2022 MBPC 20, 2022 MBPC 20

Citation: 2022 MBPC 20 THE PROVINCIAL COURT OF MANITOBA WINNIPEG COURT CENTRE IN THE MATTER OF: THE FATALITY INQUIRIES ACT C.C.S.M. c. F52 AND IN THE MATTER OF: EISHIA HUDSON (DATE OF DEATH: APRIL 8, 2020 ) Decision on the Inquest Standing Hearing of Chief Judge Margaret I. Wiebe Issued this 19 th day of April 2022 M. WIEBE, CJ Introduction 1 .

According to the facts provided by the office of the Chief Medical Examiner (CME) in his letter of February 25, 2021, on April 8, 2020 at approximately 5:30 PM, Winnipeg Police Services (WPS), began following a stolen vehicle, which had been involved in a previous robbery at the Manitoba Liquor and Lotteries (MBLL) in the Sage Creek area. While being followed, the stolen vehicle rammed the police vehicle and a pursuit was initiated. The pursuit continued in the Sage Creek area and onto Lagimodiere Boulevard at high rates of speed.

At approximately 5:37 PM the stolen vehicle crossed the median at Lagimodiere Boulevard and Fermor Avenue where the vehicle was stopped by several WPS vehicles. While apprehending the five occupants, a WPS officer discharged his firearm striking Eishia Hudson, the driver. Eishia Hudson was transported to Health Sciences Centre (HSC) where she was pronounced deceased. Calling of the Inquest 2 . On February 25, 2021, the office of the Chief Medical Examiner, wrote to The Provincial Court of Manitoba directing that an inquest be held into the death of Eishia Hudson pursuant to the Fatal Inquiries Act .

The CME directed the Inquest be held for the following reasons:

a) to fulfil the requirement for an inquest, as defined in section 19 (5) (

a) of the Fatality Inquiries Act . Presumption of inquest 19(5) Subject to subsections (6) and (7), an inquest into a death must be held if (

a) the chief medical examiner has reasonable grounds to believe that the deceased person died as the result of the use of force by a peace officer who was acting in the course of duty; or (

b) at the time of death, the deceased person was (

i) in the custody of a peace officer, (ii) a resident in a custodial facility, (iii) an involuntary resident in a facility under The Mental Health Act , or

(iv) a resident in a developmental centre as defined in The Vulnerable Persons Living with a Mental Disability Act .

b) to determine the circumstances relating to Eishia Hudson's death; and

c) to determine what, if anything, can be done to prevent similar deaths from occurring in the future. The Purpose of an Inquest 3 . The purpose of an inquest is set out in

section 26.2(1) of the Fatality Inquiries Act: Purpose of inquest 26.2(1) An inquest is a non-adversarial proceeding held for the sole purpose of establishing the facts necessary to enable the presiding provincial judge to prepare a report into the death under

section 33. 4 . I, like ACJ Krahn, in McDougall v Manitoba (AG) , adopt the description of the purpose of an inquest, as cited in the Canadian Law of Inquests textbook, which said: “…. to investigate the exact circumstances of the death to check public imagination and indignation, to enable the community to be aware of factors which put human life in jeopardy, and to reassure the community that the government is acting to ensure that the guaranties relating to human life are duly respected". [1] 5 .

And again, as stated by then Justice Kroft in Head and Head v Trudel (Trudel) , where he said: “…the object of the fatality inquiries act and an inquest conducted thereunder is not so much for the protection of private rights as it is the furtherance of the public interest. That is, the community has the right to be informed about the circumstances surrounding sudden, suspicious or unexplained deaths.” [2] 6 . There is no question that an inquest by its very nature is to serve the public interest.

It is a fact-finding mission in order to establish the facts of the death and also to make recommendations where appropriate to prevent a death occurring in a similar circumstance in the future. 7 . We must remain mindful however that an inquest is not the same as a public inquiry. As stated by Judge Preston in the Brian Sinclair Inquest: “Although inquests have expanded in scope and complexity in recent years, inquiries are by their nature broader in scope and subject matter than inquests.

The mandate of any inquest is limited to the directive of the Chief Medical Examiner and the duties of a provincial court judge at an inquest are governed by the provisions of the FIA.

Section 33 of the FIA specifies those duties: After completion of an inquest, the presiding provincial judge shall (

a) make and send a written report of the inquest to the minister setting forth 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; (

b) upon the request of the minister, send to the minister the notes or transcript of the evidence taken at the inquest; and (

c) send a copy of the report to the medical examiner who examined the body of the deceased person; and may recommend changes in the programs, policies or practices of the government and the relevant public agencies or institutions or in the laws of the province where the presiding provincial judge is of the opinion that such changes would serve to reduce the likelihood of deaths in circumstances similar to those that resulted in the death that is the subject of the inquest.” Judge Preston added, “I have no intention of turning this inquest into a de facto inquiry.” [3] 8 .

I further note the comment of Justice Dewar in the John Howard Society of Manitoba, Inc. v. The Government of Manitoba case, when describing the purpose of an inquest: “28 Inquests are not intended to be wide ranging inquiries. There is a legislated desire for a forum in which tragic deaths may be examined, firstly with a view to determining how the death occurred and secondly to ascertain whether similar deaths might be prevented in the future.

It is important to recognize that there is a discrete set of facts which are being examined through the inquest microscope which are of particular interest to the persons who participated in the events which caused the death [4] .” 9 . I share the views of Judge Preston and Justice Dewar. This is not a Public Inquiry. It is an Inquest. It is focussed on the discrete set of facts and circumstances surrounding the death of Eishia Hudson and a consideration of what may be recommended to prevent a similar tragedy from occurring in the future. Requests for Standing 10 .

A standing hearing was held on February 11, 2022. The following parties appeared and applied for standing:

a) Family of Eishia Hudson;

b) Winnipeg Police Services (WPS);

c) Manitoba Keewatinowi Okimakanak (MKO);

d) The Assembly of Manitoba Chiefs (AMC)

e) The First Nations Family Advocate Office (FNFAO);

f) The Manitoba Advocate for Children and Youth (MACY);

g) Manitoba Liquor and Lotteries Corporation (MBLL);

h) Winnipeg Fire Paramedic Service (WFPS);

i) Shared Health of Manitoba, which operates the Health Sciences Centre (HSC) Hospital in Winnipeg Manitoba. 11 . The test for standing at an inquest is set out in the Fatalities Inquiries Act at

section 28: Inquest attendance by interested persons 28(1) Subject to subsection (2), a person who, in the opinion of the provincial judge presiding at an inquest, is substantially and directly interested in the inquest, may attend the inquest in person or by counsel and may question witnesses called at the inquest. Judge may limit examination 28(2) A provincial judge presiding at an inquest may limit questioning under subsection (1) where the questioning is vexatious or is beyond what is necessary for the purpose of the inquest. 12 .

At the Inquest Standing Hearing, I granted Standing to the Family of Eishia Hudson as well as the Winnipeg Police Service. There is no question; both of these parties have a direct and substantial interest in the hearing. 13 . This decision sets out my decision with respect to the balance of the requests for standing. Before I deal with each individual party, I will address what is meant by a direct and substantial interest in the inquest. Direct and Substantial Interest 14 . Several cases have addressed the meaning of “substantially and directly”.

Justice Dewar addressed this issue in the John Howard case referred to above, at paragraph 19 as follows: “[19] What then is the meaning of the words “substantially and directly interested in the inquest”? These are words which appear to be incapable of precise definition, purposely so in order to promote the wide discretion which is given to an inquest judge during an inquest.

They are tailored to the individual inquest judge because, rather than using words such as: Any person who is substantially and directly interested in the inquest may be granted standing…, the Legislature specifically inserted the words “in the opinion of the provincial judge presiding at an inquest” in

section 28 .” 15 . Justice Dewar went on to quote the following at paragraph 21 of the same decision when considering if the John Howard Society had a direct and substantial interest: “I do not doubt the sincerity of the request being made by JHSM for leave to participate in this inquest, but as was stated in Stanford v. Ontario (Eastern Regional Coroner) , 1989 Carswell Ont 441 (Ontario Divisional Court) at para. 52 : 52 Mere concern about the issues to be canvassed at the inquest, however deep and genuine, is not enough to constitute direct and substantial interest.

Neither is expertise in the subject matter of the inquest or the particular issues of fact that will arise. It is not enough that an individual has a useful perspective that might assist the coroner. The interest of an applicant for standing in the recommendations of the jury must be so acute that the interest may be said to be not only substantial, but also direct.” 16 .

While Justice Dewar at the end of the day indicated he would have found John Howard Society to have standing, he found it was within the discretion of the Inquest Judge, not to grant standing, based on Justice Dewar’s view the presiding Judge has a wide discretion as to who would be permitted to participate. 17 . As is pointed out in Mr.

Frost’s brief, on behalf of the Advocate for Children and Youth for the Province of Manitoba, other cases have suggested courts are taking a more inclusive approach to the question of standing and there is increased focus on the social and preventative function in inquests. [5] 18 . However, while I acknowledge this approach and its appropriateness in certain circumstances, there remains limitations on

participation and a particular caution when there may be adversarial issues between those parties seeking standing. An inquest should notand cannot become a forum for an adversarial conflict among parties. As the Court stated in People First of Ontario v. Porter:[6] “There is, as demonstrated by these inquests, a potential tension between the investigative function and the separate preventive or socialfunction. This tension becomes particularly acute when there is a potentially adversarial conflict between a public interest advocacygroup and those directly connected with the deceased.

Although an inquest has many of the trappings of the adversary process it is not a trial and there is no lis between the parties. As ChiefJustice McRuer said, an inquest is not a preliminary round to the determination of civil liability. See Huynh v. Jones (1991), (ON SC), 2 O.R. (3d) 562 at p. 565, 46 O.A.C. 152 (Div. Ct.). Although an inquest has some of the trappings of a royalcommission it retains its essential quality of an investigation conducted by a medical man (or woman) into the death of individualmembers of the community.

It must never be forgotten by the parties at every inquest that the central core of every inquest is an inquiryinto how and by what means a member of the community came to her death. Notwithstanding the emerging public interest in the juryrecommendations in the modern Ontario inquest, an inquest is not a trial; an inquest is not a royal commission; an inquest is not a publicplatform; an inquest is not a campaign or a lobby; an inquest is not a crusade.” 19. I am mindful of and guided by the above principles in making my decisions on standing. Family of Eishia Hudson 20.

I have already granted standing to the family who clearly has a direct and substantial interest, as it was their family memberwho was killed. Winnipeg Police Services 21. I have already granted standing to the Winnipeg Police Service who also has a direct and substantial interest in this case, as thepolice were involved in the lead-up to the shooting and a police officer shot Eishia Hudson. The Assembly of Manitoba Chiefs (AMC) 22.

Counsel for AMC has submitted AMC has a substantial and direct interest in this Inquest based on their expertise in mattersinvolving the justice system and Indigenous people, including Indigenous youth. In particular, Counsel point to AMC’s role in advocacygenerally and specifically its role in advocating for police reform in Manitoba. With respect to the WPS in particular, counsel notedAMC has repeatedly issued public statements regarding the need for reform of WPS and has advocated for increased oversight of policeaction to better protect First Nations persons in Manitoba. 23.

If granted standing, AMC intends to raise broad systemic issues surrounding the treatment of First Nations people. Itreferences its concerns about police treatment of Indigenous peoples, including youth, its concerns about the youth criminal justicesystem as well as its concerns about the child welfare system and how all of these issues affect First Nations people. 24. I do not doubt AMC has a substantial interest in the well-being of First Nations people including its children. I do not doubt ithas a substantial interest in the overrepresentation of Indigenous people in the justice system.

And I do not doubt it has a substantialinterest in the interaction between the child welfare system and the youth criminal justice system. These are serious, long-standingsystemic issues and these issues must be addressed in order for reconciliation to be achieved meaningfully. 25. I do question if it has the substantial and direct interest required to be granted standing at this inquest. 26.

Counsel has referred to the case of Stanford v Ontario (Eastern Regional Coroner) as support for AMC’s standing request.Counsel suggests AMC in this case has a direct interest similar to the direct interest the inmates in the Stanford case had, which resultedin them getting standing. Justice Dewar in John Howard described the case as follows: “In the Stanford case, standing was granted to agroup of inmates who were housed in the same facility as a deceased person who had committed suicide there.

The court found thatthose inmates had an identical interest to that of the deceased in a unique unit of the Canadian penitentiary system.” 27. In that case, a specific, defined group of inmates living in identical circumstances as the deceased applied for standing. Theoutcome of any recommendations in that case would directly affect those inmates and the restrictions and conditions under which theylived. In my view, that case is distinguishable from this case. There is no analogous discrete group of similarly situated individuals inthe case before me.

Not all First Nations youth are standing in the same shoes as Eishia Hudson. 28. I appreciate the concern about the interaction of the child welfare system and the youth criminal justice system generally, and Iaccept there is an interest on AMC’s part to advance these arguments for the benefit of the whole. However, this Inquest is about EishiaHudson and her experience. And while social context is important, as it applies to her experience, this Inquest cannot become an inquiryinto the child welfare system and the youth criminal justice system at large. 29.

Further, I note AMC and MKO are both seeking substantial reforms in the area of policing. The issue of policing policies andthe relationship between First Nations and policing agencies is an important issue and has been raised by both parties in their applicationsfor standing. I note it is the subject of advocacy and proposed reform by both AMC and MKO. 30. Those efforts are well situated in the forums where those discussions are currently taking place.

While I acknowledge theinteraction between police services and First Nations people is an area of concern to both AMC and MKO, and while I acknowledge theinteraction between Eishia Hudson and the WPS will be examined in this Inquest, I do not find this general interest in police reform is abasis upon which standing should be granted. 31. In conclusion, I acknowledge the issues raised by AMC. They are issues of fundamental importance, but they are broad, far-reaching, multi-faceted, and complicated.

32 . This Inquest has a narrower focus. It is centred on Eishia Hudson. The Inquest will seek to understand how it came to be she died as a result of her interaction with the police. It will consider Eishia Hudson’s experience as an Indigenous youth. It will consider her background and experience and the social context within which she lived. It will make recommendations based on all of its findings. But it will not be the broad, far-reaching inquiry proposed by AMC.

Given the focus of the Inquest, I do not find AMC has a substantial and direct interest and therefore I decline to grant AMC standing at the Inquest. Manitoba Keewatinowi Okimakanak (MKO) 33 . MKO has applied for standing on much the same basis as AMC. It is an advocate for reform in many of the same areas as AMC. It too seeks to advance general positions including the impact of policing policies on MKO citizens, no matter where the MKO citizens are located.

It strongly states that the Inquest should be conducted on the basis Indigenous people, including youth are overrepresented in the criminal justice system. 34 . MKO says its direct interest is that MKO citizens, including MKO youth interact with the WPS in ways that may be materially similar to Eishia Hudson. It seeks to bring the unique experience of MKO citizens to the Inquest. 35 . MKO indicates it can speak to the Indigenous experience of being at higher risk of having contact with the police.

It can speak to systemic discrimination, racism and racial profiling and it can make recommendations to remedy a situation where a death occurs in a case similar to Eishia Hudson. 36 . It should be noted, MKO does not have a relationship with Eishia Hudson or her family. There is no evidence Eishia Hudson is a blood relation of the MKO community. Nonetheless, MKO states its interest is a general interest on behalf of all Indigenous peoples and it seeks to bring the unique perspective to the Inquest of the Indigenous voice.

I accept there may not need to be a blood connection in order to provide views on the youth Indigenous experience. 37 . However, as with AMC, I do not find MKO has a substantial and direct interest so that standing should be granted. While again I acknowledge the general issues raised are of fundamental importance, I go back to the words of Justice Dewar in the John Howard case, where he said inquests are not to be far reaching inquiries.

He said: “It is important to recognize that there is a discrete set of facts which are being examined through the inquest microscope which are of particular interest to the persons who participated in the events which caused the death [7] .” 38 . I find while MKO has a very deep interest in many of the issues it is raising, harkening back once again to the comments the court made in the Stanford case, mere concern about the issues being raised, no matter how deep and genuine, does not constitute a substantial and direct interest in the inquest.

MKO like AMC, is essentially seeking to advocate on a number of issues which are of great importance to them. I understand the desire to advance these issues in the public consciousness. However, I do not find this Inquest is the place to do so. 39 . I therefore decline to grant standing to MKO. The First Nations Family Advocate Office (FNFAO) 40 . Having declined standing to AMC and MKO, I take a different view on the standing request of FNFAO. I have treated the requests of AMC and FNFAO as separate standing requests.

While I understand the interconnectedness, I also understand FNFAO to have a specific purpose and mandate. It is child and youth focussed. It has a narrower scope and mandate than AMC proper. I have taken that distinction into consideration in making my decision on standing. 41 . Consistent with a more inclusive approach, FNFAO has a deep understanding of the cultural and systemic issues facing Indigenous youth. It is well versed in the experiences of Indigenous youth and their perception of the world around them. Social context is important. Eishia Hudson was an Indigenous youth.

Eishia Hudson was involved in the child welfare system. As an Indigenous youth, Eishia Hudson would have a unique experience and unique perceptions based on her life lived. To the degree FNFAO can provide insight into the life experiences and perceptions of Indigenous youth like Eishia Hudson, that evidence will convey important cultural and social context to the Inquest. 42 . This is not to say, this Inquest will expand to consider the youth criminal justice system and the child welfare system as a whole.

But FNFAO is uniquely situated to educate the court on the above matters and in doing so it will serve as a voice of Indigenous youth and ultimately inform the courts recommendations. 43 . I therefore grant FNFAO standing at the Inquest. 44 . I will also add, notwithstanding the fact I have not granted standing to AMC or MKO, I would encourage AMC and MKO to speak to FNFAO as well as Inquest counsel to suggest the name of an expert who would be able to provide evidence on cultural matters and social context with respect to the Indigenous youth experience.

That expertise may well already reside within FNFAO directly. 45 . I note in the case of R v Morris [8] the Court of Appeal of Ontario, considered whether it was appropriate for a trial judge, during a sentencing hearing, to rely on a report outlining the impact of overt and systemic racism on young black men. The trial judge also considered a report which dealt with the specific impacts of institutional and overt racism in the accused’s life with a view to providing an analysis of the impact of systemic racism on his experiences in and out of the justice system.

The Court of Appeal agreed it was appropriate for the judge to have taken those reports into account. 46 . It would seem appropriate in this case, to have similar information in the form of reports, both generally regarding the experience of Indigenous youth and specifically as it relates to Eishia Hudson. Similar reports would be of assistance to the Inquest. The Manitoba Advocate for Children and Youth (MACY)

47 . As with FNFAO and without each of these organizations duplicating the work of the other, I am also granting standing to the Manitoba Advocate for Children and Youth (MACY). MACY’s role is to support, assist, inform, and advise children, adults and their families regarding services which are meant to be supports for them. MACY is also an advocate for children’s rights. It works to amplify the voices of youth across Manitoba. Importantly MACY works to ensure the safety and well being of all children in Manitoba. 48 .

As indicated in its brief, MACY has experience investigating issues concerning children and youth. It has a responsibility to investigate deaths of children and to publish reports concerning the circumstances of the deaths. This report is already underway in the case of Eishia Hudson. The report may include recommendations to institutions providing designated services to children and youth. 49 .

It is important to note, that while MACY has some similar statutory functions in this regard to the Court in conducting the Inquest, each is an individual and independent examination of the facts and circumstances of the death of Eishia Hudson. That being so, the Inquest will conduct its own fact finding mission and it would not be expected, that MACY would call witnesses similar to those it spoke to in preparing its own report. However, it would be valuable to have the completed report of MACY filed and to have a representative of MACY speak to its recommendations at the inquest. 50 .

In addition, Eishia Hudson was in the care of child welfare agencies from age eight to age twelve. Without breaching any confidential information, MACY may have insights into the quality of or need for programs and supports for youth and their families, which insights may further highlight the circumstances unique to Eishia Hudson. These insights may also form the basis of recommendations going forward in order that a similar tragic event may be avoided. 51 . I therefore grant MACY standing at the Inquest. Manitoba Liquor and Lotteries Corporation (MBLL) 52 .

MBLL argues it should have standing on the basis there may be recommendations made regarding its policies and procedures. They base this on the fact Eishia Hudson was said to have been involved in a robbery at an MBLL which started the chain of events which ultimately resulted in her death. There has been no issues raised with respect to MBLL in terms of its conduct. There is no indication MBLL will be the recipient of recommendations because of the manner in which it dealt with robberies at MBLL or this particular incident.

Apart from the fact Eishia Hudson was at an MBLL at the start of this event and MBLL took what action it thought necessary by calling the police, I see no substantial or direct interest in the Inquest on the part of MBLL. While MBLL employees may be called as witnesses, for context and to advise on the facts leading up the interaction with police, and while those employees are entitled to have counsel present, I do not find that creates a substantial and direct interest in the Inquest. Therefore, I am not prepared to grant standing in this matter to MBLL. Winnipeg Fire Paramedic Services (WFPS) 53 .

Similar to MBLL, there is no indication there are any issues with the care received or treatment administered to Eishia Hudson by the paramedics. There is no indication the reputation or policies of the Winnipeg Paramedic Services are an issue. WFPS will also be called as a witness to speak to their limited involvement in this matter. They will be entitled to have counsel present. I do not find there is a substantial or direct interest in the Inquest and so I decline to grant standing to WFPS.

Shared Health of Manitoba, which operates the Health Sciences Centre (HSC) hospital in Winnipeg Manitoba (Shared Health) 54 . Similar to MBLL and WFPS, there is no indication there are any issues with the care received or treatment administered to Eishia Hudson by Shared Services. There is no indication the reputation or policies of Shared Services are an issue. Shared Services will also be called as a witness to speak to their limited involvement in this matter. They will be entitled to have counsel present.

I do not find there is a substantial or direct interest in this matter and so I decline to grant standing to Shared Health. 55 . That is my decision with respect to standing. DATED the 19 th day of April 2022. ______________________________ Margaret I. Wiebe, Chief Judge