Inquest rule changes up to legislature, Court of Appeal says
Judges give detailed reasons for overturning decision to grant third-party standing at Serena Perry inquest
The Court of Appeal judges who overturned a decision to allow third-party standing at the coroner's inquest into the death of Serena Perry at the Saint John Regional Hospital in 2012 say any changes to the province's rules about granting standing at inquests should be made in the legislature.
But any change "could have far-reaching and perhaps unintended consequences," such as exposing witnesses to examination and cross-examination by people who don’t have the means to retain lawyers, the three-judge panel stated in its detailed judgment, released on Thursday.
"Courts are at their best when they interpret and apply legislation," the 41-page document states.
"It is best left to the Legislature to assess and implement those policies it believes best serve the public interest."
Perry, 22, was under the care of the psychiatric unit when her body was discovered in the hospital's amphitheatre on Feb. 14, 2012.
Saint John police had investigated the death as a homicide, but announced in June 2013 that no charges would be laid.
Coroners appealed
The coroner's inquest, which had been scheduled to begin on March 17, but was postponed due to the appeal, will determine the facts surrounding Perry's death by hearing evidence from witnesses.
In February, Justice Hugh McLellan, of the Court of Queen's Bench, ruled the hospital, psychologist Dr. Pamela Forsythe and pathologist Dr. Mohammed Hossain should have third-party standing at the inquest, giving their lawyers the right to call their own witnesses and cross-examine those called by others.
The existing procedure for inquests in New Brunswick will amply meet any duty of procedural fairness owed to the physicians in this case.- Court of Appeal of New Brunswick
Traditionally in New Brunswick, anyone with an interest in an inquest has been limited to submitting questions to either a Crown prosecutor, who has been appointed to assist the coroner, or directly to the coroner. But it is the prosecutor or the coroner who retains the discretion to determine whether the questions posed will be asked of a witness.
Chief Coroner Gregory Forestell and presiding coroner John Evans appealed McLellan's decision.
The Court of Appeal sided with the coroners in a judgment rendered on June 19, but did not give a detailed explanation of its reasons until Thursday.
"The physicians’ argument that procedural fairness is owed to them at an inquest is anchored to their submission that coroners in New Brunswick have the discretionary power to grant them standing," the document states.
"However, as explained above, coroners in this province have no discretion to grant standing to interested parties," Justice Marc Richard wrote in the decision, supported by Justices Margaret Larlee and Joseph Robertson.
Legislature must 'weigh consequences'
"The question of whether, in the absence of standing, the physicians are nevertheless owed any measure of procedural fairness still remains. In my view, the answer has to be no," Richard said.
"The existing procedure for inquests in New Brunswick will amply meet any duty of procedural fairness owed to the physicians in this case," he said.
"Allowing third party standing is a decision that, in my view, must be made by the legislative branch of government, which can weigh the consequences together with finite available resources and determine how best to proceed in this province."
The doctors have been ordered to pay $5,000 worth of costs to the coroners.
During the inquest, presiding coroner John Evans and a jury will publicly hear evidence from subpoenaed witnesses to determine the facts surrounding Perry's death and how the hospital and its staff handled matters the night Perry died.
The jury will also have an opportunity to make recommendations to prevent deaths under similar circumstances.
The inquest is expected to last two weeks.