Former Supreme Court judge scolds federal lawyer over advice in N.S. shooting inquiry

The federal deputy justice minister has defended his department's lawyers after a former Supreme Court judge raised "serious concerns" about the advice they gave to a high-ranking RCMP officer in the Nova Scotia mass shooting inquiry, including not to talk about certain evidence unless specifically asked.

Thomas Cromwell, the director of legal counsel for the public inquiry into the April 2020 massacre, wrote to Department of Justice lawyer Lori Ward two weeks ago about Chief Supt. Chris Leather's testimony last month.

"Some aspects of his testimony have given rise to some serious concerns that I want to raise with you," wrote Cromwell, who sat on the Supreme Court of Canada from 2008 to 2016.

The Aug. 5 letter was disclosed by the Mass Casualty Commission this week. It is leading the inquiry into the mass shooting when 22 people, including a pregnant woman, were killed by a gunman as he drove a mock police car across the province.

• CBC's full coverage of the inquiry into the Nova Scotia mass casualty

Leather, who was the head of criminal operations in Nova Scotia at the time of the shootings, has testified he received a call from RCMP Commissioner Brenda Lucki on the evening of April 22, 2020, shortly after the killings. He said Lucki asked him to send her details about the guns used by the shooter, and he did send her a list for internal purposes only.

But Leather's call and email correspondence with Lucki didn't come up in a July 6 interview with inquiry lawyers. Leather testified on July 28 that lawyers with the federal Department of Justice, including Ward, told him to not "proactively disclose" his conversation and emails with Lucki.

"I knew from my notes and emails I had prepared and submitted that it was obviously relevant to what would become the infamous phone call of April 28 [2020] and was troubled by that and wanted their advice and was advised to take a reactive posture," Leather said.

When he testified last month, Leather told the commission he had also sought "independent legal counsel" after the discussion with the justice department lawyers.

Questions around whether Lucki was under political pressure to release the specifics of the gunman's firearms have swirled for weeks, ever since Chief Supt. Darren Campbell's notes from the April 28, 2020, call were released as part of the inquiry. 

Campbell wrote the commissioner was "sad and disappointed" and "had promised the minister of Public Safety and the Prime Minister's Office that the RCMP, [we] would release this information." 

On May 4, 2020, Prime Minister Justin Trudeau announced a ban on some 1,500 makes and models of firearms, including two of the guns used in the Nova Scotia mass shooting. At that time, police had not released the information about the guns used in the attacks.

The allegations have resulted in parliamentary hearings to address allegations of potential political interference, including a hearing in Ottawa on Tuesday.

If Leather's testimony is accurate, Cromwell said it's concerning that federal lawyers would have given this advice when their clients have the "obligation" to help the commission achieve their mandate in the public interest.

"While I understand that this sort of advice is standard for witnesses in civil litigation … 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," Cromwell said.

He also asked for Ward's assurance that this sort of advice "has not and will not be given to other witnesses" appearing for interviews or testimony before the commission. 

"Rather, I would hope and expect that witnesses would be encouraged to share the relevant information that they have," Cromwell wrote.

In the Ottawa hearing Tuesday, MPs asked Campbell about his conversations with justice lawyers. He said he did not get the same advice as Leather about how to testify.

Cromwell also asked Ward whether other "clearly relevant material" has been held back by justice lawyers because it was not specifically requested, and noted that when it comes to documents the commission's general subpoena remains in effect.

In an email to Cromwell a few days later on Aug. 9, 2022, Ward said Leather's testimony about the advice he'd been given by justice lawyers "can only be the result of a misunderstanding."

"Counsel did not provide such advice," Ward said.

Ward said Leather's emails showing that he sent the firearms details to the assistant RCMP commissioner, who then sent them to Lucki, were disclosed to the commission on May 19, 2021. She also said notes of the April 28, 2020, meeting had been disclosed by that point and the meeting's context was already out in public — so there would have been no "logical reason" to advise Leather not to speak freely on the issue.

The only time they advised Leather to refrain from offering information was when he said the April 28 meeting with Lucki was also brought up in an internal workplace assessment in Nova Scotia, Ward wrote.

François Daigle, deputy minister of Justice and deputy Attorney General of Canada, echoed Ward's position before the House of Commons committee Tuesday.

Daigle said since the justice lawyers had not heard anything about the internal review until Leather brought it up, their advice was "don't raise it if they don't raise it."  

Justice lawyers also didn't learn of Leather's call with Lucki on April 22 until he testified to that publicly, Daigle said, so for Leather to suggest the justice department told him not to bring up a meeting they didn't know about "doesn't make sense."

"My conclusion is that he misunderstood the advice. Our advice was only specifically with respect to the … report because we didn't know anything about it," Daigle said.

Ward wrote that it's "significant" to note that when it came to senior officer's interviews, the commission counsel had reminded them to tell the RCMP officers they should focus on "answering the questions posed" because time was short.

For this reason, Ward said justice lawyers would have shared that advice with Leather "with the caveat that he should feel free to share whatever additional information he believed to be relevant."

But Leather's recollection of the advice also alarmed Bruce Pitt-Payne of British Columbia, a retired RCMP officer.

He said this is a prime example of conflict of interest "rearing its ugly head," and shows that justice department lawyers should not be representing parties with varying interests like Leather, Lucki, federal ministers and the prime minister.

"All could be in conflict here because of this setup," Pitt-Payne said. 

Instead, Pitt-Payne said separate justice lawyers with separate privilege should be assigned to each of those parties. He said decisions are currently being made "that aren't necessarily in the interest of the investigation."

Pitt-Payne has filed an official complaint about Ward's conduct with the Nova Scotia Barristers' Society, citing her advice to Leather and alleged conflict of interest.

Given the scale of the inquiry to investigate one of the worst massacres in Canadian history, Pitt-Payne said it would be a shame if the commission wasn't able to meet their objectives through "unethical legal games."

"My fear is that something might be covered up in order to protect one of the [justice department's] entities, which will probably be higher up the food chain than the Chris Leathers and the Darren Campbells," Pitt-Payne said.

"That, I think, should be everybody's concern when you have such an important commission going on."

35 pages of notes held back by justice lawyers

The commission has also released emails between Cromwell and Ward on why the four crucial pages of Campbell's notes on the April 28, 2020, meeting with Lucki were initially missing when the Department of Justice originally sent them to the commission, without explanation.

On June 22, Cromwell asked why the justice department did not tell the commission about those key pages, and also asked for whether any other materials were currently being held back and being checked for "privilege."

Ward agreed in a June 24 email that they had not explained they would be holding back pages of Campbell's notes and they "should have done so." She said at that point, of the 35 pages of senior officers' notes initially held back to check for privilege, only three pages remained under review from Chief Supt. Janis Gray who oversaw the Halifax RCMP district and is now retired.

It appears that as of Tuesday, all of Gray's notes have been posted online by the commission.