11 2 3 THE INQUIRY INTO PEDIATRIC FORENSIC 4 PATHOLOGY IN ONTARIO 5 6 7 8 ******************** 9 10 11 BEFORE: THE HONOURABLE JUSTICE STEPHEN GOUDGE, 12 COMMISSIONER 13 14 15 16 Held at: 17 Offices of the Inquiry 18 180 Dundas Street West, 22nd Floor 19 Toronto, Ontario 20 21 22 ******************** 23 24 April 1st, 2008 25
21 Appearances 2 Linda Rothstein (np) ) Commission Counsel 3 Mark Sandler ) 4 Robert Centa ) 5 Jennifer McAleer (np) ) 6 Johnathan Shime (np) ) 7 Ava Arbuck (np) ) 8 Tina Lie (np) ) 9 Maryth Yachnin (np) ) 10 Robyn Trask (np) ) 11 Sara Westreich (np) ) 12 Jill Presser (np) ) 13 14 Brian Gover ) Office of the Chief Coroner 15 Luisa Ritacca ) for Ontario 16 Teja Rachamalla ) 17 18 Jane Langford ) Dr. Charles Smith 19 Niels Ortved ) 20 Erica Baron ) 21 Grant Hoole ) 22 23 24 25
31 APPEARANCES (CONT'D) 2 William Carter ) Hospital for Sick Children 3 Barbara Walker-Renshaw (np)) 4 Kate Crawford ) 5 6 Paul Cavalluzzo ) Ontario Crown Attorneys' 7 Association 8 9 Mara Greene (np) ) Criminal Lawyers' 10 Breese Davies (np) ) Association 11 Joseph Di Luca ) 12 Jeffery Manishen (np) ) 13 14 James Lockyer ) William Mullins-Johnson, 15 Alison Craig ) Sherry Sherret-Robinson and 16 Phillip Campbell (np) ) seven unnamed persons 17 18 Peter Wardle ) Affected Families Group 19 Julie Kirkpatrick (np) ) 20 Daniel Bernstein (np) ) 21 22 Louis Sokolov ) Association in Defence of 23 Vanora Simpson (np) ) the Wrongly Convicted 24 Elizabeth Widner (np) ) 25 Paul Copeland (np) )
41 APPEARANCES (cont'd) 2 Jackie Esmonde (np) ) Aboriginal Legal Services 3 Kimberly Murray (np) ) of Toronto and Nishnawbe- 4 Sheila Cuthbertson (np) ) Aski Nation 5 Julian Falconer ) 6 7 Suzan Fraser ) Defence for Children 8 ) International - Canada 9 10 William Manuel ) Ministry of the Attorney 11 Heather Mackay ) General for Ontario 12 Erin Rizok (np) ) 13 Kim Twohig ) 14 Chantelle Blom (np) ) 15 16 Natasha Egan ) College of Physicians and 17 Carolyn Silver ) Surgeons 18 19 Michael Lomer ) For Marco Trotta 20 Jaki Freeman (np) ) 21 22 Emily R. McKernan (np) ) Glenn Paul Taylor 23 24 25
51 TABLE OF CONTENTS Page No. 2 3 Submissions by Mr. James Lockyer 6 4 Submissions by Mr. Louis Sokolov 46 5 Submissions by Mr. Julian Falconer 56 6 Submissions by Mr. Niels Ortved 80 7 Submissions by Mr. Brian Gover 103 8 Submissions by Ms. Luisa Ritacca 175 9 10 11 Certificate of transcript 218 12 13 14 15 16 17 18 19 20 21 22 23 24 25
61 --- Upon commencing at 9:29 a.m. 2 3 THE REGISTRAR: All Rise. Please be 4 seated. 5 COMMISSIONER STEPHEN GOUDGE: Morning. 6 Mr. Lockyer, I think we begin with you? 7 MR. JAMES LOCKYER: Yes sir, we do. I 8 expect to be about forty (40) minutes, Mr. Commissioner. 9 COMMISSIONER STEPHEN GOUDGE: And then 10 Mr. Sokolov uses the balance of your time? 11 MR. JAMES LOCKYER: Uses the balance, 12 yeah. 13 COMMISSIONER STEPHEN GOUDGE: Okay, way 14 you go. 15 16 SUBMISSIONS BY MR. JAMES LOCKYER: 17 MR. JAMES LOCKYER: Mr. Commissioner, I 18 propose to spend the majority of my argument addressing 19 two (2) features of -- of the task that's before you, 20 which can be broadly classified as firstly, the 21 prevention of future miscarriages of justice and -- and, 22 secondly, the correction of past miscarriages of justice. 23 To address the prevention of future 24 miscarriages of justice -- the prevention of future 25 wrongful convictions is safely in your hands, but there
71 are some issues that I want to address in this regard. 2 Obviously, you're going to have to 3 consider how it was that Dr. Smith was able and allowed 4 to function as long as he did in terms of future 5 prevention of a similar situation arising in the future. 6 Certainly never again should someone be 7 able to hold a criminal justice system hostage for as 8 long as he did, whatever his or her credentials. 9 One (1) of the primary positions that Dr. 10 Smith took when he testified before you was to say that 11 the rules have changed, particularly where "shaken baby" 12 and falls are concerned. But in my submission, this is 13 really a quite misleading way of looking at it. There's 14 a lot of cases among the nine (9) that I'm here for that 15 have nothing to do with either shaken baby or falls. 16 Seven (7) cases, six (6) of the ones that 17 I -- I particularly address you on, but also to bring in 18 Paolo's case as well, were largely dependent on 19 conclusions that were drawn from entirely, as they are 20 called in the trade, non-specific findings. 21 And this was hardly new science. Texts in 22 the middle of the last century referred to findings such 23 as petechial hemorrhages on the thymus, and the like, as 24 being non-specific findings. And yet these findings 25 formed a significant basis for the conclusions that Dr.
81 Smith purported to draw in the cases of Valin, Joshua, 2 Baby F, Baby M, Kenneth, Tamara, and outside my nine (9), 3 the case of Paolo as well. 4 In the two (2) "shaken baby", and the one 5 (1) combination "shaken baby"/fall case the deceased 6 child, or baby, it should be noted, had a history of 7 epilepsy. This was true in Dustin's case, Tamara's case, 8 Cassandra's case and also outside of those cases, 9 Kenneth's case as well. 10 And look as well at Garouv's case where 11 there was a preexisting condition that was ignored as a 12 potential cause of death. 13 So we had five (5) cases of the nine (9) 14 where you had a preexisting condition that was ignored as 15 a potential cause of death. 16 There's also in the context of the 17 prevention of future miscarriages of justice, the 18 troubling idea that still isn't -- doesn't seem to have 19 been eliminated at this Inquiry, that a pathologist 20 should be allowed, in a sense, to play the jury; to play 21 being the jury, in other words. That the pathologist can 22 look to evidence extraneous to the autopsy, and allow it 23 to impact, on his opinion, as to the cause of death. 24 In my submission, that is allowing a 25 pathologist, an expert, to usurp the function of the
91 jury. Paolo's case was a classic example of this but the 2 problem, at this Inquiry, arose most directly in the 3 evidence when Tamara's case was being discussed during 4 the Commission hearings. And in a sense, we seem to have 5 a divide between Doctors Milroy and Pollanen on the one 6 (1) side, and Dr. Crane and Butt on the other side. 7 It's my submission that we need to hear 8 from you, Mr. Commissioner, in your report that it is not 9 for the pathologist to use circumstantial evidence 10 extraneous to the autopsy to influence or affect his 11 opinion as to cause of death. 12 If at autopsy the cause of death is 13 undetermined, it should remain such regardless of whether 14 there is evidence of abuse in the life of the child, 15 regardless of whether, for example, that the person 16 charged confessed to the crime. In neither case should 17 the pathologist in determining cause of death be allowed 18 to rely on that kind of extraneous evidence. 19 If only because it puts the cross- 20 examiner, the defence counsel at -- at a potential trial, 21 in an impossible situation, where he has to argue his 22 case with a pathologist as opposed to take the 23 pathologist on on his actual area of expertise. 24 And it really is nothing more than a 25 pathologist, in my submission, playing the game of
101 conclusionary reasoning. 2 As far as blame is concerned, and this is 3 -- is important in the context of the prevention of 4 future miscarriages of justice, accountability is always 5 a problem in these cases. 6 To leave aside the culpability of Dr. 7 Smith, Dr. Young, and Dr. Cains, the responsibility of 8 each of whom, in my submission, has been well documented 9 and is, surely, worthy of condemnation. 10 Responsibility must at least in some 11 sense, in my submission, also fall on short -- on the 12 shoulders of those who participate directly in the 13 criminal justice system. 14 The Crown, for example. The Crown should 15 have had an obligation, once Amber's case was over and 16 done with, that it be disclosed in all future cases that 17 Dr. Smith was engaged as an expert by the Crown. 18 The defence counsel, it seems, also missed 19 the ball. If counsel in Amber's case could spot the 20 problems with Dr. Smith's opinions in a case whose facts 21 were more complex than many of the cases that I am now 22 before you representing -- or people that I'm before you 23 representing, why didn't other defence counsel also find 24 the same kind of problems with Dr. Smith's opinions. 25 And the Courts, as well, insofar as they
111 entertained Dr. Smith's opinions in case after case, at 2 least until Mr. Justice Trafford came into the picture 3 and did something about it. 4 The decision of the Ontario Court of 5 Appeal, in my submission, in the Trotta case must also -- 6 in the first Trotta case, must also now be called into 7 question. 8 The decision in which the Court refused to 9 Order disclosure of Dr. Smith's past history at the 10 Appellate level. One must ask now, rhetorically, if 11 disclosure wasn't justified then, when could it be 12 justifiable? And it was really only a piece of luck 13 that, in that particular case, the healed, or healing 14 fracture, was discovered. 15 It was Dr. Pollanen who reviewed the case 16 and actually was able to look at the skull which was in - 17 - in his office, and could observe the healing fracture 18 which he simply referred to in his report as a healing 19 fracture. He did not highlight it as such, other than 20 just simply pointing out that there was a healing 21 fracture. It was, in fact, Mr. Lomer who was then 22 representing one (1) of the appellants who spotted the 23 word "healing" and realized its significance. 24 If, for example, in the Trotta case 25 disclosure had been ordered at the appellate level, it
121 may well be that the revelations arising out of Joshua's 2 case would have been a great assistance to counsel for 3 the Trottas at that time, because Joshua's case revealed 4 an example of Dr. Smith claiming that the skull fracture 5 existed when it did not; that would surely have brought 6 more attention to the skull fracture claims in the Trotta 7 case. 8 And the feeble and unsuccessful attempts 9 provided by Mr. -- by Dr. Smith in his evidence to excuse 10 his really quite disgraceful conduct at a murder trial -- 11 and it's contained particularly in paragraph 767 to 772 12 of Dr. Smith's counsel's submissions -- should simply not 13 be not be accepted by you, Mr. Commissioner, in my 14 submission. 15 May I just refer you briefly -- and I'm 16 sorry to provide you with two (2) books. I always seem 17 to make it two (2), I never seem to be able to rest at 18 one (1). 19 But if you look at Tab 2 of the -- sorry, 20 it's Tab 4 of the supplementary book, we have an extract 21 from Dr. Avis' testimony heard or -- or present -- or -- 22 or given in preparation for the appeal in the Supreme 23 Court of Canada where he says at page 22, his answer at 24 line 12: 25 "To examine Paolo's skull to see the
131 fracture and to opine that that 2 fracture is from minutes to, at most, 3 two (2) days old simply boggles my 4 mind. I cannot see how anyone, 5 particularly anyone with the status 6 that Dr. Smith enjoyed at that time, 7 could possibly reach that conclusion; 8 it escapes me. 9 I think if a panel of lay people were 10 given that skull they would find it 11 just as difficult for me -- to 12 understand how that conclusion was 13 reached. 14 Q: So you don't even need to be a 15 pathologist to see the fracture is 16 healed? 17 A: As I say, the day I came up here to 18 examine the skull I was very concerned 19 when I left the Coroner's Office. Even 20 though I examined the skull inside, 21 outside, upside, backside, I came out 22 of that office thinking I must have 23 missed something. I can't possibly 24 believe that anyone with any knowledge 25 of pediatrics, pediatric autopsies, or
141 pathology of medicine could reach the 2 conclusion that that was a fracture 3 that, at most, was two (2) days and 4 probably only two (2) to three (3) 5 minutes or two (2) to ten (10) minutes. 6 I still to this day stand in wonder." 7 In somewhat less expressive language Dr. 8 Pollanen wasn't so different at the next tab. He 9 referred -- and I'm looking at page 181, line 24 -- as to 10 the fact that the fracture was healed as being "readily 11 apparent;" his words. 12 "And when you say it was readily 13 apparent, would it have been as readily 14 apparent at the time of exhumation as 15 it was at the time you came to look at 16 it sometime after? Yes. 17 So things wouldn't have changed 18 [answer] in the meantime? 19 A: No." 20 And in my submission, in those two (2) 21 extracts from the evidence in that case, a great deal can 22 be learned about Dr. Smith and Dr. Smith's motives. And 23 it brings us back to how -- and something that you, Mr. 24 Commissioner, obviously have to grapple with -- how was 25 it that he was able to go on, and on, and on for year,
151 after year, after year, creating potential miscarriages 2 of justice one (1) after the other, after the other? 3 And that brings me to -- to my second 4 issue, correcting past miscarriages of justice, because 5 both roles, the prevention of future miscarriages and 6 correction of past miscarriages, in my submission are as 7 important as each other. 8 An unusual, if not unique, feature of this 9 Inquiry is that it hasn't examined what some might claim, 10 in the case of a wrongful conviction, to be an isolated 11 wrongful conviction, but it started out with an already 12 known institutional and systemic problem of a large 13 number of potential miscarriages of justice. 14 And we should now then look at them not 15 only for what they reveal, but also as to how they should 16 now be addressed, but not only the ones that have ide -- 17 been identified how they should be addressed, but also 18 the ones that have not yet been identified, how they 19 should be identified, and once identified how they should 20 be addressed. 21 To deal, first of all, with the ones -- 22 the preexisting ones, of the nine (9), now the eight (8), 23 the systemic problem that arose out of -- and still 24 arises out of these cases was how to carry them through, 25 and how was the Attorney General's Office going to deal
161 with them? 2 All too often an allegation of wrongful 3 conviction will lead to a multiplication of Crowns, an 4 increase in expenditures by their office, and a 5 proliferation of procedural motions by the Crown. 6 As it was at this inquiry, a last minute 7 concession was made by the Attorney General's Office. 8 One wonders why it had to be so last minute, but it's 9 nonetheless welcome for that. Until then it was, to all 10 appearances, business as usual in the Attorney General's 11 Office, and from my understanding a great deal of credit 12 goes to Commission counsel for the ultimate position 13 that's been taken by the Attorney General on these cases. 14 I might say the position that was 15 presented to you, Mr. Commissioner, on -- was it the 16 second to last day of the Inquiry, I think it was, about 17 -- of the evidence, that is. 18 COMMISSIONER STEPHEN GOUDGE: The 19 roundtable? 20 MR. JAMES LOCKYER: Yes, the roundtable. 21 COMMISSIONER STEPHEN GOUDGE: Yes. 22 MR. JAMES LOCKYER: I might say there's 23 been follow-up on that position, and the follow-up is -- 24 can I say, bodes well for the future and carries -- and 25 is in accord with what was said at that roundtable.
171 So the systemic problem that you can 2 address, Mr. Commissioner, arising out of those cases, is 3 how the Attorney General's Off -- Office should respond 4 to cases such as this. They should not respond through 5 multiplication of Crown's, increases in expenditure, and 6 proliferation of procedural motions; that is not, in my 7 submission, an appropriate response to cases of this 8 nature. 9 But a further issue for you as well, in 10 terms of correcting past miscarriages of justice, is how 11 to identify miscarriages of justice that have not yet 12 been captured. It should come as no surprise, and I'm 13 sure it doesn't to you or to anyone now, that wrongful 14 convictions do not come as isolated cases of wrongful 15 conviction. They -- they really are, really, quite easy 16 to identify if one simply looks at the underlying causes 17 of wrongful convictions. 18 Erroneous identification. In other words, 19 an identification case such as Sophonow -- Thomas 20 Sophonow's case, is an easy to spot a wrongful 21 conviction. 22 A case in which a jailhouse informant was 23 used. Cases like Guy Paul Morin, Thomas Sophonow's, 24 Randy Druken's. 25 Bad science, particularly including
181 pathology, we now know is a regular cause of wrongful 2 convictions. Just to name a few of the better known ones 3 Guy Paul Morin's case involved bad science. Ronald 4 Dalton's case in Newfoundland, one (1) of the three (3) 5 cases examined by Chief Justice Lemare, was a case of bad 6 pathology. Clayton Johnson's case in Nova Scotia, the 7 same. Jim Driskell's case, subject of an inquiry in 8 Manitoba was a case of bad science in the form of hair 9 microscopy. And of course, at this Inquiry we now have 10 our own Bill Mullins-Johnson's case. 11 If I can refer you, Mr. Commissioner, to 12 the case of Judith Ward; it's at Tab 1 of the original 13 book that I filed. And you will see some of the 14 extraordinary similarities with some very useful 15 commentary by Lord Justice Glidewell in that case; the 16 case of a lady who spent more than fifteen (15) years in 17 jail for some twelve (12) or thirteen (13) murders that 18 she did not commit. 19 At page 68 in a quote that was used by 20 Commissioner Kaufman at the Morin inquiry, and in my 21 submission, always bears repetition, Justice Glidewell 22 said -- and I'm looking about ten (10) lines down: 23 "For the future, it is important to 24 consider why scientists acted as they 25 did."
191 And I might say the errors in this case 2 and -- and really the Court found them to be intentional 3 errors; in other words, the misfeasance in this case 4 related to test results for explosives. 5 "For the future it's important to 6 consider why scientists acted as they 7 did. For lawyers, jurors, and judges a 8 forensic scientist conjures up the 9 image of a man in a white coat working 10 in a laboratory approaching his task 11 with cold neutrality and dedicated only 12 to the pursuit of scientific truth. It 13 is a sombre thought that the reality is 14 sometimes different. Forensic 15 scientists may become partisan. The 16 very fact that the police seek their 17 assistance may create a relationship 18 between the police and forensic 19 scientists, and the adversarial 20 character of the proceedings tend to 21 promote this process. Forensic 22 scientists employed by the Government 23 may come to see their function as 24 helping the police; they may lose their 25 objectivity and that is what must have
201 happened in this case." 2 Those words could, as well, apply to the 3 situation that you've been listening to for the past 4 several months, as they did in Judith Ward's case. 5 Move down to the bottom of the page, if 6 you would, second to last paragraph, and you hear some 7 evidence that was given before the Court of Appeal, 8 eerily similar to some of the evidence that you've heard 9 in this case. 10 "At a conference after the trial of the 11 McGuire's in 1976, which was attended 12 by a large number of forensic 13 scientists, Mr. Higgs..." 14 Who was one of the Crown's forensic 15 experts in Judith Wards case: 16 "...gave the following explanation. 17 Quote: 'What did..." 18 And remember he's talking here to a 19 conference: 20 "'What did worry us, however, was that 21 we were not able to satisfactorily 22 distinguish between nitroglycerine, and 23 PETN [which is a -- another form of 24 explosive substance] 25 using toluene as eluent. However, this
211 point never really cropped up during 2 the trial. We, meaning us government 3 scientists, we're all very careful 4 about what not to say in this respect. 5 I know this is not entirely a 6 satisfactory scientific viewpoint, but 7 we took the view that for a given 8 amount of explosive, we could cons -- 9 we could distinguish PETN by the slower 10 rate of colour development.'" 11 Justice Glidewell said: 12 "PETN..." 13 And commenting on this: 14 "PETN is another explosive substance. 15 The validity of Mr. Higgs' comments on 16 possible confusion between the two (2) 17 explosives does not matter. What does 18 matter is the revelation that there was 19 an understanding among the senior 20 government forensic scientists that 21 nothing would be said about their 22 doubts at the trial. It is this 23 attitude which, for example, led Mr. 24 Higgs at the trial to explain the 25 results of a testing of the caravan
221 samples in terms which amounted, at 2 least, to suppressio veri, and probably 3 to suggestio falsi. It also led Mr. 4 Higgs, Mr. Elliott, Mr. Berryman, to 5 conceal the positive firing cell test 6 results. The disinclination by the 7 Government forensic scientists to 8 assist the defence was also a feature 9 of the Maguire case, and in the present 10 case, Mr. Higgs, Mr. Elliott, and Mr. 11 Berryman, had plainly succumbed to the 12 dangers of partisanship. They misled 13 the prosecution and the defence, in 14 order to promote a cause which they had 15 made their own; namely, that Ms. Ward 16 had been in contact with 17 nitroglycerine." 18 And in my submission, it's r -- an eerie 19 echo of some of the evidence that you've heard in this 20 case, although one wonders, when you read those 21 statements of -- of Justice Glidewell, if he isn't even, 22 in what he says somewhat downplaying the misfeasance and 23 malfeasance engaged in both in that case, and also, by 24 analogy, in the cases that are before you. 25 In terms of how to find these past
231 miscarriages of justice, I can't help but note that the 2 province of Ontario said in their written submissions at 3 paragraph 70, and I understand repeated it yesterday, 4 quote: 5 "That there is no systemic -- systemic 6 evidentiary justification for a wide 7 ranging review of past cases." 8 What a sad position, with respect, for the 9 province to have taken. What an unfortunate, regrettable 10 position for the province to have taken. Instead of 11 walking up to the plate, they take a position like that. 12 "There is no systemic evidentiary 13 justification." 14 Perhaps they didn't hear Dr. Milroy, 15 perhaps they didn't hear Dr. Butt, perhaps they didn't 16 hear Dr. Crane, perhaps they didn't hear Dr. Pollanen, 17 just to name a few of the witnesses before you, who said 18 there was just that. 19 And it is in fact this Inquiry -- in my 20 submission, an opportunity for you, Mr. Commissioner, to 21 discover past miscarriages of justice that surely exist 22 in pediatric forensic pathology cases. And it's an 23 opportunity that must not be lost because if it's not 24 taken now, then when will it be? It is, in fact, an 25 opportunity that if lost here, will never be regained.
241 In our submissions to you, along with 2 AIDWYC, our joint submissions, we've addressed a series 3 of proposed reviews that we urge you to recommend in your 4 ultimate report: 5 What cases should be reviewed at the broad 6 level, first of all. We've urged you to review, first of 7 all, all the remaining cases of Dr. Smith; I think there 8 is little argument about that. It's already agreed that 9 that should be done, and in a sense, it's in process. 10 And secondly, -- 11 COMMISSIONER STEPHEN GOUDGE: Are you 12 asking on that score for me to do anything more than 13 endorse the existing process? 14 MR. JAMES LOCKYER: No, I think the 15 existing process is -- is well in place and an 16 endorsement of it would certainly do no harm; as a matter 17 of fact, it would -- it would undoubtedly help. 18 But in my -- but in our submission, you 19 should go beyond this. You should also review, as has 20 been suggested by many of the pathologists who testified 21 before you, you should also -- you can't direct a review, 22 but you should certainly recommend a review of all cases 23 -- all pediatric cases, and I'm going to define them in a 24 -- in a more limited matter in a moment, but just for the 25 moment, at the broadest level, all cases which involved
251 allegations of a Shaken Baby Syndrome and/or head injury. 2 Next, we urge you to take it one (1) 3 significant step further which would, in a sense, subsume 4 that category that I've just outlined and, that is, a 5 review of all pediatric forensic pathology cases. 6 It is, in my submission, a compelling 7 submission that a combination of, firstly, the position 8 of Dr. Smith in the business as the icon. 9 Secondly, the complete lack of supervision 10 of Dr. Smith by Doctors Young, Cairns, and really Dr. 11 Chiasson too. 12 That thirdly, the existence of the "think 13 dirty" regime. 14 And fourthly, the lack of peer review of 15 any of the individual cases means that we must, surely, 16 be concerned about each and every case involving 17 pediatric forensic pathology that has taken place in this 18 province. 19 Most of all, though, because everyone who 20 did this work clearly saw Dr. Smith as the icon. If they 21 didn't consult him directly, they consulted him 22 inferentially; whether at a conference, through reading 23 his writings, through reading his SIDS protocol. But 24 probably more often than not, through direct consultation 25 whether by telephone, or in person, or through meetings.
261 And the other area that we submit you 2 should recommend a full review is, and it really arose by 3 happenstance in the evidence, and if you consider it a 4 part of your mandate, and I hope you do, that there be a 5 review of all cases in Eastern Ontario, all cases 6 involving suspicious deaths, not just pediatric forensic 7 pathology cases but pathology cases. 8 Now what limitations -- 9 COMMISSIONER STEPHEN GOUDGE: Does that - 10 - does that focus on Dr. Johnson, or -- 11 MR. JAMES LOCKYER: Yes, yes, it does. 12 COMMISSIONER STEPHEN GOUDGE: He didn't 13 do any pediatric cases to speak of. 14 MR. JAMES LOCKYER: No, I know. Well I 15 don't know if he didn't do any, but he -- if he did -- 16 COMMISSIONER STEPHEN GOUDGE: How do I 17 get that within my mandate, Mr. Lockyer? 18 MR. JAMES LOCKYER: You have a way with 19 words, Mr. Commissioner, I'm sure. It certainly -- I 20 mean, having heard of potential miscarriages of justice 21 during your evidence -- I mean, you heard the evidence. 22 Certainly no one objected to you hearing 23 the evidence in the first place. It seems to me that it 24 would be remiss if you didn't, at the very least, comment 25 on what you've heard, and suggest that something needs to
271 be done about it. 2 But I would urge you to be more specific 3 in that regard, and -- and urge a review of the Eastern 4 Ontario cases, or at least urge the Chief Coroner's 5 Office, or whatever we end up with in terms of who's in 6 charge, and that's not clear, depending on your 7 recommendations, that they consider conducting an 8 investigation of all those cases. 9 Now having suggested these reviews, which 10 I acknowledge will be -- will consume the energies of -- 11 of a lot of people, and potentially costs -- cost 12 something, of course, I then take you through the kinds 13 of limitations that you can impose on the reviews that 14 may keep them more narrow rather than more broad; not 15 that I'm looking to narrow as such. 16 First of all, there should be a time 17 limitation on the period that we go back, and my 18 submission is that that time period should be one of 19 twenty (20) years. I say twenty (20) years because 20 really Dr. Smith is now five (5) years out of action; if 21 you add the five (5) to the twenty (20) you've got the 22 minimum parole eligibility for first degree murder. 23 There is a certain -- you -- you can see 24 there a reason then for taking it back twenty (20) years 25 because that will hopefully capture any potential first
281 degree murder conviction, at least imposed in that period 2 of time. 3 Secondly, in terms of limitations the 4 review need only be, in our submission, although others 5 may not agree with this, and I understand if they don't, 6 but should only be -- or could only, perhaps I should say 7 -- in cases in which convictions were entered. 8 COMMISSIONER STEPHEN GOUDGE: Yes, I 9 understand the thrust of all your proposals about review 10 to be -- to identify cases in which there are possible 11 wrongful convictions -- 12 MR. JAMES LOCKYER: Absolutely. 13 COMMISSIONER STEPHEN GOUDGE: -- based on 14 the pathology. 15 MR. JAMES LOCKYER: Absolutely. 16 COMMISSIONER STEPHEN GOUDGE: That's a 17 sort of different purpose from the one that the Chief 18 Coroner's Office undertook with its review, which was to 19 restore public confidence, at least as it was articulated 20 by Dr. McLellan. 21 MR. JAMES LOCKYER: Well, certainly I -- 22 I think to uncover any potential past wrongful 23 convictions is a part of restoring -- 24 COMMISSIONER STEPHEN GOUDGE: Right. 25 MR. JAMES LOCKYER: -- public --
291 COMMISSIONER STEPHEN GOUDGE: But I mean 2 it is obvious they reviewed cases where there weren't 3 convictions. 4 MR. JAMES LOCKYER: Yes, they did. I'm 5 sorry, yes indeed -- indeed. You mean the subcommittee? 6 Of course -- 7 COMMISSIONER STEPHEN GOUDGE: Yes. Yes, 8 I mean -- 9 MR. JAMES LOCKYER: Of course -- 10 COMMISSIONER STEPHEN GOUDGE: -- the 11 forty (40) cases included a lot of cases where there 12 weren't convictions. 13 MR. JAMES LOCKYER: Indeed. Indeed. 14 COMMISSIONER STEPHEN GOUDGE: But you are 15 suggesting one that's focussed on conviction. 16 MR. JAMES LOCKYER: I am. 17 COMMISSIONER STEPHEN GOUDGE: Okay. 18 MR. JAMES LOCKYER: But I would also -- 19 and here I would take you beyond the mandate of the Hair 20 Microscopy Review Committee in Manitoba, urge you to 21 include convictions regardless of whether or not they 22 resulted from a guilty plea or a trial -- 23 COMMISSIONER STEPHEN GOUDGE: Right. 24 MR. JAMES LOCKYER: -- and that's for 25 obvious reasons. Seven (7) of the nine (9) people I'm
301 here for -- 2 COMMISSIONER STEPHEN GOUDGE: Right. 3 MR. JAMES LOCKYER: -- pleaded guilty. 4 COMMISSIONER STEPHEN GOUDGE: Right. And 5 do you buy into the Manitoba constraints of still in 6 custody and with the consent of the individual? 7 MR. JAMES LOCKYER: Absolutely -- no, 8 neither. With the consent of the individual, no reason 9 for that as such, and with -- I mean their -- their 10 privacy would no doubt be respected. 11 COMMISSIONER STEPHEN GOUDGE: Right. 12 MR. JAMES LOCKYER: And indeed the 13 privacy of -- of my clients has been well -- completely 14 well respected throughout this Inquiry and I thank -- 15 COMMISSIONER STEPHEN GOUDGE: Right. 16 MR. JAMES LOCKYER: -- both you and the 17 media for that, I might say. 18 COMMISSIONER STEPHEN GOUDGE: Okay. 19 MR. JAMES LOCKYER: But -- I'm sorry and 20 the other was whether they're still in custody, certainly 21 not; that -- 22 COMMISSIONER STEPHEN GOUDGE: Okay. 23 MR. JAMES LOCKYER: -- to -- to have this 24 kind of -- of burden around your neck, if I may just for 25 a moment just give you little story. When Mr. XXXX --
311 sorry. 2 COMMISSIONER STEPHEN GOUDGE: Guarov's 3 father. 4 MR. JAMES LOCKYER: When Gaurov's father 5 was first contacted and asked if he had any interest in 6 reopening the case, and it was suggested to him that 7 perhaps this was so long ago that he really didn't want 8 to ever have to think about it anymore his immediate 9 response was, I think about it every day. And of course 10 he does because of the nature of the conviction. 11 This isn't a theft conviction or a robbery 12 conviction, something that -- that obviously is morally 13 wrong, but it doesn't carry the same kind of -- of moral 14 consequences that being found responsible for the death 15 of your own child carries. 16 Would it work? One (1) of the issues that 17 has been raised frequently in these kinds of -- when 18 these kinds of requests are made is, well why don't we 19 just advertise and anyone who believes that they've been 20 aggrieved could come forward and -- and then we could 21 just review that particular case. 22 And my answer to that is that that simply 23 is not a reasonable way to proceed. Mr. MacGregor on 24 that roundtable commented on it a couple times, how 25 advertising simply doesn't work. It didn't work in the
321 Manitoba hair experience. The two (2) cases that were 2 uncovered by the -- the Hair Commission, neither of the 3 individuals had come forward despite advertising in 4 advance of the creation of the group to examine the 5 cases. 6 Come back to Gaurov's father; take 7 Gaurov's father for a moment. Imagine an advertisement 8 going out in the Globe & Mail and the Toronto Star 9 perhaps, for Gaurav's father, would it have caught him, 10 of course not. 11 First of all, Dr. Smith wouldn't have 12 meant anything to him. There was no evidence called in 13 his case, not even a preliminary hearing. 14 Secondly, does he read the English 15 newspapers? Of course not; that's not his natural 16 language. He wouldn't understand them very well to read 17 them. 18 And thirdly, even if those two (2) 19 particular hurdles were surmounted, and he realized that 20 here was an advertisement addressed to him, would he feel 21 that there was any purpose in coming forward with no real 22 reason to believe that anything would result from him 23 coming forward; the exposing himself once again to the 24 shame in the hope that someone might do something about 25 it? One suspects strongly he would have done nothing.
331 On the other hand, when presented with a 2 position that determinations have already been made that 3 the conclusions drawn in your case were likely wrong is a 4 very different matter altogether. 5 Who should be in charge of setting up a 6 review process? 7 COMMISSIONER STEPHEN GOUDGE: Well, can I 8 just you a couple more questions -- 9 MR. JAMES LOCKYER: Of course. 10 COMMISSIONER STEPHEN GOUDGE: -- about 11 your proposed universe of cases, if I can put it that 12 way? You have said cases where there was a shaken baby 13 diagnosis or a head injury diagnosis, cases from that, 14 the subset of that, where there were convictions, are 15 there further subsets that you could postulate; for 16 example, cases where there was no other evidence to 17 support the Shaken Baby Syndrome diagnosis, and that's 18 simply a parroting of what the Goldsmith Review used 19 before it referred -- 20 MR. JAMES LOCKYER: It is. 21 COMMISSIONER STEPHEN GOUDGE: -- cases to 22 the CCRC? 23 MR. JAMES LOCKYER: If I could take you 24 back to something I said earlier on this morning. Six 25 (6) of the -- of the -- of my nine (9) cases plus Paolo's
341 case and plus several of Mr. Wardle's cases as well 2 involved purely nonspecific findings -- or not 3 necessarily purely, but largely or purely nonspecific 4 findings resulting in the diagnosis of cause of death 5 being homicidal. 6 It would be impossible to identify those 7 cases without looking at all the cases because there 8 wouldn't be no marker for those cases. You would 9 literally have to look at all the cases to find them -- 10 COMMISSIONER STEPHEN GOUDGE: Well, I 11 suppose what Goldsmith did, I don't know this in detail, 12 was to say let us look at all the SBS cases, let's take 13 the number that has been used here that I think Dr. 14 Pollanen gave us -- 15 MR. JAMES LOCKYER: Mm-hm. 16 COMMISSIONER STEPHEN GOUDGE: -- of a 17 hundred and forty-two (142). Within that there's a 18 subset that we don't know of how many those resulted in 19 convictions. If you took that subset and examined the 20 cases to see as Goldsmith I assume did with its universe 21 of cases, which of those in the subset had evidence to 22 support the shaken baby diagnosis in addition to the 23 diagnosis itself, and excluded those you would have a 24 further screen. 25 I mean, what I am getting at, Mr. Lockyer,
351 is how closely parallel to the Goldsmith process do you 2 see the process you are inviting me to recommend? 3 MR. JAMES LOCKYER: Well, I'm certainly 4 asking you to go beyond the Goldsmith process in terms of 5 cases to review -- 6 COMMISSIONER STEPHEN GOUDGE: Right. 7 MR. JAMES LOCKYER: -- because they don't 8 seem to have had the same problems as -- as we obviously 9 have in -- in our jurisdiction. Our -- our problems seem 10 to go beyond the problems that they had. 11 But certainly, my submission would be that 12 you setup -- that a model be recommended, very similar to 13 the model that examined the forty-five (45)cases of -- of 14 Dr. Smith's that have already been looked at. In other 15 words, that it be a model where perhaps the Forensic 16 Services Advisory Committee of the Chief Coroner's 17 Office, at least as it presently exists, again take up 18 the mantle and assign a -- a subcommittee, small in 19 number; four (4) or five (5) always seems to me to be the 20 optimal kind of number -- 21 COMMISSIONER STEPHEN GOUDGE: Mm-hm. 22 MR. JAMES LOCKYER: -- to review the 23 cases and to perhaps play a somewhat larger role than the 24 -- the subcommittee that looked to the forty-five (45) 25 cases did, in terms of screening out cases. Certainly,
361 some of the cases -- and I had the privilege of being 2 there, so I can -- I can talk with a little bit of 3 knowledge in this regard -- 4 COMMISSIONER STEPHEN GOUDGE: Well, we 5 have heard a lot about it -- 6 MR. JAMES LOCKYER: Right. 7 COMMISSIONER STEPHEN GOUDGE: -- about 8 how it worked. 9 MR. JAMES LOCKYER: Yeah. Certainly, 10 some of the cases that were put in for outside review, I 11 think we on the subcommittee could see were almost 12 surely, if not surely, still cases of homicide. 13 COMMISSIONER STEPHEN GOUDGE: Yes. 14 MR. JAMES LOCKYER: But we felt they 15 should be sent out anyway so that we were -- so that -- 16 that it was really a complete and thorough review. Even 17 then, ten (10) of the cases we felt it was unnecessary 18 to send out for review because -- 19 COMMISSIONER STEPHEN GOUDGE: Right. 20 MR. JAMES LOCKYER: -- the cause of death 21 was so obvious -- 22 COMMISSIONER STEPHEN GOUDGE: Right. 23 MR. JAMES LOCKYER: -- and -- and simply 24 didn't require outside review. I think a subcommittee 25 this time around --
371 COMMISSIONER STEPHEN GOUDGE: Operating 2 with some sort of screen that would be in addition to 3 SBS -- 4 MR. JAMES LOCKYER: Yes. 5 COMMISSIONER STEPHEN GOUDGE: -- head 6 injury conviction? 7 MR. JAMES LOCKYER: Yes. It could be a 8 screen that includes a screening notion of -- to only 9 assign out cases in which the sub-committee feels that 10 there's a reasonable possibility that there was a 11 miscarriage of justice. That may be a way of doing it. 12 COMMISSIONER STEPHEN GOUDGE: Okay. Now 13 in terms of what the subcommittee, or the reviewing 14 committee, or the screening body would ask any outside 15 review to do, it would be what, to determine whether the 16 pathology was unreasonable? 17 MR. JAMES LOCKYER: Well no, the 18 subcommittee itself wouldn't have the necessary expertise 19 to do that -- 20 COMMISSIONER STEPHEN GOUDGE: No, they 21 would sent it out to -- I take your proposal as I read 22 it, to be send it out to outside pathologists, much as 23 was done -- 24 MR. JAMES LOCKYER: Exactly. 25 COMMISSIONER STEPHEN GOUDGE: -- with the
381 OCCO review. 2 MR. JAMES LOCKYER: Indeed. 3 COMMISSIONER STEPHEN GOUDGE: And request 4 of the outside pathology reviewers, to determine whether 5 the pathology was fill in the blank, unreasonable? 6 MR. JAMES LOCKYER: Yes. Yes, I think 7 so. 8 COMMISSIONER STEPHEN GOUDGE: Okay. 9 MR. JAMES LOCKYER: I think so. And then 10 at that point the -- 11 COMMISSIONER STEPHEN GOUDGE: Now that's 12 with the acknowledgement that there is a range of 13 reasonable opinions about shaken baby? It's not quite as 14 clear as some of the diagnostic issues that -- 15 MR. JAMES LOCKYER: Well one -- 16 COMMISSIONER STEPHEN GOUDGE: -- have 17 risen in other cases? 18 MR. JAMES LOCKYER: But one would expect 19 the external reviewer, whatever his or her -- wherever he 20 or she fits on that -- that sort of a scale, to comment 21 on -- on the fact that another pathologist may well 22 differ with this conclusion. And I think Dr. Whitwell, 23 for example, did that in -- 24 COMMISSIONER STEPHEN GOUDGE: Right. 25 MR. JAMES LOCKYER: -- in the shaken baby
391 cases, and that she -- 2 COMMISSIONER STEPHEN GOUDGE: Okay. 3 MR. JAMES LOCKYER: -- expressly did that 4 in her -- in her original opinions. 5 COMMISSIONER STEPHEN GOUDGE: Okay. 6 MR. JAMES LOCKYER: And -- and if you -- 7 the majority of the work in those circumstances would 8 involve pulling the cases together, and that would be a 9 significant task for the pathology people. I presume 10 they would have to do it, or their assistants. I know 11 they had a member of the OPP assist them in doing this 12 for the forty-five (45) cases and the discovery of the 13 forty-five (45) cases. 14 So one (1) or two (2) people would have to 15 be assigned to that task -- 16 COMMISSIONER STEPHEN GOUDGE: I think you 17 acknowledge it's a resource rich exercise? 18 MR. JAMES LOCKYER: It is, but it's not 19 that resource -- it's not that resource rich. It's -- 20 COMMISSIONER STEPHEN GOUDGE: Do you 21 contemplate transcripts here as you did with the OCCO -- 22 MR. JAMES LOCKYER: Well, that could well 23 be a later stage. The case could get before the 24 subcommittee at an early stage, and the subcommittee 25 could make preliminary determinations. And I think if
401 you took the forty-five (45) cases of Dr. Smith that have 2 already been reviewed, the likelihood is that at the end 3 of that process, perhaps fourteen (14) would ultimately 4 have gone to an external reviewer. 5 First we eliminate all the ones where 6 there were not convictions, which takes at least, I 7 think, about fifteen (15) of them straight out of the 8 mix -- 9 COMMISSIONER STEPHEN GOUDGE: Yes, I 10 don't know how many of the cases where the pathology was 11 right were not convictions. The ratio I use is nine (9) 12 out of twenty (20). 13 MR. JAMES LOCKYER: Yes, I can't 14 remember. I can't -- 15 COMMISSIONER STEPHEN GOUDGE: Nine (9) 16 convictions out of twenty (20) cases where the pathology 17 was wrong. 18 MR. JAMES LOCKYER: Yes. 19 COMMISSIONER STEPHEN GOUDGE: If you take 20 the universe of cases where the pathology was questioned, 21 you have nine (9) out of twenty (20). 22 MR. JAMES LOCKYER: Well, I think you 23 have to put Paolo's case in as well, which would make you 24 ten (10). 25 COMMISSIONER STEPHEN GOUDGE: Okay. So--
411 MR. JAMES LOCKYER: And possibly the -- 2 one (1) or two (2) others -- 3 COMMISSIONER STEPHEN GOUDGE: It's hard 4 to tell. Nobody knows how -- 5 MR. JAMES LOCKYER: Yes. 6 COMMISSIONER STEPHEN GOUDGE: -- how much 7 you'd reduce the universe by going down from the universe 8 to the subset that constitutes conviction. 9 MR. JAMES LOCKYER: So it means -- I 10 recall of the twenty (20), seven (7) didn't result in 11 conviction, so they're straight out. 12 COMMISSIONER STEPHEN GOUDGE: Right. 13 MR. JAMES LOCKYER: One (1) of them -- at 14 least one (1) of the others, if not two (2) of them, 15 would be out as well, so that reduces it to eleven (11). 16 But I can see it still being around eleven (11) -- 17 COMMISSIONER STEPHEN GOUDGE: Okay. 18 MR. JAMES LOCKYER: -- but that -- 19 COMMISSIONER STEPHEN GOUDGE: Well, 20 that -- 21 MR. JAMES LOCKYER: It's much -- 22 COMMISSIONER STEPHEN GOUDGE: It's 23 impossible to tell it. 24 MR. JAMES LOCKYER: It's much smaller 25 numbers, I think that's the point.
421 COMMISSIONER STEPHEN GOUDGE: Okay. 2 MR. JAMES LOCKYER: And -- and so it's a 3 little deceptive to -- it's a little deceiving to look at 4 the number on the forty-five (45) review -- case review 5 in determining the numbers that would actually ultimately 6 have to be reviewed by an external -- external 7 pathologist. 8 Really the -- the bulk of the work would 9 be done presumably a volunteer subcommittee; that's where 10 most of the work would be done. And you know, I don't 11 think there would be any trouble finding volunteers for 12 that committee that could be chosen by the Forensic 13 Services Advisory Committee. 14 And who should be in charge of setting up 15 the review process? In my submission, it should be the 16 Attorney General's Office. It -- frankly, as of today, I 17 would be very comfortable with it being the Chief 18 Coroner's Office, because I have great confidence in the 19 Chief Coroner's Office at the moment. 20 But from a public perspective, I don't 21 think it should be -- 22 COMMISSIONER STEPHEN GOUDGE: They've 23 made it pretty clear they don't have the resources to do 24 it. 25 MR. JAMES LOCKYER: Yes. And in my
431 submission, as well, it should also be made clear that 2 these -- that any such reviews that are held, ultimately 3 their results must be reported to the public, and that a 4 combination -- and I don't mean name by name of course, I 5 mean, somewhat like the results were reported by the 6 Chief Coroner of the review of Dr. Smith's forty-five 7 (45) cases. 8 And then, and only then, can you really 9 satisfactorily fulfill an im -- the mo -- perhaps the 10 most important part of your mandate, which is to restore 11 public confidence in pediatric pathology, and the 12 administration of criminal justice in Ontario as well. 13 The only other thing I wanted to talk 14 about, Mr. Commissioner, and I managed to reduce it to 15 three (3) minutes; unfortunately I didn't mean to. 16 COMMISSIONER STEPHEN GOUDGE: I have been 17 watching Mr. Sokolov as he -- 18 MR. JAMES LOCKYER: Yes, he's getting 19 anxious. I wanted to -- I'll be a couple of minutes. I 20 just wanted to ask you, Mr. Commissioner, to review once 21 again, as it was reviewed by Commissioner Kaufman at the 22 Morin Inquiry, the four (4) criteria that came out of the 23 Palmer case for the admission of fresh evidence. 24 It's my submission that they are too 25 onerous, particularly the due diligence test and the --
441 the evidence must be expected to have effected the result 2 test -- test 1 and 4 -- 3 COMMISSIONER STEPHEN GOUDGE: Right. 4 MR. JAMES LOCKYER: -- if I can talk in 5 criminal -- 6 COMMISSIONER STEPHEN GOUDGE: We'll talk 7 our lingo -- 8 MR. JAMES LOCKYER: Yes. 9 COMMISSIONER STEPHEN GOUDGE: -- that 10 takes me back to my day job. 11 MR. JAMES LOCKYER: Criminal lawyer 12 lingo; it takes you back to where you used to be. 13 And as well, of course, I've provided for 14 you the decision of the Ontario Court of Appeal in Smith, 15 and particularly refer you to paragraphs 90 and 91, which 16 add a further requirement to limb 4 of the Palmer test, 17 as yet another precondition to be satisfied in a case 18 which ironically involved pediatric forensic pathology. 19 I've provided you with the decision of the 20 House of Lords in Pendleton where you'll see the test is 21 significantly less to -- to the -- the barrier to be 22 surmounted is significantly less in fresh evidence cases 23 in the UK. 24 And you, Mr. Commissioner, have become 25 well acquainted with the state of Wisconsin in Edmond's
451 case, and I would ask you to consider and indeed comment 2 on whether our test is well designed for the development 3 -- well designed to confront circumstances in which 4 scientific control -- controversy is developed after a 5 conviction; in essence, when black and white becomes 6 grey. 7 The recommendations of Commissioner 8 Kaufman were helpful. They were followed insofar as the 9 fresh evidence tests were concerned, particularly in the 10 Nova Scotia Court -- Court of appeal case of Hache, which 11 I have provided you with. They were specifically 12 referred to and specifically followed and led to a 13 specific modification by that Court of limb 4 of the 14 Palmer test. 15 So in my submission you should address the 16 Palmer test, both in the Wisconsin and Edmond's context, 17 and also in the context of this -- of -- of the Court of 18 Appeal's decision in Smith. 19 In conclusion, Mr. Commissioner, in -- in 20 the last few days I've spoken to the majority of the nine 21 (9) that I'm here to represent, and if I may on their 22 behalf thank you for this Inquiry and the way you've 23 conducted it. They're absolutely delighted with the way 24 it's conducted. And if I may thank you myself as well, 25 thank you.
461 COMMISSIONER STEPHEN GOUDGE: Thank you, 2 Mr. Lockyer. 3 Mr. Sokolov...? 4 5 SUBMISSIONS BY MR. LOUIS SOKOLOV: 6 MR. LOUIS SOKOLOV: Mr. Commissioner, on 7 behalf of AIDWYC I want to thank you as well for the 8 opportunity to participate in this important Inquiry and 9 for the thorough and fair manner in which you and your 10 counsel conducted it. 11 I won't obviously address all of the 12 material that's in our brief in the time remaining today. 13 I will leave you with the brief which I know you have 14 reviewed and will review, but there is one (1) particular 15 area that I would like to -- to raise with you this 16 morning, because -- as it's an area of some controversy. 17 AIDWYC's focus here is on matters tied to 18 its mandate, and that's discovering and correcting 19 individual cases of miscarriage of justice and preventing 20 future miscarriages of justice. And many of our 21 recommendations are aimed more broadly at the criminal 22 justice system of what -- which the pediatric forensic 23 pathology system plays an important part. 24 And we acknowledge that this Inquiry must 25 be focussed and has been focussed on pediatric forensic
471 pathology, but we submit that you cannot fulfill your 2 mandate, or that key part of your mandate, restoring the 3 public confidence in the pediatric forensic pathology 4 system, without addressing some of the larger issues 5 within the criminal justice system, and in particular the 6 issue of -- of error correction, which Mr. Lockyer 7 touched on in one (1) context, and I will touch on in 8 another context and, that is, the -- the context of post- 9 conviction, post-appeal err correction. 10 So not just among those cases that were 11 before you; not just among those cases in the past which 12 we believe may well be out there, and need to be 13 discovered, and corrected, but future cases of 14 miscarriage of justice. 15 It is naive to believe, Mr. Commissioner, 16 and arrogant to assume, as some do, that improvements 17 that have been made, and will be made, will ensure that 18 there will not be persons wrongfully convicted in the 19 future on the basis of pediatric forensic pathology in 20 this province. 21 Systems are imperfect, particularly 22 systems such as this one (1) where human judgment and 23 discretion play such pivotal roles at every step, and 24 where the underlying science remains shifting, and 25 uncertain.
481 We can believe that improvements to the 2 system will mean fewer miscarriages of justice in the 3 future, and we can hope that there will be far fewer than 4 the disaster that was detailed here over the past five 5 (5) months. 6 But again, I stress it is naive to 7 believe, and arrogant to assume that the system will not 8 make mistakes in the future, that human beings in the 9 system will not make mistakes in the future, and that 10 effective post-conviction review processes will not be 11 necessary. 12 And -- and that is why, Mr. Commissioner, 13 we are urging you to recommend, as other Commissioners 14 have recommended, that there be an indepen -- independent 15 post-conviction review process in this country, and we 16 hold up the -- the process that exists in the United 17 Kingdom as a model for you to consider. 18 I'd like to briefly address some of the -- 19 the technical arguments that are particularly raised by 20 the province in its reply brief; about whether you have 21 jurisdiction to make recommendations about post- 22 conviction review, about whether it is in your mandate, 23 and whether there is a sufficient foundation for you to 24 do so. 25 At the outset, the province, with all due
491 respect, their objections, in my submission, show a 2 fundamental misunderstanding of the nature of Public 3 Inquiries generally, and this one (1) in particular. 4 And let -- when -- and start with the 5 jurisdiction question. Our submissions are detailed at 6 pages 73 to 81, Appendix A of our brief. 7 The province asserts in its reply brief 8 that it simply is a matter of citing the Constitution Act 9 of 1867; that the Federal government has exclusive 10 jurisdiction over criminal law; and that you have no 11 jurisdiction to enter into this area of post-conviction 12 review. 13 We all know that that is only part of the 14 answer. The other is Section 92, the province has 15 jurisdiction over administration of justice. 16 And what is apparent, and what every one 17 (1) of us learned in our first week of law school, if not 18 before, that there are matters of overlapping 19 jurisdiction and, indeed, this is one (1) of them. 20 The question of whether a provincial 21 Inquiry has jurisdiction to consider, and report on 22 criminal justice issues which impact upon Federal 23 legislation has been considered before in cases which 24 we've set out in our brief, none of which the province 25 has addressed.
501 We rely upon the Keable case, the Di lorio 2 case, and the MacKiegan case, as authority, and excerpts 3 of those are at pages 74 to 76. 4 The -- the Keable case, in particular, 5 concerned a Quebec Inquiry into specific conduct by the 6 RCMP security service. And Justice Pidgeon in that case 7 held that although they were not -- although that Inquiry 8 was not permitted to specifically look at misconduct, it 9 was entitled to make recommendations with respect to 10 legislation which was -- came out as a result of its -- 11 of the -- the Commissioner properly carrying out its 12 mandate. 13 The -- the -- we note as well that the 14 Federal government in its letter to Mr. Sandler last week 15 does not suggest that you lacks -- suggest -- that you 16 lack jurisdiction to make recommendations of this kind 17 that we urge. 18 Many recommendations coming out of 19 Inquiries have dealt -- Inquiries into wrongful 20 convictions have dealt with Federal matters, including 21 those of Commissioner Kaufman and the Morin Inquiry. 22 He made repeated recommendations that 23 dealt with issues of Federal legislation. We say -- and 24 we invite you to add your voice to those of other 25 commissioners who have recommended an independent process
511 for post-conviction review. Commissioner Cory 2 recommended that in the Sophonow Inquiry. Commissioner 3 Le Sage recently recommended it in the Driskell Inquiry. 4 Commissioner Kaufman recommended that 5 further study be done in the Morin Inquiry. And the 6 Marshall Inquiry, some fifteen (15) years ago, made that 7 very same recommendation. This brings me to the issue of 8 whether you should make such a recommendation. 9 The province takes the position that you 10 shouldn't. They say it's not within your mandate and 11 object to the fact that the evidence upon which we would 12 rely is not sworn. 13 We say it is properly within your mandate 14 as read broadly. It relates to the error corrections -- 15 the issue of error correction has been a key systemic 16 issue. It was identified as a systemic issue by your 17 counsel early on. Corrective measures are set out in the 18 systemic issue's list. 19 We submit that restoring public confidence 20 in the pediatric forensic pathology system requires that 21 there be an effective means of correcting miscarriages of 22 justice when it fails. 23 Now, with respect to the evidence that we 24 rely upon, the province takes issue to the fact that the 25 -- the evidence was not subject to cross-examination.
521 Again, that shows, in my respectful submission, a 2 fundamental misunderstanding of this Commission. The 3 rules that were set out at the beginning of this Inquiry 4 made clear that there was a broad body of material that 5 would be presented to you, and that you would rely upon 6 in making your recommendations. 7 Rule 46, in particular, talked about the 8 systemic nature of the Inquiry, the use of research and 9 policy materials, and the use of meetings or symposia. 10 There was no objection made, that I'm aware of, to those 11 rules at the time, nor should there be any objection made 12 now to you rely -- relying upon the fruits of that 13 process in making your recommendations. 14 The comparison between our system of post- 15 conviction review and that in the United Kingdom is -- is 16 detailed in our brief. And there's just a few points I 17 wish to highlight briefly. 18 In our system, the decision on whether or 19 not to refer a case to a Court of Appeal or a trial court 20 is made by the most senior prosecutor in this country. 21 In their system it is made by an independent body. 22 I would have thought that the virtue of 23 independence is self-evident when it comes to decision- 24 making in criminal justice matters. And whether or not 25 it leads to a better quality of decision, we say that the
531 -- that it clearly does. At the very least, it inspires 2 more confidence in the public. 3 Secondly, pay a strict comparison -- or a 4 mere comparison of the number of cases that the -- that 5 the system in place in the United Kingdom has considered 6 and caused to be referred and overturned versus the 7 number of cases in this country, under our system, shows 8 that there is good reason to believe that miscarriages of 9 justice occurring in the United Kingdom are much more 10 likely to be corrected than miscarriages of justice in 11 this country. 12 They are even taking into account the 13 population disparity between the United Kingdom and 14 Canada. The difference is fourteen (14) fold. It belies 15 common sense to believe that our criminal justice system 16 is fourteen (14) times less prone to error than theirs. 17 So we say there is reason to believe that 18 there are far more miscarriages of justice that are not 19 being corrected by our review process than theirs. And 20 we say - and this is where it ties into your mandate - 21 that when the pediatric forensic pathology system fails 22 in the future, the victim of that failure is far less 23 likely to be able to have his or her error corrected in 24 Canada, as the system currently exists, than he or she 25 would be if we had a system comparable to that in the
541 United Kingdom. 2 The Criminal Cases Review Commission is an 3 active body rather than a passive one. It has wide- 4 ranging investigative powers and resources to conduct 5 those investigations at public expense. Under our 6 system, applicants are largely left to their own devices. 7 Some of them -- some of those cases have been furthered 8 by AIDWYC. 9 AIDWYC is a small organization whose 10 annual budget is somewhere in the range of the salary of 11 two (2) assistant Crown attorneys. 12 The United Kingdom Court of Appeal, or 13 rather the English Court of Appeal has referred to the 14 CCRC as essential to the health and proper function of a 15 modern democracy. And we say it is essential to the 16 health and proper function of our system of justice, of 17 our modern democracy to have a post-conviction review 18 process that contains the same key facets. 19 We -- we urge you to make that 20 recommendation that your filler -- fellow Commissioners 21 have made, and we urge you if you are convinced that you 22 ought to do so, to make that recommendation in somewhat 23 stronger terms that the polite suggestions that have been 24 repeatedly ignored in the past. 25 We submit that a more effective and fully
551 independent error correction process is essential to 2 ensure that when the pediatric forensic pathology system 3 fails in the future, despite all the improvements that 4 have been made and will be made and an innocent person is 5 convicted, that that error can be corrected and be 6 corrected quickly. 7 And lastly, I -- I urge you to also 8 consider Recommendation 10, that adequate funding 9 mechanisms be in place for persons who -- who seek a 10 post-conviction review process. 11 By way of conclusion, Mr. Commissioner, 12 I -- 13 COMMISSIONER STEPHEN GOUDGE: Well before 14 you do that I had one (1) question about that, Mr. 15 Sokolov. 16 Should there be -- should there be a 17 threshold for funding; that is, should there be some kind 18 of substantive showing before funding is granted? 19 MR. LOUIS SOKOLOV: Well, I think that -- 20 COMMISSIONER STEPHEN GOUDGE: A 21 reasonable possibility of a wrongful conviction. 22 MR. LOUIS SOKOLOV: Well, I -- I think 23 it's similar -- 24 COMMISSIONER STEPHEN GOUDGE: Or are you 25 saying if you -- if you go to the wicket, whether it's
561 CCRC or six ninety-six (696), you should get funding? 2 MR. LOUIS SOKOLOV: I think a similar 3 process of that exists at the -- in the Legal Aid context 4 for appeals is -- is appropriate; that -- that clearly if 5 -- if a application for review is frivolous then it ought 6 not to attract public funds. 7 But at the same time you ought not to have 8 to argue your case when you are not in a position to 9 argue your case, before you can even get -- get funding. 10 But some sort of threshold requirement to weed out 11 frivolous cases I think is entirely appropriate. 12 COMMISSIONER STEPHEN GOUDGE: Okay, 13 thanks. 14 MR. LOUIS SOKOLOV: With respect to the 15 rainy -- remaining recommendations, I -- I'll leave my 16 brief for you and conclude again by thanking you and 17 saying that AIDWYC and myself, we await your report with 18 much interest and anticipation. 19 COMMISSIONER STEPHEN GOUDGE: Thanks, Mr. 20 Sokolov. 21 Mr. Falconer...? 22 23 SUBMISSIONS BY MR. JULIAN FALCONER: 24 MR. JULIAN FALCONER: Good morning, Mr. 25 Commissioner.
571 COMMISSIONER STEPHEN GOUDGE: Good 2 morning. 3 MR. JULIAN FALCONER: Mr. Commissioner, 4 on behalf of Aboriginal Legal Services and Nishnawbe-Aski 5 Nation I wish to commence my submissions by extending the 6 gratitude of my clients and the communities they 7 represent, to this Commission's work, in respect of First 8 Nations issues. 9 I think that it states the obvious, that 10 your Inquiry into the issue of the delivery of pediatric 11 forensic pathology services across this province does not 12 in any way exclude and must include First Nations 13 communities. 14 And the manner in which you attended on 15 these communities, Commissioner, with your Commission 16 counsel and the fashion in which these issues have been 17 given respect in the evidence, and throughout, is a 18 source of gratitude to my clients and we wish to start by 19 expressing that -- that gratitude. 20 At the same time, Mr. Commissioner, I wish 21 to put on the record, on behalf of -- of counsel for the 22 -- the coalition that there are very serious meeqwetches 23 that must go out to members of the communities of Muskrat 24 Dam and Mishkeegogamang, and in particular their 25 leadership, Chief Connie Gray-McKay of Mishkeegogamang,
581 Chief Morris of Muskrat Dam, who assisted counsel in 2 bringing forth such key issues and, of course, Deputy 3 Grand Chief Fiddler. 4 All of these are -- are key aspects of -- 5 of our final words today because, of course, sometimes 6 counsel in the passion of the expression of submissions 7 forgets to say thank you, so thank you. 8 Mr. Commissioner, my submissions in the -- 9 in the twenty-seven (27) minutes I have left will cover a 10 number of areas, and they are simply this: I intend to 11 make some introductory comments about the coalition 12 itself. 13 Secondly, I intend to address the terms of 14 -- having made those introductory comments about the 15 coalition, I intend to address your terms of reference 16 and how I, respectfully, see the connection between those 17 terms of reference to the First Nations' issues we are 18 raising. 19 Thirdly, I intend to address what we call 20 the revelations of neglect of First Nations communities 21 that have come out of these proceedings. 22 And fourth, I intend to address the First 23 Nations written submissions that have been provided to, 24 that is, the nature of our written submissions, the 25 wording used in them.
591 And finally fifth, we intend to address 2 the future. The future in respect of the delivery of 3 death investigation services to the coroner's system. 4 Moving then to the introductory comments 5 about the coalition. I start there because I was struck 6 by the submissions of counsel for the Attorney General 7 for Ontario when it was suggested to you that in fact 8 First Nations trust the OPP, that many First Nations 9 communities have great confidence in the OPP and that, 10 accordingly, it can be business as usual in the reliance 11 on the OPP in respect of death investigations. 12 I was struck by the fact that I was having 13 difficulty recalling who was acting for who. Nishnawbe- 14 Aski Nation represents one (1) of four (4) provincial 15 territorial organizations in the province of Ontario that 16 you know, Mr. Commissioner, represent a very significant 17 number of First Nations communities in the case of 18 Nishnawbe-Aski Nation. It comprises approximately 60 19 percent of the province of Ontario in the north. And 20 represents many thousands of First Nations communities. 21 And when its leadership speaks and expresses concern 22 about its relationship with the OPP, replying to its 23 leadership, "you're wrong, you do trust them," is an 24 extraordinary thing to say. 25 Aboriginal Legal Services of Toronto is
601 probably one (1) of the most prominent agencies servicing 2 urban First Nations communities in the province, if not 3 the country. 4 They came together as a coalition to 5 attempt to deliver to you a broad First Nations' 6 perspective. But they don't claim for one (1) minute 7 that they represent the only First Nations' perspectives, 8 and I do want you to know we've referred to the other 9 three (3) provincial territorial organizations at page 18 10 of our submission, paragraph 42. 11 In particular, the association of Iroquois 12 and Allied Indians. The Grand Council Treaty 3, and the 13 Union of Ontario Indians are the other three (3) 14 provincial territorial organizations along with, I might 15 add, the Chiefs of Ontario is a very important 16 representative body. 17 There are others of course, Mr. 18 Commissioner, and -- and we don't mean to leave any -- 19 any organizations out but, obviously, this coalition that 20 appears before you today represents a significant portion 21 of the communities. 22 The delivery of pediatric forensic 23 pathology services presupposes something, Mr. 24 Commissioner, and I'm now on my second issue. The 25 delivery of pediatric forensic pathology services
611 presupposes that those that are in charge of the delivery 2 of those services exist within your communities. 3 Let me put it another way, and perhaps in 4 the starkest terms I can. If in the province of Ontario 5 the entire office of the Chief Coroner of the province of 6 Ontario operated from the province of Manitoba, perhaps 7 the city of Winnipeg by telephone, and purported to 8 deliver pediatric forensic pathology services to the 9 province by telephone, this would be seen as 10 unacceptable. 11 If the Coroners Act were administered 12 remotely from another province, this would be seen as 13 unworkable and unacceptable. Yet when it comes to the 14 Nation -- a First Nations, that is precisely what 15 happens. 16 We say that this is squarely within your 17 terms of reference and reject completely the suggestion 18 that the issues we've raised with you are outside of your 19 Inquiry, which are suggestions made by the Office of the 20 Chief Coroner and the AG. Because how can one in any way 21 create confidence in the delivery of pediatric forensic 22 pathology services if coroners don't even attend on the 23 communities over which they have jurisdiction? 24 Mr. Commissioner, it would be insulting to 25 you if I took you through the repeated statements in the
621 facts on which you were told all the way down to February 2 28th and 29th, 2008 in the roundtables by a 3 representative of the OPP that the coroners are not to be 4 found on death scene investigations in First Nations' 5 communities be they fly-in communities or other rural 6 communities in Northern Ontario. They do not attend. 7 Dr. Legge testified as much as the Regional Coroner in 8 charge of that area for ten (10) years. 9 Now, I start from the following premise: 10 Is it reasonable to administer a system remotely? Is it 11 reasonable? 12 Can you create confidence in the receipt 13 of pediatric forensic pathology services in a community 14 that neither knows what a coroner is nor has ever seen a 15 coroner? Does the Coroners Act in any way contemplate 16 this kind of systemic wholesale remote delivery of 17 services? And the answer is no. 18 And I want to be clear, I'm no suggesting 19 there are exceptional circumstances that could warrant 20 operating by a surrogate. But we're not talking 21 exception, we're talking about simply the rule for First 22 Nations' communities. So in my submission, that 23 effectively addresses the suggestion that somehow the 24 issues we are raising are outside of the bounds of this 25 inquiry.
631 I want to turn to the third area that are 2 part of my submissions, which refl -- which we call the 3 revelations of neglect. At pages 30 to 32 of our main 4 submissions, Mr. Commissioner, starting at paragraph 66. 5 The mortality rates by accident, homicide, and other 6 forms of death are set out. 7 The stark reality at paragraph 69. Infant 8 mortality rates, infant mortality rates, are twice to 9 three (3) times as high in First Nations and Inuit 10 communities as the rest of Canada. The major causes of 11 post-neonatal death among "registered Indian" infants - 12 and registered Indians is in quotes - in 1994 were Sudden 13 Infant Death Syndrome, 44 percent; congenital anomalies, 14 11 percent; respiratory 10 percent; infection, 6 percent; 15 and injury, 8 percent. You visited Mishkeegogamang, you 16 saw the cemeteries, you have sensed and experienced along 17 with your Commission counsel the pain in that community. 18 You also heard in evidence from Dr. Legge 19 that despite numerous reports on the public safety 20 concerns in that First Nations' community, he has never 21 read them nor attended personally at Mishkeegogamang. 22 Nor have you heard any evidence, in my respectful 23 submission, that the public safety issues that have 24 plagued that community for literally decades have been 25 effectively in any way addressed through action by the
641 Office of the Chief Coroner for the Province of Ontario. 2 What does that mean? Is this a rare 3 exception? I would respectfully suggest the contrary. 4 If your most extreme example of safety concerns, which 5 Mishkeegogamang must represent as occupying the lowest 6 rung of the health index among First Nations and non- 7 First Nations' communities in this country, if your worst 8 concern over public safety does not attract your 9 attention, what does that say for less extreme 10 situations? 11 You heard the words of Chief Connie Gray- 12 McKay, the Chief of Mishkeegogamang, that in the thirteen 13 (13) years that she has been involved in the leadership 14 of that community in one (1) fashion or another, neither 15 her, nor her predecessor, have ever met a coroner. 16 A report by the Law Reform Commission of 17 Ontario that is before you highlighted the Windigo Tribal 18 Council Report, talking about neglect from the coroner's 19 office, dating back to the mid '90s. 20 A 2007 report by the North/South Alliance 21 itemized again the suffering in that community; nothing 22 triggers action on the part of the Office of the Chief 23 Coroner. 24 You've heard through different mechanisms, 25 be it the evidence of Dr. McClellan, the evident --
651 former Chief Coroner, the evidence of Dr. Cairns, Deputy 2 -- former Deputy Chief Coroner, the evidence of Dr. Legge 3 that the absence from the landscape of the coroners in 4 First Nations' communities is a broad systemic reality. 5 What you didn't hear in evidence, and what 6 was never elicited and has never been presented in 7 evidence, are examples of how the Office of the Chief 8 Coroner raised the red flags about their inability to 9 deliver services to these communities. 10 You've heard an almost sense of 11 inevitability, palms to the air. We don't have the 12 doctors to deliver. We don't have the resources. But 13 not once was a shred of evidence elicited that suggested 14 something concrete by way of formal, or informal concern, 15 was expressed to any government of the day dating back to 16 1994 or, indeed, 1990 when former Chief Coroner Young 17 took over; that is, not a single expression of formal 18 concern to any of the successive governments. Simply an 19 acceptance of the inevitable that First Nations must 20 simply sit as second-class citizens on issues of public 21 safety. 22 This leads to the third area I want to 23 address with you, Mr. Commissioner, and that is the 24 nature of the submissions, the nature of the written 25 submissions before you. I believe the term that the
661 submissions for the Office of the Chief Coroner for 2 Ontario used to describe the ALST- NAN submissions were 3 inflammatory. 4 I will grant you this, Mr. Commissioner. 5 The wording is strong. The leadership, the political 6 leadership for these communities, the leadership from 7 Aboriginal Legal Services, these are clients who can give 8 instructions and do. Soft messages have failed. Soft 9 language has failed. No one hears them. 10 In the end, with great respect, Mr. 11 Commissioner, suggesting without a single substantive 12 answer beyond the statement that it's inflammatory; that 13 is, if you look far and wide in the submissions, the 14 written -- lengthy written submissions of the Office of 15 the Chief Coroner, main submissions or reply, you will 16 find not a single explanation for how Dr. Legge could 17 have missed the reports on the public safety issues at 18 Mishkeegogamang. 19 Not an explanation in either the 20 submissions of the Chief Coroner, or in the submissions 21 of the AG. Not an explanation for the apparent 22 disconnect between -- and I'm going to quote the former 23 Chief Coroner Dr. Young who gave an assurance as to the 24 level of allocation of resources that occurred in respect 25 of First Nations' issues.
671 Dr. Young -- and I'm at page 4 of our 2 written submissions, paragraph 8. Dr. Young testified 3 before you, Mr. Commissioner, quote: 4 "We kept a Regional Coroner in 5 Northwestern Ontario..." 6 And I'm at paragraph 8, page 4, of our 7 main submissions. Quote: 8 "We kept a regional coroner in 9 northwestern Ontario despite the fact 10 the volumes really don't -- don't 11 indicate it, and a good part of his job 12 was to -- was to pay careful attention 13 to First Nations' issues. And so we 14 have a decision by then Chief Coroner, 15 as -- Assistant Deputy Minister, to 16 make express decisions to allocate 17 resources..." 18 Then we flip to the next page of our 19 submissions, page 5: 20 "...to the person who was supposedly 21 delegated these functions, Dr. Legge." 22 He testified as follows before you, Mr. 23 Commissioner. When I put that quote to him he said the 24 following, quote: 25 "I certainly don't ever recall him
681 letting me know that thought. I mean 2 that -- that may be a conclusion of 3 his, but it was never transferred 4 directly to me." 5 Further on, Dr. Legge again, quote: 6 "I'm not quite sure if I agree with 7 that logic and I -- I never recall that 8 being part of my job description I 9 received." 10 Then I asked him: 11 "Was that ever discussed with you as 12 Regional Coroner from 1997 onwards?" 13 Answer, quote, "Never." 14 Strong language used by my clients? 15 Absolutely. Strong language because they suffer neglect 16 and it continues to this day. They are entitled to use 17 strong language because other mechanisms have failed. 18 It is certainly a reality that systemic 19 failings to First Nations communities are not only at the 20 doorstep of the Office of the Chief Coroner for the 21 Province of Ontario, Mr. Commissioner. It is accepted 22 that it is a societal blight, something for which we all 23 must share shame, but at the same time there is light, in 24 terms of the recognition by different levels of 25 government and the Courts that a new way, recognizing
691 nation to nation respect for First Nations, has to be the 2 path for the future. 3 We have put before you in questioning and 4 in submissions the statement of new relations for the 5 Province of Ontario setting out what their expectation is 6 for government agencies. But we ask you to find, Mr. 7 Commissioner, that that statement of new relations that 8 dates back to 2005 has not made its way to the ground at 9 the level of the Office of Chief Coroner for Ontario. 10 Why do I say that, because it was 11 painfully apparent from the questioning of different 12 witnesses and from the roundtable discussions that it is 13 not required reading; the statement of new relations. 14 Indeed it is not reading at all; they see it as political 15 fare, not something to act on. 16 One queries whether the systemic failings, 17 the neglect, has been in any way addressed in the Courts, 18 and the answer is yes, as recently as March. And I'm 19 simply referring a case you'd -- that I'd be happy to 20 give My Friend a copy of later; it's one (1) line from a 21 decision of March 5th, 2008 of Justice Forestell of the 22 Superior Court here in Ontario. 23 In referring to the enfranchisement policy 24 that had the assimilation of First Nations by exchanging 25 their membership in their communities for Canadian
701 citizenship she wrote -- she observed that, quote: 2 "This policy was an attempt to 3 assimilate the Aboriginal peoples and 4 has been described as being among the 5 most oppressive amendments in practices 6 in the history of the Indian Act." 7 Commissioner, in respect of Courts that 8 have recognised what residential schools did to youth, 9 you yourself, Mr. Commissioner, sat on the cloud in 10 United Church -- an Anglican church judgment. I don't 11 want to mix up the Churches when we're talking 12 residential schools. 13 I want to emphasize, Mr. Commissioner, 14 that there is light -- there is light at the end of the 15 tunnel, there is a recognition in our Courts, in our 16 governments, that things have to change. Has that 17 recognition made its way to the Office of the Chief 18 Coroner? With great respect, aside from the odd phone 19 call or letter, nothing by way of action; that is why 20 it's essential, Mr. Commissioner, that your 21 recommendations have clarity and teeth, because left to 22 their own devices, with great respect, the neglect will 23 continue. 24 There is nothing by way of action that 25 should satisfy you that the Office of the Chief Coroner
711 for Ontario is in a position to address the public safety 2 issues for children in First Nation's communities the way 3 they are prepared to address them in other communities. 4 I want to move to the future. We have 5 recommended as part of our series of recommendations, 6 that there be community based investigators; that the 7 coroner's system be amended to include alternatives. You 8 will find the references to this issue beginning at page 9 39, the teachings from Mishkeegogamang and forward. 10 The issue around investigators and 11 coroner's surrogates starts at page 47, paragraph 113. 12 Why do I start this as the future? 13 Because at it's heart, Mr. Commissioner, the most 14 practical example of the failure of the system for First 15 Nations -- that's page 47, paragraph 113 -- at its heart, 16 Mr. Commissioner, the fact that First Nations are simply 17 deprived of the services of investigating coroners in 18 their communities has not been legislatively sanctioned, 19 and until your proceedings, Mr. Commissioner, it was 20 never fully understood or known. 21 The fact that a delegation may occur from 22 time to time in exigent circumstances is contemplated by 23 the Act. But what has happened here is not a delegation, 24 Mr. Commissioner. What has happened here is an 25 abdication and it has been an abdication that has been
721 off the radar screen. 2 Is it important that investigating 3 coroners be available to communities and attend scenes? 4 Surely the answer lies in the legislative scheme, in the 5 fact that the rest of the Province of Ontario enjoys just 6 that. How can it be important for the rest of the 7 province to enjoy this access, but it's not important for 8 First Nations communities? 9 The ultimate non-sequitur comes from, with 10 great respect, the words of Dr. Porter, now Chief 11 Coroner, at the roundtable of February 29th. Dr. Porter 12 was quite adamant that the physician driven system works; 13 that the availability of physicians lies at the core of 14 the quality; that represents the very thing First Nations 15 don't get. You need physicians for quality. We don't 16 give you physicians, but we tell you we have quality. 17 That is a non-sequitur. 18 And it's a non-sequitur for which up until 19 your proceedings, the system has never been called to 20 account for. It is very instructive to have regard to 21 the definition of accountability that the Office of the 22 Chief Coroner set out in their submissions at page 11. I 23 won't turn it up. 24 Suffice to say that it recognizes that 25 accountability means answering for or responding to
731 obligations or commitments enshrined in legal 2 obligations. But there is no accountability for not 3 providing coroners to these communities. None at all. 4 None at all. 5 The answer that we are provided with 6 today, before you, is that police can do the job; that a 7 police officer can act as a surrogate. And when 8 alternatives are suggested, we are told, No, police 9 officers are the ones. As seductively attractive as that 10 submission is, Mr. Commissioner, I ask you to pause and 11 reflect on the words to be found at page 51, paragraph 12 118 of our submission. Page 51, paragraph 118. 13 At page 51, paragraph 118 of our 14 submission, we cite the Colarusso judgment, and the 15 caution espoused by Supreme Court of Canada about merging 16 the functions of police officers and coroners in 17 investigations. The wording that Justice La Forest for 18 the majority states, among other things, and you can see 19 this at the top of page 52: 20 "When a coroner delegates Section 16(2) 21 investigative powers to a police 22 officer, the danger that the 23 distinction between the coroner's 24 investigation and the criminal 25 investigation will be obliterated, and
741 the two (2) investigations amalgamated 2 into one (1) is immediately obvious. 3 It would seem difficult as a practical 4 matter for the police to act for the 5 coroner completely independently of the 6 criminal investigation while exercising 7 delegated powers under 16. Whatever 8 the police learn while acting for the 9 coroner will readily become part of a 10 foundation on which to build a case 11 against a defendant. 12 As well, by delegating 16(2) powers to 13 the police, the coroner's giving the 14 police investigatory powers beyond that 15 which they normally possess." 16 Going on: 17 "In my view, the dependency of the 18 coroner on the police during the 19 investigative stage mandated under 20 16(4) and 16(5) of the Coroners Act 21 brings these provisions dangerously 22 close to the boundary of legislation in 23 the sphere of criminal law, an area 24 within the exclusive jurisdiction of 25 parliament."
751 COMMISSIONER STEPHEN GOUDGE: How far do 2 you take that, Mr. Falconer? I was interested to read it 3 in your brief. I mean, do you simply say that police 4 cannot serve under 16(4)? 5 MR. JULIAN FALCONER: No. And in fact, 6 Justice La Forest -- and it's in the previous quote we 7 have at page 51: 8 "This provision was evidently enacted 9 to allow a coroner to delegate certain 10 powers in emergency situations where he 11 or she is unable to attend at the scene 12 immediately." 13 In other words, there is always a notion, 14 and there will always be give and take, as you know, Mr. 15 Commissioner, for exigencies. We've taken the exigency 16 and made it the rule, and for the future, Mr. 17 Commissioner, they're asking -- they're -- they're now 18 asking you to basically legislatively enshrine it. 19 And -- and here's the concern I have with 20 it, Mr. Commissioner. The essence of their submission to 21 you is the reason you should do this is because the 22 impartiality of the police and the independence of the 23 police will actually give you the product you want, in 24 respect of pediatric forensic pathology investigations 25 and investigations of deaths of youth and others in
761 general. But in fact, that's the very thing that the 2 Supreme Court of Canada says it won't do. 3 The Supreme Court of Canada cautions about 4 merging and blurring the lines between police and 5 coroners, because of the failure of independence 6 impartiality. The very issue they tell you warrants a 7 police officer actually warrants not merging the 8 functions. And I -- and I want emphasize this: there can 9 be no doubt that this office knows about Colarusso. 10 This was not the first time I examined Dr. 11 Young, frankly, Mr. Commissioner. The first time I ever 12 examined Dr. Young he filed an affidavit in Colarusso and 13 I as counsel examined him in this case. 14 There is absolutely no doubt that the 15 guidance provided by the Supreme Court of Canada has not 16 veered 1 inch, yet here we are before you today 17 suggesting a complete merging of the functions. That 18 can't be right. 19 A perfect example of where lay 20 investigations can go is seen in nine (9) of thirteen 21 (13) provinces and territories across the country. A 22 perfect example of where lay investigations can go in the 23 Province of Ontario is seen in the creation, although it 24 had growing pains, of the Special Investigations Unit. 25 I remember the days of "no one can do it
771 but the police." I remember those days. 2 COMMISSIONER STEPHEN GOUDGE: You are 3 older than I am. You are getting near the end of your 4 time, Mr. Falconer. 5 MR. JULIAN FALCONER: In the -- in the 6 interests of -- when you say you're older than I am and 7 then you say you're getting near the end of your time. 8 Maybe you know something about -- that I don't. I'd ask 9 you make a finding I'm going to live on. 10 Mr. Commissioner, I -- I can't emphasize 11 enough that what you heard from Chief Connie Gray-McKay, 12 what you heard from Chief Morris about their communities 13 and their abilities to provide resources and train, 14 whether it was the correctional workers, the Justices of 15 the Peace, these communities have learned the hard way 16 that no one's going to fly resources into them; community 17 health workers. 18 They have started to and learned how to 19 train, and they have the ability, if trusted through 20 protocols and communications and supports, as Dr. Butt 21 pointed out to you, they have the ability to create these 22 resources. 23 If a doctor isn't going to give a house 24 call to help the living, he's not going to do it for the 25 dead.
781 When Dr. Porter clung to the notion of 2 only a physician led system, and Deputy Grand Chief 3 Fiddler expressed regret at the inability to close the 4 chasm, that should have been a moment of truth for all of 5 us. 6 I'm going to close with this. It's page 7 64, and it is truly the closing of my submission. 8 No one -- no one could leave a room after 9 having been in a room with Chief Connie Gray-McKay 10 without being struck by the trauma that she's -- lives 11 for her people. 12 And so no one could possibly do justice to 13 First Nations' issues in the context of this case without 14 closing with her words, and I'm at the top of page 64. 15 These are words she expressed at the 16 roundtable on February 29th, and I'm at 64: 17 "And I believe every -- our people can 18 -- can do the job just as well as 19 anybody else. That the more 20 information that's out there, to bring 21 the truth out, is healing. And it's a 22 place that we need to go as a people. 23 It is the healing because for too long 24 things have been hidden from us. For 25 too long, we've been in a guise of
791 darkness. And I go back to the 2 histories again. It's the same thing. 3 But as our people begin to know their 4 rights, and begin to know and set 5 directions, and to have a valued input 6 and the truth does come out. And I 7 believe that the people can do that. 8 And I think the more you -- these 9 people that you begin to educate and 10 train, it will all happen because 11 overall our values, core based, the one 12 that looks after us every day, gives us 13 our breath, we acknowledge that. And 14 it's a core value that life is sacred. 15 And from the person that it's given has 16 all the powers over all of us. And I 17 think it is innately something that is 18 a human spirit. Is that the truth, 19 finding the truth, is always important. 20 That everyone, every culture, strives 21 for that truth. And every culture has 22 that. It's a virtue. So with that, 23 Meeqwetch." 24 Meeqwetch, Mr. Commissioner. 25 COMMISSIONER STEPHEN GOUDGE: Thank you,
801 Mr. Falconer. 2 We will rise then for fifteen (15) 3 minutes. 4 5 --- Upon recessing at 11:04 a.m. 6 --- Upon resuming at 11:27 a.m. 7 8 THE REGISTRAR: All rise. Please be 9 seated. 10 COMMISSIONER STEPHEN GOUDGE: Mr. 11 Ortved...? 12 13 SUBMISSIONS BY MR. NIELS ORTVED: 14 MR. NIELS ORTVED: Thank you, Mr. 15 Commissioner. So throughout this Inquiry there's been a 16 veritable klieg light on Dr. Smith and on Dr. Smith 17 alone. And in our submission this was unfortunate, Mr. 18 Commissioner, for two (2) reasons. 19 First it was unfortunate because to a 20 great extent Dr. Smith was doing exactly the same things 21 as every other pathologist carrying on pediatric 22 pathology and pediatric forensic pathology in Ontario at 23 the time. 24 And second, I say that this was 25 unfortunate because frankly it served as a distraction.
811 The real issue here goes far beyond any single 2 individual. The real issue here is the environment in 3 which Dr. Smith functioned. 4 Dr. Smith was very much a product of his 5 environment and the disproportionate focus at this 6 Inquiry on Dr. Smith and his failings should not be 7 allowed to distract you from this larger picture. The 8 environment that you have heard about was primed for 9 problems for Dr. Smith and for every other pathologist 10 practising within it. 11 This isn't just my submission, this is a 12 submission that is reflected by the submissions of others 13 you've heard from. The Affected Families Group made that 14 submission. It -- this was a systemic failure. DCI 15 commented that this was an insular unaccountable 16 organization. 17 And we also can point to the submissions 18 on the part of the Chief Coroner; they're, in effect, 19 urging upon you what amounts to a drastic overhaul of the 20 coroner's operations, and that in itself, Mr. 21 Commissioner, speaks volumes. What it speaks to is that 22 the prior system, the system in place from 1981 to 2001, 23 in which Dr. Smith functioned was deeply flawed. 24 So just to give you a roadmap to my 25 submissions I'm going to deal first with the way in which
821 we take the position you should approach your 2 deliberations, and specifically the boundaries on you in 3 terms of those deliberations. 4 Second, I'm going to deal with your 5 mandate as set out in the Order in Council, and 6 specifically paragraph 4A. 7 Third, I'm going to deal with that 8 mandate, specifically 4B. 9 Fourth, I want to address the larger 10 context; the interrelationship of the Coroner's Office 11 and the justice system. 12 Fifth, I'm going deal with the background 13 to the Inquiry and the evidence you've heard and then I'm 14 going to make some concluding remarks. Now, hopefully it 15 goes without saying that time doesn't permit us to 16 canvass the evidence in its entirety, and in that regard 17 we rely on our written submissions. 18 So first, dealing with the issue of 19 boundaries, the crux of the mandate for you is set out in 20 the order of -- Order in Council and Mr. Commissioner, I 21 beg your indulgence in this regard, because I know you 22 have read that Order in Council a million times, so in a 23 -- and I accept that I am bringing coals to Newcastle 24 here, but it's important to our position that I -- that I 25 address this issue.
831 The crux of the mandate is to conduct a 2 systemic review and assessment of the arrangements for 3 pediatric forensic pathology, both practical and 4 legislative, and its use in investigations and criminal 5 proceedings in two (2) periods, in 1981 to 2001 being the 6 first period, and since 2001, being the second period, in 7 order to make recommendations to restore and enhance 8 public confidence in the future. 9 So, what are the strictures on how you 10 approach your obligations to unpack that Order in 11 Council, as you sometimes referred? 12 First, it's a systemic review. 13 Second, it's not mandated to explain what 14 happened here. 15 And specifically, thirdly, it's -- you're 16 specifically precluded by paragraph 5 of the Order in 17 Council from addressing what happened in any particular 18 case. So Order in Council paragraph number 5 precludes 19 you from reporting on any individual cases that are, or 20 have been, or may be subject to a criminal investigation 21 or proceeding; that, as we know, embraces all of the 22 nineteen (19) specific cases examined here. 23 Fourthly, having regard to paragraph 6 of 24 the Order in Council, you are precluded from -- from 25 concluding that an individual has breached any legal
841 standard, whether civil, criminal, or professional. And 2 we take the position that you should avoid language that 3 might convey an impression that an individual has done 4 so. 5 So we take the position that it would be 6 inappropriate for you in your findings and conclusions to 7 use language such as "improper", "failed to", but rather 8 use neutral language. So to address something Mr. Wardle 9 argued to you, we take the position you may not conclude, 10 as an example, that Dr. Smith acted unprofessionally 11 because that would be to offend paragraph number 6. 12 Fifthly, the Commission should only make 13 findings of misconduct to the extent necessary to address 14 the systemic mandate. 15 And then finally number 6, we take the 16 position that you should have particular regard to the 17 limitations on the evidentiary record before you, and be 18 cautious about reaching conclusions having regard to the 19 gaps in that record. 20 So in effect, Mr. Commissioner, what we 21 urge upon you is that you have kind of like a decision 22 tree. And the decision tree operates as follows: 23 You have in mind first your overriding 24 mandate. It's a systemic review. It's the environment 25 of pediatric forensic pathology in two (2) periods that
851 are an issue, and you're to make recommendations for the 2 future. It's a forward looking mandate. 3 Number 2. Does a particular finding fall 4 within the jurisdictional limits of your Order in 5 Council? So again, to the extent that they call for a 6 finding in relation to any particular case, that would 7 outside your jurisdictional limits. 8 Third, is there an adequate foundation in 9 the evidence for a particular finding? Are there gaps? 10 Should you exercise caution? 11 Fourth, is a particular finding necessary 12 to -- to discharge your mandate? 13 And if yes to all of the above then, in 14 our submission, you must be careful as to how you phrase 15 the conclusion. 16 Now, moving to -- to what I said was item 17 number 2, your -- your mandate, and particular -- 18 paragraph number 4. Paragraph number 4 essentially 19 entails two (2) aspects, and it's to conduct a systemic 20 review and assessment, and to make recommendations. 21 And as far as we, on behalf of Dr. Smith, 22 are concerned, we can assist with respect to the first 23 aspect only. You've heard in the evidence that -- that 24 Dr. Smith's view is that it's not for us to making 25 recommendations as to how to carry on in the future.
861 But we can assist you with respect to that 2 first aspect. We can provide a lot of assistance in 3 relation to that first aspect, namely the environment, 4 with this caveat, like Mr. Wardle, we're really only to - 5 - able to assist you in respect of the time period from 6 1981 to 2001, because as far as the second time period is 7 concerned, 2001 onward, Dr. Smith's effectively out of 8 the piece. And finally we're not able to assist you, as 9 I say, with recommendations. 10 So then coming to 4a, the mandate. What 11 it really requires is four (4) things. It requires a 12 systemic review and assessment on sub 1, policies, 13 procedures, practices. 14 Sub 2, accountability and oversight 15 mechanisms. 16 Sub 3, quality control measures. 17 Sub 4, institutional arrangements in 18 respect of pediatric forensic pathology in Ontario in the 19 period 1981 to 2001 as they relate to its practice and 20 use in investigations and criminal proceedings. 21 So how I propose to deal with this, Mr. 22 Commissioner, is to deal with each of those sub-headings 23 seriatim. What are the conclusions grounded in the 24 evidence to underpin the assessment of the system? 25 So then turning, if I might, to 4a sub (1)
871 policies, procedures, practices. And I'm going to give 2 you, as I go through this, eleven (11) conclusions that 3 flow, in our submission, from the evidence you've heard. 4 First, incontrovertible conclusion. 5 Pediatric forensic pathology in Ontario and Canada was 6 undervalued, under resourced and underdeveloped in the 7 period 2001 -- sorry, 1981 to 2001. 8 Dr. Pollanen was categorical in this 9 regard. The observation was confirmed in virtually all 10 of the evidence you heard through this Inquiry. The 11 Chief Coroner's Office, in its submissions, essentially 12 agrees. It allows that up until 1995 the whole forensic 13 pathology service was effectively drifting. And of 14 course, that period embraces not just more than half of 15 the cases we're dealing with here, but it provided the 16 groundwork for all of the cases that came after. 17 Number 2, under policies, procedures, 18 practices, what's the second clear conclusion? Pediatric 19 forensic pathology in the period in question focussed on 20 the pediatric aspect and not the forensic aspect. 21 According to Dr. Pollanen, this was the 22 practice and the policy. Dr. Pollanen said as follows: 23 "In the 1990's in Ontario the 24 prevailing view was that medicolegal 25 autopsies of infants and children were
881 best performed by a pediatric 2 pathologist. In retrospect, Dr. 3 Smith's lack of expertise in forensic 4 pathology was destined to become 5 problematic. But at the policy level, 6 expertise in pediatric pathology was 7 emphasized over training and 8 qualifications in forensic pathology." 9 That was confirmed by Dr. Chiasson as 10 being the case not just in Ontario, but in all of Canada. 11 So Dr. Smith vilified here, was not some outlier, his 12 qualifications were similar to virtually every other 13 person in Canada carrying on the practice of pediatric 14 forensic pathology. 15 Third clear conclusion: Policies, 16 procedures, practices. The qualifications sought in 17 those doing pediatric forensic pathology was experience 18 not accreditation. Thus, those who practised in the 19 field were effectively self-taught. They learned on the 20 job and, very likely, as you heard in the evidence in 21 relation to Dr. Smith, with little or no scrutiny of 22 their work or their work product. 23 Again, this was confirmed by Dr. Chiasson. 24 Cases essentially went to the pathologist in the region 25 who done previous cases. The Chief Coroner's Office had
891 no policy limiting the assignment of cases in the absence 2 of specific training or accreditation. 3 The fourth conclusion, under the heading 4 "policies, procedures, practices." The pre-autopsy 5 collection of evidence and a communication of that 6 evidence was under appreciated and uneven as regards both 7 coroners and pathologists. 8 It was acknowledged here that scene 9 investigation can be critical. We know the coroners 10 didn't always attend. We know the pathologists almost 11 never attended and according to Dr. Pollanen, again, 12 valuable opportunities were unquestionably lost. 13 The communication of investigations such 14 as they were, where they took place, by coroners varied 15 widely. I'm sure that you took note of Dr. King's 16 submission when -- in relation to a blank warrant for a 17 post-mortem op -- examination that he received from a 18 coroner, and when he called the coroner to query him 19 about it, the coroner told Dr. King that he was better 20 off doing the post-mortem with a completely open mind 21 rather than being influenced by history. It's 22 preposterous. Dr. McLellan, when he testified here, 23 confirmed that there was no policy enforced in this area. 24 The fifth conclusion under the heading 25 "policies, procedures, practices." Opinions expressed by
901 pathologists as to the cause of death were based on 2 experience and, again, a phenomenon confirmed by Dr. 3 Pollanen. 4 What Dr. Pollanen told us was that in the 5 1980's and 1990's pediatric forensic pathology was 6 characterized by a traditional approach, an opinion from 7 authority, and in my experience, approach to forensic 8 pathology. 9 Furthermore, we know that in that period 10 there was greater reliance on circumstantial evidence to 11 informed opinions. And the upshot of this were individ - 12 - was an individualistic approach to rendering opinions. 13 The Office of the Chief Coroner had no 14 policy contrary to or restricting this practice witness 15 Dr. Chiasson's review of the post-mortem reports that he 16 had. This was common practice for all pathologists, not 17 just Dr. Dr. Smith. 18 Sixth under "policies, procedures, 19 practices." You're perfectly entitled to draw the 20 conclusion that post-mortem reports, and you have a broad 21 spectrum of them, post-mortem reports produced in 22 criminally suspicious cases in this period, 1981 to 2001, 23 were stripped down in Ontario, they didn't contain a 24 discussion of history or circumstances. Consultations 25 were not documented. There was no discussion of the
911 opinion reached as to cause of death. 2 Contrary to other conclusions, you can 3 conclude that this was actually a formal policy of the 4 Chief Coroner's Office. Again, evidence for that is 5 found in Dr. Chiasson having approved hundreds of these 6 reports, all of which are identical. 7 And the practice, as we heard from Dr. 8 Pollanen, was to explain the opinion in open court. And 9 as Dr. Pollanen said, this wasn't just Ontario, this was 10 all of North America. So again, Dr. Smith's practice, as 11 you've heard about it here, conformed to that of its 12 colleagues. 13 Seventh conclusion, "policies, procedures, 14 practices." The aftermath to the post-mortem exam was 15 characterized by informality and I'll put it as high as a 16 complete absence of rigour. So communications with 17 coroners were sporadic, uneven, and variably 18 undocumented. You heard that from Dr. Lauwers. 19 Communications with authorities and the 20 Crown were informal. And again, from the perspective of 21 pathologists, undocumented. All of which was premised, 22 of course, on the report actually being generated in a 23 timely manner, which we now know was a persistent 24 problem, not exclusive to Dr. Smith, and never addressed. 25 Dr. Chiasson has told us that was a common phenomenon.
921 Eighth under "policies, procedures, 2 practices." You're perfectly entitled to draw the 3 conclusion, and you have amble evidence of testimony, 4 that was open to criticism. As far as Dr. Smith's 5 testimony is concerned, and that's all you heard here in 6 cases, it was speculative, it was casual, it was outside 7 the bounds of his expertise, it was even pejorative. 8 But again, it's not as though the Office 9 of the Chief Coroner had any policy in this regard to 10 train, to monitor, to followup on this. And of course, 11 the instances raised are only instances of Dr. Smith's 12 testimony. It's not to say that these problems were 13 confined to Dr. Smith. 14 So moving on, if I might, to -- to sub 2 15 of 4A, "accountability and oversight mechanisms." The 16 ninth -- 17 COMMISSIONER STEPHEN GOUDGE: I do not 18 know that it matters, but you told me you were going to 19 give me eleven (11) conclusions. 20 MR. NIELS ORTVED: I'm going to give you 21 eleven (11) -- 22 COMMISSIONER STEPHEN GOUDGE: But they 23 are -- 24 MR. NIELS ORTVED: They are relation to 25 all -- all subheads of the --
931 COMMISSIONER STEPHEN GOUDGE: Of 4? 2 MR. NIELS ORTVED: -- of 4, 4A 3 COMMISSIONER STEPHEN GOUDGE: Yes. 4 MR. NIELS ORTVED: So -- so the ninth 5 conclusion comes under this subheading, "accountability 6 and oversight mechanisms," so it's -- 7 COMMISSIONER STEPHEN GOUDGE: Okay. 8 MR. NIELS ORTVED: -- 4A(2) -- 9 COMMISSIONER STEPHEN GOUDGE: Yes. 10 MR. NIELS ORTVED: And it's really part 11 and parcel of the circumstances I've already addressed to 12 you. Accountability and oversight was effectively 13 lacking. 14 You know from the multiple instances 15 canvassed in the evidence, whether it has to do with the 16 collection of evidence, tracking of opinions, 17 communications with coroners and the police, monitoring 18 of turnaround times, monitoring of testimony -- all 19 absent. 20 The Office of the Chief Coroner in its 21 submissions refers to a vacuum to 1995, but Dr. Chiasson 22 confirmed in his testimony that even after his 23 appointment in 1995, there was no effective oversight. 24 And the fact that this persisted throughout the period 25 was al -- is also acknowledged in the submissions of the
941 Chief Coroner. 2 Moving to 4A(3), "Quality Control 3 Measures." This, in my submission, affords you the 4 grounds for your tenth conclusion. And again, it's 5 inextricably bound up with my former submissions. 6 Quality control measures were insufficient, and 7 inadequate. 8 The only real positive step was instituted 9 after Dr. Chiasson was appointed as Chief Forensic 10 Pathologist, and his review of reports. But Dr. Chiasson 11 was the first to concede that this provided insufficient 12 oversight. Otherwise, any efforts you've heard about 13 from any of the witnesses, including those from the Chief 14 Coroner's Office, were -- were haphazard. They were 15 crisis generated, and ineffective. And the fact that 16 there is no -- there was, throughout this period, never 17 even a system for tracking which post-mortems were in the 18 system, really says it all. 19 Finally, for my eleventh conclusion, it 20 really comes under this heading, sub 4 -- 4A(4) 21 "Institutional Arrangements." 22 The institutional arrangement about which 23 you heard the most had to do with the OPFPU. And in my 24 respectful submission to you, the OPFPU probably made 25 matters worse rather than better.
951 The substance of the problem, like most of 2 what you've heard about here, was poor execution. The 3 concept was to harness the expertise of the pathologist 4 at the Hospital for Sick Children, which is admittedly 5 vast to the efforts of the coroner's office. 6 But the implementation failed, because it 7 was premised on the concept that the pathologists would 8 remain responsible -- was -- would be responsible to the 9 Chief Coroner's Office. And the Chief Coroner's Office 10 interpreted that as -- as the individual pathologist 11 being responsible to the individual investigating 12 coroners. 13 So -- and -- and couple that with the fact 14 that there was no clear role for the Director of the 15 OPFPU, Dr. Smith made it clear that he felt that he was 16 an administrator only and that, frankly, Mr. 17 Commissioner, was the view of Dr. Young as well. 18 There was no clear role spelled out for 19 the Chief Forensic Pathologist. So that in the result, 20 the institutional arrangement about which you heard 21 really did nothing to -- to enhance service, or promote 22 consistency. 23 So now where does that leave you in 24 relation to sub -- to 4A of your mandate? Well, in the 25 result, as far as policies/practices/procedures are
961 concerned, in my respectful submission, they were 2 antiquated. They were haphazard. They were inadequate. 3 And they were implemented idiosyncratically. 4 As far as accountability and oversight 5 mechanisms were concerned, they were non-existent. As 6 far as quality control measures were concerned, they were 7 virtually absent. And as far as institutional 8 arrangements were concerned, they didn't address any of 9 the above. 10 So where -- where in -- where does -- in 11 this environment does it leave Dr. Smith? Well, this was 12 the environment in which Dr. Smith and every other 13 pathologist in Ontario operated. Dr. Smith was demonized 14 at this Inquiry; for what? For the very things, in my 15 submission, that were standard operating procedure. 16 He was demonized for an absence of 17 forensic training like virtually everyone else; for 18 having been self-taught like virtually everyone else; for 19 an in-my-experience approach, like everyone else. 20 For reports that didn't discuss history, 21 circumstances, or his opinion, like everyone else. For 22 informality in dealing with others in the death 23 investigations, like everyone else. 24 For late reports, apparently a common 25 problem. Dr. Smith was quintessentially a product of his
971 environment. And Dr. Smith is not running away from any 2 of these conclusions, in fact, to the contrary. 3 He's acknowledged each of them. He's 4 agreed he wasn't adequately trained, in retrospect. He's 5 accepted that he carried out an in-my-experience 6 approach. He allowed that his reports were summary, in 7 accordance with convention. 8 He's acknowledged that he was often late 9 with his reports. He's admitted that he was far from 10 punctilious in his dealings with the police and with 11 counsel. He's agreed that he erred in his testimony in 12 certain instances. 13 And he's acknowledged that some of these 14 same practices contributed to certain mistakes which he's 15 admitted here. And I pause to draw to your attention 16 that he's the only one (1) who's done so. 17 So I want to turn to 4B of your mandate. 18 And 4B of your -- of the Order in Council, the regulator 19 -- the legislative and regulatory provisions that related 20 to pediatric forensic pathology can really be disposed of 21 quickly and easily. 22 You know that there's no reference to 23 pathology, period, in the statute, never mind forensic 24 pathology or pediatric pathology. There's no role for 25 the Chief Forensic Pathologist, and without more, nothing
981 is inadequate by definition. 2 And I don't have to spend time on this 3 because, frankly, it's reflected in the submissions of 4 other parties, including the Office of the Chief Coroner. 5 So fourthly, I told you that I wanted to 6 address briefly the larger context, the larger 7 environment, and that's the inter-relationship of 8 pediatric forensic pathology and the coronial and the 9 justice systems. 10 So number -- paragraph 4 of your mandate 11 requires you to consider the arrangements for pediatric 12 pathology as they relate to its practice and use in 13 investigations and criminal proceedings. 14 So to start with first, dealing with 15 pediatric forensic pathology we know from a plethora of 16 witnesses that it's a complex field by itself. And Dr. 17 Chiasson is the one whose evidence caught my attention; 18 the degree of complexity of the cases, he told you, is 19 quite remarkable. 20 Layered on top of this you have the 21 Coroner's Office. And we now know that this layer, as it 22 existed in the period 1981 to 2001 really didn't assist 23 much with the onerous duties on pathologists providing 24 these opinions. It didn't get them the best evidence, 25 nor in a timely manner. It didn't aid in any
991 consistency. It didn't provide any quality assurance or 2 peer review. It didn't provide any oversight or 3 accountability. 4 And then on top of the complexity of 5 pediatric forensic pathology and the intricacies of the 6 Coroner's Office, you have to consider the overlay of the 7 criminal justice system. And this is truly a maze on top 8 of a maze, because you have issues here as far as the 9 police, the prosecution, and the courts are concerned, of 10 reasonable and probable grounds premised on both the 11 medical opinion and other evidence, often at a time when 12 the opinion from the pathologist is at a very preliminary 13 stage. You may have a situation of a coroner who's been 14 involved to -- then departs the scene. 15 Exactly what the opinion is of the 16 forensic pathologist may not have crystalized, depending 17 on the histology and the results from the specimens. The 18 limits of the opinion have to be determined, and then of 19 course, the limits in the prosecution itself have to be 20 decided. 21 So the interdependence of all of the 22 various institutions and personnel is underlined in the 23 various submissions you've received here, not just from 24 us, but from others. 25 So fifthly, I said I wanted to address the
1001 background to the Inquiry and the evidence. I don't want 2 to be seen to ignore the nineteen (19) cases which served 3 as the foundation for much of the evidence heard at the 4 Inquiry. And indeed, you're directed to those cases in 5 the preamble to the Order in Council. 6 I don't obviously intend to address any of 7 those cases individually, and in answer to a question 8 raised by Mr. Lockyer this morning, our answers are found 9 in our written submissions. However, I do wish to 10 address the categorization, or the characterization of 11 those cases here at this Inquiry on countless occasions 12 as twenty (20) cases in which individuals were wrongfully 13 charged or convicted on the basis of Dr. Smith's errors. 14 Now in fairness, that was not the position 15 of the Office of the Chief Coroner following the Chief 16 Coroner's review. The Office of the Chief Coroner in its 17 public announcement stress that the errors found ranged 18 from relatively minor to more serious issues, and that, 19 in my respectful submission, has been borne out on the 20 evidence. 21 We now know that opinions reported by the 22 reviewers did not allow for the evolution of knowledge 23 and characterized as errors, opinions, which were, as far 24 as Dr. Smith was concerned, reasonable at the time, and 25 as far as we, looking back now, know were reasonable at
1011 the time. 2 In many cases, reviewers didn't indicate 3 that Dr. Smith's opinion would have fallen within a range 4 of reasonable pediatric forensic pathology opinion at the 5 time. And here I'm talking about opinions not lapped by 6 the evolution of knowledge, but -- but opinions that were 7 -- that were accepted by a reasonable body of experienced 8 opinion at the time they were given. It applies to many 9 of the asphyxia cases, as an example. 10 The reviewers in many cases, until they 11 came here, ignored the findings, opinions, conclusions, 12 of treating clinicians, which supported Dr. Smith's 13 opinions, and on which he'd relied and which they 14 acknowledged were in themselves reasonable. And clearly 15 the reviewers were not properly briefed on Ontario 16 practises and characterized as errors, aspects of reports 17 that were common and standard at the time, including the 18 -- the failure to reference consultations, opinions not 19 explained, and no discussion of mechanism. 20 Now, our analysis of the cases is found in 21 our argument. I'm not going to take you through it now. 22 But having regard to the multiplicity of 23 players and institutions, in our respectful submission, 24 it's erroneous to conclude that any individual charged 25 was charged or convicted solely on the basis of an error
1021 on the part of Dr. Smith, and certainly it didn't happen 2 in nineteen (19) or the twenty (20) cases as referred to. 3 So by way of conclusion, in arriving at 4 your overall assessment, we take the position that you 5 should be concluding that pediatric forensic pathology 6 was an uncertain, evolving, complex science; that the 7 forensic aspect was undervalued at the time and did not 8 inform the work of pathologists, generally, and pediatric 9 pathologists, specifically; that experience-based 10 opinions were the common standard in the 1980s and the 11 1990s; that what characterized dealings with forensic 12 pathologists at the time was casualness, not to say it 13 was right, but it was the common practice; and that these 14 practices arose in an inadequate legislative and 15 regulatory structure with an absence of policies and 16 practices to assist pediatric forensic pathologists, and 17 in a system with insufficient accountability and 18 oversight mechanisms; that Dr. Smith admittedly made 19 mistakes, for which he's accepted responsibility, but he 20 didn't err, as has been alleged, having regard to what 21 was considered standard and reasonable at the time. 22 That the various participants in the 23 criminal justice and coronial systems are so enmeshed 24 that it's impossible to attribute a particular outcome to 25 the actions of any single participant.
1031 And that, finally, in -- in order for you 2 to make appropriate recommendations to restore public 3 confidence in pediatric forensic pathology in Ontario, 4 and its future use in investigations and criminal 5 proceedings, Dr. Smith's failings, which he has conceded, 6 do not stand alone and should not be allowed to obscure 7 the full scope of the systemic inadequacies. 8 So, Mr. Commissioner, on behalf of our 9 client, and on behalf of my colleagues, I join others 10 here in thanking you for your courtesy and your 11 attention. 12 And I also want -- I would be remiss if I 13 didn't also extend our appreciation to your counsel for 14 their cooperation, and their good humour. Thank you. 15 COMMISSIONER STEPHEN GOUDGE: Thank you, 16 Mr. Ortved. 17 Finally, Mr. Gover, over to you. 18 19 SUBMISSIONS BY MR. BRIAN GOVER: 20 MR. BRIAN GOVER: Thank you, Mr. 21 Commissioner. Before I begin, perhaps I can hand up to 22 you a compendium of items to which I'll refer in the 23 course of my submissions. 24 Principally, they consist of documents 25 with PFP numbers. There is, however, an excerpt from the
1041 report of the Walkerton Inquiry, and there's an excerpt 2 from the report of the SARS Commission, a final report as 3 well, that may assist you. 4 COMMISSIONER STEPHEN GOUDGE: Thank you. 5 MR. BRIAN GOVER: Now, Mr. Commissioner, 6 together with Ms. Ritacca and Ms. Rachamalla, I have had 7 the privilege of appearing before you and representing 8 the Office of the Chief Coroner of Ontario, Dr. Porter, 9 Dr. McClellan, Dr. Pollanen, Dr. Chiasson, Dr. Young, Dr. 10 Cairns, Dr. Wood, Dr. Lauwers, Dr. McCallum, Dr. Eaton, 11 Dr. Lucas, Dr. Edwards, and the other Regional 12 Supervising Coroners. 13 For the sake of brevity, when I advance 14 submissions on behalf of our clients, I'm going to refer 15 to them collectively as the OCCO. 16 It is my submission that the evidence at 17 this Inquiry tells the story of evolution of oversight 18 mechanisms for forensic pathology in this province. 19 It also tells the story of vision for 20 improvement in that oversight. Ultimately, it is clear 21 that those oversight mechanisms failed. However, the 22 OCCO submits that you must take into account this 23 evolution in your review and assessment of past events. 24 Mr. Commissioner, on March 31st, 1990, Dr. 25 James Young became Chief Coroner for the province of
1051 Ontario. He had been Deputy Chief Coroner since 1987. 2 With his appointment as Chief Coroner, Dr. Young 3 inherited a death investigation system that was 4 responsible for the investigation of thirty thousand 5 (30,000) deaths per year, and which relied on forensic 6 pathology for approximately one-third (1/3) of those 7 cases. 8 I note that the current death 9 investigation system investigates somewhere around 10 twenty-two thousand (22,000) cases per year. 11 While the system that Dr. Young inherited 12 relied on forensic pathology services, it was not 13 responsible for them. We know that until September 1994 14 the OCCO and the forensic pathology branch of the 15 Ministry of the Solicitor General operated as separate 16 and distinct divisions. 17 Dr. Young, as Chief Coroner, and Dr. 18 Hillston-Smith, the provincial forensic pathologist, 19 reported independently to an assistant Deputy Minister, 20 and occupied the same administrative level within the 21 Ministry's hierarchy. Despite the fact that he was not 22 directly responsible for the forensic pathology service, 23 Dr. Young recognized that high quality death 24 investigation necessitated high quality forensic 25 pathology.
1061 In his efforts to enhance the quality of 2 services provided, Dr. Young, together with Dr. Cairns, 3 Dr. Chiasson and their team, put in place systems to 4 monitor and enhance services across the province. They 5 did so after recognizing gaps and weaknesses in the 6 system, in relation to both coroners and pathologists. 7 Working together, this team instituted a 8 series of innovative measures at a time when the concepts 9 of quality assurance and peer review were in their 10 infancy. 11 Dr. Young, Dr. Cairns, and Dr. Chiasson 12 had a vision for the future of a superior death 13 investigation system; one where physicians with different 14 expertise would work together with other professionals to 15 provide high level dependable death investigation, to 16 further the purposes of death investigation as set out in 17 the Coroners Act. 18 This team of physicians was dedicated in 19 its attempt to provide the best quality death 20 investigation to the people of Ontario, so that no death 21 would be ignored, concealed, or overlooked, and so that, 22 where possible, future deaths could be prevented. 23 Of particular significance to this 24 Commission is the OCCO's dedication to pediatric death 25 investigation and its recognition of the complexity of
1071 such investigations. 2 The OCCO's focus on pediatric death 3 investigations and the prevention of pediatric deaths 4 included consultation and collaboration with reputable 5 and highly experienced pediatric experts, and this 6 included Dr. Charles Smith, who was already well 7 established within the field of pediatric forensic 8 pathology. Dr. Smith, then considered a leading 9 pediatric pathologist, was seen by Dr. Young, Dr. Cairns, 10 and others within the OCCO as part of the solution, not 11 the problem. At the time and without the benefit of the 12 hindsight of 2008, that was a reasonable assessment. 13 Evidence at this Inquiry has shown that 14 the OCCO faced challenges beyond its control that 15 hampered its ability to fully implement its vision. 16 Ontario's death investigation system faced severe and 17 ongoing human resource shortages in all areas of forensic 18 pathology, and those deficits remain throughout the 19 chronology of events examined in the course of this 20 Inquiry. 21 In retrospect, the OCCO recognizes that 22 the system required greater and more focussed expertise 23 than was available. This shortage of expertise, 24 particularly in relation to pediatric forensic pathology, 25 was not unique to Ontario.
1081 As Dr. Young, Dr. Cairns, and Dr. Chiasson 2 advanced their vision of quality service, it was not 3 reasonably foreseeable that a situation would arise where 4 a renowned and highly respected pathologist, working in a 5 world-class institution, would fail the system in the 6 manner that is subject -- the subject of these 7 proceedings. 8 The OCCO considered Dr. Smith a key player 9 in its vision for high quality death investigation, and 10 as such, the system of oversight and quality assurance 11 was designed by Dr. Young and Dr. Chiasson in the first 12 instance to address problems arising out of the work of 13 those in the system with the least experience, and you'll 14 require -- you'll recall rather Dr. Young's testimony in 15 that regard, he said, 16 "We weren't expecting the problem to be 17 at the top." 18 As the evidence at this Inquiry 19 demonstrates, the problems, in fact, arose at a level and 20 with an individual whose competency was assumed and 21 reasonably so. The OCCO submits that there is much to be 22 gained by looking back at its history and to the events 23 that led to this Inquiry. 24 The lessons learned had been used by those 25 currently administering Ontario's death investigation
1091 system to make submissions to you, Mr. Commissioner, with 2 a view to further enhancing the quality of death 3 investigation in this province. 4 The proposed recommendations the OCCO has 5 provided to the Commission build on the unique 6 initiatives first envisioned in the 1990's. The OCCO's 7 proposals had been formulated by a team of dedicated 8 physicians who understand the history and the evolution 9 of death investigation in the province. 10 As you will hear later in these 11 submissions, the proposed recommendations are the product 12 of a working group of pathologists and coroners whose 13 work began shortly after this Commission was announced 14 and who have taken into consideration what they believe 15 are necessary, practical, and feasible enhancements to 16 the death investigation system. 17 The enhancements are focussed on three (3) 18 fundamental objectives: First, truth seeking as the 19 fundamental approach to death investigation; second, 20 further improving the quality of death investigation in 21 the province to advance public safety and the 22 administration of justice; and thirdly, the building on 23 the current organizational structure of the OCCO. 24 Now, I'd like to say something about 25 resources early on in these submissions. An overarching
1101 theme in the proposed recommendations is the need for 2 appropriate funding. The OCCO recognizes that its 3 proposals necessitate an infusion of public funds for 4 human resources, infrastructure, and technology. 5 Now before you, in its written brief, the 6 Government of Ontario has submitted that there has been 7 no evidence at this Commission linking the problems 8 associated with Dr. Smith to a lack of resources. 9 With respect, the OCCO submits that a 10 chronic lack of resources has been a persistent theme 11 throughout this Inquiry. We further submit that 12 insufficient oversight of Dr. Smith is directly connected 13 to the shortage in both human and financial resources. 14 The government has urged upon this 15 Commission a finding that the problems identified at this 16 Inquiry are due exclusively to the failings of Dr. Smith. 17 Let me say now I agree with Mr. Ortved that that position 18 is unfair. 19 It is, of course, the same position, Mr. 20 Commissioner, that the Government urged upon Commissioner 21 O'Connor at the Walkerton Inquiry. There the Government 22 of Ontario argued that Stan Koebel was solely responsible 23 for the tragedy that befell Walkerton. 24 Commissioner O'Connor rejected the 25 Government's position in Walkerton and we would urge you
1111 to do the same here. 2 Simply put, given the limits on the 3 available human and financial resources, the OCCO was not 4 in a position to act pro-actively in implementing 5 oversight mechanisms that could have prevented or limited 6 the impact of Dr. Smith's mistakes in the field of 7 pediatric forensic pathology, and in the manner in which 8 he presented his conclusions. 9 And in that respect, Mr. Commissioner, I'd 10 ask your Registrar to take us to an excerpt from the 11 Walkerton Inquiry Report that you have before you at Tab 12 1. This, Mr. Registrar, will be page 268, if you could 13 project that please. 14 And you'll see in this third paragraph on 15 that page, Mr. Commissioner, where Commissioner O'Conner 16 said: 17 "At the Inquiry the Government argued 18 that I should find that Stan Koebel was 19 the sole cause of the tragedy in 20 Walkerton. And that I should also find 21 that government failures, if any, 22 played no role. The suggestion being 23 that if it were not for Stan Koebel's 24 failures, the tragedy would not have 25 happened."
1121 Mr. Commissioner, if you could then turn 2 over two (2) pages, and Mr. Registrar, if you could now 3 project page 406, please. Here, Commissioner O'Conner 4 reviews budget reductions. 5 And I'm not alleging budget reductions 6 here, but I am saying the system was chronically 7 underfunded. Lack of resources is the -- the main point 8 common to both. And in the first full paragraph you'll 9 see that Commissioner O'Conner says: 10 "I conclude that the budget reductions 11 had two (2) types of effects on the 12 tragedy in Walkerton. First, with 13 respect to the decision to privatize 14 the laboratory testing of drinking 15 water samples, and especially the way 16 in which the decision was implemented, 17 the budget reductions are connected 18 directly to the events of May 2000." 19 But what I really commend to you is what 20 follows: 21 "Second, in the case of the MOE's 22 approvals and inspection's programs, 23 the budget reductions are indirectly 24 linked to the events in May 2000 in 25 that they made it less likely that the
1131 MOE would pursue proactive measures 2 that would have prevented or limited 3 the tragedy." 4 And I respectfully submit that the -- the 5 analogy is clear that when one thinks oversight 6 mechanisms that could have prevented the problems with 7 which this Commission of Inquiry is concerned, that all 8 of those measures would have cost substantial public 9 funds, and that given the chronic under funding of the 10 death investigation system, those who were at the helm of 11 the death investigation system can't be criticized, in my 12 submission, in any fair way for doing more than they did. 13 And in my submission, given that -- that 14 this concept of quality assurance was a nascent one, they 15 did all that was reasonable in the circumstances - 16 circumstances that included under funding. 17 Mr. Commissioner, the OCCO has candidly 18 admitted that the problems that arose with pediatric 19 forensic pathology in the 1990's were not simply the 20 result of Dr. Smith's personal failings. We urge upon 21 you that an under funded and poorly resourced system lay 22 at the heart of those problems. 23 Now, Mr. Commissioner, a few words about 24 hindsight. This Commission has been given a mandate to 25 review, assess, and report on the policies, procedures,
1141 practices, accountability and oversight mechanisms, 2 quality control measures and institutional arrangements 3 of pediatric forensic pathology in Ontario from 1981 to 4 2001 as they relate to its practice and use in 5 investigations and criminal proceedings. 6 As I have said, the oversight of Dr. Smith 7 fell short. It is easy with the benefit of hindsight to 8 look back at these events and judge those involved in the 9 death investigation system at the time. 10 We submit, that this is an unfair use of 11 hindsight. As Justice Campbell said, in the SARS 12 Commission final report, -- perhaps I could take you to 13 it, and I'll ask your Registrar to project it. 14 This will be found in your materials, Mr. 15 Commissioner, at Tab 2, and I'll ask your Registrar to 16 project initially page 19 and then page 20 under the 17 heading, "The Use and Abuse of Hindsight." 18 You'll see that Justice Campbell said: 19 "In discharging its mandate, the 20 Commission has been keenly aware that 21 it has reviewed the events with the 22 benefit of hindsight. This is an 23 ability that those who fought SARS did 24 not have as they faced a new and 25 unknown disease. Of course it is easy
1151 with the benefit of what we now know to 2 judge what happened during SARS. It is 3 easy now to say which systems were 4 inadequate and which decisions were 5 mistaken - that is the great advantage 6 of hindsight." 7 Then if I could skip a paragraph. 8 Commissioner Campbell continued: 9 "While it is not fair to use hindsight 10 to judge behaviour, it can be helpful 11 in the search for lessons to be 12 learned. Hindsight can provide great 13 assistance in determining what went 14 wrong and what went right. It includes 15 what has been learned post SARS, and it 16 can point in a direction for avoiding 17 the repetition of mistakes in the 18 future. It is essential in the 19 investigation of a public emergency 20 that the public interest be served by a 21 full account of what occurred and a 22 catalogue of the lessons to be 23 learned." 24 I pause there. And that's of course a 25 central role of any public inquiry. To continue:
1161 "To do so thoroughly will, of course, 2 require the application of hindsight. 3 This is unfair when speculation is 4 entertained that someone should have or 5 might have acted differently, even 6 though he or she did not have the 7 knowledge that only became apparent 8 after the event was over. The 9 Commission has sought to avoid the 10 unfair use of hindsight in analyzing 11 the events considered in this final 12 report, and the reader is urged to do 13 the same." 14 So, what I urge you to do, on behalf of 15 the OCCO, is to recognize that the events at issue here 16 must be considered as part of the story of oversight of 17 forensic pathology in Ontario to guard against what has 18 been characterized as the unfair use of hindsight, and to 19 bear in mind that this remains a story of evolution with 20 the OCCO at the forefront. 21 We propose to divide our submissions into 22 three (3) parts. I will address the evolution of quality 23 assurance and oversight, and then turn to the OCCO's two 24 (2) overarching proposals. Ms. Ritacca will then deal 25 with the remaining ten (10) proposals which flow from and
1171 elaborate on the two (2) overarching proposals. 2 I return then to the history. And the 3 OCCO and the forensic pathology branch, as mentioned in 4 my prefatory comments, were two (2) separate divisions 5 within the same ministry up until September 1994. They 6 were housed in the same facility. You've heard some 7 evidence about tension between coroners and pathologists, 8 and it appears that it was personality driven. 9 What is important, though, to recall is 10 that the Provincial Forensic Pathologist, Dr. Hillsdon 11 Smith, had no specific quality assurance mandate. He 12 really acted more in the nature of a consultant for the 13 province. Dr. Hillsdon Smith provided no mentorship on 14 the evidence, certainly none to Dr. Smith. And his 15 education programs were short-lived and certainly no 16 longer in place by the time Dr. Young became the Chief 17 Coroner. 18 Dr. Hillsdon Smith had been recruited from 19 the United Kingdom and was Board certified, but there was 20 no real succession planning. Fee-for-service 21 pathologists conducted virtually all of the autopsy work 22 for the province. We can assume safely, I submit, at the 23 time there was no real concern about growing forensic 24 pathology services. 25 And there was no vision for improving
1181 those services that emanated from anywhere other than the 2 Office of the Chief Coroner of Ontario. Forensic 3 pathology services were a variable quality and subject to 4 limited, if any, oversight. 5 Forensic pathology services lacked a 6 leader with a vision for the future, and the notion of 7 taking proactive steps to assure quality was completely 8 foreign to the way in which that branch worked. 9 Now Dr. Young, first as the Deputy Chief 10 Coroner and then as the Chief Coroner, recognised that 11 lack of leadership. And Dr. Young saw that there was no 12 accountability or oversight for forensic pathology 13 services offered in the province. We say this in 14 paragraph 35 of our final submissions. 15 In addition to what I've just said, that 16 paragraph states that in the latter years of Dr. Hillsdon 17 Smith's tenure it was clear to Dr. Young that the 18 Forensic Pathology Service was drifting; it lacked -- it 19 -- pardon me, it was isolated and was not administering 20 itself. 21 Mr. Commissioner, at Tab 3 you'll find the 22 excerpt from Dr. Young's testimony in that regard, Tab 3 23 of the compendium, which I provided at the outset of 24 these submissions. 25 And you'll see that Dr. Young says there -
1191 - this is December 3rd, 2007, page 106 -- essentially 2 what I have said, he points out that the branch was not 3 administering itself and that the branch was, in his 4 words, "just failing." He also indicated that the 5 Government was not pleased with the leadership in the 6 branch. 7 Dr. Young recognized then that in order to 8 foster quality death investigation as a whole, he needed 9 to ensure that the forensic pathology services offered 10 were of high quality. And he then took five (5) steps 11 that in my submission are important to bear in mind as we 12 review the narrative. He took those steps both prior to 13 and following Dr. Hillsdon Smith's retirement. 14 The first of those was to establish the 15 Ontario Pediatric Forensic Pathology Unit at the Hospital 16 for Sick Children in 1991. 17 Secondly -- and I'll take more time to 18 elaborate on this submission -- he sought funding for 19 additional regional forensic pathology units. 20 Thirdly, recognizing the need for 21 succession planning he took the decision to recruit Dr. 22 Chiasson and encourage him to obtain certification in the 23 US. 24 Fourthly, he formed several death review 25 committees. And you'll note that the Paediatric Death
1201 Review Committee had been in existence since 1989. 2 And fifthly, eventually the Forensic 3 Pathology Branch was integrated into the OCCO. 4 The evidence established that once he 5 became Chief Forensic Pathology Dr. Chiasson endorsed the 6 integration. The formal integration of the two (2) 7 divisions was, in effect, simply a formal recognition of 8 what had already been happening on the ground. 9 The post-integration vision was to build a 10 world class death investigation system in the province, 11 where those working within the system would be, as Dr. 12 Young put it, leaders in the field, not followers. He 13 had this vision even though there was no real model to 14 serve as a precedent for building and maintaining quality 15 in the system. And similarly, when Dr. Chiasson became 16 the Chief Forensic Pathologist he envisioned the 17 provision of the highest quality forensic pathology 18 services. 19 Mechanisms were put in place to instill 20 and enhance quality and they included the death review 21 committees. And I'll provide in that respect only the 22 reference to the parts of our submissions that refer to 23 the death review committees, principally the Paediatric 24 Death Review Committee and the Death Under Five 25 Committee. And you'll see that those are referred to at
1211 pages 22 through 26 and 32 through 34 of our submissions. 2 The three (3) points that I'd like to make 3 about those committees are firstly, the establishment of 4 death review committees demonstrates the OCCO's 5 longstanding ability to recognize the limits of its own 6 knowledge base by using appropriately -- appropriate 7 resources in creative and effective ways. 8 Secondly, the death review committees have 9 no advocacy role, and no direct role in investigating the 10 conduct of physicians or others involved in a person's 11 medical care. 12 And thirdly, from early on, the OCCO 13 recognized the need for expertise in the investigation of 14 child deaths. This is exemplified in the formation of 15 the PDRC and the Death Under Five Committees. 16 Now, Mr. Commissioner, the -- the next 17 area would take me to the Regional Forensic Pathology 18 Units creation, and the concept of Centre's of 19 Excellence, and I believe it is now the -- 20 COMMISSIONER STEPHEN GOUDGE: Sure. 21 MR. BRIAN GOVER: -- time for the usual 22 break. I'll return to that after the lunch and recess. 23 COMMISSIONER STEPHEN GOUDGE: Okay. 24 We'll be back then at two o'clock. And I think you are 25 just about on schedule. I think you have about two and a
1221 half (2 1/2) hours left. 2 MR. BRIAN GOVER: That's correct, thank 3 you. 4 COMMISSIONER STEPHEN GOUDGE: We'll rise 5 then until two o'clock. 6 7 --- Upon recessing at 12:46 p.m. 8 --- Upon commencing at 1:59 p.m. 9 10 THE REGISTRAR: All rise. Please be 11 seated. 12 COMMISSIONER STEPHEN GOUDGE: Mr. 13 Gover...? 14 MR. BRIAN GOVER: Thank you, Mr. 15 Commissioner. You will recall that before the luncheon 16 recessed, I was in the midst of referring to initiatives 17 undertaken by the Office of the Chief Coroner of Ontario 18 -- and in particular, Dr. Young -- in the early 1990s, 19 recognizing the vacuum that existed in relation to 20 forensic pathology. 21 And included among them was something that 22 arose out of Dr. Young's recognition that the future 23 supply of forensic pathology in the province was in 24 jeopardy. 25 He realized there was a shortage of
1231 forensic pathologists and was also concerned about 2 ensuring the quality of work across the province. 3 He envisioned a system involving regional 4 units across the province in recognition of the vast size 5 of this province. 6 And if I could refer you, then, Mr. 7 Commissioner, to PFP057564, you'll find it at Tab 4 of 8 the compendium. 9 And it's my submission -- I'll take you to 10 the second page in a moment. But it's my submission that 11 this demonstrated great foresight on the part of Dr. 12 Young. 13 Could we go to the next page please, Mr. 14 Registrar? 15 And under "Decreasing Funding for 16 Hospitals," having -- having referred to the Office of 17 the Chief Coroner's vested interest in ensuring that the 18 calibre of, and access to, forensic pathology services 19 are consistent with provincial demands, this document 20 authored by Dr. Young, under "Decreasing Funding for 21 Hospitals," says this: 22 "The majority of medicolegal autopsies, 23 cases likely to proceed to Court in 24 Ontario, are usually performed by 25 pathologists in hospital facilities.
1241 In the past pathology services in 2 Ontario received funding primarily 3 through hospital budgets. Extra costs 4 for forensic pathology were absorbed 5 from within hospital budgets." 6 And skipping down four (4) lines: 7 "For hospitals which act as unofficial 8 Regional Forensic Pathology Centres, 9 these costs have become substantial. 10 And the hospitals have increasingly 11 become aware of the depletion of their 12 resources. Hospital administrators 13 have stressed that this situation 14 cannot continue and that external 15 funding would be required. Addressing 16 this resource issue is critical to 17 continued service provision in forensic 18 pathology." 19 And then if we turn to page 4, which will 20 be PFP057568, Dr. Young expressly confronted this issue. 21 I believe it's the next page, Mr. 22 Registrar. 23 COMMISSIONER STEPHEN GOUDGE: It is page 24 5? 25 MR. BRIAN GOVER: Right, this issue of
1251 skill shortages, pointing out that: 2 "Within the next ten (10) years, the 3 expertise of many forensic pathologists 4 will be lost due to retirement. This 5 is particularly problematic, because 6 many new pathologists do not want to 7 enter the field of forensics due to the 8 complexity of medicolegal cases and 9 associated court proceedings. In 10 addition, the monetary rewards of 11 forensic pathology are not sufficiently 12 attractive. 13 The Chief Coroner then referred to the 14 increasing number of cases, and under that heading 15 described the manner in which the forensic pathology 16 branch had been working, and then described at the next 17 page the absence of Canadian standards. 18 And then, as we know, at PFP057570, in 19 Part 2 of the document, he proposed the Regional Forensic 20 Centres of Excellence model. And this involved, as we 21 see at page 7 of the document PFP057571, affiliation with 22 a local university teaching hospital and the desire to 23 make forensic pathology attractive to pathologists in 24 training. And of course the goals of the Regional 25 Forensic Centres of Excellence are set out there.
1261 Now, it is noteworthy that this vision was 2 advanced at a time when the forensic pathology branch was 3 not even formally integrated within the Office of the 4 Chief Coroner of Ontario. 5 And you heard me say at the outset of my 6 remarks that the vision which the Office of the Chief 7 Coroner advances to you today builds on the past, I'm 8 reminded in that respect, Mr. Commissioner, of the 9 discussion with Dr. Queen at the roundtable session in 10 Thunder Bay about making the Sudbury unit a -- a formal 11 regional patholo -- forensic pathology unit, the -- the 12 Northeastern Regional Forensic Pathology Unit -- very 13 much building on the vision which you see in that 14 document dated June 18th, 1993. 15 I'd also remind you, Mr. Commissioner, 16 that Dr. Randy Hanzlick, the Chief Medical Examiner for 17 Fulton County, Georgia, endorsed the provincial model for 18 Centres of Excellence, given the geographic area covered 19 by the OCCO, including remote areas that are often 20 difficult to access and the advantage of having death 21 investigations available locally. And the reference 22 there, Mr. Commissioner, is to his paper options for 23 modernizing the Ontario coroner system at page 23. 24 Now, included among these initiatives was 25 creation of the Ontario Pediatric Forensic Pathology
1271 Unit. It was the first regional unit created in the 2 province and is the only unit dedicated to the provision 3 of pediatric autopsy services. 4 You've heard a great deal of evidence 5 regarding the establishment of the OPFPU, which was a 6 joint decision of the OCCO and the Hospital for Sick 7 Children. And I won't certainly endeavour to summarize 8 all of that. Suffice to say that its establishment was a 9 recognition of five (5) things. 10 First, pediatric forensic pathology 11 requires special expertise and special training. 12 Secondly, the Hospital for Sick Children 13 is a world-renowned institution with expertise and 14 technical services not available elsewhere in the 15 province. 16 Thirdly, the Hospital for Sick Children 17 was already doing a substantial amount of work for the 18 Office of the Chief Coroner. 19 Fourthly, the Hospital for Sick Children 20 was not adequately funded for the work it was already 21 doing for the Office of the Chief Coroner. 22 And fifthly, Dr. Smith was on staff at the 23 Hospital for Sick Children and was highly motivated to do 24 medicolegal cases. 25 In the circumstances, it was fair, I
1281 submit, for the OCCO to expect that the OPFPU would 2 provide the death investigation system with quality 3 service, equivalent to the quality that is expected from 4 the Hospital for Sick Children. 5 Currently, under the direction of Dr. 6 Chiasson, the OPFPU continues to provide the OCCO with 7 quality pediatric forensic pathology autopsy services, 8 consultative advice, and a forum for education and 9 guidance in matters relating to pediatric forensic 10 pathology. 11 As you will have read in our proposed 12 recommendations, the OCCO submits that this relationship 13 should continue, and it should be further enhanced 14 through revision of the service agreement currently 15 governing that relationship. 16 Now, another aspect of the initiatives 17 undertaken in the 1990s was what I might describe as 18 enhancements to forensic pathology services. The 19 evidence has established that from the start of his 20 tenure, Dr. Chiasson took steps to increase quality and 21 oversight of forensic pathology services for the 22 province. 23 And we have described those initiatives at 24 pages 41 through 65 of our submissions. I will not go 25 through each of those enhancements in detail, but I'll
1291 refer to six (6) of them in brief. 2 They include, firstly, regional 3 coroners/pathologists -- in may ways, Mr. Commissioner, a 4 precursor to the registry that is now being proposed. 5 Secondly, peer review of post-mortem 6 reports, something which was completely new. As we know, 7 starting in 1995, Dr. Chiasson undertook to review all 8 post-mortem reports in homicides and criminally 9 suspicious cases from across the province. And that was 10 on top of his duties as the Chief Forensic Pathologist as 11 they then existed. That was on top of his review of all 12 reports generated by the Provincial Forensic Pathology 13 Unit. 14 And while this Commission has heard 15 evidence as to the limits of Dr. Chiasson's review, it 16 must be acknowledged that the process represented an 17 important recognition by the OCCO of the need to provide 18 oversight to those working within the system on a case- 19 by-case basis. 20 It was also a recognition of the primacy 21 of the Chief Forensic Pathologist over the professional 22 activities of pathologists and -- engaged in conducting 23 medicolegal autopsies. 24 Now, another initiative was recruitment of 25 full-time staff for the Provincial Forensic Pathology
1301 Unit, and that initiative is described at pages 51 2 through 54 of our submissions. 3 A fourth initiative was strengthening the 4 relationship with the OPFPU, something that we detail at 5 pages 57 through 59. 6 And, fifthly, education and training were 7 emphasized as part of this new regime for forensic 8 pathology services in Ontario. 9 The OCCO recognized that training, 10 education, and ongoing support were valuable tools for 11 quality death investigations for both coroners and 12 pathologists. And we have set out a number of the 13 initiatives the OCCO put in place throughout the 1990s, 14 in that respect, at pages 59 through 61. 15 The sixth item to which I would briefly 16 refer is case conferences, the objective there being to 17 call on the expertise of others and to come to the best 18 possible conclusions in a death investigation. And, of 19 course, you've heard a great deal of evidence in that 20 respect, and for the sake of brevity, I will not deal 21 with that in any more detail. 22 So it's my submission that the efforts by 23 the OCCO, and in particular Dr. Young and Dr. Chiasson, 24 illustrate their shared vision for quality. The 25 individuals working within the office had a sincerely
1311 held belief that they were making positive changes. And 2 in many respects those efforts did in fact represent 3 positive change to forensic pathology in this province. 4 Now, there were limitations. Despite this 5 commitment we know that many of the OCCO's initiatives 6 fell short of ensuring an appropriate level of quality in 7 death investigation, and it is particularly evident in 8 relation to the OCCO's oversight of Dr. Smith. 9 As set out in our written submissions, we 10 acknowledge those shortcomings. However, they must be 11 assessed in light of four (4) facts that are clearly 12 established by the evidence. 13 They are, firstly -- and as you've heard 14 from Mr. Ortved most recently -- firstly, the inherent 15 complexities of pediatric forensic pathology. 16 Secondly, the absence of a formal role in 17 quality assurance and oversight for the Chief Forensic 18 Pathologist. In other words, the evolution was 19 continuing, but it hadn't evolved to that point. 20 Thirdly, the prominence of Dr. Smith in 21 the field of pediatric forensic pathology. 22 And fourthly -- and yes, I'll return to it 23 -- a lack of human and financial resources. 24 Now, I'll return to each of those, but 25 I'll be brief in relation to the inherent complexities of
1321 pediatric forensic pathology. 2 Mr. Wardle's first submission to you 3 yesterday was that forensic pathology was and continues 4 to be an inexact and interpretive science, more art than 5 science. He suggested that forensic pathology, as with 6 other forensic sciences, relies on the application of 7 judgment. And we agree with that submission. 8 There's has been a great deal of evidence 9 at this Inquiry establishing the fact that pediatric 10 forensic pathology is difficult and complex subspecialty 11 of forensic pathology, which is in itself an inexact 12 science, something that was characterized by Dr. Pollanen 13 in his paper, ten (10) systemic issues. I speak now of 14 forensic pathology in general as a progressive 15 discipline. 16 And that of course is -- and I won't ask 17 the Registrar to turn it up in the interest of time. 18 That is PFP301189, and you have that at Tab 5 of the 19 compendium, Mr. Commissioner. Of course Dr. Pollanen 20 recognized that developments in knowledge may produce 21 legal controversy. 22 The cases at issue here represent some of 23 the most complex criminally suspicious cases that make 24 their way through the coroner's system. As Dr. Chiasson 25 remarked, pediatric forensic pathology cases are the most
1331 challenging cases that one can encounter, and we've 2 summarized his evidence at paragraph -- pardon me, page 3 67 of our submission. That's his evidence from December 4 10th at page 179. 5 Now the second of those four (4) 6 limitations to which I will refer is the lack of a formal 7 role for the Chief Forensic Pathologist, and that is 8 developed at pages 68 through 72 of our submissions. 9 The fact is that both the current Chief 10 Forensic Pathologist and his predecessor have had to 11 create their roles of leaders of Forensic Pathology 12 Services through consultation, collaboration, and buy-in. 13 The precise role of the Chief Forensic 14 Pathologist within the death investigation system has 15 never been codified, defined, or formally recognized. 16 Reference to the Chief Forensic Pathologist is completely 17 absent in the legislation. 18 As well, any reference to the Chief 19 Forensic Pathologist is missing from the Regional 20 Forensic Pathology Unit service agreements. It is clear 21 from the evidence that the role of the Chief Forensic 22 Pathologist in relation to the Regional Forensic 23 Pathology Units was unclear, with no reference to the 24 Chief Forensic Pathologist in the service agreements. 25 And it was, and continues to be, difficult
1341 for the Chief Forensic Pathologist to carve out an 2 oversight role over the pathologists working within the 3 various regional units. 4 The Office of the Chief Coroner of Ontario 5 recognizes that in order to enhance the primary oversight 6 role of the Chief Forensic Pathologist, these service 7 agreements must be renegotiated, as will be discussed in 8 the recommendation portion of our submissions. 9 Now the -- the third limitation that we 10 identify in oversight, despite the initiatives undertaken 11 in the 1990s, is the absence of the Chief Forensic 12 Pathologist in decision-making regarding forensic 13 pathology units. 14 And it's our submission that the Nicolas 15 and Sharon cases in particular illustrate that the Chief 16 Forensic Pathologist must be given the tools to formally 17 provide oversight of the professional activities of 18 forensic pathologists working within the system. And we 19 have referred to the Nicolas case at pages 72 through 81 20 and the Sharon case at pages 81 through 86. 21 The fourth limitation is something that 22 was explored with Dr. Smith in cross-examination. And 23 you'll recall that when I cross-examined Dr. Smith, I 24 took him to his curriculum vitae, which you have at Tab 6 25 of your compendium, and which is PFP303346.
1351 And if I could ask the Registrar, please, 2 to turn up page 130 of that document, please? 3 4 (BRIEF PAUSE) 5 6 MR. BRIAN GOVER: Of course, we know 7 that Dr. Smith became a staff pathologist at the Hospital 8 for Sick Children in 1981. His early contact with the 9 Office of the Chief Coroner was through investigating 10 coroners on a case-by-case basis. 11 By the middle of the 1980s to the late 12 1980s, he was participating in a number of speaking 13 engagements regarding pediatric forensic pathology. 14 And contrary to what Mr. Wardle said 15 yesterday, Dr. Smith appears to have gained his entree in 16 those early speaking engagements at the request of the 17 forensic services branch rather than the OCCO itself. 18 But if we look at this page under "Invited 19 Lectures," we gain insight, in my submission, into the 20 stature of Dr. Smith as at the time when Dr. Young became 21 the Chief Coroner, and beyond, frankly, up to the point 22 of integration of the forensic pathology branch and the 23 Office of the Chief Coroner. 24 We see, for example, that Dr. Smith was 25 speaking -- we see item Number 3 -- on SIDS, Sudden
1361 Infant Death Syndrome, at the Ministry of the Solicitor 2 General's Seminar on Forensic Pathology as of September 3 1985, followed up with, in fairly rapid succession, 4 speaking engagements on forensic pediatric pathology in 5 1985 and 1987, "Preventable Death in Children," "The 6 Pathologist's Death," and "Sudden Infant Death Syndrome." 7 "Unnatural Pediatric Deaths" at an education course for 8 coroners, this is item 10, October 1987. "Pediatric 9 Forensic Pathology" in June 1988. 10 And then over the next page, you'll see, 11 Mr. Commissioner, the speaking engagements, which 12 included in July 1988, a lecture to the Ontario Crown 13 Attorneys Association on accidental and non-accidental 14 death in children, carrying through February 1990 on 15 topics such as lethal child abuse, pediatric autopsy, 16 workshop on pediatric forensic pathology, the shaking 17 whiplash injury, medical aspects of child abuse, and 18 forensic pathology of infancy and childhood. 19 Of course it continues on the next page as 20 well, with lectures in Ohio at the top of the page, 21 "Pediatric -- pardon me, "Practical Pediatric Forensic 22 Pathology," and carrying on through topics which, of 23 course, are germane to the area of expertise which he 24 asserted. 25 I won't go beyond that page, but I'll
1371 summarize by saying, And so it continued. And so it 2 continued. It's clear that Dr. Smith was gaining 3 reputation in the field well before Dr. Young, Dr. 4 Cairns, and Dr. Chiasson were on the scene, before they 5 assumed control of the forensic pathology branch. 6 And as a staff member at a world-renowned 7 institution, there was an expectation with regard to the 8 quality of Dr. Smith's work, and expectation fuelled as 9 well by the fact that Dr. Smith was a protege of Dr. 10 Phillips, himself a renowned expert. 11 By the time Dr. Chiasson became the Chief 12 Forensic Pathologist, Dr. Smith was well ensconced as the 13 go-to expert in pediatric forensic pathology. In light 14 of Dr. Chiasson's very limited experience in pediatric 15 pathology at the time, it was reasonable for him to defer 16 to Dr. Smith. 17 And again, we must guard against hindsight 18 and recall the context of the times. In the 1990s there 19 was a dearth of formally trained forensic pathologists. 20 It was not unusual, therefore, to rely on the expertise 21 of a professional with experience, if not the formal 22 training that we would now expect. 23 In light of Dr. Chiasson's limited 24 experience, it made it difficult for him to challenge Dr. 25 Smith. In addition, it was certainly Dr. Chiasson's
1381 impression that Dr. Smith would not have readily accepted 2 any assertion of control, oversight, quality assurance, 3 or any type of discussion with Dr. Chiasson regarding 4 cases with which he had been involved. 5 So the decisions made by the OCCO and by 6 the individuals therein with regard to Dr. Smith must be 7 assessed in light of the reputation and prominence of Dr. 8 Smith in the field of pediatric forensic pathology and 9 not, I say with respect, with the benefit of the 10 hindsight that characterizes several of the parties' 11 submissions to you. 12 That said, we acknowledge that Dr. Smith's 13 prominence in the field undercut Dr. Chiasson's ability 14 to properly oversee Dr. Smith in the same way he would 15 other pathologists. 16 Now, I am returning to this subject of 17 lack of resources. As I said before the lunch hour, the 18 evidence has established that the OCCO has been plagued 19 by a severe shortage of qualified and experienced 20 pathologists willing to engage in forensic work. As a 21 result, ongoing pressure is being placed on any attempts 22 the OCCO to improve the situation, in terms of forensic 23 pathology in this province. This was particularly 24 evident in Dr. Chiasson's attempts at recruiting for the 25 Provincial Forensic Pathology Unit.
1391 A key factor underpinning this shortage of 2 human resources was an acute lack of financial resources, 3 which has had a fundamental impact on every aspect of 4 death investigation throughout the period that has been 5 the subject of this inquiry. 6 The fact is that little financial 7 incentive exists for pathologists to perform medicolegal 8 autopsies when hospital-based community pathology 9 continues to provide better compensation. And the irony, 10 Mr. Commissioner, is that the competition for this 11 expertise comes from the broader public sector, comes 12 from the hospital sector. 13 And a very good example is the example of 14 Dr. Queen leaving his staff position at the Provincial 15 Forensic Pathology Unit in 1999 to do similar work in a 16 hospital setting for a significantly greater 17 remuneration. 18 I say as well that the fact is that the 19 staffing crisis at the Provincial Forensic Pathology Unit 20 had an impact on the revisioning of the Ontario Pediatric 21 Forensic Pathology Unit. 22 The evidence has shown that Dr. Chiasson's 23 vision for a fully staffed pediatric forensic pathology 24 unit was realized by short lived. He described 1999, the 25 year he lost all but one (1) of his full-time staff as
1401 his horrible year. This had implications on his greater 2 vision for quality forensic pathology services across the 3 province, and in particular for his revisioning plans for 4 the OPFPU. In that sense it's perhaps more direct than 5 the type of indirect cause of lack of financial resources 6 to which I referred near the outset of these submissions. 7 We've set out in our submissions Dr. 8 Chiasson' attempts at asserting greater oversight of the 9 OPFPU and Dr. Smith. Those submissions can be found at 10 pages 99 through 101. 11 The OCCO submits that Dr. Chiasson's 12 revisioning plans would have helped identify and possibly 13 correct issues regarding Dr. Smith. However, 14 circumstances beyond Dr. Chiasson's control made it 15 impossible for his plans to be realized. 16 Now, timeliness of reports is a separate 17 issue that I'm going to refer to now, but it illustrates 18 other points as well. The evidence before this 19 Commission has established that report timeliness was and 20 continues to be a major problem for the OCCO. With 21 limited resources to properly track reports, and with few 22 options available in terms of pathologists capable and 23 willing to do the work, the issue of timeliness is a 24 difficult one. This was particularly true with regard to 25 the cases performed by Dr. Smith.
1411 Simply stated, the OCCO did not have the 2 option of removing Dr. Smith from his case work for 3 chronic tardiness. Indeed, when Dr. Smith asked to be 4 removed from conducting medicolegal autopsies in 2001, 5 this resulted in workload problems for the remaining 6 pathologists performing those autopsies, and a backlog of 7 cases at the Hospital for Sick Children, as only a few 8 other pathologists were able and willing to do pediatric 9 medicolegal work. 10 Now another issue on the subject of 11 structural limits, has to do with ability to track 12 criminal cases, and the cacobitent (phonetic) ability to 13 know the outcomes of criminal cases. The OCCO did not 14 and still does not have the appropriate resources or 15 technical -- or technological capabilities to keep track 16 of a pathologists case backlog or of a case as it makes 17 its way through the criminal justice system. There was 18 and continues to be no formalized system within the OCCO 19 which allows the effect of monitoring of cases proceeding 20 through the criminal justice system. 21 And of course the Amber case reviewed at 22 this Inquiry illustrates the OCCO's inability to formally 23 track cases in that regard. Justice Dunn's reasons for 24 decision were never formally brought to Dr. Young's 25 attention by anyone directly involved in the case or in
1421 any other direct manner. Dr. Young's primary source of 2 information regarding the acquittal was Dr. Smith. And 3 as this Commission has heard, Dr. Smith misled Dr. Young 4 and others with regard to his conversation with Justice 5 Dunn. And that is summarized in pages 112 through 117 of 6 our submission. 7 Dr. Young testified that in his view it 8 would be a monumental feat to track cases at every step 9 of the criminal justice process. The OCCO agrees that 10 such tracking would indeed require appropriate resources 11 and technological improvements that are not currently 12 available to it. 13 Now a suggestion may be to import some of 14 the technology from the Ministry of the Attorney General 15 used to track cases in the Ontario Court of Justice and 16 the Superior Court of Justice -- 17 COMMISSIONER STEPHEN GOUDGE: The 18 suggestion's been made that the Crown's do that. 19 MR. BRIAN GOVER: Right. 20 COMMISSIONER STEPHEN GOUDGE: Or that the 21 Crown's office -- 22 MR. BRIAN GOVER: Exactly. Exactly. So 23 with additional resources that could be done. 24 COMMISSIONER STEPHEN GOUDGE: Right. I 25 mean, the OCCO has no problem tracking up to the point of
1431 the post-mortem report. I mean, you suggest that that's 2 appropriate and should be done on a centralized basis. 3 MR. BRIAN GOVER: That's right. 4 COMMISSIONER STEPHEN GOUDGE: Once it 5 gets beyond that and into the hands of the criminal 6 justice authorities beyond that, the suggestion that has 7 been put, I have forgotten by who, was that the tracking 8 moves over to the Crown. 9 MR. BRIAN GOVER: Right. And in fact -- 10 COMMISSIONER STEPHEN GOUDGE: What is the 11 reaction of the OCCO to that? 12 MR. BRIAN GOVER: Well -- 13 COMMISSIONER STEPHEN GOUDGE: Does that 14 seem to make sense? 15 MR. BRIAN GOVER: That seems to make 16 sense. That's dependant on a degree of communication, 17 but undoubtedly capable and dedicated people would apply 18 themselves to that, and I'm confident it would occur. 19 It may be that -- that a direct access to 20 the case management systems used by the Ministry would be 21 of assistance in that respect as well. I'd also like to 22 speak briefly about the limitation of the complaints 23 process available. 24 The OCCO recognizes the importance of 25 accountability as a means of ensuring and restoring
1441 public confidence. And we acknowledge that during the 2 1990's there were limited accountability mechanisms for 3 physicians working within the system. 4 In large measure this was due to the 5 limited financial resources afforded these mechanisms and 6 because of the ongoing concern over recruiting and 7 retaining professionals. 8 I note that even the mechanisms available, 9 principally complaints to the Chief Coroner of Ontario 10 and the College of Physicians and Surgeons, at that time, 11 failed to fully identify or address the issues related to 12 Dr. Smith which have now been brought to light by the 13 evidence presented at this Commission. 14 As set out in our submissions beginning at 15 page 127, the OCCO submits that there are two (2) 16 fundamental reasons to explain this failing. 17 The first of those reasons is that Dr. 18 Smith was the preeminent expert in the field, and he 19 misled both the OCCO and the CPSO with regard to some of 20 the cases under review, and two (2) best examples are the 21 -- the Amber case and the Jenna case. 22 Secondly, neither the OCCO or the CPSO 23 engaged the appropriate experts to assess Dr. Smith's 24 conduct and competency, in part, because as discussed, 25 the field of pediatric forensic pathology is complex, and
1451 there are relatively few experts available. 2 Well, one (1) of the Coroners' Council, 3 and we know that that can be dealt with briefly, it's -- 4 it's dealt with at pages 127 through 128 of our 5 submission, and it was established to deal with 6 complaints from families or others respecting the work of 7 coroners in the death investigation process. 8 Any significant complaint about a coroner 9 would be referred to the Coroners' Council which would 10 decide the appropriate action to be taken. That action 11 could range from an interview to a full hearing which 12 would be presided over by a Judge with witnesses and 13 legal counsel representing the various parties. 14 On the evidence, the Coroners' Council 15 conducted very few such full hearings. It derived its 16 authority from Section 7 of the Coroners Act, but the 17 council was disbanded on December 18th, 1998 when 18 Sections 6 and 7 of the Coroners Act were repealed. 19 During an era of fiscal restraint, the 20 Government of Ontario abolished the Coroners' Council and 21 this left only the Chief Coroner of Ontario available to 22 address complaints to his office. 23 Now, there was this jurisdictional issue 24 concerning the College of Physicians and Surgeons of 25 Ontario. Dr. Young's position, with regard to the CPSO's
1461 jurisdiction, was not exerted to protect Dr. Smith or the 2 reputation of the OCCO. We submit it was reasonably held 3 and supported by the CPSO at the time, and you'll see the 4 submissions in that respect at pages 128 through 133 of 5 our written submissions to you. 6 Now, at the time, Dr. Young was clearly 7 concerned that he was not going to be able to recruit the 8 professionals required if they would be vulnerable to too 9 many oversight processes. 10 And perhaps I could briefly take you to 11 Tab 7 of the compendium, Mr. Commissioner, and your 12 Registrar will have this excerpt of transcript. This is 13 from November 30th, 2007, page 17, lines 2 through 22, 14 and it has to do with this question of complaint chill or 15 regulatory chill, where Dr. Young said: 16 "Every step of discipline carries with 17 it -- I'm not opposed to discipline 18 and review but if there's -- the more 19 different forums, and families move 20 from one (1) to the other, to the 21 other, to the other, eventually you 22 tire people out and they say, I won't 23 do this work anymore." 24 He gave the example of someone who 25 conducted a review as a favour for the office and ended
1471 up involved with the College for two (2) years, and he 2 said: 3 "This upsets people tremendously, to go 4 through these sorts of hearings. [and 5 concludes] I've got a system to run as 6 well, and I, with too much review, I 7 can't run the system. I run out of 8 people who are willing to do it." 9 Now, we recognize the important role of 10 the College of Physicians and Surgeons of Ontario in 11 professional regulation of physicians working in the 12 death investigation system. And we have made a number of 13 recommendations concerning the OCCO's own role in the 14 oversight of those same physicians. 15 One such recommendation is the creation of 16 a registry for appropriately credentialed forensic 17 pathologists conducting medicolegal autopsies. 18 Yesterday, Ms. Silver, for the college, 19 expressed concern that the OCCO's position -- that the 20 information collected through the registry will not be 21 automatically shared. Let me make it clear, the OCCO 22 stands by its submission found at paragraphs 48 and 49 of 23 our reply submissions, and there we said this -- this is 24 at page 19, paragraphs 48 and 49: 25 "In Recommendation 5 the CPSO proposes
1481 that those pathologists placed on the 2 provincial registry consent to 3 information being shared between the 4 Board managing the Registry and the 5 CPSO. The OCCO cannot accept this 6 proposed recommendation. The OCCO is 7 unaware of any such requirement imposed 8 in other healthcare settings. Clearly, 9 the potential consequences for such a 10 requirement have not been fully 11 considered. The CPSO's proposal has 12 privacy implications that would, no 13 doubt, have a chilling effect on those 14 applying for inclusion on the 15 Registry." 16 Now, that was -- our submission was 17 characterized as pure speculation yesterday, but, in fact 18 -- I'm taking you to a reference to the evidence already 19 in my submission. That concern is not only born out of 20 common sense, it's also grounded in the evidence. 21 And, clearly, there is a concern about the 22 chilling effect on, what appears to be, a fragile 23 subspecialty; a chilling effect -- and the ability to 24 attract experts to do important work in the death 25 investigation system of this province.
1491 This is a valid concern, in my submission, 2 on the part of the OCCO, and let me add, we've understood 3 the impact of the -- this Commission of Inquiry to be a 4 concern to your staff as well, and we recognize that we 5 endorse the view. One has to be aware that you could 6 lose the ability to attract people to this area if they 7 are singled out for special treatment that would not be 8 applicable in any healthcare setting. 9 COMMISSIONER STEPHEN GOUDGE: Is it the 10 special treatment the -- that concerns you, Mr. Gover? 11 MR. BRIAN GOVER: It is -- it is in the 12 sense... 13 COMMISSIONER STEPHEN GOUDGE: In some 14 sense, one could make the general assertion that, to a 15 degree, vigilant oversight and chill go together, and the 16 question, I guess, that I have to grapple with -- and I'd 17 be grateful if you -- the OCCO can give me any help on 18 this -- as between those two (2), effective oversight and 19 creating chill, which should one tilt towards? 20 MR. BRIAN GOVER: You tilt toward 21 oversight. You tilt toward oversight, but you get there 22 already through the oversight mechanisms that we're 23 advocating which include a role for the College of 24 Physicians and Surgeons, but which include the -- the 25 special complaints sub-committee that I'll be coming to
1501 in a moment. 2 COMMISSIONER STEPHEN GOUDGE: Right. 3 MR. BRIAN GOVER: And in the time 4 remaining then, I will re -- I will return to this 5 subject of the OCCO's proposed recommendations. I note 6 that I've not dealt with the issue of reviews of Dr. 7 Smith's work conducted in 2001 and 2005, and we've dealt 8 with those issues at pages 133 through 148 of our written 9 submissions. So I turn then to this question of lessons 10 learned and proposed recommendations. 11 As I've indicated earlier, the proposed 12 recommendations made by the Office of the Chief Coroner 13 of Ontario are a collaborative effort of a number of 14 dedicated and knowledgeable members of the death -- death 15 investigation team, coroners, and pathologists. 16 And I urge them upon you as being both 17 considered and based upon practical experience. In our 18 view, these recommendations are both feasible and 19 concrete, based on real life experience by those on the 20 inside. Therefore, in our submission, these proposed 21 recommendations merit serious consideration by the 22 Commission. 23 I'm going to develop the two (2) 24 overarching themes from which other proposals flow, and 25 it will be Ms. Ritacca's role, then, to explain these to
1511 you in greater detail. The first of these is born out of 2 a recognition that accountability and oversight of death 3 investigation is crucial to the Office's responsibility 4 in discharging its duties under the Coroners Act. 5 Additionally, in terms of accountability 6 and oversight, we say that it has to be transparent and 7 responsive to its stakeholders and clients. And this, we 8 say, necessitates the creation of a death investigation 9 council to provide oversight for death investigation in 10 Ontario. 11 We say that as part of that concept, the 12 Chief Coroner of Ontario and the Chief Forensic 13 Pathologist should be directly accountable to the council 14 which itself would be independent of the office and the 15 Government. 16 Secondly, we say that to facilitate 17 creation of the death investigation advisory council and 18 to facilitate implementation of the ten (10) proposed 19 recommendations that we'll come to, there must be 20 substantial amendment to the Coroners Act. 21 So I'll deal with this general concept of 22 enhanced accountability and oversight, and I'll deal with 23 -- with the much needed amendment of the Coroners Act in 24 the balance of the time that I'll take before turning 25 over the podium to Ms. Ritacca.
1521 COMMISSIONER STEPHEN GOUDGE: Questions 2 about the council are for you or for Ms. Ritacca? 3 MR. BRIAN GOVER: They're for me and will 4 be coming. 5 COMMISSIONER STEPHEN GOUDGE: All right. 6 MR. BRIAN GOVER: I'm getting a look. And 7 -- and I'll be coming to, for example, the chart that you 8 find at Tab F, page 2 of our written submission, -- 9 COMMISSIONER STEPHEN GOUDGE: Right. 10 MR. BRIAN GOVER: -- and I'll endeavour 11 to persuade you that it will work in real life. 12 COMMISSIONER STEPHEN GOUDGE: Okay. 13 MR. BRIAN GOVER: Before we get there, we 14 recognize that this is a -- that -- the -- the Government 15 structure that we propose is a significant departure from 16 a traditional hierarchical or command-in-control 17 organizational model. 18 Those who work within the system see this 19 as the best way of addressing the evolution of quality 20 and oversight for the death investigation system. And as 21 set out in our introductory remarks, we also recognize 22 that the realization of each of these proposed 23 recommendations will require an infusion of additional 24 resources. That said, we submit that these proposals are 25 not only reasonable, but necessary for the further
1531 enhancement of the death investigation system in the 2 province. 3 Now, so that we're not completely in the 4 dark about what it is that Ms. Ritacca will be fleshing 5 out in her submissions, in addition to the two (2) key 6 proposals, the Advisory Council and the statutory 7 changes, the OCCO has proposed recommendations in ten 8 (10) other areas falling from -- or flowing from those 9 two (2). 10 First of all, a strategic plan for the 11 OCCO that would be comprehensive. 12 Secondly, development of new and enhanced 13 leadership mechanisms. 14 Thirdly, enhancement and growth of a 15 culture of quality. 16 Fourthly, the creation of the Ontario 17 Forensic Pathology Service. 18 Fifthly, the future of pediatric forensic 19 pathology. 20 Accreditation of coroners and 21 pathologists, education for death investigation, and 22 information, communication, technology enhancements. 23 In addition, Ms. Ritacca will discuss the 24 concepts of regionalisation, and beth -- best practices 25 of the death investigation team.
1541 So let me turn to this question of the 2 council, which we've styled as the Death Investigation 3 Advisory Council. 4 And you'll find in our submissions at Tab 5 F, initially at the first page, you'll see the status 6 quo. And in the status quo, the Chief Coroner reports 7 directly to the Deputy Minister or Assistant Deputy 8 Minister, and is, herself, reported to by the Chief 9 Forensic Pathologist for forensic pathology services, and 10 by the Deputy Chief Coroners for investigations and 11 inquests. 12 Now, if you turn to the next page, you see 13 our proposed organizational structure for accountability 14 and oversight. 15 And the Chief Coroner of Ontario and the 16 Chief Forensic Pathologist, in this model, are 17 independently accountable to the Death Investigation 18 Advisory Council. 19 In addition, the Chief Coroner of Ontario 20 continues to be accountable to the Government for all 21 facets of the death investigation system, including 22 forensic pathology services. 23 Now there's a dotted line there, and it 24 seems that -- that dotted lines always attract attention 25 on organizational charts.
1551 The dotted line relationship between the 2 Chief Coroner of Ontario and the Chief Forensic 3 Pathologist is meant to convey that the Chief Forensic 4 Pathologist directs and controls forensic pathology 5 services for the province. 6 The Chief Coroner of Ontario directs, 7 supervises and controls death investigation in the 8 province. And as we've heard throughout the Inquiry, the 9 Office of the Chief Coroner of Ontario is a major client 10 of the forensic pathology service, and as such, has a 11 direct interest in the quality of the service. 12 Further, the Office of the Chief Coroner 13 believes that there is significant public benefit to 14 having one (1) person as the face of -- the -- the public 15 face of, really -- death investigation for the province, 16 and one (1) person to be accountable for it. 17 Finally, for budgetary and operational 18 purposes, both the Chief Forensic Pathologist and the 19 Chief Coroner of Ontario would be accountable to the 20 council. 21 This recognizes the professional autonomy 22 of the Chief Forensic Pathologist and of forensic 23 pathologists from the rest of the death investigation 24 team, while, at the same time, nurturing the 25 interdependence of the pathologist and coroner to
1561 facilitate high quality death investigation. 2 Therefore, in our submission, there should 3 be no real concern regarding conflict between the two (2) 4 arms of death investigation. Any tension would be 5 resolved by the independent counsel. Now -- 6 COMMISSIONER STEPHEN GOUDGE: And each of 7 the branches would have its budget envelope to take a 8 particular example? 9 MR. BRIAN GOVER: That's right. That's 10 right. And we say that in order for it to provide true 11 accountability, it has to be, in some measure, 12 independent from the Government. 13 And the council's primary function is to 14 provide governance and stewardship to the system of death 15 investigation in Ontario. 16 This is a theme that we developed in our 17 submissions at paragraph 518 -- 18 COMMISSIONER STEPHEN GOUDGE: Right. 19 MR. BRIAN GOVER: -- page 190. 20 COMMISSIONER STEPHEN GOUDGE: And I take 21 it, it is driven largely by the two (2) parameters of 22 independence and effective oversight. 23 MR. BRIAN GOVER: That's right. 24 And in this model, the council will 25 provide direction regarding strategic planning to both
1571 the Chief Forensic Pathologist and the Chief Coroner. 2 The council would assist in setting 3 strategic priorities within each fiscal year, quality in 4 death investigation, reviews of performance expectations 5 within the Office of the Chief Coroner, and it would 6 provide guidance in relation to ethical issues. 7 Now, we would also have a Director of 8 Quality of the Office of the Chief Coroner, reporting 9 directly to the council. 10 COMMISSIONER STEPHEN GOUDGE: Are you 11 going to talk a little about its make-up, that is, the 12 council? 13 MR. BRIAN GOVER: Yes, I will. 14 COMMISSIONER STEPHEN GOUDGE: Okay. 15 MR. BRIAN GOVER: In fact I'm just coming 16 to that. 17 COMMISSIONER STEPHEN GOUDGE: Okay. 18 MR. BRIAN GOVER: And -- and you may well 19 refine what we propose in this respect. I expect you 20 will, but -- 21 COMMISSIONER STEPHEN GOUDGE: I do not 22 consider myself a specialist in refining councils just 23 yet, Mr. Gover. 24 MR. BRIAN GOVER: Well -- well, fair 25 enough.
1581 COMMISSIONER STEPHEN GOUDGE: I am 2 interested in this basic question. To a degree, this 3 seems to me to be partially a -- if I can put it this way 4 -- private stakeholder-made-up council. Take, for 5 example, the President of the Ontario Association of 6 Pathologists and the President of the Ontario Coroner's 7 Association, okay. 8 MR. BRIAN GOVER: Yes. 9 COMMISSIONER STEPHEN GOUDGE: So in that 10 sense, its stakeholder. Is this to be a kind of 11 representative stakeholder council, or is to be more 12 along the lines of to take the one (1) we heard about, 13 the Victoria Institute, which has almost no private 14 stakeholder membership? 15 MR. BRIAN GOVER: We see this -- to use 16 your word from earlier, "tilting", tilting more toward 17 governance. In other words, borne out of a skill set 18 than a -- than a special interest stakeholders group. 19 COMMISSIONER STEPHEN GOUDGE: Why? 20 MR. BRIAN GOVER: Because of the need to 21 foster independence and, frankly, to draw on -- on the 22 skills that are greatly needed in order to provide the 23 degree of governance and oversight that we say there 24 ought to be to foster accountability. 25 COMMISSIONER STEPHEN GOUDGE: Okay.
1591 MR. BRIAN GOVER: And we say that -- that 2 stakeholder involvement can be added in greater measure 3 when we get down to the level of advisory committees. 4 COMMISSIONER STEPHEN GOUDGE: Yes, I was 5 going to ask you a little about that, on page 2 of Tab F, 6 just to make sure I understand the boxes. If I could get 7 you turn to that. 8 The Forensic Services Advisory Committee 9 is the committee we know and have heard about. 10 MR. BRIAN GOVER: That's true. 11 COMMISSIONER STEPHEN GOUDGE: Forensic 12 Pathology Advisory Committee, we know and I have not yet 13 seen; that is a thought, that is -- 14 MR. BRIAN GOVER: That's correct. 15 COMMISSIONER STEPHEN GOUDGE: Okay. Are 16 there any other advisory committees that are contemplated 17 that would provide stakeholder input and, if so, where 18 would you see them going? Or is that a refinement that 19 would see the light of day in the future? 20 MR. BRIAN GOVER: In the main, that's a 21 refinement for the future. 22 COMMISSIONER STEPHEN GOUDGE: Okay. 23 MR. BRIAN GOVER: We do have the 24 potential for some involvement in the Family Liaison 25 Service, which you see as the box between the --
1601 COMMISSIONER STEPHEN GOUDGE: Right, 2 right. 3 MR. BRIAN GOVER: -- the two (2) Deputy 4 Chief Coroners. 5 COMMISSIONER STEPHEN GOUDGE: Right, but 6 that is a line position. 7 MR. BRIAN GOVER: Right. That's right. 8 COMMISSIONER STEPHEN GOUDGE: Okay. 9 MR. BRIAN GOVER: So, let me deal with 10 this question of membership in the council. 11 COMMISSIONER STEPHEN GOUDGE: Yes. 12 MR. BRIAN GOVER: And as we've set out in 13 our proposed legislative initiatives, the council's 14 membership would be governed by regulation and the Chair, 15 as we see it, would be a Judge of the Superior Court of 16 Justice. 17 COMMISSIONER STEPHEN GOUDGE: That is the 18 thesis in having a member of the judiciary? 19 MR. BRIAN GOVER: And let me say, I 20 recognize there's been a trend away from having judicial 21 officers as, for example, members of the Police Services 22 Boards and so on. I recognise that to some extent this 23 bucks a trend. 24 COMMISSIONER STEPHEN GOUDGE: We are 25 supposed to stick to our knitting, as it were.
1611 MR. BRIAN GOVER: Right. This -- this 2 bucks the trend. 3 COMMISSIONER STEPHEN GOUDGE: I mean, but 4 it could. I mean, we heard that it is value-added in 5 Victoria. 6 MR. BRIAN GOVER: Well, in fact, we 7 accept that. We endorse that view, and we see the -- the 8 interest of the criminal justice system in the work of 9 the death investigation team in that small subset of 10 cases that find their way into the criminal justice 11 system as so important that we say it would be 12 appropriate to call upon a Judge of the Superior Court. 13 COMMISSIONER STEPHEN GOUDGE: So that is 14 because of their expertise in the criminal justice 15 system. 16 MR. BRIAN GOVER: Well, that's right, and 17 also, frankly, the authority of the office. 18 COMMISSIONER STEPHEN GOUDGE: Well those 19 two (2) are slightly different for me. 20 MR. BRIAN GOVER: Yes, but experience and 21 authority both, in my submission, auger in favour -- 22 COMMISSIONER STEPHEN GOUDGE: I mean let 23 me just lay it right out on the -- I mean one (1) of the 24 concerns about the authority of the office is, does that 25 get the judiciary off an independence and into an
1621 exercise of authority of the office that is other than 2 adjudication. 3 MR. BRIAN GOVER: That's always going to 4 be a concern of, especially, Chief Justices, when members 5 of their Court are called upon to do this. In -- in our 6 submission, there's ample justification for it though -- 7 COMMISSIONER STEPHEN GOUDGE: Okay. 8 MR. BRIAN GOVER: -- in this instance. 9 COMMISSIONER STEPHEN GOUDGE: Okay. 10 MR. BRIAN GOVER: And -- and you'll see 11 that other members include the ex-officio members, the 12 Chief Coroner and the Chief Forensic Pathologist -- 13 COMMISSIONER STEPHEN GOUDGE: Yes. 14 MR. BRIAN GOVER: -- as well as the 15 Director of Quality. We see that skill set being added 16 by having the president and CEO of a health care 17 corporation, the Dean of Medicine of a medical -- 18 COMMISSIONER STEPHEN GOUDGE: Okay, just 19 stopping there. I -- implicit in that for me when I read 20 it was, this is, in effect, business management 21 expertise? 22 MR. BRIAN GOVER: Well that's right. 23 That's right. And -- and when you have the CCO, the 24 Chief Coroner and the Chief Forensic Pathologist 25 explaining the need for their budget and, frankly, you
1631 have an interlocutor with the Government in the form of 2 this Council to enhance funding, you need people with the 3 expertise to look at business plans and, where 4 appropriate, endorse them. 5 And -- and we see, as well, the Dean of a 6 medical school adding value. A nominee of the Ministry 7 of -- or Minister rather of Health and Long Term Care, of 8 the Attorney General. As well we see that the Director 9 of the Centre of Forensic Sciences would have a role, or 10 his delegate. 11 And then as you pointed out, the President 12 of the two (2) associations as well as some public 13 involvement in the form of four (4) Lieutenant Governor 14 in Council appointments. Now we see member of the 15 Council, as I've said, having a required skill set and 16 not a special interest to be brought to bear. 17 The council -- 18 COMMISSIONER STEPHEN GOUDGE: Are there 19 any models in Ontario for anything like this, Mr. Gover, 20 or is this sort of cut out a whole cloth given what we've 21 heard, and the need's we've heard about? 22 MR. BRIAN GOVER: I've given some thought 23 to that question. I see this as -- as sui generous. I 24 can't think of another example. And we recognize the 25 need for and the role of stakeholders on advisory
1641 committees, as -- as discussed elsewhere. 2 Now this question of accountability has to 3 be unpacked to some extent too. Are we talking about 4 accountability to the council, or accountability to the 5 Government. 6 And, as we see it, following creation of 7 this council, the Chief Coroner of Ontario should receive 8 oversight and be accountable to the council for death 9 investigation. 10 But the Office of the Chief Coroner would 11 become operationally independent of government, and the 12 Office of the Chief Coroner would report annually to the 13 council. 14 But the Office of the Chief Coroner would 15 remain in the Ontario Public Service; would remain within 16 the Ministry of Community Safety and Correctional 17 Services, and derive administrative services from that 18 Ministry. 19 And you'll recall Dr. Young expressing the 20 concern about the plight of small organizations in 21 government when he said -- he was asked about carving off 22 the forensic pathology branch again from the Office of 23 the Chief Coroner. 24 And his point was that small organizations 25 on their own don't flourish. And given his many years in
1651 public administration, that, in my submission to you, is 2 advice that ought not to be rejected lightly. 3 So it would be essential for there to be a 4 continuing link to the Ministry to allow for developing 5 financial and resource plans for each fiscal year. As 6 well, the Minister's powers under section 22 of the Act 7 would continue. 8 And the Minister should continue to be 9 informed of any high profile deaths which might evolve to 10 become issues of sensitivity to the Government. Now a 11 subcommittee of the council, you'll see over here -- 12 COMMISSIONER STEPHEN GOUDGE: Just before 13 you leave the council, is there -- there's no nominee 14 suggested from what I keep calling the "Minister of the 15 Solicitor General." I recognize it's got a much longer 16 name now, but the Ministry to which the OCCO presently 17 reports. 18 Is there any express reason for that, or 19 is it implicitly -- there's a direct report from the OCCO 20 to that Ministry anyway? 21 MR. BRIAN GOVER: Well that's -- that's 22 exactly the answer, Mr. Commissioner. We see that level 23 of -- of oversight being allowed for without -- 24 COMMISSIONER STEPHEN GOUDGE: Okay. 25 MR. BRIAN GOVER: -- putting someone from
1661 that Ministry on the council. 2 On this question of accountability and 3 complaints though, you'll see this other box in the top 4 left on page 2 of Tab F. 5 COMMISSIONER STEPHEN GOUDGE: Right. 6 MR. BRIAN GOVER: And, as we see it, this 7 subcommittee of the council, Accountability and 8 Complaints Committee, would have the ability to hear 9 complaints regarding all participants in the death 10 investigation team. Now, details of the membership of 11 this committee are set out at page 192 of our submission. 12 The committee would serve as the point of 13 contact for members of the public who might find 14 interaction with the various service providers in the 15 death investigation system to be confusing or otherwise 16 challenging. 17 A committee can serve as the gatekeeper 18 and coordinator of complaints from the public without 19 duplicating functions performed by the professional 20 regulator here; the -- the key one, of course, being the 21 College of Physicians and Surgeons. Of course there is a 22 forensic odontologist as we know, and he has his own 23 professional regulator. 24 Now, contrary to what Mr. Wardle submitted 25 yesterday, it's our submission that the committee
1671 envisioned will, if I could put it in the vernacular, 2 have teeth. 3 The committee should triage complaints and 4 direct those to concerned regulatory bodies where 5 possible. And the committee should also be available to 6 hear complaints and adjudicate matters where appropriate. 7 Where the committee decides to adjudicate 8 a matter and where the committee finds fault or 9 misconduct, it could impose a sanction such as impact on 10 one's status on the registry and/or use of that 11 physician. 12 The public would have access to the 13 committee through the Family Liaison Service or other 14 senior members of the Office of the Chief Coroner. Now-- 15 COMMISSIONER STEPHEN GOUDGE: Okay. So 16 there is, in effect, a sanction power, not just a 17 remediation power? 18 MR. BRIAN GOVER: That's right. 19 COMMISSIONER STEPHEN GOUDGE: And does 20 the sanction -- it is directed at the registry. That is 21 the example you use? 22 MR. BRIAN GOVER: Yes. 23 COMMISSIONER STEPHEN GOUDGE: Okay. 24 Short of the registry, I mean this is a just generalized 25 question with which, I guess, everybody has scratched
1681 their heads for a while, Mr. Gover. Short of removal 2 from the registry, given that a number of people 3 performing this service are not going to be direct 4 employees of the OCCO, but are going to be hospital 5 pathologists, fee-for-service service providers, what 6 other forms of tools are available? 7 MR. BRIAN GOVER: Well, one (1) that 8 comes to mind is the -- the counselling session that has 9 various emanations in the professional discipline realm. 10 Sometimes we call it a "reprimand," but -- and it depends 11 on the stage of course. Complaints committees issue 12 cautions and discipline committees issue reprimands. 13 I see a role for this death investigation 14 accountability and complaints committee being, where a 15 case falls into the situation of falling short of 16 meriting removal from the registry, perhaps saying -- 17 COMMISSIONER STEPHEN GOUDGE: So there is 18 a kind of counselling function, what when I was Venture 19 we used to call a invitation to attend? 20 MR. BRIAN GOVER: That's right. 21 COMMISSIONER STEPHEN GOUDGE: Is that the 22 notion? 23 MR. BRIAN GOVER: That's the notion. 24 COMMISSIONER STEPHEN GOUDGE: Because 25 short of that -- without that all there is is the same
1691 Hobson's choice, or if it is a Hobson's choice that Dr. 2 Young said he faced with the timeliness of reporting? 3 MR. BRIAN GOVER: That's right. 4 COMMISSIONER STEPHEN GOUDGE: That is 5 loss of the service capacity if no compliance. 6 MR. BRIAN GOVER: So, in other words, I 7 say, you can add an element of remediation through this 8 committee, as well. 9 COMMISSIONER STEPHEN GOUDGE: Okay. 10 Thanks. 11 MR. BRIAN GOVER: Thank you. 12 Now, in terms of the Chief Forensic 13 Pathologist and oversight and accountability, as we've 14 submitted earlier, the Chief Forensic Pathologist should 15 be accountable to the council and remain accountable to 16 the Chief Coroner of Ontario for the provision of 17 forensic pathology services. 18 The Chief Forensic Pathologist should be 19 responsible for the operation of the Ontario Forensic 20 Pathology Service, particulars of which will be discussed 21 in a moment. 22 Now, the Family Liaison Service, you and I 23 have already touched on a few moments ago, Mr. 24 Commissioner, but let me discuss its purpose, which is to 25 provide accessibility to public for information and
1701 guidance about the death investigation system. 2 And, of course, the fact is that -- that 3 many of the people with whom the Office of the Chief 4 Coroner interacts are -- are recently bereaved and 5 encountering all manner of difficulty. We recognize 6 that, and we want to enhance the Office of the Chief 7 Coroner's ability to interact with them in a 8 compassionate way. 9 The Family Liaison Service should produce 10 an annual report to become a component of the larger OCCO 11 annual report delivered to the Council, and its terms of 12 reference and contact information should be available on 13 an OCCO Web site. 14 Now, I turn to proposed amendments to the 15 Coroners Act, and you'll find these toward the very end 16 of our -- the main part of our submissions, starting at 17 page 198. 18 To implement the creation of the Council 19 and the proposals that fall out of its creation, there 20 must be changes to the governing legislation. Further, 21 to restore public confidence in the system, these 22 proposed amendments should be given, we respectfully say, 23 serious consideration. 24 In particular, the evidence at this 25 Inquiry has made it very clear that the Chief Forensic
1711 Pathologist, and pathologists in general, must be 2 recognized; they must be identified in the legislation. 3 And you'll see that at page 198, when we 4 refer to the definition section of the Coroners Act, we 5 refer to the "Chief Forensic Pathologist," and we refer 6 to "pathologists," and we also, of course, refer to the 7 "Ontario Forensic Pathology Service," and the "Death 8 Investigation Advisory Council." 9 The amendments, in order to create this -- 10 this key concept, which we say is central to 11 accountability and oversight, would have to recognize the 12 Council. And we've given a great deal of thought to -- 13 how to provide for membership and we feel that regulation 14 is the appropriate way to do that. 15 Now, the duties of the Chief Forensic 16 Pathologist are suggested in the drafting exercise you 17 see at page 201, which include, first and foremost, 18 directing the Ontario Forensic Pathology Service, but 19 you'll see included supervising and directing all 20 pathologists performing post-mortem examinations under 21 coroner's warrant. 22 And, generally you'll see the next two (2) 23 items relate to instruction of pathologists in their 24 duties and preparation, publication and distribution of a 25 code of ethics for the guidance of pathologists, and then
1721 maintaining the registry. 2 Consistent with our view that an infusion 3 of resources is required to restore public confidence and 4 to provide adequate accountability and oversight, we 5 suggest that there should be an amendment to provide for 6 one (1) or more deputy Chief Forensic Pathologists. 7 We've said, in fact, there ought to be two (2): one (1) 8 in Toronto and one (1) outside Toronto. 9 And we have suggested amendment to Section 10 10 of the Coroners Act. You'll see the -- in -- in two 11 (2) instances where death is concluded to be natural, we 12 have suggested that the autopsy -- pardon me, the 13 inquests in those situations be made discretionary rather 14 than mandatory. 15 Now, I've called for additional resources, 16 but the OCCO recognizes -- 17 COMMISSIONER: How did that get within my 18 mandate? 19 MR. BRIAN GOVER: Well, let me put it 20 this way. It --it -- it's a feature of the narrative 21 that -- and I said thirty thousand (30,000) cases were 22 reviewed initially -- death investigations. Fewer 23 inquests have been held as a result of the change in the 24 mandate from time to time. 25 It would be unfair for us to call for
1731 additional resources without calling for some 2 reallocation of existing resources. That's how -- that's 3 how we get to make the submission, at least. 4 COMMISSIONER STEPHEN GOUDGE: Okay, 5 thanks. And you have proposed some changes to section 6 28? 7 MR. BRIAN GOVER: We do, at page 205. 8 COMMISSIONER STEPHEN GOUDGE: I just want 9 to be absolutely clear; is it the position of the OCCO 10 that every post-mortem examination should be done by a 11 pathologist? 12 MR. BRIAN GOVER: Yes -- 13 COMMISSIONER STEPHEN GOUDGE: Okay. 14 MR. BRIAN GOVER: -- it is. 15 COMMISSIONER STEPHEN GOUDGE: I mean, why 16 wouldn't you have included that in 28(1)? And that's 17 just drafting. I mean -- 18 MR. BRIAN GOVER: Yeah, it -- 19 COMMISSIONER STEPHEN GOUDGE: -- all I 20 need is the issue -- 21 MR. BRIAN GOVER: It really is just 22 drafting -- 23 COMMISSIONER STEPHEN GOUDGE: -- position 24 in principle from you. 25 MR. BRIAN GOVER: Yes.
1741 COMMISSIONER STEPHEN GOUDGE: That's 2 fine. 3 MR. BRIAN GOVER: Thank you. 4 COMMISSIONER STEPHEN GOUDGE: That is 5 fine. 6 MR. BRIAN GOVER: And -- and the final 7 point has to do -- perhaps a brief comment may be 8 appropriate about reports, and previously the form of the 9 post-mortem report was prescribed by regulation. 10 We know that there was a minimalist 11 approach, or, as Mr. Ortved termed it, a "stripped down" 12 approach. And our view is the legislation ought not to 13 mandate a particular form of post-mortem report; that it 14 will be easier to accommodate best practices by allowing 15 for that to be the subject of a guideline by the Chief 16 Forensic Pathologist. 17 So then you -- you have my submissions 18 then concerning the evidence at the Inquiry, the evidence 19 which we say discloses a pattern of evolution of 20 oversight and accountability mechanisms in relation to 21 forensic pathology and you have our submissions, too, 22 about the two (2) main means by which those 23 accountability and oversight mechanisms can be further 24 enhanced. 25 And, as I've said, Mr. Commissioner, Ms.
1751 Ritacca will, in the course of her submissions, be 2 dealing in greater detail with those ten (10) items that 3 I identified earlier. 4 COMMISSIONER STEPHEN GOUDGE: Okay. 5 MR. BRIAN GOVER: And I believe that may 6 have taken me to the afternoon break. 7 COMMISSIONER STEPHEN GOUDGE: I think 8 that is right, thanks, Mr. Gover. 9 MR. BRIAN GOVER: Thank you. 10 COMMISSIONER STEPHEN GOUDGE: We will 11 rise then for fifteen (15) minutes. 12 13 --- Upon recessing at 3:14 p.m. 14 --- Upon resuming at 3:31 p.m. 15 16 THE REGISTRAR: All rise. Please be 17 seated. 18 COMMISSIONER STEPHEN GOUDGE: Ms. 19 Ritacca...? 20 21 SUBMISSIONS BY MS. LUISA RITACCA: 22 MS. LUISA RITACCA: Thank you, Mr. 23 Commissioner. 24 As Mr. Gover indicated earlier, the ten 25 (10) proposed recommendations that I intend to discuss
1761 briefly require endorsement and implementation of the two 2 (2) key proposals that Mr. Gover took you through; that 3 being the creation of the Advisory Council and the 4 legislative changes. 5 We submit that the remaining proposals 6 address the evolution of quality and oversight in the 7 death investigation system and in many ways are 8 extensions of the initiatives first envisioned by Doctors 9 Young, Cairns, and Chiasson. 10 And, further, the proposals that I intend 11 to take you through also address some of the concerns 12 raised through the evidence at this Inquiry. And, where 13 appropriate, I'll tell you where I am in the submissions, 14 Mr. Commissioner, so you could follow along. 15 The first proposal is a strategic plan. 16 And as we've set out in our written submissions, we 17 believe, as all successful organizations, the OCCO should 18 develop an overall plan with clearly defined priorities 19 in light of its mandate and jurisdiction under the 20 Coroners Act. 21 That's starting at page 150 of the 22 submissions, Mr. Commissioner. 23 COMMISSIONER STEPHEN GOUDGE: Thanks. 24 MS. LUISA RITACCA: We say the overall 25 plan and vision should include a dedication to seeking
1771 the truth using scientific method and developing eviding 2 -- evidence-based practice; where possible, should 3 reflect contemporary death investigation -- and what we 4 mean by that is recognition of contemporary best 5 practices and methodologies, much of which you heard 6 about at this Inquiry -- should emphasize the death 7 investigation team consisting of stakeholders and 8 principally coroners and pathologists, and the plan 9 should be dedicated to peer review and quality assurance. 10 And the OCCO has considered the question: 11 How do we implement this strategic plan? And I submit 12 that the proposed recommendations address this overall 13 plan for the future of death investigation in the 14 province, and the proposals are realistic and with 15 sufficient government commitment possible. 16 I turn to the second proposal, and that's 17 development of new and enhanced leadership mechanisms. 18 The OCCO recognizes that major revisions 19 and enhancements to death investigation system are being 20 proposed here. And we recognize that that will require 21 significant recruitment of professionals at all levels, 22 not the least of which are coroners and pathologists. 23 And, as Mr. Gover indicated in his 24 submissions, adequate government funding for those senior 25 management positions and, primarily, the position of the
1781 Chief Forensic Pathologist, deputies, and staff forensic 2 pathologists is required. 3 The evidence that you heard at this 4 Inquiry of those working within the system, which 5 evidence I point out was not the subject of cross- 6 examination by government, is that staff forensic 7 pathologists within the Provincial Forensic Pathology 8 Unit are paid significantly less than their hospital- 9 based counterparts. 10 This acts as a disincentive to both 11 recruitment and retention initiatives, which we say are 12 at the forefront of the growth and quality of forensic 13 pathology in the province. 14 I'll try not to repeat much of what Mr. 15 Gover said, but we say that part of the new and enhanced 16 leadership has to include a structure for forensic 17 pathology that would mirror the structure in place for 18 the coroners system; that being a Chief Forensic 19 Pathologist, two (2) Deputy Chief Forensic Pathologists, 20 and a recognition and role of the directors of the 21 Regional Forensic Pathology Units. 22 We also propose -- and it's set out at 23 page 154 and 255 of our submission -- that new positions 24 and -- need to be properly resourced and created within 25 the OCCO including -- and I've listed them here --
1791 Director of Human Resources, a Director of Quality -- who 2 Mr. Gover explained would be reporting to the advisory 3 council -- a Director of Information Technology, a 4 Director of Education, a Director of the Family Liaison 5 Service, a data analyst, and an issues manager. 6 And, Commissioner, I -- I -- we make this, 7 not simply as a wish list for the Coroner's Office, but 8 the OCCO strongly believes that these new positions are 9 required primarily to address a number of the concerns 10 raised here. 11 COMMISSIONER STEPHEN GOUDGE: Can I just 12 take you back -- 13 MS. LUISA RITACCA: Yeah. 14 COMMISSIONER STEPHEN GOUDGE: -- to the 15 structure of the forensic pathology service? 16 When you list the positions on page 154, 17 is there anything implicit in that about them being 18 employees of the Office of the Chief Coroner, or would 19 they remain -- would the directors remain as they are 20 now, hospital pathologists? 21 MS. LUISA RITACCA: Well, we have that 22 set out later in our proposals, but we'd see a 23 relationship by contract where at least part of the 24 director's remuneration comes from the OFPS or the OCCO. 25 COMMISSIONER STEPHEN GOUDGE: I was going
1801 to ask you about that. Are those contracts with the 2 individuals or contracts with the hospital? 3 MS. LUISA RITACCA: The individuals. 4 COMMISSIONER STEPHEN GOUDGE: So there 5 would be individual contracts -- 6 MS. LUISA RITACCA: Right. 7 COMMISSIONER STEPHEN GOUDGE: -- whether 8 or employment or not, only a finetuned lawyer would be 9 able to say, but individual contracts? 10 MS. LUISA RITACCA: Yes. 11 COMMISSIONER STEPHEN GOUDGE: Okay. 12 Okay. With some kind of full-time equivalent notion in 13 terms of the funding? 14 MS. LUISA RITACCA: Yes. It may not be a 15 full-time equivalent. 16 COMMISSIONER STEPHEN GOUDGE: No, it 17 could be a partial full-time? 18 MS. LUISA RITACCA: Yes. And we submit 19 that orders in council should continue for coroners and, 20 in fact, be extended to the Chief Forensic Pathologist 21 and deputies. And we submit that they should be open- 22 ended terms with ongoing reviews consistent with the 23 Ontario Public Service guidelines to ensure that 24 incumbent is meeting the identified goals. 25 And there has been some suggestion that
1811 coroners be given a fixed period Order in Council. It is 2 the OCCO's position that this would have a detrimental 3 impact on recruitment. 4 In other words, it's our position that 5 professionals should be provided with a certain level of 6 stability when they are asked to take on this position. 7 COMMISSIONER STEPHEN GOUDGE: Mm-hm. 8 MS. LUISA RITACCA: Our third proposal 9 that we say flows out of the two (2) main proposals is 10 culture of quality. 11 COMMISSIONER STEPHEN GOUDGE: I'm just 12 thinking outloud about a little dialogue you and I just 13 had. Obviously one (1) of the implications of a full 14 time equivalent model is that the funding shifts 15 Ministries; that is, it -- 16 MS. LUISA RITACCA: It shifts -- 17 COMMISSIONER STEPHEN GOUDGE: -- it goes 18 from Health to SolGen? 19 MS. LUISA RITACCA: Yes. 20 COMMISSIONER STEPHEN GOUDGE: So that's a 21 resource implication? 22 MS. LUISA RITACCA: Part of it, yes, 23 absolutely. 24 COMMISSIONER STEPHEN GOUDGE: Yes. That 25 part of it shifts?
1821 MS. LUISA RITACCA: That's right. 2 COMMISSIONER STEPHEN GOUDGE: Okay. 3 MS. LUISA RITACCA: So turning to a 4 culture of quality then, Mr. Commissioner. In the early 5 stages of Dr. Young's various initiatives, quality 6 assurance was a relatively new concept. Mr. Gover took 7 you through that. 8 Those presently at the helm of the OCCO 9 recognize that quality must be a fundamental goal for the 10 Office's future vision and plan. And the OCCO recognizes 11 that this includes quality of post-mortem examinations, 12 of expert opinions, of the death investigation system as 13 a whole, and of the ability of the criminal justice 14 system to encapsulate and understand the medical evidence 15 that's being brought into the legal process. 16 In order to ensure quality, the OCCO 17 recognizes that there must be minimum standards developed 18 for both coroner's and pathologist's reports. For 19 example, standards relating to necessary language, 20 transmission of opinion, that there should be evidence- 21 based opinions. 22 We propose that the CFP should continue to 23 refine the autopsy practice guidelines that you've seen 24 with regard to report writing. And that should be done 25 in consultation with the Forensic Pathology Advisory
1831 Committee, and I'll talk about that committee in a 2 moment. 3 You have heard a great deal of evidence 4 with regard to language, Mr. Commissioner, to be used or 5 to be avoided in post-mortem reports. The OCCO submits 6 that a specific recommendation regarding language is not 7 necessary, and in fact, would be inappropriate. 8 We submit that, instead, the Commission 9 should strive not to be overly pre -- prescriptive in -- 10 in this respect. You should allow for some flexibility 11 to meet the needs of the particular case. We say that 12 guidance, with respect to language, should be found in 13 guidelines developed by the professionals themselves. 14 A big issue with regard to quality is, of 15 course, peer review. And we recognize this is an obvious 16 and very important facet of quality. And we would urge 17 upon you, Mr. Commissioner, to endorse; and our proposal 18 for further enhancements to the peer review system that's 19 currently in place. 20 The limitation of the peer review process 21 available in the 1990s was of central importance in 22 assessing the evidence at this Inquiry. And so the OCCO 23 proposes the following three (3) recommendations with 24 this regard: 25 First, the continued peer review of all
1841 homicides, criminally suspicious cases and pediatric 2 cases to be performed by the Chief Forensic Pathologist, 3 his or her deputies, Directors of the Regional Forensic 4 Pathology units or duly trained designates. 5 An endorsement of the current review form, 6 which is found at Exhibit C of our submissions. 7 And thirdly, the guidelines for post- 8 mortem examination should require that sufficient tissue 9 samples remain to allow reviewability of the primary 10 pathologist's work. 11 And I note here that this really is the 12 commi -- the Coroner's Office response to whether or not 13 there should be autopsies -- videotaping of autopsies or 14 defence autopsies available. 15 In our submission, that if there are 16 appropriate guidelines in place to provide pathologists 17 with guidance as to what tissue samples are required, 18 that -- that addresses the concerns of anybody who's 19 advocating for videotaping autopsies. 20 A word about disclosure of peer review 21 documents and disclosure of quality assurance documents. 22 I know that's been the subject of some discussion at this 23 Inquiry, and it was on your mind, certainly, yesterday. 24 The OCCO really sees a distinction between 25 these two (2) types of documents, and we articulate the
1851 distinction in this way; that is, there are case-specific 2 documents, and there are pathologist-specific documents. 3 And case-specific information that would 4 arise -- arise out of the peer review process and could 5 incu -- conclude any kind of communication between the 6 reviewing pathologist and the original pathologist, we 7 see that as being part of the case file and, therefore, 8 subject to disclosure. 9 On the other side of that, there's what we 10 call pathologist-specific information, and that may be 11 information -- data collected -- through a quality 12 assurance mechanism about a particular pathologist, and 13 we see that as distinguished from the first set of 14 documents. And it's the OCCO's position that that 15 information would not be automatically subject to 16 disclosure to the Crown or any other kind of mandatory 17 disclosure. 18 It's the OCCO's position that the quality 19 assurance processes are not part of the Crown's brief and 20 would require a court order before they are disclosed, 21 and it would have to be very fact-specific. 22 And we say that our position provides the 23 necessary balance between the chill that's been discussed 24 on the one (1) hand, to the quality assurance process and 25 the obligation to disclose on the other hand.
1861 And finally under this proposal, with 2 respect to a vision for quality, I turn briefly to 3 benchmarks and accreditation. The OCCO recognizes that 4 accreditation by a national or inst -- international 5 institute such as NAME can add to the quality of the 6 service being provided and would certainly add to the 7 public confidence in the service. 8 You've heard evidence that establishes 9 that the provincial FPU, largely because of 10 infrastructure, is not in a position to gain 11 accreditation by name at this stage. However, certainly 12 a long term goal of the OCCO is accreditation of the 13 Forensic Pathology Service with NAME, and we can see no 14 impediment to taking steps to meet benchmarks presently. 15 I turn now to our fourth proposal, and 16 that is the creation of the Ontario Forensic Pathology 17 Service which we have called the OFPS. The OCCO proposes 18 the creation of the OFPS and proposes that it should be 19 defined in the Coroners Act, as Mr. Gover discussed, and 20 we envision the OFPS to have professional oversight and 21 qua -- a quality assurance role for the provision of 22 autopsy services performed across the province. 23 We propose that the OCFP should direct and 24 control the Forensic Pathology Service, and he or she 25 should obtain guidance and advice with respect to the
1871 direction of the OFPS through a Forensic Pathology 2 Advisory Committee. 3 And that committee would be made up of, 4 not only the Chief Forensic Pathologist, the directors of 5 the Regional Forensic Pathology Units -- let me stop for 6 a moment and say, it is not the OCCO's posi -- position 7 that the Forensic Pathology Advisory Committee is meant 8 to provide direct oversight or quality assurance. 9 Instead, we see its mandate as being the 10 continued improvement of quality processes and continued 11 enhancement of the relationship of the OFPS and the 12 Regional Forensic Pathology Units. And in addi -- 13 COMMISSIONER STEPHEN GOUDGE: Who else do 14 you contemplate being on the FPAC (phonetic) or -- just 15 the Directors of the units? 16 MS. LUISA RITACCA: Yes. 17 COMMISSIONER STEPHEN GOUDGE: What about 18 pathologists from outside the system? I mean, to the -- 19 MS. LUISA RITACCA: I -- I can't why that 20 would be a -- a problem. But really when we're -- 21 COMMISSIONER STEPHEN GOUDGE: I hear you 22 distinguishing between actually doing hands-on quality 23 assurance and, in effect, providing advice about quality 24 assurance? 25 MS. LUISA RITACCA: Right.
1881 COMMISSIONER STEPHEN GOUDGE: And with 2 the FPAC doing the second, not the first? 3 MS. LUISA RITACCA: That's right. And In 4 addition to the FPAC, the Chief Forensic Pathologist 5 should create and maintain a registry. And I'll -- I'll 6 speak about the registry in a moment. That registry 7 will, in brief, be of credentialed pathologists who are 8 allowed to perform post-mortem examinations under 9 coroner's warrant in the Province of Ontario. 10 Obviously, the OFPS will require a budget, 11 Mr. Commissioner, and the OCCO proposes that you endorse 12 a plan that allows for a funding model and a budget for 13 the service. The evidence that this Inquiry has clearly 14 established that the provision of forensic pathology 15 services requires adequate budgetary personnel and other 16 resources. 17 And the budget for the forensic pathology 18 service should be separate from the resources provided 19 for other coroner-related services. The budget and 20 annual plan for the forensic pathology service would be 21 presented by the Chief Forensic Pathologist to the Death 22 Advisory Council for consultation and endorsement, as Mr. 23 Gover set out. 24 And then that budget would be presented as 25 an endorsed plan, and together with the OCCOs budget, by
1891 the Chief Coroner, to the administrative arm of the 2 ministry for its review and final approval. The OCCO 3 recognizes that given the dearth of forensic pathologists 4 available worldwide, consideration must be given to 5 developing incentives for recruitment and retention of 6 forensic pathologists from around the world. 7 And one (1) such incentive, the OCCO 8 submits, is that the Ministry of Community Safety and 9 Correctional Services should join the Laboratory Medicine 10 Funding Framework Agreement. 11 COMMISSIONER STEPHEN GOUDGE: I do not 12 know much or anything about the details about that, Ms. 13 Ritacca. 14 Is that an agreement between health and 15 the OMA? 16 MS. LUISA RITACCA: Yes. And -- 17 COMMISSIONER STEPHEN GOUDGE: And -- and 18 can another ministry sign on to it, is that what you 19 envisage? 20 MS. LUISA RITACCA: That's what I -- we 21 envisage. 22 COMMISSIONER STEPHEN GOUDGE: All right. 23 MS. LUISA RITACCA: We believe that would 24 ensure a competitive compensation -- 25 COMMISSIONER STEPHEN GOUDGE: I mean, I
1901 understand the objective. 2 MS. LUISA RITACCA: Yeah. 3 COMMISSIONER STEPHEN GOUDGE: It is to 4 ensure equivalence of compensation. 5 MS. LUISA RITACCA: Exactly. And in 6 addition, there should be an effort to recruit duly 7 trained forensic pathologists to act as the Directors of 8 the Regional Forensic Pathology Units. 9 And finally, and I alluded to this 10 earlier, the OCCO recognizes that in order to recruit and 11 retain within the forensic pathology unit therein, it 12 must offer a career path. 13 And we say that's achieved by the 14 hierarchical structure we're asking you to endorse of a 15 Chief Forensic Pathologist and deputies. I turn to the 16 Regional Forensic Pathology Service Agreements 17 themselves. The OCCO accepts that the service agreements 18 in place while Dr. Smith was the Director of the -- 19 COMMISSIONER STEPHEN GOUDGE: Just before 20 you do that, go back to the contract discussion you and I 21 had. 22 Is it the vision of this proposal or set 23 of proposals that every doctor on the registry have a 24 contract with OCCO or just those who are in the 25 hierarchical positions?
1911 MS. LUISA RITACCA: The latter. 2 COMMISSIONER STEPHEN GOUDGE: Thanks. 3 MS. LUISA RITACCA: So we accept that the 4 service agreements as they existed in the '90s are 5 unclear and do not provide appropriate guidance for the 6 parties to the agreement. 7 The OCCO proposes a complete overhaul of 8 the current service agreements, primarily to recognize 9 the essential role of the Chief Forensic Pathologist 10 through the Ontario Friends of Pathology Service, and 11 recognizing his or her role as having ultimate oversight 12 and accountability for the delivery of forensic pathology 13 services in the province. 14 And I don't intend to go through this 15 proposal in any great detail, unless you have any 16 questions, Mr. Commissioner. I would say it's set out at 17 pages 168 and 170 of our submissions, but I would commend 18 to you, in particular, paragraph 452 which sets out the 19 details. 20 COMMISSIONER STEPHEN GOUDGE: Yeah, 21 thanks. 22 MS. LUISA RITACCA: So turning to our 23 fifth proposal, the future of pediatric forensic 24 pathology. Pediatric forensic pathology is at the core 25 of your mandate, Mr. Commissioner. The OCCO submits that
1921 the proposed recommendations it has made, with regard to 2 forensic pathology and the death investigation system, at 3 large, are directly relevant to the provision of forensic 4 -- pediatric forensic pathology. 5 That said, the OCCO has considered and 6 make more specific proposals with regard to pediatric 7 pathology which recognizes the uniqueness of pediatric 8 death investigation. 9 First, the Ontario -- the OPFPU -- its 10 evidence -- the evidence, at this Inquiry, has 11 established that the OPFPU, as situated in the Hospital 12 for Sick Children, provides the OCCO with unique talent 13 and expertise not available elsewhere. 14 Mr. Gover stated earlier that the OCCO 15 proposes that the OPFPU should remain a regional forensic 16 pathology unit. The unit provides a valuable resource to 17 the Coroner's Office, not only on a case-by-case basis, 18 but for the growing of pediatric forensic pathology. 19 At present, Dr. Chiasson, a duly qualified 20 and trained forensic pathologist and former Chief 21 Forensic Pathologist, is the Director of the OPFPU. 22 This, we say, represents a significant opportunity to 23 provide training and fellowship for those interested in 24 pediatric forensic pathology. 25 COMMISSIONER STEPHEN GOUDGE: Am I right
1931 that you haven't suggested that that be a requirement for 2 the Director? 3 MS. LUISA RITACCA: That the Director be 4 a... 5 COMMISSIONER STEPHEN GOUDGE: A forensic 6 pathologist. 7 MS. LUISA RITACCA: That -- we say that's 8 a -- should be a requirement for all of the regional 9 forensic pathology -- 10 COMMISSIONER STEPHEN GOUDGE: Okay. Okay. 11 MS. LUISA RITACCA: -- units. I believe 12 that might be in the part I just skipped over. 13 COMMISSIONER STEPHEN GOUDGE: Yeah, I 14 think it is. Okay. 15 MS. LUISA RITACCA: Further, with regard 16 specifically to pediatric forensic pathology, we say that 17 you should endorse what's currently going on, which is -- 18 that the OPFPU, the provincial FPU, Hamilton, and London 19 be the only forensic pathology units where pediatric 20 cases -- and by pediatric, I mean Death Under Five cases 21 -- are performed. 22 And, in addition, the OCCO recognizes that 23 it should continue to foster the relationship it has with 24 the Office of the Chief Medical Examiner in Manitoba for 25 the provision of pediatric forensic pathology for
1941 northwest Ontario. And as you heard, Mr. Commissioner, 2 presently, a Dr. Phillips of the Chief Medical Office in 3 Manitoba performs pediatric post-mortem examinations for 4 northwestern Ontario. I understand, between 2000 and 5 2006, she conducted approximately thirty (30) autopsies 6 under coroner's warrant for Ontario. 7 The OCCO also recognizes that, for the 8 future, support systems should be strengthened for the 9 Northeastern Regional Forensic Pathology Unit to build 10 expertise and capacity to perform pediatric cases, and 11 this was something you may recall, Commissioner, that was 12 discussed and proposed by Dr. Queen and endorsed by Dr. 13 Chiasson during the roundtable in Thunder Bay on February 14 28. 15 Further, all those conducting pediatric 16 cases, the OCCO says, must be subject to guidelines that 17 would be imposed by the Chief Forensic Pathologist or the 18 Ontario Forensic Pathology Service. 19 And all those conducting pediatric 20 forensic cases would be registered on the -- or would be 21 listed on the registry. The OCCO, Mr. Commissioner, 22 endorses a team approach to pediatric forensic pathology 23 consisting of cooperative case management of the post- 24 mortem examination. 25 And we see that, depending on the case,
1951 that may include a forensic pathologist, pediatric 2 pathologist, pediatric radiologist, neuropathologist, 3 clinical specialists. 4 And the lead pathologist responsible for 5 the post-mortem examination and post-mortem would dep -- 6 report -- would depend on the nature of the case. 7 Ultimately, the OCCO submits it would be in the Chief 8 Forensic Pathologist's discretion, in consultation with 9 the Director of the OPFPU, to develop policies for 10 triaging the pediatric post-mortem examinations. 11 A word, Mr. Commissioner, about the 12 proposed reviews of pediatric cases. We've heard from 13 several parties who have urged upon you to recommend that 14 there be a further review of pediatric cases. 15 In particular, you've been asked to 16 consider endorsing or recommending a Shaken Baby Syndrome 17 review. And you well know this evidence, Mr. 18 Commissioner, Dr. Pollanen has identified a hundred and 19 forty-two (142) cases within the OCCO's database that 20 could potentially be subject to further review. 21 Those cases have been identified through 22 the OCCO's database from a time period of 1986 to 2006, 23 and they include all cases of Shake -- of apparent Shaken 24 Baby Syndrome and head injury cases of children one (1) 25 year old or younger, whose deaths were classified by the
1961 coroner's system as either homicide or undetermined. 2 And I make this point here, because 3 depending on how you set the parameters for your 4 classification, the one forty-two (142) number could -- 5 could get substantially lower or substantially higher. 6 The -- as I know you're well aware, the 7 OCCO does not believe that it should be the lead agents 8 for -- agency for any such review endeavour. And I 9 believe that Mr. Lockyer's position was that MAG should 10 be the lead agency. We agree with that position. 11 COMMISSIONER STEPHEN GOUDGE: Do you have 12 any estimate of how many of the one forty-two (142) are 13 cases in which there were criminal convictions? 14 MS. LUISA RITACCA: The OCCO's database 15 wouldn't have that information. 16 COMMISSIONER STEPHEN GOUDGE: No, I know 17 the database wouldn't, but -- 18 MS. LUISA RITACCA: I have no -- 19 COMMISSIONER STEPHEN GOUDGE: -- 20 impressionistically -- 21 MS. LUISA RITACCA: I have no -- I don't 22 have any impression of that, no. 23 COMMISSIONER STEPHEN GOUDGE: I mean, 24 they'd all be criminally suspicious deaths in some 25 generic sense?
1971 MS. LUISA RITACCA: Right. 2 COMMISSIONER STEPHEN GOUDGE: Okay. 3 MS. LUISA RITACCA: And while the O -- 4 OCCO does not believe it should be the lead agency on any 5 such review' should you recommend it, the OCCO does say 6 that it would be available to act as a consultant to 7 assist in identifying the potential cases for review and 8 potential experts to use. 9 COMMISSIONER STEPHEN GOUDGE: Mr. Lockyer 10 suggested the involvement at a sort of screening stage of 11 forensic services advisory committee or a sub-set 12 thereof, what he called a volunteer sub-committee. 13 What do you say to that? 14 MS. LUISA RITACCA: Well, it would be the 15 OCCO's position that this -- whatever screening -- if you 16 want to call it a screening committee, should really be 17 outside of the OCCO as well. 18 I mean it certainly could be made to -- 19 COMMISSIONER STEPHEN GOUDGE: I took him 20 to be sort of suggesting a counterpart to the group of 21 four (4) that actually carried forward the detailed 22 blueprint for the OCCO review that spawned this Inquiry? 23 MS. LUISA RITACCA: Right. No, and I 24 would again say that the OCCO really sees that the 25 appropriate committee or screening body should be outside
1981 of the OCCO, and-- 2 COMMISSIONER STEPHEN GOUDGE: Is that 3 because of resources, or is there some implicit 4 independence issue -- 5 MS. LUISA RITACCA: Well, I mean -- 6 COMMISSIONER STEPHEN GOUDGE: -- there? 7 MS. LUISA RITACCA: A big issue is 8 resources. Another issue is that we clearly see -- 9 COMMISSIONER STEPHEN GOUDGE: Dr. 10 Pollanen was on the -- 11 MS. LUISA RITACCA: Yes. 12 COMMISSIONER STEPHEN GOUDGE: -- group of 13 four (4)? 14 MS. LUISA RITACCA: Yes. 15 COMMISSIONER STEPHEN GOUDGE: Was there 16 anybody else from the OCCO? There was Ms. Wasser -- 17 MS. LUISA RITACCA: The Chief Coroner. 18 COMMISSIONER STEPHEN GOUDGE: -- and 19 somebody from the Crown and Dr. McLellan? 20 MS. LUISA RITACCA: Yes. 21 COMMISSIONER STEPHEN GOUDGE: Okay. 22 MS. LUISA RITACCA: Well, and -- and to 23 complete my answer to your -- your que -- 24 COMMISSIONER STEPHEN GOUDGE: Sorry. 25 MS. LUISA RITACCA: No, no, no, that's
1991 fine. 2 COMMISSIONER STEPHEN GOUDGE: Yes. 3 MS. LUISA RITACCA: Con -- you -- you 4 asked if there was a concern about independence. We 5 certainly recognize that any review that's undertaken 6 would be the subject of significant scrutiny, and as 7 such, we think that the process must be seen as objective 8 and transparent and independent from any branch or 9 division of the Government, and we think that needs to be 10 outside of the OCCO. 11 12 (BRIEF PAUSE) 13 14 MS. LUISA RITACCA: Turning to our sixth 15 proposal, and that's accreditation of coroners and 16 pathologists. There has been a great deal of discussion 17 at this Inquiry as to the benefits of offering 18 credentialing for physicians involved in the death 19 investigation system, and the OCCO believes that this 20 requires partnership with the CPSO and the Royal College 21 of Physicians and Surgeons and professional associations 22 like the Ontario Association of Pathologists and Ontario 23 Coroner's Association. 24 We have made proposals with respect to the 25 credentialing of both coroners and pathologists; however,
2001 in the interest of time, and in an effort to finish at 2 4:30 instead of 4:45, I will only deal with the issue of 3 credentialing pathologists and compend (sic) to you our 4 proposal with respect to credentialing coroners, which is 5 at page 174. 6 And so turning then to credentialing for 7 pathologists. And this we really see happening through 8 the registry, Mr. Commissioner. The OCCO's position is 9 that the inclusion criteria for the registry should be 10 determined by the Chief Forensic Pathologist together 11 with the FPAC. 12 It is also the OCCO's position that there 13 should be a board to administer the registry, and that 14 the board will be made up of the Chief Forensic 15 Pathologists, representatives of the OCCO, pathologists, 16 a member of the judiciary, and a chairperson of the 17 Department of Pathology at an Ontario University. 18 The board, we envision, establishing 19 different cri -- criteria for pathologists performing 20 autopsies under coroner's warrants, for pediatric cases, 21 criminally suspicious cases, and the non-suspicious 22 cases. 23 And while the OCCO doesn't have -- have a 24 set notion of exactly what the requirements for 25 credentialing conclusing -- a conclusion on the registry
2011 should be, we do believe that, at a minimum, the 2 requirements must include adherence to protocols and 3 guidelines initiated by the Chief Forensic Pathologist, 4 post-mortem reports in criminally suspicious cases will 5 be subject to the peer review we discussed, and that 6 there be a regular audit by the Chief Forensic 7 Pathologist or his or her delegate of post-mortem reports 8 and court transcripts. 9 In addition, there should be a completion 10 of a minimum number of CME credits and adherence to any 11 benchmarks that may be established by the Forensic 12 Pathology Advisory Committee for the timely receipt of 13 post-mortem examination reports. 14 COMMISSIONER STEPHEN GOUDGE: Do you 15 envisage a role for CPSO in setting the credentials 16 required for inclusion in the registry? 17 MS. LUISA RITACCA: Well, we -- we 18 primarily see that the -- the inclusion criteria be 19 developed by those within -- those professionals working 20 within the system, namely the Chief Forensic Pathologist 21 and the directors of the foren -- regional forensic 22 pathology units. 23 COMMISSIONER STEPHEN GOUDGE: I take it 24 you envisage consultation with the OAP, for example. 25 MS. LUISA RITACCA: Yes.
2021 COMMISSIONER STEPHEN GOUDGE: And 2 consultation with any others? I suppose that remains to 3 be developed. 4 MS. LUISA RITACCA: Yes. Well and 5 certainly, that's why you do -- we -- we don't want to 6 suggest that this is an agreed upon list of minimum -- 7 COMMISSIONER STEPHEN GOUDGE: Right, 8 right. 9 MS. LUISA RITACCA: -- criteria, because 10 we haven't, in fact, discussed or -- 11 COMMISSIONER STEPHEN GOUDGE: No, 12 that's -- 13 MS. LUISA RITACCA: -- consulted with the 14 OAPs. 15 COMMISSIONER STEPHEN GOUDGE: Right. 16 MS. LUISA RITACCA: So the framework for 17 the administration of the board, we say, should include 18 four (4) basic mechanisms. 19 And that is, first, a mechanism for 20 appointment upon application to the registry based upon 21 inclusion and exclusion criteria. 22 2. A mechanism for renewal of inclusion 23 onto the registry based upon the audited performance and 24 CME activities. 25 3. A mechanism for the removal of the
2031 pathologist from the registry and; 2 4. An appeals process for those whose 3 applications are denied or appointments are not renewed. 4 And the OCCO really sees this appeal going 5 up to the complaints subcommittee of the death advi -- 6 death investigation advisory council. 7 And, finally, with regard to the registry, 8 it is the OCCO's view that it should be kept by the CFP 9 and be publically available on a Web site. 10 COMMISSIONER STEPHEN GOUDGE: Obviously, 11 I take it, you would envisage a grandfathering or 12 grandpersoning provision for people that -- 13 MS. LUISA RITACCA: Well, I think for the 14 foreseeable future, that's -- 15 COMMISSIONER STEPHEN GOUDGE: Yes. 16 MS. LUISA RITACCA: -- that's likely to 17 have to happen. 18 COMMISSIONER STEPHEN GOUDGE: Right. 19 MS. LUISA RITACCA: Our seventh proposal 20 is with regard to education. The OCCO recognizes the 21 primary importance of education in providing a framework 22 for high quality death investigation. 23 As you know, the provincial FPU will be 24 the first accredited fellowship training program facility 25 in Canada, and we encourage the development of fellowship
2041 training programs at the other Regional Forensic 2 Pathology Units. 3 Also, with respect to education, the OCCO 4 submits that the Government of Ontario should be 5 encouraged to support the proposal to establish a centre 6 for forensic medicine and science at the University of 7 Toronto that was presented to this Inquiry by Dr. 8 Pollanen. 9 The OCCO sees many positive outcomes from 10 the creation of the centre including the following four 11 (4) outcomes. 12 The dev -- first, the development of 13 evidence-based educational programs in forensic pathology 14 and forensic medicine that would include the inter- 15 professional education of undergraduate students in law 16 and medicine, and the continuing professional development 17 education activities for medical and legal communities. 18 That knowledge, creation in forensic disciplines, in our 19 view, may prevent adverse outcomes in the criminal 20 justice system. 21 Fostering an evidence-based culture in 22 forensic pathology will create opportunities to detect 23 and recognize the significance of cred -- critical 24 evidence. And we see the centre as helping to establish 25 a focal point, an assembly of critical mass to facilitate
2051 research into areas of controversy and debate in forensic 2 medicine and science. 3 I'm sure you're familiar with Dr. 4 Pollanen's proposal, but it is attached to our closing 5 submissions at appendix E for your reference, Mr. 6 Commissioner. 7 I'm going to turn to our eighth proposal, 8 and that's dealing with rec -- proposed recommendations 9 with regard to information, communication, and 10 technological advancements. 11 The OCCO proposed a centralized dispatch 12 service which would allow for the immediate entry and 13 tracking of all coroner's death investigations. We say 14 this would allow for the tracking of all post-mortem 15 examinations performed under coroner's warrant. 16 The streamlining and directing of post- 17 mortem examinations to appropriate pathologists and 18 facilities by the Chief Forensic Pathologist. 19 It would allow Regional Supervising 20 Coroner's Offices to monitor and track both the coroner's 21 death investigation and pathologist's post-mortem reports 22 for timeliness. 23 And it would also provide an easy one (1) 24 toll-free number for the public trying to locate a 25 coroner. The OCCO requires funding for this initiative
2061 and a number of other IT advancements. 2 We've set those out starting at page 181, 3 and they include, as you'll see, a tele-medicine portal 4 to be situated in the Provincial Forensic Pathology Unit 5 and all of the Regional Forensic Pathology Units for the 6 purposes of education and of realtime review and 7 consultation with forensic pathologists during post- 8 mortem examinations. 9 The OCCO submits that a new physical plant 10 is required to replace the current facilities. And, as 11 you heard from Dr. Porter, there are plans currently in 12 progress for that. 13 Upgrading of computers -- the computer 14 system to allow work to proceed at a reasonable rate. 15 And the OCCO should be given sufficient funding to 16 appoint an information technology manager that I eluded 17 to earlier, to develop electronic case submission 18 capabilities for investigating coroners. 19 Turn to my ninth -- our ninth proposal, 20 and that's dealing with regionalization and best 21 practices. Mr. Commissioner, you've heard that death 22 investigation and forensic pathology services in Ontario 23 are based on regional models with central offices in 24 Toronto. 25 And that's true for both the coroner's
2071 investigations and for forensic pathology services. And 2 regionalization is not simply a reproduction of head 3 office in various distant locations. 4 Mr. Commissioner, and my submission is, it 5 is instead a recognition of the need to foster best 6 practices that adhere to guidelines articulated by head 7 office, but that are implemented in a way that best 8 serves to meet the needs of a particular region. 9 And, to that end, the OCCO recommends the 10 amalgamation of Regional Supervising Coroner's Offices 11 with Regional Forensic Pathology Units where possible. 12 At a minimum, as Dr. McCallum said in his evidence, the 13 Regional Supervising Coroner should be co-located with 14 the Regional Forensic Pathology Unit. 15 Also, where possible, the OCCO urges an 16 endorsement of Regional Forensic Pathologists holding 17 daily rounds where a Regional Supervising Coroner, 18 coroner's and pathologists can participate. 19 And this we model after what we see really 20 as best practice coming out of the Provincial Forensic 21 Pathology Unit. The OCCO submits there are a number of 22 benefits that come out of these daily rounds. 23 First, this could assist in reducing the 24 number of unnecessary post-mortem examinations. As we 25 heard from Dr. Edwards and Dr. Lauwers, that their
2081 experience in Toronto has been that often times, in 2 consultation, the coroners and pathologists decide to 3 cancel autopsies in appropriate cases. Similarly, 4 unnecessary toxicology could be cancelled, and that 5 certainly would go a long way to dealing with some of the 6 timeliness issues relating to toxicology. 7 Third, important missing information could 8 be obtained before the post-mortem examination begins. 9 Fourth, police presence could be requested 10 where appropriate and necessary. 11 Fifth, consultation, ideally through the 12 tele-medicine portal with the Provincial FPU could occur. 13 And, sixth, we say that this really 14 maximizes educational opportunities to have different 15 physicians consulting one another in realtime. 16 Mr. Commissioner, given the vast 17 geographical expanse of Northern Ontario, the OCCO 18 recognizes that there should be consideration given to 19 dividing the Northern Region into two (2) regions; one 20 (1) managed from Thunder Bay, and one (1) from Sudbury, 21 each with it's own Regional Supervising Coroner. 22 As well, consideration should be given to 23 creating a Regional Forensic Pathology Unit in Thunder 24 Bay. 25 At a minimum, the OCCO requests that you
2091 consider a recommendation that there be additional 2 funding to assist in enhancing the forensic services 3 currently offered in Thunder Bay. 4 And, finally, with regard to the Northern 5 Region; appropriate funding is required so that the 6 current Northeastern Regional Forensic Pathology Unit can 7 become a formal regional forensic pathology unit. 8 COMMISSIONER STEPHEN GOUDGE: They would 9 not do pediatric cases; they would continue to go to 10 Winnipeg? 11 Is that the vision? 12 MS. LUISA RITACCA: The -- if -- if there 13 was a newly-created Thunder Bay Regional Unit, or the -- 14 COMMISSIONER STEPHEN GOUDGE: Yes. 15 MS. LUISA RITACCA: That -- yeah, that 16 would be the vision, short term, yes. 17 COMMISSIONER STEPHEN GOUDGE: Okay. And 18 the service agreement that you contemplate, that is the 19 way to bring on what you call a "short term," the 20 pediatric forensic pathology being done in Manitoba now 21 is by a service agreement rather than an individual 22 agreement? 23 MS. LUISA RITACCA: We think that is -- 24 should be a service agreement with the -- 25 COMMISSIONER STEPHEN GOUDGE: With the
2101 hospital. 2 MS. LUISA RITACCA: No. We're talking 3 about Manitoba? 4 COMMISSIONER STEPHEN GOUDGE: Yes. 5 MS. LUISA RITACCA: So it would be with 6 the Chief Medical Examiner's Office in Manitoba. 7 COMMISSIONER STEPHEN GOUDGE: With the 8 Chief Medical Examiner's Office. 9 MS. LUISA RITACCA: Yes. Yes. 10 COMMISSIONER STEPHEN GOUDGE: There is 11 one (1) pathologist there that does them all -- 12 MS. LUISA RITACCA: That's right. 13 COMMISSIONER STEPHEN GOUDGE: -- as I 14 understand it. 15 MS. LUISA RITACCA: That's right. 16 COMMISSIONER STEPHEN GOUDGE: Would there 17 be an individual contract or would you see that -- or is 18 that a -- 19 MS. LUISA RITACCA: I don't think that 20 would be necessary. 21 COMMISSIONER STEPHEN GOUDGE: Okay. 22 MS. LUISA RITACCA: Obviously, that 23 individual pathologist would have to be duly qualified 24 and -- 25 COMMISSIONER STEPHEN GOUDGE: Right.
2111 MS. LUISA RITACCA: -- listed on the 2 registry. 3 COMMISSIONER STEPHEN GOUDGE: Right. 4 MS. LUISA RITACCA: I'd like to turn 5 briefly to issues raised with regard to remote 6 communities. The OCCO recognizes that its communication 7 with Aboriginal communities, remote communities, 8 particularly needs to be enhanced. 9 And we've suggested, in our 10 recommendations, that a means of enhancing that 11 communication could be through an Aboriginal liaison 12 coordinator. And we realize that our submission hasn't 13 been em -- has not been embraced by that part of the 14 Aboriginal community represented by Mr. Falconer. 15 With respect, Mr. Commissioner, this 16 suggestion is -- is just that; a proposed recommendation. 17 If this initiative -- the development of an Aboriginal 18 liaison coordinator -- is to be implemented the OCCO 19 recognizes that it needs to consult with Aboriginal 20 communities as to the advisability of that initiative and 21 to whether there is an alternative solution. 22 We see the Aboriginal liaison coordinator 23 situated in the regional office in Thunder Bay, and that 24 person would be available to coordinate with leaders of 25 Aboriginal communities and band councils on both
2121 individual death investigations and on larger policy 2 issues arising in death investigation in the North. 3 I -- I'd like to address just briefly 4 ALST-NAN's position with regard to the OCCO's submission 5 that there should be cons -- continued resort to 6 delegation of a coroner's investigative powers to police 7 officers under section 16(2) of the Act. 8 As I understand, ALST NAN's submission 9 goes so far as to say that the use of police officer 10 delegates runs contrary to the Supreme Court of Canada's 11 warning in Colarusso that the delegation powers under the 12 Coroners Act may well be unlawful, and the OCCO has, in 13 fact, recommended a second-rate system for Aboriginal 14 communities. 15 The Supreme Court of Canada's decision is 16 the authority of longstanding, Mr. Commissioner, having 17 been decided no less that fourteen (14) years ago. It is 18 hardly new to either the OCCO, which deals with 19 Colarusso's guidance on a daily basis, or to the police 20 agencies. 21 The central lesson, in our view, is that 22 where a police officer attends at a death scene at the 23 request of a coroner, the circumstances will determine 24 what tools the investigator uses; that is, their criminal 25 investigative powers or those available under the
2131 Coroners Act. 2 And the strict align that ALST NAN claims 3 must be bet -- maintained is not between police officers 4 and coroners, but between those powers. And re -- we 5 really say the answer is in appropriate training for both 6 police officers and coroners. 7 The answer is not in denying remote 8 communities the benefit of the experience and skills of 9 the likes of Detective Inspector Olinyk, from whom you 10 heard during the Thunder Bay roundtables. 11 As well, it is our concern that the 12 proposal ig -- urged upon you by ALST-NAN ignores the 13 fact that the role of a physician coroner in death 14 investigation is much larger than scene attendance. 15 And you may recall that in the first week 16 of this inquiry, Dr. McClellan, at page 119/120, November 17 16, 2007, in addressing the issue of dele -- of the 18 delegation of powers, said this: 19 "Scene investigation is only part of a 20 coroner's investigation. The coroner 21 may, under such circumstances, order an 22 autopsy; he may have an opportunity 23 later to review photographs, other 24 documentation, may decide to seize 25 medical records and review medical
2141 records. And the scene visit is 2 important, but there's much else for 3 the coroner to consider." 4 It's my submission, Mr. Commissioner, that 5 ALST-NAN's proposal ignores the very real benefit that 6 the expertise of a physician and expertise of the police 7 bring to bear on death investigation. 8 Turn to some miscellaneous issues under, 9 what we call, "Best Practices." These are starting at 10 page 185, Mr. Commissioner. We've made a number of 11 proposed recommendations to that end. 12 I won't take you through them in any 13 detail, save to point out that many of these proposed 14 recommendations deal specifically with issues that we saw 15 raised at this Inquiry. 16 Issue of communication with the forensic 17 pathologist; we dealt with this in a number of 18 paragraphs, but I'll just say this. It is, certainly, 19 the OCCO's submission that communication to and by a 20 forensic pathologist should be accurately recorded and 21 available for disclosure in a case-by-case basis. 22 With regard to the role of the coroner in 23 a criminal case, we've also set that out at pages 185 and 24 186, but I will say, in brief, the OCCO recognizes the 25 primary role of the coroner in any case, whether
2151 criminally suspicious or not, is to fulfill the 2 investigative requirements set out in his or her 3 governing legislation. 4 The OCCO recognizes that in the criminally 5 or criminally suspicious case, the police investigators 6 and the forensic pathologists will have more immediate 7 role in the criminal case, and that, invariably, the 8 forensic pathologist will be the primary expert for the 9 police. 10 We have also set out a best practice with 11 regard to organ retention, which I won't take you to, and 12 scene attendance, which I won't take you to now. 13 I will make this last point under "Best 14 Practices" with regard to specialist coroners. Given the 15 vast geographical expanse of Ontario, the relatively few 16 pediatric deaths of children less that five (5) years of 17 age, and the fewer homicides of -- of these children; it 18 is the submission of the OCCO that it would be 19 impractical to create "specialist coroners" to 20 investigate pediatric deaths. 21 In our view, to ensure death inv -- 22 quality death investigations, the office should provide 23 educational programs -- continue to provide educational 24 programs around the issues arising from this Commission, 25 including pediatric forensic pathology issues, and to
2161 annually update any controversies that arise in the state 2 of knowledge from the literature. 3 And, finally, I turn to our last area and 4 that's the death investigation team. And in our written 5 materials we have set out recommendations for enhancing 6 relationships within the death investigation team. And, 7 again, I won't take you to them with any great detail. 8 But first, the police -- the OCCO 9 recognizes that it should continue to liaison with the 10 Ontario Provincial Police and Aboriginal Peoples to 11 create a model for dedicated police officers with 12 specialized training in death investigation and 13 Aboriginal issues regarding death. 14 And that these offers -- police officers, 15 as I eluded to earlier, should be appointed by cor -- by 16 the coroners, pursuant to section 16(3) and (4) of the 17 Act. 18 We also endorse proposal guidelines being 19 developed for police officers when attendance by a 20 coroner is not feasible. 21 The Centre for Forensic Sciences also 22 obviously a key member of the death investigation team. 23 We know that toxicology results are required for 24 approximately half of all post-mortem cases in Ontario 25 annually, and that many of these cases involve the
2171 criminal justice system. 2 And even more frequently, toxicology is 3 required in the investigation of accidental deaths which 4 impact on important civil matters such as the 5 determination of insurance benefit eligibility. 6 The OCCO proposes that it continue to 7 collaborate with the Centre for Forensic Science to 8 create guidelines for requesting toxicology and 9 appropriate benchmarks for the completion of analytical 10 testing for toxicology. 11 This should assist in ensuring the timely 12 completion of post-mortem reports and coroner's death 13 investigations. 14 We say that the appropriate benchmarks 15 should be based on the Society of Forensic Toxicologists 16 or other peer organizations' benchmarks, and should allow 17 for timely completion of the death investigation. 18 We also have a proposal that I won't take 19 you to with regard to the OCCO's relationship with the 20 Children's Aid Society. 21 And so finally, Mr. Commissioner, on 22 behalf of our clients, I would like to say to you and to 23 your staff that the Office of the Chief Coroner thanks 24 you for the time and fairness and wisdom that you have 25 brought to bear on this Inquiry.
2181 We look forward to learning of your vision 2 and recommendations for an improved death investigation 3 in the Province of Ontario. Thank you. 4 COMMISSIONER STEPHEN GOUDGE: Well, thank 5 you, Ms. Ritacca. 6 That brings to an end the public hearings 7 of this Commission. We began five (5) months ago, and 8 you all have been prepared to work very hard and very 9 professionally, and I'm very grateful for that. 10 It's allowed us to proceed as 11 expeditiously as I hoped we could when we began. It's 12 been obvious you've left me with an array of difficult, 13 challenging and important issues to resolve. 14 Your work is done. I'm afraid my work is 15 just beginning, so we'll adjourn these hearings. Thank 16 you. 17 18 --- Upon adjourning at 4:32 p.m. 19 20 21 Certified Correct, 22 23 ______________________ 24 Rolanda Lokey, Ms. 25