2014 NBCA 40, 2014 NBCA 40

COURT OF APPEAL OF NEW BRUNSWICK COUR D’APPEL DU NOUVEAU-BRUNSWICK 31-14-CA 32-14-CA GREGORY J. FORESTELL, Chief Coroner for the Province of New Brunswick, and JOHN EVANS, Presiding Coroner (Respondents) APPELLANTS GREGORY J. FORESTELL, coroner en chef de la province du Nouveau-Brunswick, et JOHN EVANS, coroner présidant l’enquête (Intimé

s) APPELANTS - and - - et - REGIONAL HEALTH AUTHORITY B, operating under the name and style of Horizon Health Network, a body corporate (Applicant) RESPONDENT RÉGIE RÉGIONALE DE LA SANTÉ B, exerçant ses activités sous le nom et l’appellation du Réseau de santé Horizon, corps constitué (Requérante) INTIMÉE A N D B E T W E E N: E T E N T R E : GREGORY J. FORESTELL, Chief Coroner for the Province of New Brunswick, and JOHN EVANS, Presiding Coroner (Respondents) APPELLANTS GREGORY J. FORESTELL, coroner en chef de la province du Nouveau-Brunswick, et JOHN EVANS, coroner présidant l’enquête (Intimé

s) APPELANTS - and - - et - DR. PAMELA FORSYTHE and DR. MOHAMMED HOSSAIN (Applicants) RESPONDENTS D re PAMELA FORSYTHE et D r MOHAMMED HOSSAIN (Requérants) INTIMÉS Forestell v. Regional Health Authority B, 2014 NBCA 40 Forestell c. Régie régionale de la santé B, 2014 NBCA 40 CORAM: The Honourable Justice Larlee The Honourable Justice Robertson The Honourable Justice Richard CORAM : l’honorable juge Larlee l’honorable juge Robertson l’honorable juge Richard

Appeal from a decision of the Court of Queen’s Bench: February 28, 2014 Appel d’une décision de la Cour du Banc de la Reine : le 28 février 2014 History of case: Decision under appeal: 2014 NBQB 057 Preliminary or incidental proceedings: N.A. Historique de la cause : Décision frappée d’appel : 2014 NBBR 057 Procédures préliminaires ou accessoires : s.o.

Appeal heard: June 13, 2014 Appel entendu : le 13 juin 2014 Judgment rendered: June 19, 2014 Reasons delivered: September 18, 2014 Reasons for judgment : The Honourable Justice Richard Concurred in by: The Honourable Justice Larlee The Honourable Justice Robertson Jugement rendu : le 19 juin 2014 Motifs déposés : le 18 septembre 2014 Motifs de jugement : l’honorable juge Richard Souscrivent aux motifs : l’honorable juge Larlee l’honorable juge Robertson

Counsel at hearing: For the appellants Gregory J. Forestell and John Evans: Kelly T. VanBuskirk and Catherine A. Fawcett For the respondent, Regional Healthy Authority B: Did not participate For the respondents, Dr. Pamela Forsythe and Dr. Mohammed Hossain: Robert M. Dysart and Sarah M. Dever Letson THE COURT The appeal was allowed on June 19, 2014 with reasons to follow. These are our reasons for decision. The respondents, Dr. Pamela Forsythe and Dr. Mohammed Hossain, are ordered to pay to the appellants costs of $5,000.00. Avocats à l’audience : Pour les appelants Gregory J. Forestell et John Evans : Kelly T.

VanBuskirk et Catherine A. Fawcett Pour l’intimée la Régie régionale de la santé B : n’a pas participé Pour les intimés la D re Pamela Forsythe et le D r Mohammed Hossain : Robert M. Dysart et Sarah M. Dever Letson LA COUR L’appel a été accueilli le 19 juin 2014, avec motifs à suivre. Voici ces motifs. Les intimés, D rs Pamela Forsythe et Mohammed Hossain, sont condamnés à payer des dépens de 5 000 $ aux appelants. The following is the judgment delivered by RICHARD J.A. I. Introduction [ 1 ] The office of coroner has a history spanning over 820 years. Originally, the office was the product of the common law.

As is well known, the coroner is the public office holder who is responsible for investigating the manner or cause of a person’s death in defined circumstances. Today, the office is the subject of legislation in all of the provinces and territories. But the common law still has a role to play. This is particularly true in this Province. Most importantly, New Brunswick stands alone in the Canadian mosaic as the sole jurisdiction where the coroner lacks the authority or discretion to grant standing to interested parties in those cases where the coroner has convened an inquest into an unexplained death.

This is what the present appeal is all about. [ 2 ] Every Canadian jurisdiction but New Brunswick allows either interested parties, or those who may be substantially and directly affected by the results of an inquest, to apply for standing. In some provinces, standing must be granted; in others, discretion rests with the coroner. Those who are granted standing because they qualify as interested parties, or those who may be substantially and directly affected, may be represented by counsel, may call or cross-examine witnesses and, in some jurisdictions, may make submissions to either the coroner or the jury.

However, in New Brunswick, persons with an interest in the proceedings have been limited to submitting questions to either a Crown prosecutor, who has been appointed to assist the coroner, or directly to the coroner. But it is the prosecutor or the coroner who retains the discretion to determine whether the questions posed will be asked of a witness. [ 3 ] The respondents, a regional health authority and two physicians, decided to challenge the New Brunswick scheme, which does not allow for standing and instead provides for limited participation by interested persons in the conduct of an inquest.

In anticipation of an upcoming inquest into the death of a hospital patient, they requested of the Chief Coroner and of the Presiding Coroner permission for standing at the inquest. The request was refused. The health authority and physicians pressed on. They applied for judicial review of the decision refusing them standing. This time they were successful. A judge of the Court of Queen’s

Bench not only quashed the decision refusing them standing, but he would go on to convene another hearing with a view to defining what participatory rights they would have at the inquest. The Coroners appealed. They argued that, in New Brunswick, the common law rule that precludes third party standing has been legislatively preserved. On June 19, 2014, we allowed the Coroners’ appeals with reasons to follow. These are my reasons for joining my colleagues in agreeing with the Coroners and for setting aside the decision of the Court of Queen’s Bench and reinstating the decision of the Chief Coroner. II.

Factual background [ 4 ] On February 14, 2012, Serena Perry was found dead in the Amphitheatre of the Saint John Regional Hospital. She had been hospitalized in the psychiatric unit of that facility pursuant to an order made under the Mental Health Act , R.S.N.B. 1973, c. M-10. Although an involuntary patient, she was reportedly allowed to take unsupervised breaks from the unit, and had done so the evening of her death. During her break, Ms. Perry had been in the company of at least one other psychiatric patient. [ 5 ] During her admission in the psychiatric unit in 2012, Ms.

Perry was primarily under the care of Dr. Pamela Forsythe. Dr. Forsythe has been practicing as a licensed psychiatrist and fellow of the Royal College since 1985, and had treated Ms. Perry since approximately 2010 over a series of admissions at the unit. She was also primarily responsible for the psychiatric treatment of one of the two patients who were reportedly seen with Ms. Perry shortly before her death. [ 6 ] The police were notified of Ms. Perry’s death and responded to the call.

Considering the circumstances involved, a criminal investigation ensued. [ 7 ] As required by s. 6(2) of the Coroners Act , R.S.N.B. 1973, c. C-23, the Chief Coroner of New Brunswick, Mr. Gregory Forestell, received notification of Ms. Perry’s death. His office subsequently commenced an investigation. [ 8 ] On February 15, 2012, the Coroner’s office forwarded a request for a post-mortem examination of Ms. Perry’s body to Dr. Mohammed Hossain, a pathologist at the Saint John Regional Hospital. The examination was undertaken that same day. While Dr.

Hossain’s autopsy report was not part of the record, media reports attached to affidavits allege the autopsy did not definitively identify the cause of death. It was also alleged that the failure to establish a cause of death was the primary reason for the police investigation coming to an end. The record does contain a second post-mortem opinion: one from Dr. Michael Sven Pollanen, the Chief Forensic Pathologist for Ontario and an Associate Professor of Pathology at the University of Toronto. [ 9 ] Dr. Pollanen reviewed Dr.

Hossain’s autopsy report, together with other reports, records and images, and concluded that the cause of Ms. Perry’s death “could be neck compression, particularly since no [alternative] cause of death has been found”. However, in light of the available evidence, he opined: “the cause of death is best listed as ‘undetermined’”. In coming to this conclusion, Dr. Pollanen states that there is a “lack of a layered neck dissection”. Conversely, Dr. Hossain has deposed that he “did in fact perform a layered neck dissection”. In any event, Dr.

Pollanen pointed out that, if the cause of death was in fact neck compression, three possible modes of compression were applicable in this case: (1) hanging; (2) self-inflicted/self-imposed ligature strangulation; and (3) ligature strangulation by another person. He noted there were “some similarities with this case and some cases of self-inflicted ligature strangulation cited in the literature”.

In the end, he pointed out that “[i]f the facts are not clear, then it may not be possible to differentiate suicide and homicide”. [ 10 ] In announcing the conclusion of the criminal investigation and that no charges would be laid, the Chief of the Saint John City Police Force is reported to have called for an inquest and to have “highlighted the pathologist’s report, and its lack of a precise cause of death, as one of the main reasons why no charges were laid”.

He is also reported to have pointed to: “an issue with training [of the pathologist], something he hopes to see explained in a coroner’s inquest”. [ 11 ] The announcement that no criminal charges would be laid in relation to Ms. Perry’s death was made in June 2013. On November 1, 2013, a local coroner, Coroner Walt McKinney, filed a declaration that an inquest into Ms. Perry’s death was necessary. The Chief Coroner agreed and, on November 12, directed Mr.

John Evans, a retired lawyer and former prosecutor, also a former Chief Coroner and Chief Sheriff in New Brunswick, and currently a coroner appointed under the Coroners Act , to hold the inquest. In keeping with a long-standing practice, and as authorized by s. 22 of the Act , a Crown prosecutor was sought to assist at the inquest. Paul J. Veniot, Q.C., a retired prosecutor, was assigned to this task. [ 12 ] Following the announcement that no criminal charges would be laid, counsel for the Perry

family made it known that civil lawsuits were likely. [ 13 ] The inquest was scheduled to commence on March 17, 2014. The commencement date was announced January 7, 2014. Shortly after this, counsel for the Regional Health Authority wrote to both the Chief Coroner and the Presiding Coroner requesting that the Regional Health Authority be granted standing at the inquest.

In support of this request, counsel for the Health Authority stated as follows: Horizon, as the body charged with the operation of SJRH, has a substantial and direct interest in the Inquest, as its policies and procedures and the conduct of its employees will be scrutinized by the jury inquiring into the death of Ms. Perry. Further, Horizon will be affected by any findings and recommendations made by the jury with respect to its policies and procedures and the conduct of its employees.

Public confidence in Horizon and its administration of SJRH will be affected by the evidence and arguments presented at the Inquest, and ultimately by the findings and recommendations of the jury. We note that the Chief of the Saint John Police Force made critical comments which were widely reported in the media regarding SJRH's handling of the incident which forms the subject of this Inquest, and the Inquest itself will no doubt be the subject of significant public attention.

Similarly, the reputations of individual employees of Horizon may be affected by the proceedings and the findings and recommendations of the jury.

It is consequently vital, both as a matter of fairness to Horizon, and in order that the fact-finding and public policy goals of the Inquest be fulfilled, that Horizon have the ability to ensure, through examination and cross-examination of witnesses and submissions to the jury, that all relevant evidence with respect to its conduct in this matter is placed before the jury, and to respond to any criticisms or allegations with respect to the conduct of Horizon or its employees that may arise in the course of the proceedings.

In addition to Horizon's substantial and direct interest in the Inquest, it has substantial and special knowledge of the issues to be examined at the Inquest. As a regional health authority charged with the delivery of health services, including the operation of hospitals, Horizon would bring a unique perspective to the issues.

It would therefore be in the public interest that Horizon be granted standing at the Inquest so as to ensure that its special knowledge of and perspective on the issues is fully presented to the jury in furtherance of the goals of conducting a thorough inquiry into the circumstances of the death, and generating useful recommendations as to any action that should be taken to prevent further injury or death in circumstances similar to those involved in Ms.

Perry's case. [ 14 ] The Regional Health Authority argued it should have the opportunity to participate in the inquest by having counsel call, examine and cross-examine witnesses, and the right to make submissions to the jury. [ 15 ] On January 20, 2014, counsel for Dr. Mohammed Hossain and Dr. Pamela Forsythe wrote a similar letter addressed to both the Chief Coroner and the Presiding Coroner.

In that letter, he argued that since both of his clients could be summoned to attend at the inquest to give evidence, and since the recommendations of the jury would undoubtedly be widely disseminated, the two physicians could be negatively affected, “both in terms of their standing in the community as medical practitioners, and also their qualifications issued by their privileges and licensure with the College of Physicians and Surgeons and in respect of Horizon Health Network”. He also submitted “the reputation of these two physicians may be affected by the proceedings and the recommendations of the jury”.

Counsel for the two physicians therefore also sought standing and “the right to participate fully in the process”. [ 16 ] The Chief Coroner answered both letters on January 21, 2014. In separate letters, both setting out identical reasons, the requests for standing were “denied”. The reasons given in the letters were as follows: 1. The Coroners Act of the Province of New Brunswick does not provide for standing by interested parties to an inquest. 2. A coroner's inquest is not a trial and the jury is prohibited from finding fault or assigning responsibility. 3.

The current process during an inquest of counsel submitting questions through coroner's counsel, along with pre-inquest meetings with you and your client to identify appropriate witnesses and the information they can provide, inducting information from other subject matter experts, has proven in the past to be adequate to ensure that the relevant facts are presented to the jury. 4. [Horizon and the physicians are] welcome to suggest to the presiding coroner for consideration potential witnesses along with a description of what testimony they might offer the inquest.

5. We would encourage any and all witnesses, including those affiliated with [Horizon or the physicians], to offer recommendations tothe jury for consideration. [17] On February 18, 2014, Margaret Roseanne Perry, in her own right as the mother of SerenaPerry, and as representative of her daughter’s estate, commenced an action against the Regional Health Authority, Dr. Pamela Forsytheand a named individual who is alleged to have “assaulted, battered and intentionally or negligently asphyxiated” Ms. Perry. As againstthe Regional Health Authority and Dr.

Forsythe, the claim alleges “negligence, breach of contract and/or breach of fiduciary duty”. [18] In separate Notices, the Regional Health Authority and the two physicians sought judicialreview of the Chief Coroner’s decision to deny them standing at the inquest. The Health Authority claimed the refusal to grant standingamounted to a breach of the Authority’s right to procedural fairness.

The Authority also argued the decision was incorrect orunreasonable on the following grounds: i. [The Coroners] improperly fettered their discretion to grant standing to an interested party, or in the public interest, on the basis thatthe Act does not expressly provide for standing. ii. [The Coroners] misinterpreted and misapplied the Act in finding that it prohibits the jury from finding fault or assigningresponsibility, and in so doing, incorrectly minimized Horizon's interest in the proceedings. iii.

The process of submitting written questions through coroner's counsel, and pre-inquest meetings to identify witnesses, is not anadequate substitute for full participatory rights as stated in [The Coroners’] reasons for decision. iv. [The Coroners] in their reasons for decision failed to address the reputational interest of Horizon and its employees in the inquestproceedings. v. [The Coroners] in their reasons for decision failed to address the public interest basis for granting standing to Horizon. [19] The Notice of Application filed on behalf of the physicians sets out virtually identical grounds.Both the Regional Health Authority and the physicians asked for an interim order staying the inquest until the final disposition of theapplication.

They further asked that the Coroners’ decision be quashed and that an order be issued granting them standing at the inquest,“including the right to be represented by legal counsel, to call and examine relevant witnesses, to cross-examine witnesses called byothers, and to make submissions to the jury; or in the alternative, an order that the Applicants' request for standing be remitted to the[Coroners] to be dealt with in accordance with the directions of [the] Court”. [20] A judge of the Court of Queen’s Bench heard both applications for judicial review on February27, 2014.

He issued what he called a “Decision Phase One” the following day in which he addressed both applications. In that decision,the judge reviewed the factors set out in Baker v. Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2S.C.R. 817, [1999] S.C.J. No. 39 (QL) and concluded as follows: Thus those "Baker factors" must be applied in considering what requirements of fairness are applicable in this case.

Here a hospital andphysicians may be criticized regarding the death of an involuntary psychiatric patient in a complicated "statutory, institutional and socialcontext" in an “inquisitorial" proceeding with a coroner's jury in a formal public court room, with no express right of appeal.

In my viewany such criticisms could have serious effects on the hospital and either or both of the physicians. [para. 15] [21] Opining that the decisions under review implied that the Chief Coroner “thought the absence ofa provision for standing by interested parties and the past practice of coroners fettered his discretion to grant that relief” and failed “torespect the directions of the Supreme Court of Canada in cases such as Baker regarding the requirements of fairness in this case”, thejudge removed the decisions into the Court and quashed them. [22] However, the judge concluded the extent of the “standing” sought by both the Regional HealthAuthority and the physicians was too broad.

He therefore called for further submissions before finalizing the order.

[ 23 ] As a result of the “Phase One” decision, the inquest was adjourned. The Chief Coroner and the Presiding Coroner appealed the judge’s decision. Although separate Notices of Appeal were issued, the parties consented to both being heard together, so, the appeals were all but consolidated. [ 24 ] Subsequently, the Regional Health Authority opted out of further Court proceedings. It instructed counsel to withdraw the Notice of Application filed in the Court of Queen’s Bench. This was done by consent order prior to the entry of a formal judgment.

Nevertheless, the Coroners have pursued their appeal against the application judge’s decision relating to the Health Authority, ostensibly for fear it might somehow serve as a precedent. By consent order dated May 6, 2014, the Health Authority was excused from having to participate in the appeal. [ 25 ] Technically, the appeal against the “Phase One” decision is moot as it relates to the Health Authority. Since no formal judgment has been entered against the Coroners in regard to the decision as it applies to the Health Authority, and since the Application was ordered withdrawn, there is really nothing to appeal.

However, because the issues raised in the appeal of the decision as it relates to the Health Authority are identical to those in the appeal involving the physicians, this is one of those rare cases where I believe we should determine the appeal despite the mootness of the issue. [ 26 ] During the time the appeals against the “Phase One” decision were winding into our Court, the application judge received further submissions. On May 27, 2014, he issued the “Phase Two” Order.

In that Order, the judge confirmed his “Phase One” decision and further ordered as follows: AND IT IS FURTHER ORDERED, that the [physicians’] request for participatory rights at the inquest into the death of the late Serena Elizabeth Perry (the “Inquest”) be remitted to the Respondent, John Evans, Presiding Coroner (or such other presiding coroner as may be substituted for John Evans pursuant to s. 38(1) of the Coroners Act […] (the “Presiding Coroner”), with the following directions: (

a) The Applicants, Dr. Pamela Forsythe and Dr. Mohammed Hossain, shall each be authorized at the inquest: (

i) to be represented by legal counsel of their choice, provided that any unavailability of such counsel should not seriously affect the dates scheduled for the Inquest or its completion; (ii) to have confidential disclosure of any witness statements, “will-says” or relevant documents from the Presiding Coroner , or his counsel, as soon as is practical prior to the inquest, subject to a confidentiality undertaking and/or agreement in a form acceptable to the Chief Coroner and/or Presiding Coroner; (iii) to cross-examine witnesses called by the Presiding Coroner , his counsel, or other participants, provided that such cross-examination is relevant to the interest in the Inquest of the person cross examining, and not duplicative, as determined by the Presiding Coroner; (iv) to call and examine witnesses, at their own expense, provided that confidential disclosure is made to the Presiding Coroner , counsel for the Presiding Coroner, and counsel for any other parties represented at the Inquest, of the witness statements, “will-says”, or relevant documents in regard to such witnesses, which disclosure shall be made on or before a date to be determined by the Presiding Coroner, and provided that the Presiding Coroner retains the ability to rule on the relevance and admissibility of proposed witnesses and evidence, and provided also that any unavailability of such witnesses should not seriously affect the dates scheduled for the Inquest or its completion; (

v) to make objections and/or submissions with respect to the admissibility of evidence, where relevant to the interest in the Inquest of the person objecting, as determined by the Presiding Coroner ; (vi) after the evidence has been heard, to make oral and written submissions to the Presiding Coroner but not to the jury.

AND IT IS DECLARED that nothing in this Order derogates from the powers, jurisdiction and authority of the Presiding Coroner under the Coroners Act […] and at common law, to conduct the Inquest and make rulings with respect to procedural matters, relevance and the admissibility of evidence, and the maintenance of order at the Inquest, subject to complying with the dictates of procedural fairness as directed herein. [ 27 ] The judge also ordered the Chief Coroner and the Presiding Coroner to pay to the two physicians costs in the amount of $5,000.00, inclusive of disbursements. [ 28 ] The Chief Coroner and the Presiding Coroner have also appealed the “Phase Two” Order. [ 29 ] When the appeals of the “Phase One” decision were heard, the appeal of the “Phase Two” Order had not yet been perfected.

On June 19, 2014, six days after hearing the appeal, we issued a decision with reasons to follow allowing the appeals against the “Phase One” decision, setting aside that decision, and reinstating the decision of the Chief Coroner. Although we could not technically deal with the “Phase Two” Order, its invalidity is self-evident. III. Issues on appeal [ 30 ] In both appeals against the “Phase One” decision, the Coroners raised seven identical grounds.

In their written submission, the grounds were recast as three questions: 1) Do the Coroners have the authority or discretion to grant “standing” and should it have been granted in this case? 2) Were the Health Authority and the physicians entitled to procedural fairness and, if so, were they denied fairness as a result of the Chief Coroner’s decision? 3) Did the application judge consider and apply the appropriate standard of review? IV.

Analysis [ 31 ] It is not necessary to answer the second and third questions posed above because even on the correctness standard the answer to the first question provides the full answer to this appeal. In New Brunswick, coroners have neither the authority nor the discretion to grant standing to anyone at an inquest. As will be explained below, the Coroners Act does not provide standing rights for those who have a substantial interest in the inquest, or even for those whose interests may be directly and substantially affected by the findings of the jury.

Because of a unique provision in the New Brunswick legislation, the inquest must be governed by the common law practice as it was before legislative intervention into the institution of coroner, except where the practice has been changed by the Coroners Act . At the relevant time, at common law, the coroner had no authority and hence no discretion to grant anyone standing at an inquest. A. The institution of coroner – a brief historical overview [ 32 ] The true origin of the institution is unknown. So says the late Justice T.

David Marshall in Canadian Law of Inquests: A handbook for coroners, medical examiners, counsel , and the police , 3rd ed. (Toronto: Thomson, 2008), at p. 13. Before his untimely passing in 2009, Justice Marshall was a judge of the Ontario Superior Court of Justice, appointed after having practiced both medicine and law. Prior to his appointment to the Bench, Justice Marshall also held the position of coroner in Ontario.

He was appointed first to the Supreme Court of the Northwest Territories and Yukon and then to Court of Appeal of those territories, and later to the Ontario Superior Court of Justice. [ 33 ] Justice Marshall’s research reveals that the origin of the institution of coroner dates back to at least the Articles of Eyre of 1194, if not to Anglo-Saxon times (p. 13). From its inception, the role of the coroner has been to inquire into unexplained deaths. The institution has not only survived in England, but “was exported to diverse foreign lands where it managed to survive to the present day” (p. 13).

[34] While historically the institution of coroner was a court of “criminal record” (p. 26), this iscertainly no longer the case. In fact, at some historical point, a coroner could commit someone for trial. Over time this has changed.Section 576(3) of the Criminal Code now provides that “[n]o person shall be tried on a coroner’s inquisition”. Until 1994, there waseven a provision in the Criminal Code providing for Coroner’s warrants. However, a coroner’s inquest is now considered a civilproceeding. In Faber v. The Queen, (SCC), [1976] 2 S.C.R. 9, [1975] S.C.J.

No. 61 (QL), a majority of the SupremeCourt acknowledged this: In view of this, I am unable to accept the conclusions stated in decisions holding that the coroner is a court, or a court of record, withcriminal jurisdiction, especially as in many such cases the observation was made obiter. On the contrary, as I indicated above, I acceptthe conclusion of the British Columbia Court of Appeal in R. v. McDonald, [[1968] B.C.J.

No. 102]; and I extract this sentence from thereasons of Bull J. (at p. 305): I therefore conclude that the very nature of the inquiry held by the Coroner in Canada, which is not a trial and at which there is no partyor person accused and the function of which is to investigate many other matters than to find that murder or manslaughter has beencommitted, is such that this Court cannot fairly be said to be a "Court of Criminal Jurisdiction", whose procedures before such a verdict,if any, are with respect to 'Criminal Matters' or 'criminal law' in order to come under the exclusive authority of Parliament. [p. 31] [Emphasis added] [35] In some provinces, the institution of coroner has been replaced by medical examiners: Alberta,Manitoba, Newfoundland and Labrador and Nova Scotia.

However, the fundamental purpose of the regime of medical examiner is“extremely similar” to that of coroner, according to Halsbury’s Laws of Canada, Inquests, Coroners and Medical Examiners (2013Reissue) (Markham, Ont.: LexisNexis Canada, 2013) at HCN-1 “Investigation of Fatalities in Canada”. Their mandate is to investigatethe causes and circumstances of certain deaths.

Justice Marshall provides an overview of the regimes in each Canadian province andterritory at pp. 5-9 and concludes as follows: And so the Acts, though differing widely in detail, all require the notification of a coroner or medical examiner of any suspicious deathas set out in the particular Act. Then the coroner or medical examiner is empowered to do certain things necessary to investigate thedeath to determine the cause and the circumstances surrounding the death.

An inquest into the death, as with the investigation, is not todetermine liability but to determine circumstances and causes and generally to make recommendations helpful in preventing similardeaths in future. [pp. 9-10] [36] As Justice Marshall points out, the various Acts “illustrate a rather wide evolution from thetraditional common law coroner. Virtually every jurisdiction in Canada has been re-examining its Acts and most have moved, some quitefar, from the common law lay coroner who with a lay jury designated blame and legal responsibility in suspicious and blameworthydeaths” (p. 10).

New Brunswick, like all other jurisdictions, has moved away from the historical common law function of a coroner’s jurydesignating blame and legal responsibility. Yet, in several respects, this Province remains closely aligned to the common law approach tothe institution of coroner. B. Coroner’s inquests in New Brunswick [37] In New Brunswick, the institution of coroner was a primarily a creature of the common law until1900 when The Coroners’ Act, 1900 (the “1900 Act”) came into force. Notwithstanding statutory intervention, the common lawcontinues to govern many aspects of the institution.

Justice Marshall describes the system in this Province as “a more traditional system”and says that it “is very close to the concept of the coroner at common law” (pp. 6-7). [38] The 1900 Act provided for the appointment of coroners and, except in certain specified cases,such as the death of a prisoner (s. 5), or when ordered by a judge (ss. 6 and 28), the holding of an inquest was limited to cases wherethere was “reason to believe that the deceased died from violence, criminal or unfair means, or by culpable or negligent conduct, either ofhimself or others, under such circumstances as require investigation and not through mere accident or mischance” (s. 4).

The inquest wasto be conducted in a public forum before a coroner and a jury, although the coroner could, if necessary, exclude the public: ss. 8 and 13.The 1900 Act provided that it was the coroner’s duty to examine the witnesses under oath or affirmation: s. 14. It was also the coroner’sduty to take the evidence down in writing: s. 15. After the jury had viewed the body and heard the evidence, the coroner would sum upthe case before the jury was asked to render a verdict: s. 17.

If a verdict was not rendered within four hours, the jury could be dischargedafter the coroner determined the facts upon which the jury was able to agree, and the Attorney General could order a second inquest: s.20. Evidently, the 1900 Act, as had been the case with the common law, envisaged prompt inquests, since viewing the body was thenorm. An inquest without viewing the body had to be approved by the Attorney General and was limited to cases where the body couldnot be found or where burial had already occurred: ss. 18-19. In the typical case, burial could not occur until the coroner and the jury had

viewed the body and the coroner authorized the burial: ss. 26-27. [39] The 1900 Act expressly preserved many aspects of the common law governing the institution ofcoroner: 37.

Except as herein otherwise expressly provided nothing in this Act shall be taken to restrict the jurisdiction, powers and authority ofCoroners at common law and all proceedings both before, at the time of and subsequent to any Coroner’s inquest shall be commenced,carried on and completed in the same manner as has heretofore been the practice except where otherwise expressly provided by this Act. [para.37] [Emphasis added] [40] A review of the legislative debates, regarding the 1900 Act, reveals that it was meant toconsolidate the laws dealing with the subject and codify parts of the common law in order to be “of valuable use to the coroners of theprovince”: New Brunswick, Legislative Assembly, Synoptic report of the Proceedings of the Legislative Assembly of New Brunswick, (5March 1900) at 121 (Hon.

Mr. Emmerson). In the report of the proceedings of March 6, 1900, there was some discussion regarding theexpense of holding an inquest after there had been an “examination before a Justice of the Peace” in criminal matters. The Premier, Hon.Henry R.

Emmerson, responded there was “a wide difference” between the two, emphasizing that in the case of an inquest it does notpre-suppose that anyone is or will be charged with an offence because the inquest is a means to discover the circumstances of the death.He added: “It would be very unfair if any person were committed on the evidence taken at a coroner’s inquest, because that evidencemight be used against him in a higher court, when he would have had no opportunity to defend or protect himself” (p. 125) (emphasisadded). [41] Tracing the legislative changes leading to today’s version of the Coroners Act would serve nouseful purpose.

Suffice to say that s. 37 of the 1900 Act has always featured as part of the legislation governing the office of coroner inthis Province. It survives in the current version of the Coroners Act as s. 44.

Thus, it is undisputable that it is the “practice” at the timethe 1900 Act came into force, “except where otherwise expressly provided by” the Act, that has, since 1900, been meant to govern theway inquests are to be “commenced, carried on and completed”. [42] The current Coroners Act contains many of the same features as the original statute. [43] The Act sets out the circumstances that trigger a coroner’s investigation, those that require aninquest, and those that give the coroner the discretion to hold an inquest.

It also sets out the investigative steps that must be taken, thepowers of the coroner or the Chief Coroner, and the role of the coroner when an inquest is held. In this latter regard, the Act gives thecoroner the power to summon witnesses and the duty to examine upon oath or affirmation “all persons who tender their evidencerespecting the facts touching the death, and all persons whom he thinks expedient to examine as being likely to have knowledge ofrelevant facts” (s. 23(1)). It is also the coroner who is charged with the duty to sum up the case for the jury after the evidence has beenheard.

The Act provides that a Crown prosecutor may be called upon to assist the coroner, a practice that has now become the norm.Although the Act still provides for the jury to view the body, it now states that this is not necessary “if the coroner directs that theviewing of the body is dispensed with” (s. 23(2)). Over time, some of the procedures have been modernized.

For example, it is no longernecessary for the coroner to “take down in writing the evidence or testimony of all” witnesses, as was required by s. 15 of the 1900 Act,because the modern version of the Act provides instead for the evidence to “be recorded” (s. 24(1)). [44] The stated purpose of an inquest is the determination of who died, how the person died (s. 26),and, where appropriate, “to make recommendations as to any action that should be taken to prevent further injury or death incircumstances similar to those involved in the death that was the subject of the inquest” (s. 25(1) with emphasis added). [45] There are few cases in New Brunswick dealing with a coroner’s inquest.

One decision that isoften referred to is Gregoire v. Coroner (Campbellton District) and Campbellton Regional Hospital (1988), (NBKB), 89 N.B.R. (2d) 255, [1988] N.B.J. No. 1161 (Q.B.) (QL). In that case, a widower applied for an order compelling the coroner tohold an inquest into the death of his wife at a local hospital. The application judge granted the order sought, holding he had thejurisdiction to so order, pursuant to s. 7 of the Coroners Act. That

section provides that “[a] coroner shall hold an inquest when requiredto do so in writing by a judge of the Court of Queen’s Bench”. In rendering his decision, Godin J. noted that the Coroners Act does notyield much information on its purpose. However, as to the scope of an inquest, he held as follows: What would be accomplished by ordering that an inquest be held? As noted previously, the Coroners Act of New Brunswick does not

explicitly state the purpose of a coroner's inquest. The Act is virtually silent as to the scope of an inquest. Section 25(1) and s. 26 (quotedabove) identify only three areas of inquiry: 1. The identity of the deceased. 2. The cause of death. 3. Recommendations to avoid death or injury in similar circumstances. [para. 24] [46] This observation as to the scope of an inquest was subsequently adopted in Burton v. ChiefCoroner (New Brunswick), [1996] N.B.R. (2d) (Supp.) No. 40, [1996] N.B.J. No. 367 (Q.B.) (QL), Breau v. District Coroner(Miramichi), 2001 NBQB 168, 242 N.B.R. (2d) 87, and Bellefleur v.

Kavanaugh et al., 2002 NBBR 354 , 2002 NBQB 354, 255N.B.R. (2d) 150). [47] In Gregoire, the application judge expounded on the limits of an inquest, stating as follows: Even if the Act places no limitations on the scope of the inquiry, a coroner has no jurisdiction to go beyond those areas of inquiryidentified in the Act and the inquest must be conducted in compliance with our general laws. In that respect, two observations must bemade. First, a coroner's inquest is not a trial. Trial by inquest or by inquisition is foreign to our system of law and quite incompatible with ourcivil rights.

Secondly, there are no parties at an inquest. No one has an opportunity to defend or a right to be heard. Great care must therefore betaken not to violate a fundamental rule of our system of law which is that no person should be condemned unheard. That rule, sometimesreferred to as the audi alteram partem rule lies at the very foundations of our civil and criminal justice.

Coroners have a duty to make clear to the public, to the empaneled jury, to the witnesses and to all others who may be concerned thatcoroners are not judges; that an inquest is not a trial and that the inquest cannot, by law, go beyond the narrow area of inquiryspecifically authorized by the Coroners Act. […] The coroner and the jury are not to express any conclusion of civil or criminal responsibility and are prohibited from naming any personor persons responsible for any act or omission which may have contributed to the death of the deceased.

The coroner must at all times protect the civil rights of all persons who may have had some connection with the death of the deceased. Ifthose civil rights conflict with the legitimate field of inquiry of the inquest, the conflict must be resolved in favour of the protection ofcivil rights of the persons. [paras. 25-28, 31-32] [48] The principles identified in Gregoire are apparently those being applied when conducting aninquest in New Brunswick. The evidentiary record before the Court reveals what is contemplated to happen in the Perry inquest.

At theoutset, the jury will be instructed that “[t]he inquest is not a trial and […] cannot, by law, go beyond the narrow area of inquiryspecifically authorized by the Coroners Act, which is: (1) the identity of the deceased; (2) the cause and manner of death; and (3)recommendations to avoid death or injury in similar circumstances”. None of the witnesses will be subjected to cross-examination, andthe inquest will “not pursue or produce a finding of liability or fault”.

The inquest will follow the procedure outlined in the NewBrunswick Director of Public Prosecutions’ Guideline #28, a portion of which reads as follows:

The Coroner, at the outset, will request that the Jury elect a Chairperson at the earliest opportunity, will provide an overview of procedure to be followed, and will instruct the Jury as to its function and responsibility in regards to establishing the identity of the deceased, the time and cause of death, and recommendations as to any action that should be taken to prevent similar deaths. The Coroner will instruct counsel who may be appearing on behalf of an interested party to funnel their written questions through Counsel to the Coroner.

Counsel to the Coroner will then call and examine the witness who may then be questioned by the Coroner and members of the Jury. Counsel to the Coroner will present relevant questions from any counsel representing an interested party. In this regard Counsel to the coroner should at all times bear in mind the objective of the inquest (as noted above) and should exercise a reasonable latitude in the range of questions asked on behalf of an interested party in order to avoid any allegation that there has been less than full disclosure of the relevant facts.

If counsel has reservations about the propriety or relevance of the particular question, then the decision on whether the question should be asked will be determined by the Coroner. After all the witnesses called by Counsel for the Coroner are heard, the Coroner will make a general statement inviting any other person who has evidence to give to come forward. Should a person come forward, Counsel for the Coroner will interview the witnesses and if the evidence is relevant, call the witness and direct the examination as with a witness that was summoned.

If Counsel to the Coroner has reservations about the relevancy of the evidence to be given, then the decision on whether the witness should be heard will be made by the Coroner.

When all the evidence has been adduced the Coroner will address the Jury in more detail on its adjudicative and reporting responsibilities. [ 49 ] To ensure the jury does not stray into improper territory, the practice also requires a presiding coroner to receive the jury’s findings and, before publicly releasing these, scrutinize them to “first ensure that nothing in those findings attempts to point any blame at any person or corporation”. C.

The question of standing [ 50 ] The question of “standing”, which is the one that concerns us, is one that has been legislatively addressed in most Canadian jurisdictions. [ 51 ] According to Justice Marshall, at common law, in the early days, there was not even a public right to attend an inquest. However, it eventually became recognized that the public should have a right of access (p. 94). The various statutes now provide for public access, although provision is made for exclusion of the public in some instances.

On the question of standing, Justice Marshall observes as follows: “At common law the rule as to standing is similar to the rule governing the public’s right to attend: that is there is none” (p. 116). However, he notes: “jurisdictions have however now softened this rule” (p. 116). [ 52 ] Looking first at Canadian jurisdictions other than New Brunswick that have preserved a coroner system, the following table illustrates the various approaches to standing:

Northwest Territories and Nunavut Coroners Act , R.S.N.W.T. 1988, c. C-20, ss. 37 and 40 The coroner shall grant standing to any person whom the coroner considers to have a substantial interest in the inquest. A person who has been granted standing may (1) be represented by counsel or an agent; (2) call, examine and cross-examine witnesses; (3) obtain from a coroner a summons to require the attendance of a witness; and, (4) present arguments and submissions and address the jury at the conclusion of the evidence. Yukon Coroners Act , R.S.Y. 2002, c. 44 The Act is silent as to standing. However, in Silverfox v.

Chief Coroner , 2013 YKCA 11 , [2013] Y.J. No. 61 (QL) , the Court notes that “[t]he only persons entitled under the Act to participate in the inquest are the coroner and Her Majesty. It has become practice for a coroner to open the door of participation to members of the community where appropriate” (para. 45).

British Columbia Coroners Act , S.B.C. 2007, c. 15, ss. 31, 33 A person may participate in an inquest in certain instances where notice of the inquest is required to be given, and otherwise if the coroner allows the participation because the person’s interests may be directly and substantially affected by the findings of the jury. A participant can be represented by counsel or, with the approval of the coroner, an agent. A participant may (1) cross-examine and re-examine witnesses, and (2) with the permission of the coroner lead evidence and examine witnesses. Saskatchewan The Coroners Act , 1999, S.S. 1999, c.

C-38.01, s. 37 A coroner may grant standing to any person the coroner considers to have a substantial interest in the inquest, and one who has standing can be represented by counsel or agent and examine and cross-examine witnesses. Ontario Coroners Act , R.S.O. 1990, c. C.37, s. 41 Any person can apply for standing, which the coroner must grant if it is found that the person is substantially and directly interested in the inquest. (Justice Marshall points out that Ontario courts have significantly enlarged the breadth of this provision by allowing standing to public interest groups (p. 208 and ch. 8)).

A person with standing may: (1) be represented by a person authorized under the Law Society Act , R.S.O., 1990, c. L.8; (2) call and examine witnesses and present arguments and submissions; and, (3) conduct admissible cross- examinations of witnesses relevant to the interests of that person. Quebec An Act Respecting the Determination of the Causes and Circumstances of Death , C.Q.L.R., c.

R-0.2, ss. 136- 138 An interested person, association, government department or agency requesting to be recognized as an interested person shall be so recognized if an interest in the inquest is proved to the satisfaction of the coroner. Any person, etc., so recognized can: (1) ask the coroner to summons a witness; (2) be heard and examine the witness requested to be summoned; (3) cross-examine any other witness; and, (4) make representations to the coroner. Prince Edward Island Coroners Act , R.S.P.E.I. 1988, c.

C-25.1, s. 34 The coroner may grant standing to any person whom the coroner considers to have a substantial interest in the inquest, and such a person may: (1) be represented by counsel or an agent; and, (2) examine and cross-examine witnesses.

[ 53 ] As for those provinces that have abolished the coroner in favour of a medical examiner, their approaches to standing are as follows: Alberta Fatality Inquiries Act , R.S.A. 2000, c.

F-9, s. 49 A public fatality inquiry is held before a judge of the Provincial Court and the following persons may appear either personally or through their counsel and may cross-examine witnesses and present arguments and submissions: (1) any of the next of kin of the deceased; (2) the personal representative of the deceased; (3) a beneficiary under a policy of life insurance on the life of the deceased; and, (4) any person who the judge, on application, determines has a direct and substantial interest in the subject- matter of the inquiry. Manitoba The Fatality Inquiries Act , C.C.S.M., c.

F52, s. 28 An inquest is held before a provincial court judge who, if of the opinion that a person is substantially and directly interested in the inquest, may allow the person to attend in person or by counsel and examine or cross-examine witnesses called at the inquest. Nova Scotia Fatality Investigations Act , S.N.S. 2001, c. 31, s. 36 An inquest is held before a judge of the provincial court who may declare any person who applies to be an interested person for the purposes of participating in the inquiry. The legislation is silent as to what participatory rights such an interested person may have.

Newfoundland and Labrador Fatalities Investigations Ac t, S.N.L. 1995, c. F- 6.1 Where a public inquiry is held, it proceeds under

Part IV of the Provincial Offences Act , S.N.L. 1995, c. P-31.1, which provides that a judge holds the inquiry and may allow a person, determined to be an interested person, to attend and be represented by counsel and cross-examine witnesses and present arguments and submissions. [ 54 ] In stark contrast to the approaches taken in other jurisdictions, New Brunswick stands alone as the one jurisdiction that does not allow “interested parties” or those who have a “a direct and substantial interest” to be given standing at the inquest.

As indicated in the previous section, coroners are legislatively mandated to conduct inquests “in the same manner” as had been the practice before the coming into force of the 1900 Act , unless “otherwise expressly provided by” the Act : s. 37 of the 1900 Act and s. 44 of the current Act . These provisions are unique to New Brunswick, which therefore remains the sole Canadian jurisdiction where the common law approach to standing survives to this day.

Section 44, reads as follows: Except as herein otherwise expressly provided, nothing in this Act shall be taken to restrict the jurisdiction, powers and authority of coroners at common law and all proceedings both before, at the time of, and subsequent to any coroner’s inquest shall be commenced, carried on and completed in the same manner as has heretofore been the practice, except where otherwise expressly provided by this Act.

Sauf dispositions contraires expressément prévues par la présente loi, rien dans la présente loi ne doit s’interpréter comme limitant la compétence, les pouvoirs et l’autorité des coroners selon la common law et toutes les procédures antérieures, concomitantes et postérieures à une enquête de coroner doivent être engagées, poursuivies et terminées conformément à la pratique jusque-là suivie. [ 55 ] The common law at the time of legislative intervention in New Brunswick in 1900 did not provide for standing by interested parties. This is confirmed by Wolfe v. Robinson , [1961] O.J.

No. 534 (H.C.) (QL) , aff’d [1961] O.J. No. 520 (C.A.) (QL) , a case that is said to have been one of the factors leading to the 1972 legislative change in Ontario, pursuant to which standing was permitted for those who apply and can demonstrate they are “substantially and directly interested in the inquest”: Re Brown et al and Patterson , [1974] O.J. No. 2189 (Div. Ct.) (QL), at para. 4 . [ 56 ] In Wolfe , the father of a deceased infant applied for judicial review of the verdict of a coroner’s jury into the death of his child.

He argued the coroner had erred in denying him the rights: (1) to participate in the inquest through counsel; (2) to cross-examine witnesses; and (3) to natural justice. The deceased infant had been born with a condition that required

transfusions to give him a healthy supply of blood, but his parents objected to transfusions on religious grounds. As a result, the Children’s Aid Society was required to apply to a court for authority to grant the required permission, and this caused some delay. Although a transfusion was eventually given, the infant nevertheless died. At the inquest, counsel for the parents sought standing to cross-examine on certain medical evidence. The coroner ruled that counsel has no status at an inquest. [ 57 ] Wells J. dismissed the father’s application for judicial review ( certiorari ).

He began his analysis by tracing the history of the office of the coroner in Canada. He accepted as a guiding principle the words of McTague J. in Re Sidley , [1938] O.J.

No. 451 (H.C.) (QL) : The law that is applicable is the common law of England, superimposed upon which is the statute, and where the statute conflicts with the common law, the statute must prevail, and where the statute is silent on any matter, the common law should prevail. [para. 4] [ 58 ] Wells J. concluded that the coroner had “a full discretion” not to allow the parents the right to participate in the inquest through counsel and through the examination and cross-examination of witnesses if the evidence could otherwise be brought before the jury. [ 59 ] On appeal, however, the Ontario Court of Appeal was not in full agreement.

For the Court, Schroeder J.A. accepted Wells J.’s historical tracing of the development of the office of coroner in England and Canada and noted that “[t]he coroner’s principal judicial function was, as it still is, that of investigating the cases of sudden, violent or unnatural deaths” (para. 8). He described the duties of the coroner and included among these “the summoning, qualifying and examination of the witnesses” noting, however, that this last function “is now normally discharged by the Crown Attorney” (para. 8).

In the end, the Court of Appeal concluded the coroner had no discretion to allow interested parties to have standing at the inquest. The Court’s conclusion is unambiguous: “a coroner in this country has no legal discretion, i.e., a discretion governed and controlled by a specific rule of law or practice to grant or withhold” the privilege of allowing someone’s counsel to participate in the proceedings or to cross-examine the witness (para. 22). The conclusion is summed up in the following paragraphs: Our attention was directed to the monograph on Coroners' Inquests & Investigations by Mr. J.W.

McFadden, Q.C., for many years the Crown Attorney for the County of York who brought out a second edition of the late Dr. Johnson's monograph upon this subject. I quote from p. 38 of this work as follows: In the coroner's court no one, save the coroner, the jurors sworn on the inquest and the Crown attorney or counsel representing the Attorney General, has the right to examine witnesses. Counsel representing interested parties has no more rights in the court than the other members of the public.

Should counsel insist on interrupting the proceedings either by striving to examine witnesses or in any other manner ( sic ) (a barrister) had no more right to insist on taking

part in the proceedings at the inquest than he would have to go into a grand jury room and insist on examining witnesses called before them." Agnew v. Stewart (1862), 21 U.C.Q.B. 396, at p. 404. As a matter of courtesy, however, a coroner usually permits counsel representing interested parties to suggest to himself or to the person examining certain questions to be put to a witness. That states concisely and accurately what, in my experience, has been the invariable practice followed at coroner's inquisitions in this Province.

The denial to appellant's counsel of the privilege of cross-examining witnesses was not a denial of a legal right and certainly did not constitute a denial of natural justice. At a coroner's inquisition there is in no sense a lis inter partes .

The verdict of this coroner's jury was at most an expression of their opinion as to the cause of the death of Baby Wolfe upon the evidence adduced before them and, as has been indicated, their finding would have no relevance whatever in any extraneous proceedings affecting the appellant. [paras. 24- 25] [Emphasis added] [ 60 ] To arrive at that conclusion, Schroeder J.A. thought it necessary to outline the effect of a coroner’s jury verdict on anyone: In Canada today the verdict of the jury at a coroner's inquisition does not bind any person whose acts or omissions may be involved in the jury's findings, and it is not an adjudication of rights affecting either person or property.

There are not "two sides" to an issue before the coroner in the sense in which there are two or more parties before a Judge or other functionary conducting a judicial proceeding, or a hearing in the nature of a judicial proceeding, which will lead to a determination of questions affecting either the litigant's person or his purse. I am firmly of the view, therefore, that the investigation entered upon and conducted by a coroner is not a hearing of such a character as to make applicable to the proceedings the maxim audi alteram partem . Counsel for the appellant argues forcibly that his

client was an interested party; that the jury's verdict made an imputation against him as a father which cast a reproach upon him and wasprejudicial to his good name. Quite apart from the question as to whether or not this would, if true, invest the appellant with a right toattack the inquisition as a person aggrieved, I do not agree that the verdict of this jury can be so construed. The jury did say that acontributing factor to the death of the infant was the delay in administering the exchange transfusion to the infant because of the parents'refusal to give consent to its administration.

They did not say that the consent was wrongfully or unlawfully withheld, and in the wordsused to express their findings they did not purport to condemn the defendant in any way.

They attempted to do no more and did no morethan their duty required, namely, to state those facts as to when, where, how and under what circumstances this child came to its death.[para. 10] [61] Justice Schroeder went on to hold that, even though the jury’s verdict might affect the father’sgood name, that fact did not make him a person aggrieved such that standing was available to even seek judicial review. [62] While there are some aspects of Wolfe that no longer apply in modern times (such as thecharacterization of the institution of coroner as a “criminal Court of record”) the decision illustrates that, at common law in Canada, evenan interested person or one whose interests might be affected by the jury verdict had no legal right to gain standing at a coroner’s inquest.In New Brunswick, that conclusion is reinforced by the fact that, with the legislative intervention, beginning with the 1900 Act andcontinuing to date, the summoning and qualifying of witnesses, the examination of the witnesses and the summing up of the case for thejury are all functions expressly reserved exclusively for the coroner, who can now be assisted by a Crown prosecutor.

It is alsoreinforced by the debates surrounding the passing of the 1900 Act, which clearly show that third party standing was not contemplated. [63] The only case cited in support of the physicians’ plea that a coroner in New Brunswick hasdiscretion to grant standing to interested parties is Wentzell, Administratrix, etc. of Wentzell v.

The New Brunswick & Prince EdwardIsland Railway Company, (1915), (NB CA), 43 N.B.R. 475 (S.C.A.D.), a case cited by the application judge in thismatter. [64] Like the application judge, the physicians say Wentzell illustrates that, in the past, an interestedparty was granted the right to cross-examine at an inquest. I do not agree. [65] Wentzell was a fatal accident case involving workers’ compensation legislation. The details ofthe case are unimportant. Suffice it to say that the administratrix of the estate of one who was fatally injured sued the New Brunswick &Prince Edward Island Railway in negligence.

The defendant denied having been negligent and alleged the fatal injury was the result ofthe deceased’s own negligence. A jury found in favour of the plaintiff, causing the defendant to apply to the appellate division to havethe verdict set aside. At issue was the manner in which the deceased had attempted to board the train.

In the headnote of the case, it isstated that the defendant had “put in evidence, subject to objection of the plaintiff’s counsel, a statement, made on cross-examination atthe inquest by the doctor who attended the deceased immediately after the accident, as to what the deceased told him was the cause ofthe accident”. It is ostensibly to this the application judge and the two physicians refer when they say Wentzell stands as “an apparentexample in this province of cross-examination at an inquest by counsel for an interested party” (para. 7 of the application judge’s reasonsfor decision).

I say “ostensibly” because nowhere in the actual decision is it stated that there had been cross-examination of the doctor atan inquest. [66] In the reasons for decision delivered by McLeod C.J. in dismissing the motion to set aside thejury verdict or for a new trial, the only reference to an inquest is in the following passage: The evidence on which the defendant company relies as showing that the deceased was attempting to get on the cow-catcher is thatgiven by Dr. Carter at the inquest, and the evidence also of Mr. Harris, the manager. Dr.

Carter was not present at the trial, and by anagreement of all parties his evidence, given I presume at the inquest, which was held after the death of Wentzell, as taken by Mr.Bennett, one of the counsel for the defendant company, was admitted. Dr. Carter in giving his evidence at the inquest stated that he hada conversation with the deceased after the accident, as follows (but whether this conversation was at Baie Verte or at Sackville does notappear): “He (meaning the deceased) was able to converse. I asked him how the accident occurred. (Mr.

Friel objects to conversationwith the deceased – Objection overruled). The deceased said that he was getting on the cow-knocker, and his foot caught and he wasdragged under.” [p. 491] [67] This passage is hardly confirmation of a practice whereby cross-examination by counsel for aninterested party was allowed at an inquest. As I understand that passage, one of the lawyers for the defendant company took notes of thetestimony of Dr. Carter at the inquest and the notes were introduced into evidence at the trial. Certainly, that

interpretation of the passageis as plausible as the supposition that it was counsel for the company that elicited the testimony from the treating physician. Moreover,nothing in that passage suggests anything in the nature of a cross-examination.

[ 68 ] In my view, there is no doubt that the practice as it was at the time the 1900 Act came into force did not allow for third party standing at a coroner’s inquest. So long as the practice at inquests continues to be governed by s. 44 of the Coroners Act , coroners in this Province have neither the duty nor the discretion to grant anyone standing at an inquest.

As a result, the Chief Coroner was correct in ruling that “the Coroners Act does not provide for standing by interested parties to an inquest” and in denying the Health Authority’s and the physicians’ request for standing. [ 69 ] In the past, members of the Bar of New Brunswick have sought legislative reform to the institution of coroner.

In 2003, a senior lawyer urged the Canadian Bar Association – New Brunswick Branch to pass a resolution, and forward it to the Premier and Government of New Brunswick, the Minister of Public Safety and the Minister of Justice, recommending that the Coroners Act be immediately amended to, among other things, “permit interested parties or their counsel to appear and to fully participate in an inquest including the right to examine and the right to call evidence, and to examine and cross-examine any witnesses and to make submissions to the inquest jury”.

He also urged the study of the systems in those provinces that had abandoned the institution of coroner in favour of a medical examiner, with a view of doing the same in New Brunswick. The CBA-NB subsequently urged the government of New Brunswick to amend the Act . However, the government responded by stating it had no interest in embarking upon any reform of the coroner’s system.

Another effort was made by the NB-CBA in 2008, but it too evidently did not persuade the government to amend the Act to provide for third party standing. [ 70 ] In concluding on the difference in approaches between New Brunswick and all other Canadian jurisdictions on the question of standing, I adopt the following words of Drapeau C.J.N.B. in Lévesque v.

New Brunswick , 2011 NBCA 48 , 372 N.B.R. (2d) 202 : […] a truism bears repeating: in the Canadian federation, New Brunswick, like all other provinces, is fully entitled to adopt, within constitutional limits, legislation that differs from statutes on the same topic enacted elsewhere. When our Legislature adopts its own legislative framework to address a problem that may be common to some or all sister jurisdictions, its sovereign will in fashioning a solution must be respected. In particular, that sovereign will cannot be sacrificed by courts at the altar of pan-Canadian legislative uniformity. [para. 42] D.

Procedural fairness [ 71 ] The physicians’ argument that procedural fairness is owed to them at an inquest is anchored to their submission that coroners in New Brunswick have the discretionary power to grant them standing. The cases they cite in support of their position are on point: Hudson Bay Mining and Smelting Co. v. Cummings , 2006 MBCA 98 , [2006] M.J. No. 304 (QL) and Silverfox v. Chief Coroner .

However, as explained above, coroners in this Province have no discretion to grant standing to interested parties. [ 72 ] The question of whether, in the absence of standing, the physicians are nevertheless owed any measure of procedural fairness still remains. In my view, the answer has to be no.

Alternatively, even if the respondents were owed a duty of fairness, it was satisfied in this case. [ 73 ] Silverfox is the Yukon case in which the Court acknowledged that while Yukon’s Coroners Act is silent on the question of third party standing, “[i]t has become practice for a coroner to open the door of participation to members of the community where appropriate” (para. 45). In that case, the coroner had granted standing to the family of the deceased. The jury had determined that death had been from natural causes, but the verdict was quashed on judicial review based on a violation of procedural fairness.

The jury’s verdict was restored on appeal. Writing for the Court of Appeal, Saunders J.A. adopts as a starting principle that “a duty of fairness adheres to the inquest” (para. 31), citing Hudson Bay as authority for this proposition. It is, therefore, to that case I now turn. [ 74 ] Hudson Bay was a case where standing had been granted to a number of interested parties pursuant to The Fatality Inquiries Act , S.M. 1989-90, c. 30. The issue in the case was whether transcripts of witness interviews by Crown counsel had to be disclosed to the parties with standing.

In Manitoba, one of those jurisdictions in which the institution of coroner was abandoned in favour of a medical examiner system, inquests are held before a judge of the Provincial Court. Both the inquest judge, and subsequently a judge of the Court of Queen’s Bench on judicial review, ruled that the transcripts were protected by litigation privilege. The Court of Appeal disagreed.

It held that the transcripts were not protected by any privilege and that procedural fairness required their disclosure “ to all parties with standing ” (para. 5 with emphasis added). [ 75 ] Significant differences between the regime in Manitoba and the one in New Brunswick are

apparent when reading the reasons of Steel J.A. in Hudson Bay. First, as noted above, the inquest is held before a judge without a jury. There is no question that a judge is better equipped to make rulings of a legal nature than a lay coroner who may or may not have legaltraining, as could be the case with some coroners in New Brunswick. Second, and most importantly, the Manitoba legislation allows theinquest judge to grant standing to any person who is substantially and directly interested in the inquest, whereas the New Brunswicklegislation does not.

Third, the role of Crown counsel at an inquest is markedly different. In New Brunswick, Crown counsel’s role is toassist the coroner upon request. In Manitoba, Crown counsel participates as of right (s. 27), has the right to examine witnesses, is notappointed as counsel to the coroner, “represents the public interest” and is there “to assist in the administration of justice” (paras. 54-55of Hudson Bay). Fourth, the Manitoba statute expressly contemplates examination and cross-examination, whereas the New Brunswickstatute does not contemplate cross-examination.

Finally, in Manitoba, the Act expressly gives Crown counsel the right to examinewitnesses, and those with standing the right to examine and cross-examine, whereas in New Brunswick the legislation expressly states itis the coroner who must examine the witness, although the coroner can now be assisted by Crown counsel. [76] These differences, and the fact that the coroner in New Brunswick has no discretion to grantthird parties standing at an inquest, makes Hudson Bay of very limited value to the issues raised in this appeal. Yet, there is one aspect ofSteel J.A.’s reasons that should be considered.

It is the part where she stated that “[a]lthough there is no finding of liability orblameworthiness, the findings of fact and the conclusions of the inquest judge may well have an adverse impact upon the reputation of awitness” (para. 91). The application judge in the present case had similar concerns.

He noted that the Health Authority and thephysicians “may be criticized regarding the death of an involuntary psychiatric patient in a complicated ‘statutory, institutional and socialcontext’ in an ‘inquisitorial’ proceeding with a coroner’s jury in a formal public court room, with no express right of appeal” (para. 15).These are legitimate concerns and beg the question: do principles of procedural fairness apply to inquests in the absence of standing?

Inother words, is a duty of procedural fairness owed to those who may be affected by the inquest, and if so, what is the scope of that duty? [77] It is difficult to conceive how a duty of procedural fairness in the traditional sense can be owedat large to people not directly affected by a decision and who have no standing in a matter. As commonly understood, procedural fairnessis a concept that lends itself well to judicial, quasi-judicial and administrative law settings where “the rights, privileges or interests of anindividual” are affected: Baker, at para. 20.

In those cases, people directly affected by a decision have certain expectations that thedecision will not be made until they have been heard and their arguments considered. It seems to me that to impose a duty of proceduralfairness at an inquest in the absence of standing has the potential to open a Pandora’s box. As innocent and well-meaning as theimposition of such a duty would be, it could, in the long run, have far-reaching and unforeseen consequences. [78] Alternatively, even if there was a duty of procedural fairness, it would be met.

This would be sobecause there is in the New Brunswick coroner’s process an opportunity for interested parties to be heard, albeit minimally. [79] It is common ground that any duty of fairness would have to be assessed on the basis of theframework set out in Baker. As L’Heureux-Dubé J. repeated in that case, “the concept of procedural fairness is eminently variable and itscontent is to be decided in the specific context of each case” (para. 21, repeating what she had earlier said in Knight v. Indian HeadSchool Division No. 19, (SCC), [1990] 1 S.C.R. 653, [1990] S.C.J. No. 26 (QL)).

In Baker, L’Heureux-Dubé J.enumerated five non-exhaustive factors designed to help courts determine whether certain procedures respect the duty of fairness in thecontext of a given case. These are the factors the application judge applied in the present case, except that he applied them not todetermine the scope of a duty of fairness, but in order to find there was a duty. With respect, that was putting the cart before the horse. [80] I adopt the

summary of the Baker factors Steel J.A. put forth in Hudson Bay: The first factor identified was the nature of the decision being made and the process followed in making it. The more the processresembled judicial decision-making, the more likely that procedural protections closer to the trial model will be required by the duty offairness. The second factor was the nature of the statutory scheme and the role of the decision within the statutory scheme.

Greaterprocedural protections, for example, will be required when no appeal procedure is provided within the statute or when the decision isdeterminative of the issue. The third factor to consider is the importance of the decision to the individual affected. The more importantthe decision is to the lives of those affected and the greater its impact on those persons, the more stringent the procedural protectionsshould be. The fourth factor considers the legitimate expectations of the person challenging the decision.

Thus, if the promises orregular practices of a decision-maker lead someone to believe the same practice will be followed, it will generally be considered unfairfor the decision-maker to act in contravention of those representations. Finally, the analysis of which procedures the duty of fairnessrequires should also take into account and respect the choices of procedure made by the agency itself. [para. 95] [Emphasis added] [81] Applying those criteria leads me to conclude that the existing procedure for inquests in NewBrunswick will amply meet any duty of procedural fairness owed to the physicians in this case.

[ 82 ] First , unlike Manitoba, the context in which an inquest occurs and the process followed is not similar to the judicial process. In New Brunswick, an inquest is not conducted by a judge qua judge, but rather by a coroner, who may or may not have legal training; there is no right to standing by interested parties who can be represented by counsel; the Crown prosecutor’s participation is solely to assist the coroner; witnesses are not subjected to cross-examination; and, third parties are not permitted to make submissions to the jury.

I adopt the words of Saunders J.A. in Silverfox in addressing the first of the Baker factors: In my view, an inquest is at some distance from a judicial process. Analysis must start, in my view, by recognizing the differences between an inquest, which is an investigative inquisitorial proceeding, and a judicial process, which is a rights determination proceeding. An inquest is not adversarial, a trial is. An inquest does not determine rights or fault, a trial does.

And the coroner has broad discretion to fashion procedure and determine how best to present the information, in contrast to judicial proceedings wherein the adversaries present evidence.

It seems to me that the differences just identified discourage the mandatory application of court-style procedure. [para. 54] [ 83 ] Second , the statutory scheme in this case prevents a coroner from granting anyone standing at an inquest, so by the very application of the law, the parameters of any duty of procedural fairness are severely restricted. [ 84 ] Third , as in all other Canadian jurisdictions, the verdict rendered at an inquest and any ensuing recommendations are not determinative of anyone’s specific rights or liabilities.

The coroner’s inquest in New Brunswick is designed to ensure that blame is not cast on any individual or corporation. Admittedly, a witness testifying in the public forum of an inquest may have to give evidence that would affect his or her professional or personal reputation, but this is a far cry from a procedure designed to determine rights and liabilities.

I agree with Godin J. in Gregoire that the jury “cannot, by law, go beyond the narrow area of inquiry specifically authorized by the Coroners Act ” (para. 28), and that neither the coroner nor the jury are allowed to “express any conclusion of civil or criminal responsibility and are prohibited from naming any person or persons responsible for any act or omission which may have contributed to the death of the deceased” (para. 31).

In this particular case, I note for example that the Chief Coroner has already indicated that the Perry inquest “will not receive evidence or consider whether the process or resources used [for the autopsy] were appropriate or not”. This is consistent with the principle that the scope of the inquest should be limited to matters that played a role in the death under investigation: Halsbury’s , at HCN-28. The Chief Coroner’s statement should alleviate Dr. Hossain’s fear that his “conduct in the performance of the post-mortem examination of Ms.

Perry will be examined at the Inquest”. [ 85 ] Fourth , neither the Health Authority nor the physicians in this case could have had a legitimate expectation that they would be given any more participatory rights at the inquest than that which has been afforded third parties in the past. [ 86 ] Fifth , the choice of procedure made by the Coroner’s office in New Brunswick appears to be designed to ensure that, within the parameters of what is allowed by law, there will be a full and complete examination of the circumstances surrounding the death in respect to which the inquest is held, to determine the very limited questions that may remain unanswered: who died, how did the person die and what if any recommendations sho

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