Memories distort as witnesses wait years to testify at inquests

A Winnipeg criminal defence lawyer says theeight years it took for an inquest to begin into the death of Craig McDougall exemplifies a bigger problem with Manitoba's fatality inquest system.

McDougall, 26,was shot by Winnipeg police on Aug. 2,2008. Themandatory inquest into his death began on Monday but was postponed until Aug. 15after a witness changed their story.

• McDougall inquest delayed after witness changes account of police shooting

Kristofer Advent is thelawyer whorepresented the lovedones of Donald Ray Moose, a 32-year-old man who died of heart disease in October2009,while he was an inmate at Headingley Correctional Centre.

Adventsaid the eight years it has taken forMcDougall's loved ones to start gettinganswers is "incredible."

"I honestly don't think it is reasonable," said Advent.

Looking at the last 10 inquests held in Manitoba, the average time it tookfrom the date of death until the inquest report is releasedis five years,11 months.

The inquest report into Moose's death was released inMay2014, just underfive years after he died.

'Memories get worse and worse'

Advent said waiting years to understand what may have have happened in the lead-up to a police shooting or an unexplained death in custody undermines the inquest process and can compromise the public value of the exercise.

"As the delays become more and more,memories get worse and worse," he said.

Recollections fade over time,making witnesses and the information they provide less reliable, Adventsaid.

"Unintentionally reading things or talking to other witnesses memories can become distorted," he said.

In McDougall's case, it took until July 31,2013 nearly five years after his death for the chief medical examiner to justdirect thecourts to hold an inquest.

Waiting for all criminal proceedings to be clearedhad accounted for part of the delay, said a spokesperson for the medical examiner's office.

Manitoba Courts have not yet explained what exactly contributed to the three additionalyearsfor McDougall'sinquest to begin,although wait times forcourt space, an available judgeand a Crown attorneymay have partly accounted for the delay.

Call mandatory inquests right away, says lawyer

Advent said one possible way to address persistent delays in inquests would be to directcourts immediatelyto hold inquests in cases in whichinquests are mandatory.

"Once it's in the court's hands, then the judge at least has some power to control how things progress," he said.

Inquests are mandatory for cases such as when a person has been killed by police or has died in custody under unusual or unexplained circumstances.

The Fatality Inquiries Act seems to say the chief medical examiner should refer the cases to Manitoba Courtsnearly immediately after a death of this kind, said Advent.

"It seems like they're doing it the other way, where the medical examiner is sitting on this stuff until they hear whether or not there are going to be criminal charges," he said.

Dr. Thambirajah Balachandra, the province's former chief medical examiner, said his office must wait until all criminal proceedings have been cleared before going ahead with an inquest.

"My hands are tied because if there are criminal or other investigations going on, I can't call an inquest," Balachandra said.

But Advent has a different interpretation of the Manitoba law. Section 34 of the act says before an inquest has begun or is completed, a criminal charge takes precedence and a presiding provincial judge can postpone the inquest pending the determination of a charge.

The way the system works now, "the process doesn't even get to the courts until a very long time after the death actually takes place," said Advent.

Judges beginning to critique system

In recent inquest reports,Manitoba judges have criticized the system for taking too long.

In the inquest report into the deaths of Sheldon Anthony McKay and David (Durval) Tavares, Judge Brent Stewart said delays undermine the entire process.

• Sheldon McKay, David Tavares inquest report highlights gang power in prisons

"If inquests are not immediate, the recommendations which flow from them are often stale,dated and hold little sway in the making of meaningful changes to the operation of the institutions or personnel in question," Stewart wrote.

In the inquest report into the death of M.A., an 18-year-old teen who hanged herself after being released from a youth correctional facility, the judge declined to make formal recommendations because it took too long forthe inquest to get underway.

• Teen's hanging death inquest leads to no changes, judge says 'lawyers are busy'

"Throughout this report, I have made observations and comments about the process. For example, the need for inquests to be held within a reasonable time after the death," wrote Judge Marvin F. Garfinkel in 2015.

"This inquest, as so many of them do, showed that people try to do the best they can based on experience, training and available resources. But formal recommendations at this late stage would be immaterial given the lengthy time that has past."