07/29/2011 10:54 EDT | Updated 09/28/2011 05:12 EDT

Death and Taxes: The Coroner's Inquest System Can't Change or Won't Change?

It is shameful that the Coroner's Office is so poorly set up. There is a demand for it to change from an institution that has none of the hallmarks of public accountability to a body that responds to the needs of 21st-century Ontario.


The old saw about the inevitable -- death and taxes -- is playing itself out in the Province of Ontario with the groundswell of concern over how we as a society investigate deaths, conduct inquests and, at once, look after our most vulnerable.  How did I squeeze taxes into this topic?  Guess where the dollars come from to fund the body responsible for death investigations -- the Office of the Chief Coroner of Ontario? Our tax dollars.


I am new to the blog game so let me first declare that I have more than a passing interest.  I have made the representation of the families of deceased my life's work (not my only work) in the context of coroners' inquests; and my team and I specifically represent the Smith Family in the ongoing inquest into the death of Ashley Smith.  I also represent First Nations' interests (governments and individuals) who have serious and credible grievances over how we as a society have neglected deaths in First Nations communities.  


What is becoming painfully obvious is that our coroner's inquest system is broken and the volume is being turned up on a demand for change.  Whether mainstream media simply reflects public sentiment or actually leads the charge -- three recent articles in three separate newspapers have all picked up on the debate (Toronto Star, National Post and Globe and Mail -- chronologically listed).


Change from what? Change to what?


Answer: from what? An unresponsive and closed institution which has none of the hallmarks of public accountability (they have no public complaints system, no independent website and their last yearly report was 2007). To what? A publicly accountable body that responds to the needs of 21st-century Ontario.  At minimum, change will have to include allocating the expertise of doctors to where it is truly needed along with a recognition that there are others schooled in managing juries and courtrooms such as judges who should adjudicate hearings.


As for public accountability? The coroners are a law onto themselves with none of the safeguards that characterize modern day self-regulated bodies. Despite a pretend complaints system created by statute in July 2009, there is no on-ramp for the public to actually lodge a complaint (no website, no public notice, no complaint form).  Not even the most ardent of online researchers could determine who sits on any "Complaints Committee" (what the law says is supposed to exist), if one exists. Should, somehow through the fog, an ingenious member of the public actually find a way to lodge a complaint; errant coroners need not worry, they all get dealt with internally by the Chief Coroner.


This sad state of affairs exists despite the fact that, just three years ago, millions of dollars were spent on the Goudge inquiry looking at the Coroner's Office following the revelations about the rogue child forensic pathologist, Dr. Charles Smith. The conclusions of the report: then Chief Coroner James Young and others in the Coroner's Office dropped the ball and eventually enabled (through denial and incompetence) the carnage caused by Dr. Smith's gross negligence as parents were wrongfully prosecuted in respect of the deaths of their children.


The Goudge Report successfully created an independent Ontario Forensic Pathology Service. Under newly minted Chief Forensic Pathologist Dr. Michael Pollanen, there is every reason to have confidence in how we now manage autopsies.  


The trouble is that the Goudge Report's solution for protecting autopsies, (getting them out from under the Coroner's Office), has left the rest of the death investigation process still with the Coroner's Office. Inquests are a perfect example of a sadly neglected area in which the Coroner's Office has dramatically under-delivered on reasonable expectations: public transparency and accountability.


Take their decision-making as an example. Coroners adjudicate literally every week when they preside at inquests, yet their rulings once delivered and following the conclusion of inquests, fall off the map so that they are simply inaccessible.  The Coroner's Office has no website, there is no way to access the purportedly public inquest decisions of coroners that may, in some cases, deeply affect the interests of families who have lost loved ones or other parties with significant stakes in the process.  It is not even clear that the Coroner's Office maintains a complete and organized bank of inquest rulings.  If they do, it's a brilliantly guarded secret.


Recommendations of juries following inquests are accessible, but only to those most enterprising foragers who commence the telephone hunt and pursue officials at the Coroner's Office.  This process can take days if not weeks.


Finally, very legitimate questions arise as to why, in an age where doctors and their medical expertise is in alarmingly short supply, we deploy doctors to play judges in presiding over inquests.  


Allow me to explain:  The coroner's system is premised on the death investigation process being divided into two parts. First, there is an investigative phase where matters such as autopsies and other medical procedures and tests form the main portion of the process.  The public safety component of this work can lead to coroners' reports that may often address matters sufficiently so as to avoid the necessity of an inquest.  The second phase, if called for, is an adjudicative/trial-like phase that involves a formal death inquiry complete with a jury that hears evidence from witnesses who are examined and cross-examined by lawyers.  A seminal case on point (Evans et al. v. Milton et al.) written by the former Chief Justice of Ontario, Charles Dubin, described inquests as having "the trappings of a trial."  


In many other provinces in this country, law makers have provided for the usage of judges or lawyers in the conduct of death inquiries (see British Columbia, Alberta, Manitoba, Quebec, Nova Scotia and Newfoundland).  This is also the case in Nunavut and the Northwest Territories.  Only Ontario and Prince Edward Island have created a "doctor only" process for adjudicating death inquiries. Our Royal Commissions of Inquiry are run by judges (who are all lawyers).  Acknowledging the existence of a few very smart coroners who provide reasonable impressions of lawyers, why not have doctors conduct the initial investigative phases of death investigations and then, if an inquest is necessary, deploy process experts in the form of lawyers or retired judges to preside over inquests? In other words, leave the management of parties, juries and lawyers to those trained to do the job.  It is not as if we have a lot of doctors to spare.  Just ask my First Nations clients, for whom it is more likely that, in their lifetime, they witness a Toronto Maple Leafs Stanley Cup victory, than they witness a coroner's attendance on a death in their reserve communities.


Finally, here's a measure of whether we as a society are truly comfortable with doctors playing lawyers:  When crisis struck in Canada and our blood system was tainted, was it a doctor or a lawyer picked to preside over the Commission of Inquiry on the Blood System in Canada?  It was Justice Krever (judges are all lawyers). The same occurred when the Walkerton Commission of Inquiry was called into the tainted water and its medical effects (Associate Chief Justice O'Connor).  In fact, here's a tough question:  If, instead of the Ashley Smith inquest, Prime Minister Harper came to his senses and ordered a Commission of Inquiry into the plight of the mentally ill in our prisons -- who would the government pick to preside over the inquiry?  A doctor or a Judge. So ends the debate.  


It is a "no-brainer" that inquests need process experts and doctors should do what they do best -- doctoring. This would not only improve how we investigate deaths, it would prevent the waste of serious tax dollars lost to the unnecessary legal battles that flow from poor decision-making by doctors with negligible legal training.


Enough is enough -- it is shameful that the Coroner's Office, responsible for the public safety and public accountability pieces arising from deaths, is so poorly set up.  There are many good people who lead and work within the system.  The Chief Coroner, Dr. Andrew McCallum, is a good man who is stuck with a suspect institution mired in dated thinking and dated technology.  If we do not accept this state of affairs as inevitable, maybe he and the coroners he leads won't either;  maybe, just maybe, the responsible politicians (Minister James Bradley) will wake up and demand more of our Coroner's Office.  


Modern thinking and the modern funding necessary to affect key reforms can fix what is broken.  This is not inevitable.  It may be about death and our taxes -- but there is something we can do about it.


Julian N. Falconer, Falconer Charney LLP