New documents reveal that Don Head, federal commissioner of Corrections Canada, secretly tried earlier this month to get the coroner to quash his summons to testify.
Ashley Smith was 19 when she choked to death in October 2007 at the Grand Valley Institution in Kitchener, Ont. She had tied a piece of cloth around her neck while guards, who were ordered not to intervene, stood outside her cell door and watched.
An inquest into her death began last January, but only after her family fought for years to gain access to videos and documents related to her treatment in federal custody.
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The secret request was made to coroner Dr. John Carlisle in early September. Carlisle then asked Corrections Canada lawyers for written submissions which were sent to the coroner but never disclosed at the time to other parties at the inquest.
The submissions — 13 pages in all — included an affidavit in which it was claimed that Head was not involved in the day-to-day management of Smith’s case and was on French-language training for part of that time.
But in a letter dated Sept 16, 2013, Carlisle said he would not quash the summons. He wrote:“I continue to be of the opinion that Mr. Head has evidence which is necessary for the purposes of the inquest in doing its proper duty as a provincial death investigation into the death of Ashley Smith. Accordingly, I will not withdraw the summons I have issued to Mr. Head.”
Head is now expected to testify next month.
On Wednesday, when word of what the correctional service had tried to do leaked out, the coroner agreed to put all the documents related to Head's request on the public record.
But earlier, in a letter to Nancy Noble, the correctional service's lawyer at the inquest, the lawyer for the Smith family accused the service of breaking the law by trying to have this matter heard ex-parte, that is, without the knowledge of the others at the inquest.
“How can it be realistically argued that this kind of tactic serves the public interest?” wrote Julian Falconer. “Rather the distinct sense is that the commissioner, by virtue of his status as head of a major arm of the justice system, believes that he is beyond the reach of our public systems of accountability and in effect can make up his own rules.”
Julian Roy, lawyer for the Smith family, accused Head of trying to hide while front-line guards and other staff have been “taking their lumps” and testifying.
“Prime Minister Harper stood up before Canadians and promised Canadians that CSC would fully co-operate with this proceeding. Meanwhile, we have the top man at CSC going behind closed doors and trying to duck the inquest,” Roy told CBC News. “It’s shocking.”
Kim Pate of the Canadian Association of Elizabeth Fry Societies accused the correctional service of trying to hide information.
“We see this again, a complete lack of transparency,” she said. “How on earth can anybody have faith that we are going to prevent further deaths in custody when this is the attitude being taken by the Correctional Service of Canada?
“It’s indefensible at this stage to be taking these kinds of positions.”
But a spokesman for Public Safety told CBC News in an email Wednesday night that the correctional service will co-operate and address the issues raised in the inquest.
“CSC and the commissioner will continue to fully co-operate with the coroner’s inquest. We believed the testimony of those who had involvement in the operational care of Ashley Smith was more useful to the Inquiry. We sincerely hope that this process will help us continue to build on solutions to prevent tragedies such as this one from happening in the future,” wrote Jean Paul Duval.
Earlier this week, Sean Tupper, the assistant deputy minister of public safety, which oversees the correctional service, told CBC Radio in Moncton, N.B., that his department is co-operating fully with the inquest and hopes to move quickly on any recommendations.
“Some may be a little more complex, but we’ll have to wait and see exactly what the range of recommendations are.”