Background
On August 13, 2015, Myles Gray died during an altercation with police. Almost 8 years later, a coroner’s inquest was held between April 17 and May 1, 2023 (the “Inquest”), where members of a jury heard evidence to publicly review the circumstances of Mr. Gray’s death. As part of the hearing process, all seven police officers involved in the altercation were summoned to provide evidence.
The purpose of an inquest is a fact-finding, not fault-finding, proceeding. At its conclusion, a “Verdict” is prepared and the jury’s recommendations are provided in an effort to prevent future deaths in similar circumstances.
To enhance the fact-finding mission of an inquest, the legislature specifically chose to protect witnesses in their testimony. Section 35(3) of the Coroner’s Act states that any answer provided by a witness must not be used or admitted in evidence against the witness in any trial or other proceedings, other than prosecution for perjury in respect of the answer provided.
At the Inquest, the jury in its Verdict, recommended expediting the implementation of body-worn cameras, reviewing crisis de-escalation and containment training, and reviewing the policy on the retention of toxicology samples.
On January 12, 2026, more than 10 years after Mr. Gray’s death, the Office of the Police Complaint Commissioner announced that a public hearing would commence into the death of Mr. Gray before the retired judge Elizabeth Arnold-Bailey acting as Adjudicator.
The issues in a public hearing are distinct from an inquest in that, pursuant to the Police Act, officers may face jeopardy – allegations of misconduct, intentional or reckless use of unnecessary force, and neglect of duty against the officers involved can be tested in a court-like setting. In a public hearing, an adjudicator can receive many types of evidence[1], whether or not it would be admissible in a court, if the information is “relevant, necessary and appropriate”.
Where a witness is called to testify at both an inquest and then a public hearing, a tension exists between an inquest’s statutory protections for a testifying witness and the broad evidentiary rules for a public hearing. Because the right against self-incrimination is Charter protected, at issue is whether an officer who testified at an inquest can then be cross examined on their inquest evidence at a public hearing.
Adjudicator Arnold-Bailey recently ruled on this issue in the Gray public hearing. On the one hand, she noted the competing public interests: witnesses at an inquest should be afforded a wide protection against the future use of their evidence against them so that the public will have the fullest possible inquiry evidence available. On the other hand, where police misconduct is alleged, the public has an interest that witnesses, including officers, testify in a manner that is consistent with their prior accounts.
In her decision, Adjudicator Arnold-Bailey found that:
- a public hearing under the Police Act is a “proceeding” under s.35(3) of the Coroner’s Act;
- the Coroner’s Act offers protection to a witness in relation to their prior “incriminating” answers, but not in relation to their credibility or reliability as a witness; and
- the prohibition in s.35(3) of the Coroner’s Act “does constitute a barrier to the use of the witness’s answer in a subsequent proceeding…unless it may be used for impeachment in relation to the witness’s credibility or reliability.
In arriving at her conclusion, Adjudicator Arnold-Bailey found that the protections in s.35(3) of the Coroner’s Act are similar to that of the Charter where using non-incriminating evidence for impeachment purposes does not engage section 13 of the Charter. Section 13 protects witnesses by ensuring that any incriminating evidence given in one proceeding cannot be used against them in a subsequent, separate proceeding. This protection against self-incrimination applies to civil, administrative, and criminal proceedings, with exceptions for perjury or contradicting evidence.
Commentary
While Adjudicator Arnold Bailey’s decision is a preliminary ruling in a Police Act public hearing, a chilling effect may be felt in the willingness for police officers to testify at future coroner’s inquests. Where issues of misconduct are or could be alleged against participating officers for their actions, the line between culpability, incrimination, and credibility in prior inquest testimony may be difficult to draw. The fact-finding purpose of an inquest may be threatened and subject to Charter challenges if witnesses are compelled to testify at an inquest and fear self-incrimination in future Police Act proceedings. Given how this decision may impact a witness/officer’s Charter protected rights, this issue may be subject to be re-adjudicated in the future.
If you require additional information or further assistance, please contact David McKnight and Naomi Krueger.
[1] section 143(6)(a) of the Police Act
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