2013 MBPC 35, 2013 MBPC 35

Citation: The Moose Family v. The Attorney General for Manitoba And Provincial Court Judge Heinrichs Citation No. 2013 MBPC 35 THE PROVINCIAL COURT OF MANITOBA IN THE MATTER OF: The Fatality Inquiries Act AND IN THE MATTER OF: Donald Ray Moose, Deceased The Moose Family. Applicant ) ) ) Saul B. Simmonds, for the Applicant ) - and – ) ) The Attorney General for Manitoba And Provincial Court Judge Heinrichs, ) ) ) Issie Frost and Jim Koch, Civil Legal Services SOA Respondent ) ) ) Deborah Carlson, for the Department of Justice ) Judgment delivered: ) May 28, 2013 HEINRICHS, P.J.

Introduction [ 1 ] Donald Ray Moose died on October 2, 2009; he was 32 years of age at the time. He had been incarcerated at the Headingley Correctional Centre for a number of months and was living in Dorm 2 of the Assiniboine Treatment Centre. He was not in the best of health: he had diabetes and some other health issues. During the last few days of September, 2009, he told others that he was not feeling well and that he had the flu. In the evening of October 1, 2009, two other inmates saw him in the unit’s washroom. Donald Moose appeared to them to almost collapse. He left the washroom to lie down on his bunk.

Later in the evening he complained of disorientation and shortness of breath to the staff. He was given oral glucose, which seemed to help a bit. He was treated on an emergency basis and an ambulance was called for. He was transported to the Grace General Hospital where his condition deteriorated and he passed away in the early morning hours of October 2, 2009. [ 2 ] The Office of the Chief Medical Examiner called an Inquest by way of letter dated October 18, 2011. The letter to Chief Judge Ken Champagne of the Provincial Court of Manitoba set out that the Inquest was being called pursuant to section 19 (3) (

a) of the Fatality Inquires Act ( hereinafter referred to as the “FIA” ). The mandate of the Inquest is to determine the circumstances relating to Donald Moose's death, and to determine what, if anything, can be done to prevent similar deaths from occurring in the future. [ 3 ] I was asked to be the presiding judge at this inquest. On April 3, 2012, the first standing hearing took place. At that time, Saul Simmonds appeared on behalf of Donald Moose's family. Specifically, he advised that he was there on behalf of Donald Moose's: 1. mother, Marietta Moose

2. sister, Louise Gotkin 3. brother-in-law, Albert Gotkin, and 4. daughter, Georgina Moose [4] It was noted that Donald Moose's other children, all under the age of 18, would be represented in this way as well. [5] As well, Jim Koch appeared on behalf of the Department of Justice and requested standing for his department's Civil LegalServices SOA, to represent the Corrections Division, namely, the Headingley Correctional Centre. Both parties were granted standing. [6] At that time, hearing dates for the Inquest were set for the last two weeks of January, 2013.

In May, 2012, at the request ofSaul Simmonds, those dates were changed to nine court days between April 2 and 12, 2013. [7] Nichole Watson appeared as counsel on behalf of three doctors at a second standing hearing, held on March 15, 2013. At thattime, I granted standing to Doctors Atwal, Waldman and Bowman, as a group. THE MOTION BEFORE THE COURT [8] On December 19, 2012, Saul Simmonds sent a letter to the Minister of Justice for the Province of Manitoba requesting fundingfor counsel on behalf of the Donald Moose family. That request was declined, by way of a letter to Saul Simmonds, on February 27,2013. C.

Lynn Romeo, the Director of Civil Legal Services SOA, Department of Justice for the Province of Manitoba, explained in thatletter that the Department's assessment was that the interests of the public and the interests of the Moose family appeared to be verysimilar.

As a result, she stated that, "Crown counsel as an independent, impartial officer of the Court, will be able to appropriately canvasthose relevant areas of concern to the family." Further correspondence was subsequently exchanged between her and Saul Simmonds, butnothing changed with respect to the Department's position on the funding request. [9] On March 22, 2013, the Moose family filed their motion in this Court, seeking the following relief: 1. An order stating that Crown counsel is in conflict and cannot represent the Applicant in this matter; and, 2.

An order granting funding to the Applicant with respect to legal fees for representation at the Inquest for Donald Moose. [10] Submissions on this motion began on April 2, 2013, which was to be the first day of hearing testimony at the Inquest. Themotion was adjourned for the filing of affidavits and written submissions and the hearing of the motion concluded with oral submissionson April 10, 2013. This is the Court's decision on that motion. IS CROWN COUNSEL IN A CONFLICT OF INTEREST?

The Moose Family's Position [11] The Moose family, in Louise Gotkin's affidavit, sworn on April 3, 2013, and by way of counsel's submissions, pointed out thatDonald Moose, in the months prior and at the time of his death, was in the custody of Corrections, a department of Manitoba Justice. Thesame Crown Attorney's office that prosecuted Donald Moose on his criminal charges which held him in custody, is the same CrownAttorney's office which is now Crown counsel for the Inquest into his death.

A branch of that Crown Attorney's office also representsthe Department of Justice, Corrections, at the Inquest. [12] Louise Gotkin, in her affidavit, set out her family's history of dealings with the Government of Manitoba and the reasons whyshe, other members of her family, and aboriginal people in general, are now distrustful of the criminal justice system: the Governmentresponsible to administer it and the individuals who work within the system.

As submitted by the family's counsel, the Government andthe Courts have long been aware of the issues relating to aboriginal people and the criminal justice system, yet the Supreme Court ofCanada has recently pointed out that, "In fact, statistics indicate that the over representation and alienation of Aboriginal peoples in thecriminal justice system has only worsened." (R. v. Ipeelee, 2012 SCC 13, [2012] 1SCR 433) [13] Louise Gotkin's affidavit provides evidence that the Moose family is a part of that alienation.

She noted that she was placed in aresidential school as a child, just as her mother had been, and that as an aboriginal woman who has lived on a reserve in the past, she hashad issues with trusting representatives of the Department of Justice. She also commented on the difficulties she had with Correctionswhen trying to obtain the release of her brother's property after his death.

As a result of her experiences, and with her understanding ofhow the criminal justice system in general has alienated aboriginal people, she believes that someone from the Crown Attorney's officecannot represent her interests and the interest of her family at the Inquest. [14] Of note is the fact that it is the Crown Attorney's office that the Moose family has an issue with.

It is not Marnie Johnston, theassigned Crown Attorney for the Inquest, that they have concerns about; there is no suggestion by Louise Gotkin or in counsel'ssubmissions, that Marnie Johnston ever represented the Crown with respect to Donald Moose's criminal charges or personally has aconflict in this inquest. THE ATTORNEY GENERAL'S ROLE & RESPONSIBILITIES [15] As has been noted by Huband, J.A. the Court of Appeal decision, R. v. W.R.D. (Man. C.A.), (MB CA),[1994] M.J.

No. 209, [1994] 5 W.W.R. 305, 92 Man.R. (2d) 276, 89 C.C.C. (3d) 474, the Attorney General wears more than one hat: ``The position of the Attorney General is not analogous to that of a private law firm which has encountered a conflict of interestproblem...The Attorney General is in a unique position, quite unlike that of a member of the private Bar. She is responsible for the

prosecution of criminal cases within this jurisdiction. She also represents the Government of Manitoba for forensic purposes in civilsuits.`` [16] Huband, J.A. then made the following observation about the role of the Attorney General: `` [N]o apprehension of bias arises out of the multiple responsibilities of the Attorney General in the conduct of civil and criminallitigation. It is not enough to simply suggest that conflicting duties imposed by legislation will create a perception of bias.

There is apresumption that the Attorney General will carry out her duties in good faith which is supported by the common law, legislation, policyand constitutional convention.`` [17] The multiple responsibilities of the Attorney General, in the context of this inquest, include representing the Department ofJustice, Corrections, as well being Crown counsel for the inquest. THE ROLE OF INQUEST COUNSEL [18] There are significant differences in the role of counsel appointed to inquests, depending on the jurisdiction and whether it is acoroner system or a medical examiner system in that jurisdiction.

Steel J.A. of the Court of Appeal explained this in her decision inHudson Bay Mining and Smelting Co. v. Cummings,

(2006) MBCA 98 (Hudson Bay #2). She then reviewed a number of sections in theFatality Inquiries Act and concluded that: ``....Crown counsel appointed under s. 27 of the FIA represents the Crown at an inquest, and the Crown at an inquest represents thepublic interest.

This would be in accord not only with the objectives of the FIA, but also other similar legislation across Canada.`` [19] A few paragraphs later, Steele J.A. explained how that role is to be performed: ``In the advancement of the administration of justice and the public interest, Crown counsel at an inquest should be impartial and neutral.He performs a public duty which requires him to ensure that all available relevant evidence is presented in a fair, impartial and objectivemanner. The court, in the case of Cronkwright Transport Ltd. v. Porter, [1983] O.J.

No. 558 (H.C.J) (QL), commented that "[i]t is notthe duty of the Crown at an inquest to have an adversary position (at para. 8). This concept is reinforced in The Honourable Mr. JusticeT.

David Marshall, Canadian Law of Inquests, 2d ed. (Toronto: Carswell, 1991), when the author states (at p. 99): ...[T]he mandate of the Attorney-General, when the Crown is not a party and there is no lis inter partes at an inquest, is only to preservethe general integrity of the law and the administration of justice.`` [20] It is in the context of understanding the role and responsibilities of the Attorney General and the role of Crown counsel for aninquest, that the question of whether there is a conflict of interest here must be analyzed.

As has been noted earlier, it is not MarnieJohnston that the family suggests is in a conflict of interest, but the whole of the Crown's office. THE TEST FOR A CONFLICT OF INTEREST [21] What test is to be applied for a conflict of interest or an appearance of conflict of interest? While there appear to be no cases thatdirectly deal with the question of a conflict of interest concerning Crown counsel at an inquest, cases that have dealt with conflict ofinterest in the civil and criminal cases are of some assistance in setting out the general principle. [22] The Supreme Court of Canada, in Martin v.

MacDonald Estate (Gray), (SCC), [1990] 3SCR 1235, set out thetest to be applied when determining if there is a disqualifying conflict of interest in the context of the legal profession. In that particularcase the issue arose when a lawyer from a law firm involved in one side of a civil lawsuit began employment with the law firmrepresenting the other side. She had been actively involved in the case in question. Sopinka, J. reviewed the law in a number ofjurisdictions, including Canada, and noted that two basic approaches exist: (1) the probability of real mischief and (2) the possibility ofreal mischief.

During his review of the law in other jurisdictions, he noted: ``Nevertheless it is evident from this review of authorities that the clear trend is in favor of a stricter test. This trend is the product of astrong policy in favor of ensuring that not only that there be no actual conflict but that there be no appearance of conflict.`` [23] In writing on behalf of the majority of four justices, Sopinka J. then concluded that: ``...the test must be such that the public, represented by the reasonably – informed person, would be satisfied that no use of confidentialinformation would occur.

That, in my opinion, is the overriding policy that applies and must inform the court in answering the question:is there a disqualifying conflict of interest?`` [24] The minority of three Justices would have imposed an even stricter test.

Cory J., in writing on behalf of the three, made thefollowing observation: ``At this time, when the work of the courts is having a very significant impact upon the lives and affairs of all Canadians, it isfundamentally important that justice not only be done, but appear to be done in the eyes of the public.`` [25] This test has been applied in the criminal context in two recent cases. In HMQ v.

Canadian Transit Company, 2010 ONSC 4383,the MacDonald Estate test for conflict of interest is adapted as follows: ``Thus the test is whether a reasonably informed member of the public informed of the facts would be satisfied that no confidentialinformation had been obtained by a lawyer acting against the client.`` [26] In R. v. Henderson, [2012] M.J.

No. 344, 2012 MBCA 93, 284 Man.R. (2d) 164, 2012 CarswellMan 573, [2013] 2 W.W.R.457, Chartier, J.A., as he then was, applied the Macdonald Estate test to a situation where a Crown Attorney involved in a prosecutionbecame aware of the fact that she had long ago briefly acted for this accused. He wrote the following:

``The [trial] judge correctly found that, while the public interest in completing the trial of the matter was significant, the prime concernwas the need for public confidence in fairness of the trial. See R. v. Robillard reflex, (1986), 14 O.A.C. 314, and R. v. M.Q., 2012ONCA 1224 , 2012 ONCA 224 at para. 33, 110 O.R. (3d) 276. The judge in this case stated that: The overriding concern is trial fairness. The accused argues that it is also the perception of fairness, but I believe that: the issue of theperception of fairness must be considered (sic), in light of what is known at this stage.

I am confident that a reasonable person, fullyinformed of all of the facts that are before me, would not conclude that the trial has suddenly become an unfair proceeding based on Ms.Dewar's revelation. She has no recall of the earlier representation of the accused. The representation was minor at best.

She did not playa significant role in the accused’ [sic] prior matters and he himself has not alleged that he gave her confidential information which he isafraid she will use.`` [27] Based on the test as set out in the Macdonald Estate case and as applied in these criminal cases, I find that the appropriate test toapply in an inquest is as follows:

a) Would a reasonably informed member of the public, aware of the role of Crown counsel in an inquest, conclude thatthere is a conflict, or appearance of conflict, in the present case? [28] In determining the answer to that question, one must keep in mind that the inquest is a non-adversarial process; Crown counselassigned to the inquest, and any other parties – or their counsel – who have standing are there to assist the inquest judge in answering thetwo questions which form the mandate of the inquest: 1. What are the circumstances relating to Donald Moose’s death; and 2.

What, if anything, can be done to prevent similar deaths in the future? [29] Inquest Counsel are expected to fulfill their role in a professional manner, to the best of their abilities. It is important toremember that they are not counsel for the family of the deceased; however, they are expected to assist the inquest judge by raising all ofthe facts surrounding the death of the person who is the subject of the inquest. Here the family interest and the public interest are reallyone and the same - to find out what led up to this person dying in these circumstances. As stated by Kroft J.A., in Head v.

Trudel, (1988) (MB KB), 54 Man. R. 145 (affirmed (1989) 57 Man. R. (2d) 153): ``The FIA and an inquest conducted thereunder is not so much the protection of private rights as it is the furtherance of the publicinterest. That is, the community has a right to be informed about the circumstances surrounding sudden, suspicious or unexplaineddeaths.`` [30] The family has been encouraged to meet with Crown counsel and to raise their areas of concern. Crown counsel is expected toact with integrity and in a professional manner; any relevant questions the family may have can be asked through Crown counsel.

If thedeath of Donald Moose had anything at all to do with his aboriginal heritage, or the overrepresentation of aboriginals in the correctionssystem, Crown counsel is expected to put that evidence before the court. Of note, of course, is the fact that I have already given thefamily standing at the inquest. Their representative, whether or not he or she is legal counsel for them, can also ask questions.

Theinquest judge is not to make any findings of culpability, however, the second question the inquest judge will answer includes making anyrecommendations that could reduce the likelihood of a similar death happening in the future; this will require looking at the question ofwhat could have or should have been done differently in this death. [31] It is difficult to imagine how a member of the public, aware of all of this, that is, the mandate of the inquest and the role andresponsibility of the Crown attorney as Inquest counsel, could conclude that the Crown Attorney’s office, and Marnie Johnston inparticular, have a conflict of interest, or appearance of conflict, in this inquest.

The test is not whether Louise Gotkin, members ofDonald Moose’s family, or the aboriginal community in general, believe that there is a conflict of interest or perceive the appearance ofconflict. It is the general public at large. [32] The Supreme Court of Canada in R. v. Gladue, (SCC), [1999] 1 SCR 688, and in R. v. Ipeelee has detailed inlength the history, complete with statistics, of the overrepresentation of aboriginal people in the criminal justice system in Canada. In R.v.

Gladue, for example, the Court stated: ``Not surprisingly, the excessive imprisonment of aboriginal people is only the tip of the iceberg insofar as the estrangement of theaboriginal peoples from the Canadian criminal justice system is concerned. Aboriginal people are overrepresented in virtually all aspectsof the system. As this court recently noted in R. v.

Williams, (SCC), [1998] 1 S.C.R. 1128, at para. 58, there iswidespread bias against aboriginal people within Canada and “[t]here is evidence that this widespread racism has translated intosystematic discrimination in the criminal justice system” (para. 61).`` [33] That estrangement by aboriginal people has clearly carried over into other areas of Canadian law. Here, the Moose family feelsthe impact of that sad truth in the context of an inquest into the death of a loved member of their family.

However, what they personallyfeel does not put Marnie Johnston, or the Crown Attorney’s office she is employed by, into a conflict of interest in the task of assistingme in conducting this inquest. [34] There are inquests where counsel outside of the Crown Attorney’s office, are retained to be counsel at an inquest. Huband, J.A.commented on what, if any difference this made when dealing with the question of conflict of interest in a civil/criminal context, in R. v.Doucet, (MB CA), [1994] M.J.

No. 209, where he stated: ``The Attorney General is in a unique position, quite unlike that of a member of the private Bar. She is responsible for the prosecution ofcriminal cases within this jurisdiction. She also represents the Government of Manitoba for forensic purposes in civil suits. It is noanswer, beyond political window dressing, to retain outside counsel. Whoever her agents may be, whether permanent staff or outsidespecial appointments, they must function under the Attorney General's direction.

And the Attorney General must be allowed to fulfill theresponsibilities of that office unless and until circumstances arise which would compel the Court to interrupt the fulfillment of those

responsibilities.`` [35] There are some circumstances where the appointment of outside counsel will be more than “window dressing” and will helpresolve the issue of a conflict of interest or the appearance of conflict. In hindsight, even if the appointment of outside counsel to beCrown counsel at this inquest had not satisfied the conflict of interest issue, it may have alleviated some of the concerns expressed byLouise Gotkin and the Moose family.

b) Does The Fatality Inquiries Act give the inquest judge the authority to grant funding for legal representation? [36] The Provincial Court of Manitoba is legislated to be the court responsible for inquests ordered pursuant to the FIA. There is noexpress authority under that statute for an inquest judge to compel payment of any legal fees. This is in contrast to a witness fee orallowance which is allowed for in section 30 (4) of the FIA. That

section directs us to another Act which sets out and regulates thepayments of such fees and allowances. [37] The rules of statutory

interpretation include the “implied exclusion rule”. Applying the rule in this context, it is quite clear inreading the statute as a whole that the FIA’s total silence on the question of having an inquest court order the funding of counsel wasintentional. [38] The B.C. case of Berg Estate v. British Columbia,

(2006) BCCA 146, made it clear that in their jurisdiction, The Coroner’s Act,in its silence on the issue of compelling the payment of legal fees, did not permit a judge or coroner to compel such a payment by theprovince. Just because a person – or persons - could be granted standing at an inquest did not mean that the Crown would have to pay fortheir counsel to represent them. This decision was appealed to the Supreme Court of Canada and leave was denied. While theirCoroner’s Act is somewhat different, the decision is instructive when looking at the FIA.

As noted by Wyant, J of our court, in the BrianLloyd Sinclair Inquest proceedings, “....I do not have the jurisdiction to make orders with respect to the sufficiency or amount of fundingto counsel acting for the Sinclair family. That jurisdiction is.... an administrative one.” (Page 1 of the Transcript of Proceedings, February9, 2010)

c) Do the implied powers of an Inquest Judge alter this? [39] Freedman J.A. in Hudson Bay Mining and Smelting Co. v. Cummings, [2004] M.J. No. 425 (Hudson Bay #1), concluded that aninquest judge will have powers beyond those expressly set out in the FIA: ``... not all facilitative powers are expressed; they may be implied, if they are necessarily incidental to the jurisdiction of the judge. Thetask in any particular case, once having identified the particular power sought to be exercised, is to ascertain whether that power is trulynecessarily incidental to the judge’s jurisdiction.

Or to revert to the words of MacLachlan C.J.C. in 974649, is the power "required as amatter of practical necessity for the court or tribunal to accomplish its purpose”. (at para. 71) The Inquest judge is mandated to investigate the cause of death and to make a report which may recommend changes in programs,policies and practices. He or she may recommend changes in the law. The judge’s mandate is broad indeed.`` [40] Freedman J.A. also went on to say that: ``Unlike judges of a superior Court, the judges of the Provincial Court have only such jurisdiction as is conferred on them by statute. But,as the

article by Dockray makes clear, the judges of such a court have powers intrinsic to all judges when they carry out their functions,and specifically, all powers which are necessarily incidental to carrying out of their functions. These are powers ancillary to thejurisdiction set out in the statute, they are powers found by necessary implication in the legislation . . . Since the ultimate goal of theinquest judge includes the making of recommendations in a number of areas, providing the judge with all the tools that might bereasonably necessary to do the job accords well with the functional and structural approach to assessing jurisdiction. See also Sharp J.A.,in chambers, in G. (

N) v. Upper Canada College, (2004), (ON CA), 70 O.R. (3d) 312 (C.A.): “statutory courts haveby necessary implication the power to control their own process and the procedural tools to ensure the effective and efficient dispositionof matters falling within their competence” (at para. 10).`` [41] This Court has been asked to make an order for funding to be provided for counsel for the Donald Moose family. This is clearlysomething more than being asked to make an order for disclosure, as was the case in Hudson Bay #1, the Manitoba Court of Appealdecision which has just been quoted from.

The FIA specifies that individuals or groups of individuals can request that they be grantedstanding at an inquest. Setting up a procedure on how to hear such requests and respond to them is an example of how this court cancontrol its own processes and ensure that matters are efficiently dealt with.

Ordering the Government of Manitoba to provide funding forlegal representation is much more than that, and it is difficult to see how this could be “required as a matter of practical necessity for thiscourt... to accomplish its purpose”, when there is already Crown counsel in place to get the witnesses to court as needed, to put forwardthe evidence, and to put the family’s concerns forward at the inquest. There is no express statutory authority for making an order of thissort; as well, the implied powers of an inquest judge do not extend this far.

d) Should the Court order the appointment of counsel? [42] Wyant J. of this court, in the Brian Lloyd Sinclair Inquest stated: ``I am of the view that a judge of the Provincial Court, sitting as an inquest judge does have the power to order the appointment ofcounsel and, flowing from that, the government, in those circumstances, would have the responsibility to fund or find and fund counsel.`` [43] He also went on to say that: ``I believe the that the issue of appointment of counsel is within the intrinsic jurisdiction of this court in those cases where an inquestjudge feels it is imperative, interest of justice that counsel represent the deceased’s family and when no such counsel has or could beretained by that family.``

[ 44 ] This decision predates the release of the Government of Manitoba's policy for responding to “Funding Requests related to Inquests ordered under The Fatality Inquiries Act ”. There is now a policy in for family member to request funding for legal counsel and a procedure to follow, which includes the precondition that a family member requesting a contribution pursuant to this policy must first have been granted standing at the Inquest.

At this point in time, taking the additional step of “appointing counsel” for a family member adds nothing to this process; there is a policy in place which outlines the procedure of getting standing at an inquest and then applying for funding for legal counsel. Making an ‘appointment of counsel” at this stage could be seen as interfering with that process.

CONCLUSION [ 45 ] While this Court has ruled that there is no conflict of interest or appearance of conflict, and found that there is no authority for this Court to make an order granting funding for legal representation for the Moose family, some observations are in order. Our overcrowded jails are filled with a disproportionate number of aboriginal people. Donald Moose was one of them and he died while in custody. His family had requested funding from the Department of Justice, under their new Policy for funding for legal representation at an inquest.

That request was denied on the basis that the public interest and the interest of the Moose family are very similar. While that may be a sound rational conclusion, it does nothing to satisfy the estrangement the Moose family – and other aboriginal people – and how they feel in relation to the justice system.

Perhaps there are some important questions that counsel, representing the interests of the Moose family – and aboriginal people in particular – can put forward at this inquest that would not occur to Crown counsel and would not be pointed out to her by the Moose family members who have been reluctant to confide in her, or perhaps their counsel will be able to put forward some recommendations no one else will think of. [ 46 ] As Sinclair J. in the Pediatric Cardiac Surgery Inquest report observed: ``The role of all counsel for the families was of fundamental importance in these proceedings.

While both counsel for the Inquest performed their tasks admirably, their role was not that of advocate for the families, but to bring forward the evidence as best they could.

Given the active role of counsel for the other parties under scrutiny, having counsel whose sole responsibility was that of advocating for the families was essential for a fair and proper proceeding.`` [ 47 ] There is a financial cost in having the Government pay for legal costs of the Moose family; however, there may be a greater cost in not doing so. [ 48 ] In the Donald Lorne Miles Inquest report, Swail, J., urged the Government of Manitoba to pay for legal representation for the family members at that inquest.

Similarly, I ask that the Department of Justice reconsider their denial of funding for legal representation for the Donald Moose family in this inquest. “ORIGINAL SIGNED BY:” HEINRICHS, P.J.