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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.”
One of the striking aspects of the PPCO report is that it concludes that for 6 days “documentation on basic nursing care, treatment, and examination of [Mrs Peck] was absent." That’s one, two, three, four, five, six days where there is no documentation.
I have no doubt that Harvey Berkal, like many readers, wants to know what happened to that documentation? The report doesn’t say. Is it documentation that never existed in the first place or is it documentation that was somehow removed from the file?  What explanation is provided for the non-existent documentation? Is this simply a coincidence that there is missing documentation? Could six days of missing documentation be considered civil negligence or gross negligence ? 
In order to examine the multitude of issues presented here, Berkal will undoubtedly want to call Sandra Delorme, CEO of the Centre to the stand to testify. Delorme, however, is on medical leave as of Tuesday, October 11, approximately one week before Berkal filed charges, and is due back at the end of December, according to what the chair of the Simkin Board advised the Winnipeg Jewish Review last week.  Will Delorme be required by the Court to testify? Berkal told me he intends to subpoena her. He has also told the Winnipeg Jewish Review that he has lost confidence in the leadership of Sandra Delorme—and no doubt has numerous questions he wants to ask her. Realistically, at this juncture, the only way he could possibly have her answer questions is through a subpoena.[Although assuming she gets legal counsel, legal counsel on her behalf may well ask the Court to excuse her.] Who knows what the ultimate result will be.
Potentially Berkal could call all nurses who were involved in caring for Peck, as well as the doctor and/or nurse from Victoria Hospital who recommended the PPC0 conduct an investigation. Maybe he’ll call the Medical Examiner to testify? Or someone from the Winnipeg Regional Health Authority? During this ongoing hearing, the press will be able to attend and report on the matter. I would expect that this hearing will be the last thing the Simkin Centre will want to happen, and the attention it receives may be unflattering to say the least.
Will this type of public trial be such that it motivates staff at Simkin to be on their toes, and improve the standard of care, to ensure that they are never brought before this type of process again? How much will this hearing cost the Simkin Centre and the WRHA? Berkal may well think that in the overall cost/benefit analysis employees at the Simkin centre will be more likely to be extra- careful and diligent than have to go through any of this again.
As a result of this process initiated by  Berkal, is it possible that some concerned families be motivated to put video cameras in the room of a loved one at the Centre? This is not a suggestion that I have come up with on my own. It was in fact the suggestion of one reader of this publication who wrote a letter to the Editor. I have received quite a number of letters about the Simkin Centre and have not published all of them, for different reasons.
Berkal knows that there will be those in the community who do not approve of his taking this dramatic step, but he says that he has lost faith in the system.
In regard to the 26 Full standards review undergone by the Simkin Centre (in which it passed 25/26 standards), Berkal emphasizes that in that review, “ the Home is expected to meet only minimum levels – so passing grades do not reflect an accurate picture of any serious deficiencies.” Berkal also is of the view that  the government ought not to be able to claim , “that they have limited control over the governance of the Home, despite rewarding the facility with $9 Million in tax dollars.”

Finally, Berkal says that it was
his father [ Rabbi Louis Berkal’s] "terrible experience" at the Simkin Centre that alerted him to the need for dramatic change at the Home.

I will attempt to get responses from the Simkin Centre regarding Berkal's private prosecution shortly.

As of now the hearing is set to begin in  November 7,as the court starts determining if there is sufficient evidence to let the charges stand.

In a subsequent article I will examine what, if anything, the Board of the Simkin Centre could possibly have done to have convinced Harvey Berkal from taking this dramatic step.


For readers who wish to see how the CBC has reported on Harvey Berkal's actions, click here:


To see how the Winnipeg Free Press has reported on the case, click here:


The story has also made the Alberni Valley Times

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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.