2015 MBPC 49, 2015 MBPC 49

Cite: 2015 MBPC 49 THE PROVINCIAL COURT OF MANITOBA IN THE MATTER OF: The Fatality Inquiries Act AND IN THE MATTER OF: Craig Vincent McDougall, Deceased Brian McDougall, Applicant ) ) ) Corey Shefman, for Brian McDougall ) - and – ) ) The Attorney General for Manitoba, Respondent ) ) ) ) ) ) Jim Koch, for Legal Services Branch Manitoba Justice Kim Carswell, for Winnipeg Police Service ) ) ) Conflict Decision delivered: October 6, 2015 KRAHN, A.C.J.

Is There a Reasonable Apprehension of Bias Based on the Close Working Relationship between Manitoba Prosecutions and the Winnipeg Police Service ? [ 1 ] On August 2, 2008, members of the Winnipeg Police Service responded to a request for assistance at an address on Simcoe Street in Winnipeg. They confronted Craig Vincent McDougall which ended in Mr. McDougall being shot and killed by the police. I am presiding over the Inquest looking into the death of Craig McDougall. [ 2 ] On August 7, 2015, I heard a motion made by Brian McDougall, father of Craig McDougall. Mr.

Brian McDougall sought an order declaring counsel from the Manitoba Prosecutions Service to be in a real or perceived conflict of interest in this proceeding because of a reasonable apprehension of bias due to the Crown’s close working relationship with the Winnipeg Police Service. As a result, he asked the court to disqualify Crown counsel employed by Manitoba Prosecutions from acting as counsel at this Inquest. Mr.

McDougall would not be opposed to counsel employed by the Attorney General from outside the prosecution service, such as counsel from Civil Legal Services being appointed to act as Crown counsel at this Inquest. [ 3 ] I have decided that Crown counsel from Manitoba Prosecutions is not in a real or perceived conflict of interest due to a reasonable apprehension of bias. There is therefore no need to disqualify them as counsel at the Inquest. These are the reasons for my decision. [ 4 ] The Inquest into this death is mandatory. Section 19(3)(

b) of the Fatality Inquiries Act ( FIA ) says the Chief Medical Examiner must direct a provincial judge to hold an Inquest where “a person died as a result of

an act or omission of a peace officer in the course of duty.” In July 2013 the Chief Medical Examiner directed an Inquest be held into the circumstances surrounding the death of Craig Vincent McDougall and to determine what, if anything, can be done to prevent similar deaths from occurring in the future.

[5] The family of Mr. McDougall and the Winnipeg Police Service have both been granted standing at this Inquest pursuant to s.28 of the FIA. The family of Mr. McDougall, including Brian McDougall, are represented by Corey B. Shefman and Keith D. Lentonon a pro bono basis. The Winnipeg Police Service is represented by Kim Carswell. Ms. Carswell was present and made limitedsubmissions at the hearing of this motion but otherwise does not take a position on Mr. McDougall’s motion. Deann Sahulka and DavidIreland have been assigned to represent the Crown at this Inquest pursuant to

section 27 of the FIA. Ms. Sahulka and Mr. Ireland areboth employed as Crown attorneys with Manitoba Prosecutions. The Test for Reasonable Apprehension of Bias [6] It is not alleged that there is any evidence of actual bias on the part of the two Crown attorneys who have been assigned toparticipate in this Inquest. The parties are agreed that the test for whether a reasonable apprehension of bias exists is that which was setout by the Supreme Court of Canada in Roberts v. R., 2003 SCC 45, [2003] S.C.R. 259, at para. 74: . . .

What would an informed person, viewing the matter realistically and practically – and having thought the matter through, conclude?. . . [7] This test was admittedly in relation to a reasonable apprehension of bias by a judge, but counsel agreed that the same testapplies to the issue of whether there is a reasonable apprehension of bias by the Crown. [8] Mr. Shefman emphasized the importance that “justice should not only be seen to be done, but should manifestly andundoubtedly be seen to be done” (R. v. Justices of Sussex (1923), [1924] 1 K.B. 256 (Eng. K.B.), at p. 259 as quoted in Roberts at para.66).

The Supreme Court of Canada recognized this maxim but emphasized that “the threshold for a finding of real or perceived bias ishigh.” R. v. R.D.S. (SCC), [1997] 3 S.C.R. 484 at para. 113. The Court said the grounds for apprehension must besubstantial and that mere suspicion is not enough (at para. 112). Brian McDougall’s Position [9] Craig Vincent McDougall and his family are from the Wasagamack First Nation. Mr.

Brian McDougall’s affidavit sets outthe basis for his opposition to a Crown attorney from Manitoba Prosecutions representing the Crown at this inquest: I and many people in my community believe that the criminal justice system is often treated as a factory, with Aboriginal people beingescorted through the system. Crown Attorneys play an integral

part in that system and are seen by myself and members of mycommunity as being complicit in the ongoing institutional discrimination against Aboriginal peoples. (at para. 16) Brian McDougall further attests: a. The police officers whom the Crown Attorney will be examining may be witnesses for the Prosecution in past, current or futurecriminal prosecutions, and the Crown Attorney may be influenced, consciously or subconsciously, by the knowledge that thecooperation of those police officers may be required. b. Crown Attorneys work on a daily basis with police officers.

Even if the Crown Attorney were not influenced, consciously orsubconsciously, by that relationship, they would still appear to be biased. c.

As a member of the public, an Aboriginal person and the father of the deceased, I believe that the appearance of bias which wouldbe present at this Inquest if a Crown Attorney participates as Inquest Counsel would taint the entire Inquest and call its results intoquestion. (at para. 20 of his affidavit) Who is the reasonable person? [10] The test to ascertain whether a reasonable apprehension of bias exists requires that the issue be looked at from the perspectiveof the reasonable person, properly informed.

Counsel for Brian McDougall argued that the reasonable person is a member of the publicwho is not a lawyer, a judge or a police officer. He argued that the public gets their perception of the relationship between the Crownand the police from the news media and popular culture such as shows like Law and Order, where police and prosecutors are depicted asworking closely together.

He argued that the informed person does not make his decision based on case law, statute or the nature oflegal entities. [11] I agree that the reasonable person does not have to be a person who is knowledgeable about the intricacies of our legal system.

But that same reasonable person cannot be operating based on misperceptions that might arise from the media or popular culture. The reasonable person would not rely on an American crime drama about the role between prosecutors and police because that is a fictional, dramatic depiction that is based on a legal system in another country – which is, on its own, a poor basis for informing oneself. [ 12 ] In my view, an important role for the criminal courts to play in this province is to educate the public on the applicable legal principles and considerations when an issue is raised.

Some of the ways this can be done are through judicial decisions, responsible reporting by the media, an open court process where members of the public can attend court and even the occasional broadcast of a judicial proceeding. [ 13 ] The reasonable person test requires the judge to imbue this hypothetical person with the knowledge of certain foundational legal principles in order to apply the test that has been set out by the Supreme Court.

The reasonable person, properly informed would have an understanding of the purpose of an Inquest, the role of an Inquest judge, the role of Crown counsel at an Inquest, the role of parties with standing at an Inquest and the experience of Aboriginal people within the justice system. The Purpose of an Inquest [ 14 ] In the Canadian Law of Inquests , 3 rd Edition, (Toronto: Thomson Canada Limited), Justice T.

David Marshall, the author of the text, at page 29 described the function of an Inquest: ... 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 guarantees relating to human life are duly respected. [ 15 ] In Hudson Bay Mining and Smelting Co. v.

Cummings, 2006 MBCA 98 , 208 Man.R. (2d) 75, Justice Steele, after reviewing the history and differences between medical examiner systems and coroner systems, noted that: All regimes clearly support the inquest as being an independent, fact-finding inquiry. The judges and coroners must all be impartial and independent, and they are charged with gathering the relevant facts surrounding the death of the deceased. All of the regimes also support the idea of the inquest being in the public interest.

This is reflected in the provisions such as those which permit the coroner or judge to make recommendations to prevent similar deaths in the future, which mandate a public inquest, which give interested persons or groups standing and which permit the Attorney General or Crown to be represented. (at para. 39, footnotes omitted) [ 16 ] It is significant to note that the FIA prohibits any findings or opinions regarding culpability or assigning of blame for the death (see s. 14(2), 21, 33(3)).

But as emphasized by Justice Steele that does not mean a judge should “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.” ( Hudson Bay Mining and Smelting Co. 2006, at para. 41). [ 17 ] It can be seen that the Inquest is a fact-gathering, non-adversarial proceeding which is carried out in the public interest.

The Role of the Judge at an Inquest [ 18 ] The role of the judge at an Inquest has been described as an inquisitorial one ( Hudson Bay Mining and Smelting Co. 2006, and the authorities cited therein at paragraphs 44 – 47; Awasis Agency of Northern Manitoba v. Allen , 2013 MBQB 47 at para. 35 ). This conclusion is reflected in the authority and powers that are granted to an Inquest judge who can: 1.) grant standing to any party who is “substantially and directly interested” in the inquest.

This allows that party to attend in person or with counsel to ask questions and cross-examine witnesses, sec. 28(1) FIA ; 2.) limit examination or cross-examination of any witness, sec. 28(2) FIA ; 3.) issue subpoenas requiring the attendance of a witness, sec, 30(1) FIA ; 4.) direct that certain portions of the inquest be held in camera , sec 31 FIA ; 5.) order production or disclosure of documents or information and any other powers necessarily incidental to the role of an inquest judge ( Hudson Bay Mining and Smelting Co. Ltd. v. The Honourable Judge Cummings 2004 MBCA 182 , 190 Man.

R. (2e) 231 , at para. 34 ); 6.) set the scope of the inquest in order to be able to fill the court’s mandate to make any recommendations regarding changes in policies

or procedures which might prevent similar deaths from occurring in the future (Awasis at paras. 33 and 34). [19] These powers and authorities are granted to an Inquest judge so that the judge can fulfill the requirements of

section 33 of theFIA.

The FIA requires the Inquest judge to prepare a written report for the minister that sets out: i.) when, where and by what means Craig McDougall died, ii.) the cause of death, iii.) the material circumstances of the death and iv.) recommend changes in programs, policies or practices of the government or public agencies or institutions or in the law of theProvince where such changes would reduce the likelihood of similar deaths. [20] The reasonable, informed person would have to understand these powers of the Inquest judge in order to make a decision onwhether a reasonable apprehension of bias by a Crown attorney exists.

It is important to understand that the role of the Inquest judge isvery different from the judge presiding over a criminal trial. The criminal trial judge would not be involved in deciding which witnesseswould be subpoenaed. Interested third parties would have no direct involvement in a criminal trial. An Inquest judge is provided with agreat deal of material in advance of the Inquest so that the judge has a much more active role in directing the scope of the proceedings inorder to fulfil its mandate. The Role of Crown Counsel at an Inquest [21]

Section 27 of the FIA provides: A Crown attorney or other officer or counsel appointed by the minister to act for the Crown may attend an inquest and may examinewitnesses called at the inquest. [22] Brian McDougall argues that although this provision does not authorize the Crown attorney to be Counsel to the Inquest orInquest counsel this is the practice that has developed (Brian McDougall’s affidavit, paragraph 6). As such Crown Counsel advises theJudge, recommends to the Judge which witnesses should testify and provides guidance to the Court with respect to the process, scope andcontent of the Inquest (Brian McDougall’s affidavit, para. 11) [23] Admittedly,

section 27 provides little guidance as to the Crown’s role at an Inquest. But the role of the Crown has beenelaborated on by the Manitoba Court of Appeal in Hudson Bay Mining and Smelting Co. 2006. It is noteworthy that in that case,independent counsel (from outside Manitoba Prosecutions) had been appointed to represent the Attorney General of Manitoba. Acting asCrown counsel, he had interviewed potential witnesses and prepared transcripts of those interviews. He refused to disclose thosetranscripts arguing they were protected by litigation privilege.

The Court of Appeal held that the Crown was wrong to treat his role as anadversarial one such that litigation privilege could apply. Justice Steele writing for the Appeal Court described the Crown’s role asfollows: . . .While Crown counsel is not counsel to the inquest judge, neither does he represent a specific government department or narrowgovernment interests. Crown counsel represents the Attorney General, who, in turn, represents the public interest.

As such, his goal isto aid in the search for truth. . . (at para. 5, emphasis added) [24] And later, after noting that the Crown Attorney’s Act sets out some of the general duties of a Crown attorney, Justice Steeleexplained: ...the role of a Crown attorney is generally to assist in the administration of justice in the province. Thus, the function of Crown Counselat an inquest would be to assist in the administration of justice... . . .In the advancement of the administration of justice and the public interest, Crown counsel at an inquest should be impartial andneutral.

He performs a public duty which requires him to ensure that all available relevant evidence is presented in a fair, impartial andobjective manner. (at paras. 55 & 57). ...there are strong expectations that Crown counsel, as the primary advocate of the public interest, will elicit the truth by presentingrelevant materials in a disinterested, dispassionate, neutral and non-adversarial way. . .(at para. 97). [25] In R. v. W.R.D. (MB CA), [1994] M.J. No. 209, 92 Man. R. (2e) 276 the Manitoba Court of Appeal wasfaced with an allegation that the Crown was in conflict.

A Crown attorney was prosecuting an individual for assault and gross indecencybased on the evidence of A.J. At the same time, A.J. had filed a civil suit against the government arguing that the government wasvicariously liable for the actions of a social worker who failed to protect her. The civil suit was defended by Crown counsel employedby Civil Legal Services. The Court of Appeal overturned the trial decision which had held that the Crown attorney was in a conflict ofinterest and independent counsel should be appointed from outside government employees. The Court accepted that:

…no 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 accept that conflicting duties imposed by legislation will create a perception of bias. There is [a]presumption that the Attorney General will carry out her duties in good faith which is supported by the common law, legislation, policyand constitutional convention.” (at para. 14) The Supreme Court of Canada affirmed this decision on appeal, R. v.

W.R.D. (SCC), [1995] 1 S.C.R. 758. [26] This provides clear guidance and exposition of the role of Crown counsel who is present at the inquest to represent the publicinterest and ensure that the truth comes out. Crown counsel, just as any other interested party can, may make submissions,recommendations or suggestions as to which witnesses will be called in order to ascertain the truth surrounding the materialcircumstances of Mr. Craig McDougall’s death. It is incorrect to understand that the Crown gives legal advice to the Inquest judge or isInquest counsel.

It is true that the Crown attorney takes the lead in terms of ensuring the appropriate witnesses are subpoenaed andusually conducts the direct examination of the witness. But as noted by Justice Steele, the Crown attorney has a statutory duty to assistin the administration of justice and the facilitative role the Crown attorney takes in an Inquest is an example of carrying out that duty. [27] It is true that Crown attorneys frequently call police officers as witnesses in the prosecution of criminal offences.

It is even fairto say that in many cases Crown attorneys and police officers may share a perspective which favours law and order. But it must also beremembered that this is a stereotype and that decisions regarding the reasonable apprehension of bias must be made based on the specificfacts before the Court and not based on broad classifications of professional roles or perspectives. [28] It is important to know that Crown attorneys in conducting a criminal trial have the responsibility to assess their caseindependent of the views and opinions that might be offered by police officers who are involved in the case.

In a criminal trial, it is theCrown who has the discretion to proceed with a prosecution or stay proceedings. In the criminal context, the role of the Crown is distinctand independent from the police. But as already described above, the Crown has a very different role in an Inquest. And as noted inW.R.D., the fact that the Crown has multiple roles does not automatically attract the conclusion that there is a reasonable apprehension ofbias. [29] The role of the Crown attorney at an Inquest is an important factor that would have to be considered by the reasonable,informed person.

The Role of the Parties with Standing at an Inquest [30] In Hudson Bay Mining and Smelting Co. 2006 the Court held that interested parties at an Inquest are entitled to receive “allrelevant, non-privileged materials in the possession of Crown counsel” (at para. 100).

The Court noted that full disclosure assists in thesearch for truth which furthers the public interest. [31] Justice Steele noted that “although the Manitoba legislation is silent on this matter, practice is clear that counsel can makesubmissions to the judge on legal and procedural matters.” (Hudson Bay Mining and Smelting Co. 2006 at para. 96). [32] Counsel for the Winnipeg Police Service has been granted standing at this Inquest.

I conclude that the police officers who willbe called to testify and the police service more broadly have their own perspective to advance which cannot be left only to the Crownattorneys who have been appointed by the Attorney General. Ms. Carswell pointed out that it is common for police officers and Crownattorneys to disagree on the evidence that ought to be called during a criminal trial or even the laying or staying of charges. This speaksagainst the submission made by Mr.

Shefman that the “Crown Prosecutors [are] tools of the colonial Crown operating in cooperation andpartnership with the police.” (para. 25, Motion Brief of Brian McDougall). The role that is ascribed to the Crown by Mr. Shefman is notin keeping with the ethical and professional role of Crown counsel as described above. [33] The ability for interested parties to be granted standing at an inquest allows their individualized perspectives, experience andknowledge to be applied in the examination of the evidence.

In that fashion, the participation of Brian McDougall and his familybroadens the viewpoints that can be advanced at this Inquest. The Experience of Aboriginal People in the Justice System [34] The reasonable person must be an informed person. Any informed person in this country will now know that Aboriginal peoplehave been tremendously and tragically impacted by colonization and residential schools. These impacts have been outlined by theSupreme Court of Canada and in many commissions, inquiries and reports, see those listed and considered in R. v. Gladue (SCC), [1999] S.C.J. No. 19 and R. v.

Ipeelee 2012 SCC 13. [2012] 1 S.C.R. 433. [35] Mr. Brian McDougall has attached at Tab B of his affidavit the report of Jonathan Rudin entitled “Aboriginal Peoples and theCriminal Justice System”. This report was prepared for the Commissioner of the Ipperwash Inquiry. Mr. Rudin notes that Aboriginalover-representation in the criminal justice system is a crisis in the Canadian justice system. [36] So how does the experience of Aboriginal people fit into the informed, reasonable person test which I must consider in order toestablish whether a reasonable apprehension of bias exists in this case?

In R.D.S. the Supreme Court said that “the reasonable personshould also be taken to be aware of the social reality that forms the background to a particular case, such as societal awareness andacknowledgement of the prevalence of racism or gender bias in a particular community.” (at para. 111) [37] Mr. McDougall describes his position as follows in his motion’s brief: 22. Viewed “realistically and practically”, the apprehension of bias of the Crown Prosecutors cannot be considered through the lens ofthe majority, but through the realistic, particular lens of Mr. McDougall’s experience as an Aboriginal person.

23. To consider the apprehension of bias without regard to the particular circumstances of the person apprehending the bias would have effectively raise (sic) the burden of proof for apprehension of bias to the higher onus of demonstrating actual bias. 25. Mr. McDougall and his community view the Crown Prosecutors as inherently adversarial to their own interests and understand Crown Prosecutors to be tools of the colonial Crown operating in cooperation and partnership with the police. [ 38 ] Mr.

McDougall further deposed in his affidavit at para. 18: I believe it to be factually true that Crown attorneys are not targeting Aboriginal peoples, we nevertheless feel victimized by them, given their primary adversarial role. [ 39 ] The difficulty I have with this position is it fails to understand the special inquisitorial nature of the Inquest, the role of the Inquest judge and the separate and distinct role of Crown counsel as impartial counsel who has a duty to call the evidence that will help seek out the truth. The Crown does not have an adversarial role in the Inquest.

The purpose of an Inquest is a fact-finding exercise. This fact-finding is important to begin to address the mistrust of police and the criminal justice system that Mr. Brian McDougall deposes to in his affidavit. It is my hope that Mr. Brian McDougall’s engagement in the Inquest process by being represented by counsel who can ask questions, cross-examine witnesses, suggest witnesses who the Court should hear from and make submissions will assist the Court in its fact gathering in the process of uncovering the material circumstances that led to Mr. Craig McDougall’s death. [ 40 ] In The Moose Family v.

The Attorney General for Manitoba and Provincial Court Judge Heinrichs , 2013 MBPC 35 , [2013] M.J. No. 127, Judge Heinrichs considered a motion by the Moose family (family of the deceased) which asked the Court to find that there was a reasonable apprehension of bias given that Donald Moose died in the custody of Corrections Services, a different division of Manitoba Justice, so as to justify the funding of counsel for the Moose family. Similar arguments about the experience of Aboriginal people were made in that case.

Judge Heinrichs found the Crown was not in a conflict of interest and could adequately represent the public interest which significantly overlapped the interests of the Moose family. [ 41 ] Mr. Shefman urged me to find that Judge Heinrichs made an error of law when he applied an objective test rather than a subjective test. He argued that the test posited by Judge Heinrichs excluded all Aboriginal people. Setting aside issues of judicial comity, I have not been persuaded that Judge Heinrichs’ decision was wrong in law.

The Supreme Court of Canada in Roberts clearly held that the test was an objective test: . . .The reasonable person is asked to imagine the decision-maker’s state of mind, albeit viewed from the objective perspective of the reasonable person.

The reasonable person is asked to imagine the decision-maker’s state of mind, under the circumstances. . .(para. 67). [ 42 ] In R.D.S. the Supreme Court described the reasonable person test as having a “two-fold objective element: the person considering the alleged bias must be reasonable, and the apprehension of bias itself must also be reasonable in the circumstances of the case.” (at para. 111) [ 43 ] I understand Judge Heinrichs to have rejected the idea that the personalized or subjective perspective of the Moose family was determinative of the perceived reasonable apprehension of bias.

I do not understand it as excluding all Aboriginal people from the reasonable person test. [ 44 ] The reasonable, informed person would understand the estrangement of Aboriginal people in the justice system based on years of government policies of assimilation and colonization. But the replacement of the Crown attorneys with independent counsel who is required to fulfil the same role does not address the concerns raised by Mr. McDougall.

As Justice Huband said, “Whoever her agents may be, whether her permanent staff or outside special appointments, they must function under the Attorney General’s direction.” ( W.R.D . at para. 13). Does the Crown’s Policy regarding the Appointment of Independent Counsel demonstrate a reasonable apprehension of bias exists when a death results from a police shooting? [ 45 ] In order to substantiate his argument that there is a reasonable apprehension of bias on the Crown attorneys in this case, Mr. Shefman points to a Crown policy.

There is a Crown policy which provides direction in the Appointment of Independent Legal Counsel. The policy is dated September 2012. The policy (in part) provides: There are, however, some cases that, if prosecuted by the Province’s Crown Attorneys, might give rise to inappropriate public perceptions and raise issues of public confidence.

Most commonly, these cases involve situations where those who are involved in the administration of criminal justice in Manitoba are themselves directly involved in the case. [ 46 ] The policy goes on to provide the example of an instance where a judge or prosecutor is charged with an offence. The nature of the close relationship with Manitoba Justice might give rise to a reasonable belief that an “accused person may receive differential treatment” and therefore the appointment of independent counsel should be considered. [ 47 ] Mr.

Koch on behalf of the Attorney General responds that this policy is in relation to criminal prosecutions and given the adversarial nature of that proceeding should not be readily applied to an Inquest proceeding. I agree that the different context means that one should be circumspect in applying the policy. The policy is not a direction but raises the issues for consideration. [ 48 ] Mr. Koch argues that the court should protect ministerial discretion in the appointment of counsel. The minister should be free to consider such matters as resources, availability of counsel and scheduling.

He suggests that concrete evidence should be led in order to demonstrate a reasonable apprehension of bias. He points out that there is an absence of any evidence demonstrating any personal or direct relationship between the assigned Crown Attorneys and the police officers who will be called to testify. He points to the different and separate reporting structures within the Department of Justice and the police service as evidence that the Crown and police are distinct entities.

[ 49 ] Some support for these arguments can be found in R. v. Hundert 2010 ONSC 6759 . In Hundert , in a criminal proceeding where prosecutors were to be called as witnesses against the accused, the accused brought a motion to have independent counsel appointed as Crown counsel based on a reasonable apprehension of bias. The court concluded there was no reasonable apprehension of bias.

The court held that absent cogent evidence of bias the court should not interfere with who prosecutes cases (at paras. 38, 39). [ 50 ] While the Crown policy certainly provides proof that the appointment of independent counsel should be considered and made in certain scenarios, it does not provide a clear answer to the issue before me in the context of an inquest. [ 51 ] In Roberts the Supreme Court of Canada considered whether there was a reasonable apprehension of bias in a case where Justice Binnie wrote a decision on behalf of a unanimous court.

After the decision was rendered, counsel filed a motion to have the decision set aside because Justice Binnie had some involvement in the preliminary stages of the litigation 15 years earlier when he was the Federal Associate Deputy Minister of Justice. The facts in Roberts are very different from the case before me, but even there, where there was some evidence of previous involvement in the litigation, the Supreme Court after careful analysis found there was no reasonable apprehension of bias. [ 52 ] Mr.

Shefman points to the fact that in numerous previous Inquests into police shootings, the Crown appointed independent counsel from outside the prosecution service. These include the following: 1.) Ahmad Saleh-Azad, September 30, 2011 2.) Howard Glenn Fleury, December 1, 2009 3.) Matthew Adam Joseph Dumas, December 9, 2008 4.) Zunga Ramadan Bashir, July 20, 2009 5.) Dennis Junior St. Paul, July 19, 2006. [ 53 ] Mr. Koch responds that in other Inquests independent counsel have not been assigned even though the witnesses called at the Inquest could be expected to be called in other unrelated prosecutions.

For example, in the following two Inquests, deaths occurred in a workplace, and although Manitoba Prosecutions conducts prosecutions where it would rely on workplace investigators as witnesses, a Crown attorney was assigned to be Crown counsel at the Inquest: 1.) Henry Dueck, April 27, 2014 2.) James Friesen and David Schroeder, October 28, 2002. Mr. Koch also identified the Inquest into the death of Brian McPherson which occurred in RCMP cells as having counsel from Manitoba Prosecutions assigned to be Crown counsel at the inquest. [ 54 ] Ms.

Carswell pointed out two other inquests where deaths occurred during the process of being arrested by police officers: 1.) Laura Lee Draper and Arthur Randy Gill, July 11, 2005 2.) Allan Rupert, April 27, 2009.

In both of these inquests, Crown counsel was a Crown attorney from Manitoba Prosecutions. [ 55 ] The difficulty I have with the appointment of independent counsel in some Inquests and not others is that the basis for the decision on whether to appoint independent counsel is not available or transparent. [ 56 ] The Supreme Court in Roberts found it unhelpful to hypothesize about whether a judge might recuse herself if the issue was raised before trial.

At that early stage, judges often act out of an abundance of caution and may have recused themselves where it might not have been strictly necessary to do so (at para. 78). The Supreme Court found that the detached analysis that must occur where there is an allegation of a reasonable apprehension of bias is a fact specific inquiry that cannot be avoided by looking at other decisions made at an earlier stage of the proceedings based on an abundance of caution. I find this logic analogous to the situation before me.

I do not know if independent counsel was appointed in the past out of an abundance of caution or what the underlying reasons might have been. Therefore, I must conduct the inquiry as to whether a reasonable apprehension of bias exists based on the evidence before me. [ 57 ] I agree with the comments of Justice Joyal (as he then was) that quick reflexive decisions of recusal based on a “possible perception”, without careful analysis and consideration of the evidence of the moving party can undermine the presumption of impartiality ( Kalo v. Manitoba (Human Rights Commission ) 2008 MBQB 92 at paras. 34-36 ).

Those comments were made in the context of an application to have the judge recuse himself. Similarly here, to too quickly find a reasonable apprehension of bias in the absence of specific evidence undermines the impartial role of the Crown at an Inquest and fails to appreciate the inquisitorial nature of the Inquest. It undermines the important role the Crown has as a quasi-judicial minister of justice in our justice system. [ 58 ] Mr. Koch responds that the law has evolved and been clarified in Manitoba since many of those Inquests were held.

He points in particular to my brother Judge Heinrichs’ decision in The Moose Family where in analogous circumstances the Court found that there was no conflict of interest. I do find that The Moose Family decision of my brother judge is not determinative of the issue before me because the factual background was different from the case before me. As the Supreme Court of Canada said in Roberts , each case is “highly fact specific” (at para. 77). [ 59 ] The appointment of independent counsel is not necessarily an antidote which avoids claims that a reasonable apprehension of bias or a conflict of interest exists.

In the Report of the Taman Inquiry , the Honourable Roger Salhany, Q.C., Commissioner was tasked with looking into the public perception that a police officer had received preferential treatment in the prosecution of his criminal

charges. An independent prosecutor had been assigned to the prosecution. There was an allegation that the independent prosecutor was biased because he had represented police officers in the past in his private practice. The inquiry received the evidence of two experienced lawyers. At page 85 of the report, the Commissioner quotes from the expert opinion offered by Richard Peck, Q.C.: In my mind, the fact that a private practitioner retained to prosecute a police officer has, from time to time, defended police officers is entirely irrelevant. No conflict arises on the basis of class or occupation.

Where a conflict might arise is in circumstances where the lawyer has previously represented the very person he or she is called upon to prosecute. There could also be an appearance of conflict if the lawyer has worked closely with the police officer who is the subject of the prosecution, or if the lawyer’s practice consists entirely of representing police officers such that his or her livelihood depends on the continued business of police officers.

With these three exceptions stated, I see no conflict arising where a lawyer who has previously represented police officers is retained to prosecute a police officer with whom he has not had any direct representational or working relationship. [ 60 ] I agree with the Commissioner’s decision and the expert evidence that was adduced during that Inquiry. There cannot be a reasonable apprehension that prosecutors are biased based only on their occupation or class. There cannot be a reasonable apprehension of bias from the fact that the Crown frequently relies on police officers to prove its criminal charges.

Nor can bias be inferred from the fact that independent counsel have been appointed in other Inquests. More specific and direct evidence needs to be placed before the Court to come to such a conclusion.

Conclusion [ 61 ] The reasonable person, fully informed of: • the inquisitorial nature of an Inquest; • the Inquest judge’s expanded role in setting the scope of the Inquest and the Inquest judge’s active role in deciding who should be subpoenaed; • the professional and ethical duties on the Crown to represent the public interest so as to ensure all relevant facts are gathered and presented; • the separate and distinct roles of the Crown and police in the criminal justice system; • the ability of Mr.

Craig McDougall’s family to ask questions, cross-examine and suggest witnesses to be subpoenaed helps to ensure that if their view is that the Crown’s style is not as probing as they would like, the evidence can be tested more thoroughly; • the fact that Aboriginal people have suffered systemic discrimination and are over-represented in the criminal justice system can be addressed by the added perspective and active participation of the McDougall family throughout the hearing; • the absence of any specific evidence to establish that the Crown’s working relationship with the police is such that there is a real risk of a failure to carry out their impartial role as Crown counsel; would conclude that there is not a reasonable apprehension of bias in a Crown attorney from Manitoba Prosecutions acting as Crown counsel at this Inquest.

I therefore find that counsel from Manitoba Prosecutions is not in a conflict of interest based on their working relationship with members of the Winnipeg Police Service. “Original signed by” ___________________________ KRAHN, ACJ