Law Times

PAGE 4 NEWS August 22, 2011 • LAw times Inquest followup 'hit and miss': Falconer Continued from page 1 As Markesteyn points out, Manitoba switched from a coro- ner's system to a medical exam- iner system in the 1970s, a move that brought a number of advan- tages and disadvantages. "If there is a medical issue addressed at an inquest, a medical doctor can probably understand the issues better," he says. "If you don't have a medical issue, then the medical examiner system, in my opinion, is vastly superior." Of the 350 coroners in On- tario, 42 currently are designated as inquest coroners, according to the coroner's offi ce. Th ese coro- ners are appointed to six-year terms and receive mandatory education every two years from senior coroners, legal counsel, administrative lawyers, and members of the judiciary. Despite concerns with the present system, some lawyers in Ontario don't believe that hav- ing physicians act as inquest coroners is an issue. "My experi- ence with doctors who choose to do this work is that they come at it with a legal framework," says Suzan Fraser, a sole practitioner who has represented public in- terest groups at various inquests. "I don't think any challenges they have can't be overcome." Fraser is more concerned with issues at the beginning of the in- quest process. "Often, the scope of the inquiry is defi ned early in the process without the involve- ment of some of the public inter- est groups," says Fraser. "Th e challenge is often trying to expand the scope of the inquest and really demonstrating that the Gentles, an inmate at the Kings- ton Penitentiary, died in 1993 af- ter guards removed him from his cell. "After the 14-month inquest, there were extensive recommen- dations made. . . . I would suggest a great number have never been implemented," Falconer says. Rowe has other concerns as well. According to a 2009 release from the coroner's offi ce, coro- ners are usually represented by a Crown attorney who acts as their counsel. Rowe is calling for clari- fi cation of this relationship. "Th ere appears to be a less than The inquest system 'is a strange process,' says Julian Falconer. problem is really not one particu- lar interest and instead is endemic of systemic issues that need to be addressed," she adds. Fraser also has concerns about the fate of recommendations made by juries as there's no real system for following up on them. For his part, Falconer describes the followup piece as a "hit-and- miss process" and cites the Pat- rick Shand case as an example. Shand died in 1999 following a confrontation outside a Loblaws store in Toronto with a security guard and two staff members. "In that case, the issue was all about the absence of any regu- latory framework for security guards," says Falconer. "Th ere was a political will to create proper training and regu- lation of the security industry," he adds. Th e same political will wasn't present in the case of Robert Gentles, according to Falconer. arm's-length relationship between the Crown attorney and the coro- ner," says Rowe. "It's hard to really consider the process fair when the Crown attorney and the coroner — who is supposed to be the one running the inquest — appear to have less than an arm's-length re- lationship." In addition, Rowe is critical of how accessible the inquest process is for many people. "Th e atten- dance throughout the duration of the inquest, preparations for cross-examination, submissions that are required . . . all of this takes time, and most people don't have the resources to hire lawyers to do that," Rowe says. Section 41 of the Coroners Act states that a coroner shall designate people as having stand- ing at an inquest if they're "sub- stantially and directly interested in the inquest." But parties directly aff ected by an inquest aren't always able to retain counsel, according to Fraser. "At the last two inquests I attended, there were 10 parties with standing, most of whom were public agencies funded by the state," she says. Still, she notes that "at the last inquest I attended where a young person had died, the mother did not have representation. Th is cre- ates huge problems because, from my perspective, there is a huge legal imbalance." At the same time, small pub- lic interest groups have diffi cul- ty acquiring standing at some inquests. "What we have is a system at the moment that fa- vours institutional bodies, and sometimes the grassroots orga- nizations and families can be left behind in providing input to create change," Fraser says. For his part, Falconer, be- lieves the entire process is in need of major reform. "Th ere is a very signifi cant disconnect between the gravity of the work being done and the sense of public accountability evinced by the coroner's offi ce," he says. "Without pressure from the outside, change is not going to happen." Lawyers call for information on costs Continued from page 1 implemented similar provisions alongside mandatory mini- mum legislation. "Judicial discretion allows judges to take into account a num- ber of factors in relation to sentencing an off ender, taking into account both the off ender and the off ence. With the imposition of mandatory minimums, that is eroded and in some cases abso- lutely gone. It's hopefully a starting point of an approach that we could take with the government to deal with injustices that are occurring with respect to sentencing." Montreal litigator Simon Potter said he worries the govern- ment is showing a lack of trust in judges to do their job, some- thing he calls a "very dangerous path" to tread. "To throw in what is merely a safety valve to allow a justice as a last resort and as a matter of simple justice in a particular case to go back to judging is a minimal step we can take to preserve some balance," he said. But Nicholson shot the idea down at the conference, claiming judicial discretion remained intact. "I think we're giving that dis- cretion to the courts. We set the maximum, which is our obliga- tion to do, and in some cases we set a minimum, and within that framework, the judiciary can decide what's appropriate," he said. Supporting a separate resolution, Brad Regehr, chairman of 2011-2012 ALBERTA LEGAL TELEPHONE DIRECTORY A COMPLETE, ACCURATE AND CURRENT LISTING OF ALBERTA INFORMATION With the Alberta Legal Telephone Directory you'll have access to the most up-to-date names, addresses, phone, fax numbers and email addresses for all of the lawyers and law offices in Alberta, Northwest Territories, Yukon and Nunavut. 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It requires judges to give special consideration to the unique circumstances and challenges facing aboriginal people in the justice system. "My fear and the likelihood is that these changes will impact ab- original people the hardest and most disproportionately and simply add to a problem which stains Canada's international reputation." But Nicholson said it would be hard to predict the eff ect of the legislation on rates of aboriginal incarceration ahead of time. "Mandatory minimums apply to everyone," he said. In addition, Nicholson touted the success of his department's aboriginal justice strategy. "It does reduce the recidivism rate when people get involved with the strategy," he said. "I wouldn't support the aboriginal justice strategy if I didn't think it was mak- ing a positive diff erence." Another avenue of CBA attack came from the projected cost of tougher sentences. Backing a resolution that called on the fed- eral government to reveal the cost of its crime bills, Saskatchewan prosecutor Loreley Berra told the CBA council she had "no doubt that the public supports the stance of tough on crime" but called it "uninformed support and uninformed consent on the issue." She pointed to a report by the parliamentary budget offi cer estimating the cost of Nicholson's truth-in-sentencing bill at around $5 billion over fi ve years. Th at's roughly twice the offi cial government estimate. "Where are these funds coming from? Is it coming from health care, the environment or other resources?" Berra asked. Nicholson reiterated the government estimates and said some other measures, including his megatrials bill to stream- line large-scale prosecutions, would actually save money. "Canadians are very clear that they are prepared to pay the cost of keeping individuals that shouldn't be on the street off the street," he said.

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