Moose v. Manitoba (Attorney General) et al., (2013) 293 Man.R.(2d) 6 (PC)

• Judge: Heinrichs, P.C.J.
• Court: Provincial Court of Manitoba (Canada)
• Case Date: May 28, 2013
• Jurisdiction: Manitoba
• Citations: (2013), 293 Man.R.(2d) 6 (PC);2013 MBPC 35

Moose v. Man. (A.G.) (2013), 293 Man.R.(2d) 6 (PC)

MLB headnote and full text

Temp. Cite: [2013] Man.R.(2d) TBEd. JL.006

In The Matter Of: The Fatality Inquiries Act

And In The Matter Of: Donald Ray Moose, Deceased

The Moose Family (applicant) v. The Attorney General of Manitoba and Provincial Court Judge Heinrichs (respondent)

(2013 MBPC 35)

Indexed As: Moose v. Manitoba (Attorney General) et al.

Manitoba Provincial Court

Heinrichs, P.C.J.

May 28, 2013.

Summary:

An inmate (Moose) died while in prison. An inquest was called to determine the circumstances relating to his death. Moose's family requested funding for counsel to represent them at the inquest. The Department of Justice denied the request, finding that Crown counsel would be able to appropriately canvas the issues that concerned the family. The Moose family filed a motion seeking (1) an order stating that Crown counsel was in a conflict of interest and could not represent the family in this matter; and (2) an order granting funding for their legal fees and representation at the inquest.

The Manitoba Provincial Court dismissed the motion, but asked the Department of Justice to reconsider their denial of funding for the family's legal representation.

Barristers and Solicitors - Topic 1617

Relationship with client - Conflict of interest - Situations not resulting in conflict - A 32 year old aboriginal inmate (Moose) died while in prison - An inquest was called to determine the circumstances relating to his death and to determine what could be done to prevent similar deaths from occurring in the future - Moose's family requested funding for counsel to represent them at the inquest - The Department of Justice denied the request, finding that Crown counsel, as an independent and impartial officer of the court, would be able to appropriately canvas the issues that concerned the family - The Moose family filed a motion seeking, inter alia, an order stating that Crown counsel was in a conflict of interest and could not represent the family because of the issues relating to aboriginal people and the justice system - The Manitoba Provincial Court held that a reasonably informed member of the public, aware of the role of Crown counsel in an inquest, would not conclude that there was a conflict or appearance of conflict - The test was not whether a member of the aboriginal community would believe there was a conflict - One had to keep in mind that the inquest was a non-adversarial process - All parties with standing were there to assist the inquest judge in answering the inquest's mandate - The family interest and the public interest were really one and the same: to find out what led to a person dying in particular circumstances - Any relevant questions the family had could be asked through Crown counsel - In addition, the family had been granted standing at the inquest - Their representative could also ask questions, regardless of whether he or she was legal counsel - See paragraphs 11 to 35.

Barristers and Solicitors - Topic 1901

Crown counsel - General - [See Barristers and Solicitors - Topic 1617 ].

Coroners - Topic 4001

Inquests and fatality inquiries - General - Nature of inquest - [See Barristers and Solicitors - Topic 1617 ].

Coroners - Topic 4002

Inquests and fatality inquiries - Purpose of - [See Barristers and Solicitors - Topic 1617 ].

Coroners - Topic 4027

Inquests and fatality inquiries - Procedure - Legal expenses of inquest participants - A 32 year old aboriginal inmate (Moose) died while in prison - An inquest was called to determine the circumstances relating to his death - Moose's family requested funding for counsel to represent them at the inquest - The Department of Justice denied the request, finding that Crown counsel, as an independent and impartial officer of the court, would be able to appropriately canvas the issues that concerned the family - The Moose family argued that Crown counsel was in a conflict of interest due to issues regarding aboriginal people and the justice system - They filed a motion seeking, inter alia, an order granting funding for their legal fees and representation at the inquest - The Manitoba Provincial Court dismissed the motion - There was no conflict of interest - There was no express authority under the Fatality Inquiries Act for an inquest judge to compel payment of any legal fees - Nor did the implied powers of an inquest judge extend that far - However, given the estrangement of aboriginal people and their feelings toward the justice system, it might have been preferable to have the government pay for the family's legal costs - The court asked the Department of Justice to reconsider their denial of funding for the family's legal representation - See paragraphs 36 to 48.

Courts - Topic 7866

Provincial courts - Manitoba - Provincial Court - Jurisdiction - Inquests under Fatality Inquiries Act - [See Coroners - Topic 4027 ].

Cases Noticed:

R. v. Ipeelee (M.), [2012] 1 S.C.R. 433; 428 N.R. 1; 288 O.A.C. 224; 318 B.C.A.C. 1; 541 W.A.C. 1; 2012 SCC 13, refd to. [para. 12].

R. v. W.R.D., [1994] 5 W.W.R. 305; 92 Man.R.(2d) 276; 61 W.A.C. 276; 89 C.C.C.(3d) 474, refd to. [para. 15].

Hudson Bay Mining and Smelting Co. v. Cummings, P.C.J. (2006), 208 Man.R.(2d) 75; 383 W.A.C. 75; 2006 MBCA 98, refd to. [para. 18].

MacDonald Estate v. Martin and Rossmere Holdings (1970) Ltd., [1990] 3 S.C.R. 1235; 121 N.R. 1; 70 Man.R.(2d) 241, refd to. [para. 22].

Canada v. Canadian Transit Co. et al., [2010] O.T.C. Uned. 4383; 2010 ONSC 4383, refd to. [para. 25].

R. v. Henderson (W.E.), [2013] 2 W.W.R. 457; 284 Man.R.(2d) 164; 555 W.A.C. 164; 2012 CarswellMan 573; 2012 MBCA 93, refd to. [para. 26].

Head and Head v. Trudel, P.C.J. (1988), 54 Man.R.(2d) 145 (Q.B.), affd. (1989), 57 Man.R.(2d) 153 (C.A.), refd to. [para. 29].

R. v. Gladue (J.T.), [1999] 1 S.C.R. 688; 238 N.R. 1; 121 B.C.A.C. 161; 198 W.A.C. 161, refd to. [para. 32].

Berg Estate v. British Columbia et al. (2006), 224 B.C.A.C. 93; 370 W.A.C. 93; 2006 BCCA 146, refd to. [para. 38].

Hudson Bay Mining and Smelting Co. v. Cummings, P.C.J. (2004), 190 Man.R.(2d) 231; 335 W.A.C. 231; 2004 MBCA 182; 2005 MBCA 9, refd to. [para. 39].

Counsel:

Saul B. Simmonds, for the applicant;

Issie Frost and Jim Koch, Civil Legal Services SOA;

Deborah Carlson, for the Department of Justice.

This motion was heard before Heinrichs, P.C.J., of the Manitoba Provincial Court, who delivered the following judgment on May 28, 2013.