|
Coroner - Cases. Turner v Death Investigation Oversight Council
In Turner v Death Investigation Oversight Council (Div Court, 2023) the Divisional Court dismissed, with some irritation, a judicial review of a "reporting letter delivered by the Death Investigation Oversight Council" (DIOC) [under the Coroners Act] - that resulted from a formal complaint to it - as the role of the DIOC is advisory, not disciplinary:This judicial review
[45] The issue was not raised by either party but, to my mind, it is not clear that this matter is properly the subject of a judicial review. The Judicial Review Procedure Act section 2(1) states:2 (1) On an application by way of originating notice, which may be styled “Notice of Application for Judicial Review”, the court may, despite any right of appeal, by order grant any relief that the applicant would be entitled to in any one or more of the following:
1. Proceedings by way of application for an order in the nature of mandamus, prohibition or certiorari.
2. Proceedings by way of an action for a declaration or for an injunction, or both, in relation to the exercise, refusal to exercise or proposed or purported exercise of a statutory power.
[Emphasis added] [46] In the context of an advisory body making recommendations, there is no decision which affects the rights of anyone. There is no decision that has not been made, that should be compelled (mandamus, which is only appropriate where there is no remaining discretion), no decision, the imposition of which, should be prohibited (prohibition) and no decision that could be quashed (certiorari). Recommendations may be implemented; they may not be.
[47] A “statutory power” as referred to in paragraph 2 is defined in section 1 of the Judicial Review Procedure Act as:“statutory power” means a power or right conferred by or under a statute,
(a) to make any regulation, rule, by-law or order, or to give any other direction having force as subordinate legislation,
(b) to exercise a statutory power of decision,
(c) to require any person or party to do or to refrain from doing any act or thing that, but for such requirement, such person or party would not be required by law to do or to refrain from doing,
(d) to do any act or thing that would, but for such power or right, be a breach of the legal rights of any person or party; (“compétence légale”) [48] It is at least arguable that following an investigation, where recommendations are made, they are not the subject of a statutory power, as defined and are not subject to judicial review. There are cases where issues of the process and procedure of coroners’ inquests have been challenged on judicial review. Maybe they could be applied here to demonstrate that the issues raised are properly subject to judicial review maybe they could not. As the issue was not raised, and given the circumstances, this court has no option but to complete its consideration of this as an application for judicial review. If there is an issue it will have to be reserved for another day.
[49] In any case, Dr. Jane Turner does not contest the recommendations that were made. Nonetheless, she wants the “reporting letter” set aside because of a recommendation that was not made: a recommendation to the Minister that Dr. Michael Pollanen be removed as the Chief Forensic Pathologist. In other words, Dr. Jane Turner wants this complaint dealt with as an inquiry into the conduct of Dr. Michael Pollanen. This would treat circumstances such as this as a discipline proceeding. If it is, it means that a complaint from any person against the Chief Coroner or, as in this case against the Chief Forensic Pathologist, could result in a full-blown inquiry where the individual complained about would be required to defend himself or herself. Again, this process is dedicated to improving investigations not bringing down its leaders.
....
Analysis
[51] What ought to be immediately apparent is that the supposed absence of reasonableness is not directed at the recommendations that are the core of the reporting letter but at Dr. Michael Pollanen and the failure to recommend to the Minister that he be removed from office. The issues put on behalf of Dr. Jane Turner are:1. Did the Death Investigation Oversight Council act unreasonably by failing to make any finding of fact in response to Dr. Jane Turner’s complaint against Dr. Michael Pollanen?[66]
2. Did the Death Investigation Oversight Council act unreasonably in failing to determine if Dr. Turner’s complaint was substantiated?[67]
3. Did the Death Investigation Oversight Committee act unreasonably by failing to take appropriate action to respond to a substantiated complaint against the Chief Forensic Pathologist beyond making recommendations?[68]
[Underlining added] [52] That the overarching concern is the failure to address the allegations that Dr. Michael Pollanen abused his authority is confirmed through a review of the orders being sought:1. an order setting aside the “decision” of the Death Investigation Oversight Council
2. an order remitting the complaint back to the Death Investigation Oversight Council for its reconsideration, but only after Dr. Jane Turner is allowed to file new evidence, and
3. an order directing the Death Investigation Oversight Council, once its reconsideration is complete, to refer to Dr. Pollanen’s superiors, the Deputy Solicitor-General and the Solicitor-General, any of the complaints which are more appropriately dealt with by them[69] [53] This position, adopted on behalf of Dr. Jane Turner, fails to grasp in a fundamental way the intent and means of the oversight provided under the Coroners Act.
[54] In reviewing the reasonableness of the “decision”, the starting point is the administrative context in which the “reporting letter” was prepared. As is well-known the oversight provisions found in the Coroners Act are the result of complaints against Dr. Charles Smith regarding his conduct in investigating cases, including strong biases in favour of child abuse as the cause of death as against other alternative explanations. The concerns raised were the catalyst for an inquiry (colloquially the “Goudge Inquiry”) and the resulting Report into Pediatric Forensic Pathology in Ontario.
[55] The report included recommendations to strengthen the oversight of pathologists including:. the appointment of a Chief Forensic Pathologist who is responsible for the Ontario Forensic Pathology Service and oversees all pathologists in Ontario,[70]
. the creation of a registry controlled by the Chief Forensic Pathologist to ensure only qualified individuals conduct autopsies,[71] and
. the establishment of a “governing council” to provide oversight of strategic planning and to administer a public complaints process.[72] [56] The Goudge inquiry recommended that the complaints process be remedial rather than punitive[73] and run concurrently with the complaints process of the College of Physicians and Surgeons.[74] The Goudge inquiry recommended that the Complaints Committee of the governing council or the deputy minister, where necessary, review complaints related to the Chief Forensic Pathologist.[75] Many of the recommendations made by the Goudge inquiry have been incorporated into the Coroners Act. These include the creation of the Death Investigation Oversight Council. It is tasked with overseeing “the Chief Corner and Chief Forensic Pathologist by making recommendations to them.[76]
[57] The complaints procedure found in the Coroners Act is decidedly different from and should not be equated to disciplinary tribunals that oversee many regulated professionals. It is this distinction that Dr. Jane Turner, and those who support her have failed to understand and account for. The submissions being made suggest that the Death Investigation Oversight Council is required to make detailed factual findings, render a conclusion on compliance or violation of specific rules and recommend consequences for the subject of the complaint. There is no provision within the Coroners Act or any accompanying regulation that requires the Death Investigation Oversight Council or its Complaints Committee or for that matter the Child Injury Investigation Committee to hold oral hearings, weigh evidence or assess the credibility of witnesses. It is those structures which allow for detailed findings and to provide the procedural safeguards that are necessary where a decision may have serious consequences for any individual.
[58] The complaints process was intended to serve a different purpose. The core function of the complaint process is to make recommendations to improve the carrying out of investigations into death and injuries. The Death Investigation Oversight Council is empowered to make recommendations (specifically to the Minister) as to “the appointment or dismissal of the Chief Forensic Pathologist”[77] but this is ancillary to the underlying concern for the efficacy of investigations and not central to the consideration of a complaint.
The failure to find facts
[59] The submissions made on behalf of Dr. Jane Turner propose that the Goudge Report, the amendments to the Coroners Act that respond to that report and the annual reports of the Death Investigation Oversight Council all demonstrate an obligation to “find facts”. Recommendation 61 of the Goudge inquiry report states that the complaints process should be “transparent, responsive and timely”.[78] As submitted on behalf of Dr. Jane Turner, s. 8.4(6) of the Coroners Act should be interpreted to give effect to that recommendation. That section directs that the complaints committee is to “review every complaint made about the Chief Coroner or the Chief Forensic Pathologist”.[79] Each of the Annual Reports of the Death Investigation Oversight Council from 2016 to 2019 indicates that “Upon completing their review, the Complaints Committee members will prepare a reporting letter, which details their findings.”[80] The problem with this is the same. It considers these sources as if they were functioning within a judicial or quasi judicial forum like a discipline proceeding under legislation regulating a profession rather than a review directed to making recommendations to improve the investigation of death and injuries. A complaints process can be transparent and responsive without requiring that specific facts be proved. To the contrary, advisory bodies don’t necessarily rely on facts; recommendations may result from concern or speculation as to what could happen, not on what has happened. A “review” as referred to in s. 8.4(6) does not require a hearing and consideration of credibility to determine what happened. It may canvas different perspectives and without choosing between them (accepting one in preference to another) provide guidance for the future. In referring to the word “findings” the submissions made on behalf of Dr. Jane Turner rely on the use of that word in the context of a legal proceeding. It refers to a succession of definitions, each one from a legal dictionary[81] and fails to account for the fact that the context in which the word is being used is different. The Annual Report of the Death Investigation Oversight Council for 2020 removed this requirement.
The failure to substantiate the complaint
[60] What follows from this is that there is no requirement that the Death Investigation Oversight Council or its Complaints Committee make findings that establish or reject the proposition that Dr. Michael Pollanen abused his position or authority. The issue is how his actions contributed to the investigation and whether there were recommendations as to how his involvement could better assist in providing a proper, efficacious and transparent process of investigation.
[61] The Factum filed on behalf of Dr. Jane Turner lists evidence that, it is submitted, was not accounted for by the Death Investigation Oversight Committee which is said to support her allegations (substantiate her complaint) that Dr. Michael Pollanen abused his authority and acted unprofessionally.[82] In each case, as the review contained in these reasons demonstrates, there is evidence on which a contrary or reasonable alternative determination could be made, as follows:a. Dr. Michael Pollanen concluded the cause of death was child abuse after reviewing the bone slides for only 20 minutes and without reviewing other available evidence.
There is evidence that he did not decide, following his review of the slides, that the cause of death was child abuse. His note to file indicated that in his view traumatic injury remained a consideration. That’s why the matter was referred to the Child Injury Investigation Committee. None of the many professionals involved provided evidence that 20 minutes was insufficient time to interpret the bone slides.
b. Dr. Michael Pollanen referred the death of the child to the Child Injury Investigation Committee even though it fell outside its jurisdiction.
The fact that Dr. Jane Turner, as the applicable “forensic pathologist” would not, in any event, be prepared to change her opinion, even when confronted with the different determination of others is not enough to remove the concern that child abuse was involved. Child abuse fell within the jurisdiction of the Child Injury Investigation Committee.
c. Dr. Michael Pollanen appointed his deputy as the chair of the Child Injury Investigation Committee when he lacked authority to do so.
There is evidence that the deputy was not appointed as the Chair for the purpose of carrying out the particular review. He was the Committee’s continuing Chair. There is nothing inherently wrong with the deputy of Dr. Michael Pollanen acting as the Chair for the purposes of this, or any other review.
d. Concerns with the work of the Child Injury Investigation Committee
. the members provided opinions even though they lacked expertise in bone pathology;
. the Committee agreed to get a second opinion but one was never obtained;
. the bone pathology was sent to the Victorian Institute of Forensic Medicine without consulting Dr. Jane Turner, (it has no bone pathologists on staff, they concluded that there were too many deficiencies such that the case was not reviewable and they did not disagree with Dr. Turner’s conclusion that child abuse was not the cause of death);
. the Committee concluded that child abuse was not excluded as the cause of death.
Consistent with s. 8.2(1) of the Coroners Act members of the committee were appointed by the Chair. A bone specialist was involved. The opinion being sought was a second opinion. There is no suggestion that anyone gave opinions outside their area of expertise. Efforts were made to locate a second bone specialist without success. The Victorian Institute of Forensic Medicine was engaged. Dr. Jane Turner was offered the opportunity to comment on its selection but declined to do so. The Victorian Institute of Forensic Medicine did not agree with Dr. Jane Turner. The report it delivered states that its people did not accept there was evidence of any underlying bone disease but also did not think there was sufficient evidence to conclude that the death was due to inflicted trauma. There was evidence on which the Child Injury Investigation Committee could reasonably determine not to rule out inflicted trauma and to refuse to accept the perspective of Dr. Jane Turner.
e. Dr. Michael Pollanen’s view of the cause of death
. he wrote his own report concluding that inflicted injury could not be ruled out and the cause of death was undetermined;
. he changed his position at the final case conference that the cause of death was child abuse.
The first report was consistent with the view of the Child Injury Investigation Committee and not consistent with an effort to override Dr. Jane Turner. There is nothing wrong with his having changing his mind but, in this case, it is without importance because it happened at a case conference held after the complaint of Dr. Jane Turner had been delivered. Did the Committee fail to understand that its authority to make recommendations to improve the death investigation system included recommending the dismissal of the Chief Forensic Pathologist of Ontario
[62] As has already been noted in these reasons, there is nothing to suggest that the Council or the Committee was unaware of the authority to make the recommendation, it just is not one that was made in these circumstances. Moreover, having reviewed the background to the complaint, there is nothing that would support such a recommendation, certainly nothing to suggest that the failure to do so was unreasonable. The issue of dismissal was not raised before the Committee. This judicial review does not take issue with the recommendations that were made or that the justification for them cannot be understood from a review of the history of this investigation. By way of example, there are recommendations that address the underlying allegations of abuse of authority. These include the recommendation for an independent, external operational review of the office and for the establishment of random external reviews of the casework of the Chief Forensic Pathologist. What the application seeks is a justification why a different recommendation was not made; that is a recommendation to the Minister that Dr. Michael Pollanen be dismissed. In a discipline matter, the reasonableness of a sanction that was imposed may be questioned. That is not the circumstance here. In this case, there is no need to demonstrate that the decision not to make the recommendation being sought was reasonable.
[63] The Coroners Act recognizes that there may be circumstances where there are others, including the College of Physicians and Surgeons of Ontario, better suited to deal with what has come to the Death Investigation Oversight Council as a complaint.[83] The Death Investigation Oversight Council was aware of the authority of the Complaints Committee to refer such a situation to others and that the allegations made against Dr. Michael Pollanen would be better dealt with in that way:With respect to the allegations of bullying and/or workplace harassment, while the Committee can make recommendations pertaining to supporting a healthy and collaborative workplace environment, such concerns need to be referred to the employer of the person(s) [Dr. Huyer and Dr. Pollanen] who is subject to the complaint. Pursuant to s. 8(4) of the [Coroners Act], we are of the opinion that the allegations of bullying and/or workplace harassment would be more appropriately dealt with by the Chiefs’ superiors.[84] Conclusion
[64] I return to where these reasons began. This judicial review was ill-considered and should never have been brought. It misunderstands the process provided under the legislation. The process is directed to advice, not discipline. The judicial review seeks to set aside the “decision” (the recommendations) in favour of attacking the actions and participation of Dr. Michael Pollanen. The application stands as an impediment to the acceptance of the advice provided, preferring instead, to air a personal grievance pointed at Dr. Michael Pollanen because the investigation failed to accept the analysis of Dr. Jane Turner as to the cause of death. In doing this, it impugned the participation of virtually every professional involved, regardless of their expertise and the substance of their contribution. There is no requirement to provide a justification or reasons for a recommendation not being made. There is no need to explain why there was no referral to the Minister recommending the dismissal of Dr. Michael Pollanen as the Chief Forensic Pathologist. As it is, the analysis of what took place makes clear that it was reasonable that such a recommendation was not made. There would be no point in re-evaluating this issue. Judicial review is a discretionary remedy. If it was required, I would exercise the court’s discretion and refuse to grant judicial review. Too much time has been taken and wasted by this unfortunate application.
[65] For the reasons reviewed the application is dismissed. . Turner v Death Investigation Oversight Council
In Turner v Death Investigation Oversight Council (Div Court, 2023) the Divisional Court considered the 'Death Investigation Oversight Council', which hears complaints related to the Coroners Act [Coroners Act s.8] forensic pathologists system:[3] This application considers a complaint of one forensic pathologist of the actions of the Chief Forensic Pathologist of Ontario, in the context of a particular death of a particular child. They disagreed as to the cause of death: was it natural or could it have been traumatic? When a complaint is made concerning the actions of the Chief Forensic Pathologist, it is directed to the Death Investigation Oversight Council. By statute, the Death Investigation Oversight Council has a Complaints Committee. Every complaint made about the Chief Pathologist is to be reviewed by the Complaints Committee.[2] On March 4, 2019 the Applicant, Dr. Jane Turner lodged a complaint with the Death Investigation Oversight Council.[3] On April 29, 2019, Dr. Jane Turner made additional submissions in support of her complaint.[4] The Complaints Committee undertook an investigation. On December 9, 2019, the Death Investigation Oversight Council delivered the results of its review in a “reporting letter”.[5] In so doing it noted:It must be understood at the onset of this report that DIOC is not a medical body and does not have the authority to review or assess medical conclusions or opinions with respect to a cause or manner of death. DIOC is an advisory body. The purpose of the Committee is to consider complaints with the goal of helping improve Ontario’s death investigation system. In reviewing a complaint, the committee considers procedures undertaken and, if necessary, makes recommendations to improve the death investigation system.[6] The entire case is useful for anyone interested in the intense 'coroner politics' in Ontario, and it's relation to child protection.
. 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”.
|
