2005 BCSC 1328 Bagnell v. HTMQ et al

Before: The Honourable Mr. Justice Kelleher

Reasons for Judgment

Counsel for the Petitioners:	A. Cameron Ward
Counsel for the Respondents: Attorney General of British Columbia and Minister of Public Safety and Solicitor General	Bryant A. Mackey
Counsel for the Respondents: Terry Smith, Stephen Fonseca and British Columbia Coroners Service	Christopher C. Godwin
Counsel for the Respondent: City of Vancouver	Catherine M. Kinahan
Date and Place of Hearing:	September 12, 2005 Vancouver, B.C.

[1] This is an application for orders in the nature of mandamus.

[2] The circumstances are as follows. Robert Bagnell died suddenly on June 23, 2004. The petitioners are his parents and his sister who live in Prince Edward Island and Ontario, respectively.

[3] The deceased was on the fifth floor of a hotel on Granville Street in the City of Vancouver. According to a Vancouver Police Department press release, Mr. Bagnell was alone in a washroom. He was behaving in a violent fashion but was not posing a danger to anyone so the attending police officers waited for him to calm down. There was a fire in the building and the police needed to evacuate the building. A taser was administered to Mr. Bagnell and he stopped breathing. According to this press release, a toxicologist's report indicated he had lethal levels of cocaine in his blood as well as other drugs.

[4] The British Columbia Coroner's Service (the "Coroner") is responsible for inquiring into and investigating all unnatural, unexpected, unexplained and unattended deaths in the Province. When such a death occurs a Coroner must ascertain the facts surrounding the death, determine the identity of the deceased and when, where, how and by what means the deceased died. The death must be then classified as natural, accidental, suicide, homicide or undetermined.

[5] There are two ways in which a Coroner may proceed. It may conduct an inquest or a less formal judgment of inquiry. It is common ground between the parties that here an inquest is necessary. The Coroners Act, R.S.B.C. 1996, c. 72, s. 10, requires that the Coroner issue a warrant to hold an inquest into a death when it occurs while a person is in police custody.

[6] There are two matters in dispute between the petitioners and the Coroner. First, although the Coroner maintains that it will hold an inquest, it has not scheduled one yet. The Coroner says that it does not plan to schedule one until the Crown has decided whether to lay charges in respect of Mr. Bagnell's death. If no charges are laid, the warrant will issue. If the Crown decides to lay charges, no inquest will take place until the charges have been dealt with.

[7] The second matter in dispute is that the Coroner and some of the other respondents have several documents relating to Mr. Bagnell's death including the autopsy and toxicology reports. The petitioners want these documents provided to them.

[8] Mr. Ward, counsel for the petitioners, has been shown the autopsy and toxicology reports. He was permitted to take notes with respect to them and to disclose their contents to the petitioners. The petitioners do not have copies of them.

[9] The petitioners seek the following relief pursuant to the Judicial Review Procedure Act, R.S.B.C. 1996, c. 241:

1. An order in the nature of mandamus compelling the Coroner to issue a warrant to hold an inquest or an order in the nature of mandamus compelling the Attorney General to order the Coroner to issue the warrant pursuant to s. 23 of the Coroners Act.

2. An order in the nature of mandamus compelling the respondents other than the City of Vancouver to deliver copies of all records in their possession and control relating to Mr. Bagnell's death to the petitioners.

3. A declaration that the refusal of the respondents other than the City to deliver the documents to the family is patently unreasonable.

4. A declaration that the refusal of the respondents other than the City to deliver the documents to the family is contrary to the principles of natural justice.

Should the Coroner be directed to issue a warrant?

[10] In Karavos v. The City of Toronto and Gillies, [1948] 3 D.L.R. 294, the Ontario Court of Appeal described the requirements for an order in the nature of mandamus. The applicant must show:

(1) a clear, legal right to have the thing sought by it done, and done in the manner and by the person sought to be coerced...;

(2) the duty whose performance it is sought to coerce by mandamus must be actually due and incumbent upon the officer at the time of seeking the relief, and the writ will not lie to compel the doing of an act which he is not yet under obligation to perform...;

(3) that duty must be purely ministerial in nature, plainly incumbent upon an officer by operation of law or by virtue of his office, and concerning which he possesses no discretionary powers...; and

(4) there must be a demand and a refusal to perform the act which it is sought to coerce by legal remedy... . (citations omitted)

[11] There is no dispute here that the Coroner must hold an inquest into Mr. Bagnell's death. What is disputed is when the Coroner must hold it. The third requirement in Karavos is that the duty must be one in relation to which the decision-maker has no discretion. The Coroners Act contains no time limits for the issuance of the warrant for an inquest. It leaves the decision therefore to the discretion of the Coroner.

[12] Nevertheless, where a decision is discretionary, mandamus may still be available. In Apotex Inc. v. Canada (Attorney General), [1994] 1 F.C. 742, 18 Admin. L.R. (2d) 122 (C.A.), aff'd [1994] 3 S.C.R. 1100, 29 Admin. L.R. (2d) 1, the Federal Court of Appeal described the rules applicable to mandamus where the duty sought to be enforced is a discretionary one:

(a) in exercising a discretion, the decision-maker must not act in a manner which can be characterized as 'unfair', 'oppressive', or demonstrate 'flagrant impropriety' or 'bad faith';

(b) mandamus is unavailable if the decision-maker's discretion is characterized as being 'unqualified', 'absolute', 'permissive' or 'unfetterred';

(c) in the exercise of a 'fettered' discretion, the decision-maker must act upon 'relevant' as opposed to 'irrelevant', considerations;

(d) mandamus is unavailable to compel the exercise of a 'fettered discretion' in a particular way; and

(e) mandamus is only available when the decision-maker's discretion is 'spent', i.e., the applicant has a vested right to the performance of the duty.

[13] Counsel for the petitioners criticizes the Coroner's exercise of discretion on the basis that it has caused undue stress to the petitioners and departs from the purposes and principles of the Coroner's service. In particular he argues that the purpose of a Coroner's inquest is to focus community attention on a death and to satisfy the community that the death of one of its members is not overlooked, concealed or ignored. He says that in this case the Coroner has departed from this principle. However, the petitioners have not established that, in exercising its discretion, the Coroner has acted in an unfair, oppressive or bad faith manner.

[14] Counsel for the petitioners further argues that the decision of the Coroner to await the outcome of criminal proceedings is unreasonable. He argues that an inquest is fact-finding, not fault-finding. Therefore it cannot prejudice the outcome of criminal proceedings. He also argues that the Coroners Act itself in ss. 28(b) and 39 contemplates an inquest taking place before or during criminal proceedings. However, I agree with counsel for the Coroner that the sections cited by counsel for the petitioners simply anticipate situations where, for whatever reason, the inquest is conducted before or during criminal proceedings. They do not mandate such a result.

[15] In my view, the decision of the Coroner to await the outcome of the criminal process before issuing a warrant was a decision the Coroner was entitled to make.

[16] I agree with counsel for the Coroner that if the Crown lays charges and the inquest is delayed indefinitely as a result, different considerations arise. There is then an argument that the decision to delay the issuance amounts to a decision not to hold an inquest. But that is premature. Those circumstances do not yet exist.

[17] In any event, the fixing of dates for a proceeding is generally not the proper subject for an order in the nature of mandamus: Lemieux v. Canada (Unemployment Insurance Commission), [1977] 2 F.C. 246 (T.D.). In that case, Walsh J. stated at para. 3:

In principle it may be said that matters such as the dates fixed for hearing of a proceeding or proceedings and whether they should be heard individually or joined together for hearing as a representative case are clearly administrative decisions and should not be interfered with by the Court in proceedings such as the present unless it is clearly evident that the body, board or tribunal against which relief is sought is not complying with the law and regulations governing its conduct and the petitioner will suffer a denial of justice unless the mandamus or injunction, as the case may be, is issued compelling the party against whom it is directed to comply with the said law and regulations.

[18] As I have stated, the Act does not contain a time limit.

[19] Moreover, I am not persuaded there is a denial of procedural fairness or natural justice.

[20] The petitioners argue that 14½ months is an unreasonable length of time to wait for the Coroner to issue a warrant to hold an inquest. But the reasons for the delay must be considered. The Coroner's explanation is that it wishes to await the decision regarding criminal proceedings. That is a reasonable position. The delay in the Crown's decision regarding criminal proceedings is also reasonable: it is due to a delay in the receipt of the pathologist's report. That report took longer than normal to complete because the particular pathologist was away from the office on emergency leave.

[21] Counsel for the petitioners argues that some of the delay is the fault of the Vancouver Police Department. He referred the court to the report of the Police Complaints Commissioner regarding complaints by Pivot Legal Society against the Vancouver Police Department. In this report, Commissioner Dirk Ryneveld, Q.C., relates that he was concerned about adverse perception of the ability of the Vancouver Police Department to conduct an impartial investigation into Mr. Bagnell's death and so he requested assistance from the Victoria Police Department in conducting an external investigation. Counsel for the petitioners relies on the letter cited in that report which Victoria Chief Constable Battersill wrote to Vancouver Chief of Police Graham in which Chief Battersill states that the Vancouver Police Department appears to be engaging in a passive form a "passive form of obstruction" that is hampering the investigation.

[22] However, there is no evidence of the extent to which any actions by the Vancouver Police Department may have delayed the investigation. Even if there were, that would not of itself render the decision of the Coroner to await the outcome of the criminal process unreasonable.

[23] I am reinforced in my conclusion by the decision in Keenan v. Certified General Accountants Association of British Columbia (1999), 12 Admin. L.R. (3d) 199, 60 C.R.R. (2d) 344. In that case, Holmes J. held that the decision of a professional body to hold in abeyance its investigation of one of its members for professional misconduct pending the outcome of criminal proceedings in the same manner was reasonable. In that case the delay between the initial investigation and the initiation of further proceedings was 34 months.

[24] I accept the emotional toll this delay is taking on the petitioners. However, having regard to the circumstances, I am not persuaded that the delay is unreasonable.

[25] Moreover, I am not persuaded that the petitioners have been prejudiced in their ability to be heard at the inquest, when it takes place.

Should the Attorney General be directed to order the Coroner to issue a warrant?

[26] The second part of the petitioners' argument is that the court should compel the Attorney General to exercise its power to order the Coroner to issue a warrant to hold an inquest. This part of the application is based on s. 23(3) of the Coroners Act:

23 (3) The Attorney General may order an inquest or another inquest to be held concerning a death if the Attorney General is satisfied

(a) that a Coroner refuses or neglects to hold an inquest that ought to be held, or

(b) if an inquest has been held, that it is necessary or desirable in the interests of justice that another inquest should be held because of fraud, rejection of evidence, irregularity of proceedings, insufficiency of inquiry or otherwise.

[27] Counsel for the petitioners argues that the Coroner is neglecting to hold an inquest that ought to be held. I have already concluded that the Coroner is exercising its discretion reasonably in deciding when to issue a warrant to hold an inquest. It follows that it was reasonable for the Attorney General not to take the action open to it under s. 23(3). Moreover, an order in the nature of mandamus against the Attorney General would not be appropriate because s. 23(3) confers on the Attorney General discretion in deciding whether to direct that the Coroner hold an inquest. In light of the fact that the Coroner can itself in appropriate circumstances be the subject of an order in the nature of mandamus, s. 23(3) does not provide the court with any additional jurisdiction.

Should there be an order directing the Coroner to disclose documents to the petitioner?

[28] Mr. Ward seeks an order in the nature of mandamus compelling the Coroner to disclose any and all documents in its possession or control relating to Mr. Bagnell's death, a declaration that the decision of the Coroner not to provide the documents is contrary to the principles of natural justice or a declaration that it is patently unreasonable. The Coroner has refused to provide the documents until it issues a warrant to hold an inquest and obtains the appropriate undertakings from the family.

[29] Again, I have concluded that the requirements for an order in the nature of mandamus are not met here. I am not persuaded the Coroner owes a clear, legal duty to the petitioners to produce documents to them at this time. There is nothing in the Coroners Act that requires the Coroner to disclose documents to interested parties prior to the issuance of the warrant of execution.

[30] Moreover, it appears that the decision of the Coroner as to when and whether it will release documents to the parties is a discretionary one.

[31] In support of its argument that it is not obliged to disclose the documents, the respondent Coroner relies on s. 50 of the Coroners Act:

50. Despite the Freedom of Information and Protection of Privacy Act, before an inquiry or inquest is completed the Coroner may refuse to disclose any information collected in the course of fulfilling the Coroner's duties with respect to the inquiry or inquest.

[32] Counsel for the petitioners argues that this section has no application to parties who have standing at an inquest. There is no dispute that the petitioners will have standing.

[33] It is unnecessary to make a determination regarding s. 50. Administrative bodies are free to control their own procedures as long as the procedure is consistent with the statute and the principles of natural justice. The same principle applies even if the petitioners' interpretation of s. 50 is correct. Therefore the decision not to provide documents to the petitioners at this time has not been shown to be contrary to the Coroners Act.

[34] The remaining question is whether the Coroner's refusal to provide the documents is a breach of natural justice.

[35] Counsel for the petitioners argues that he requires the documents to have a full opportunity to prepare the petitioners' case for the inquest. He argues that it is unfair that the petitioners be denied access to the documents while the other parties to the eventual inquest have access to them. He argues that this disparity will create an uneven playing field at the inquest.

[36] This submission has some merit. It is clear that the petitioners will have significant participatory rights at the inquest. Section 36 provides that persons whose interests may be affected by evidence likely to be adduced at an inquest have the right to appear in person or by counsel to tender and call evidence, to examine, cross-examine and re-examine witnesses and to obtain from the Coroner a summons directed to witnesses the party wishes to call.

[37] However, I am not persuaded that the Coroner's decision not to disclose the documents at this time will prejudice the petitioners' ability to prepare their case for the inquest. Even if other parties to the inquest have documents for a longer period of time than the petitioners, the requirements of procedural fairness are met if the petitioners have a sufficient opportunity to prepare their case. I am not aware of authority, nor have I been referred to any, for the proposition that procedural fairness requires that all parties to administrative proceedings have access to documents for equal lengths of time.

[38] When a date is set for an inquest and the documents are disclosed, it will be open to Mr. Ward to argue that he does not have enough time to prepare by that date.

[39] It follows that I conclude that the petitioners' argument regarding patent unreasonableness fails. It amounts to an argument about natural justice which I have already discussed.

Should the Attorney General or the Minister be directed to disclose any documents to the petitioners?

[40] The Attorney General and the Minister have no clear, legal duty to disclose the documents to the petitioners. Any decision of the Attorney General or the Minister to disclose such documents is a discretionary one.

[41] Given my conclusions, it is unnecessary to consider the argument of counsel for the Attorney General and the Minister that any such documents are likely subject to solicitor/client privilege.

[42] For these reasons, the petition is dismissed.

“S. Kelleher, J.”
The Honourable Mr. Justice S. Kelleher

Citation:	*Bagnell v. HMTQ et al.,*
	2005 BCSC 1328