Court File and Parties
DIVISIONAL COURT FILE NO.: 212/14
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
KITELEY, DAMBROT AND RAY JJ.
BETWEEN:
EVELYN MINTY, DIANE PENDER, BRIAN MINTY and JOHN MINTY
Applicants
– and –
DR. WILLIAM LUCAS, CORONER
Respondent
COUNSEL:
Elisabeth Widner, Julian Roy and Marc Gibson, for the Applicant
Darrell Kloeze, for the Respondent
Christopher Diana and Leila Beheshti, for the Ontario Provincial Police
James Girvin, for Messrs. McKay and Warren Q.C.
Shona Miller, for Ontario Provincial Police Association
HEARD: May 23, 2014
Reasons for Judgment
1This is an application for judicial review of an interlocutory ruling made by the Coroner at the outset of a Coroner’s Inquest relating to the scope of the cross-examination that will be permitted of two police officers who will be called as witnesses at the inquest.
Background
2The inquest relates to the shooting death of Douglas Minty on June 22, 2009. Ontario Provincial Police Constable Sequin responded to a call concerning an alleged assault committed by Mr. Minty. Unbeknownst to Cst. Sequin, Mr. Minty was developmentally disabled. When Cst. Sequin arrived at the Minty residence, Mr. Minty approached him with a knife. Cst. Sequin ordered him to drop the knife, but Mr. Minty did not comply, and continued to approach the officer. P.C. Sequin then shot Mr. Minty, who died shortly after.
3Cst. Boyd arrived at the scene shortly after the shooting, followed by Sgt. Burton, the supervisor of the two officers. Sgt. Burton advised the officers that they could be designated as witness officers by the Special Investigations Unit, or SIU, and that they should make no further notes until they had spoken to counsel. Both officers spoke to counsel before making their notes.
4In November 2009, the present applicants, together with the family of Levi Schaeffer, the deceased in another, unrelated shooting investigation, brought an application for declaratory relief in the form of an interpretation of various provisions of the Police Services Act, R.S.O. 1990, c. P.15, (“PSA”), and O. Reg. 267/10: Conduct and Duties of Police Officers Respecting Investigations by the Special Investigations Unit (“SIU regulations.”) Of particular concern on this application was the interpretation s. 133(9) of the PSA and s. 7(1) of the SIU regulations.
5Section 133(1) of the PSA provides that there shall be a special investigations unit of the Ministry of the Solicitor General. Section 133(5) authorizes the director of the SIU to cause investigations to be conducted into the circumstances of serious injuries and deaths that may have resulted from criminal offences committed by police officers. Section 133(9) provides that members of police forces shall co-operate fully with the members of the unit in the conduct of investigations.
6Section 7(1) of the SIU regulations provides that every police officer is entitled to consult with legal counsel or a representative of a police association and to have legal counsel or a representative of a police association present during his or her interview with the SIU.
7The 2009 application ultimately made its way to the Supreme Court of Canada. It was heard by the Supreme Court on April 19, 2013, and reserved.
8On November 28, 2012, while this litigation was on-going, an inquest into the death of Mr. Minty was commenced. Following the commencement of the inquest, the applicants, who are members of the family of the deceased, brought a motion seeking permission to cross-examine the two police officers regarding their conversations with their counsel prior to preparing their police notes relating to this event. They brought a companion motion seeking a ruling that if such cross-examination was allowed, counsel representing the officers at the inquest should be disqualified for conflict of interest. On December 14, 2012, at the request of the two officers, the Coroner adjourned the inquest pending the ruling of the Supreme Court.
9The Supreme Court released its judgment in Wood v. Schaeffer, [2013] S.C.J. No. 71, 2013 SCC 71, on December 19, 2013. Moldaver J., for the majority, declared that:
The Police Services Act, R.S.O. 1990, c. P.15, s. 113(9), and the regulation regarding Conduct and Duties of Police Officers Respecting Investigations by the Special Investigations Unit, O. Reg. 267/10, prohibit subject and witness officers from consulting with counsel until the officers have completed their police notes and filed them with the chief of police.
10The inquest was scheduled to recommence on May 6, 2014. On March 18, 2014, at a pre-inquest meeting, the coroner indicated that pre-inquest motions were to be made in writing by April 1, 2014. On April 1, 2014, the applicants gave notice that they intended to renew their two motions that had been brought at the original inquest. Their notice was accompanied in each case by detailed written submissions. In their material, they also requested the opportunity to make oral submissions.
The impugned ruling
11The Coroner released his ruling to counsel on April 30, 2014 on a confidential basis. Once the inquest commenced, his ruling was made public and released to the media. At no time before or after the release of the ruling was the existence of the motions or the submissions made by counsel required to be kept confidential.
12In his ruling, the Coroner denied the applicants’ request for an oral hearing of their motions. He then ruled as follows:
- The communications between the officers and their counsel were the subject of solicitor-client privilege, unless the crime/fraud exception applies, or if the effect of the declaration in Wood v. Schaeffer is that the privilege never existed due to the timing of the consultation with counsel.
- The crime/fraud exception did not apply.
- The declaration in Wood v. Schaeffer does not apply retroactively to permit cross-examination on the content of the communications between the officers and their counsel.
- Counsel were not precluded from testing the credibility and reliability of the officers’ evidence through cross-examination including by:
- comparison with the evidence of other witnesses
- questioning on matters such as:
- where the notes were recorded
- when the notes were completed
- whether discussions of the details of the incident took place with anyone else before the notes were made
- additions, deletions and alterations to the notes
- the existence of an independent recollection of the incident
- the need to use the notes to refresh memory
13In light of this ruling, the Coroner deemed the motion to disqualify counsel for the officers to be moot.
This application
14On this application, the applicants ask that we:
- quash the rulings concerning cross-examination on the content of solicitor-client consultations and the disqualification of counsel
- compel the Coroner to allow the cross-examination on the content of solicitor-client consultations and disqualify counsel on the basis of conflict of interest
- in the alternative, direct the Coroner to hold an evidentiary hearing on the issue of conflict of interest
15As a preliminary matter, the Coroner, supported by the Ontario Provincial Police raised the issue of prematurity. They argued that the Divisional Court should only intervene during the course of an administrative tribunal to permit challenges to interlocutory rulings in exceptional circumstances. They said that these circumstances are not exceptional.
16We asked counsel to address the issue of prematurity at the outset of the hearing, before hearing their submissions on the merits of the application. At the end of the argument on prematurity, after retiring to consider the matter, we dismissed the application on that basis, with reasons to follow. These are those reasons.
Prematurity
17I begin by attempting to properly characterize the nature of what is in issue on this application. While important principles of law may be engaged by the ruling, the plain fact is that the main issue is nothing more than an effort to review a preliminary ruling of the Coroner at the beginning of an inquest about the scope of permissible cross-examination on a narrow issue, the reliability of two officers’ notebooks as a result of their consulting counsel, that relates solely to credibility. With that in mind, I consider the issue of prematurity.
18This Court has consistently held that save in extraordinary circumstances, applications for judicial review of the decisions of administrative tribunals should not be brought until the completion of the tribunals' proceedings. The Court has consistently followed a well-established line of authority against a piecemeal approach to the judicial review of administrative action. In the absence of exceptional circumstances, it is preferable to allow administrative proceedings to run their full course before a tribunal and to consider the legal issues arising from the proceeding, including procedural matters, against the backdrop of a full record and a reasoned decision of the tribunal. (see Ontario College of Arts v. Ontario (Human Rights Commission) (1993), 1993 3430 (ON SCDC), 11 O.R. (3d) 798 (Div. Ct.) at 799-800; Lala v. College of Physicians and Surgeons, [2003] O.J. No. 5062 (Div. Ct.) at paragraphs 1-3).
19In Ackerman v. Ontario (Provincial Police), 2010 ONSC 910, [2010] O.J. No. 738 (Div.Ct.) the Divisional Court held that the court's traditional position on the prematurity issue is rooted in the principle of deference to administrative tribunals. Molloy J. stated, at para 18:
The position traditionally taken by the courts on the prematurity issue finds its foundation in respect for the legislative intent that reposed the decision-making power in the tribunal and deference to that tribunal. It is inconsistent with those principles to permit participants before an administrative tribunal to come running to Divisional Court on judicial review prior to having exhausted all of their remedies and appeal routes within the administrative regime. Such applications will result in increased costs for all concerned as well as considerable delay in what is meant to be a cost-effective and expeditious process.
20The Court of Appeal has also endorsed these principles. In Howe v. Institute of Chartered Accountants of Ontario, (1994), 1994 3360 (ON CA), 19 O.R. (3d) 483, 118 D.L.R. (4th) 129 (C.A.), the Court of Appeal upheld the Divisional Court's decision staying a judicial review application as premature. The case involved discipline proceedings and the issue raised on judicial review was the adequacy of disclosure prior to the hearing. Finlayson J.A., writing for the majority, held at para. 13:
In short, I agree with the Divisional Court that this application is premature. I think it is trite law that the court will only interfere with a preliminary ruling made by an administrative tribunal where the tribunal never had jurisdiction or has irretrievably lost it: see Gage v. Ontario (Attorney General) (1992), 1992 8517 (ON SCDC), 90 D.L.R. (4th) 537 (Ont. Div. Ct.), and Roosma v. Ford Motor Co. of Canada Ltd. (1988), 1988 5633 (ON SCDC), 66 O.R. (2d) 18, 53 D.L.R. (4th) 90 (Div. Ct.).
21He continued, at paragraph 15:
I do not think that we should encourage applications such as these which have the effect of fragmenting and protracting the proceedings except in the clearest of cases. In my opinion, the Divisional Court was correct in exercising its discretion not to grant prerogative relief in this case.
22This approach has been applied with particular vigour to Coroners’ inquests, at least since 1991. In that year, in People First of Ontario v. Porter, Regional Coroner Niagara, 1991 7198 (ON SC), [1991] O.J. No. 3389, 5 O.R. (3d) 609, the Divisional Court was asked to intervene in the procedure adopted by the Coroner in two inquests. The Court declined to intervene. The language of the judgment focusses on jurisdictional error, reflecting an approach to judicial review still common at that time. However the Court made several pronouncements on prematurity. The Court stated, at paras. 112-114, under the heading “The mischief of unnecessary intervention”:
112 In an extreme case court intervention may be needed during an inquest. Such cases would be rare indeed. Judicial intervention involves delay. It disrupts the inquest process. It involves great expense and inconvenience to the parties and to the public. It prevents the public and the press from hearing all the relevant evidence in a timely fashion. It interferes with the integrity of the inquest process and the authority of the coroner to conduct an orderly and fair hearing.
113 The legislative assembly provided no appeal to this court from the decisions of the coroner. This court is entitled to intervene solely for jurisdictional error. A serious error in legal principle which produces an unfair inquest would amount to a jurisdictional error. But it is not every aspect of an inquest that attracts judicial review. As Chief Justice Dubin pointed out in Evans v. Milton (1979), 1979 1820 (ON CA), 24 O.R. (2d) 181 at p. 220, 97 D.L.R. (3d) 687, it is not every step taken in the convening of the inquest, or every ruling made during its preliminary stages, or at the inquest itself, that is subject to judicial review.
114 The public interest requires that the coroner be able to go about her job without intermittent interference by the courts, particularly on issues within the specialized medical and curial expertise of the coroner.
23Later, at para. 120, the Court stated:
We discourage, however, any application for judicial review in the middle of any inquest. It is not fair to the public or any jury, any witness, any party, or anyone else involved in the difficult business of an inquest, to suspend their work in mid-stream and to interfere with the integrity of the process in which they are engaged. Applications for judicial review in the middle of an inquest are to be strongly discouraged.
24And still later, at para. 134:
It is clear, however, that this court has delivered a strong message to the profession that it should not lightly embark on applications for judicial review when a proceeding is in progress.
25An appeal from this judgment was allowed (1992 7462 (ON CA), [1992] O.J. No. 3, 6 O.R. (3d) 289 (C.A.)) on the basis that there was one jurisdictional error made by the Coroner that was better corrected immediately. However the Court agreed with the Divisional Court in respect of prematurity. The Court stated, at para. 7:
We entirely agree with the Divisional Court that it is undesirable to interrupt inquests with applications for judicial review. Whenever possible, it is best to let the inquest proceed to its resolution and then perhaps, if circumstances dictate, to take judicial proceedings. However, in the particular circumstances of this case, even though the inquest is still proceeding, we consider it best to correct the jurisdictional error already made to the end of saving the inquest.
26The issue of prematurity in the context of a Coroner’s Inquest was dealt with again by the Divisional Court in Sears Canada Inc. v. Davis Inquest, [1997] O.J. No. 1424. In that case, the Coroner ruled that a solicitor-client relationship between the counsel of Sears Canada and Sears' employees did not exist, and that, for the duration of the inquest in order to maintain public confidence in the proceedings, certain restrictions on communication would apply, including a prohibition on managers and supervisors of Sears speaking to its non-management employees regarding any aspect of the deaths of the deceased, or any aspect of the inquest looking into their deaths.
27The Coroner brought a motion to quash an application for judicial review on the basis of prematurity. The motion was granted. The Court stated, at paras. 11:
Dealing then with the motion to quash, this court has repeatedly said that it will not intervene during the course of proceedings of an inferior tribunal except in exceptional circumstances. See University of Toronto v. CUEW Local 2 (1988), 1988 4757 (ON SC), 65 O.R. (2d) 268; Ontario College of Art v. Ontario (1993), 1993 3430 (ON SCDC), 99 D.L.R. (4th) 738; and Howe v. the Institute of Chartered Accountants of Ontario (1994), 1994 3360 (ON CA), 19 O.R. (3d) 483. This approach is based on the reason that the work of these important bodies would otherwise become irreparably fragmented and delayed with both single and multiple trips “up the judicial ladder”. Indeed, this concern is of particular importance in the context of a Coroner's inquest where there is a pressing public need to know and often much immediate personal anxiety and emotional trauma. The exception to this procedural deference is where an application for judicial review raises serious concerns, which if they materialized, would likely result in a fundamental failing of justice. Sears argues this is such a case, whereas the Coroner, the Vince family and the Coalition insist it is not.
28There are two cases respecting judicial review of interlocutory rulings of coroners in the course of inquests where this court did not give effect to arguments of prematurity. In neither case did the Court resile from the rule. Rather, in both of these cases the Court concluded that if the impugned ruling was left to stand, it would likely have resulted in a fundamental failing of justice.
29In Nishnawbe Aski Nation v. Eden, 2009 39780 (ON SCDC), [2009] 4 C.N.L.R. 197 at para. 51 (Div. Ct.), the Court adopted the restrictive approach to judicial review of interlocutory decisions of a coroner mentioned at para. 113 of People First, quoted above. But the Court found that there was a serious error in legal principle that would likely produce an unfair inquest. The Court proceeded to review the coroner’s decision refusing to hear evidence respecting the selection and composition of the jury roll in the Thunder Bay district that was said to underrepresent First Nations people, because it was concerned that the curative provision in s. 36 of the Coroners Act, which provides that jury irregularities are not to affect the outcome of an inquest, would preclude review after the inquest was finished. I note that this basis for rejecting prematurity in Nishnawbe Aski Nation is called into questions by the decision of the Court of Appeal allowing an appeal from that decision, albeit on different grounds: [2011] O.J. No. 988, 2011 ONCA 187, 104 O.R. (3d) 321.) The Court of Appeal concluded that s. 36 did not have the effect of precluding review of this issue after the completion of the inquest.
30In Smith v. Smith Inquest, [2011] O.J. No. 2240, 2011 ONSC 2844, 106 O.R. (3d) 254 (Div. Ct.), the Court proceeded to review the decision of a Coroner who had refused to issue a subpoena for potentially important evidence by applying what was said to be an incorrect legal test. The Court concluded that if the subpoena had been wrongly refused, it would result in an unreasonable restriction on the right of a party to adduce arguably relevant evidence, resulting in a fundamental failure of justice and creating a serious risk that the inquest might have to be repeated.
31I note that in some of the cases that I have referred to, it has been said that the right to intervene arises in the case of jurisdictional error. That language should now be avoided. Since Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, [2008] S.C.J. No. 9, the Courts have been increasingly attuned to the need to avoid labelling issues as jurisdictional which are not truly so. In Dunsmuir, Bastarache and LeBel JJ. stated, at para. 59:
Administrative bodies must also be correct in their determinations of true questions of jurisdiction or vires. We mention true questions of vires to distance ourselves from the extended definitions adopted before CUPE [Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., 1979 23 (SCC), [1979] 2 S.C.R. 227.] It is important here to take a robust view of jurisdiction. We neither wish nor intend to return to the jurisdiction/preliminary question doctrine that plagued the jurisprudence in this area for many years. “Jurisdiction” is intended in the narrow sense of whether or not the tribunal had the authority to make the inquiry. In other words, true jurisdiction questions arise where the tribunal must explicitly determine whether its statutory grant of power gives it the authority to decide a particular matter. … We reiterate the caution of Dickson J. in CUPE that reviewing judges must not brand as jurisdictional issues that are doubtfully so.
32In this regard, see also Alberta (Information and Privacy Commissioner) v. Alberta Teachers' Association, [2011] S.C.J. No. 61, 2011 SCC 61, [2011] 3 S.C.R. 654.
33In my view, it is preferable to limit early intervention not to jurisdictional error, but rather to exceptional circumstances, which generally arise where there has been or will be a “serious error in legal principle which produces an unfair inquest” (the Divisional Court judgment in People First), or, “a fundamental failing of justice” (Sears Canada Inc. v. Davis Inquest.)
34Applying this test, I have reached the conclusion that unlike Nishnawbe Aski Nation v. Eden and Smith v. Smith Inquest, this is not a case where there is any risk that if the ruling is left to stand, it would likely result in a fundamental failing of justice. Nor is it a case where it could be said that a serious error in legal principle was made which, if left to stand, produces an unfair inquest.
35It is true that the Coroner invited counsel to make their submissions respecting anticipated legal issues requiring resolution before the commencement of the inquest. Nonetheless, it is a particular problem in this case that the application for judicial review was brought after the ruling was made, but before any evidence was called. As a result, we have no way of evaluating the significance that the limitation on cross-examination will have on the fairness of the inquest. We understand that there are a number of independent civilian witnesses to the shooting. If it turns out that Cst. Seguin’s account of the shooting is entirely consistent with the evidence of the independent witnesses, then the limitation on cross-examination will have no significance at all. The argument of the applicant that the inquest will be unfair simply because of the seriousness of placing even this small limitation on the cross-examination of Cst. Sequin about the making of his notes is unpersuasive. That would set the bar much too low. Virtually every evidence ruling limiting examination or cross-examination or excluding evidence could be viewed in this way. It loses sight of the fact that intervention at this stage is exceptional.
36I do not mean to imply by what I have just said about the absence of evidentiary context that a further application for judicial review, perhaps in the course of the cross-examination of Cst. Seguin, and after the other witnesses have given their evidence, will escape the obstacle of prematurity. There will still remain in the balance the high cost of fragmenting the proceedings, and an inability to foresee the ultimate effect of the ruling on the fairness of the proceeding. I can only think that the best time to evaluate whether or not an evidentiary ruling said to be made in error such as this one has occasioned an unfair inquest, or a fundamental failing of justice, is after the inquiry is completed, when there is a complete evidentiary record and the findings of the jury are known.
37Finally, we are aware, based on information told to us without objection during argument, that there has already been a cost occasioned by the fragmentation of the proceedings of this inquest as a result of the bringing of this application, and that there would have been a still greater cost had we heard the merits of the application. The jury has been chosen in this case and the hearing of evidence has commenced. The jurors have been told that the hearing will be completed by the end of this month. The availability of the facility where the hearing is being held also ends at the end of the month. Two hearing days were lost last week in order to get this application organized. Fortunately, the Court was able to schedule an almost immediate hearing. Commendably, the applicants did not seek a stay, and the hearing has proceeded until today. Nonetheless, the witnesses have been called out of their logical order to avoid the two police officers having to testify before this application was decided. A third hearing day was lost to accommodate the hearing in this Court. The Court was able to resolve the application from the bench on the basis of prematurity, but I am not confident that we could have done so on the merits. Had we reserved our decision, the inquest might have been aborted.
38As I said at the beginning of this analysis, the main issue on this application is nothing more than an effort to review a preliminary ruling of the Coroner at the beginning of an inquest about the scope of permissible cross-examination on a narrow issue that relates solely to credibility. The issue may be one of first impression, interesting and tempting. But it remains a narrow evidentiary issue. Judicial review has been costly, and would be more costly had we not been able to hear and dispose of the application quickly. This is not an exceptional case justifying review of the Coroner’s ruling on this issue prior to the completion of the inquest.
Disposition
39Accordingly, I would give effect to the prematurity argument and dismiss this appeal.
40The respondents are not seeking costs, and none are ordered.
DAMBROT J.
KITELEY J.
RAY J.
RELEASED: May 27^th^, 2014
CITATION: Minty v. Lucas, 2014 ONSC 3169
DIVISIONAL COURT FILE NO.: 212/14
DATE: 20140527
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
KITELEY, DAMBROT AND RAY JJ.
BETWEEN:
EVELYN MINTY, DIANE PENDER, BRIAN MINTY and JOHN MINTY
Applicants
– and –
DR. WILLIAM LUCAS, CORONER
Respondent
REASONS FOR JUDGMENT
DAMBROT J.
RELEASED: May 27, 2014