N.S. shooting report warns courts about Mounties' shoddy note-taking

Notes taken by Mounties in the years leading up to the Nova Scotia mass shooting were "incomplete, illegible, missing" and deficient overall — a problem the authors of a recently released report on the 2020 tragedy say needs to be addressed.

In fact, the Mass Casualty Commission's final report says the justice system should "exercise caution in drawing inferences from an absence of RCMP members' notes or omissions in notes taken."

"Courts, tribunals and the public need to be aware that simply because something is not reflected in a police officer's notes does not mean it did not happen," says the report.

Note-taking is one of the fundamentals of policing. RCMP officers are expected to follow a national policy on keeping notes from crime scenes or during undercover investigations — for good reasons.

An officer's notebook can be entered as evidence in a court case, substantiating evidence years after the fact. But inadequate and inaccurate entries in a notebook can compromise investigations.

"Note-taking is always an issue," former RCMP commissioner Brenda Lucki acknowledged during the Mass Casualty Commission hearings. 

"We stress that importance. And [officers are] provided feedback on good notes, poor notes. And then they get so busy that it's one of the first things, for some reason, in some cases, to drop by the wayside."

The inquiry into the 2020 mass shooting — which left 22 people dead, including a pregnant woman — discovered a pattern of problems in the work of the RCMP officers who interacted with the gunman in the years leading up to the mass shooting.

"The commission scheduled several days of testimony, in part because police officers' notes were incomplete, illegible, missing, or simply did not articulate their observations, decisions, and actions as required by national policy," the commissioners wrote in their final report, released last month in Truro, N.S.

Neighbour's complaint to police missing in notes 

Brenda Forbes, a former neighbour of the gunman, Gabriel Wortman, testified that she reported to police that Wortman had choked his partner Lisa Banfield near their Portapique cottage. She testified she was "getting concerned that the perpetrator was going to kill her."

Three officers responded at various times. Only one, now-retired constable Troy Maxwell, kept his notes. 

While they contained little information about his conversation with Forbes, he testified that the complaint was about the perpetrator driving a decommissioned police car too fast around the neighbourhood and scaring people. 

The report said there is no evidence to suggest Wortman started collecting decommissioned police cars until 2019 — about six years after Forbes's complaint.

"It appears that the passage of time, the scourge of post-traumatic stress disorder affecting both Ms. Forbes and Maxwell as witnesses, and inadequate record-keeping conspire to prevent us from knowing exactly what Ms. Forbes said and what Maxwell heard," said the report.

"We find that the lack of clarity about [Maxwell's] policing role that day and the actions he took in response to the report demonstrate a systemic RCMP failure of investigative training, policies and practices."

The commissioners also raised concerns about the notes kept by Const. Greg Wiley, the RCMP officer who visited the gunman about 16 times in the years before the mass shooting. Wiley testified that he considered Wortman "a community contact."

"Wiley was unable to produce any notes with respect to his interactions with the perpetrator, most notably after he was called to assist the Halifax Regional Police with a firearms complaint in 2010," the report said.

Cordell Poirier, a now retired Halifax Regional Police officer, said in a commission interview that Wiley "told me that he was a good friend" of the gunman's and would try to find out if Wortman had weapons at his Portapique cottage.

Wiley said he had no memory of dealing with Poirier.

"The inadequacy of notes and the failure to retain notes in this case is an example of the broader inadequacies of the RCMP policies and practices with respect to note-taking," wrote the commissioners.

In a third matter, notes couldn't be produced which may have shed light on how police responded to a 2011 bulletin which warned that Wortman had firearms and had expressed a desire to "kill a cop." It also warned police to use "extreme caution" when dealing with him.

A lawyer for the RCMP argued that the commissioners couldn't make a factual finding that a warrant to search the perpetrator's properties should have been pursued following the bulletin.

"However, it is not necessary for us to make such factual findings to determine that record-keeping practices and information sharing among Nova Scotia police agencies were deficient and that the police should have exercised their discretion to conduct further investigations and ensure complainants' safety," the commissioners wrote in their final report.

"The quality of front-line members' note-taking practices and the quality of supervision of note-taking practices are both important markers of the extent to which a police agency is committed to effective everyday policing."

The RCMP has committed to reading the report and disclosing the recommendations it intends to pursue.

RCMP has been aware of the issue 

The MCC report is far from the first time Mounties' note-taking practices have come in for criticism.

The Civilian Review and Complaints Commission for the RCMP has pointed to shortcomings in note-taking practices in multiple reports, including its review of how police responded to the shooting death of Colten Boushie, a Cree man who was killed by Gerald Stanley on his farm in August 2019.

A 2014 internal audit also called out issues in note-taking and note-keeping 

Those auditors reviewed a sample of RCMP notebooks from across the country and found some with missing pages, improper handwritten corrections and no indication that supervising officers had routinely inspected them, as required.

That report, almost a decade old, recommended the RCMP toughen and enforce its rules for notebooks. 

The Mass Casualty Commission has delivered much the same message by recommending that the RCMP "implement training and supervisory strategies to ensure that all members take complete, accurate and comprehensive notes." 

The problem is not limited to the RCMP, said Ian Scott.

For five years, he served as director of Ontario's Special Investigations Unit, investigating incidents involving officers and often coming face-to-face with questionable record-keeping.

"Police officers are, to some degree, professional witnesses. And they have to recite events that have happened often months, if not years, in the past," he said. 

"I think you can go as far as to say there's a common law duty for police officers to take notes. They're just so important to the whole justice system."

Defence lawyer Eric Neubauer said he sees problems with police note-taking in court "every day."

"Proper note-taking is so important because it impacts every facet of the criminal justice system, every component," he said.

"From police to the Crown to the defence to the courts, all rely on excellent note-taking and all are collectively disappointed when we see the stubbornly persistent problem of poor note-taking continue."

In 2010, for example, a retired RCMP officer in Manitoba burned all of his notebooks ­— covering 32 years' of police work — including notes that may have been relevant to a careless-driving case. A Crown prosecutor dropped the charges in that case after learning about the destroyed material.

Even the Supreme Court weighed in on the issue after two Ontario Provincial Police shot and killed two people. In both cases, the officers involved were instructed by their superiors to not take any notes about the incident until they spoke to a lawyer.

"I conclude that the police have a duty to write accurate, detailed and complete notes as soon as possible after the investigation," Justice Michael Moldaver wrote for the majority.

"Allowing police officers to consult with a lawyer before writing their notes is the antithesis of the very transparency that the legislative scheme is intended to promote."

Neubauer said there's no excuse for officers taking shoddy notes.

"This is a confusing problem. Why we still are seeing it persist, given all we know about it, given how many commissions and other courts have talked about its great importance?" he said.

"It is curious, to say the least, why we are still facing the problem of poor note-taking."

Former officer makes case for body-worn cameras 

Scott said one of the only ways to change the culture on note-keeping is to institute a better culture.

"It's a problem that is probably not going to go away very easily, because this is an issue that arises every single shift that a police officer does," he said.

"But I think the answer is a combination of more assiduous supervision and consequences for not having decent notes, maybe affecting their ability to be promoted to a higher rank."

Greg Brown, a former officer with the Ottawa Police Service who now teaches at Carleton University, said the longstanding issues reinforce the need for body-worn cameras.

"That really mitigates against bad note-keeping. If you have three or four officers at a scene, it's captured from multiple angles, audio is good. I mean, what better evidence is there of what exactly transpired?" he said.

"It captures, tone, intonation, body language, pauses ... all the nonverbal communication that we rely on." 

The RCMP says it plans on rolling out between 10,000 and 15,000 body-worn cameras to frontline officers later this year and into 2024.

Neubauer said the introduction of body-worn cameras will raise a host of questions about data collection, but new transcription technology could help clean up officers' notes.

"I think that's a place where improvements can be made and may be the future of note-taking, as long as those procedural safeguards are in place," he said.

Another possible solution: naming and shaming.

"I think one thing that the courts can do to address this problem is to continue to shed light on this problem in the same way that the commission did," said Neubauer.

"And continue to be critical in instances where judges note that a police officer's note-taking practices have fallen below par."