The RCMP were “careless and calculated” in their decision to charge the partner of the Nova Scotia mass shooter through an investigation where police deceived her and violated her rights, her lawyer says.

Jessica Zita, a lawyer representing Lisa Banfield, gave a final oral submission before the Mass Casualty Commission on Thursday in Truro, N.S. The commission is leading the inquiry into the April 2020 massacre where 22 people were killed by Gabriel Wortman, Banfield’s longtime partner. 

Zita said Banfield, who has told police and the commission multiple times about the years of physical and emotional abuse she suffered from the gunman, had no idea the RCMP officers speaking with her in the months after the shooting were “plotting” to charge her.

“The police have to know that this is inappropriate action on their part and inappropriate conduct to betray the trust of a victim of domestic violence,” said Zita, an associate with Toronto-based Lockyer Zaduk Zeeh.

“The police conduct was … outdated, ill-informed and out of touch.”

Lawyer Jessica Zita, representing Lisa Banfield, addresses the Mass Casualty Commission inquiry into the mass murders in rural Nova Scotia on April 18-19, 2020, in Truro, N.S., on Thursday, Sept. 22, 2022. (The Canadian Press/Andrew Vaughan)

In December 2020, Banfield was charged with providing the gunman with ammunition. At the time, police said Banfield, her brother James Banfield, and brother-in-law Brian Brewster, who were also charged, did not know how the ammunition would be used. All three have since had their charges resolved through restorative justice.

The charges were not only unnecessary, Zita said, but harmful and re-victimized Banfield eight months after the horrifying shootings. 

She added the RCMP’s actions need to be addressed by the commission in its final report next year because it led to a “dreadful deception” of Banfield and her lawyers, which breached the Canadian Charter of Rights and Freedoms when she was “unsuspectingly fully co-operating” with police.

A main example is the actions of RCMP Sgt. Greg Vardy, who was one of the first officers to interview Banfield on April 20, 2020, and was “kind and attentive” to her, Zita said.

Banfield, left, stands with RCMP Cpl. Gerry Rose-Berthiaume near the remains of the gunman’s warehouse in Portapique in October 2020, during a re-enactment of the events that took place months earlier on April 18, 2020. (Mass Casualty Commission)

Banfield felt so comfortable with the Mounties that she agreed to take officers on her first visit back to Portapique in October 2020, which the RCMP filmed. During that visit, Banfield recreated her movements on the night of April 18, but Zita said police did not let her sisters walk with her, and there were no other qualified mental health or trauma experts on hand.

While Banfield thought this visit would bring her some closure, Vardy and other investigators had an “agenda,” Zita said, as police were gathering information all along to charge her. This process was never shared with Banfield or her lawyer, James Lockyer, despite his request the police alert him if they began such an investigation, Zita said.

For police to come face to face with Banfield’s vulnerability, and “feign sensitivity to further an ulterior motive is manipulative, and dare I say it’s abusive,” Zita said.

“The police were operating in extremes. This was an investigation that could be described as both careless and calculated,” said Zita.

Twenty-two people died on April 18 and 19, 2020. Top row from left: Gina Goulet, Dawn Gulenchyn, Jolene Oliver, Frank Gulenchyn, Sean McLeod, Alanna Jenkins. Second row: John Zahl, Lisa McCully, Joey Webber, Heidi Stevenson, Heather O’Brien and Jamie Blair. Third row from top: Kristen Beaton, Lillian Campbell, Joanne Thomas, Peter Bond, Tom Bagley and Greg Blair. Bottom row: Emily Tuck, Joy Bond, Corrie Ellison and Aaron Tuck. (CBC)

“Worst of all, this can do nothing but discourage victims of domestic violence from coming forward to the police. Why would they, how could they, if it means being investigated themselves?”

The Nova Scotia RCMP has told CBC News that Banfield was not under investigation at the time of the re-enactment filming.

However, an interview Banfield gave to RCMP soon after the shooting on April 28, 2020, is labelled a “cautioned” statement. Cautions are delivered by police when they are questioning someone suspected of a crime, to make sure their answers are admissible in court.

RCMP had also obtained search warrants for James Banfield and Brewster in the spring of 2020. 

Zita said the dynamics of gender-based and domestic violence lie at the core of the mass shooting. If police had properly investigated earlier reports of the gunman’s violence, including in 2013 that he’d assaulted Banfield in front of neighbours, things might have turned out differently.

Zita said “investigating domestic violence should always be akin to investigating a potential homicide,” and called for police to update their training and policies to better recognize various forms of intimate partner violence.

A lawyer for a coalition of women’s organizations said Thursday the gunman showed a pattern of gender-based violence against people like his ex-wife and vulnerable patients at his denture clinic.

Erin Breen, representing Women’s Legal Education and Action Fund (LEAF), Avalon Sexual Assault Centre and Women’s Wellness Within, addresses the Mass Casualty Commission inquiry into the mass murders in rural Nova Scotia on April 18/19, 2020, in Truro, N.S., on Thursday, Sept. 22, 2022. (The Canadian Press/Andrew Vaughan)

Erin Breen, representing the Women’s Legal Education and Action Fund (LEAF), Avalon Sexual Assault Centre and Women’s Wellness Within, said during her final submission that data clearly shows most men who carry out mass killings have committed gender-based violence in the past.

“It is therefore at our own peril that we as a society cling to uninformed biases and stereotypes to dismiss gender-based violence as a private matter that does not affect us personally,” Breen said.

Breen also highlighted other interactions with government authorities and organizations where she said screening failures happened.

Citing various documents already released through the commission or some yet to be tabled, Breen said the gunman’s Nexus application to the Canadian Border Services Agency (CBSA) in March 2015 was approved without the border service having the full picture.

Nexus passes are designed to speed up crossings for low-risk, pre-approved travellers across the Canada-United States border, Breen said, and the inquiry has heard the gunman smuggled firearms through a Maine-New Brunswick land crossing.

However, on June 2, 2010, the Halifax Regional Police added the gunman’s name to the Canadian Police Information Centre database as being of “firearms interest to police” or FIP, which expired in June 2015. It was entered based on a report the gunman had illegal weapons and wanted to kill his parents.

Although CBSA would have checked the Canadian Police Information Centre database for the gunman’s name when he applied for a Nexus pass, Breen said a new letter from a federal Justice Department lawyer confirms the agency didn’t have access to FIP information — the category that held “the lone, tangible red flag that the perpetrator was not low risk.”

“I think any member of the public would be highly concerned about this,” Breen said.

Breen said this practice is under review, according to the federal Justice Department. She urged the commission to recommend CBSA have access to all relevant Canadian Police Information Centre systems, including FIP, when assessing Nexus applications.

In 2015, the border agents also wouldn’t have had access to FIP information, but that has since been remedied, Breen said. 

She also said the Denturist Licensing Board of Nova Scotia’s policy requiring their members report any criminal convictions gave the gunman a loophole. In 2001, he was charged with assaulting a teenage boy, but given a conditional discharge.

Halifax police on scene at the Atlantic Denture Clinic in downtown Dartmouth on April 20, 2020, which was owned by the Nova Scotia mass shooter. (Craig Paisley/CBC)

The board received at least eight complaints about the gunman between 1998 and 2020, including three from women who described abusive behaviour and one who was subject to sexually explicit comments during her treatment.

Breen said it’s concerning the province paid the gunman for dental services of patients on employment support and income assistance, despite the complaints and a licence suspension in 2007. A recent report to the commission also said the gunman preyed on vulnerable and Black women, and exchanged dental work for sex.

She asked the commission to recommend that the province enhance its screening of government-funded professionals providing services to vulnerable people.

The commission will continue to hear final oral submissions from lawyers and participants in the inquiry through Thursday and Friday.