Commission of Inquiry Into Matters Releating to the Death of Neil Stonechild

 


RULING ON STANDING AND FUNDING

By an Order-in-Council dated February 21, 2003, I was appointed Commissioner of a Commission of Inquiry to inquire into the circumstances that resulted in the death of Neil Stonechild and the conduct of the investigation into the death of Neil Stonechild for the purpose of making findings and recommendations with respect to the administration of criminal justice in the Province of Saskatchewan. Appended to the Order-in-Council were Terms of Reference which read as follows:

  1. The Commission of Inquiry appointed pursuant to this Order will have the responsibility to inquire into any and all aspects of the circumstances that resulted in the death of Neil Stonechild and the conduct of the investigation into the death of Neil Stonechild for the purpose of making findings and recommendations with respect to the administration of criminal justice in the province of Saskatchewan. The Commission shall report its findings and make such recommendations, as it considers advisable.
     
  2. The Commission shall perform its duties without expressing any conclusion or recommendation regarding the civil or criminal responsibility of any person or organization, and without interfering in any ongoing police investigation related to the death of Neil Stonechild or any ongoing criminal or civil proceeding.
     
  3. The Commission shall complete its inquiry and deliver its final report containing its findings, conclusions and recommendations to the Minister of Justice and Attorney General. The report must be in a form appropriate for release to the public, subject to The Freedom of Information and Protection of Privacy Act and other laws.
     
  4. The Commission shall have the power to hold public hearings but may, at the discretion of the commissioner, hold some proceedings in camera.
     
  5. The Commission shall, as an aspect of its duties, determine applications by those parties, if any, or those witnesses, if any, to the public inquiry that apply to the Commission to have their legal counsel paid for by the Commission, and further, determine at what rate such Counsel shall be paid for their services.

Rules of Procedure and Practice were published by the Commission and included guidelines to determine which persons should be allowed to appear before the Commission and which should be allowed funding from the Treasury to assist in their participation in the Inquiry. The standing and funding guidelines read as follows:

The Terms of Reference provide that the Commission shall have the responsibility to inquire into all aspects of the circumstances that resulted in the death of Neil Stonechild, and the conduct of the investigation into the death of Neil Stonechild for the purpose of making findings and recommendations with respect to the administration of criminal justice in the Province of Saskatchewan.

I. PRINCIPLES

  1. Commission counsel has the primary responsibility for representing the public interest at the Inquiry including the responsibility to ensure that all interests that bear on the public interest are brought to the Commission's attention.
     
  2. Parties are granted standing for the purpose of ensuring that particular interests and perspectives, that are considered by the Commission to be essential to its mandate will be presented; these include interests and perspectives that could not be put forward by Commission counsel without harming the appearance of objectivity that will be maintained by Commission counsel and which the Commission believes are essential to the successful conduct of the Inquiry.
     
  3. The aim of the funding is to assist parties granted standing in presenting such interests and perspectives but is not for the purpose of indemnifying interveners from all costs incurred.

II. CRITERIA FOR STANDING

  1. The Commissioner will determine who has standing to participate in Commission proceedings and the extent of such participation. The Commissioner will determine applications for standing based on the following criteria:
     
    1. the applicant is directly and substantially affected by the Inquiry; or
       
    2. the applicant represents interests and perspectives essential to the successful conduct of the Inquiry; or
       
    3. the applicant has special experience or expertise with respect to matters within the Commission's terms of reference.
       

III. CRITERIA FOR FUNDING

  1. The Terms of Reference provide that the Commissioner shall determine applications by those parties, if any, or those witnesses, if any, to the public inquiry that apply to the Commissioner to have their legal counsel paid for by the Commission, and further, determine at what rate such counsel shall be paid for their services. The Commissioner will determine applications for funding based on the following criteria:
     
    1. the applicant has been granted standing or is a witness whose counsel has been granted standing for the purpose of that witness's testimony;
       
    2. the applicant has an established record of concern for and has demonstrated a commitment to the interest they seek to represent, they are directly or substantially affected by the Inquiry, or they have special experience or expertise with respect to matters within the Commission's terms of reference;
       
    3. the applicant does not have sufficient financial resources to enable them adequately to represent that interest and require funds to do so; and
       
    4. the applicant has a clear proposal as to the use they intend to make of the funds, and appears to be sufficiently well organized to account for the funds.

IV. APPLICATIONS

  1. Applications for standing shall be made in writing and shall include a statement of how the applicant satisfies the criteria for standing set out in these Guidelines.
     
  2. Applications for funding shall be made in writing, supported by affidavit, and shall include the following:
     
    1. a statement of how the applicant satisfies the criteria for funding set out in these Guidelines;
       
    2. an explanation as to why an applicant would not be able to participate without funding;
       
    3. a description of the purpose for which the funds are required, how the funds will be disbursed and how they will be accounted for;
       
    4. a statement of the extent to which the applicant will contribute their own funds and personnel to participate in the Inquiry; and
       
    5. the name, address, telephone number and position of the individual who will be responsible for administering the funds and a description of the controls put in place to ensure the funds are disbursed for the purposes of the Inquiry.

Written applications for standing and funding should be submitted to the Commission of Inquiry by delivering a copy to the Inquiry's offices in Saskatoon, at the address set out below by no later than 4:00 p.m. on the 24th day of April, 2003.

The Commission of Inquiry Into Matters Relating to the Death of Neil Stonechild
1020 - 606 Spadina Crescent East
Saskatoon, SK
S7K 3A1

A party granted full standing has the following rights:

  1. access to documents relevant to the Inquiry collected by the Commission subject to the Rules of Procedure and Practice;
     
  2. advance notice of documents which are proposed to be introduced into evidence;
     
  3. advance provision of statements of anticipated evidence
     
  4. a seat at counsel table;
     
  5. the opportunity to suggest witnesses to be called by Commission counsel, and if Commission counsel declines to do so, the opportunity to apply to me to call such witness;
     
  6. the opportunity to apply to me to lead the evidence of a particular witness if the Commission counsel declines to do so;
     
  7. the opportunity to cross-examine witnesses on matters relevant to the basis upon which standing was granted;
     
  8. the opportunity to review transcripts at Commission offices (a copy of the transcript may be purchased from the court reporter), (the transcript will be posted on the Commission's web site and will be available to the public);
     
  9. the opportunity to make closing submissions; and
     
  10. the opportunity to apply for funding.

In order to obtain standing an applicant is required to satisfy the following criteria:

  1. the applicant is directly and substantially affected by the Inquiry; or
     
  2. the applicant represents interests and perspectives essential to the successful conduct of the Inquiry; or
     
  3. the applicant has special experience or expertise with respect to matters within the Commission's terms of reference.

In order to obtain funding an applicant must satisfy the following criteria:

  1. the applicant has been granted standing or is a witness whose counsel has been granted standing for the purpose of that witness's testimony;
     
  2. the applicant has an established record of concern for and has demonstrated a commitment to the interest they seek to represent, they are directly or substantially affected by the Inquiry, or they have special experience or expertise with respect to matters within the Commission's terms of reference;
     
  3. the applicant does not have sufficient financial resources to enable them adequately to represent that interest and require funds to do so; and
     
  4. the applicant has a clear proposal as to the use they intend to make of the funds, and appears to be sufficiently well organized to account for the funds.

Applications for standing are required to be made in writing and to establish how the applicant satisfies the criteria for standing. Applications for funding must be made in writing supported by an affidavit and include the following requirements:

  1. a statement of how the applicant satisfies the criteria for funding set out in these Guidelines;
     
  2. an explanation as to why an applicant would not be able to participate without funding;
     
  3. a description of the purpose for which the funds are required, how the funds will be disbursed and how they will be accounted for;
     
  4. a statement of the extent to which the applicant will contribute their own funds and personnel to participate in the Inquiry; and
     
  5. the name, address, telephone number and position of the individual who will be responsible for administering the funds and a description of the controls put in place to ensure the funds are disbursed for the purposes of the Inquiry.

Notice of the standing and funding hearing was published in various newspapers in the Province of Saskatchewan and required that applications be submitted in writing to the Inquiry offices by April 24, 2003.

Seven applications for standing were filed. Six of the applicants also sought funding in the event they were given standing. The applications were supported in all but one case by affidavit. The RCMP filed a very brief two-page memo noting its role in the investigation which followed Mr. Stonechild's death. Counsel indicated that the focus of the Royal Canadian Mounted Police interest in this matter related to its investigation. I understood him to say that it was not anticipated he would participate in that portion of the Inquiry related to the circumstances surrounding the death of Mr. Stonechild and the subsequent investigation by the Saskatoon Police Service. He noted, however, and quite properly, that questions may arise which relate to the earlier events and which might necessitate a request that he be allowed to ask questions in addition to those that would normally apply to the RCMP role.

All of the applicants are represented by counsel. Each made a brief submission and answered questions. Each appeared to be well informed as to the issues and the objectives of the Inquiry.

THE STANDING APPLICATIONS

  1. Stella Bignell, the mother of the late Neil Stonechild.
     
  2. Constable Larry Hartwig. Constable Hartwig is a member of the Saskatoon Police Service. It is suggested he had contact with Mr. Stonechild on the evening of November 24, 1990.
     
  3. Constable Bradley Raymond Senger. He is a member of the Saskatoon Police Service. It is suggested he had contact with Mr. Stonechild on the evening of November 24, 1990.
     
  4. Saskatoon Police Service. This is the municipal police force which serves the City of Saskatoon.
     
  5. Saskatoon City Police Association. The Association is a trade union and represents the rank and file uniform members of the Saskatoon Police Service.
     
  6. Royal Canadian Mounted Police.
     
  7. Federation of Saskatchewan Indian Nations. The Council of the Federation comprises the aboriginal chiefs in the Province of Saskatchewan. It is actively involved in Justice matters affecting aboriginal persons and particularly in advocating for its members where allegations have been made of mistreatment of aboriginal persons by law enforcement agencies.

RULINGS ON STANDING

  1. Stella Bignell. Ms. Bignell should clearly have standing at the Inquiry in light of her relationship to the deceased and her role as representative of the Stonechild family. She is granted full standing.
     
  2. Constable Hartwig. Constable Hartwig is vitally interested in this matter having been considered at one juncture a suspect in the earlier investigation of Mr. Stonechild's death. He is granted full standing.
     
  3. Constable Senger. The same comments apply to Constable Senger. He is granted full standing.
     
  4. Saskatoon Police Service. The Service has a very obvious interest in this matter affecting as it does two of its members and the administration of justice in the City of Saskatoon. It is granted full standing.
     
  5. Saskatchewan City Police Association. I am satisfied that the Association should, similarly, have full standing. The Association represents the interests of the bulk of the Police Service membership. Constables Hartwig and Senger are members of the Association. It acts as a mediator and advocate for its members. It will have full standing.
     
  6. Royal Canadian Mounted Police. The interest of the RCMP is directed to its subsequent investigation of the circumstances outlined above. It will have standing limited to the date it was appointed to investigate the Stonechild matter. If it appears earlier events have relevance to the RCMP's role then I will consider allowing it a broader mandate.
     
  7. Federation of Saskatchewan Indians. The Federation has a sufficient interest in this matter to participate fully in the Inquiry. It will have full standing.
     

RULINGS ON FUNDING

The Terms of Reference contain the following provision:

  1. The Commission shall, as an aspect of its duties, determine applications by those parties, if any, or those witnesses, if any, to the public inquiry that apply to the Commission to have their legal counsel paid for by the Commission, and further, determine at what rate such Counsel shall be paid for their services.

Funding shall be allowed as follows:

  1. Stella Bignell. I expect Ms. Bignell will be a witness at the Inquiry and certainly I anticipate she will be present throughout the Inquiry. She does not have any resources to retain and instruct counsel. She lives in northern Manitoba and must travel by public transportation for some distance. The fees and disbursements of her counsel, Mr. Worme, will be provided at no cost to her. I fix Mr. Worme's hourly rate at $192.00. Mr. Worme's compensation will apply on the basis of one hour's preparation for each hour of attendance at the Inquiry. Counsel will submit an invoice to Commission counsel on a monthly basis, the invoice to set out the nature of the work done and disbursements.

    Time spent by counsel at the request of the Commission including Commission counsel or in attending with his client while the client is being interviewed by Commission counsel may also be billed as preparation time. I am not disposed to allow funding for second counsel for any of the applicants.

    Ms. Bignell will be allowed her expenses for travel, accommodation and meals for the days she chooses to attend the Inquiry.

    Ms. Bignell asked that travel expenses of her daughters in Manitoba be paid. I am not disposed to grant such a request as she has a son living in Saskatoon.
     
  2. Constable Hartwig. Constable Hartwig is entitled to funding for one counsel. Constable Hartwig disclosed his financial affairs including his assets and liabilities and I am satisfied that he does not have the resources to retain counsel. I fix Mr. Fox's hourly rate at $192.00. If an alternate counsel appears in his place that person's rate will be set at $125.00. Counsel will invoice the Commission in the same fashion as counsel for Ms. Bignell.

    Time spent by counsel at the request of the Commission including Commission counsel or in attending with his client while the client is being interviewed by Commission counsel may also be billed as preparation time. I am not disposed to allow funding for second counsel for any of the applicants.
     
  3. Constable Senger. The comments I have made about Constable Hartwig will apply equally to Constable Senger.
     
  4. Saskatoon Police Service. Mr. Rossmann made an eloquent plea for funding citing the burden the Inquiry will place on Saskatoon and the Saskatoon Police Service. It is true the Police Service did not initiate the Inquiry and that the Inquiry may have some implications for the Province overall. The Service is acutely interested in this matter as two of its members feature prominently in it. Be that as it may, the legal costs of the Service will not be significant save for the fact that they fall on the taxpayers of the City generally. That is so because the Service engaged a city solicitor to act for it. In the circumstances I am not disposed to grant funding.
     
  5. The Saskatoon City Police Association. The Association has retained its regular counsel in this matter. It is apparent he has had a long standing connection with the Stonechild investigation and a good deal of knowledge about the circumstances surrounding it. The Association's desire to assist two of its members is understandable. The cost of doing so should not be borne by the provincial treasury particularly as Constables Hartwig and Senger are represented by counsel funded by the Commission. Funding is denied.
     
  6. Royal Canadian Mounted Police. The RCMP do not seek funding.
     
  7. Federation of Saskatchewan Indian Nations. It appears from the Federation brief that the funds it receives from government will not be available to assist in its participation here and that it will not likely be able to appear if it does not have funding. Funding is granted. Counsel's hourly rate is set at $192.00. The directions as to payment for one hour preparation for each hour of participation in the Inquiry hearings applies also, and invoicing will be provided in the same manner as directed above. My comments as to alternate counsel also apply and that person's rate is set at $125.00 an hour.

    Time spent by counsel at the request of the Commission including Commission counsel or in attending with his client while the client is being interviewed by Commission counsel may also be billed as preparation time. I am not disposed to allow funding for second counsel for any of the applicants.

CONCLUSION

I appreciate that not every eventuality can be anticipated. Circumstances may require that the bases for funding be re-visited at a later date. Counsel will have leave to apply for directions as they may be advised. Any such application shall be in writing and the other parties shall be served with copies of it. My thanks to counsel for their thorough and well prepared briefs and for their submissions on April 30, 2003.

Dated at the City of Saskatoon, in the Province of Saskatchewan, this 13th day of May, 2003.

_______________________________________

Mr. Justice David H. Wright
Commissioner

ADDENDUM

Mr. Worme advised me during the course of the standing and funding applications on April 30, 2003 that he represented the Stonechild family and a Mr. Jason Roy. It has been suggested that Mr. Roy has personal knowledge of Mr. Stonechild being involved with the members of the Saskatoon Police Service on November 24. He apparently brought this information to the attention of Mr. Worme in December soon after Mr. Stonechild's body was discovered. Mr. Worme asked for some guidance in determining whether it would be appropriate for him to continue to act for the Stonechild family and represent Mr. Roy. I understand Mr. Roy will be a significant witness during the Inquiry hearings. I indicated to him, as I do now, that in my respectful view, it would not be appropriate for him to represent both parties. In light of his appearance for the Stonechild family I gather that Mr. Roy will likely be advised that he should retain other counsel. I hope this answers Mr. Worme's question to his satisfaction.

Mr. Worme may wish to advise Mr. Roy that the Rules of the Commission allow for the appointment of counsel for a witness in the appropriate case and that the Rules may also allow for funding of such counsel. Any such request, of course, would have to be made by a formal application to the Commission.

Dated at the City of Saskatoon, in the Province of Saskatchewan, this 13th day of May, 2003.

_______________________________________

Mr. Justice David H. Wright

Commissioner

TOP OF PAGE

   2004   The Wright Commission