Court of Appeal Decision of the Week

Challenging a Coroner’s Refusal to do an Inquest

Case: Blackjack v. Yukon (Chief Coroner), 2018 YKCA 14 (CanLII)

Keywords: Coroner’s Inquest; Coroners Act, RSY 2002, c 44; First Nation Citizens; Systemic Discrimination

Synopsis:

The Appellant, Ms. Cynthia Roxanne Blackjack, dies on board a medevac aircraft while being transported from a small Yukon community to Whitehorse. In the days leading up to her death, Ms. Blackjack attends repeatedly at a local health centre where she is tentatively diagnosed with alcohol-induced gastritis and advised to go to the Whitehorse General Hospital (despite having no means to get there).

The Chief Coroner decides not to hold an inquest into Ms. Blackjack’s death. She maintains this decision despite allegations of systemic discrimination in the provision of health care services to First Nation citizens and a request for an inquest by the Ms. Blackjack’s First Nation (Little Salmon Carmacks First Nation).

The First Nation and Ms. Blackjack’s mother apply to a judge, pursuant to s. 10 of the Coroners Act, RSY 2002, c 44, for an Order that an inquest be held. The Order is granted. The Chief Coroner appeals, contending the judge lacked jurisdiction to make the Order and did not appropriately defer to her discretionary decision. The Court of Appeal dismisses the Chief Coroner’s appeal; finds a judge has jurisdiction under s. 10 of the Coroners Act to order an inquest and that the judge did not err in doing so.

Importance:

This case is significant in that it addresses fundamental issues of public importance, including the relationship between First Nations and the Canadian healthcare system; and the role of coroners (more specifically, a coroner’s inquest) in Canadian society.

The Court of Appeal defined the function of coroners in broad terms:

For over a century, Canadian coroners have administered justice by shedding light on the circumstances surrounding questionable deaths in their communities: Faber v. The Queen, 1975 CanLII 12 (SCC), [1976] 2 S.C.R. 9; Charlie v. Yukon Territory (Chief Coroner), 2013 YKCA 11 (CanLII) at para. 41.  In doing so, they fulfill two distinct functions: an investigative function and a public-interest function.  The investigative function is relatively narrow and case specific.  It involves inquiry into the identity of the deceased and how, when and where the death occurred.  The public-interest function is broader and social.  It involves exposing systemic failings that cause or contribute to preventable death, recommending systemic changes to reduce risk to human life and satisfying the community that the circumstances surrounding questionable deaths receive due attention from accountable public authorities: Lawson, quoting from Faber, at para. 55; Pierre v. McRae, 2011 ONCA 187 (CanLII) at paras. 21-22. (See para. 32).

For the Court of Appeal, the judge made no error in his discretionary determination, pursuant to s. 10 of the Coroners Act, RSY 2002, c 44, that an inquest should be conducted into the death of Ms. Blackjack. That section reads as follows:

Direction of chief coroner or judge to hold inquest

10     If the chief coroner or a judge has reason to believe that a deceased person came to their death under circumstances which, in the opinion of the chief coroner or judge, make the holding of an inquest advisable, the chief coroner or judge may direct any coroner to conduct an inquest into the death of the person and the coroner so directed shall conduct an inquest in accordance with this Act, whether or not that coroner or any other coroner has viewed the body, made an inquiry or investigation, held an inquest into or done any other act in connection with the death. (See para. 45).

What of the Coroner’s discretion? The Court of Appeal noted that, in most Canadian jurisdictions, a local coroner decides whether or not an inquest is necessary. For the Court, it was critical to note, however, that coroner’s decisions are often subject to “…Some form of reconsideration or alternative decision-making process.” (See para. 36). In other words, much depends on statutory language. The extent to which a coroner’s is the sole decision-maker on this point varies from Province to Province to Territory.

The Court of Appeal determined that, in Yukon Territory, a trial judge is empowered by s. 10 of the Act to reconsider a coroner’s decision:

[69]        In sum, I cannot accept the chief coroner’s strained interpretation of the meaning of ss. 10 and 34 of the Coroners Act with respect to jurisdiction.  It is inconsistent with the statutory language and unnecessary to avoid an unintended absurd result.  Rather, taking into account all of the foregoing, I conclude that, properly interpreted, s. 10 provides the chief coroner and a judge with concurrent, equivalent and continuing jurisdiction to order an inquest whenever it would be advisable based on the statutory criteria.  This jurisdiction remains in place for both regardless of whether the chief coroner has taken over an inquiry under s. 34 and/or previously declined to hold an inquest. (See para. 69).

In this case, the Court found both that the judge had followed statutory criteria enumerated at ss. 6(1) and 9(1) of the Act and that he appropriately concluded the Coroner had taken an unsuitably “narrow” view of the circumstances in which a public inquest may be ordered:

[49] Firstly, as set out in para. 61, she confirmed the Coroner’s role in making observations about equipment and medical evacuation deficiencies but “did not include that information to in any way impute fault or criticism toward any of the personnel …”. It is unclear why that narrow view is taken given the statutory direction of ss. 6 and 9 investigate death resulting from:

  1. a) violence, misadventure or unfair means, or
  2. b) cause other than disease or sickness as a result of negligence, misconduct or malpractice on the part of others; or
  3. c) under any circumstances that require investigation.

[51] Secondly, in paras. 63 and 64, the Chief Coroner deposed that she saw no need to identify Cynthia Blackjack as a citizen of LSCFN. This is the very issue that is raised by her relatives who allege discriminatory treatment.

[52] The Chief Coroner also wrote that she “did not consider Little Salmon Carmacks First Nation to have any formal standing in relation to my investigation”. There is nothing in the Coroners Act that requires anyone to have “formal standing” to be included in an investigation. In my view, the Chief Coroner has confused participation with the formal standing issue that arises at an inquest. Surely no one requires standing to be consulted in an investigation. In my view, it is always advisable, in any community that provides services to a First Nation, to include the First Nation, the family members of the deceased and the Director of Health and Social Programs in any investigation under the Coroners Act. [Emphasis in original]. (As quoted at para. 18).

Although the Court of Appeal noted the shortcomings of the Coroners Act, RSY 2002, c 44, it nonetheless found the statutory criteria should be considered to be “…broad, generous, and inclusive.” (See para. 52). As such, the Court of Appeal dismissed the Chief Coroner’s appeal of the decision to order an inquest in the case of Ms. Blackjack.

Counsel for the Appellant: Richard Buchan (Richard Buchan-Lawyer Mediator Arbitrator, Whitehorse)

Counsel for the Respondent Theresa Anne Blackjack: Vincent Larochelle (Yukon Legal Services Society, Whitehorse)

Counsel for the Respondent Little Salmon Carmacks First Nation: Susanna Roothman (Roothman & Company, Whitehorse)

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Posted: Wednesday, December 05, 2018