Seeking Justice for Brian Sinclair

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Brian Sinclair, a homeless, disabled Aboriginal man died in Winnipeg
after being ignored for 34 hours in a Manitoba hospital

His 2008 death was preventable!
http://www.eponymedia.com/ignoredtodeathmanitoba.ca/

BACKGROUND: http://www.turtleisland.org/news/briansinclair.htm

His family and friends, a civil rights lawyer, legal experts in Canada and elsewhere believe it involved criminal negligence . . .
http://www.scribd.com/doc/29287752/Brian-Sinclair

"If the police don’t even investigate this death, what message does that send about the value of a disabled and homeless aboriginal victim’s life?" said Robert Sinclair, spokesman for the Brian Sinclair Estate and Family. "We have to be able to count on the police to uphold the law for everybody. Our system of justice depends on it."
"The 1988 Manitoba Aboriginal Justice Inquiry reported that 'the justice system has failed Manitoba's Aboriginal people on a massive scale,'"said Vilko Zbogar, legal co-counsel for the Sinclair Estate and Family. "This police failure to even investigate Brian Sinclair's tragic and unnecessary death shows that the process of transformation called for by the Aboriginal Justice Inquiry is still required."
http://tiny.cc/Sinclair31Mar10

FACT SHEET: BRIAN SINCLAIR


1. The late Brian Sinclair, age 45, was a marginalized and very vulnerable Aboriginal man. He
was poor; homeless; confined to a wheelchair after losing his legs (they were frozen on a
Winnipeg street); cognitively impaired; formerly addicted to solvents; speech-impaired;
afflicted by chronic illness including a seizure disorder, a kidney ailment, and a neurogenic
bladder; and incapable of advocating for himself.

2. On September 19, 2008 at about 2:15 p.m., Brian Sinclair attended a community health clinic
in Winnipeg (the Health Action Centre) complaining of abdominal pain, no urinary output in
the previous 24 hours, and possible problems with his catheter.

3. A physician at the clinic gave Brian Sinclair a referral letter and directed him to immediately
attend the Emergency Department of the Winnipeg Health Sciences Centre for further urgent
assistance and treatment.

4. Mr. Sinclair arrived at the Health Sciences Centre at about 2:53 p.m. by taxi. He reported to
the triage area of the hospital to be registered and attended to.

5. A hospital employee at the triage area spoke with Mr. Sinclair, made some notes, and then
directed him to wait. Mr. Sinclair obediently wheeled himself into the waiting room.

6. Brian Sinclair remained there in his wheelchair in the waiting room for 34 hours, in
considerable pain and discomfort, as sepsis set in uncontrolled. No medical staff had any
contact with him during that 34 hour period.

7. For these thirty-four hours, Mr. Sinclair was neglected and ignored. No one gave Brian
Sinclair the attention, emergency medical care, food, water, or other necessaries of life that
he so urgently required.

8. On September 21, 2008, shortly after midnight, another patient alerted security staff that Mr.
Sinclair appeared not to be breathing. Finally, at about 12:50 a.m. on Sunday, September 21,
2008, Brian Sinclair was wheeled into the treatment area, but he was already dead.

9. At this time, the referral letter from the physician at the Community Health Clinic was found
in Mr. Sinclair’s pocket.

10. The medical cause of Brian Sinclair’s death was “acute peritonitis due to severe acute cystitis
due to neurogenic bladder.” This condition was treatable.

11. Brian Sinclair would have lived if he had been provided with prompt and appropriate
emergency care, and the necessaries of life such as food and water, at the Winnipeg Health
Sciences Centre.

12. The Chief Medical Examiner has appointed an official inquest into Mr. Sinclair’s death. The purpose
of the inquest is to determine the circumstances under which Mr. Sinclair died and what steps can be
taken to prevent similar deaths in the future.

13. The Family of the victim are unable to participate at the inquest themselves and can’t afford
to pay for legal representation. Brian Sinclair’s mother and sisters live in British Columbia
and are physically and financially unable to travel. His surviving two brothers in Winnipeg
are homeless, poor, and ill. His other nearest relatives are deceased.

14. For almost three months the Sinclair Family has been asking the Government of Manitoba
for funding to participate in the inquest fully and equitably. Finally, in early June 2009, the
government of Manitoba offered the Sinclairs funding that is grossly inferior with an
absolute limit on the amount ($40,000 no matter how long the inquest lasts). This means they
may not be able to see the inquest through to the end.

15. Governmental parties, such as the Winnipeg Regional Health Authority, will have legal
counsel to represent them at the inquest. They will be paid with public funds on an openended
basis and at very adequate rates.

16. In the 2000 Report of the Manitoba Pediatric Cardiac Surgery Inquest, Associate Chief Judge
Murray Sinclair (no relation to the victim) stated that:
“The families [of the victims] are entitled to have all their legal costs associated with this
Inquest paid. The role of all counsel for the families was of fundamental importance in
these proceedings… Having counsel whose sole responsibility was that of advocating for
the families was essential for a fair and proper proceeding.”

17. Associate Chief Judge Sinclair recommended that victims’ families’ full legal costs of
participation in inquests be covered (at the usual scale for government counsel) to ensure a
“fair and proper proceeding”. This important recommendation has been ignored in this case.

June 14, 2009
For more information:
Vilko Zbogar, Orkin Barristers +1 (416) 855-6710 or +1 (416) 668-8455
- - -

Family reports Human Rights Violations to the United Nations

WINNIPEG, June 11,2009

Today, the Sinclair family has communicated its concerns about official violations of the late Brian Sinclair's human rights, and the ongoing marginalization and exclusion of the Sinclair family in the context of an upcoming inquest, to four human rights Special Rapporteurs of the United Nations in Geneva.

Details . . . http://www.eponymedia.com/ignoredtodeathmanitoba.ca/

The Government of Manitoba is excluding the Sinclair Family's full participation in the upcoming inquest. Government parties will be fully represented by teams of well-paid lawyers for the duration of the inquest. But the government insists the Sinclairs accept discriminatorily inferior and inadequate funding. This may prevent them from participating at all.

"The marginalization and discrimination that likely caused Brian Sinclair's death is continuing," said Robert Sinclair, a spokesperson for the Family. "We believe this is unjust and will prevent the inquest from being fair and proper."

In September 2008, Brian Sinclair, a homeless, disabled Aboriginal, vulnerable man, sought urgent care at a Winnipeg, Manitoba hospital emergency department. He was told to wait in the waiting room. For 34 hours, he was neglected and ignored, and given no food, water, or medical attention. As a result, he died.

For further information: Vilko Zbogar, Orkin Barristers, (416) 855-6710 or (416) 668-8455
vilko.zbogar@orkinlaw.ca
- - -

For further information:
http://www.eponymedia.com/ignoredtodeathmanitoba.ca/

June 11, 2009
BY FAX AND EMAIL
Jeffrey Schnoor, QC
Deputy Minister of Justice
110 – 450 Broadway
Winnipeg Manitoba R3C 0V8

Dear Mr. Schnoor:
Re: Inquest into the Death of Brian Sinclair – Funding Issues

This is to acknowledge receipt of your two dishearteningly unsatisfactory communications
of earlier today. They do not respond at all, let alone engage in a principled and respectful
manner, with our letter of June 9, 2009, or with our previous correspondences of March 30,
April 28, May 29, and June 1.

The Brian Sinclair Estate and Family notes that the Government of Manitoba:
 delayed a substantive response to their prompt and early requests about funding for
almost three (3) months;
 responded in the days before the beginning of the inquest proceedings without
engaging, as requested, in proper consultation with the Brian Sinclair Estate and
Family;
 made a unilateral proposal for discriminatorily inferior and inadequate funding that
the Brian Sinclair Estate and Family feel marginalizes and re‐victimizes them;
 represented that this proposal for discriminatorily inferior and inadequate funding is
doing the Brian Sinclair Estate and Family some kind of favour or charity;
 ignored the substance of detailed communications to it in recent days, simply
repeating its unilateral and discriminatory determinations regarding the Estate and
Family's concerns without even addressing the detailed and considered positions of
principle; and
 ignored, and thus rejected, a reasonable proposal for mediation of this question.

This is unfortunate, particularly in light of earlier Manitoba judicial recommendations that
victims' families in such circumstances have all of their legal fees paid on the same terms
upon which the government engages outside counsel for itself, and judicial statements that
it is “essential for a fair and proper proceeding” for victims’ families to be represented by
legal counsel.

In short, your government’s approach is suprisingly unilateral, discriminatory and paternal
under all of the circumstances. It appears to be possibly intended to exclude the Sinclair
Estate and Family from full and equitable participation in the inquest.

We attach for your information a press release that was just issued in Canada and
internationally by the Estate and Family of the late Brian Sinclair.

Yours truly,
ORKIN BARRISTERS
Vilko Zbogar
Encl.
cc. David Chomiak, Minister of Justice, Attorney General
Theresa Oswald, Minister of Health
David Frayer, Crown Attorney, Inquest Counsel
Esther Grant, Administrator of the Estate of Brian Sinclair
Robert Sinclair, Sinclair family representative

June 9, 2009
BY E-MAIL AND FAX
Hon. David Chomiak
Minister of Justice and Attorney General
104 – 450 Broadway
Winnipeg Manitoba
R3C 0V8

Dear Minister Chomiak:
Re: Minimum prerequisites for equitable participation of the Sinclair Estate / Family
in the Inquest into the Death of Brian Sinclair
On June 5, Deputy Minister Jeffrey Schnoor wrote to us advising of Manitoba’s position
regarding providing funding to enable the Brian Sinclair Estate and Family to be
represented at the Inquest into the Death of Brian Sinclair.

The letter of June 5, 2009 contains an offer of partial and limited funding. It does not,
however, enable the Brian Sinclair Estate and Family to participate fully and equitably in
the approaching Inquest into Brian Sinclair’s preventable wrongful death in the waiting
room of a hospital facility owned by the Province of Manitoba.

Rather, the offer of funding that has been proposed has the effect (if indeed not the
purpose) of limiting or marginalizing the Estate and Family’s participation in the Inquest
by capping and limiting their role in an inequitable and re-victimizing manner. Such an
approach may well result in the Estate and Family not being able to participate in the
Inquest at all, even though their participation is essential for the process to be thorough,
credible and fair.

Further, your government’s insistence to date on dealing with this matter unilaterally and
without consultation is offensive and unacceptable to the Estate and Family.

At the core of this Inquest must be the issue of Brian Sinclair’s marginalization as an
Aboriginal, homeless, mentally and physically disabled man who was unable to advocate
for himself as he sat in a hospital waiting room, ignored, for 34 hours. It would appear that
this marginalization made Brian Sinclair invisible in his last hours. A funding decision that
repeats and perpetuates the marginalization and inequity suffered by Brian Sinclair and his
Family during their lives in the context of this Inquest cannot, therefore, be accepted.

Two fundamental points are self-evident and beyond dispute:
a) Brian Sinclair’s Estate and Family are entitled to meaningfully participate in the
inquest into the death of Brian Sinclair; and
b) Brian Sinclair’s Estate and Family are entitled to be treated equitably in this Inquest
vis-à-vis the other parties.

These two points, which are the principled foundation for the minimum essential criteria
described in our letter of June 1, 2009, have been entirely disregarded in Mr. Schnoor’s
most recent letter.

Rather than engaging on any principled basis, your government has unilaterally and
arbitrarily chosen the lowest presentable standard – but one that discriminatorily limits
and caps the Sinclairs’ ability to fully and effectively participate in this process while other
official parties such as the WRHA surely will not be subject to the same caps or limitations.

Judges in two prominent Manitoba inquests have already condemned the usual no-funding
approach for victims’ families, and recommended that it be changed. In particular, in the
Report of the Manitoba Pediatric Cardiac Surgery Inquest, Chief Judge Murray Sinclair
stated that:
the families [of the dead victims] are entitled to have all their legal costs associated
with this Inquest paid. The role of all counsel for the familes was of fundamental
importance in these proceedings… It is recommended that the Government of
Manitoba pay the entire legal costs of the families involved in these proceedings.
[emphasis added].

What Mr. Schnoor’s letter suggests is that the Estate and Family’s participation in the
Inquest is really optional because the Family’s interests will be looked after by inquest
counsel, and that some funding will be offered as some kind of favour. This ignores and
misstates the fundamental role of the Estate and Family in this Inquest. While we trust that
Mr. Frayer will perform his tasks admirably in this Inquest, it is not his role to represent or
advocate for the Estate and Family. As stated by Chief Judge Sinclair:
While both counsel for the Inquest performed their tasks admirably, their role was
not that of advocate for the families, but to bring forward the evidence as best they
could. Given the active role of counsel for the other parties under scrutiny, having
counsel whose sole responsibility was that of advocating for the families was essential
for a fair and proper proceeding [emphasis added].

A fair and proper proceeding is essential in this case. The Sinclair parties cannot readily
accept to participate in a process that is destined to be less than fair or proper.
Your government has expressed its condolences. It has said that it accepts responsibility
for the tragedy. It has said that it is committed to ensuring “that every individual is going to
get a fair hearing,”1 and of course the victims are just as entitled to a fair hearing as anyone
else. It has accepted that the systems failed Brian Sinclair terribly. Minister Chomiak, the
Estate and Family are asking your government to give concrete meaning to your
government’s words, to show that they are backed up by principle and are not just empty
statements intended to placate the victims or the public.

It is only because of the actions and inactions of a government institution that Brian
Sinclair and his family have been placed in this situation in the first place. Brian Sinclair
did not cause his own death. He did what he was supposed to. He sought treatment at a
hospital, and he waited patiently when asked to do so. A health care institution, for which
your government is responsible, let him down grievously. Your government accordingly
has an obligation to ensure that things are made right to the extent possible, and that the
patterns of marginalization and inequity that underlay the treatment that Brian Sinclair
endured are not repeated, at least in the important context of this Inquest.

There may be overall circumstances in which legal aid rates and caps are justifiable, even if
they are inferior. This is not such a legal aid case. Mr. Sinclair was not accused of any
crime. He was not, in some perverse way, undeserving. He was only sick, and he received
grossly marginal and inferior care that cost him his life.

This is a special matter, one of broad, major public interest concern. It is not acceptable to
the Estate and Family, and it should not be acceptable to your government, that it is being
proposed to fund the Sinclairs’ participation on a discriminatory and inferior basis. This
would be at best insensitive and at worst would perpetuate existing systemic
marginalization and injustice.

If your government is really committed to ensuring a fair hearing, we suggest it is
incumbent on you to ensure that victim and his family are able to participate fully, fairly
and equitably in the process.

More than three months have gone by since we first tried to engage regarding these issues.
We cannot in conscience now recommend to our Aboriginal clients that they get onto a bus
where they are implicitly being told they will have to sit at the back, participate less than
anyone else on the bus, simply let government and non-aboriginal parties unilaterally
determine the route, and possibly be forced to get off the bus half way through the journey
because that is as far as their fare will take them.


We respectfully suggest that there are two possible options for moving forward, namely for
your Government to immediately:
a) Guarantee funding at a non-discriminatory rate (i.e., either at the rate ordinarily
paid by WRHA to outside counsel in the normal course, or at the rate ordinarily paid
by the government of Manitoba to retain its own outside legal counsel in these or
analogous contexts2), and remove any cap on total fees that may limit the Estate and
Family’s ability to reasonably, fully and equitably participate3; or
b) Agree to engage the services of a mutually acceptable mediator to promptly
determine what funding is fair, just, and equitable in these particular circumstances.
Kindly advise us as early as possible this week, as to how you would be prepared to
proceed with this matter.

We look forward to hearing from you. The delays in properly addressing funding for our
clients are now adversely affecting and even harming them.
Yours truly,
ORKIN BARRISTERS
Andrew Orkin
cc. Jeffrey Schnoor, Deputy Minister of Justice
Theresa Oswald, Minister of Health
David Frayer, Crown Attorney, Inquest Counsel
Esther Grant, administrator of the Estate of Brian Sinclair
Robert Sinclair, Sinclair Family representative

1 Statement of Minister of Health Theresa Oswald to the press, February 11, 2009.
2 This is the standard adopted by Chief Judge Murray Sinclair in the Pediatric Cardiac Surgery Inquest: “The
rates paid to outside counsel retained by the Government should be used as a guideline.”
3 This by no means suggests a “blank cheque”. A senior, respected Chief Judge has been appointed to carry
out the inquest process. Through his procedural and other pronouncements during the course of the
proceedings, the Chief Judge will determine the limits of the participation of the Estate and Family, and of
every other party. In addition, we have proposed that the size of the Sinclairs’ legal representation team can
be reasonably defined.


- - -
June 1, 2009
BY E‐MAIL AND FAX
Hon. David Chomiak
Minister of Justice and Attorney General
104 – 450 Broadway
Winnipeg Manitoba
R3C 0V8

Dear Minister Chomiak:
Re: Minimum prerequisites for equitable participation of the Sinclair Estate / Family
in the Inquest into the Death of Brian Sinclair
This letter confirms Deputy Minister Schnoor's telephone call to me of Friday afternoon,
May 29 2009.
Prior to that call, we had repeatedly requested an opportunity to engage with the
Government of Manitoba proactively and in person in regard to assuring equitable
participation of the Brian Sinclair Estate / Family in the upcoming inquest. Unfortunately
that opportunity was not afforded to us and now we are just days away from the standing
hearing.
Mr. Schnoor apologized for the long delay in responding. This is acknowledged but is not
sufficient. Mr. Schnoor also indicated to me during our telephone conversation that it
would "not be possible" for the Brian Sinclair Estate and Family to proactively present its
views regarding a minimum basis for equitable funding in advance of a decision.

The only alternative to such advance consultation is for the Government of Manitoba to
make this decision unilaterally and on the basis of criteria it alone determines.
Mr. Brian Sinclair endured marginalization for much of his life, and this likely contributed
to his death. It appears that these structural patterns are now being repeated in the
context of this upcoming inquest, which is statutorily mandated to examine and prevent
such occurrences in the future.
We nevertheless write to you in a spirit of helpful diplomacy to outline some of the
minimum essential considerations that: (a) will enable the Sinclair Estate and Family to
participate fully, fairly, and equitably in the approaching inquest into Brian Sinclair’s
death; and (b) prevent any untoward pitfalls that will, inter alia, continue to compound the
injustice and stress being endured by this family.
We respectfully suggest that the following four minimum essential principles should be
comprehensively accommodated in any decision that may be made regarding funding for
the Sinclair Estate and Family:
1. The Estate and Family’s legal fees, from its initial pre-inquest consultations with
legal counsel until the completion of inquest proceedings (including a response to
the Final Report) are to be covered and guaranteed, with that commitment made by
June 5 in order to allow for proper preparation by involved family members and
their counsel sufficiently for the Standing Hearing scheduled for June 15;
2. Funding is to be provided for the as-required involvement of *up to* three lawyerequivalents
(consisting of at most one senior, one intermediate and one junior
lawyer as circumstances may require) and one articling student or clerk;
3. Counsel fee rates are to be equal to those rates ordinarily paid, in the normal
course, by WRHA and other official parties for external counsel, to ensure that the
Sinclair Estate / Family can participate fully, without undue impairment, and on a
level field vis-a-vis the other parties; and
4. Reasonable disbursements, including investigation expenses and reasonable
ordinary travel and accommodation expenses for both legal counsel and for
involved family representatives, are to be covered.
We further request that all decisions regarding funding and other central aspects of the
participation of the Sinclair Estate / Family henceforth be made in an equitable, consentbased
manner in prior and timely consultation with authorized representatives of the
Sinclair Estate / Family.
We commend the above points to you as being in the mutual interests of all involved. As
stated at the top of this letter, we believe they are, together, minimum principles for the
proper and equitable participation of the Sinclair Estate / Family in the upcoming inquest,
particularly in light of the extremely inequitable and marginalized circumstances of Mr.
Sinclair's death (and life).
Please do not hesitate to contact me for any necessary clarification.
I look forward to hearing from you by the end of this week.
Yours truly,
ORKIN BARRISTERS
Andrew Orkin
cc. Jeffrey Schnoor, Deputy Minister of Justice
David Frayer, Crown Attorney, Inquest Counsel
Esther Grant, administrator of the Estate of Brian Sinclair
Robert Sinclair, Sinclair Family representative

---
May 29, 2009
BY FAX TO 204-945-2517 AND EXPRESS POST
Hon. David Chomiak
Minister of Justice and Attorney General
104 – 450 Broadway
Winnipeg Manitoba
R3C 0V8
Dear Minister Chomiak:

Re: Inquest into the Death of Brian Sinclair –
the Brian Sinclair Estate’s and Family’s continuing wait
We have been retained to assist and represent the Estate and family members of the late
Brian Sinclair in their efforts to obtain status and funding to participate fully in the
upcoming inquest arising out of Mr. Sinclair’s death while waiting for medical care at the
Winnipeg Health Sciences Centre on Sept. 21, 2008.

We are now advised that a Standing Hearing for the inquest is scheduled for June 15, 2009.
Brian Sinclair’s Estate and his Family wish to seek standing at the inquest. They have many
important questions that they wish to have answered, and they also hope to contribute to
the hearing so that changes will be made that may prevent similar deaths from occurring
again – and so that Mr. Sinclair’s unnecessary and painful death will not have been in vain.
However, in order for the Brian Sinclair Estate and Family to participate in the inquest at
all, it will be essential that they be provided with funding for legal representation. Some of
the Sinclair siblings are living in the same poverty and marginalization that Brian Sinclair
suffered in his life and during his death. Mr Sinclair’s other surviving relatives are in poor
health and/or living several provinces away. None have the ability to participate in the
inquest in Manitoba personally let alone the resources to retain legal counsel to represent
them.

We first wrote in this regard to Chief Judge Raymond Wyant on March 6, 2009. His Honour
referred us to the Manitoba Ministry of Justice.

We wrote to Deputy Minister Jeffrey Shnoor regarding this matter two months ago, on
March 30, 2009. At that time, we advised him that: “We hope to be able to reassure the
Sinclair family as a matter of some urgency, in order to alleviate the stress of this
uncertainty as a major public legal process concerning their brother’s death draws nearer,
that it will indeed be possible for them to have legal counsel participate fully in this
important inquiry on their and their late brother’s behalf.”

We further indicated to Mr Schnoor that: “Judges conducting previous [Manitoba] inquests
(including the Paediatric Cardiac Surgery Inquest and the Donald Miles inquest) have noted
the fundamental importance of families having legal representation in inquest proceedings.
In their reports, these judges have strongly recommended that public funding be provided
to pay for legal representation of the deceased’s family and for travel costs, where the costs
to the family of being involved in the proceedings would be prohibitive. There can hardly
be a more compelling case for public funding for legal representation of a deceased’s family
than the present circumstances, where the Sinclair family faces insurmountable barriers to
accessing the proceedings and will be entirely unable to participate in the inquest unless it
has paid legal representation.” Accordingly, we offered to meet Mr Schoor in Winnipeg
anytime in the first two weeks of April to discuss these issues.

Mr. Schnoor advised on April 14, 2009 that: “the department will give the matter
appropriate consideration and I will respond to you as soon as possible.”

We replied on April 28, 2009 stating: “In light of the extraordinary questions raised by the
circumstances of Mr. Sinclair’s death, his status as a marginalized, poor, disabled aboriginal
man, and the severely difficult situation of his family members, the Family looks forward to
being consulted and included in any discussions regarding this matter.”

Since then, there has regrettably been no consultation as requested, and in fact the Family
has received no information about this matter whatsoever, even though the issue of
funding will determine whether or not the Family is able to participate in the inquest at all.
This waiting and waiting since then in regard to the Brian Sinclair Estate’s and Family’s
participation in the upcoming inquest has been excruciating for the involved members of
the Sinclair family. Minister Chomiak, Brian Sinclair died waiting.

Recently, a Judge in Québec suspended the inquest into the death of Fredy Villanueva,
declaring that justice would not be served where there were procedural inequities arising
from the Province of Québec’s refusal to cover the legal bills of the family and other
witnesses. Likewise, the Sinclair Family does not believe an inquiry into Brian Sinclair’s
death can be full, fair, thorough, just, or equitable if it is denied the full opportunity to
participate.

The Province of Manitoba has appropriately accepted responsibility for Brian Sinclair’s
death. In order to ensure that justice is done and that the family is not further victimized,
we believe Manitoba must also take responsibility for making sure that the Family can and
will be properly represented at the inquest. The Family asks nothing more than to have
same kind of access to publicly funded legal counsel that the Winnipeg Regional Health
Authority and other official parties to the inquest will enjoy.

The upcoming inquest provides one important opportunity for justice to be done and to be
seen to be done. It will be most unfortunate if (as appears to be the case in the current,
pertinent Québec situation1) substantive issues are overshadowed by inequities relating to
the proper publicly funded participation of the parties most interested in what happened,
namely the Brian Sinclair’s Estate and Family.

We have waited two months for a response and now the Standing Hearing is soon upon us.
Kindly advise by June 5, 2009 whether or not the Province of Manitoba will cover the
Sinclair Family’s legal expenses for participating in the upcoming inquest. (Such funding
will need to be adequate, equitable and assured, considering all of the extraordinary
circumstances of this case.)

Yours sincerely,
ORKIN BARRISTERS
Andrew Orkin
cc. Esther Grant, Administrator of the Estate of Brian Sinclair
Robert Sinclair, Sinclair Family representative
The Honourable Gord Mackintosh (by email)
The Honorable Eric Robinson (by email)
Honourable Theresa Oswald (by email)
Deputy Minister Jeffrey Shnoor (by email)


1 See for example Globe and Mail, “Victim's family refuses role in shooting inquest” (May 28, 2009,
online edition):
The coroner's chief counsel, François Daviault, admitted there was an "unprecedented situation of
unequal forces" in the inquest. "Your inquest must be credible in the eyes of the public. What will
their perception be when the three parties most interested by what happened don't participate
because they don't have money to hire a lawyer?" Mr. Daviault asked the coroner, Quebec Court
Judge Robert Sansfaçon.
- - -

Previously reported on this . . .

News and Comment
by Tehaliwaskenhas - Bob Kennedy ( Onyota'a:ka / Oneida )
Copyright
Turtle Island Native Network
http://www.turtleisland.org

February 12th, 2009 - The tragic Winnipeg hospital death of Brian Sinclair last year is now a hot political scandal in Manitoba where the Opposition parties want the government to recall the legislature to answer questions. Brian Sinclair, a 45 year old double-amputee with a speech problem, was ignored and left to vomit in the Health Sciences Emergency Room - nothing was done to help him. He suffered complications from a blocked catheter.

Liberal Leader Joe Gerard said heads must roll at the Winnipeg Regional Health Authority (WRHA). He was left to die. His death wasn't noticed for many hours. Gerard called it a level of response "that was so negligent that it simply cannot be tolerated". "Someone must be held accountable for these atrocious shortcomings". Brian Sinclair died after waiting in the Emergency Room for 34 hours without being seen. He vomited as a result of his condition, and yet nothing was done."

The WRHA investigated and failed to reveal several of the most critical facts and concluded there was only a system failure. "The investigation into the death of Brian Sinclair was completely botched by the WRHA and there was an attempt to blame the system and to blame Brian Sinclair for not approaching the triage desk. Enough is enough. For the sort of incompetence we have seen in the WRHA, heads will have to roll."

An inquest will be conducted to find out what really happened.

In the meantime, Opposition politicians are demanding the Premier of Manitoba recall the legislature to deal with the truth about Brian Sinclair's death. Manitoba Conservative leader Hugh McFadyen, wants Health Minister Theresa Oswald to resign or be fired.
- - -

October 1, 2008 - The Government of Nova Scotia is promising to work to build a stronger relationship with Aboriginals. Premier Rodney MacDonald, speaking during Treaty Day ceremonies, noted government and the 13 chiefs agreed last week at a joint meeting in Eskasoni First Nation to meet annually. It was the first time the provincial cabinet had met with the Assembly of Nova Scotia Mi'kmaq Chiefs. "Government understands that strengthening our province's aboriginal communities helps us build a stronger, better Nova Scotia," Premier MacDonald said. Earlier in the day, Grand Chief Ben Sylliboy signed a Mi'kmaq Nationhood Proclamation at a ceremony at Province House. "The proclamation represents our commitment to develop a system of governance that empowers our people and unites our communities towards a common purpose -- to enhance the quality of life and well-being of our people," said Chief Terrance Paul, co-chair of the Assembly of Nova Scotia Mi'kmaq Chiefs. Treaty Day ceremonies began in 1986 with the signing of a proclamation by then Grand Chief Donald Marshall, senior. The day marks the beginning of Mi'kmaq History Month in Nova Scotia.

News and Comment
by Tehaliwaskenhas - Bob Kennedy ( Onyota'a:ka / Oneida )
Copyright
Turtle Island Native Network
http://www.turtleisland.org

October 1, 2008

The Southern Chiefs' Organization (SCO) and First Nations Disability Association in Manitoba are demanding action on healthcare issues, following the Death of Brian Sinclair, a Metis man who went unnoticed during his 34-hour wait at a hospital in Winnipeg. SCO Grand Chief Morris Swan Shannacappo said there is a wide range of issues that may have come into play during tragic situation surrounding the death of Brian Sinclair at the Health Sciences Centre. "There are two types of issues here. One type relates to the narrow specifics of this case. The other relates to the broader issue of how First Nations people - especially street people and disabled people - are being treated within the heath care system."

Doreen Demas, director of the First Nations Disability Association in Winnipeg said there must be an inquiry to answer the many questions regarding Mr. Sinclair's death. She said conditions for such a tragedy have existed for a long time, "an inquiry should look at not only whether certain individuals who were directly involved in the case were at fault, although that too was important. It should also look at overall policies and inadequacies in approaches and services".

There are many questions that must be answered. Why was he neglected in such a horrifying way? Was race a factor? Was being First Nation person and a street person an issue? Would an affluent Caucasian who had arrived by taxi have been neglected in the same way? "When news of the incident came out we all thought the man would probably be Native. First Nations people are only about 10 per cent of the population in Manitoba but when it comes to neglect and mistreatment by authorities, we bear the brunt of all of this," Doreen Demas explained. The Health Sciences Centre's code of conduct states: 'I will treat each individual with fairness, respect and dignity.' "Well, where was the respect and dignity this man should have been shown," asked Chief Swan Shannacappo.

[admin]

Police failure to investigate homeless, disabled man's hospital death now in the spotlight!

Support is growing for the family and friends who know the circumstances surrounding Brian's death
are very wrong, unacceptable and unlawful . . .

News and Comment
by Tehaliwaskenhas - Bob Kennedy
Copyright
Turtle Island Native Network
http://www.turtleisland.org/news/briansinclair.htm


March 31st, 2010

The Winnipeg police are reviewing evidence in connection with the death of Brian Sinclair.

But the police action only comes after public pressure.

Turtle Island Native Network has obtained detailed documents from a prominent civil rights lawyer
Clayton Ruby, who is calling for a "full and thorough" police criminal investigation into the death of the Aboriginal man
in a Winnipeg hospital - the Health Sciences Centre.

"If the police don’t even investigate this death, what message does that send about the value of a disabled and homeless aboriginal victim’s life?" said Robert Sinclair, spokesman for the Brian Sinclair Estate and Family. "We have to be able to count on the police to uphold the law for everybody. Our system of justice depends on it."
"The 1988 Manitoba Aboriginal Justice Inquiry reported that 'the justice system has failed Manitoba's Aboriginal people on a massive scale,'"said Vilko Zbogar, legal co-counsel for the Sinclair Estate and Family. "This police failure to even investigate Brian Sinclair's tragic and unnecessary death shows that the process of transformation called for by the Aboriginal Justice Inquiry is still required."

Brian Sinclair died because of criminal negligence, according to Ruby who launched a scathing attack
on the Winnipeg Police for not pursuing an investigation.

Failure of Winnipeg Police to investigate the September 2008 death of Brian Sinclair is "inexplicable and shocking".
http://www.scribd.com/doc/29281739/Sinclair-Press-Release

Brian's death was preventable and criminal negligence must be investigated . . .
http://www.scribd.com/doc/29282000/Sinclair-Letter-Feb-22-2010

Human rights experts and senior criminal law professors endorse Clayton Ruby's legal opinion that a police criminal investigation is needed . . .
http://www.scribd.com/doc/29282187/Sinclair-Support-Letters

Background information on Brian Sinclair and the circumstances surrounding his death . . .
http://www.scribd.com/doc/29282304/Sinclair-Fact-Sheet

Turtle Island Native Network notes:
Clayton Ruby's legal opinion, the endorsements of Prof Dugard, Dr Stavenhagen, the National Law Centre on Homelessness and Poverty
and the 26 Canadian criminal law professors, and other related materials may be downloaded at
http://tiny.cc/Sinclair31Mar10

Here's a Statement by Police Chief Keith McCaskill following the public statements attacking a lack of police action.

"I want to address the information that was released to the media this morning by Mr. Clayton Ruby.

In the case of a death the Office of the Chief Medical Examiner conducts an investigation. Where there is any suggestion of criminal wrongdoing, police are immediately called upon by the Office of the Chief Medical Examiner.

At the time of Mr. Sinclair’s death, the Winnipeg Police Service was not asked to investigate by investigators from the Office of the Chief Medical Examiner. The Winnipeg Police Service spoke to the Chief Medical Examiner, Dr. Balachandra, today who advised that police were not required at the time, and confirmed that he believes that nothing has changed that would require police involvement.

Just today, I received a written request from counsel for the family of the late Brian Sinclair, which asked the Winnipeg Police Service to immediately undertake an investigation into the tragic death of Mr. Sinclair, which occurred on September 21, 2008.

A member of the Service will be contacting the family’s counsel to request a copy of the material which they have which led them to seek advice from Mr. Ruby. The WPS will then have investigators review the material in addition to any other material which they believe may be relevant to determine if there is evidence which supports an investigation into whether a criminal offence occurred. If such evidence exits, we will investigate it fully.

I want to emphasize that, prior to today the WPS had never received any suggestion that there had been evidence of criminal wrongdoing in relation to the death of Mr. Sinclair.

The death of Mr. Sinclair was a tragedy. My thoughts are with the late Mr. Sinclair’s family as they seek answers to help them heal in their grief."

Turtle Island Native Network received this response from Clayton Ruby after he read the news release, "The ME must not have even considered crimes of omission, or this crime would have leaped to the forefront of his mind . But the responsibility and the expertise in criminal investigation rests with the Chief: he can't hand it off to the ME." (ME is Medical Examiner)

Turtle Island Native Network - Justice for Brian Sinclair . . .
http://www.turtleisland.org/news/briansinclair.htm

Previously reported by Turtle Island Native Network on this story . . .
http://www.turtleisland.org/discussion/viewtopic.php?p=10236#p10236

[admin]

More than two years ago an Aboriginal man died in a Winnipeg hospital - a death that his family and many others believe could have been prevented . . . Finally the police will investigate if there was criminal wrongdoing.

News and Comment
by Tehaliwaskenhas - Bob Kennedy
Copyright
Turtle Island Native Network
http://www.turtleisland.org/news/briansinclair.htm

October 14, 2010

Brian Sinclair died after being ignored for 34 hours in a Manitoba hospital. Was what happened to him two years ago, criminal? Family, legal experts, and the Aboriginal community believe it was, and now the Winnipeg Police Service has decided to launch a formal criminal investigation into the circumstances surrounding the death of the homeless, disabled man in the Winnipeg Health Sciences Centre.

Today a news release stated, "On March 31st, 2010, members of the Winnipeg Police Service initiated a review regarding the tragic death of Mr. Brian Sinclair. The Service has followed through on its commitment to review this incident and has decided to conduct an investigation to determine if a criminal offence has been committed. Mr. Sinclair's family is in the process of being contacted to inform them of these developments."

In fact, the police only reviewed the case following intense public pressure.

Earlier this year, civil rights lawyer Clayton Ruby publicly chastised the Winnipeg Police.

"Brian Sinclair died because of criminal negligence," according to Ruby who launched a scathing attack on the Winnipeg Police for not pursuing an investigation.

He said failure of Winnipeg Police to investigate the September 2008 death of Brian Sinclair is "inexplicable and shocking".

Six months ago, human rights experts and senior criminal law professors endorsed Clayton Ruby's legal opinion that a police criminal investigation is needed.

Many believe his death could have been prevented, and that negligence was involved.

A police probe will now be conducted. Not another review, but an official criminal investigation.

BACKGROUND: http://www.turtleisland.org/news/briansinclair.htm

[admin]

WINNIPEG, CANADA – FEBRUARY 11, 2011:

The Manitoba Ombudsman has again failed the Brian Sinclair family – and the public – by completely denying them their right to access information concerning Brian Sinclair’s death.

The Sinclairs sought access to hospital security videotapes showing Brian Sinclair’s last 34 hours; a Winnipeg Regional Health Authority (WRHA) administrative review report into his death; documents relating to WRHA’s post-death public messaging (which involved misleading the public by falsely asserting that Brian Sinclair never approached the HSC triage desk); and various other post-death records from WRHA and the Winnipeg Police Service (WPS).

The Ombudsman ruled that the Sinclairs could not access any of that information because there was an inquest pending. This is a complete reversal of Ombudsman Irene Hamilton’s earlier public position. In February 2009, the Winnipeg Free Press reported that Hamilton said “she’s not aware of any law that prevents the WRHA from publicly releasing the [WRHA administrative review] report prior to the inquest.”

“It seems that the public is getting ripped off by a failed bureaucracy that either can’t or won’t serve the public interest,” said Robert Sinclair, Brian Sinclair’s cousin. “It’s a disgrace.”

The Freedom of Information and Protection of Privacy Act (FIPPA) states that records relating to an inquest are not subject to FIPPA. The Ombudsman interprets this as meaning that every record that has anything to do with Brian Sinclair can be kept secret, even if the record was not prepared for the inquest, or is one that the inquest will likely never see.

“In our view, the Ombudsman got the law fundamentally wrong,” said Vilko Zbogar, legal co-counsel for the Sinclair family. “WRHA, WPS, and the Ombudsman have erected a colossal cone of silence that undermines freedom of information in Manitoba. Again, the interests of truth and accountability are the losers.”

The inquest, which is on hold pending a police investigation, has a dual mandate: to look at the circumstances of Brian Sinclair’s death and to examine emergency health care generally. “Because of this, the Ombudsman’s cone of silence would appear to cover any record that has anything at all to do with emergency health care in Manitoba, not just those related to Brian Sinclair’s tragic demise,” said Zbogar.

The Ombudsman’s brief reports, released weeks after the legislated deadline, do not even refer to the Sinclairs’ detailed submissions. “Apparently the Ombudsman thinks so little of our position that she cannot even be bothered to mention it in her report,” said Robert Sinclair.

The Ombudsman’s Reports, and the letter of complaint submitted to the Ombudsman on behalf of the Sinclair Family, are posted at www.IgnoredToDeathManitoba.ca

The Sinclair Family is considering its appeal or judicial review options.

Further information:
Vilko Zbogar, Zbogar Advocate – 416-855-6710 or 416-668-8455
- - -

Brian Sinclair – Background information:

Brian Sinclair was a homeless, disabled, vulnerable Aboriginal man who died as a result of being ignored for 34 hours after checking into the emergency room of the Winnipeg Health Sciences Centre (HSC) in September 2008 with a bladder infection. The Chief Medical Examiner stated that the death was “entirely preventable” and called an inquest into the death.

In May 2010, the Ombudsman denied the Sinclairs their right to access records concerning how much public money WRHA was and will be spending to pay its legal team in connection with the death of Brian Sinclair and the pending inquest. That issue is currently under appeal.

In October 2010, more than two years after the death and only after repeated urging by the Sinclair family, supported by the unified opinion of dozens of senior criminal law experts, the Winnipeg Police Service commenced a criminal investigation into Brian Sinclair’s death. That investigation is ongoing, with no anticipated end date. The inquest is on hold until the investigation is complete and any resulting criminal charges are disposed of.

Almost every jurisdiction in Canada other than Manitoba has an independent information and privacy commissioner to deal with complaints from the public about access to information.

Further background information is available at www.IgnoredToDeathManitoba.ca

On January 26, 2011, Manitoba’s Ombudsman released two reports that completely denied the Sinclair Family access to videos and documents about the death of Brian Sinclair:

* Ombudsman’s report on the Sinclair Family’s complaint against the Winnipeg Regional Health Authority (WRHA)
http://dl.dropbox.com/u/8827767/2011%20 ... access.pdf

* Ombudsman’s report on the Sinclair Family’s complaint against the Winnipeg Police Service (WPS)
http://dl.dropbox.com/u/8827767/2011%20 ... access.pdf

[admin]

Turtle Island Native Network
http://www.turtleisland.org

October 17, 2011

A legal first in Canada - courts must now decide on unique allegation.

Manitoba Government's alleged wrongdoing is now outlined in the lawsuit by the family of a disabled Metis man - Brian Sinclair, who died after going unnoticed during his 34-hour wait at a hospital in Winnipeg . . .

The Re-Amended Statement of Claim alleges that the Government of Manitoba created a public nuisance by “causing or allowing the operation of a hospital emergency room that it knew was injurious to public health," and that this, in part, caused Brian Sinclair's suffering and death after a 34-hour wait for care.

- - -
Re-Amended Statement of Claim on behalf of Brian Sinclair v. WRHA, Government of Manitoba, et al.
Civil Lawsuit

Oct 17,2011

The civil claim filed by the administrator of the Estate of Brian Sinclair was amended on October 14, 2011, primarily to clarify the claims against the Government of Manitoba.

Re-Amended Statement of Claim, October 14, 2011
http://dl.dropbox.com/u/8827767/GRANT%2 ... AIR%29.pdf

The amendments describe the government’s alleged wrongdoing as a “public nuisance,” although they do not allege any new causes of action against the government.

In particular, the “Re-Amended Statement of Claim” alleges that the Government of Manitoba created a public nuisance by “causing or allowing the operation of a hospital emergency room that it knew was injurious to public health,” and that this, in part, caused Brian Sinclair’s suffering and death after a 34-hour wait for care.

A public nuisance may exist where, for example, some entity has unreasonably caused or allowed the creation of a hazard to public health. In the Sinclair claim, the alleged public nuisance was the dangerous operation of the Health Sciences Centre Emergency Room which has caused disproportionately poor health outcomes especially for vulnerable Aboriginal people. http://ignoredtodeathmanitoba.ca/wp/

[admin]

October 20, 2011

INDEPENDENT COUNSEL TO ADVISE WINNIPEG POLICE
IN BRIAN SINCLAIR INVESTIGATION

Manitoba Prosecution Services has asked the Public Prosecutions Division of Saskatchewan to provide legal advice and opinions to the Winnipeg Police Service (WPS) following an investigation into the death of Brian Sinclair at the Health Sciences Centre in Winnipeg.

The WPS provided the investigative file to Manitoba Prosecution Services for an opinion late yesterday and it will be forwarded to Saskatchewan immediately.

In the unique circumstances of this case, sending the file to a prosecution service outside of the province will help to further ensure public confidence in the independence of the advice given and decisions made.

The prosecution service of Saskatchewan will review the file and provide their legal advice and opinions directly to the WPS.

- 30 -

The following was provided by the Winnipeg Police Service

October 20th, 2011

BRIAN SINCLAIR INVESTIGATION- UPDATE
The Winnipeg Police Service has concluded its investigation surrounding the circumstance that resulted in the death of Mr. Brian Sinclair, in September 2008 at the Health Sciences Centre.

During the investigation, investigators received full cooperation from the Winnipeg Regional Health Authority and the staff at the Health Sciences Centre.

This file has been sent to Manitoba Justice, (Prosecutions Branch), for an opinion from a Crown Attorney. This is a unique case with unusual circumstances and a legal opinion is required to determine if charges should be laid or not.

[admin]

Court strikes out Brian Sinclair claims

March 20, 2012 – The Manitoba Court of Queen’s Bench ruled today that several portions of the Brian Sinclair wrongful death lawsuit should be struck out. Brian Sinclair was the disabled, homeless Aboriginal man who died in a Manitoba hospital in September 2008 after being ignored by medical staff for 34 hours while he sat in his wheelchair in the emergency waiting room, in visible distress and agony, vomiting, and slowly dying.

Link to: Decision of Master Berthaudin, Manitoba Court of Queen’s Bench (2012 MBQB 88)
http://dl.dropbox.com/u/8827767/2012-03 ... B%2088.pdf

The court ruled that the estate of Brian Sinclair did not have the right to make a claim for the breach of Brian Sinclair’s right to life under the Canadian Charter of Rights and Freedoms. “The ruling means that because Brian Sinclair is dead, there is no one who is alive who can sue the hospital for breaching his Charter right to life,” said Vilko Zbogar, legal co-counsel for the family. “It is chilling to think that the law would allow a state institution to cause the death of a Canadian and then prevent anyone from holding that institution accountable under the Charter of Rights for doing so.”

Secondly, the court ruled that the estate cannot sue for wrongfully disclosing Brian Sinclair’s personal health information to the public after his death, again because he is not alive to pursue a claim for breach of his privacy.

Thirdly, the court ruled that there were insufficient facts alleged to support the estate’s claim that the Government of Manitoba caused a public nuisance by creating and allowing the operation of an inherently dangerous health care facility.

However, the court refused to strike out the estate of Brian Sinclair’s claim that the WRHA should cover the estate’s out-of-pocket costs for participating in the inquest into Brian Sinclair’s death.

The estate and family of Brian Sinclair intend to appeal the court’s decision to strike out their claims. “These legal roadblocks are confusing and frustrating,” said Robert Sinclair, spokesperson for the family and Brian Sinclair’s cousin. “This ruling will do nothing to make our health care system any better. It just lets the government and hospitals duck behind legal technicalities. We don’t think that is right and we are going to keep fighting for the answers and accountability that we think everyone is entitled to.”

[admin]

The family of a disabled Aboriginal man believe his death could have been prevented, and that criminal negligence was to blame.

Now, Turtle Island Native Network has received the following information from the Winnipeg Police Service, confirming that authorities in Manitoba will not pursue criminal charges in connection with the death of Brian Sinclair.

July 10, 2012

BRIAN SINCLAIR INVESTIGATION

Brian Sinclair attended to the Health Sciences Centre emergency department on Sept 19, 2008 seeking medical attention. He was found deceased in the waiting room of the emergency department approximately 34 hours later. An Inquest was called, at which time the Winnipeg Police Service received a complaint from the family of the deceased.

In October 2010, a complete investigation was ordered by the Chief of Police. Investigators were assigned to conduct the investigation, which took over 10 months to complete.

During the investigation over 170 people were interviewed, including patients, visitors and staff members at the HSC. This was a complex investigation involving not only the Criminal Code but several other Provincial Acts.

On completion of the investigation, a report was sent to Manitoba Justice for an opinion as to whether charges are warranted. Manitoba Justice in turn sent the file to Saskatchewan Justice to review the evidence.

A senior Crown Attorney from Saskatchewan Justice reviewed the file and determined that no charges are wanted in this matter.
- - -

BACKGROUND: viewtopic.php?p=10236#p10236