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Ashley Smith inquest jury begins deliberations

The inquest into Ashley Smith’s 2007 death in custody is recessed until jurors return with a verdict.

THE CANADIAN PRESS

Jurors at an inquest into the videotaped choking death of a teenager in her segregation cell began their deliberations after a delay in the presiding coroner's instructions to them.

Almost 11 months after jurors began hearing evidence, Dr. John Carlisle sent them away to come up with a verdict in the death of Ashley Smith along with recommendations on preventing a repeat of the tragedy.

"You must sort out what you believe to be the true picture of what happened – use the same common sense that you use every day," Dr. Carlisle told the five-woman panel Monday. "We now ask you to speak for Ashley."

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Despite being on high suicide watch, Ms. Smith, 19, of Moncton, strangled herself in her segregation cell at the Grand Valley Institution in Kitchener, Ont., in October, 2007.

The inquest has heard how guards, who had previously rushed in to save the chronically self-harming teen, hesitated because of orders from senior management against intervening as long as she was still breathing.

Dr. Carlisle laid out the jurors' five verdict options – natural, accidental, suicide, homicide or undetermined – saying all were available to them.

He took care to note the law presumes against suicide, which requires an intentional act with the person knowing death is probable. A wrong finding, he said, "oppresses the living and demeans the dead."

Homicide, Dr. Carlisle spelled out, occurs when a person kills another. In an inquest setting, it is a neutral term that does not reflect culpability or blame.

"Homicide has nothing to do with intention, foresight or risk," Dr. Carlisle said.

If a majority of jurors cannot decide on the balance of probabilities on one of those four categories, the appropriate one is "undetermined."

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A finding of undetermined is "not a failure on your part," the coroner said. He also pointed out that the jury can, but is not required to, make recommendations.

Earlier in the day, an objection to a final submission on what caused Ms. Smith's death delayed the jury charge.

At issue was whether the coroner's counsel, Jocelyn Speyer, had told jurors the verdict of homicide was legally unavailable to them.

The family and others have urged jurors to find the order given by senior prison management to guards to stay out of Ms. Smith's cell significantly contributed to her death. If that's the case, they said, a verdict of homicide could apply.

In her final submission last week, Ms. Speyer suggested it was impossible to say if the chronically self-harming teen would have survived absent such an order.

Asking whether the order contributed to Ms. Smith's death was the "wrong question" in terms of verdict, Ms. Speyer told jurors.

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Ms. Smith's family lawyer, Julian Roy, supported by others, said the submission was at worst improper, at minimum confusing.

He and others called on Dr. Carlisle to issue a "correction" in his charge.

Ms. Speyer, also supported by several parties, objected to the characterization of her submission last Thursday as improper or misleading.

What she was doing, she said, was pointing out conflicting evidence that would detract from a homicide verdict, as she did with regard to other potential verdicts, such as suicide.

As a result, she suggested "undetermined" was appropriate.

Dr. Carlisle took more than two hours to reject the complaint.

"I find there was no impropriety made," Dr. Carlisle said.

At the same time, he said, the complexities of the evidence and submissions might be confusing, so he reminded jurors that all verdict options – including homicide – were on the table.

The inquest that began hearing evidence in January – a first attempt had previously fallen apart – recessed until jurors return with a verdict.

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