviewed and disclosed later in the document production process.
After review and disclosure of the RCMP investigative file, Commissioner Lucki’s emails were reviewed as part of another grouping of documents. These documents were queued for release well in advance of Commissioner Lucki’s interview on August 4, 2022, or appearance August 23, 2022.
The emails were entered into evidence on July 11, 2022.
Q 10 Why were parts of the notes of high-ranking RCMP officials, including C/Supt. Leather, C/Supt. Gray, and Supt. Campbell, not initially produced to the Commission?
Four sets of officer notes totaling 2,414 pages were disclosed to the Commission on February 11, 2022, and March 2, 2022.
However, 35 pages of notes were not immediately shared with the Commission as they required further privilege review. Those notes have now been disclosed to the Commission.
Of the 35 pages that required further review, only four pages related to the April 28, 2020 meeting with Commissioner Lucki. Those four pages were contained within Supt. Campbell’s records. Canada produced those notes on May 30, 2022, without any redactions after it was determined that they were not privileged.
The remainder of the 35 pages have now all been disclosed. They contain some redactions for privilege, irrelevance, or personal information. These pages do not refer to the April 28, 2020 meeting, and none of the redacted information relates to the April 28, 2020 meeting.
The 35 pages were disclosed on the following dates. On May 30, 2022, 13 pages from Supt. Campbell’s notes and two pages of Insp. Murray Marcichiw’s notes were disclosed; on June 24, 2022, 17 pages from the notes of C/Supt. Chris Leather were disclosed; and on July 22, 2022, three pages from the notes of C/Supt. Janis Gray were disclosed.
While it is standard practice to review documents for privilege before disclosure, the MCC was not advised that some pages of the notes of senior officers were being further reviewed for privilege.
The Department of Justice Canada recognizes that not advising the MCC immediately that the 35 pages were still being reviewed was an error, and regrets this oversight.
Justice counsel wrote to the Commission on June 24, 2022, in response to a letter from the Commission inquiring about why the pages were not initially disclosed. In that letter, Justice counsel acknowledged that they should have informed the Commission that the 35 pages required further privilege review so that the Commission was aware the disclosure of these documents was not yet complete. Justice counsel also reiterated that this was inadvertent oversight. They have now all been disclosed to the Commission, on the dates stated above.
Q 11 Why did it take several months for the 35 pages to be produced to the Commission?
In early 2022, the 35 pages of senior officers’ notes were flagged by Justice lawyers and paralegals for further review to assess potential privilege claims.
Justice counsel always intended that all of these pages would be disclosed, either with redactions (if privileged) or without redactions (if not).
The nature of the privilege review for these pages required consultation with clients and Justice counsel with specialized expertise.
Justice counsel also faced many competing urgent priorities to meet the Commission’s document requests and participate in public hearings, which began in February 2022.
Justice counsel has since disclosed the 35 pages that underwent further privilege review. No redactions were applied to any notes regarding the April 28, 2020 meeting.
Q 12 What information on the 35 pages caused them to be flagged for further review?
Justice counsel and paralegals flagged the 35 pages for further review after identifying potentially privileged information that required a more specialized review and consultation with clients and Justice counsel with specialized expertise.
There are many different types of potential privilege, including solicitor-client privilege, public interest privilege, and Cabinet confidences.
Whether privilege applies can be difficult to assess and can require consultation with clients or subject matter experts within the Department of Justice.
Justice counsel undertook this further review to determine if the information was privileged.
The 35 pages have now all been disclosed to the Commission. No information about the April 28, 2020 meeting contained within these notes has been redacted.
Q 13 Why did the Commission express concerns about a discrepancy in the notes of Supt. Campbell?
On June 22, 2022, the Commission requested an explanation for why four pages of Supt. Campbell’s notes were not initially disclosed.
Justice counsel responded on June 24, 2022, and explained that these pages were among 35 of pages of senior officers’ notes that had been retained for further privilege review.
In Justice counsel’s June 24, 2022 letter, they acknowledged that the Commission should have been informed that the 35 pages were undergoing further privilege review so that the Commission was aware the disclosure of these documents was not yet complete.
Justice counsel reiterated their commitment to continued transparency in the ongoing disclosure process.
All 35 pages have now been disclosed to the Commission.
Q 14 Why were D/Commissioner Brennan’s notes not disclosed together with the notes of the other senior RCMP officials?
D/Commissioner Brennan’s notes were provided to Justice counsel by the RCMP on July 12, 2022. Questions about why notes were provided to Justice counsel on that date should be addressed to the RCMP.
These notes include a reference to the April 28, 2020 meeting.
These notes, which span from April 19, 2020, to August 14, 2020, were disclosed to the Commission on July 21, 2022.
D/Commr. Brennan’s further notes were disclosed on August 9, 2022.
Q 15 Is there an audio recording of the April 28, 2020 meeting with Commissioner Lucki? If so, why hasn’t it been disclosed to the Commission?
On June 29, 2022, Justice counsel first learned that a partial recording of the April 28, 2020 meeting was made by an RCMP employee.
The RCMP employee advised Justice counsel that the recording was on a device they no longer have.
The RCMP is following-up to see if the recording can be recovered.
On July 8, 2022, Justice counsel advised the Commission of the potential existence of the recording.
Justice counsel confirmed that if it is found, it will be reviewed for the purpose of disclosure to the Commission.
We understand that the RCMP have not yet located or recovered the recording.
Any further questions should be directed to the RCMP.
Q 16 When did Justice counsel first learn about the existence of a Wellness Assessment conducted by a third party respecting H Division?
Justice counsel appearing before the MCC Inquiry first became aware of the Wellness Assessment and the corresponding report on July 5, 2022. This was when Justice counsel met with C/Supt. Leather to prepare him for his interview the following day with Commission counsel.
On July 7, Justice Counsel advised Commission counsel of the existence of the report.
The Wellness Assessment was then disclosed to the Commission on July 29, 2022, after it was reviewed for relevance and privilege. Some redactions were made to the report on the basis of legal privilege.
Q 17 What are your views on the content of the Wellness Assessment?
The Wellness Assessment was commissioned by the RCMP, not Justice Canada. As such, I do not have any comments to make about the contents of the Wellness Assessment.
The Wellness Assessment is part of the documentary evidence that has been produced to the Commission.
The Commission will determine what use it wishes to make of the Wellness Assessment in the Inquiry, including in interviews, witness testimony, or in connection with its findings and recommendations at the end of the Inquiry.
Any further questions about the content of this report should be addressed to the RCMP.
Q 18 Can you provide the Committee with a copy of the Wellness Report?
We are not able to provide the Committee with this report.
We have produced a partially redacted version of the Wellness Report to the Commission. The Commission has not yet decided to make this document public.
The Inquiry process must be allowed to run its course.
Any further questions about the Report should be directed to the RCMP.
Q 19 When did Justice counsel first learn about the call that Commissioner Lucki made to C/Supt. Leather on April 22, 2020?
Justice counsel appearing before the MCC Inquiry learned of the April 22, 2020 phone call that Commissioner Lucki made to C/Supt. Leather during C/Supt. Leather’s testimony before the Commission on July 27, 2022. They have no recollection of C/Supt. Leather mentioning the April 22, 2020 phone call during previous discussions.
There is no reference to the April 22, 2020 call in C/Supt. Leather’s notes.
C/Supt. Leather referred to the call during his testimony before this Committee on July 25, 2022, but Justice counsel appearing before the MCC Inquiry were not aware of this. They were appearing before the MCC Inquiry at the time, and were not informed of this aspect of C/Supt. Leather’s testimony. They learned of the April 22, 2020 phone call during C/Supt. Leather’s July 27th testimony before the Commission.
Q 20 Did Justice counsel advise C/Supt. Leather not to disclose relevant information about the April 22, 2020 call from Commissioner Lucki or the events leading up to the April 28, 2020 meeting?
Justice counsel did not advise C/Supt. Leather not to disclose this information to the Commission. Justice Counsel have a different understanding than C/Supt. Leather appears to have on this point, based on his testimony in the MCC Inquiry.
Justice counsel had no knowledge of the April 22, 2020 call, prior to C/Supt. Leather’s testimony on July 27, 2022, when he mentioned the call during his MCC appearance. They therefore could not have counseled him about it before his testimony. If Justice counsel had been aware of the call, they would have advised C/Supt. Leather that it was relevant to the Commission.
C/Supt. Leather’s emails with respect to the gun inventory and the lead up to the April 28, 2020 meeting had been disclosed May 19, 2021.
With respect to C/Supt. Leather’s notes of the April 28, 2020 meeting, these had already been produced to the Commission, on February 11, 2022. It simply doesn’t make sense that Justice counsel would have advised him not to speak about that meeting, given that his emails and notes of the meeting had already been disclosed.
I have full confidence in our Justice counsel and all of the work they did to assist the Commission and to represent Canada in the Inquiry.
Our Justice counsel did not do anything improper, as evidenced by their efforts to ensure that all relevant information was disclosed to the Commission.
Q 21 Did Justice counsel tell C/Supt. Leather to take a “reactive posture” when testifying at the MCC Inquiry? What about with respect to the Wellness Assessment in particular?
Justice counsel only gave C/Supt. Leather advice of this nature with respect to the Wellness Assessment, and did so for a specific reason.
C/Supt. Leather mentioned the Wellness Assessment on July 5, 2022, during a meeting with Justice Counsel to prepare him for his interview the following day with Commission counsel. This was the first time that Justice counsel appearing in the MCC Inquiry had heard of the Wellness Assessment.
Upon learning of the review and the existence of the Wellness Assessment, Justice counsel appearing in the MCC Inquiry advised C/Supt. Leather that he should answer honestly if he was asked about it, but that it was preferable if he did not proactively raise the report because they had not yet had an opportunity to review the document for relevance and privilege. Following this review, the document was disclosed to the MCC on July 29, 2022.
Justice counsel did not advise C/Supt. Leather to take a reactive posture on any other issues, such as the April 22, 2020 call or any other call or information relevant to the Commission.
Commission counsel made it clear to Justice counsel, no later than July 4, 2022, that they had many areas to canvass and asked Justice counsel to advise C/Supt. Leather to focus on the questions asked, which Justice counsel did during the prep meeting on July 5, 2022.
I have full confidence in our Justice counsel and all of the work they did to assist the Commission and to represent Canada in the Inquiry.
Q 22 Why did C/Supt. Leather say at the MCC Inquiry that he had spoken to independent legal counsel?
The Department of Justice represents the Government of Canada at the Inquiry. I cannot speak to any arrangement that C/Supt. Leather has with independent counsel.
Q 23 Did C/Supt. Leather make a request for Legal Assistance under the Treasury Board Policy to retain independent counsel?
As requests for Legal Assistance are confidential and privileged, I cannot speak to whether a request for Legal Assistance was made.
Requests for Legal Assistance are handled in accordance with the Treasury Board Policy on Legal Assistance and Indemnification.
For the RCMP in Nova Scotia, applications for legal assistance are administered by its Professional Responsibility Unit.
Questions about how applications for legal assistance work within the RCMP should be directed to the RCMP.
Meeting of April 28, 2020
Q 24 Was the Department of Justice involved in the issue of whether to release firearms information at the April 28, 2020 press conference?
The Department of Justice and its counsel were not involved or consulted on whether to disclose firearms information at the April 28, 2020 press conference.
The Department of Justice and its counsel were also not involved or consulted in advance about the teleconference with the RCMP Commissioner on April 28, 2020.