No charges in case of Montreal-area private care home where dozens died of COVID-19

MONTREAL — A lawyer representing families of several residents of a Montreal-area long-term care home where dozens died of COVID-19 said the fight for justice isn’t over, even as the prosecutor’s office declined to charge the home’s former owners.

Patrick Martin-Menard was not involved in the criminal investigation, but he represents four families of deceased residents of Residence Herron at an ongoing coroner’s inquest into the COVID-19 deaths in long-term care homes, known as CHSLDs.

“Today we learned that there will not be any criminal charges filed, but it’s by no means the end of the road for the victims of CHSLD Herron,” he said Thursday in an interview. 

The Crown prosecutor’s office said Thursday in a statement that after an “exhaustive” investigation, the evidence does not meet the high bar for criminal charges in the case of the Herron long-term care home.

“This decision in no way trivializes the tragic events that occurred at CHLSD Herron, nor does it mean any fault of civil or ethical nature could not have been committed,” the office said.

“The (Crown prosecutor’s office) would like to emphasize that it sympathizes with the families of deceased residents who must not only mourn the loss of their loved ones but also the regret of not being at their bedsides given the circumstances of the pandemic.” 

Forty-seven people died at the Montreal-area facility during the first wave of COVID-19 in 2020, and a report commissioned by the provincial government accused the owners of “organizational negligence” that resulted in a failure to meet residents’ needs.

A second report by three professional orders said the employees were not to blame, but it found poor work organization and a lack of knowledge of the health-care field among management at the privately run facility. It also highlighted an absence of experienced staff and a chronic shortage of personal protective equipment.

The private facility was placed under government trusteeship after regional health authorities in late March 2020 found only three employees on-site to care for 133 residents, some of whom were sitting in overflowing diapers and suffering from dehydration.

Martin-Menard says the burden of proof for criminal cases is very high, adding it would require prosecutors to prove not only the criminal act but the intent to commit one. While he said some families were likely disappointed by the lack of charges, he said there are others ways to shed light on what happened.

“Justice and accountability are not limited to the criminal system,” he said.

Lawyers for the residents and their families announced in March they had agreed on a $5.5-million settlement with the facility’s owners following a class-action lawsuit.

The conclusion of the criminal investigation allows the coroner’s inquest into deaths at several long-term-care homes to resume as scheduled on Sept. 7. The portion of the probe dealing with Herron was suspended in February at the request of a lawyer representing the facility’s former owners, who argued the testimony could prejudice her clients while prosecutors decided whether to lay charges.

Martin-Menard said he hopes the inquest led by coroner Géhane Kamel will help the families get more answers about what happened to their loved ones. He said he also hopes the recommendations will lead to much-needed change in the long-term care system and keep the plight of seniors central in Quebecers’ minds.

“I don’t feel that we have actually implemented any changes that suggest we have learned lessons about what went wrong in the CHSLD Herron,” he said. 

“Yes, there’s (many fewer) devastating outbreaks than there were in the first wave of the COVID-19 pandemic, but we still see and hear many horror stories similar to the ones that we were hearing before.”

Reacting to the Crown’s decision, Premier François Legault said what happened at Herron was “totally unacceptable,” but he said it was not his place to comment on the Crown’s decision. 

This report by The Canadian Press was first published Aug. 26, 2021.

Morgan Lowrie, The Canadian Press