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May 28, 2012, Toronto - Elsewhere on this site, Laura King has been diligently and thoroughly providing coverage of the coroner’s inquest into the four fire deaths in 2009 at the Muskoka Heights retirement home in Orillia, Ont. Also, in my Flashpoint blog in April, I took the Ontario government to task over not having implemented sprinkler retrofits in all such facilities. As I write this blog, the news has broken that a couple in their 80s perished in a fire at the Place Mont Roc retirement home in Hawkesbury, Ont., and we have been let down again by inaction on sprinkler retrofit legislation. But here, I want to explore whether we are being let down by the inquest system itself.

May 27, 2012
By Peter Sells

Topics

An inquest
is a public hearing held under the statutory authority of the office of the coroner.
 An inquest is intended to serve
investigative, social and preventative functions. Properly conducted, an
inquest involves public scrutiny of the conditions that may cause or contribute
to the death of a member of the community. Evidence is presented to a jury of
community members, who are tasked to answer five questions:
 ·       Who was the deceased?
·       How did the deceased
die
·       Where did the deceased
die?

·      
When did the deceased
die?

·      
By what means did the deceased die?

Who,
where and when would seem to be straightforward questions in most cases. The
distinction between how and by what means can be illustrated by looking at the
jury’s verdict from Muskoka Heights, in which cause of death (how) is
determined as smoke inhalation (or complications thereof) and by what means as
accidental.

Coroners’
offices will invariably have a motto such as Ontario’s "We speak for the
dead to protect the living". Answering who, how, where, when and by what means
does little to protect the living, which brings us to potentially the most
important societal function of a coroner’s inquest: A jury may make
recommendations that attempt to prevent deaths in similar circumstances in the
future. I say potentially the most important function because there is no legal
obligation for these recommendations to be implemented, nor does there appear
to be any precedent set in common law to hold up a coroner’s jury’s
recommendation as a standard of care. If anyone with a stronger legal
background wants to comment on that, I welcome such a discussion.  Let’s find out if we can fix a system that
seems to be dysfunctional.

Ours is
not the only industry (speaking here of the broader fire-protection community)
that trumpets the adoption of worldwide best practice, nor is it the only one that
regularly fails to live up to that lofty standard. Neither is the dubious
efficacy of a coroner’s jury recommendation solely an Ontario thing.

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Two weeks
ago, a coroner’s jury in British Columbia returned six recommendations after
investigating the 2010 death of a man in an RCMP use-of-force incident. Among
them was a recommendation that junior officers be paired with more senior
officers. Previous juries have returned similar recommendations. David Eby,
executive director with the B.C. Civil Liberties Association, was quoted in the
Kamloops Daily News saying that “Most of the use-of-force incidents that we
see, especially the very serious ones, involve junior officers but
unfortunately (that recommendation) is one that’s often ignored.”

I first
became aware of the inherent flaw in the coroner’s inquest system when reading about
the 1994 drowning death of a young girl at the Variety Village swimming pool in
Scarborough, Ont., after her hair became caught in the pool filter. I remember
reading that the coroner’s jury recommendations were apparently almost
identical to those from a previous coroner’s jury investigating a similar
drowning from Manitoba. Unfortunately, time and technology being what it was, I
can’t immediately retrieve all of this online. If this were a legal brief
instead of a blog, certainly all of that information would be researched and
presented, but for now you will have to rely on my memory. The key point is
that the knowledge existed within Canada that pool filters as designed
constituted a potential danger to children, and nothing was effectively done to
prevent the death of 10-year-old Cristin Fitzpatrick.

A quick online
search produced information on pool-filter entrapment drowning cases from
Australia, Japan and the United States, many of which were investigated by
coroners’ juries.  One hard statistic
stands out: between 1985 and 2004, at least 33 American children under the age
of 15 died as a result of pool and spa entrapment, and almost 100 others were
seriously injured. So, ineffective coroners’ inquest systems are not just a
fire or police thing, and not just a Canada thing either.

I accessed
the most recent report on inquests on the Ontario coroner’s website. The
summaries and categorizations of inquest recommendations for the years 2003 through
2009 yielded these statistics; of the 2,897 total recommendations made by
juries over that eight-year period, 1,001 (or 35 per cent) have been
implemented. A further 688 (24 per cent) either will be implemented, have had
alternate solutions implemented, or will have alternate solutions implemented. So
a total of 58 per cent of jury recommendations have been or are in the process
of being effectively addressed. Another 108 (four per cent) are listed as having
been rejected, leaving 1,100 (38 per cent) in one form of holding pattern or
another. The report does not address individual recommendations, but it seems
obvious that sprinkler retrofit is somewhere in one of those states of limbo.
How low can you go?

Fingers
have been pointed at fire marshals and fire commissioners on this and similar
issues when systemic inaction is evident, but they are policy watchdogs, not
policy makers. They receive their marching orders from elected officials. As
Christie Blatchford rightly points out in the National Post (see the link on
the FFIC news page), now it’s up to Ontario Premier Dalton McGuinty to stop
seniors from burning to death. I would suggest that McGuinty, along with former
premiers Davis, Miller, Peterson, Rae, Harris and Eves, along with their
respective ministers responsible for public health and community safety since
the 1980 Extendicare Nursing Home fire in Mississauga, be asked to frankly
explain why seniors are still dying in inadequately protected residences. I’m
not even going to give Frank Miller a pass on this issue for being dead
already. If civil servants are responsible to politicians, then so are
politicians responsible to the electorate. There is an indelible trail of death
and sorrow from Extendicare and Meadowcroft Place in Mississauga, through the
veterans’ wing of Sunnybrook Hospital in Toronto, on to Muskoka Heights and now
Place Mont Roc. Only legislators have the power to ensure that the trail will end
here and now. We must all hold our employees (that’s what they are, after all)
accountable.

In
British Columbia, family members of the man killed in the RCMP use-of-force
incident have said they will follow up on the six suggestions intended to avoid
similar incidents in the future. “I will fight until my last breath,” said his
mother, as would your mother or mine.


Finally,
to Niagara Falls Deputy Fire Chief Jim Jessop, a former rookie in my Toronto
Fire Academy classroom who has worked tirelessly on the sprinkler issue since
the 2008 fire at the Cavendish Manor retirement home, great work!
Your perseverance is an inspiration.


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