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Comments on coroner’s inquest procedures

Reporting and investigations of deaths

It is only when death occurs under “suspicious circumstances” that the Coroners Act, RSBC, 1979, Chapter 68, requires that the death be reported to the coroner. Section 9 of the Act specifies that where a person is believed to have died in any of the following circumstances, the coroner must be notified of the death:

  1. as a result of violence, misadventure, negligence or misconduct, malpractice or suicide;
  2. by unfair means;
  3. during pregnancy or following pregnancy in circumstances that might reasonably be attributed to pregnancy;
  4. suddenly and unexpectedly;
  5. from disease, sickness, or unknown cause, for which he/she was not treated by a medical practitioner;
  6. from any cause other than disease under circumstances that may require investigation;
  7. in a correctional institution or lockup or prison;
  8. while a resident or in-patient of an institution governed by the Community Care Facility Act;
  9. at a place for the examination, diagnosis, treatment or rehabilitation of mentally disordered persons to which the Mental Health Act applies.

Where the coroner has reason to believe that a death has occurred in the circumstances set out in s.9, he or she is required, under section 15, to (a) to take possession of the body, and (b) conduct an investigation to determine whether an inquest is necessary. However, in the event that the death occurred in a penitentiary, correctional institution, lockup or prison, or while the person was detained by or in the actual custody of a peace officer, the coroner is required by section 10 to issue a warrant to hold an inquest. In all other cases of death under s.9 circumstances, the coroner upon completion of his or her investigation, may adopt one of two courses of action:

  1. make an inquiry into the death pursuant to s.21;
  2. or hold an inquest pursuant to s.22.

It is unclear whether, at the present time, the coroner has available to him or her a third option—to hold neither an inquiry nor an inquest. Section 18(1) of the Act provides that where a coroner determines that an inquest or inquiry is unnecessary, he or she shall transmit to the chief coroner the results of his or her investigation and the grounds for his or her decision. However, s.18 has not yet been proclaimed. Furthermore, s.21 states that if the coroner is satisfied no inquest is necessary, instead of summoning a jury, he or she may make an inquiry into the death. This section could be interpreted to mean that, in the absence of s.18, the coroner must either hold an inquest or make an inquiry. However, the use of the word “may”, instead of “shall” in s.21, could be interpreted as giving the coroner the discretion to hold neither an inquest nor an inquiry. If the latter interpretation is correct, and because s.18 has not yet been proclaimed, it would appear that a coroner would not be accountable to anyone for his or her decision not to proceed beyond the investigative stage. Therefore, for the sake of clarity, and accountability, we recommend that s.18(1) should be proclaimed.

Section 18(2), also un-proclaimed, provides that a coroner shall keep a record of the cases where it has been determined that an inquest or inquiry is unnecessary, showing for each case the identity of the deceased, and the coroner’s findings as to the circumstances of death, including the findings of post mortem examinations or any other examinations or analyses of the body. Subsection 3 provides that the information compiled by the coroner under ss.2 be made available to the spouse, parents, children, brothers, sisters, and personal representatives of the deceased. These two subsections should also be proclaimed, but not without amendment. Absent from the information under ss.2 are the grounds on which the coroner based his decision that an inquest or inquiry was unnecessary. Thus, in its present form, the grounds for the coroner’s decision would be unavailable to everyone except the chief coroner. It is submitted that this information should also be available to those persons delineated in ss.3, as they are the persons most closely affected by the death of the person. Furthermore, in light of the recognition afforded by the Family Relations Act and other legislation to common law spouses, the definition of “spouse” in ss.3 should also include common law spouses, as defined by the Family Relations Act.

Inquiries

As previously mentioned, s.21 gives the coroner the discretion to make an inquiry into the death of the deceased, where she or he is satisfied that the circumstances surrounding the death plainly indicate that no inquest is necessary. The process of the inquiry would appear to be somewhat less involved than a full inquest no jury is summoned, although the coroner has the discretion to take sworn statements of persons willing to furnish information about the circumstances surrounding the death, and to compel the attendance of any medical practitioner who was in attendance at the death of the deceased or who was in practice in or near where the death happened. On completion of the inquiry the coroner is required to forward to the chief coroner all his dispositions and statements and a report or the results of the inquiry.

In the present Act, there are no provisions giving access to this information to any of the family of the deceased. As the deceased’s family are likely to be those persons most concerned with the death of the deceased, the information sent to the coroner should also be made available to those persons listed in section 18(3), including common law spouses.

The inquest

Introduction

Section 22 of the Act gives the coroner discretion to order an inquest by summoning a jury, and further states that she or he must do so where there appears to be any reason to suspect that the deceased died by murder or manslaughter. Section 25 gives the chief coroner the power to direct the coroner to hold an inquest, and, similarly, s.24 empowers the Attorney General to order an inquest where a coroner has refused to. Section 24 also gives to the Attorney General wide powers to re-open an inquest if there as been evidence of fraud, rejection of evidence or irregularity of proceedings, insufficiency of inquiry or otherwise. Under that section, any evidence of a procedural irregularity would seem to constitute grounds for an application for a new inquest.

The purpose

Section 28 declares the purpose of an inquest is to inquire into and determine who the deceased was, and how, when, where, and by what means he or she died. In 1971 the Ontario Law Reform Commission brought down a Report on the Coroner System in Ontario (No. 25, 1971) and in this report the purpose of an inquest was stated to be in:

formally focusing community attention on and initiate community responses to preventable deaths…and… satisfying the community that the circumstances surrounding the death of no one of its members will be overlooked, concealed or ignored (p.29).

One of the recommendations of the Commission was that coroner’s juries were to be prohibited from making any finding of legal responsibility, or expressing any conclusion of law as to when, where, how or by what means the deceased came to his death. Although this recommendation has been incorporated into the B.C. Coroners Act whereby a jury is prohibited from making any finding of legal responsibility, subs. 28(3) of the Act authorizes the jury to make recommendations “in respect of any matter arising out of the inquest”. So while a jury could not bring down a finding that attached legal responsibility, it could make a recommendation that had legal implications.

Standing

In the process of conducting the inquest, the coroner has fairly broad powers under ss. 35,38, and 39 to summons and examine witnesses. However, under s. 37, other persons are also given the right to participate in the inquest (i.e. the right to standing). Subsection (1) provides that “A person whose interest may be affected by evidence likely to be adduced at an inquest may:

  1. appear personally or be represented by counsel at the inquest;
  2. tender evidence and call witnesses;
  3. examine and cross examine witnesses; and
  4. obtain from the coroner a summons to those witnesses whom he desires to call.”

The presiding coroner has the discretion to determine whose interests may be affected by the evidence likely to be given at an inquest, but even after having made that determination, the coroner has a further discretion to refuse to grant standing. Consequently, those who represent interests that seem likely to be affected by the inquest have not always obtained standing even though the interests they represent have a very real stake in the proceedings. For example, at the inquest inquiring into the death of Maureen Richard, who hung herself in Oakalla, an application for standing by a group, Women Working for Women in Prisons, representing other prisoners was denied by coroner Diane Messier. The application was based on the following grounds:

  1. the women in Oakalla have common experiences and common interests and the circumstances surrounding the death of one of its members could have an effect on other prisoners in the institution, and
  2. the participation of other prisoners would assist the inquest in bringing the facts of Maureen Richard’s death to light.

These appear to be legitimate interests that could be affected by the evidence likely to be adduced at an inquest into the death of one of the prisoners of Oakalla, and yet the group representing those interests was denied standing.

One possible curtailment of a coroner’s presently unfettered discretion would be the adoption of the Ontario Coroners Act’s provision which specifies that a person can be granted standing if the coroner finds that the person is substantially and directly interested in the inquest. However, it is difficult to say whether those words are subject to a more expansive interpretation than the B.C. provision, for it would still be up to the presiding coroner to determine whether a person has a “substantial and direct interest”. Therefore, we propose that the coroner’s second exercise of discretion be eliminated. Under this proposal, the coroner would still detain the discretion to determine whose interests were likely to be affected by the evidence given at an inquest, but once having made the determination that a person was likely to be affected, the coroner would be required to grant standing to that person.

Furthermore, we propose that a summary appeal procedure to the courts be available in two situations to a person who is refused standing. Firstly, an appeal should be available when the coroner has decided that the applicant’s interests are not affected. This would ensure that the coroner has exercised his or her discretion in accordance with established judicial principles (i.e., having regard to all relevant considerations, not arbitrarily or capriciously, etc.). Secondly, an appeal should be obtainable to compel the coroner to grant standing when he has determined that the applicant’s interests are likely to be affected, but has refused to grant standing.

Standing also became an issue at the inquest inquiring into the death of Dennis Williams, who choked to death when police officers were attempting to prevent him from swallowing drug evidence. At the inquest the parents of the deceased did not seek standing, and the common law spouse was refused standing. As a result, the issue of whether the police were justified in using as much force as they did in attempting to prevent the destruction of evidence, which has no statutory basis in the Criminal Code, was not explored. The spouse of a deceased is one whose interests are very likely to be affected by evidence adduced at an inquest and therefore a grant of standing should be automatic. We are also of the opinion that with a common law spouse receiving statutory recognition in the Family Relations Act, similar recognition should be accorded a common law spouse under the Coroners Act. We recommend, therefore, that an automatic right to standing also be granted to the common law spouse. Similarly, parents and children of the deceased will prima facie be persons who are likely to be affected by the evidence at the inquest, and should also be granted standing automatically.

Witnesses

Under s. 35 of the Act, the coroner is required to examine “all persons who tender their evidence about the facts concerning the death and all persons having knowledge of the facts whom he thinks it expedient to examine.” However, under s. 38(1) the coroner has the discretion to summons any person whom he or she thinks might be able to give material evidence. Under this latter section, the coroner has a dual discretion, as in the question of whom to grant standing. Therefore, although a coroner may think a person has material evidence he or she may still decide not to examine that person.

We propose that the coroner’s second exercise of discretion be eliminated by requiring the coroner to summons any witness whom he or she considered to have material evidence. To avoid the possibility that this proposal would require the coroner to summons everyone with material evidence, whether redundant or not, “materiality” should be defined so as to exclude any evidence that has already been presented.

Protection for witnesses

Individual protections

English law has developed a system of evidentiary and procedural rules regulating the administration of criminal justice in which the interests of the public in the effective enforcement of the law and attempts at establishing the truth are continually being balanced against the interests of the individual in being guaranteed fair treatment (Granger, “Crime Inquiries and Coroners’ Inquests: Individual Protection in Inquisitorial Proceedings”, 9 Ottawa Law Review 441).

Inquisitorial proceedings such as coroners’ inquests present two major problems in that their procedures may undermine existing protections afforded citizens by the laws of evidence and criminal procedure:

  1. an inquisitorial proceeding may compel an individual to incriminate him or herself by testifying before it, and by doing so, may be assisting the Crown in the laying of criminal charges against him or her even though he/she could not have been compelled to provide this information in the course of regular criminal proceedings.
  2. these procedures may expose an individual to publicity prejudicial to subsequent criminal proceedings that may be taken against him or her in future—this procedure would not be permissible under the Criminal Code.

Protection against self-crimination

It is fundamental to our legal system that a person suspected or accused of committing a crime should not be compelled to contribute to the case against him or herself by his or her own word. Our system of procedure in criminal matters provides for the following protections:

  1. a person may remain silent when being questioned by police,
  2. when he or she is charged, an accused must not be examined, cross-examined or subjected to inquiry as to the offence with which he is charged,
  3. he or she has the right to remain silent at any preliminary inquiry into the charges against him or her, and must be cautioned regarding this right,
  4. in a Federal prosecution, he or she is not compellable and no comment can be made about his or her failure to testify.

The procedure in criminal matters guarantees these individual protections in criminal proceedings. However, the Supreme Court of Canada has held that these individual protections are not available to a witness who is testifying before a coroner’s inquest as the proceeding at a coroner’s inquest is not governed by the procedure in criminal matters and is not subject to the rules prescribed in the Criminal Code. Therefore, a witness testifying before such an inquiry is not accorded the protections of the Code. The guarantees against self-crimination contained in the Criminal Code were not available to a witness testifying before a coroner’s inquest because the proceeding itself is not as such concerned with the investigation of crime because the inquest is not a trial and there is no accused (Faber v. The Queen (1976) 2 S.C.R. 9). In a strong dissent, the minority held that the provisions in the Criminal Code relating to the duties of the coroner, in spite of some changes to those duties do not mean that the coroner no longer has any criminal jurisdiction. They said that even if his only duties were to transmit evidence before a justice before whom the person is to appear, “those duties certainly cannot be considered of negligible importance”. If the minority opinion had prevailed, the individual protections afforded an accused by the procedure in criminal matters would have been available to a witness appearing before a coroner’s inquest.

Although the protections of the Criminal Code are not available to every witness appearing before a coroner’s inquest, the Supreme Court of Canada has held that a person who has been charged with unlawful homicide cannot be compelled to testify at a coroner’s inquest into the death of his alleged victim. It seems clear that this protection should be extended to everyone who has been charged with a criminal offence. Cartwright J., speaking for the majority, was of the opinion that no province could pass legislation so as to abrogate or alter the existing rules which protect a person charged with a crime from being compelled to testify against him or herself, as such legislation comes within the exclusive legislative authority of the parliament of Canada (Batary v A.G. Sask, 52 D.L.R. (2d) 125). It has also been held that a person who has not been charged with an offence under the Criminal Code or a penal provincial statute, with respect to his or her conduct or actions involving the death of a person, is a compellable witness at a coroner’s inquest inquiring into that death (Regina v. McDonald 2 D.L.R. (3d) 298 (B.C.C.A.)).

A person appearing as a witness before a coroner’s inquest can subsequently be charged with an offence arising out of his testimony at that inquest, unless the witness invokes the protection of section 5 of the Canada Evidence Act. In order to receive the protection afforded by section 5 of the Canada Evidence Act against self-crimination, a witness must object to answering the question on the ground that his or her answer may incriminate. Section 40 of the B.C. Coroners Act attempts to do away with this cumbersome procedure by declaring that a witness at an inquest shall be deemed to have objected to answer any question asked of him or her on the ground that this answer may incriminate. However, since this is an attempt by a provincial legislature to alter the procedure of a federal statute, it is of questionable constitutional validity. In Marshall v. The Queen, 129 C.C.C. 232, the Supreme Court of Canada struck down a similar provision in the Ontario Highway Traffic Act saying that the provision only applied to proceedings under a provincial statute and would not apply to criminal trials. Consequently, the safest way for a witness appearing before a coroner’s inquest to invoke the protection against self-crimination afforded by the Canada Evidence Act is to refuse to answer each question asked him or her on the ground that his or her answer may incriminate. Section 40(2) further provides that where it appears that a witness is about to incriminate him or herself, the coroner and Crown counsel are required to inform the witness of his or her rights under s. 5 of the Canada Evidence Act.

Section 40(1) also provides that “no answer given by a witness at an inquest shall be used or admitted in evidence against him in any trial or other proceedings against him, other than a prosecution for perjury in giving that evidence”. Although this clause is very similar to the protection provided by s.13 of the Charter, s. 40(1) may not provide sufficient protection to the witness given the questionable constitutional validity of that section. We therefore propose that the Coroner’s Act be amended to specifically adopt s.13 of the Charter and that each witness must be informed of his or her rights under s.13 at the time his or her testimony is given.

Protection against prejudicial publicity

Section 29 of the B.C. Coroners Act requires that the inquest be open to the public except where a person is charged with an indictable offence under the Criminal Code and relevant evidence with respect to that person’s conduct may be given at the inquest. This is the only provision in the Coroners Act that protects a person against prejudicial publicity and since it has been held that the protections afforded by the Criminal Code are not available to a witness testifying before an inquest, this is the only protection against prejudicial publicity afforded a witness appearing before a coroner’s inquest.

However, s.29 in its present forms offers insufficient protection in that the coroner has the discretion to hold a closed hearing. Therefore, even though a person has been charged and evidence relevant to this conduct may be given at the inquest, the coroner is not required to close the hearing to the public. Therefore, we propose that s.29 be amended to require the coroner to have a closed inquest where a person, including a witness has been charged with an indictable offence.

Section 29 of the Act presently gives the coroner authority to close down all or part of a hearing if he/she is of the opinion that information or testimony might be produced that would endanger national security. This provision gives extraordinarily broad unchecked discretion to the coroner to close hearings to the public and is, therefore, an area of potential abuse. The BCCLA is of the opinion that where an inquest is held, it must be open to the public. Where national security issues in a particular case are felt to be especially sensitive, the coroner still retains the option of not holding a hearing at all. In these circumstances, an appeal of the coroner’s decision to the Attorney General would still be available to members of the public. The Attorney General would then presumably weigh the public interest in an open inquiry against national security interests. We, therefore, recommend that Section 29(1) be deleted.

Recommendations

  1. Results Of Coroner’s Investigations—Section 18

    It is recommended that s.18 be amended as follows, and then proclaimed in its amended form:

    1. subsection 2 should require the coroner to include in his record the grounds on which he based his decision that an inquest or inquiry was unnecessary,
    2. subsection 3 should also include common law spouses, as defined in the Family Relations Act, in the list of persons who have a right to the information compiled by the coroner under ss.2.
  2. Results Of Coroner’s Inquiry

    Section 21—It is recommended that s.21 be amended to give to all those persons listed in s.18(3), including a common law spouse a right of access to the coroner’s report on the results of his inquiry.

  3. Standing—Section 37(1)

    Section 37(1) of the B.C. Coroner’s Act states that “A person whose interests may be affected by evidence likely to be adduced at an inquest may ’be granted standing’” (emphasis added). This wording is objectionable in that it gives the presiding coroner two areas of discretion:

    1. to decide whether or not the applicant’s interests may be affected; and
    2. to decide whether or not to grant standing. It is therefore recommended that the coroner’s second grant of discretion be eliminated by amending s.37(1) to read:

      37(1)—A person whose interests may be affected by evidence likely to be adduced at an inquest shall be permitted to have standing (emphasis added).

  4. Appeal of s.37 Decision

    It is recommended that a summary appeal be available to an applicant denied standing on the grounds that the coroner has failed to exercise his discretion in a proper manner in deciding that the applicant’s interests are not likely to be affected, or has failed to comply with the Act in not granting standing following a determination that the applicant’s interests are likely to be affected.

  5. Automatic Right Of Spouse To Standing

    It is recommended that a new subsection be added to s.37 of the Act which would grant an automatic right of standing to the spouse, children and parents of the deceased whose death is the subject of the inquest. “Spouse” should be defined to include common law spouses as defined in the Family Relations Act who lived together as husband and wife for a period of not less than two years immediately prior to the death of the other.

  6. Witnesses—Section 38(1)

    Section 38(1) of the Act gives the coroner discretion in determining who shall be a witness before an inquest. Although the criterion is “material evidence”, the coroner is not required to issue a summons even when this criterion is met. It is submitted that the coroner retains too much discretion in determining who shall be a witness at a coroner’s inquest.

    It is thereby recommended that section 38(1) of the B.C. Coroner’s Act be amended in reducing the amount of discretion retained by the presiding coroner and should now read:

    38(1) A coroner shall issue a summons to any person who, in the opinion of the coroner, might be able to give material evidence on the matters to be inquired into at the inquest. “Material” should be defined so as to exclude any evidence that has already been given.

  7. Self-Crimination—Section 40

    Section 40 of the B.C. Coroner’s Act attempts to invoke the protection of section 5 of the Canada Evidence Act by stating that every witness shall be deemed to have objected to answering the question asked of him or her on the ground that his or her answer may tend to incriminate. However, because this is a provincial statute attempting to alter the application of a federal statute, a constitutional question has been raised. But with the implementation of the Charter, a constitutionally entrenched protection against self-crimination has been enacted. Section 13 of the Charter reads:

    5.13—A witness who testifies in ANY PROCEEDINGS has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings….

    It is hereby recommended that section 40 of the B.C. Coroners Act be amended to adopt section 13 of the Charter and that each witness testifying before a coroner’s inquest be informed of the protection of the Charter at the time his or her testimony is given.

  8. Protection Against Prejudicial Publicity—Section 29

    S.29(1)- It is recommended that Section 29(1) be deleted.

    S.29(2)—It is recommended that Section 29(2) be amended as follows:

    The coroner shall hold all or part of the hearing closed to the public where a person, including any witness, is charged with an indictable offence under the Criminal Code, and relevant evidence with respect to that person’s conduct may be given at the inquest.