Culpability

One of the limitations placed on inquests in Manitoba is that presiding judges are not permitted to make findings of culpability with regard to the deaths they investigate. The limitation is not restricted to presiding judges, however.

Section 7 (6) of the Fatality Inquiries Act provides:

In making an inquiry report under subsection (5), a medical examiner or investigator shall not express an opinion with respect to culpability in such manner that a person is or could be identified as a culpable party.

Section 14 (2) further provides:

In an investigation report, a medical examiner shall not express an opinion with respect to culpability in such manner that a person is or could be identified as a culpable party.

The limitation on presiding judges is found in section 33(2) of the Fatality Inquiries Act, which provides:

In a report made under subsection (1), a Provincial Judge
(a) . . .
(b) shall not express an opinion on, or make a determination with respect to, culpability in such manner that a person is or could be reasonably identified as a culpable party in respect of the death that is the subject of the Inquest.

Coroners' inquests once had the right to accuse persons of being responsible for the death of a deceased person, and to issue arrest warrants for those named. Such powers were taken away by statute, but inquests continued to be allowed to name those responsible for the death if they found sufficient evidence to do so. That ability was taken away by legislative amendment in 1990 (S.M. 1989-90, c.30).

While "culpable" and "culpability" are not defined in the legislation, culpability is nothing more than legal blaming. To find someone culpable is to determine that an individual has committed an act (either by commission or by omission) that amounts to a legal transgression and that the act is legally blameworthy or sanctionable.

The need to limit the ability of presiding officials at inquests to comment upon the issue of culpability is obvious. There are disciplinary, civil and criminal laws and procedures in place that are intended to address the issue of legal culpability. Those laws contain procedures that respect the rights of individuals (such as complainants, witnesses and defendants), including the right to notice, disclosure, counsel, reply, cross-examination etc.

Provisions in fatality inquiries legislation, on the other hand, allow for evidence to be heard informally, sometimes in camera, and for persons to be examined in a manner that is not necessarily consistent with the protective procedures that are normally in place during civil and criminal trials. That is because the purpose of such legislation is not to place legal blame but to determine what happened in order to see if what happened can be prevented from recurring.

A potentially culpable party might not be a party to the inquest proceedings. They may not have standing to cross-examine witnesses who might testify as to something that the person may have done to cause the death of the deceased. A potentially culpable party is compellable as a witness and does not have the right to refuse to answer questions under oath. The Fatality Inquiries Act of Manitoba deems them to object to testifying as to any potentially culpable behaviour but the The Manitoba Evidence Act R. S. M. 1987, c.E150 requires that they testify if ordered and protects such testimony from being included in other proceedings. However that protection might be moot if it leads to their being identified as a culpable party. The Canada Evidence Act R. S. C. 1985, Chap. C-5, which governs criminal proceedings in this country, contains a similar provision. The Canadian Charter of Rights and Freedoms protects compelled testimony from being used against a party as well (Constitution Act 1982, Part 1, sec 13).

Because of that, it is obvious that evidence may be obtained during the course of an inquest that might not otherwise be admissible in a civil or criminal legal proceeding, or might not have been tested in accordance with the usual procedures. Because safeguards available to an accused or defendant in criminal, disciplinary or civil proceedings may not be available during inquest proceedings, it is necessary to ensure that proceedings under fatality inquiries legislation not result in unfairness to individuals.

All of this is meant to show that there is good reason for the limitation in the legislation against pronouncing on culpability. For the same reason, however, judges presiding at inquests should be reticent about exonerating individuals. While the legislation does not specifically provide for such a limitation, it makes sense that if an inquest judge ought not to find culpability on the part of an individual, the judge should not declare individuals free from culpability.

As an inquest judge, therefore, I accept that I am not permitted to comment on culpability in the course of making my findings. Accordingly, this report will not comment on the culpability of any individual, corporation, group or collective of individuals.

That does not mean, however, that a presiding judge at an inquest cannot make findings of fact or of law in order to reach appropriate conclusions.

In Swan v. Harris (1992), 79 Man. R. (2d) (Q.B.), the report of an inquest by a judge referred to allegations of abusive conduct by the victim's father toward his wife and children. The father alleged that the judge exceeded his powers by referring to this abusive conduct, and that the alleged abuse was not relevant to the inquiry as the deaths were not linked to it. Jewers J. at page 191 held that the inquest judge made no finding of culpability. He also stated at pages 191-192 that it was appropriate and within the inquest judge's jurisdiction to receive evidence concerning the alleged abuse. Because there might have been some connection between this abuse and the deaths, it was essential to inquire into this for a full and proper inquest.

Jewers J. stated that had the judge inquired into a subject that was utterly remote and made that a part of the report, then he might have exceeded his powers.

Therefore while a judge cannot declare that a particular act makes a person legally culpable, he can make a finding that a particular act occurred, without declaring on the question of culpability, so long as the finding is relevant to a matter into which he or she is inquiring.

I am aware that civil proceedings have been undertaken as a result of the deaths of some of the children who are the subject of this inquiry. Those proceedings have been held in abeyance pending the completion of these proceedings. That is not to say that any findings from these proceedings will be binding on any other proceedings. That is in fact, and in law, not the case. However, I am aware that the findings of these proceedings may have an influence on the public's perception as to the issues between the parties to the civil proceedings. I intend, therefore, to be as careful as possible; however, that possibility cannot totally determine the content of this report.

Throughout this report, therefore, I intend to make whatever findings of fact, and of law, are essential for me to perform the mandate assigned to me by legislation, but I do not intend to make any findings of culpability. It is important to bear that limitation in mind throughout this report. The question of culpability is for others to decide if asked.