Lawyers hope the upcoming inquiry report addresses how police treat victims of domestic violence
WARNING: This story contains distressing details of violence and intimate-partner violence.
When Lisa Banfield first met the RCMP investigator assigned to interview her, she was lying in a hospital bed with a bruised body, a fractured rib and spine.
“She was having a hard time just moving several inches in the bed, so she was in pain,” Staff Sgt. Greg Vardy would later say in an interview with the public inquiry tasked with investigating one of the country’s deadliest mass shootings.
It was the afternoon of April 20, 2020, when the two first spoke. Banfield was recovering at the Colchester East Hants Health Centre in Truro, N.S., with her sister at her side. Her injuries had been inflicted by her common-law partner, Gabriel Wortman, with whom she had been locked in an abusive relationship for 19 years.
She was Wortman’s first victim in his violent attack. But, as Vardy revealed to Banfield while taking her statement that day, she was far from the last.
Her partner had killed 22 people, including a pregnant woman, in a shooting rampage that started in Portapique, N.S., on the night of April 18, 2020 and spanned five communities. Vardy told her the violence ended 13 hours later when police shot and killed Wortman.
“Imagine learning all those things at the same time on that sort of platform. And while you’re being told this information, you’re being asked to give more and help and do whatever you can. Of course you’re going to do that,” said Jessica Zita, one of Banfield’s lawyers.
“That was the vein in which she first encountered the officers, who were nothing but cordial, kind and respectful to her and her family.”
Banfield and her lawyers now allege that encounter with RCMP sparked eight months of manipulation. They claim police officers used Banfield’s vulnerable state as a victim to gather information they would need to eventually charge her criminally, without making it clear she was under investigation or that she could consult her lawyer.
Banfield hasn’t done a media interview since the mass shooting. She has only answered questions for police, her own lawyers and the public inquiry, the Mass Casualty Commission. Her legal team is speaking with CBC News for the first time since it outlined concerns about police actions in its final submissions in September.
Public hearings ended last fall after 230 witnesses helped the inquiry examine how Wortman was able to obtain illegal guns in the U.S. and remain undetected during his shooting rampage as he masqueraded as a police officer. Part of the inquiry’s mandate is also focused on the police response and the role of gender-based and intimate partner violence.
Awaiting commission’s report
Banfield’s legal team is hoping the Mass Casualty Commission’s final report, due to be released on March 30, addresses what can be learned from her experience — including how police should treat victims of domestic violence.
“Deception is probably the best word to describe, in simple terms, how I think she was treated,” Zita said.
Eight months after meeting the RCMP in her hospital room, Banfield, her brother James and brother-in-law Brian Brewster were charged for supplying ammunition to Wortman. At the time, RCMP said none of those charged knew about Wortman’s intentions.
All charges were withdrawn last summer after the trio completed restorative justice, meaning they didn’t face a trial and have no criminal record.
But Banfield hinted at the impact the criminal charges had on her when she testified at the Mass Casualty Commission in July 2022.
“Lots of people that I don’t know have reached out and supported me until I got the charges,” she said. “And then it stopped.”
According to the Transition House Association of Nova Scotia, an umbrella group focused on preventing violence against women, Banfield has been unfairly blamed for her partner’s crimes.
“It was really unfortunate [RCMP] chose to charge her. They sent a very clear message to victims of domestic violence that they don’t consider them real victims,” said James Goodwin, a lawyer for the association.
The association expects the Mass Casualty Commission will address how Banfield was treated in its upcoming report.
“I think the commission will completely exonerate her, and find her to just have been a victim,” said Goodwin.
Victim. Witness. Suspect.
On the night of the Portapique attack, Wortman dragged Banfield through the dirt in the dark, kicked and handcuffed her, then locked her in his replica police car. She escaped through the car window and ran into the woods where she hid under a tree overnight, according to interviews she provided to police and the public inquiry.
The public inquiry later heard how, after nearly two decades of extreme physical and psychological abuse, Banfield had gone into survival mode. She first shared detailed examples of that abuse with Vardy, a veteran RCMP officer of 30 years, over the course of three interviews in the spring and summer of 2020.
Vardy told the Mass Casualty Commission he was the lead interviewing expert for the Nova Scotia RCMP in April 2020, teaching other officers best practices and techniques. He was tasked with getting information from Banfield following the mass shooting.
He confirmed to the inquiry in July 2022 that Banfield was considered a witness in the early days of the police investigation. He also told Zita’s boss, James Lockyer, a partner at the Toronto law firm Lockyer Zaduk Zeeh, during a phone call on April 21, 2020, that Banfield was not a suspect.
Lockyer expressed concern to Vardy during the call that his client would become the target of an investigation. That’s according to an email Lockyer sent to Nova Scotia crown prosecutors nearly a year later, on April 8, 2021.
“Mr. Vardy told me that Lisa was ‘a victim.’ She ‘was in no jeopardy’ and if there had been any thought of wrongdoing on her part, the police would have acted accordingly, and given all her necessary warnings and rights and immediate access to counsel,” Lockyer wrote.
Vardy responded on April 28, 2021. In an email to the crown, he said he never spoke to Lockyer about “jeopardy for the future, if that is what he is indicating.”
He also refuted telling Lockyer he would notify him if Banfield’s status changed in the investigation.
“This is not something I would do or say. In my almost 30 years of policing, I have never told a lawyer I would call them back if something changed,” Vardy wrote in his email.
But Banfield’s status did change in the weeks that followed, after RCMP learned her brother and brother-in-law bought ammunition for Wortman at her request. That’s when her lawyers say she became a suspect and not just a victim or witness — a point they argue was never made clear to Banfield.
“I treated her with the utmost respect and dignity. And I still, if I were to see her today, I would treat her the exact same way. But now, I understand how she feels probably now,” Vardy said in his interview with the commission.
“I don’t make decisions about laying a charge.”
Malicious prosecution lawsuit
Last November, Banfield filed a lawsuit against the federal and provincial governments as well as the RCMP, alleging malicious prosecution. In her statement of claim, Banfield argues she was charged because the RCMP wanted to deflect attention from mistakes police had made in responding to the killings and the subsequent investigation.
The federal government filed a statement of defence on Jan. 31 rejecting those claims.
“The RCMP made the decision to lay the criminal charge against the plaintiff after determining that there were reasonable and probable grounds to believe she committed the offence and that laying the charge was in the public interest,” said Patricia MacPhee, a lawyer for the federal Department of Justice.
Two men in Maine who helped Wortman obtain some of the guns he used during the rampage have never been charged.
Zita’s firm is not involved in the lawsuit. However, she continues to support Banfield and her family as they wait for the inquiry to release its report.
“At the time, while this was happening, while she was being interviewed, [RCMP] took great care to make sure that she felt comfortable,” Zita said.
“But obviously now we know in hindsight those intentions might not have been so pure.”
Need to call a lawyer?
During a six-hour interview at RCMP headquarters in Dartmouth, N.S., on April 28, 2020, Vardy told Banfield, “this is about you wanting to speak to me and assist the investigation, right?”
He then said, “Whatever you say can be used as evidence, I said that to you and that’s what I want you to understand.”
When Banfield asked Vardy if she needed a lawyer, he replied, “No, I’m saying to you that this is, these are your rights.”
He proceeded to tell her that if she helped Wortman bring guns and ammunition into Canada across the U.S. border, she could be charged.
Banfield did not say anything incriminating during that interview.
Bruce Pitt-Payne, a retired RCMP member who now runs an investigation and interviewing consulting firm, said Vardy didn’t have an “obligation” to say that Banfield could call a lawyer because she wasn’t being detained.
“But when she asks, I think in a spirit of fairness, then yes, many police officers would have said ‘Yes, you can,'” said Pitt-Payne.
In its statement of defence to Banfield’s lawsuit, the federal government said “there was no duty on the RCMP to inform the plaintiff of her right to counsel.”
Caution questioned
Vardy told the public inquiry he cautioned Banfield on July 28, 2020, at RCMP headquarters. Transcripts from that interview show that he told Banfield she was free to leave at any time and the doors were unlocked.
“I think you know how I’ve treated you since April,” said Vardy. “Obviously I would get up and take you out, right. So basically, whatever you do say can be used as evidence.”
It was during that interview Banfield disclosed her involvement in the transfer of ammunition within Canada.
Pitt-Payne said it was a “soft” caution that could have been worded more explicitly to let Banfield know she was under investigation, rather than simply helping police gather evidence.
“It wasn’t ‘you are a suspect’ or ‘you are under investigation.’ It was less wordy and less conclusive than that. So the argument would be that she didn’t understand it because it wasn’t given the complete, full way that the court would expect it for a traumatized person,” said Pitt-Payne.
Zita agrees the language should have been more clear.
“She would not have left that interview knowing that she was under criminal investigation. And that’s what a caution is supposed to tell someone who is under investigation,” she said.
“He made a reference to, I suppose, the caution that he gave previously…. But the law says that any time criminal jeopardy has changed and the circumstances in which you find yourself in a criminal investigation have changed, you have to be cautioned again. You have to be warned again.”
Zita argues that did not happen during the July interview.
Banfield later co-operated in a re-enactment video with RCMP in Portapique in October 2020 — just weeks before she was criminally charged. Zita said that demonstrates her client’s willingness to help.
“The fact that Lisa, at that time, unbeknownst to no one else other than the police, was also under criminal investigation … that’s no situation that any right-minded citizen would want to find themselves in,” she said.
In their final written submission to the public inquiry, Zita and Lockyer described Banfield’s case as the “antithesis of how victims of domestic violence should be handled by the authorities.”
“She was re-victimized by the authorities,” they wrote. “She already had extreme feelings of guilt and the charges magnified them. She did not know of the police [and Crown] intentions until she was charged in December and, once charged, on counsel’s advice she was silenced from that time forward.”
‘Case study’ for police
Kerri Froc, an associate professor in the University of New Brunswick’s law faculty, said based on evidence presented to the public inquiry, it’s clear Banfield was a victim of coercive control, which is defined as behaviours that manipulate, intimidate and instill fear in an intimate partner.
She said it’s disappointing to hear “the police seemingly haven’t learned anything.”
“Once it turned from evidence gathering from a witness to trying to build a case against the suspect of a crime, it seems like disregarding her experiences of abuse and continuing to collect this evidence with a view to building some sort of small case against her … I really wonder if that brings the administration of justice into disrepute,” said Froc.
In an email to CBC News, RCMP spokesperson Cpl. Chris Marshall said police “gave each of the three people charged appropriate and lawful cautions on every occasion.”
“Throughout its investigation, the RCMP employed a trauma-informed approach with all the witnesses involved, be they victims, members of the public or potential suspects,” he said.
Pitt-Payne believes the treatment of Banfield in particular should be a case study for the RCMP and other police forces going forward.
“The question overall is back to domestic violence — how are they going to change this in the future? And that’s what I think should come from this,” he said.
Zita also said the commission’s upcoming final report needs to come back to the topic of intimate partner violence. Specifically, her law firm hopes recommendations are focused on how police should communicate with such victims when their criminal jeopardy changes.
However, Zita’s disappointment with the RCMP is not limited to the treatment of Banfield.
“The way that all the victims were treated in the months that directly followed from this … I think that’s going to be one of the things that the commission will take to task in its upcoming report,” she said.
“I know that the people involved in this, the families, the anticipation is high for the report, and I hope the end result helps with their healing.”
Source: CBC