The Ontario Government has provided an "explanatory note" which points the changes which are being made to the province's Coroner's Act as a result of the Charles Smith debacle and the recommendations of the Goudge Inquiry;
I am somewhat concerned that these amendments have been made without apparent scrutiny outside of the legislature - and that I have come across no public analysis as to whether the amendments go far enough to remedy the abuses in Ontario's Coroner's system revealed by the Goudge Inquiry;
I invite our readers to direct any comments about the amendments privately to me at hlevy15@gmail.com and may post some of them at a later date without identifying the author - unless the author would like to be identified;
As set out in the explanatory note:
New section 6 requires the establishment of the Ontario Forensic Pathology Service, which will facilitate the provision of pathologists' services under the Act.
Amendments respecting pathologists;
Under new section 7, the Lieutenant Governor in Council may appoint a Chief Forensic Pathologist and Deputy Chief Forensic Pathologists, all of whom must be pathologists certified in forensic pathology. The Chief Forensic Pathologist is responsible for the administration and operation of the Ontario Forensic Pathology Service and for the supervision and direction of pathologists who provide services under the Act.
The Chief Forensic Pathologist is required by new section 7.1 to maintain a register of pathologists who are available authorized to provide services under the Act.
Amendments respecting post mortem examinations:
Sections 28 and 29 of the Act are re-enacted to clarify the roles of coroners and pathologists with respect to post mortem examinations. A coroner is authorized to issue a warrant to a pathologist requiring the pathologist to perform a post mortem examination of a body. The warrant must be issued to a pathologist whose name is on the register maintained by the Chief Forensic Pathologist. The Chief Forensic Pathologist may assign another pathologist whose name is on the register to perform the post mortem examination instead of the pathologist to whom the coroner's warrant was issued.
The pathologist who conducts the post mortem examination may conduct, or direct another person to conduct, additional examinations and analyses as he or she considers appropriate. The pathologist is given the power to enter and inspect any place where the dead body is and examine the body and to enter and inspect any place from which the pathologist believes the body was removed.
The pathologist and any other person who conducted examinations or analyses are required to report their findings to the coroner who issued the warrant, the regional coroner and the Chief Forensic Pathologist. The Chief Forensic Pathologist must advise the Chief Coroner if, in his or her opinion, a second or further post mortem examination of the body should be performed and the Chief Coroner is then required to order another post mortem of the body.
The power to extract the pituitary gland for the purpose of treating growth hormone deficiency, currently set out in section 29 of the Act, is not re-enacted. Safer methods of obtaining growth hormones are now available.
Subsection 56 (1) of the Act is amended to provide for regulations governing the retention, storage and disposal of tissue samples, implanted devices and body fluids obtained from a post mortem examination of a body or other examinations and analyses.
Amendments respecting oversight and complaints:
The current section 8 of the Act is replaced with a provision dealing with oversight. Section 8 establishes the Death Investigation Oversight Council, whose function is to oversee and advise the Chief Coroner and the Chief Forensic Pathologist.
New section 8.1 lists the matters on which the Oversight Council is to provide advice: financial resource management, strategic planning, quality assurance, performance measures, accountability mechanisms, appointment and dismissal of senior personnel, the exercise of the power to refuse to review complaints, compliance with the Act and the regulations, and other prescribed matters. The Oversight Council is to report to the Minister on its activities, including its provision of advice. It is also required to advise and make recommendations to the Minister respecting the appointment and dismissal of the Chief Coroner and the Chief Forensic Pathologist.
New section 8.2 requires the establishment of a complaints committee composed of members of the Oversight Council.
New section 8.4 sets out the complaints process. Any person is entitled to make a complaint to the complaints committee about a coroner, a pathologist or another person who has powers or duties in relation to post mortem examinations. The committee will generally refer complaints about coroners to the Chief Coroner and complaints about pathologists to the Chief Forensic Pathologist. It will itself review complaints about the Chief Coroner and the Chief Forensic Pathologist. It will refer complaints about the other persons with powers or duties in relation to post mortem examinations to a person or organization that has power to deal with those complaints and that the committee considers appropriate. It may also refer a complaint about a coroner or pathologist to the College of Physicians and Surgeons of Ontario or to another person or organization, if it is of the opinion that the complaint is more appropriately dealt with by the College or other person or organization. A person who is not satisfied with the results of a review of a complaint by the Chief Coroner or Chief Forensic Pathologist may ask the committee to review the complaint. The committee will report on its activities to the Oversight Council.
Amendments respecting coroners' investigations:
Subsection 15 (1) of the Act is re-enacted to enlarge on the purpose and scope of a coroner's investigation. The new subsection makes clear that the coroner must make such investigation as, in the coroner's opinion, is necessary in the public interest not only to determine whether or not an inquest is necessary, but also to determine the answers to the same questions to be determined by an inquest under subsection 31 (1) (i.e., who was the deceased and how, when, where and by what means did he or she die) and to collect and analyze information about the death in order to prevent similar deaths.
Under new section 16.1, the Chief Coroner may appoint any person to exercise the investigative powers of a coroner. A person appointed under this section cannot determine whether or not to hold an inquest and cannot hold an inquest.
Clause 4 (1) (d) of the Act currently requires the Chief Coroner to bring the findings and recommendations of coroners' juries to the attention of appropriate persons, agencies and ministries of government. This is expanded to apply to the findings and recommendations of coroners' investigations as well.
Amendments respecting the determination to hold an inquest:
The obligation in clause 10 (1) (b) of the Act to notify police or a coroner if a person believes a deceased person died by unfair means is repealed.
Current subsection 10 (4) of the Act requires that an inquest be held where a person dies while detained by or in the actual custody of a peace officer or while an inmate on the premises of a correctional institution, lock-up or place or facility designated as a place of secure custody under section 24.1 of the Young Offenders Act (Canada). Subsection 10 (4) is divided into several subsections dealing with these situations. The new subsections 10 (4.3) and (4.5) provide that, in the case of a person who dies while committed to correctional facilities, an inquest is mandatory only if the coroner is of the opinion that the person may not have died of natural causes. New subsections are added to provide for a mandatory inquest if a person dies while being restrained and while detained in a psychiatric facility or in a hospital under the mental disorder provisions of the Criminal Code (Canada), or while committed or admitted to a secure treatment program under the Child and Family Services Act.
Under current sections 18 and 19 of the Act, a coroner is required to notify both the Chief Coroner and the Crown Attorney once he or she decides to hold an inquest or not. Sections 18 and 19 are re-enacted, and new section 18.1 is added, so that a coroner need only notify the Chief Coroner of the decision to hold or not hold an inquest. A coroner must notify the regional coroner if he or she thinks that the deceased person may not have died of natural causes, and the regional coroner must pass the notification on to the Crown Attorney. Where a coroner decides not to hold an inquest, he or she may make recommendations to the Chief Coroner with respect to the prevention of similar deaths, and the Chief Coroner may make the coroner's findings and recommendations public in the interests of public safety.
Amendments respecting inquests:
Section 22 of the Act, which authorizes the Minister to direct a coroner to hold an inquest, is repealed.
Section 23 of the Act, which authorizes the Minister to appoint a commissioner to hold an inquest, is repealed.
Subsection 33 (4) of the Act, which allows for an inquest to be held without a jury in a territorial district, is repealed.
Subsection 37 (1) of the Act currently requires a coroner's jury to view the body when directed by the coroner. This is amended to require the jury to view any place, not the body.
Subsection 50 (2) is expanded so that a coroner may limit cross-examination of a witness where the coroner is of the opinion that the questions being asked are irrelevant, unduly repetitious or abusive.
Amendments respecting administrative matters;
Section 4 of the Act is amended to permit the Chief Coroner to delegate any of his or her powers to a Deputy Chief Coroner.
As indicated above, section 8 of the Act is replaced with a provision dealing with oversight. This eliminates the provision that authorized a provincial judge to act as a coroner in a territorial district in the absence of a coroner.
Section 9 of the Act requires the local police force to assist a coroner and allows the Chief Coroner to request that the criminal investigation branch of the Ontario Provincial Police provide assistance to a coroner if he or she considers it appropriate. This is re-enacted.
Under new subsection 9 (2), the Chief Coroner may also request that another police force provide assistance to a coroner.
Subsection 15 (3) of the Act is amended to remove the Minister's power to give instructions to a coroner to issue a warrant to take possession of a body or interfere with a case after another coroner has issued a warrant.
A coroner's power in the English version of clause 16 (1) (a) of the Act is amended to state that he or she may "examine" a dead body, not merely "view" it.
Currently, the Act requires a coroner to issue a warrant to hold an inquest. The Bill dispenses with the requirement for a warrant; a coroner simply holds an inquest.
The Minister's powers in sections 24 and 27 of the Act are transferred to the Chief Coroner.
Section 39 of the Act is re-enacted to allow a summons to a juror or witness to be served by leaving a copy, in a sealed envelope addressed to the person summoned, at his or her place of residence with anyone who appears to be an adult member of the same household.
Subsection 45 (2) of the Act is amended to remove the Minister's power to require evidence recorded at an inquest to be transcribed.
New section 50.1 authorizes the Chief Coroner to make rules of procedure for inquests. The authority to make rules of procedure for inquests by regulation is repealed.
Section 53 of the Act, which limits the personal liability of coroners and persons acting under a coroner's authority, is expanded to apply to anyone exercising a power or performing a duty under the Act.
The Minister is given power to make regulations requiring and governing the disclosure, collection and use of information about coroners, pathologists and other members of the College of Physicians and Surgeons of Ontario among the Chief Coroner, the Chief Forensic Pathologist, the Oversight Council and the College.
The requirement that forms under the Act be prescribed by regulation is repealed, except for the bench warrant issued under subsection 40 (3), and replaced by the authority that the Minister may require and approve forms for the purposes of the Act.
Housekeeping amendments;
In clause 4 (1) (f), the redundant reference to "or by the regulations" is deleted, since it is captured by the phrase "under this or any other Act".
(I will publish the actual amendments in a future post);
Harold Levy...hlevy15@gmail.com;
