Public Inquest Into Death of Michel Berniquez Finally Given Green Light: Leave to Appeal Denied for Bellemare c Lisio
The Supreme Court of Canada has denied leave to appeal from the Quebec appellate decision of Bellemare v Lisio, 2010 QCCA 859 (French only), ending the well-publicized legal battle over the fate of a public inquest into the death of Michel Berniquez. Nearly eight years have passed since the night Mr. Berniquez died from cardiac arrest while being subdued by police.
This post reviews the Court of Appeal of Quebec’s (“QCA”) May judgment, which artfully combined statutory interpretation and the fairness of administrative proceedings to render a sophisticated decision that, in my opinion, resonated with the values of the Canadian public, and ultimately, those of the Supreme Court.
The Endless Inquiry
On June 28, 2003, an intoxicated Mr. Berniquez got into a violent altercation on the street after refusing to pay his bill. When Montreal police arrived, they tried to subdue Mr. Berniquez by wrestling him to the ground, face down. An ambulance was called but when emergency workers reached the scene, Mr. Berniquez was already in cardiac arrest. By the time the ambulance arrived at the hospital he was already pronounced dead.
Mr. Berniquez’s death gained widespread media coverage across Canada, with many calling for a public inquest into his case and his treatment by police that fateful night. The Coroner of Quebec, the Sûreté de Québec (the Quebec provincial police force) and the Police Ethics Commissioner each undertook independent investigations into the incident. None of these reports resulted in any blame or charges laid on the police officers.
Still, the Chief Coroner announced in September 2004 that a public inquest into the case would be held. Its purpose would be to clarify the causes and circumstances surrounding Mr. Berniquez’s death. The start of the inquiry, however, continued to be pushed back as turnovers took place at the Coroner’s Office, and the file continued to change hands. Finally, in September 2006, the Coroner decided that the public inquest would begin in November of that year.
The Montreal Police Brotherhood, a police union, backed by the City of Montreal, brought an application of nullity against Danielle Bellemare (in her capacity as Chief Coroner). They alleged that the Coroner’s decision to issue a public inquest was not “expedient” according to the An Act Respecting the Determination of the Causes and Circumstances of Death, CQLR c R-0.2 [Act], and was thus illegal. The applicants argued that at least three separate public bodies had already investigated the incident and that the Chief Coroner ought to have ensured she was preserving the rights and interests of all interested persons (including the police officers) implicated by the Act before ordering an inquest. They requested that the public inquest be quashed.
Should the public inquest proceed 778 days later?
The main provisions at issue in this case were ss. 104 and 105 of the Act, which grant the Chief Coroner discretion to order a public inquest.
Grounds for Holding an Inquest
104. The Chief Coroner may, during or following an investigation, order that an inquest be held into the probable causes and circumstances of a death if he has reason to believe that the holding of an inquest would be expedient and would not impede the progress of any police investigation.
105. In determining whether it is expedient to hold an inquest, the Chief Coroner shall consider whether it is expedient to hear witnesses, particularly
(1) to obtain information for establishing the probable causes or circumstances of death;
(2) to enable a coroner to make recommendations directed to better protection of human life;
(3) to inform the public on the probable causes or circumstances of death.
Justice Rousseau of the Superior Court of Quebec agreed with the applicants and ordered (French only) that the public inquest into Mr. Berniquez’s death be quashed. The Chief Coroner appealed to the QCA.
The QCA grants Chief Coroner full discretion
The QCA ruled that Justice Rousseau had erred in her application of s. 105 of the Act. While the Chief Coroner “shall consider whether it is expedient to hear witnesses,” this consideration was not, as was previously held by Justice Rousseau, a required condition in the Coroner’s decision. Ultimately, the Chief Coroner holds full discretion in deciding to order an inquest. As the Court emphasized, in quoting Prof. T. Endicott in its judgment, “It is up to that authority to decide what is in the public interest.”
That is not to say, according to the QCA, that the Chief Coroner’s decision cannot be unreasonable. Section 105 is predicated on three factors. The Court wrote that in this case, the first factor – “to obtain information for establishing the probable causes or circumstances of death” – might have been illuminated by the other investigative reports. However, the same could not be said with respect to the second – “to enable a coroner to make recommendations directed to better protection of human life” – and third – “to inform the public on the probable causes or circumstances of death” – factors. In the end, the Court emphasized that the discretion to evaluate these factors and make a decision fell exclusively on the head of the Chief Coroner.
directly caused significant psychological harm to a person, or attached a stigma to a person’s reputation, such that the human rights system would be brought into disrepute,…
particularly with regards to the police officers involved in this inquiry. The inquest, even with the setback, was not shown to be inequitable to the interested persons implicated in the case.
The Court and the public see eye to eye
The QCA’s legal analysis itself was careful and detailed, though it could hold implications for future decisions made by the Chief Coroner. The judgment included a detailed examination of the construction of the Act and a thorough overview of case law such as Blencoe and Huot c Pigeon, 2006 QCCA 164 (French only), to rule that the delay in this case was insufficient to quash the inquest. The Court also grants the Coroner a new, broader scope of discretion, though the Court does suggest that the discretionary decision could be held to a standard of reasonableness.
What is perhaps more remarkable was the Court’s ability to craft its analysis to arrive at a decision that fairly reflected the facts surrounding this case and the values of the Canadian public.
This ruling transpired in tandem with two other public inquiries into police encounters that resulted in deaths. A coroner’s inquest into the death of Fredy Villanueva, who was fatally shot in 2008 by an officer after a confrontation with police, was slowly unfolding. The public was awaiting a Superior Court decision on another application brought by the Montreal Police Brotherhood against the Coroner’s inquiry into the death of Mohamed Anas Bennis. He was also shot by Montreal police in 2005. (Justice Champagne released his decision in September, ordering that Mr. Bennis’ inquiry proceed.) My readers need not, I am sure, be reminded of the death of Robert Dziekanski, who was Tasered five times by the RCMP at the Vancouver International Airport in 2007. The public in Quebec and across the country wanted to come to terms with the circumstances surrounding these deaths.
The QCA’s decision reflected this view. Justice Morissette wrote,
Although three inquests, in the sense of investigations, have been undertaken by different public authorities for distinct reasons, the events of June 28, 2003 have yet to be the focus of a public inquest carried out in conformity with a quasi-judicial procedure such as that followed by bodies included in s. 56(1) of the [Quebec] Charter of Human Rights and Freedoms, [CQLR c C-12,] one of which is the Coroner. [Author’s translation]
Furthermore, the Court was not blind to the fact that this case drew a “hardly flattering image” of the Chief Coroner’s office, which had allowed the start of the inquest to drag on for so long. Nonetheless, the Court pointed out that, by filing this application, the Montreal Police Brotherhood had sought to prolong the very delay it argued ought to be reason for quashing the inquest. The Brotherhood could have instead formally addressed the Coroner to request the termination of the inquiry. Moreover, the police officers had first asked, and were allowed, to be recognized by the inquest as “interested persons” under the Act, then announced their intention to contest the decision to hold an inquest at all. The Court appeared to recognize and reject each of the Brotherhood’s legal tactics.
Ultimately, the Canadian courts made their stance on these public inquiries clear, and Michel Berniquez’s inquest is set to proceed if Ms. Bellemare so chooses. The QCA’s judgment resulted in one of those singular, complete decisions in which the law lined up with the facts, the court and the public shared a mutual understanding, and which the Supreme Court felt comfortable enough to let pass. Well done, Quebec Court of Appeal.