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Harvey Berkal

Marsha Palansky and her mother, Lillian Peck


Berkal intends to subpeona Sandra Delorme? Will ask about six days of missing documentation in Lillian Peck's chart?

by Rhonda Spivak, B.A., L.L.B, October 22, 2011

Harvey Berkal has taken the rare step as a private citizen of initiating a private prosecution against the Simkin Centre pursuant to The Criminal Code of Canada which allows private citizens to do so. It is a step taken by private citizens when they feel that government authorities have failed to do so.
The indictable offences charged are for Criminal Negligence Causing Death and for Criminal Negligence Causing Bodily Harm (Sections 220 and 221 of The Criminal Code of Canada) in the matter of Lillian Peck.
It would be a mistake in my view for anyone to consider Berkal just to be any old private citizen. Berkal is a lawyer who articled for Walsh Mckay way back when, and is very familiar with this procedure, (in addition to being an investigative journalist).

As he explained to me, he has once laid a private prosecution before, and the Attorney-General tried to stop it from going forward. Berkal went all the way to the Supreme Court of Canada and won (the case is Dowson). Therefore he believes that the government will not be successful in stopping this private prosecution and thus hearings will take place, in which he will subpoena witnesses, be able to cross examine them etc. [I will outline the possible witnesses and evidence that could be called later in this article].The reason Berkal has taken this step is undoubtedly because he can base his prosecution on the July 2011 report by the  Manitoba Protection of Persons in Care Office [PPCO report] which found that 93 year old Lillian Peck, the mother of Marsha Plansky, has been subject to abuse due to physical neglect at the hands of the Simkin Centre.

As he says, “Hospital records indicate that Mrs. Peck, a vulnerable senior, suffered serious life threatening wounds on her buttocks and perineum areas. This resulted from Simkin Centre employees failing to provide basic and adequate hygiene and medical aid. Days of charting from Mrs. Peck’s file at the nursing home are missing. .. Tragically, Mrs. Peck who went septic, died on October 19th after doctors at Victoria Hospital were unable to save her. The Hospital was so alarmed by her condition that they reported her death to the Manitoba Government’s Protection of Persons in Care Office (PPCO), which investigates cases of alleged abuse. After a lengthy inquiry, the PPCO found the Simkin Centre, guilty of “abuse” due to “physical neglect”. The report was quite scathing and prompted a Leadership Review, which is presently ongoing.”

Berkal was emphatic that, “The Home has systemic deficiencies which are potentially endangering the residents lives.”
The second charge of the two charges (Criminal Negligence Causing Bodily Harm) is a lesser charge and in my view, will be much easier for Berkal to potentially prove. This will require him to prove, not that the abuse/neglect by the Simkin centre caused Peck to die, (arguably she may have died anyway even without the actions/inactions of the Simkin Centre) but merely that the abuse caused her bodily harm. Based on the PPCO report, it may not be  that hard for Berkal to prove that the neglect by the Skin centre did in fact cause Peck bodily harm in the form of skin disintegration.
Criminal negligence is not the same as civil negligence—it is more difficult to prove and the negligence must be significant enough to meet the higher criminal standard.
However, it is very possible, that even if Berkal does not prove there was criminal negligence in the case of Lillian Peck, as any good lawyer knows, evidence that is brought out in a criminal proceeding can be used in a later civil proceeding. In other words, Harvey Berkal’s private criminal prosecution, even if unsuccessful, could potentially help the family of Lillian Peck in making a successful civil claim against the Simkin Centre (and/or the Winnipeg Regional Health Authority ?) for negligence in causing bodily harm to Lillian Peck, (or even death, although that will be much more difficult to prove I think).
Leaving aside potential future civil litigation, Berkal will be able to subpoena witnesses and ask questions, and demand answers that he surely would not be able to do without this court proceeding. In doing so, he has told me he genuinely believes that the Simkin Centre will be put in a situation where they will have to make significant institutional improvements, both in regards to the standard of care provided to residents as well as making changes/reforms in governance which will lead to a greater democratization.
In Berkal’s view, so far the only person who has been really held accountable is one nurse, who was let go as a result of the care Lillian peck received. But, the question he is trying to have answered is, whether she was the “small fry”, who was scapegoated, and whether or not the institutional failures go much further up the chain of command.
Berkal is emphatic that, “The Home has systemic deficiencies which are potentially endangering the residents lives.”
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Rhonda Spivak, Editor

Publisher: Spivak's Jewish Review Ltd.

Opinions expressed in letters to the editor or articles by contributing writers are not necessarily endorsed by Winnipeg Jewish Review.