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Coroner - Cases. Turner v. Death Investigation Council et al.
In Turner v. Death Investigation Council et al. (Div Ct, 2021) the Divisional Court set out basics of the Coroners Act system in Ontario:Creation and Composition of DIOC
[5] The DIOC is a statutory body that was established in 2010 through amendments to the Coroners Act, RSO 1990, c C.37 (the “Act”). It acts as an independent oversight body aimed at ensuring that death investigation services are provided in a transparent, effective and accountable manner in Ontario.
[6] The DIOC was created to provide effective oversight of the death investigations regime in Ontario precisely because such oversight was previously lacking. It was created based on recommendations in the Report following the Inquiry into Pediatric Forensic Pathology in Ontario led by The Honourable Stephen T. Goudge.
[7] The Goudge Report was delivered in 2008 in the wake of a number of wrongful convictions arising from the flawed forensic pathology reports of Dr. Charles Smith. The Commission of Inquiry was tasked with determining what went wrong with the practice and oversight of pediatric forensic pathology in Ontario and making recommendations to restore public confidence in death investigations.
[8] One of the issues identified in the Goudge Report was that there was no legislative framework in the Act to ensure proper oversight and accountability of forensic pathology. Directors of regional forensic pathology units, such as Dr. Smith, were not subject to any “expressly articulated oversight whatsoever”. Further, there was no institutionalized mechanism for receiving complaints from the public and addressing them in an objective way. Part of the proposed solution to remedy these deficiencies was to amend the Act to create a governing council to oversee the work of both the Chief Coroner and the Chief Forensic Pathologist and to provide an annual report to the Ministry of Community Safety and Correctional services, available to the public. The Goudge Report also suggested the establishment of a public complaints process to:
(a) reflect the principles of transparency, responsiveness, timeliness, and fairness;
(b) focus on remedial and rehabilitative responses, rather than punitive ones, except where the public interest is jeopardized; and
(c) provide for appeals by the complainant or the physician to the complaints committee of the governing council where they are not satisfied with the initial resolution of the complaint by the Chief Coroner or the Chief Forensic Pathologist or their designates.
[9] The DIOC is currently comprised of a Chair, a Vice-Chair and several Council Members with broad representation from various disciplines. The Chief Forensic Pathologist and Chief Coroner of Ontario sit as non-voting members of DIOC but are prohibited from participating in DIOC’s Complaints Committee.
Functions and Role of DIOC
[10] Section 8.1(1) of the Act sets out the various functions of DIOC and establishes that it will oversee the Chief Coroner and the Chief Forensic Pathologist by advising and making recommendations to them on the following matters:a. financial resource management;
b. strategic planning;
c. quality assurance, performance measures and accountability mechanisms;
d. the appointment and dismissal of senior personnel;
e. the exercise of the power to refuse to review public complaints;
f. compliance with the Coroners Act and corresponding regulations; and
g. any other prescribed matter. [11] Under s. 8.1(2) of the Act, the DIOC may request that the Chief Coroner and the Chief Forensic Pathologist report to it on the matters set out in section 8.1(1).
[12] In addition, section 8.1(3) of the Act provides that the DIOC will advise and make recommendations to the Solicitor General on the appointment and dismissal of the Chief Coroner and the Chief Forensic Pathologist.
[13] Finally, the DIOC administers a public complaints process through which it reviews complaints regarding death investigations, particularly complaints against a coroner or a forensic pathologist working in Ontario.
The Complaints Committee and the Complaints Process
[14] Section 8.2 of the Act provides that there is to be a Complaints Committee of the DIOC that is composed of members of the DIOC as appointed by the Chair.
[15] Under s. 8.4 of the Act, any person may make a written complaint to the Complaints Committee about a coroner or a pathologist. As set out in s. 8.4(4), complaints about coroners will be referred to the Chief Coroner and as set out in s. 8.4(5), complaints about pathologists will be referred to the Chief Forensic Pathologist. Under s. 8.4(12), the Chiefs must report on the outcome of their reviews to the Complaints Committee.
[16] Where the complaint is made against the Chief Coroner or the Chief Forensic Pathologist, however, s. 8.4(6) makes clear that the Complaints Committee must review the complaint unless one of the exceptions set out in section 8.4(11) of the Act is applicable.
The Powers of the Chief Forensic Pathologist
[17] The Act provides the Chief Forensic Pathologist with broad authority over the work and livelihood of all pathologists practicing within the Province of Ontario. Under s. 7.1 of the Act, the Chief Forensic Pathologist is responsible for maintaining a Register of pathologists who are authorized to provide services. Removal from this Register means that a pathologist can no longer perform autopsies in the Province of Ontario.
[18] In addition, under s. 2 of Regulation 273/09 under the Act, the Chief Forensic Pathologist must notify the Registrar of the College of Physicians and Surgeons of Ontario in writing if they have any concerns that a pathologist has committed an act of professional misconduct, is incompetent or is incapacitated, or if the pathologist has been removed from the Register of authorized pathologists. Under s. 1 of the same Regulation, the Chief Coroner has the same obligation regarding individual coroners.
The Child Injury Interpretation Committee
[19] Another committee of the DIOC is also relevant to the Complaint and to the judicial review. This is the Child Injury Investigation Committee.
[20] The CIIC was created in 2017 to oversee controversial cases involving children under five years of age. The CIIC was created in direct response to, and very shortly after, the April 12, 2017 decision of the Superior Court of Justice in R. v. France, 2017 ONSC 2040. France had been charged with the second-degree murder of a two-year old child by abdominal trauma. Dr. Pollanen performed the post-mortem and testified both at the preliminary hearing and at trial on the voir dire. Justice Molloy refused to qualify him as an expert at the trial. Among other things, she found that Dr. Pollanen’s evidence was either “misleading and a breach of the duty of impartiality to the court” or that he offered his opinions “without doing even the most rudimentary amount of research”. She also found that Dr. Pollanen had demonstrated “professional credibility bias” because, “having taken a position … at the preliminary hearing, Dr. Pollanen was now looking for ways to support it, rather than looking objectively at the research and autopsy findings”. For example, he refused “to abandon his bottom-line position … that this injury in this case was caused by an assault” and attempted to support his position, even though he “simply does not have the expertise and has not done sufficient research to draw a conclusion”.
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