Discretionary inquests offer no answers

Opinion

Hey there, time traveller!
This article was published 09/03/2017 (2851 days ago), so information in it may no longer be current.

It is no secret the justice systems in Manitoba and across Canada are facing one crisis after another, each of them unprecedented.

Scarce resources and an increasing number of responsibilities have left the system and those responsible for it reeling. Unfortunately, the response to these challenges lately seems to be rushed, poorly conceived and having a primary goal of saving money, not enhancing justice.

This week brought the latest attempted solution, when Justice Minister Heather Stefanson introduced her proposed changes to Manitoba’s inquest system.

Inquests are court proceedings in which a provincial court judge hears evidence, determines the circumstances of a person’s death and makes recommendations for changes to policies and laws that could help prevent similar deaths in the future. They are called in limited cases, when the person whose death is the subject of the inquest was particularly vulnerable.

For example, inquests are currently mandatory when a person dies “as a result of an act or omission of a peace officer” or when they died as a result of violence, negligence or in an unexpected or sudden manner while residing in a jail or psychiatric facility. In all of those limited circumstances, the person would have had reduced autonomy and generally would have been at the mercy of the state.

Yet, if the Manitoba government has its way, most of those inquests will now be discretionary. They would be called only if the chief medical examiner, someone with medical, but no legal, training, feels it is necessary. And while one might argue the chief medical examiner is an expert in determining how a person died, the inquest process is about more than simply determining the medical cause of death.

According to the Supreme Court, inquests exist to “check public imagination” by identifying the circumstances of the death, to make the community “aware of the factors which put human life at risk” and to “reassure the public” and ensure the public knows that the government is “acting to ensure that the guarantees relating to human life are duly respected.” Stefanson’s proposal, Bill 16, frustrates every one of those purposes.

None of those goals can be accomplished by an investigation conducted behind closed doors, with no expectation that the investigation report will be made public. No answers will be available to the family of the victim, who will be left with no recourse, no justice and no assurance that changes will be made to prevent future similar deaths.

The government’s clear aim with Bill 16 is to reduce the number of inquests conducted. In doing so, they express a clear bias against the victims whose deaths are to be investigated and the families of those victims.

By making mandatory inquests discretionary, Manitoba will be better able to control the narrative, without having to engage or consider the unique perspective of the family, those closest to the victim. Author Chimamanda Ngozi Adichie has said that “power is the ability not just to tell the story of another person, but to make it the definitive story of that person.” The government of Manitoba’s theft of victims’ stories, and appropriation of the sole right to tell the definitive and official version of those stories, is an exercise of power against which the victims are unable to defend.

To be clear, change is unquestionably needed. The inquest system is slow, the rules by which it operates are unclear and all parties involved are often frustrated. And there are solutions that would value equally all involved in the process. There are legal professionals and community advocates on all sides of this issue who are willing to work with the government to develop amendments that will lead to positive and constructive change, and there are ways to accomplish the government’s obvious goals of efficiency and cost savings without disrespecting the families of victims.

Those resources have been ignored by the government.

It is regrettable that the judges in two inquests that concluded in 2016 made recommendations to change the inquest system that resemble the amendments in Bill 16. In those cases, the inquests did not conclude until 10 and five years, respectively, after the deaths occurred. The judges in both inquests concluded that as a result of the delay, no useful recommendations could be made and their solution was to recommend that inquests in those circumstances should be discretionary.

With all due respect to those judges, the solution is to hold inquests in a timely manner, not to avoid them entirely.

In drafting Bill 16, the government clearly failed to consult with the expert practitioners who know the system best. Instead, they submitted a bill that more closely resembles a discussion paper, so filled with holes, subjective tests and exercises of discretion that it will likely lead to more litigation, not less.

Bill 16 will harm families of victims, it will reduce oversight and accountability and it will impede changes to policies which could save lives. At the very least, Stefanson needs to withdraw Bill 16 and bring stakeholders to the table to reform the inquest system in a positive way. To forge ahead as is would be short-sighted and dangerous.

Corey Shefman is a lawyer at Olthuis, Kleer, Townshend LLP based in Toronto and practises in both Manitoba and Ontario.