Few stories I’ve ever covered as a journalist have left me as angry and frustrated as the death of Valerie Wolski. Wolski, 41, a trained and experienced mental health worker, had one of the toughest jobs in the world. She provided one-on-one care for adults with severe developmental disabilities. And on the night she died, she was caring for a young man, Terrance Saddleback, who was not only catastrophically brain injured, but who suffered from psychotic episodes, complete with violent rages. Saddleback had a long history of violence and physical and sexual aggression, particularly towards women. A risk assessment, carried out after he’d attacked caregivers in his previous group home, determined that he was an extreme risk to attack again, and that if he did so, given his size and uncontrollable rage, the results would likely be “catastrophic.” The risk assessment included a recommendation that Saddleback never be left alone with one caregiver, and especially not a female one.
Nonetheless, the Persons With Developmental Disabilities central office in Red Deer opted to place Saddleback into just such a placement. He was given an apartment on his own in Camrose, and provided with round-the-clock one-on-one care. Wolksi was all alone with him the night she died. Her body was found, strangled, by a colleague who came to relieve her in the morning. Saddleback was never tried for her death – he simply lacks the mental capacity to be held responsible for his actions. But Wolski’s death was no accident – she was sent to her fate, by a bureaucracy that ignored the danger Terrance Saddleback presented to those who tried to help him.
This summer, a preliminary occupational health and safety report into Wolski’s death found that PDD had failed to tell the Canadian Mental Health Association, the not-for-profit agency contracted to provide care for Terrance Saddleback, about the man’s violent history and alarming risk assessment report. OHS also ordered PDD to make immediate changes to its management practices in regards to high risk patients. Those OHS reports were supposed to be public. But PDD simply posted them on a bulletin board in its Red Deer office. The reports only became public because someone sent them to me, anonymously, in the proverbial plain brown envelope.
Now, PDD is appealing those findings. Why? The agency refuses to say – and so does Occupational Health and Safety. The three-day appeal hearing starts this Tuesday morning. Under provincial legislation, the chair of the appeal panel can allow observers, at his discretion. And so, two weeks ago, I made an application in writing to attend the hearing.
“I believe that this is clearly a matter of public interest – by which I do not mean that the public is curious, but that the greater social good would be served if the public were to be apprised of the vital issues and arguments being raised in the course of the hearing,” I wrote.
“In Canada, we operate from the constitutional assumption that our justice system should be open and transparent. Even in cases of a publication ban or voir dire, reporters are still allowed to attend all court trials.
I understand that the OHS appeal panel is an administrative tribunal, and not a court of law, proper. Still, the open court principle, which Canada inherited from British common law, which is enshrined in the Charter of Rights and Freedoms, and which has been repeatedly upheld by the Supreme Court of Canada, holds that the administration of justice should be as open as possible. Publication bans can be ordered to protect the fairness of a pending trial. The fact such bans restrict freedom of expression and freedom of the press means that they should be imposed only in exceptional cases. The exceptional nature of publication bans has been assured at common law by requiring that there be a real and substantial risk to the fairness of the trial or proceeding. Banning reporters from a legal proceeding at the outset is an even more exceptional restraint, which must surely require an even greater level of legal justification.”
But my argument didn’t cut much ice. My application was quickly rejected. Tim Bennett, the chair of the appeal panel, told me that observers were only allowed in under rare and exceptional circumstances – for example, when new appeal panel members were being trained. His letter concluded this way:
“I am formally declining your request (Edmonton Journal) to participate as an observer in this appeal, based upon;
- The public’s interest and Government’s ability to enforce are presently not constrained by this appeal.
- The appellant and respondent have rights to a fair process and natural justice must be preserved.
- Regardless of the material presented and evidence considered in this appeal, Government’s investigation is still ongoing and charges may still be laid outside of the scope of this Council.
- Public’s ability to review, engage or form opinion still exists outside of this hearing.”
It wasn’t an answer I found very satisfying. The public interest is clearly constrained in this instance, as is the public’s ability to review, engage or form informed opinions about the matter under appeal. We don’t even know why the appeal is happening, or what the impact of the appeal will be.
On Friday, Edmonton Journal lawyers submitted more formal legal arguments to Bennett’s office.
“We have limited information regarding what is being argued and considered by the Council next week, which only highlights the need for the public to understand what is taking place in this matter,” wrote Sean Ward of Reynold Mirth Richards and Farmer. “Not only is it important for justice to be seen to be done in terms of properly investigating the causes of Ms. Wolski’s death, but access to this appeal is necessary for the public to properly access and scrutinize the actions of the Province’s Persons with Developmental Disabilities program in the context of this appeal. Without knowing the arguments put forward by PDD and the evidence being considered by the Council, it is impossible for such public scrutiny and debate to take place.”
Ward argued that it would actually better serve the right to fair process and natural justice to allow the media to attend the hearing.
“In fact, having access to the actual information being presented allows the public to accurately understand what is taking place, rather than engaging in speculation or presenting potentially inaccurate information that would presumably be more harmful or unfair to the appellant and the respondent.”
Ward’s arguments didn’t persuade Bennett to open the hearing. However, in his letter to the Journal’s lawyers, Bennett did reveal something about the nature of the PDD’s appeal – stating that PDD is appealing on the basis of jurisdiction. That might suggest that the board intends to argue that Occupational Health and Safety didn’t have the legal authority to investigate its actions or order it to change its policies.
If true, that makes it all the more important that the hearing not be conducted in secret. If PDD intends to argue that it owed no duty of care to Wolski, because she was not the board’s direct employee, but was employed by the Canadian Mental Health Association, surely the public, and Wolksi’s friends, family, and former colleagues have the right to know. The issue isn’t only one of justice for Valerie Wolski and her family. It’s one of good public policy. How can we expect people like Wolski to take on the emotionally demanding job of caring for severely disabled adults with behavioral problems, if we can’t guarantee their safety? It won’t only be employees who suffer – it will be the vulnerable people for whom they care who will suffer, too, in the long run.
Source: The Edmonton Journal