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Those who failed to protect Ashley Smith seek to protect themselves

I am friends with a former Ontario coroner or two, one of whom used to remind me periodically that though he was a qualified medical doctor, he wasn't one of those who "work with the living," as he always put it.

In other words, the guy knew his limits.

And whatever his faults, he was a great believer in the inquest as broad public inquiry and in the importance of its openness.

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He once released to the press (and therefore to the public) a picture of a baby taken on the autopsy table. The baby had starved to death while under the ostensibly watchful eyes of a herd of plump helping professionals, and my friend knew that nothing cut through the blather of their excuses like this picture. Not one major newspaper had half his courage, alas, and none would run the photo.

The point is that he also knew the great strength of the inquest process was the truth-seeking beam of publicity.

That was the coroner's inquest, long and ago and far away, which is to say, within the past decade.

If only the coroner at the inquest now going on into the death of the mentally ill teenager Ashley Smith was half so aware.

Ms. Smith choked herself to death in her cell at the Grand Valley Institution in Kitchener on Oct. 19, 2007, the dreadful scene watched by correctional officers who stood outside the cell, apparently caught between a rock (Ms. Smith tied ligatures around her neck multiple times a day and there had sprung up a certain choreography as to how staff responded) and a hard place (this choreography had allegedly changed in recent days as the guards got new and different instructions from management).

In any case, they rushed in too late to save her. At 19, she was dead.

Inquests are mandatory for in-custody deaths, but one might have imagined that in a case such as this, where the deceased person had virtually no control over her life for the previous year spent in the federal system, the inquiry would be as sweeping as possible.

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How did this poor girl end up in jail with no real criminal record (but for apple-throwing and the like) but with a serious behaviour problem or mental illness? How did she end up being forcibly drugged at the Joliette Institution in Quebec and deemed such a danger she was actually duct-taped to her airplane seat during a transfer from one prison to another?

But shortly before the inquest began last week, presiding coroner Dr. Bonnie Porter ruled that videos from Quebec - much of what happens in prison is videoed, including incidents involving use of force - weren't relevant, a decision overturned by the Ontario Divisional Court, which ordered her to rethink the matter.

As well, though the guards who were on duty the morning Ms. Smith died and her family want the videos made public, the Correctional Service of Canada brought a motion to restrict access of the media (and the public) to the videos, the fallback position that at the least, guards' faces should be blurred.

In his written argument, CSC lawyer Joël Robichaud magnificently misstated the practice of the criminal court, saying the press doesn't get copies of exhibits when the jury does, but rather once the jury retires to consider its verdict.

He was at it again on Tuesday.

The CSC had two witnesses, the current warden of Grand Valley and a guard-turned-administrative assistant, ready to testify about the need to blur faces. Some of the lawyers wanted a witness exclusion order, meaning that the one would sit outside court while the other testified.

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Mr. Robichaud deemed that "very rare in the criminal law", when in fact, keeping witnesses out until they testify is the norm, and most courtrooms have signs on their front doors to this effect.

The essence of the CSC "evidence" is that guards, though they wear name tags bearing first and last names and know they are often videoed, and though much of Ms. Smith's story has long been in the public domain, are entitled to some privacy. The warden, David Dick, seemed preoccupied with potential media use of "spectacular or juicy" bits from the videos that might be "taken out of context" by the public.

Lawyers for the media, including Peter Jacobson for The Globe and Mail, argued that CSC was trying to turn Dr. Porter into a censor.

And Richard Macklin, who represents the Ontario Provincial Advocate for Children and Youth, snapped that when "a mentally ill young person dies while the state is exercising its most punitive power," it is those who exercised that power who should be scrutinized.

Coroner's counsel and Ontario government lawyer Chris Diana, however, told Dr. Porter that the effects upon the press and public would be minimal, and suggested a happy compromise might be to blur the guards' faces until their evidence is complete, or until the end of the inquest - not perhaps forever.

In other words, both Queen's Park and Ottawa, albeit with some differences, want the guards' faces blurred.

Thus my suggestion for a new motto for the coroner's office. Instead of "We speak for the dead to protect the living," perhaps "We speak for the dead to protect the government" is a better fit.

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