2016 MBPC 77, 2016 MBPC 77

Date: 20160317 CITE: 2016 MBPC 77 IN THE PROVINCE OF MANITOBA IN THE MATTER OF: " The Fatality Inquiries Act " AND IN THE MATTER OF: CRAIG McDOUGALL, Deceased DECISION ON SCOPE OF INQUEST APPEARANCES: Mr. David Gray, Inquest Counsel Ms. Kimberly Carswell, Counsel for Winnipeg Police Service Mr. Corey Shefman, Counsel for Brian McDougall Introduction [ 1 ] Brian McDougall brings a motion that the inquest into the death of his son, Craig McDougall should consider the impact of structural racism in the circumstances leading up to and surrounding his son’s death.

Inquest counsel and counsel for the Winnipeg Police Service argue that this is not the right case to consider the impact of structural racism because there is no factual basis and no evidence to believe it had any impact in this case. Both concede that in some circumstances an inquiry into structural racism could be considered by an inquest judge but this is not the case.

What is my Jurisdiction to set the Scope of the Inquest? [ 2 ] Section 33(1) of the Fatality Inquiries Act requires a judge to prepare a written report which describes when, where and by what means the deceased person died, the cause of the death, the name of the deceased person (if known) and the material circumstances of the death.

The judge may also make any recommendations in the programs, policies or practices of the government or organizations implicated in the death, if the judge concludes that such changes would serve to reduce the likelihood of deaths in similar circumstances. [ 3 ] The term “material circumstances” has not been defined in the Act. Its meaning can be gleaned from the case law.

The purpose of the inquest was described in this way by Justice Steele in Hudson Bay Mining and Smelting 2006 MBCA 98 at paragraph 41 : The importance of gathering all of the relevant facts is reflected very clearly in most of the regimes by the provisions surrounding the subpoenaing of witnesses and the requirement that witnesses testify fully.

These provisions all support the viewpoint that although an inquest is not a forum in which blame is to be assigned, the coroner or judge should not shy away from examining all of the facts surrounding a death , even if that examination reveals facts which might have a damaging effect on someone legally or professionally. In most regimes, the goal of receiving all of the relevant information supersedes almost all other concerns.

The only evidence that will generally not be receivable by the coroner or judge is evidence to which privilege attaches and evidence which is statutorily prohibited from being received. (Emphasis added)

[ 4 ] In Hudson Bay Mining and Smelting 2004 MBCA 182 , Justice Freedman put it this way at paragraph 32: The inquest judge is mandated to investigate the cause of death and to make a report which may recommend changes programs, policies and practices. He or she may recommend changes in the law.

The judge’s mandate is broad indeed. [ 5 ] While I accept that the focus of an inquest is more narrow than that of a public inquiry, as Chief Justice Joyal said in Awasis 2013 MBQB 47 at paragraph 33 : Notwithstanding what are the comparatively more narrow questions that have to be answered in the context of inquests, those more narrow and specific questions may nonetheless require (or certainly not preclude) an occasionally more broad examination by an inquest judge.

That may be the case where such examination is both relevant and necessary for the preparation of the recommendations that are part of the prescribed duties of the inquest judge as set out in s. 33 of the Act . [ 6 ] Ms. Carswell on behalf of the Winnipeg Police Service argued that the directing letter from the Chief Medical Examiner did not include “corollary issues” like structural racism.

She points out that the Chief Medical Examiner could have included it in the letter which directed this inquest if it was relevant. [ 7 ] It is true that in some cases, the Chief Medical Examiner has delineated specific issues which the inquest judge should consider.

For example in the Jaylene Redhead inquest, the directing letter from the Chief Medical Examiner directed the inquest judge to consider the function and operation of safe houses. [ 8 ] In the Brian Sinclair inquest the directing letter required the inquest judge to consider reasons for delay in treating patients and measures to reduce the delay in emergency departments.

It is noteworthy that the Fatality Inquiries Act does not contain a specific provision which empowers the Chief Medical Examiner to set the scope of the inquest or provide direction as to what matters ought to be considered in the inquest and yet as noted, this practice has developed. I agree with Mr.

Shefman that the fact that the Chief Medical Examiner has in certain cases delineated certain areas of inquiry for an inquest demonstrates that the definition of material circumstances of a death can involve the context of the death which is larger than just when, where and by what means the death occurred. [ 9 ] However, this does not mean that I am precluded from considering the context when the letter of direction does not specify discreet areas of inquiry. The Brian Sinclair inquest is an example where the directing letter does not mention racism as a source of inquiry. In fact, Dr.

Balachandra testified at the Sinclair inquest that he did not think any medical personnel would ever deliver a different standard of care based on race (see the Brian Sinclair inquest report at paragraph 244). And yet that inquest heard from a number of experts about the issues that arise in delivering health services to Aboriginal peoples.

At paragraph 597 Judge Preston said: “It was important for the Court to hear expert evidence in the area of Aboriginal health services in order to contextualize it for the terms of reference of this Inquest.” The issues of systemic racism and stereotypes or assumptions that were made about Brian Sinclair were the subject of significant evidence and comment in that inquest report, for example see paragraphs 597- 656 of the report. [ 10 ] Another example is the inquest into the death of Ashley Smith where the Coroner set the material circumstances of her death to include broader considerations which included the prolonged use of segregation in correctional centers, frequent transfers, the role of mental health care in a corrections setting to name only some of the considerations that were delineated.

This does not mean the inquest becomes a roving inquiry but it does mean that a broader context is part of the “material circumstances” of the death and therefore is a relevant factor for an inquest judge to consider. [ 11 ] The Chief Medical Examiner does not have the benefit of the complete police investigations that occurred following this death. Ms. Carswell confirmed during submissions that the medical examiner receives some police summaries. He does not have the benefit of representations from interested parties or specifically in this case the affidavit evidence of Dr. Elizabeth Comack.

Since the Fatality Inquiries Act is not explicit about the Chief Medical Examiner’s authority to set the scope of the inquest and because in some cases the scope of the inquest has been pointed in a certain direction by the Chief Medical Examiner’s directing letter does not limit my explicit jurisdiction in s. 33(1) to set the scope of the inquest based on the material circumstances of Mr. McDougall’s death. The question remains: Is systemic racism relevant as a material circumstance of Mr. Craig McDougall’s death such that it is within the scope of this inquest? [ 12 ] Ms. Carswell and Mr.

Gray both argued that there is no factual basis for a claim of racism in this case because the entire incident occurred in less than 100 seconds. Police were responding to a call of a stabbing. At this point, the information suggests that Craig McDougall made that call. The responding officers had limited information. They arrived and approached the house. Suddenly, they noticed Craig McDougall walking between the neighbouring house and where they stood. They saw that he had a knife. They demanded that he drop the knife. He continued into the yard and towards the police. A taser was used but malfunctioned.

Craig McDougall did not respond to the demands to drop the knife and continued towards the officers. He was shot by the police. [ 13 ] Both counsel argue that this scenario does not attract any concerns with respect to racism of any type given how quickly it happened and the limited, if any, exercise of discretion by the police officers. Dr. Comack on the other hand points to this same short period of time as making it more likely that the officers relied on cultural frames of reference which attract considerations of race and systemic racism. [ 14 ] Ms.

Carswell points to two cases which she argues are very similar to the facts in this case and in those two cases a Coroner declined to consider racism as implicated on those similar facts. [ 15 ] In Black Action Defence Committee v. Coroner, [1992] Carswell Ont 915 , the divisional court reviewed the decision of the Coroner, Dr. Robert Huxter, who declined to give standing to the Black Action Defence Committee (BADC). The inquest was into the

shooting death of Mr. Donaldson, a black man who had been diagnosed as a paranoid schizophrenic. Dr. Huxter had concluded that race was not a cause of the death. BADC wanted to inquire into whether Mr. Donaldson’s mental illness had been caused by racial harassment and whether he was shot because he was black. [ 16 ] This case can be distinguished from the case before me because two significant things had already occurred. A criminal trial of the police officer who shot Mr. Donaldson had been held. In that trial there was no evidence that race was a direct cause of death as was alleged by BADC.

And second a complaint by the deceased’s wife had been investigated and race was determined not to be a factor. The divisional court upheld Dr. Huxter’s conclusion that race was not within the scope of the inquest given that history.

In this case, we do not have those kinds of evidentiary hearings that have already considered the issue of race. [ 17 ] The BADC case can also be distinguished from this one because under the heading “Race as a direct factor” in the decision the court confirms that the allegation by BADC was one of overt racism and not an allegation of systemic racism such as we are dealing with here. [ 18 ] It is noteworthy that Dr.

Huxter’s decision to not grant standing to a second public interest group called the Urban Alliance on Race Relations for Metropolitan Toronto (Justice) was overturned by the three panel divisional court. The reviewing court noted that cross-cultural sensitivity in the delivery of mental health services was a significant issue that should be inquired into by the jury in order to determine what preventive recommendations might be made in this area. This supports my earlier conclusion that the material circumstances of a person’s death can attract a broader scope of inquiry even in an inquest. [ 19 ] Ms.

Carswell also pointed to Barnett Estate v. Ontario (Deputy Chief Coroner) 1996 CarswellOnt 3738 as having very similar facts to the case at bar. In Barnett , the Coroner Dr. Cairns conducted what is described as an extensive investigation. He found that Mr. Barnett was walking up the middle of Bathurst Street punching and kicking at vehicles. He had something in his hands. Vehicles had to slow to go around him. Mr. Barnett was a danger to himself and other people using the road. The police officer called for backup and noted the person might be mentally ill. Less than 30 seconds after the call for back up, Mr.

Barnett approached the police officer wielding a sword. When he was three to four feet away from the officer he was shot and died from the resulting injuries. A detailed investigation into Mr. Barnett’s medical history did not unearth any history of mental illness. The Coroner concluded that the affidavits of the experts could not point to a single circumstance in the death, other than Mr. Barnett’s skin colour to support the inquiry into systemic racism. [ 20 ] Let me compare the evidence before me then to the expert evidence referred to in Barnett .

In this case, in order to provide some evidentiary foundation to support Brian McDougall’s position, an affidavit by Dr. Elizabeth Comack, a sociologist, was filed on this motion. At page 38 of the report attached to her affidavit she says: Racism is not a simple matter of individualized actions such as the use of racist language or racial slurs. Systemic racism is a more complicated matter as it is embedded in institutional practices and cultural frames of reference.

As the Ontario Commission on Systemic Racism in the Criminal Justice System (Ontario 1995) noted, systemic racism – “the patterns and practices… which, although they may not be intended to disadvantage any groups, can have the effect of disadvantaging or permitting discrimination against… racial minorities” (Ontario 1995: Appendix A) – [and] can reside in the operating norms of an organization, including the standard operating procedures utilized by police services. [ 21 ] Dr.

Comack argues that the Use of Force Framework does not adequately consider the ways in which race can have a bearing on an officer’s and a subject’s assessment of an event. The Use of Force Framework presumes that subjects will respond in a reasonable and rational way. The Use of Force Framework will be a key focus of the fact-finding in this inquest. Dr. Comack points to information in the witness statements and police reports that suggest that intoxication, mental distress and language skills are factors that affected Craig McDougall. [ 22 ] At page 32, Dr.

Comack says: Nevertheless, racism is often so muted in appearance that its presence is not obvious or self-evident. This is especially the case with “everyday racism”, whereby racist beliefs and actions infiltrate everyday life to become part of our common sense and taken-for-granted ways of acting in the world. As Carol Henry and her colleagues note, one dimension of racism is “its ability to be so subtly expressed or indirectly applied that its targets are not even aware of it. Conversely, racism is sometimes visible only to its victims.

It remains indiscernible to others, who therefore deny its existence.” The presence of racism also becomes less discernible when it takes a systemic form; for instance, when it is embedded in the practices and procedures of an organization. [ 23 ] Ms. Carswell argued that if the evidence established racism of any type, we would not miss it. I am not so sure. It is a matter of perspective.

And I accept that systemic racism is subtle, sometimes hidden and not obvious. [ 24 ] After Craig McDougall was shot, a number of his family members who were ostensibly sleeping inside the residence were detained and removed to a police station. The authority for these actions has been described as contentious in Mr. Gray’s brief. Dr. Comack describes this series of events as a standard operating procedure which raises concerns relating to race and racialization. [ 25 ] I have concluded after reviewing Dr. Comack’s report that her evidence is different from that described in the Barnett case.

It is not just a bald opinion. There are specific facts which Dr. Comack points to as facts that are likely to come before the court in this inquest which support the conclusion that I would be assisted by having the expert evidence of Dr. Comack in order to properly interpret those facts and consider how they might impact any preventive recommendations I might make.

[26] I have carefully considered the arguments of Mr. Gray and Ms. Carswell that to allow expert evidence of systemic racismbefore I have heard the evidence and made my own findings of fact is putting the cart before the horse. [27] In R. v. S. (R.D.), (SCC), [1997] 3 S.C.R. 484 the Supreme Court of Canada considered a judge’s oral reasonsat the end of a trial in which she made comments about the relationship between black people and police officers. The majority of thecourt concluded that a reasonable apprehension of bias did not arise on the facts before the court.

While I recognize that JusticeL’Heureux-Dube and McLachlin were not in majority on their approach to the reasonable apprehension of bias, they had the following tosay about the importance of social context in fact-finding by a judge at paragraphs 41-44: 41. It is axiomatic that all cases litigated before judges are, to a greater or lesser degree, complex. There is more to a case than who didwhat to whom, and the questions of fact and law to be determined in any given case do not arise in a vacuum.

Rather, they are theconsequence of numerous factors, influenced by the innumerable forces which impact on them in a particular context. Judges, acting asfinders of fact, must inquire into those forces. In short, they must be aware of the context in which the alleged crime occurred. 42. Judicial inquiry into the factual, social and psychological context within which litigation arises is not unusual. Rather, a conscious,contextual inquiry has become an accepted step towards judicial impartiality.

In that regard, Professor Jennifer Nedelsky’s “EmbodiedDiversity and the Challenges to Law” (1997), 42 McGill L.J. 91, at p. 107, offers the following comment: What makes it possible for us to genuinely judge, to move beyond our private idiosyncrascies and preferences, is our capacity to achievean “enlargement of mind”. We do this by taking different perspectives into account. This is the path out of the blindness of our subjectiveprivate conditions. The more views we are able to take into account, the less likely we are to be locked into one perspective ....

It is thecapacity for “enlargement of mind” that makes autonomous, impartial judgment possible. 43. The Judicial inquiry into context provides the requisite background for the

interpretation and the application of the law. Forexample, in a case involving alleged police misconduct in denying an accused’s right to counsel, this Court inquired not simply intowhether the accused had been read their Charter rights, but also used a contextual approach to ensure that the purpose of theconstitutionally protected right was fulfilled: R. v. Bartle, (SCC), [1994] 3 S.C.R. 173. The Court, placing itself in theposition of the accused, asked how the accused would have experienced and responded to arrest and detention.

Against this background,the Court went on to determine what was required to make the right to counsel truly meaningful. This inquiry provided the Court with alarger picture, which was in turn conducive to a more just determination of the case. 44. An understanding of the context or background essential to judging may be gained from testimony from expert witnesses in order toput the case in context: R. v. Lavallee, (SCC), [1990] 1 S.C.R. 852, R. v. Parks (1993), (ON CA), 15O.R. (3d) 324 (C.A.), and Moge v.

Moge, (SCC), [1992] 3 S.C.R. 813, from academic studies properly placed before theCourt; and from the judge’s personal understanding and experience of the society in which the judge lives and works. This process ofenlargement is not only consistent with impartiality; it may also be seen as its essential precondition. [28] I endorse this process as described by Justices L’Heureux-Dube and McLachlin. In S(RD) the social context comments by thetrial judge were made during the course of rendering a decision after a criminal trial and in explaining her credibility assessments.

Here Iam the presiding judge in an inquisitorial process meant to expose what happened in a public forum, to check public imagination andenable the community to be aware of factors which put human life at risk (see Faber v. The Queen (SCC), [1976] 2 SCR9). So I find I can rely on Justices L’Heureux-Dube’s and McLachlin’s comments to conclude that I should hear the evidence of Dr.Comack on systemic racism at the same time that I am hearing the other evidence from the witnesses so that I have that addedperspective or lens in order to do the necessary fact-finding that I will have to do.

I have also concluded that it provides better clarity tocounsel in this inquest to know at the outset that Dr. Comack may well testify so that they can prepare for that evidence. [29] This does not mean that I am allowing a “roving inquiry” into systemic racism in the Winnipeg Police Service.

In the BrianSinclair inquest, while Judge Preston heard from a few expert witnesses about systemic issues in the delivery of health care to Aboriginalpersons, he declined to endorse a more extensive inquiry including a panel discussion into “systemic issues for Aboriginal persons, withan eye also to poor people, substance abuse people, people with disabilities” in an oral decision he made on January 10, 2014. In thiscase, the evidence is focused on whether structural racism was a factor in this death. Conclusion [30] In conclusion, the scope of this inquest shall include the material circumstances of Mr.

McDougall’s death which includesconsideration of whether structural racism played a role or impacted the events leading up to and immediately following his death. If itdid play a role, what can be done to prevent structural racism from causing or contributing to future deaths in similar circumstances? [31] To that end Dr. Comack can testify at this inquest, provided she is qualified as an expert witness as required in R. v. Mohan (SCC), [1994] 2 SCR 9. “Original signed by” Anne Krahn, A.C.J.