Court File and Parties
CITATION: Connolly v. Coroner, 2013 ONSC 2874
DIVISIONAL COURT FILE NO.: DV-10-1687
DATE: 08/07/2013
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Reilly, Aston and Herman JJ.
BETWEEN:
Dr. John Connelly and Gloria Connelly Applicants
– and –
Office of the Chief Coroner of Ontario Respondent
Tara Sweeney, for the Applicants
Brian Whitehead, for the Respondent
HEARD at Ottawa: January 28, 2013
Reasons for Judgment
aston j.
[1] Dr. and Mrs. Connelly bring this application for judicial review to challenge Chief Coroner Dr. Andrew McCallum’s decision of May 11, 2010 not to hold an inquest into the death of their son John.
[2] The Notice of Application for Judicial Review seeks to quash that decision and goes on to request various orders in the nature of mandamus. It requests an order requiring the Office of the Chief Coroner to change the “manner of death” determination in the Coroner’s Investigation Statement from “suicide” to “undetermined”. It also requests a further investigation and a coroner’s inquest. Additionally, Dr. and Mrs. Connelly seek reimbursement of their costs in gathering supporting evidence and materials in both this court application and their own investigation of the death of their son.
[3] There is a great deal of material filed. We have considered all of it carefully. There is no doubt the tragedy of the applicants’ loss has been exacerbated by their frustration in persuading others of what they honestly believe to be true. Though we must dismiss this judicial review application, for the reasons that follow, we do feel compelled to express our deep sympathy to the Connelly family.
[4] At the opening of the hearing of this application, counsel for Dr. and Mrs. Connelly advised that they still wished to proceed with their request that Dr. McCallum’s decision of May 11, 2010 be quashed, but that the only relief being requested was the substitution of “undetermined” for “suicide” in all of the Coroner’s Investigative Statements and reviews. More specifically, the applicants withdrew their request for an inquest or a reopening of the investigation.
[5] Counsel for the Coroner’s Office then took the position that this change in the relief sought had the effect of foreclosing any judicial consideration of the merits of the judicial review application. He submitted that the applicants only have standing to challenge a decision not to hold an inquest and that the remaining relief sought is not amenable to an order in the nature of mandamus. We reserved our decision on that preliminary objection and address it now.
[6] The Coroner’s involvement in this case first began in 2001 under s. 15 of the Coroners Act, R.S.O. 1990, c. C.37 (the “Act”) which provides as follows:
- (1) Where a coroner is informed that there is in his or her jurisdiction the body of a person and that there is reason to believe that the person died in any of the circumstances mentioned in section 10, the coroner shall issue a warrant to take possession of the body and shall examine the body and make such investigation as, in the opinion of the coroner, is necessary in the public interest to enable the coroner,
(a) to determine the answers to the questions set out in subsection 31 (1);
(b) to determine whether or not an inquest is necessary; and
(c) to collect and analyze information about the death in order to prevent further deaths in similar circumstances. 2009, c. 15, s. 7 (1).
[emphasis added]
[7] Subsection 31(1) reads:
- (1) Where an inquest is held, it shall inquire into the circumstances of the death and 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.
[8] In this case there is no issue with respect to the first four questions under s. 31(1). The only issue is the determination of the means by which John Connelly came to his death.
[9] By 2001 or 2002 at the latest, the investigating coroner had determined the answers to the questions set out in ss. 31(1) of the Act and had determined that an inquest was not necessary. The only statutory mechanism for challenging the investigating coroner’s answers to the questions set out in ss. 31(1) of the Act is at an inquest. A coroner’s jury may come to different answers at an inquest.
[10] There is a statutory mechanism to challenge the decision not to have an inquest. Section 26 of the Act reads as follows:
- (1) Where the coroner determines that an inquest is unnecessary, the spouse, parent, child, brother, sister or personal representative of the deceased person may request the coroner in writing to hold an inquest, and the coroner shall give the person requesting the inquest an opportunity to state his or her reasons, either personally, by the person’s agent or in writing, and the coroner shall advise the person in writing within sixty days of the receipt of the request of the coroner’s final decision and where the decision is to not hold an inquest shall deliver the reasons therefor in writing.
(2) Where the final decision of a coroner under subsection (1) is to not hold an inquest, the person making the request may, within twenty days after the receipt of the decision of the coroner, request the Chief Coroner to review the decision and the Chief Coroner shall review the decision of the coroner after giving the person requesting the inquest an opportunity to state his or her reasons either personally, by the person’s agent or in writing.
(3) The decision of the Chief Coroner is final.
[11] The Chief Coroner’s decision that is the subject of this judicial review is his decision, in response to the applicants’ request under s. 26 of the Act, not to hold an inquest or reopen the investigation. However, there is no longer any “decision” for this court to review. Instead, the court is being asked to review an investigative finding. The only mechanism for the review of the investigative findings on the questions set out in s. 31(1) of Act is an inquest.
[12] Section 26 is the gateway by which Dr. and Mrs. Connelly can challenge the investigating coroner’s determination that suicide is the means by which their son came to his death. Such a challenge is accomplished by compelling an inquest and then having a jury come to its own conclusion on the questions in s. 31(1) of the Act.
[13] Counsel for the applicants suggests that Dr. McCallum, as the Chief Coroner, had the inherent power or jurisdiction to override the determination of the investigating coroners and change the “cause of death” determination without an inquest. Counsel for the Office of the Chief Coroner does not dispute that assertion. However, it begs the question of whether this Court, by order in the nature of mandamus, can compel the Chief Coroner to do so.
[14] Notwithstanding s. 26(3) it is clear the applicants have standing to challenge the decision of Ontario’s Chief Coroner not to order an inquest by an application for judicial review. However, the question of whether they have standing to challenge particular findings encompassed by that decision is another matter. Since there will be no inquest, no Coroner’s jury will ever address the question of the means by which John Jr. came to his death. Nor is this Court in any position to weigh the evidence and substitute its finding for that of the various coroners who have concluded that death was by suicide. There is no longer any decision to review; only a finding within a decision.
[15] In my view the applicants are not entitled to any remedy in the nature of mandamus to reclassify the cause of death or conduct another death investigation. First, the Chief Coroner is exercising a gatekeeping function when reviewing the investigating coroner’s decision not to hold an inquest. Second, because the decision of the Coroner in that regard is discretionary, the applicants cannot use mandamus to compel the Coroner to exercise his discretion in any particular way. Finally, the court cannot usurp the functions of the Coroner in conducting death investigations and making findings under s. 31(1) of the Act because it would transform a judicial review process into a trial process.
[16] The judicial review application is dismissed on the basis that Dr. and Mrs. Connelly have abandoned the only relief they had standing to request and because the orders they seek in the nature of mandamus are inappropriate. The respondent does not seek costs.
Aston J.
I agree Reilly J.
I agree Herman J.
Released: June , 2013
CITATION: Connolly v. Coroner, 2013 ONSC 2874
DIVISIONAL COURT FILE NO.: DV-10-1687
DATE: 08/07/2013
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Reilly, Aston and Herman JJ.
BETWEEN:
Dr. John Connelly and Gloria Connelly Applicants
– and –
Office of the Chief Coroner of Ontario Respondent
REASONS FOR JUDGMENT
Aston J.
Released: 08/07/2013