As officials ponder whether to call a public inquiry into past Toronto police dealings with alleged serial killer Bruce McArthur, a key issue will be whether such a proceeding has to wait until the end of the criminal court case against Mr. McArthur.
A group of Toronto LGBTQ advocates has announced they will press for an immediate start to a public inquiry.
“Lives are at risk today,” the group said in a communiqué released Sunday. A press conference is expected Thursday.
Mr. McArthur is the landscaper charged with murdering six men with links to the Gay Village who had gone missing between 2010 and 2017.
Sources say that he was interviewed twice in the past by police: in 2016 after a man reported that Mr. McArthur tried to strangle him during a sexual encounter, and in 2013 during a probe into missing men.
When he said two weeks ago that he was reviewing the calls for an inquiry, Ontario Attorney-General Yasir Naqvi spoke about “the next steps following the conclusion of any criminal proceedings.”
However, the community members advocating for an immediate inquiry say that there are safety concerns that need to be addressed promptly. “This should not, and can not, happen again and any delay puts lives at risk,” the group said in their communiqué.
Members of the group include Greg Downer, a friend of Andrew Kinsman, the last man alleged to have been murdered by Mr. McArthur.
The group has consulted with veteran litigator Douglas Elliott, who has worked in the Krever and Elliot Lake inquiries.
Lawyers involved in public inquiries in other provinces say that it is possible to proceed at the same time as police probes and that delaying could create another set of problems.
In British Columbia, the inquiry into the police’s investigation into the serial killer Robert Pickton was only launched after the Supreme Court upheld his conviction for murdering six women.
“It is ... unfortunate that this Inquiry was called so many years after the events in question, and that the documentary record has been allowed to erode to this extent,” said the final submission to the inquiry by lawyers who represented the women’s families.
The B.C. inquiry was launched in 2010, more than eight years after Mr. Pickton’s arrest and 13 years after some pivotal events in the case.
“Police witnesses had retired. Potential witnesses had died. All witnesses’ memories had long faded,” one of the families’ lawyers, Neil Chantler, said in an e-mail interview with The Globe and Mail.
David Fraser, a Halifax lawyer who has written about the conflict between public inquiries and criminal investigations, noted that some past inquiries, such as the one into the Westray mine disaster, were stopped or slowed following complaints that their mandates overlapped with the police’s work.
However, Mr. Fraser noted a key distinction in the McArthur case.
“There’s a very big and important difference in that the inquiry in Ontario will not be looking at McArthur but will be looking at the police,” Mr. Fraser said.
“I don’t think there’s much prejudice to him in connection with this inquiry,” he added. “If I was a police officer I would be a little bit concerned for my job but that doesn’t have the same procedural safeguard, the same imperative.”
Sylvain Lussier, a Montreal lawyer who was involved in the Gomery and Charbonneau commissions, said that those two high-profile inquiries in Quebec took precautions so they could proceed at the same time as criminal investigations and prosecutions of key witnesses.
The Gomery inquiry looked at how Ottawa awarded sponsorship contracts to firms with Liberal connections. Four months before hearings began, the RCMP filed fraud charges against two key witnesses, Chuck Guité and Jean Brault.
There was a media blackout on their testimonies so some parts of them could be redacted.
The Charbonneau inquiry, which looked into problems in Quebec’s construction industry, also took special steps because several witnesses were under police investigation. Some testimonies were kept under publication ban and some witnesses’ names were withheld.
Mr. Lussier contrasted that approach with Ontario’s inquiry into the Patricia Starr fundraising scandal, which the Supreme Court of Canada invalidated in 1990 because it was too similar to a police investigation.
“A public inquiry can’t be used to enhance a failing police investigation,” Mr. Lussier said. “You have to be careful. It cannot become a police investigation.”
In B.C., the province opted to wait until Mr. Pickton had exhausted his avenues of appeal before holding an inquiry.
“It’s tough to do both,” former B.C. attorney general Wally Oppal, who also chaired the inquiry, said in an interview.
He noted that, while people can refuse to answer questions from the police or the prosecution because they have the right not to incriminate themselves, a witness, however, cannot refuse to co-operate if ordered to testify before a public inquiry.
Still, even before Mr. Pickton was arrested in 2002, there had long been calls for an inquiry.
“For the victims’ families, the wait for an public inquiry was excruciating,” Mr. Chantler said.
“The announcement of a public inquiry in 2010 might have brought some relief, but it was too little, too late.”
He suggested that steps should be taken to preserve records while waiting for the conclusion of the judicial process. For example, witness statements could be taken under seal or documents could be subpoenaed and preserved, he said.
“If an inquiry into McArthur is going to be called,” he said, “we should heed the lessons learned in B.C.”
A lawyer for Mr. McArthur declined to comment when contacted for reactions about the timing of an inquiry.