Wednesday, January 7, 2009

We Want Standing at the Coroners Inquest

Something very interesting has happened since the Coroner's Inquest was called and it wasn't what we expected. In the days before the Inquest was called on Thursday, December 18 and in the following weeks, there were a series of articles and editorials in the New Brunswick Telegraph Journal about problems with the Coroners Act. [Click here to go to Press Room to read articles].

The Coroners Act governs the conduct of a Coroners Inquests in New Brunswick. [Click here to read the Coroners Act on the Government of New Brunswick website].

When we had our press conference on December 12, we had every reason to believe that a Coroner's Inquest would answers all the questions we were asking, such as:

"Why is the passenger van owned by a non-profit company run by the Principal, two Vice-principals and a teacher and not the Department of Education?"; and

"Why are there different inspection standards for passenger vans than school busses?"; and most importantly,

"Why were our sons out on the road that night in a van that was unfit for travel and in those weather conditions?"

Coroners Act Does Not Allow for Cross Examination of Witnesses

But, as we found out, we may not get the answers to these questions because the Coroners Act does not allow for cross examination of witnesses. According to Saint John lawyers David O'Brien and John Barry, the NB Coroners Act is one of the oldest in Canada, and except for some amendments over the past century, it remains virtually unchanged since it was introduced more than 100 years ago.

Premier Shawn GrahamO'Brien and Barry say the Coroners Act needs to be completely revamped starting from scratch, and they are not alone. While both lawyers are with the firm Barry Spalding out of Saint John, O'Brien represents the Canadian Bar Association, NB Branch. We have since found out that the CBA-NB has been trying to convince successive provincial governments starting with Bernard Lord's Conservatives and now with Shawn Graham's Liberals, to scrap the old Coroner's Act in favour of a new one. In fact, the CBA-NB Branch even wrote a detailed, 71 page report and analysis in 2003 that it submitted to the government. [ Click here to download the 2003 CBA-NB Report in PDF format].

When you read the report you will see it clearly points out the shortcomings of the present Act and calls for a completely new Act that is up to modern forensic standards, one of the most basic being cross examination of witnesses. But as of today, the report still sits on a shelf somewhere, gathering dust in the Department of Public Safety or in a drawer in Shawn Graham's desk.

Hon. John Foran, Minister of Public SafetyFurther to this, we found out that this past April 21, Mr. O'Brien wrote to Hon. John Foran asking him to please consider an amendment to Bill 48, (Bill 48 was an Act to Amend the Coroner's Act which was passed on April 30, 2008), that would allow standing for interested parties but Foran refused. Apparently he said there was nothing wrong with the Coroner's Act. Mr. O'Brien said the change could come at little cost to the province and would be an interim measure while the Act is revamped, allowing interested parties standing at future Coroners Inquests. The answer was NO. [Click here to read the letter from the CBA-NB to Hon. John Foran, dated April 21, 2008 in PDF format]

We now are left to wonder if the reason Minister Foran refused to implement the amendment to the Act was because he knew our son's deaths would result in a Coroners Inquest sooner than later and if we had standing some things would come out that would not look very good for the Department of Education, specifically, with regards to the ownership of these vehicles. The non-profit organization that owns the vans is left to shoulder all the responsibilty for the tragedy while the Department of Education walks away scott free.

We firmly disagree with Minister Foran's statement that there is nothing wrong with the Coroners Act. We want standing at the Inquest into our son's tragic deaths. What is the use of a Coroners Inquest if we can't get the answers to the questions we are asking about the deaths of our children? We don't want a regurgitation of the July 2008 Accident Reconstruction Report [click here for report] or the November 2008 RCMP report which ruled out charges in the tragedy - and which we are not allowed to have a copy of despite a request under the Access to Information Act.

We want answers to our questions and recommendations from a fully informed jury that has heard witnesses testify under cross examination. Anything else is an insult to the memories of our sons.

We are still educating ourselves about the Coroners Act and know that we have a long way to go, but after reviewing the Canadian Bar Association 2003 Report New Brunswick Branch Report and knowing what changes Mr. Barry and O'Brien are seeking, we feel that we are heading in the right direction.

Here's just a little bit of what Mr. O'Brien and Mr. Barry had to say in the Telegraph Journal. We're also including some of the quotes from the Telegraph Journal editorials that followed over the following weeks.

Click to Read Pleas put outdated act in the spotlight

While heartbroken parents in Bathurst hope a coroner's inquest will settle lingering questions about the van crash that killed their children, legal experts caution that New Brunswick's outdated Coroner's Act is not up to the task. [Click here to read Telegraph Journal article on line.]

Click to Read Seek the best inquest process
Published Thursday December 18th, 2008

The parents of seven Bathurst teens who died in a van crash last winter are seeking a coroner's inquest. Their request has led to renewed calls to rewrite the 104-year-old Coroner's Act.

Public Safety Minister John Foran seems reluctant to do so, and we don't understand why. New Brunswick's legislation should be benchmarked against the best practices in other jurisdictions.

When the Coroner's Act was proclaimed, the science of forensic investigation had barely begun. Plane and automobile accidents were a thing of the future. Officials sorting through investigators' reports today need to understand the science of death investigation and the process of accident investigation. Coroner's juries need access to a range of expert opinion. The Coroner's Act, in its present state, does not demand the rigour an inquest requires. That's why the Canadian Bar Association and this newspaper have pushed frequently for changes. [Click here to read the entire Telegraph Journal editorial on line]