Wednesday, April 15, 2009

Letter from John Foran in which he refuses to amend the Coroners Act

March 11, 2009

Dear Mrs. Acevedo and Mrs. Hains:

Thank you for your e-mail of February 9, 2009. As you know, your e-mails to several other ministers and officials have been forwarded to my attention as well.

Before addressing your e-mails directly, I wish to tell you once again, my heart goes out to the two of you and your families, and the six other families who lost loved ones on January 12, 2008. I know that your loss is incalculable, and applaud your efforts to make sense of it, and find lessons that can be learned so as to avoid similar tragedies in the future. I pray that both of you are able to find some measure of peace in the weeks, months and years ahead.

From your several e-mails I have observed three key themes in relation to the Coroners Act:

- The Act should be amended to grant to interested parties, including the families of the deceased, standing at inquests.
- The Act should be amended to make the recommendations that arise from inquests mandatory.
- The Act is 110 years old, and does not meet the needs of modern New Brunswick.

I will address each of these in order.

The government does not intend at this time to amend the Coroners Act to provide “standing” to interested parties. This would mean that in addition to the witnesses called by the presiding coroner, and the questions posed to those witnesses by the crown prosecutor, other interested parties would be entitled to cross-examine these witnesses, to call their own witnesses, to cross-examine witnesses called by other interested parties, and to advance recommendations to the jury.

You are correct in noting that the Canadian Bar Association – New Brunswick Branch has advocated for such an amendment. From time to time, my predecessors and I have heard this from individual litigation lawyers as well.

As you may know, the presiding coroner and the crown prosecutor prepare for inquests in consultation with interested parties, and they consult parties (and their counsel, if they wish) during inquests. They will elect to avoid duplicative questions, and questions that do not go to the purposes of the inquest, which are to establish the cause of death and to learn enough about the circumstances of the death to articulate recommendations as to any action that should be taken to prevent future injury or death in similar circumstances. For example, questions that aim at assigning legal responsibility for a death to any person are beyond the scope of an inquest, properly before a court of criminal or civil jurisdiction, and these will be avoided.

In short, the experience of successive chief coroners of New Brunswick has been that the existing procedures present no barrier to getting at the true circumstances of a death, and no barrier to articulating recommendations.

You have written that, in the inquest into the incident that resulted in the deaths of your sons, you want answers to your questions. I encourage you to advance all questions to the presiding coroner and crown prosecutor. I am assured they will put to witnesses before the jury every question that is within the proper scope of an inquest.

You have written also that you want recommendations from a fully informed jury. I am confident that the existing legislation and process is entirely adequate to ensure juries are fully informed as to all relevant facts.

Although you did not mention the issue in your e-mail to me, in writing to the Office of the Attorney General you mentioned you are also concerned that jury recommendations “are not binding”, and that “there is no follow up” from inquests.

We are concerned that if jury recommendations were made binding, jurors may focus on issues as to the operational feasibility of potential recommendations, and might restrain themselves from making recommendations out of concern for questions related to implementation. It is better, in our view, for juries to be unfettered by such concerns, and to leave questions of cost and practicality of implementation to the expert organizations that are the subject of recommendations. Second, we believe strongly that public policy decisions are best made by officials and institutions that are directly accountable to the public.

I must also point out that the fact that the law does not mandate implementing recommendations of coroner’s juries does not mean that “there is no follow up” to the recommendations. The Chief Coroner is required by law to report all recommendations to any person or institution, government or private, that he or she “has reason to believe … should be concerned with the subject matter”. The Chief Coroner is also required to report annually to the Legislative Assembly, and by that means reports on all inquests, including recommendations and the responses received from parties to whom recommendations were sent. This process assures transparency, and creates pressure on those who receive recommendations to respond in a meaningful way.

Finally, I wish to correct the proposition that the Coroners Act does not meet modern needs. While I am told that it is true that its original form dates back some 110 years, it has been amended many times to meet changing needs. In fact, I am advised that the Legislative Assembly has amended the Coroners Act twenty-four times in the past thirty-five years: the Act is not today in its 1899 form.

In closing, I wish to thank you for writing, and once again, to express my hope and prayer that both of you will find peace in the wake of the terrible loss each of you has suffered. I would be happy to meet with you at your convenience should you wish to voice your concerns in person.

Yours sincerely,

Hon. John W. Foran

Minister of Public Safety and Solicitor General