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Dr. Bonita Porter is photographed leaving Coroners Court in Toronto, Ont. May 24/2011 as an inquest into Ashley Smith's death continued. (Kevin Van Paassen/The Globe and Mail)
Dr. Bonita Porter is photographed leaving Coroners Court in Toronto, Ont. May 24/2011 as an inquest into Ashley Smith's death continued. (Kevin Van Paassen/The Globe and Mail)

Christie Blatchford

Lawyers blast coroner in Smith inquest Add to ...

Many of a dozen lawyers with standing at the Ashley Smith inquest have blasted coroner Bonnie Porter for trying to impose unprecedented control on a proceeding meant to be open and public.

The inquest, which began last week, is supposed to be examining the death of the 19-year-old from Moncton, who on Oct. 19, 2007, strangled herself in her cell at the Grand Valley Institution for Women in Kitchener, Ont.

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But this week, with the jurors sent away, lawyers for individuals and agencies involved in the inquest, and for the media, have been arguing about public access to exhibits, restrictions Dr. Porter had imposed on the lawyers, and the scope and nature of the proceeding itself.

Last week, out of the blue, Dr. Porter told the jurors in her opening remarks that anyone approaching counsel for access to exhibits could be cited for contempt of court.

Rather, she said, those wanting exhibits should fill out a form that asks about the applicant’s “intended use of exhibit.”

The remark about contempt, made casually, sparked a brouhaha, incensing lawyers, who are bound to advocate fiercely for their clients, an advocacy that is traditionally understood to involve talking to reporters and sharing exhibits with them within the bounds of the usual undertakings they make to the court and their duty to their clients.

As well, because it wasn’t entirely clear which group, media or lawyers, might be cited for contempt, media lawyers also appeared to argue for the press.

Dr. Porter then attempted to clarify her remark by saying it wasn’t aimed at reporters, but rather at lawyers, who were, she said, the party “vulnerable” to contempt.

Julian Falconer, lawyer for Ms. Smith’s parents and sister, told Dr. Porter on Wednesday that her attempts to control counsel are “completely contrary to the public nature of these proceedings” and “unprecedented in the coroner’s system.”

Quoting former McGill University law professor Stanley Cohen, Mr. Falconer said with such “slight turnings of the screw, by steady constant erosion” will Canadians’ “few, prized liberties expire.”

When Dr. Porter said she couldn’t be sure Mr. Falconer was right about the unprecedented nature of her order, she quickly acknowledged he was probably correct.

Sue Chapman, who represents the Canadian Association of Elizabeth Fry Societies, said the coroner’s order “is about the ability of counsel to do their jobs without the threat of prosecution,” while Richard Macklin, speaking for the provincial advocate for children and youth, told her, “You’re taking some criticism … there has been a bit of presumption of closed-ness” to the proceedings.

By day’s end, 12 of 13 lawyers for the various parties, media lawyers Peter Jacobsen and Paul Schabas and Dr. Porter’s own counsel, Chris Diana, had urged her to withdraw her controversial order.

Only the Correctional Service of Canada lawyer, Joël Robichaud, who originally had asked for an even more sweeping publication ban, told Dr. Porter she had the authority to make the order. Describing himself as counsel for the party “with a proprietary interest in those exhibits,” Mr. Robichaud urged Dr. Porter to stick to her guns.

That prompted a further furious response from Mr. Falconer, who snarled that “the CSC is owned by the Canadian public.”

Throughout, Dr. Porter seemed obsessed with how she could control access to exhibits if she didn’t know what people would do with them.

“As I’ve said several times,” she mused once, “when do I ask [reporters or the public]why they need it?” Mr. Schabas snapped, “Why anybody wants an exhibit is, with the greatest of respect, none of your business. It’s the public’s business.”

The skirmishes were slated to continue with another controversy – Dr. Porter’s now-discredited decision that videos from Quebec’s Joliette Institution, one of 17 prisons or hospitals Ms. Smith bounced among, and another which showed her duct-taped to her airplane seat during one transfer, weren’t relevant to the inquest.

She made that ruling shortly before the inquest started, but the Ontario Divisional Court quashed it last week, finding that Dr. Porter had misread the law and expressing bewilderment that she found the videos irrelevant given her own earlier decision that the inquest would examine “the factors that may have impacted” Ms. Smith’s state of mind.

At Joliette less than three months before her death, Ms. Smith was forcibly drugged nine times.

The lawyers went behind closed doors and emerged about two hours later with a joint submission, agreed to by all but the CSC, which took no position, that the videos should be seized under a coroner’s warrant.

Still outstanding, and to be argued later, are the admissibility of the Quebec and transfer videos.

As well, Mr. Falconer is demanding that Dr. Porter issue a summons ordering CSC boss Don Head to attend the inquest to “answer key questions on the circumstances of Ashley’s death” and that the failure to do so “would result in a failure of this inquest to fulfill its statutory mandate.”

Dr. Porter has reserved her decisions on the controversial order, the use of the form to obtain exhibits, and the joint submission that she produce the videos using the authority of her office. The motion to compel Mr. Head, now the commissioner but at the time of Ms. Smith’s death a senior deputy with responsibility for incident investigation, will be argued later.

The inquest is slated to resume with the jury on Monday.

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