Coroner refuses to seal videos of death in prison
Prison system loses bid to halt inquest
TORONTO – A coroner’s inquest into the terrible prison death of a mentally disturbed teenager has taken a giant leap forward with the refusal of the new presiding coroner to accede to yet another delay.
“These recommendations have the real potential to save lives,” Dr. John Carlisle said bluntly on Tuesday, making direct reference to “other mentally ill inmates” who, as the late Ashley Smith was for almost a year, are in federal custody and who may be at risk.
Smith was just 19 when, in her isolation cell at Kitchener’s Grand Valley Institution for Women on Oct. 19, 2007, she tied a ligature around her neck while correctional officers, who unbeknownst to Smith were under strict new marching orders not to intervene unless she stopped breathing, watched from the other side of the door.
Smith did stop breathing, and almost since that moment, the Correctional Service of Canada, the national prison bureaucracy, has waged a relentless legal battle to keep that video, and others documenting Smith’s dreadful voyage through the federal system, under wraps.
The CSC is distinct from the guards themselves, who through their union also have what’s called “standing” at the inquest — it means their lawyer, Howard Rubel, has access to the entire brief and can make submissions — and have always supported the videos being made public.
This time, at a motion hearing, CSC lawyer Joel Robichaud was seeking first to have the videos sealed until they became evidence at the inquest before a jury.
Most of the groups with standing, including Smith’s family, vigorously opposed the CSC motion, as did two lawyers for the media, including Paul Schabas who represented Postmedia, the Toronto Star and CBC. As Julian Falconer, the lawyer for Smith’s family, snapped at one point, “There are nine parties … over 20 counsel, and only one party wants to keep the public from seeing” the videos. “That’s an indication the Correctional Service is on its own.”
When Dr. Carlisle declined to seal the videos, Robichaud sought to have the hearing stopped in its tracks while he rushed off to court to seek judicial review of the decision.
It is still possible that Robichaud could appear at Ontario Divisional Court on Wednesday morning and seek an interim order to halt the inquest, pending a full judicial review later.
But what has become clear is that this time, the presiding coroner and his counsel have the will and intestinal fortitude to see the inquest become what it is meant to be — a broad investigation of what happened to Smith with a view to preventing other similar deaths.
In its first incarnation, it sometimes seemed then-coroner Dr. Bonita Porter was aiding and abetting the CSC in trying continually to both narrow the scope of the inquest and keep the videos secret.
But when, amid much criticism, Dr. Porter abruptly retired last year, she was replaced by Dr. Carlisle, who is not only a medical doctor but also a lawyer. Either his knowledge and understanding of the law or his forthright manner — or both — appear to render him confident at the wheel of the unwieldy vehicle that is the coroner’s inquest.
Neither a criminal trial nor a nutsand-bolts death inquiry, inquests are meant to shine a light into dark corners, particularly in opaque institutions such as prisons.
The two proceedings — the abbreviated first inquest and this one — could not be more different.
Where the first was plagued by delay and controversial rulings — particularly Dr. Porter’s refusal, later overturned by the Ontario Divisional Court, to seize and view Quebec prison videos that show Smith being forcibly injected with anti-psychotic drugs — this one appears to be the real deal.
Dr. Carlisle’s counsel, Jocelyn Speyer, demonstrated Tuesday she is serious about getting the actual inquest started by its target date of Jan. 14. She told Dr. Carlisle “there needs to be some urgency to this,” and agreed with the arguments of Falconer and others that the CSC case for a sealing order was so weak he was “entitled to decline the application for adjournment.”
Falconer called that CSC bid “colossally meritless” and “a pathetic effort to keep from public scrutiny what every other party in this room understands is public.”
He accused the CSC of “playing with house money (public funds) to hold us all hostage. … It’s not every party that can afford a whole troop of lawyers to get a stay.”
Barring a last-ditch appeal from Robichaud on Wednesday morning, the hearing will resume to hear a motion from Mark Freiman, who represents a handful of doctors involved with Smith in the prison system over the newly expanded scope of the inquest.
The doctors are seeking to have Dr. Carlisle change his mind about the sweeping nature of the inquest, and say he has no authority to order doctors from outside Ontario to appear as witnesses.
The teenager, who first entered the youth correctional system for the “crime” of throwing apples, acquired so many institutional charges that she ended up with a significant sentence to serve as an adult.
As she was shuttled from one federal prison to another, from one segregation cell to another, her habit of “tying up” — putting makeshift ligatures around her neck — increased.
The tying-up behaviour usually saw guards rush in to save her.
It was virtually the only way she had of getting any human contact.