One of the most important recommendations coming out of Justice Stephen Goudge’s public inquiry into many of disgraced former pathologist Charles Smith’s cases is that Ontario should establish an independent complaint system to bring accountability to the Ontario Chief Coroner’s office.

Justice Goudge proposed this recommendation largely in response to the Kafkaesque experience of a Sudbury, Ontario man named Maurice Gagnon, who tried desperately to bring Smith’s incompetence in an investigation involving the sudden death of his 11-month old grandson on November 30, 1995 – as well as in other cases involving the deaths of children - to the attention of Smith’s superiors in the Chief Coroner’s Office.

Maurice Gagnon brought his complaint (one of many he tried to make) through the “Coroner’s Council” – the only formal channel for bringing complaints relating to death investigations – only to discover to his astonishment that the Council had been disbanded, leaving him no option but to direct his complaints to those officials who were the subject of them.

Maurice Gagnon later wrote to Ontario’s Auditor General: “The office of the Chief Coroner has become a “closed shop”, accountable to no one, totally independent of any third party intervention and contemptuous of the judicial system.”

"The council, with its legilsatively prescribed mandate and membership, is unique among the world's death investigation systems and is widely regarded as a model of excellence." Justice Joseph James

After acknowledging that many of Maurice Gagnon’s concerns were “legitimate,” Justice Goudge recommended establishment of a new complaints system based on principles of transparency, timeliness and responsiveness. This would impose accountability, help uncover flawed pathology practices at an early stage and restore responsibility in the practice and oversight of Ontario’s pediatric forensic pathology.

It is a tribute to Justice Goudge that the Government, in response to his proposals, has put in place a new system that centers on a death investigation oversight council with a complaint committee component and has appointed former Superior Court Justice Joseph James to get it off the ground.

Justice James’ experience as a criminal lawyer and part-time crown attorney puts him in an excellent position to appreciate the nuances of police and Coroner’s investigations.

The years he spent practising law in the family courts will have sensitized him to the enormous pressure imposed on family members in times of intense stress. His work on the family court bench puts him in an excellent position to ensure people who invoke the complaint process will be treated fairly and be treated with due process, as well as those who are at the receiving end of the complaints.

Justice James has a reputation for a willingness to make tough decisions, as in a 1991 case where he broadened a Supreme Court of Canada court delay decision applying to adults by ruling that while waiting eight months for a trial may be fine for an accused adult, a young offender shouldn’t have to wait more than four months.

Another factor that bodes well is Justice James’s willingness to go public about his new position to Ontario’s lawyers through this publication.

For a start, he views his appointment as an opportunity to carry out a “public service” which, like the many voluntary activities he has conducted, “provides an opportunity to employ my skills and experience in order to serve Ontarians.”

One compelling example of his commitment to public service was his organization of a charity coalition with the Canadian footwear industry for a program in which Judges, lawyers and court staff sort, wrap and distribute new footwear every December to shelters, hostels and several children’s aid societies.

More specifically, Justice James says that “as an advisory body, the purpose of the complaints committee is to consider complaints with a goal of helping improve Ontario’s death investigation system.”

“In reviewing a complaint, the committee considers the procedures undertaken during the course of a death investigation and, if necessary make recommendations to improve the death investigation system,” he adds.

“The committee does not have the authority to review or assess medical conditions or opinions with respect to a cause or manner of death.”

Justice James acknowledges that since the “unique in its mandate” complaints committee became operational and began reviewing complaints on a case-by-case basis in July, 2011, his focus has been “on ensuring that the system worked and that diligence is undertaken during the review process.”

He stresses that “significant progress” – including completion of the legislative amendments called for by Justice Goudge - has been made, and that restoration of public confidence is well under way.

“The Council, with its legislatively-prescribed mandate and membership, is unique among the world’s death investigation systems and is widely regarded as a model of excellence.”

As Maurice Gagnon told JUST., one immediate advantage of the reforms is that a complaint against the higher-ups in the Chief Coroners Office would go directly to the Committee instead of to the official involved.

Mr. Gagnon believes that the key to the success of the complaints committee will be its ability to make clear to those who feel they have been wronged during a death investigation that they can readily access the new process.

Toronto lawyer James Lockyer, who represented the Association in Defence of the Wrongly Convicted at the Goudge Inquiry, recognizes that the new complaints system is still in its infancy, and is reserving judgment until it has a chance to prove itself.

But Lockyer recommends that the Committee set reasonable times for the processing of complaints – say 60 days – as quickly as possible, because lengthy processes “will not be helpful to people in those circumstances, who just want quick answers.” Justice James reminds us that some historical complaints are complex and lengthy.

He also says it is important for the Ontario government to require the inclusion of an experienced criminal defence lawyer on the new Council to offset the mandatory presence of two prosecutors so that there will be a full consideration of all viewpoints.

Lockyer says that at the very least, the new system is “certainly an improvement” for people like Maurice Gagnon, because the previous one “could not have been worse.”

About the Author

Harold Levy is a lawyer and former reporter for the Toronto Star.

Information about Ontario's Death Investigation Oversight Council and the public complaints process

Read Harold Levy's first article, Charles Smith: Foolish Pride or Malevolent Evil? From the OBA's June 2011 edition of Briefly Speaking