Law Times

PAGE 4 NEWS November 12, 2012 • Law Times Smith inquest may still face procedural hurdles BY SHANNON KARI For Law Times look at the full picture of events that resulted in the 19-year-old choking herself to death in 2007 at a prison in Kitchener, Ont. Lawyers representing the Correctional T SEAMLESS, EFFICIENT ESTATE PLANNING STARTS HERE MILLER THOMSON ON ESTATE PLANNING EDITOR-IN-CHIEF: MARTIN ROCHWERG NEW PUBLICATION How can you be certain that the will or non-testamentary documents you are drafting today are sturdy enough to withstand scrutiny and challenge? This new looseleaf service for lawyers and other professionals who manage finances provides a comprehensive analysis of Canadian estate planning and administration to help ensure your client's goals are met and his or her intentions carried out. 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See complete listing of all contributors – visit carswell.com/mtep ORDER # 984927-65203 $400 2 volume looseleaf supplemented book 1-3 supplements per year Supplements invoiced separately the death of Ashley Smith may still face procedural and jurisdic- tional obstacles in its attempts to he Ontario coroner's inquest into Service of Canada, who have tried for the past two years to narrow the scope of the in- quest and resisted attempts to release video- tapes showing Smith' suddenly changed strategy on Nov. 2. On that day, they informed counsel represent- ing other parties at the inquest that the cor- rectional service was withdrawing its sub- missions about the scope of the proceeding and issuing summonses to individuals out- side of Ontario. The provincial Coroners Act, though, s treatment in custody, public inquiry. The latest rejection was in the House of Commons on Nov. 7 when Public Safety Minister Vic Toews, in re- sponse to a question from interim Liberal leader Bob Rae, suggested the coroner' inquest was sufficient. Freiman and McAuley didn't return calls s from Law Times about whether their clients' position had changed in light of the deci- sion by the correctional service. Lawyers for Smith' advocacy groups are concerned that le- gal roadblocks will still be in place when the inquest begins for a second time in January. "It is still not clear if we will have a s family and other has limitations on the authority of an in- quest to deal with matters that occurred outside of Ontario. While in custody, au- thorities transferred Smith 17 times to insti- tutions in five provinces. The limitations on jurisdiction arise in written submissions filed with the presiding coroner by lawyers representing three doc- tors who had treated Smith. The proposed scope of the inquest as outlined by Crown counsel representing the coroner "is ultra vires in that it threatens to invade the legis- lative jurisdiction of other provinces con- trary to the Coroners Act and the division of powers," wrote Mark Freiman and Nancy McAuley, lawyers at Lerners LLP, who act for the three doctors. The motion about the scope of the in- smooth path," says Breese Davies, a To- ronto lawyer who represents the Canadian Association of Elizabeth Fry Societies. The federal government may have ended its at- tempts to narrow the scope of the inquest "to try to reduce the pressure to have a full public inquiry, ous delays, judicial review applications at the Divisional Court, and the sudden re- tirement last year of the original presiding coroner — has seen "huge expenditures in public resources for damage control, The inquest — which has faced numer- " says Davies. Julian Falconer, lawyer for the Smith family. The correctional service, represented by federal Justice Department lawyers, "from Day 1 had a huge amount of legal resources available, government's initial litigation strategy "was not guided by the public interest." The application filed by the doctors quest was filed in late September. The pre- siding coroner, Dr. John Carlisle, hasn't yet adjudicated the matter. The written arguments suggest that the proposed scope requires the authority of Parliament and would involve a full public inquiry. Freiman repeated these arguments in oral submissions before Carlisle during pre-inquest motions on Oct. 31, the same day that disturbing videos became public. The federal government suddenly changed its litigation strategy two days aſter showing Smith forcibly injected in prison, duct-taped, and hooded during transport. But it has resisted calls for a the media broadcast the videos raises "vexing questions" since they had a professional duty to Smith, says Falconer, a partner at Falconer Charney LLP. Davies concurs and queries why the doctors are trying to limit the scope of the inquest. "You would have thought would have been leading the charge for the truth," she says. While he' they al service's new position on not limiting s happy with the correction- the scope of the inquest, the government should have made the decision a long time ago, says Richard Macklin, who represents the provincial advocate for children and youth. "This has been a very frustrating pro- " LT " says " says Falconer, who suggests the cess," says Macklin, a lawyer with Steven- sons LLP. "It took two years. This is a pris- on death. There needs to be transparency and accountability. The long saga of the Ashley Smith inquest Nov. 1, 2010: The Ontario Court of Appeal upholds the right of media to access video exhibits from the prison where Smith died. The court rejects the assertion by the correctional service that the open court principle doesn't include access to exhibits. March 25, 2011: Dr. Bonita Porter, the presiding coroner, dismisses a request by the Canadian Associa- tion of Elizabeth Fry Societies to issue a production order for videotapes of Smith being forcibly injected and bound with duct tape during transport. 978-0-7798-4927-7 Shipping and handling are extra. Price subject to change without notice and subject to applicable taxes. May 19, 2011: The Ontario Divisional Court quashes the ruling by Porter and orders her to reconsider the decision about the videotapes. June 29, 2011: The coroner's inquest comes to a halt after Porter announces she's retiring. Dr. John Carlisle is the new presiding Coroner. AVAILABLE RISK-FREE FOR 30 DAYS Order online: www.carswell.com/mtep Call Toll-Free: 1-800-387-5164 In Toronto: 416-609-3800 VE. INNOVATIVE. TRUSTED. Sept. 27, 2012: Counsel for three doctors who treated Smith file a motion seeking to limit the scope of the inquest. Oct. 23, 2012: Carlisle dismisses a motion by the correctional service to seal controversial videotapes depicting Smith's treatment in prison. Oct. 24, 2012: The Ontario Divisional Court declines to issue a stay of Carlisle's ruling. Two days later, the correctional service abandons its judicial review application. Oct. 31, 2012: The videos spark public outrage. Prime Minister Stephen Harper describes Smith's death as a "terrible tragedy" but declines to request that correctional service lawyers abandon at- tempts to limit the scope of the inquest. Nov. 2, 2012: Correctional service lawyers withdraw submissions seeking to limit the scope of the inquest. www.lawtimesnews.com

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