Funding for the families

Finding

The evidence suggests that the families involved in this Inquest were hampered throughout the hearings by the burden of the costs associated with having legal counsel present throughout.

An important issue that arose almost from the outset of these proceedings had to do with the question of funding for legal counsel for the families involved in these proceedings.

The families of the 12 children who died in 1994 had compelling reasons to choose to follow and participate in the proceedings of this Inquest. However, the length of the proceedings and their complexity would have effectively barred all but the wealthiest of families from participating. The struggle of the families for financial assistance for their legal costs as the proceedings wore on was mentioned from time to time, although no formal assistance was sought from me. However, from the information available, it is unclear if all or only a portion of the legal costs of the families who participated have actually been covered. I believe that the families are entitled to have all their legal costs associated with this Inquest paid.

The role of all counsel for the families was of fundamental importance in these proceedings. While both counsel for the Inquest performed their tasks admirably, their role was not that of advocate for the families, but to bring forward the evidence as best they could. Given the active role of counsel for the other parties under scrutiny, having counsel whose sole responsibility was that of advocating for the families was essential for a fair and proper proceeding.

In this case the families actively pursued the matter with the government of the day and were successful (in part at least) in persuading government to pay for their legal costs. However, it seems unfair for families to have to take steps to persuade the government to provide them with financial assistance for legal costs on a case-by-case basis. Families that are best able to develop and marshal private or public support stand in a potentially more favourable position than do those whose political contacts or influence is lesser.

It is not unusual for Inquest proceedings to inquire into the conduct or decisions of a government department or official. In such a case, for the government to decide whether or not to pay for the legal costs of counsel for the deceased's family, without the family knowing on what basis such assistance will or will not be provided, can lead to the appearance of unfairness. Therefore some guidelines for such assistance should be provided.

Recommendations

It is recommended that: The Government of Manitoba establish a policy for the payment for counsel for families granted standing at inquests, taking into account the following factors:

1. The length of the proceedings.

2. The complexity of the issues.

3. Whether or not the costs of family involvement in the proceedings would be prohibitive to the applicant.

4. Whether or not the presiding judge so recommends on application by the family.

It is recommended that: The Government of Manitoba pay the entire legal costs of the families involved in these proceedings.

The amount of legal costs to be provided to the families involved in these proceedings be referred to an independent fact finder appointed by the Manitoba government and agreed to by the families. The fact finder shall investigate and make a report to the provincial government on whether or not the families should receive any additional financial assistance for legal costs beyond that which has already been provided. In determining what amount should be provided, the fact finder should have regard to the criteria mentioned above, as well as any amounts that have actually been paid. The rates paid to outside counsel retained by the Government should be used as a guideline.