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Evidence at Coroner's Inquests in Ontario, Canada – Statutory Powers and Witness Protections

  • Legal Development 16 January 2020 16 January 2020
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The Office of the Chief Coroner of Ontario's motto is "We speak for the dead to protect the living"[1]. It is put into practice through death investigations and inquests. This article reviews the purpose of a coroner's inquest and delves into the protections afforded to witnesses who are compelled to provide evidence at a coroner's inquest.

Canada Overview

Canada is governed by two levels of government: the federal government and the provincial/territorial governments. Pursuant to the Constitution Act, 1867, and with minor exceptions, each level of government has the authority to legislate on matters within its own jurisdiction (i.e. provincial governments cannot legislate on matters that have been designated to be within the power of the federal government, and vice versa).

There are ten provinces and three territories in Canada. Outside of Quebec, the remaining nine provinces and three territories are common law jurisdictions. Quebec is governed by the Quebec Civil Code. Since Ontario is Canada's most populous province and largest economy, we are limiting our analysis to Ontario. Please note, however, that many of the same principles in this article apply throughout Canada's common law jurisdictions.

The Purpose of Coroner's Inquests

According to Ontario's Ministry of the Solicitor General, an inquest is a public hearing conducted by a coroner before a jury of five community members. Inquests are held for the purpose of informing the public about the circumstances of a death. Although the jury’s conclusions are not binding, it is hoped that any recommendations suggested, if implemented, will prevent further deaths.

Coroners are medical doctors with specialized death investigation training, who have been appointed to investigate sudden deaths as mandated by the Coroners Act[2].

The coroner is usually represented by a Crown Attorney who acts as counsel to the coroner. In addition, other persons with a substantial and direct interest in the inquest, including persons who may be directly and uniquely affected by the recommendations, may take an active part in the proceedings. This participation is called “standing.” A person or party must apply to the coroner for standing.

There are two types of inquests: mandatory (required by law) and discretionary (at the discretion of the coroner). The purpose of a coroner's inquest is for the Jury to answer what is colloquially known as the "Five Questions". The Five Questions are to determine: (a) who the deceased was; (b) how the deceased came to his or her death; (c) when the deceased came to his or her death; (d) where the deceased came to his or her death; and (e) by what means the deceased came to his or her death[3].The jury cannot make any finding of legal responsibility but may make recommendations directed to the avoidance of further deaths or respecting any other matter arising out of the inquest[4].

There is a heightened public interest in knowing about civilian deaths where there is police involvement. As such, a coroner's inquest must be called when a person has died in police custody or while detained[5]. Coroner's inquests are therefore often most impactful on the families of individuals who have died while in police custody or while detained. As noted by The Honourable Michael H. Tulloch in his Report of the Independent Police Oversight Review, a coroner's inquest provides a level of transparency[6]. Affected family members are able to hear directly from witnesses to the event, including the officers involved.

Once the five questions are answered, jurors may make recommendations based on the evidence presented to them. However, it is not a requirement that jurors make recommendations.

Coroner's Inquests and Terrorism

To date, Ontario has not used coroner's inquests as a mechanism to address terrorist incidents. Other jurisdictions, such as the United Kingdom, have used coroner's inquests to develop recommendations for improvements in terrorist monitoring and assessment. Given the rise in terrorist incidents in Ontario over the last decade, there will likely be increasing public pressure to have greater transparency regarding the government's treatment of these events and the steps taken to minimize the potential for future terrorist incidents. Coroner's inquests would be one way of addressing such concerns.

The Power of Coroners to Admit and Compel Evidence

In order to be received at an inquest, evidence must be relevant and material[7]. The coroner can admit as evidence at an inquest any oral testimony or any document relevant to the purposes of the inquest regardless of whether the evidence would be admissible in court[8]. As a result, challenging evidence based on admissibility concerns is often an uphill battle.

Witnesses who have relevant evidence to give at an inquest will be summoned to attend. Witnesses will be sworn or affirmed and must give truthful testimony. Witnesses can be cross-examined by parties granted standing at the inquest. Evidence cannot be used to incriminate individuals in other courts unless the witness commits perjury. Perjury at an inquest is an offence and may lead to criminal charges. Witnesses are entitled to have their own lawyers or agents present to advise them of their rights, but further involvement requires permission of the coroner presiding over the inquest.

Generally, access to exhibits is made available to the public and media after the jury has viewed them, except where otherwise ordered by the coroner.

Protection for Witnesses at Coroner's Inquests

The power of the coroner to compel evidence is unlike typical proceedings where an accused can choose to remain silent and not testify. A witness that is subpoenaed must attend the inquest and give evidence. In this respect, the evidence is "State-compelled evidence" and involuntary in nature. Therefore, a number of safeguards are implemented through the Coroners Act to protect witnesses from otherwise possibly being forced to give inculpatory evidence.

As noted above, given the coroner's power to summons and compel evidence, there is protection for witnesses who give evidence at an inquest. Pursuant to s. 42(1) of the Coroners Act, "…no answer given by a witness at an inquest shall be used or be receivable in evidence against the witness in any trial or other proceedings against him or her thereafter taking place, other than a prosecution for perjury in giving such evidence"[9].

Section 42(1) was considered by the Court of Appeal for Ontario in its 2004 decision M.A.S. (Litigation guardian of) v. Ludwig[10]. In this matter, the appellants brought an action for, among other things, misfeasance in public office. In its second amended statement of claim, the appellants relied on certain admissions made by a police detective in testimony he gave during a coroner's inquest. The issue on appeal was whether s. 42(1) prevented the appellants from pleading admissions and statements made by the detective in his testimony at the inquest.

The Court in M.A.S. held that s. 42(1) applied because the plaintiffs were not using the detective's testimony for the limited purpose of impeaching his credibility but rather to show that he acted with malice. The Court agreed with the motions judge's statement that s. 42(1) "…protects all answers given by a witness at an inquest such that they cannot be used or be receivable in evidence in a subsequent trial or proceeding against the witness, except perhaps to impeach the witness' credibility or in a perjury prosecution[11]. Therefore, the paragraphs in the pleading that referred to the admissions and statements made by the detective in testimony he gave during the inquest were struck from the pleading.

In many situations, a civil proceeding will have commenced by the time a coroner's inquest has been called. This can lead to persons with standing also being plaintiffs in the parallel civil proceeding. Should a plaintiff in civil litigation be granted standing in an inquest, counsel for an affected party in the civil proceeding may wish to oppose standing or ensure that the proceeding does not turn into an examination of key witnesses that may use the information to facilitate their own interests in the civil proceeding. This can be difficult because of the mandate of coroner's inquests, but counsel should be cognizant that while the evidence given at a coroner's inquest is inadmissible in a civil action, counsel can still use the opportunity to test witnesses for alternative interests.

Due to the importance of coroner's inquests, coroners have been provided with considerable statutory powers to admit and compel evidence. Despite these powers, coroner's inquest witnesses need not be concerned that their evidence will be used against them in future proceedings so long as they tell the truth on the witness stand.

Footnotes
1. See: https://www.mcscs.jus.gov.on.ca/english/DeathInvestigations/office_coroner/coroner.html
2. Coroners Act, R.S.O. 1990, c. C.37 ["Coroners Act"].
3. Coroners Act, s. 31(1).
4. Coroners Act, s. 31(2) and (3).
5. Coroners Act, s. 10(4)-(4.6).
6. See: https://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/police_oversight_review/ at para. 172.
7. Chief Coroner's Rules of Procedure for Inquests, s. 8.2(2).
8. Coroners Act, s. 44(1).
9. Note: similar protections are provided in s. 5(2) of the Canada Evidence Act, R.S.C. 1985, c. C-5 and s. 13 of the Canadian Charter of Rights and Freedoms.
10. [2004] O.J. No. 3909 (C.A.) ["M.A.S."].
11. M.A.S. at para. 23.

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