The Death of John Joseph Harper

The Aboriginal Justice Implementation Commission


Chapter 8

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Limits on Questioning
Reporting to the Family
Reporting to the Public
Culpability and Exoneration
The Role of the Crown
Ensuring Independence
Appeal Provisions


The Fatality Inquiries Act TOP

Part of our mandate is to report on "the adequacies of procedures for inquiry into the death of persons whose deaths occurred while in contact with the police."

It is important to note that since the Harper inquest, a new Fatality Inquiries Act has been enacted. (c. F52, C.C.S.M.) It was proclaimed into effect on May 14, 1990. The new Act had been planned for some time before the Harper inquest, as its predecessor had not been changed since 1975. In our opinion the new Act still does not address matters brought to light during the Harper inquest.

The Fatality Inquiries Act deals with situations where there are unexpected deaths. The Act is concerned primarily with establishing a system for the investigation of such deaths. The vast majority of such deaths do not require inquests. The Act creates the office of the Chief Medical Examiner and sets out rules for the medical examiner to ensure unexpected deaths are reported and investigated if necessary, to have autopsies performed if necessary and, finally, to hold inquests if necessary. Thus, inquests are only a small part of the concern of the Act.

Inquests are held at the direction of the Chief Medical Examiner. Pursuant to section 19(3) of the Act, the Chief Medical Examiner shall direct a provincial judge to hold an inquest where there are reasonable grounds to believe:

(a) that a person while a resident in a correctional institution, jail or prison or while an involuntary resident in an institution as defined in The Mental Health Act, died as a result of a violent act, undue means or negligence or in an unexpected or unexplained manner or suddenly of unknown cause; or

(b) that a person died as a result of an act or omission of a peace officer in the course of duty; ...

In other situations the calling of an inquest is at the discretion of the Chief Medical Examiner. Often, one is called where the circumstances of a death are not clear or where the public would benefit from knowing what caused the death. Some inquests produce recommendations that lead to changes in the law or to some safety-related private or governmental regulations or procedures. In some cases inquests are not called at all. TOP


Limits on Questioning TOP

The interests of the family and of the public appear to be limited in the Act by the section allowing the judge to limit examination or cross-examination where it is vexatious or is beyond "what is necessary for the purpose of the inquest." In any court proceeding, the judge is always at liberty to limit questioning to matters that are relevant. There is no need, in our opinion, for this section in the Act, and its existence may serve as an invitation to the judge to limit questioning unduly. Instead, there should be a presumption in favour of thorough questioning. The family of the deceased undoubtedly would have important interests that must be considered. The inquest is the last and most thorough phase of investigation into most unexpected deaths, unless criminal or civil proceedings result. Families should not have to rely upon those alternatives. TOP


Reporting to the Family TOP

Another serious failing of the Act is that there is no statement that the purpose of the reporting and investigating of such deaths is to serve the public interest or the interest of the family of the deceased.

Instead, the Act gives every appearance of indicating that the purpose of reports and investigations is to serve the interest of government. In most cases, but not all, the government interest, the community interest and the family interest are the same and no problem arises. But occasionally they are not, and in such instances no guidance is provided to deal with the conflict.

It is clear there is a strong community and family interest in having unexplained deaths investigated and the results of the investigation made known. However, the Act only requires reporting to the minister and the medical examiner. There is no presumption in favour of public release of the findings, or a requirement that the report go to the family. If a report is disclosed to a person by the Chief Medical Examiner, that person is not allowed to disclose the report to others without written permission from the Chief Medical Examiner.

The Act should be amended so families are fully informed about proceedings. The definitions of "family" should be broadened. The Act now defines "member of the family" to be a member of the nuclear family. This is not appropriate for Aboriginal communities where the extended family is very important. On Indian reserves, the chief and council are important parties to advise of the proceedings. TOP


Reporting to the Public TOP

The new Act makes public release of the proceedings even more difficult than before. There are now several provisions allowing an inquest judge to make the hearings of the inquest confidential. One of the reasons to order the public excluded from the hearings is if the matter "involve[s] public security."

Because "public security" is not defined by the Act, its meaning is open to interpretation. It is essential that its definition not include police-related deaths like the death of J.J. Harper. These are cases for which public hearings and findings are of the utmost importance to maintain public confidence in our police, and to ensure that any problems with policing are made known and corrected. In fact, cases involving public security, especially policing, should be open to the public. We cannot imagine a situation involving public security that should be conducted in private. Protection of police informants’ names or information that jeopardizes an ongoing investigation can be accomplished by putting a ban on publication or, if the necessity is proved to the judge, by allowing very limited exclusion of specific information. If a matter affects national security, the Official Secrets Act extends any necessary protection.

The Act also speaks about the need to ensure that the privacy of a person is not breached unreasonably or that the "professional reputation" (undefined) of a person is not damaged unjustifiably. The Act sets out the factors for an inquest judge to consider. While the judge should consider whether confidentiality is in the interest of "justice" or would be "injurious to the public interest generally," the Act does not require the judge to consider the interest of the family or the community. The judge also should consider whether a ban on publication of the affected individual’s name will achieve the desired result without having to make the hearings and the report fully confidential.

Section 10 of the Act provides that when a child dies after having been in the custody of a child care agency or when the deceased child’s parent, guardian or sibling was receiving services under the Child and Family Services Act , the Chief Medical Examiner must assess (by way of investigation or inquest) the quality of the standard of care or service and submit a report to the minister. The report must be confidential. Such matters might be of vital public interest. Inquests are not mandatory in such situations. If the Chief Medical Examiner decides an inquest is not necessary, the only information will be in the Chief Medical Examiner’s report. This report should be made public, with the names of affected persons deleted if necessary.

Section 20 of the Act provides that where in the opinion of the Chief Medical Examiner a death might have been prevented if precautions had been taken or preventive measures been in place, the Chief Medical Examiner may make recommendations to the agency or to other persons as to possible precautions or preventive measures. Again, there should be a requirement that such recommendations be made public. TOP


Culpability and Exoneration TOP

An important deletion from the former Act is the question of culpability. While the old Act required the judge to comment about culpability, the new Act specifically forbids opinions "with respect to culpability in such manner that a person is or could be identified as a culpable party." It is appropriate that opinions regarding culpability not be expressed as the result of an inquest. An inquest is an information-finding exercise, not an attempt to determine guilt. There are very serious consequences attached to findings of either civil or criminal culpability and there are many rules to protect individuals against whom such allegations are made. Those protections are not present during an inquest.

We support the change to the Act that prevents a judge at an inquest from saying that a person may have committed some criminal act or may be negligent or liable to some civil action. Nevertheless, we suggest the Act should go the next step and say that a judge should not express an opinion that a person has not committed a criminal act or has not been negligent in causing a death. Exonerations can be unfair to the family of the deceased and can damage unfairly the reputation of the deceased, the deceased’s family and, sometimes, the deceased’s community. The rights of those who may wish to take criminal or civil proceedings might be prejudiced by such a finding, in the same way a person might be prejudiced by a suggestion of liability. In our opinion that determination should be left to a civil court if someone wishes a ruling on the point.

We recommend that section 33(2)(b) be amended to prohibit the judge from making any comment on the existence or absence of any possible civil or criminal liability.

We recommend that:

  • The Fatality Inquiries Act be amended to contain a statement of purposes, foremost of which is to ensure public proceedings at which the family and community learn the material circumstances of the unexplained death. For deaths related to government agencies, the primary purpose should be to ensure the public learns whether the government agency functioned properly.
  • The Fatality Inquiries Act be amended to delete the limitation on questioning witnesses to provide for normal examination and cross-examination of witnesses by all parties with standing.
  • The Fatality Inquiries Act be amended to provide that all hearings shall be public, but allow the judge to order a ban on publication of names in appropriate cases.
  • The Fatality Inquiries Act be amended to make inquest reports and records of each inquiry or investigation available to the public or at least to interested parties.
  • The Fatality Inquiries Act be amended so that in the case of Aboriginal deaths, interested parties should be considered to include band or community councils as well as extended family members.
  • The Fatality Inquiries Act be amended to ensure that findings of culpability and exoneration are treated the same way in the Act. TOP


The Role of the Crown TOP

The Act is strangely silent on who has carriage of the inquest. In civil cases the lawyers call the witnesses and the plaintiff usually goes first. In criminal cases the Crown attorney has carriage of the case and calls witnesses to establish the charge. The defence has the option whether to call witnesses.

Inquests, however, are conducted by Crown attorneys as a matter of convention. However, the Fatality Inquiries Act does not direct Crown attorneys to be involved, nor does it explain fully the role of the Crown attorney. The Act says, "Any Crown attorney or other officer or any counsel appointed by the minister to act for the Crown may attend the inquest and may examine witnesses called at the inquest."

The Act does not say there should be a Crown attorney present. Nor does it say the Crown attorney should decide what witnesses to call to ensure that all relevant evidence is presented. Indeed, based on the way the Act reads, it would be possible for the judge to decide what witnesses to call and to conduct the initial examinations of all witnesses. However, our tradition is an adversarial one, with parties with conflicting interests conducting the examinations while the judge remains neutral and does not ask many questions. As a result, Crown attorneys have been assumed to have conduct of inquests, and the Harper inquest was no exception.

We recommend that the Act make it clear that, except in situations where a conflict of interest exists or may be perceived, a Crown attorney shall call and examine whatever witnesses are considered appropriate. The Act also should make it clear that other parties with standing, or their lawyers, have the right to cross-examine witnesses called by the Crown. Those parties should then have the right to call and to examine witnesses they wish to have testify. All counsel should have the right to make submissions after all the evidence has been presented. TOP


Ensuring Independence TOP

The Act does not anticipate the possibility of a conflict arising between the party conducting the inquest and the one who is the subject of the inquest. No rules about how to challenge the conduct of Crown attorneys are set out. No rules of disclosure exist requiring the Crown attorney to disclose to other parties all the evidence available to the Crown attorney.

As we have seen with the Harper case, there is a real possibility of conflict in a Crown attorney’s conducting an inquest. Conflicts also can arise in other situations in which a public agency is involved in a death in some way.

For example, inquests are mandatory where a person dies in a jail or as an involuntary inmate in a mental health institution. Investigations (one step before ordering an inquest) are mandatory when a child dies who was in the custody of a child welfare agency or where the deceased child, or the parent or guardian or sibling, was receiving services from a child welfare agency.

In those situations, the Department of Justice, in particular, may be involved in some other way. The department is responsible for the administration of justice, for monitoring police actions and policing legislation, for making decisions about criminal charges, for jails, for the Public Trustee, and for advising other government departments. The possibility of having one Crown attorney conducting the inquest and another Crown attorney acting on behalf of a government agency or department is very real in many cases.

The government definitely should be in a position to argue its account of the events and defend its actions, but in such a situation a completely independent person should conduct the inquest, and have access to all relevant files. The government cannot defend its actions and present a "version," while at the same time purporting to assess independently and present all the available information. The two activities constitute a conflict. At the very least, there is a perception of a conflict.

Families of deceased persons should not be put in the position of having to challenge and rebut the "official version" when the death involves a public agency. Crown attorneys should not be able to decide unilaterally what is and is not relevant information for an inquest. The approach of the person calling the evidence at the inquest must be that there is no "version." Therefore, whenever a government agency or department’s actions are to be scrutinized at an inquest, counsel conducting the inquest should be independent of government.

Neither should a Crown attorney call evidence at an inquest where another Crown attorney either has already assessed the case for purposes of considering criminal charges or is preparing to defend a civil suit for the government agency.

Another element of unfairness in the way inquests presently are conducted occurs in cases in which the actions of a government department or agency are being examined. The department or agency has virtually unlimited funds to defend its own actions. By contrast, the family of the deceased may have only limited funds, or may have to make unreasonable sacrifices simply to ensure its questions and concerns are addressed. This disparity puts the government agency in a far better position to defend its actions than that of the deceased’s family to pursue its questions and concerns effectively.

We recommend that:

  • The Fatality Inquiries Act be amended to set out who has conduct of an inquest and to provide that where an inquest involves a government agency or a police officer, a non-government lawyer be retained to conduct the inquest. TOP


Appeal Provisions TOP

The Fatality Inquiries Act provides that it is up to the Chief Medical Examiner in many cases to decide whether an inquest is to be held. In other circumstances an inquest is mandatory. While the Minister of Justice has the overriding authority to order an inquest, that decision, as well, rests with one individual. Members of the public who would like to see an inquest held have no way of making formal representations that one be held.

If the public or the family is dissatisfied with a decision not to call an inquest or with the way in which an inquest has been held, or is dissatisfied with the result, there is only limited opportunity to complain and to seek the holding of another inquest. The only avenue a dissatisfied member of the public can follow is to go to the Court of Queen’s Bench on an application for judicial review of the conduct of the inquest.

The "judicial review" procedure is limited; the Queen’s Bench judge cannot substitute his or her opinion for that of the inquest judge. The usual issue to be considered by the Queen’s Bench judge is the propriety of the procedure followed during the inquest. The conduct of the judge also may be examined to see if the inquest was carried out within the jurisdiction of the Act and in an appropriate manner.

The refusal of the Chief Medical Examiner or the minister to order an inquest cannot now be taken to the Court of Queen’s Bench for review. These are administrative decisions and are not subject to review by the courts.

We recommend that:

  • The Fatality Inquiries Act be amended to specify the right of any person with an interest to apply to the Court of Queen’s Bench for an Order that an inquest, or a second inquest, be held:
  • Where, with respect to a death, one has not been ordered by either the Chief Medical Examiner or by the Minister of Justice; or
  • Where the person alleges that the first inquest did not explore adequately the circumstances surrounding the death or alleges that the conclusion was not supported by the evidence.

The test to be applied by the judge in these circumstances should be "the public interest." The result should then be that a judge would have the authority to order that an inquest be held, or that a second inquest be held, if the judge is persuaded that it is in the public interest to do so. TOP


Conclusions TOP

The events of the Harper inquest show the Fatality Inquiries Act is in need of significant amendment to protect the interests of the family of the deceased, and the community. As the Act is now worded, every advantage belongs to the government agency, or, in this case, the police, in the defence of its actions. The purpose of the Act should not be to assist agencies to defend their actions, and most particularly not to help shield them from close scrutiny.

The weaknesses of the inquest procedures now in place in Manitoba are, in part, what made this Inquiry into the Harper death necessary. The Harper inquest was unable to fulfil its purpose of explaining all the circumstances surrounding the death in a way that commanded the respect and acceptance of the public.

The recent amendments have done nothing to address the problems that arose from the Harper inquest. In fact, the recent amendments may have made matters worse by inviting more applications for confidential proceedings, and by creating greater difficulties for inquest judges by allowing findings of exoneration and culpability to be subject to different rules.

Present procedures are not seen to be and, in fact, are not adequate. Changes must be made. If not, there is every reason to believe this kind of ordeal–a complete lack of confidence in inquest procedures by members of the deceased’s family and the affected community, and a resulting sense of injustice and alienation, with subsequent demands for a public inquiry to clear up the problem–will happen again. TOP

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