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 December 3rd, 2007 25
21 Appearances 2 Linda Rothstein ) Commission Counsel 3 Mark Sandler ) 4 Robert Centa ) 5 Jennifer McAleer (np) ) 6 Johnathan Shime (np) ) 7 8 Brian Gover ) Office of the Chief Coroner 9 Luisa Ritacca ) for Ontario 10 Teja Rachamalla (np) ) 11 12 Jane Langford ) Dr. Charles Smith 13 Niels Ortved (np) ) 14 Erica Baron ) 15 Grant Hoole (np) ) 16 17 William Carter ) Hospital for Sick Children 18 Barbara Walker-Renshaw (np) ) 19 Kate Crawford ) 20 21 Paul Cavalluzzo (np) ) Ontario Crown Attorneys' 22 Association 23 24 25
31 APPEARANCES (CONT'D) 2 3 Mara Greene (np) ) Criminal Lawyers' 4 Breese Davies (np) ) Association 5 Joseph Di Luca (np) ) 6 Jeffery Manishen (np) ) 7 8 James Lockyer (np) ) William Mullins-Johnson, 9 Alison Craig ) Sherry Sherret-Robinson and 10 Phil Campbell ) seven unnamed persons 11 12 Peter Wardle ) Affected Families Group 13 Julie Kirkpatrick (np) ) 14 Daniel Bernstein (np) ) 15 16 Louis Sokolov ) Association in Defence of 17 Vanora Simpson (np) ) the Wrongly Convicted 18 Elizabeth Widner (np) ) 19 Paul Copeland (np) ) 20 21 Jackie Esmonde (np) ) Aboriginal Legal Services 22 Kimberly Murray ) of Toronto and Nishnawbe 23 Sheila Cuthbertson (np) ) Aski-Nation 24 Julian Falconer (np) ) 25
41 APPEARANCES (cont'd) 2 3 Suzan Fraser Defence for Children 4 International - Canada 5 6 William Manuel ) Ministry of the Attorney 7 Heather Mackay (np) ) General for Ontario 8 Erin Rizok (np) ) 9 Kim Twohig (np) ) 10 11 Natasha Egan ) College of Physicians and 12 Carolyn Silver ) Surgeons 13 14 Michael Lomer (np) ) For Marco Trotta 15 Jaki Freeman (np) ) 16 17 18 19 20 21 22 23 24 25
51 TABLE OF CONTENTS Page No. 2 3 JAMES GORDON YOUNG, Resumed 4 5 Continued Examination-In-Chief by Mr. Mark Sandler 6 6 Cross-Examination by Mr. Brian Gover 90 7 Cross-Examination by Ms. Erica Baron 155 8 Cross-Examination by Mr. Phillip Campbell 174 9 Cross-Examination by Mr. Peter Wardle 256 10 11 12 Certificate of transcript 287 13 14 15 16 17 18 19 20 21 22 23 24 25
61 --- Upon commencing at 9:34 a.m. 2 3 THE REGISTRAR: All rise. Please be 4 seated. 5 COMMISSIONER STEPHEN GOUDGE: Good 6 morning. My apologies for not being able to start when I 7 dragged you all here early this morning. We were victims 8 of technology. 9 But I think, Mr. Sandler, we're now fixed, 10 are we? 11 MR. MARK SANDLER: We are. 12 COMMISSIONER STEPHEN GOUDGE: Okay. Way 13 you go. 14 MR. MARK SANDLER: Good morning, 15 Commissioner. Good morning, Dr. Young. 16 DR. JAMES YOUNG: Good morning, Mr. 17 Sandler. Good morning, Commissioner. 18 COMMISSIONER STEPHEN GOUDGE: Good 19 morning. 20 21 JAMES GORDON YOUNG, Resumed 22 23 CONTINUED EXAMINATION-IN-CHIEF BY MR. MARK SANDLER: 24 MR. MARK SANDLER: Dr. Young, just to 25 reorient us where we left off the other day, you'll
71 recall in the chronology that we had discussed the fact 2 that in January of 2001, as -- after a meeting that -- 3 that you held with Dr. Smith, it was agreed that he would 4 no longer be performing autopsies in medicolegal cases. 5 In June of that same year, 1991, after Dr. 6 Carpenter's report came out, Dr. Smith, as I understand 7 it, was then permitted to perform medicolegal autopsies, 8 other than in suspicious deaths or homicides. And then 9 we moved forward to October of 2002 when the College 10 released its decisions on three (3) of the matters that 11 we have discussed: the Jenna matter, the Amber matter 12 and the Nicholas matter. 13 DR. JAMES YOUNG: Yes. 14 MR. MARK SANDLER: Okay. Now what I want 15 to do is just within the time frame that we've just 16 discussed, go back to the chronology, that document that 17 was presented to you at the outset of your testimony. 18 And I'll ask the Registrar to bring up the 19 chronology, if he may. And if we could go to page 7 of 20 the chronology. 21 DR. JAMES YOUNG: Okay. 22 MR. MARK SANDLER: And I just want to ask 23 you about your knowledge, or lack thereof, in connection 24 with two (2) cases that we have not talked about in the 25 course of your testimony.
81 So if you'd look with me in April of 2001, 2 the entry near the bottom of page 7 of the chronology, it 3 makes reference to the -- to the Valin case and reflects 4 that: 5 "On April the 3rd of 2001, Mr. Lomer, 6 in his capacity as a private citizen, 7 wrote to Dr. Cairns regarding the 8 Mullins-Johnson case. He indicated 9 there were four (4) pathologists 10 involved in the case and it was only 11 Dr. Smith who testified that the child 12 was sexually assaulted at or around the 13 time of death." 14 And then if you'd just go to the next page 15 for a moment, at page 8, we'll see in December of 2001, 16 David Bayliss of AIDWYC wrote to Dr. Cairns asking that 17 the Mullins-Johnson case be included in the Coroner's 18 review of Dr. Smith's work. 19 What awareness, if any, did you have of 20 the issue that had been raised in connection with the 21 Mullins-Johnson case? 22 DR. JAMES YOUNG: None. I -- the first I 23 ever heard anything about the case was in February of, I 24 believe it's 2004. At the American Academy of Sciences 25 meeting, Dr. McLellan and I sat and had a discussion. He
91 indicated to me that there was such a case and that -- 2 that there was a review underway and that it -- there had 3 been some preliminary work done by Dr. Pollanen and he 4 disagreed with Dr. Smith. That was the first I ever 5 heard anything about -- or had any knowledge whatsoever 6 of that case. 7 MR. MARK SANDLER: All right. In light 8 of the events that were occurring in January of 2001, 9 would you have expected, as a Chief Coroner, to be 10 advised of concerns that had been raised about yet 11 another case in which Dr. Smith had been involved? 12 DR. JAMES YOUNG: It certainly would have 13 been advantageous for me to know. I was -- I did -- I 14 don't know what Dr. Cairns was doing at the time or what 15 review he was undertaking or anything else, but I 16 certainly -- I -- all I can say is I didn't know until -- 17 I'd actually left the office by that point in time, and 18 it was a courtesy on Dr. McLellan's part to tell me about 19 it. 20 MR. MARK SANDLER: All right. And on the 21 same page, page 8, there's a reference at the bottom to 22 February of 2002. 23 And February 2002, Crown counsel wrote to 24 defence counsel, Mr. Lomer, informing him that: 25 "Dr. Cairns advised that there was a
101 review in twenty (20) cases and 2 eighteen (18) of those cases there was 3 no difference of opinion with Smith's 4 opinion. The other two (2), despite 5 differences of opinion there was no 6 suggestion that Smith was incompetent 7 or negligent. 8 The Crown understood Smith had been 9 reinstated to the autopsy roster in 10 June and as far as the OCCO was 11 concerned, Smith was competent to 12 conduct any autopsy and that Smith had 13 removed himself because he recognized 14 there would be challenges on his 15 cases." 16 And then we see on the next page of the 17 chronology, page 9, September 27, 2002, again on the 18 Paolo case, Dr. Cairns provided a written report to the 19 Crown saying: 20 "I have no concerns regarding the 21 opinion given by Dr. Smith and see no 22 reason whatsoever for our office or the 23 Crown attorney to hire another expert." 24 What, if any, awareness did you have of 25 the Paolo case back in 2001 and 2002?
111 DR. JAMES YOUNG: None whatsoever. And I 2 certainly would not agree with what's written here, that 3 that was -- represents, at least in my mind, what was 4 happening at all -- or what the review constituted, or 5 what the situation was at that point in time. 6 Dr. Smith was not and never did go back to 7 doing the cases, the suspicious cases, in the -- and the 8 homicides and it was never my intention at that point in 9 time that he would. He was doing the other cases because 10 of manpower problems and restrictions until I believe the 11 end of 2003, at which time I -- I removed him from doing 12 any cases. 13 So I -- this wouldn't represent -- first 14 of all, I knew nothing of this case, but it doesn't 15 represent the situation as I knew it at that time. 16 MR. MARK SANDLER: All right, and it 17 doesn't represent the situation in -- in two (2) 18 respects: first, in terms of what Dr. Smith was allowed 19 to be doing during that period and second, in -- in the 20 extent to which any review was being conducted -- 21 DR. JAMES YOUNG: Absolutely 22 MR. MARK SANDLER: -- of Dr. Smith's 23 work. 24 DR. JAMES YOUNG: I agree. The review 25 was -- the review that's being referred to was the review
121 for the Crown attorney to get them -- give them the 2 necessary information to decide whether or not they would 3 require further experts in Court; it was not anything 4 more than that. 5 It was -- it was an attempt to assist the 6 Crown attorneys, it was nothing more. 7 MR. MARK SANDLER: And can I take from 8 your comment that you were equally unaware of the fact 9 that Dr. Cairns had expressed his opinion, as reflected 10 at page 9 of this chronology concerning the Paolo case? 11 DR. JAMES YOUNG: I -- I didn't even know 12 about the case, so I certainly couldn't know about the 13 opinion. 14 MR. MARK SANDLER: All right. And had 15 you -- had you known that he was expressing his opinion 16 in the context of the issues that have been raised about 17 Dr. Smith back in 2001 and following, would that have 18 caused you any concern? 19 DR. JAMES YOUNG: Yes, but we have to put 20 it in the context of what's known at the particular time. 21 I mean, I still -- I know about a limited of number of 22 cases. We were certainly aware of the college reports on 23 the -- on the three (3) cases. On the other hand, there 24 are other reviews that have taken place that -- that 25 indicate that -- that his pathology is -- is fine on so -
131 - on some of those review cases. 2 So I -- it's a piece of the puzzle, but I 3 -- I can't place, you know, not -- without spending a 4 long time, I don't know exactly how big a piece or where 5 it fits because the -- you know it's a very complex 6 puzzle that's building and changing. 7 MR. MARK SANDLER: Okay. 8 DR. JAMES YOUNG: I certainly know of 9 very limited -- as I say, I know something about two (2) 10 or thr -- I guess, in essence, four (4) or five (5) of 11 these cases, but a very limited amount on an -- on any of 12 them. 13 MR. MARK SANDLER: And if I can take you 14 back to the white volume, IV. 15 DR. JAMES YOUNG: Okay. 16 MR. MARK SANDLER: And I took you to this 17 document -- it's at Tab 31 -- a little bit earlier -- 18 PFP145664 -- and you'll recall this is the internal 19 memorandum that was prepared by Dr. Carlisle to the file 20 concerning in large measure what Dr. Cairns had 21 telephoned him to advise him of, early in April of 2002. 22 Do you remember we -- 23 DR. JAMES YOUNG: Yes. 24 MR. MARK SANDLER: -- discussed this? 25 DR. JAMES YOUNG: Yes.
141 MR. MARK SANDLER: Now, did Dr. Cairns 2 advise you, in April of 2002, that he had disclosed this 3 information to Dr. Carlisle? 4 DR. JAMES YOUNG: He -- he advised me he 5 had disclosed information. My information that -- or my 6 impressions of what -- what he told me and I recall are - 7 - are a little bit different than what's in this memo, so 8 the -- the memo is more fulsome and there's information 9 in here that I wasn't aware of, but the fact that he had 10 disclosed and had the discussion with Dr. Carlisle, yes, 11 I was very aware and -- and supportive of. 12 MR. MARK SANDLER: All right. And when 13 the -- when the judgment actually came out on the Jenna 14 case -- and I'll remind you it's at Tab 33, PFP029033 -- 15 and -- and you read this decision as -- as you had 16 advised us a little bit earlier on, did you have any 17 residual concerns about whether the college had 18 adequately dealt with the issue that had caused Dr. 19 Cairns and you to regard Dr. Smith's explanation as 20 lacking credibility? 21 DR. JAMES YOUNG: I'm sorry, I -- you 22 lost -- you lost me on what you're asking me. 23 MR. MARK SANDLER: All right. Well, I'm 24 asking you this: The -- the decision, and there was 25 subsequent litigation about it when -- when Ms. Waudby
151 later unsuccessfully challenged the decision of the 2 College on the issue of the hair. But the decision 3 itself, that we've been through in October of 2002, 4 doesn't appear to make any reference to the hair? 5 DR. JAMES YOUNG: Oh, okay, right. 6 MR. MARK SANDLER: Did that cause you any 7 concern at the time? 8 DR. JAMES YOUNG: I -- I don't recall -- 9 the hair was an important -- to me in terms of -- of 10 issues around credibility. The hair as a -- as a 11 forensic piece of evidence, in my view was very likely to 12 turn out to be a red herring -- which it -- and of no 13 evidentiary value which is exactly what happened. 14 I mean, from the beginning I never really 15 thought the hair was of any evidentiary value, but I 16 certainly thought it was important. I don't recall -- I 17 mean I got the three (3) reports at once and I read 18 through them, but I -- I don't recall doing that degree 19 of analysis that I thought, I wonder why the hair isn't 20 in there. 21 I probably would have assumed there was 22 all a discussion if they chose not to comment on it. But 23 I don't remember. I really wouldn't remember that degree 24 of analysis. 25 MR. MARK SANDLER: Okay. Now if I can
161 take you to Tab 35 in the same volume, PFP056622. And 2 this is a letter dated February 17th of 2003, from you to 3 Dr. Gerace, the Registrar of the College of Physicians 4 and Surgeons. 5 And it reflects: 6 "Re. Complaints Committee decisions, 7 re. Dr. Charles Smith. 8 I'm writing to advise that a copy of 9 the Complaints Committee decisions in 10 three (3) cases involving Dr. Smith as 11 the respondent has been shared with the 12 Office of the Chief Coroner by Dr. 13 Smith's counsel. In reviewing the 14 Committee's analysis and conclusions, 15 it is of concern to me that there are 16 some issues that may have been 17 misunderstood in regards to the 18 respective roles of the coroner, the 19 pathologist who conducts a post-mortem 20 examination under the authority of the 21 coroner's warrant, and the 22 investigating officers." 23 And then you've said: 24 "The Complaint Committee's decision and 25 reasons regarding the complaint of Mr.
171 Gagnon states at the top of page 9: 2 'Well Dr. Smith has extensive 3 experience in pediatric pathology and 4 abundant experience in pediatric 5 forensic pathology, he has -- [sorry] 6 that he has on occasion failed to take 7 vital steps such as reviewing the 8 medical records and obtaining 9 consultation when needed.'" 10 The decision also lists on page 13, a list 11 of deficiencies, the first being: 12 "Dr. Smith failed to obtain information 13 of Nicholas' head circumference in 14 life." 15 Similarly the Complaint Committee's 16 decision and reasons regarding the complaint of Ms. 17 Waudby states at page 6: 18 "This lack of availability of Medical 19 records is a serious deficiency in the 20 Ontario coroner system and hampered Dr. 21 Smith in his ability to perform 22 necessary tests including a rape kit 23 examination, and has the potential for 24 a forensic pathologist to come to an 25 inaccurate or wrong conclusion about
181 the cause of the death and other 2 questions arising during the 3 investigation."" 4 Then you go on to say that: 5 "In the death investigation system in 6 Ontario, the authority to determine the 7 cause of death and manner of death 8 classification rests with the coroner. 9 An investigating coroner would collect 10 information from a scene investigation, 11 police investigation, past history, 12 examination of the body, post-mortem 13 report and toxicology reports if 14 ordered. The warrant for post-mortem 15 examination is completed by the coroner 16 and details information available at 17 the scene where the body is found. 18 It's the coroner's responsibility to 19 ensure that the pathologist has all the 20 information available, particularly in 21 complex cases, before the autopsy 22 begins. If there's specific 23 information the pathologist requests, 24 he or she can make a request to the 25 coroner and it is expected that the
191 coroner will attempt to obtain it." 2 And then: 3 "In complex or suspicious cases a 4 meeting is held with all involved 5 parties to review available information 6 and to decide what additional efforts 7 must be exerted to test specimens or 8 conduct further investigation. 9 Decisions regarding what radiograph 10 should be taken and what additional 11 tests to perform, or experts to be 12 consulted, should be made in 13 consultation between the coroner and 14 the pathologist. The responsibility 15 for directing these efforts lies with 16 the coroner and his or her supervisor. 17 If a pathologist requires additional 18 medical information before -- [sorry] 19 history before completing the post- 20 mortem report a request is made to the 21 coroner and records are obtained, 22 utilizing a coroner's warrant powers. 23 It's expected that all available 24 relevant information is given to the 25 pathologist before the autopsy begins.
201 In most cases a copy of available 2 ambulance or emergency department 3 records do accompany the body. The 4 importance of this inclusion will be 5 stressed with all investigating 6 coroners throughout the coroner's 7 newsletter, The Mortem Post, a 8 newsletter distributed to all coroners, 9 pathologists and police services in the 10 Province." 11 Now, just stopping there for a moment. 12 What prompted you to write this letter? 13 DR. JAMES YOUNG: Well, first of all, I 14 don't think I wrote this letter. I -- I signed this 15 letter, someone else wrote it. I think -- I don't know 16 if it was Dr. Cairns or who it was. Just the style of 17 this writing isn't -- this isn't the way I write, so 18 it's not the way I would normally compose a letter. 19 But someone has written the letter and 20 I've signed it. I was aware of the reports, and I -- I - 21 - we certainly had no issues with the -- the findings of 22 the reports in terms of the issues that they raised with 23 Dr. Smith with the discipline that they had decided upon. 24 But any review by outside people makes 25 certain assumptions that systems are the same worldwide,
211 and while there are big similarities in -- in death 2 investigations systems, there are also differences as to 3 who does what and who has responsibility for what. 4 And I think the -- what you read me says 5 to me, we recognize, in fact, we've got some work to do 6 on the coroner's side. It wasn't all just Dr. Smith. 7 The matter of -- of getting reports and getting the right 8 information to pathologists had been a real concern to us 9 and we had dealt with it with the coroners over and over 10 and over again. 11 If they're to do their job and they're to 12 do it right, they need this information. And so we -- 13 what we're acknowledging here is that that's not all Dr. 14 Smith, that's the coroner system that has that 15 responsibility. And we need to do a better job and we're 16 going to continue to work at that, because that's a -- 17 that's a hole in the system that we can't just say, Well, 18 it's up to the pathologist. It's up to the coroner, as 19 well; that's a team and they're letting their end down. 20 MR. MARK SANDLER: Now, two (2) questions 21 arising out of that; the first is: Was the letter 22 written at the initiative of the Chief Coroner's Office 23 or at the request of Dr. Smith or another party? 24 DR. JAMES YOUNG: I think Dr. Smith 25 raised with the Office the issue that some of the review
221 included issues that were partly beyond his control. And 2 while the -- while the overall result in the censure 3 might be appropriate that there may have been some 4 misunderstanding about what his responsibilities and 5 duties -- I mean, he -- he cannot -- he can ask for the 6 chart and he can ask the coroner to persu -- produce it, 7 but he has no -- no way in law of actually getting the 8 chart. It has to be the coroner that sends for it. 9 MR. MARK SANDLER: But I -- I guess the 10 question that -- that I -- the second question I ask you 11 arises out of something we talked about the other day, 12 which was when we reviewed the decisions -- itself, you 13 appeared to agree with me that -- that the committee, in 14 articulating the respective roles and what Dr. Smith was 15 and wasn't responsible for, appeared not to have gotten 16 it wrong. 17 DR. JAMES YOUNG: Well, I -- they did in 18 regards to the photos. And on this issue of the -- of 19 the charts, they got it right, but they're -- but the 20 answer is broader; the answer includes the responsibility 21 of the coroner's office and that's what this says. It's 22 the coroner's responsibility, as well. 23 And I think it's a reassurance to the 24 College that in fact we're -- we've -- we see the problem 25 and it's not going to be corrected just by Dr. Smith
231 doing a better job, it's going to be corrected by the 2 coroners and the pathologists knowing about it and doing 3 more. 4 I don't -- I don't think we're arguing 5 with the report at. In fact, I think what I view this 6 part is doing, is a reassurance to the College that 7 there's a systemic problem and we're going to deal with 8 this systemic problem, and that's the intent. 9 MR. MARK SANDLER: So was it a concern to 10 you that -- that they may have misunderstood the 11 respective roles of the coroner and the pathologist, or 12 was that a concern of Dr. Smith that you incorporated 13 into your letter? 14 DR. JAMES YOUNG: I have that concern 15 with the study that was done -- any study -- when you 16 bring outside people, one (1) of the -- one (1) of the 17 features of the study is that they may import their own 18 system into the -- and their own biases into the system. 19 For example, you know, in -- in the study 20 that was just done, one (1) of the criticisms is the 21 length of the reports. And while we may change that with 22 time, there are jurisdictions -- use short reports and 23 there are jurisdictions that use long reports and they 24 had their reasons within the criminal justice system of 25 doing so.
241 And while someone may come in with a bias 2 that in our area we do this for this reason and we may -- 3 but sometime we agree to disagree, so that -- any time 4 I've done reviews of other offices and other things, and 5 I come in with my biases, I come from a good system that 6 says this is the best way to do it. And they say, Well, 7 we don't -- that doesn't fit our needs. 8 So it's -- it's an issue in any review and 9 something that we have to bear in mind; that -- that 10 often the -- they hit the target with the -- the overall 11 thing, but there may be issues that just don't fit the 12 particular -- either the facts of that jurisdiction or 13 the practises. 14 MR. MARK SANDLER: Now, this was where we 15 had left off -- what I'm about to ask you now -- the 16 other day, and that is: As a result of reading the 17 decisions of the Committee in October of 2002, together 18 with whatever you had learned in connection with other 19 cases that -- that had come on to your radar screen, what 20 was your opinion at that point in time on the issue of 21 Dr. Smith's competence, abilities and likelihood to be 22 performing autopsies for the Coroner's Office in the 23 future? 24 DR. JAMES YOUNG: Well, I -- I think at 25 this point, not -- not much changed as a result of this
251 because I -- he no -- no longer was doing suspicious 2 deaths or -- or homicides. We were having him do a 3 select group of cases because of manpower issues and we 4 saw no way out of that in the immediate future at that 5 particular point in time. 6 The report, in regards to Amber, for 7 example, did not -- the issues that they raised, I knew 8 about some of those issues. And in fact when I read the 9 overall conclusion of -- of his pathology, it agreed, it 10 didn't raise any flags with me that he was wrong in his 11 overall pathology opinion, so it certainly didn't make me 12 any more concerned about the Amber case than I had been. 13 I already had conceded in my mind and 14 realized that there were problems in the Gagnon case and 15 -- I mean the Nicholas case, and so I -- you know, I -- 16 it didn't set off any further alarm bells. 17 And the -- as far as the Jenna case, it -- 18 it was moving along and still under investigation. And 19 perhaps I learned there was, you know, some additional 20 problems beyond what I knew but he wasn't doing those 21 cases. We were working with the Crown attorney on making 22 sure that the cases went to -- that were going to court 23 were -- were being reviewed and being covered. 24 So as far as I was concerned, there was no 25 new cases and there was noth -- and the ones that were
261 going to court were -- were happening. And I wouldn't 2 have -- other than cutting him off doing any cases, there 3 was nothing else in my mind that we were going to do at 4 that point in time. And I didn't feel I had the luxury 5 of -- of cutting him off at that point in time. 6 MR. MARK SANDLER: All right. If we can 7 move forward to October of 1993, which is one (1) year 8 later. And if I can take you to PFP139992, and this is 9 found at Volume IV, Tab 37. 10 COMMISSIONER STEPHEN GOUDGE: This is 11 October of 2003? 12 MR. MARK SANDLER: Of -- did I say "'93"? 13 I'm sorry, 2003. Okay. 14 COMMISSIONER STEPHEN GOUDGE: I run out 15 of chronology at 2002, Mr. Sandler. 16 Is that right? 17 MR. MARK SANDLER: Yes. 18 COMMISSIONER STEPHEN GOUDGE: Okay. 19 MR. MARK SANDLER: We're off the 20 chronology chart. 21 COMMISSIONER STEPHEN GOUDGE: Okay. 22 23 CONTINUED BY MR. MARK SANDLER: 24 MR. MARK SANDLER: Now, Dr. Young, I can 25 tell you these are notes -- and you'll find within this
271 tab, notes of a meeting that -- that you participated in, 2 as well as Dr. Smith and others, on October the 2nd of 3 1993. 4 MR. ROBERT CENTA: 2003. 5 MR. MARK SANDLER: Sorry, 2003. 6 7 CONTINUED BY MR. MARK SANDLER: 8 MR. MARK SANDLER: And do you have a 9 recollection of that meeting taking place? 10 DR. JAMES YOUNG: Yes, I think this is 11 the time that we're doing the discussing about Charles 12 not doing any -- doing any cases. 13 MR. MARK SANDLER: All right. So tell us 14 what prompted the meeting and tell us, in essence, what 15 happened at the meeting. 16 DR. JAMES YOUNG: The -- a number of 17 things have -- have prompted the meeting and have changed 18 the -- that changes the action. What prompted the 19 meeting was two (2) things, really: one (1) is that 20 there continued at that point in time to be considerable 21 writing and discussion about -- about Charles in -- by 22 that point in a general nature, both in the press and in 23 the -- within the criminal justice system. 24 And at that point in time, Dr. Chiasson 25 had agreed to do some pediatric cases and -- but he came
281 to us and indicated that while he was comfortable doing 2 some cases he was not comfortable in taking over a case 3 that Dr. Smith had -- had started. If it turned out that 4 it was going to potentially turn into something more 5 difficult he -- or more controversial -- he wished not to 6 take over the case, at that point; he wished to start the 7 case and be the only one doing the case. 8 So essentially, we were at a situation 9 where the -- we had had Dr. Smith doing cases because of 10 manpower, but at this point in time we now have some 11 additional manpower, and that Dr. Chiasson is doing 12 cases. 13 And in fact, that manpower has indicated 14 that he -- they don't want Dr. Smith doing cases, so 15 we've -- we've reversed the situation; we now can get the 16 cases done without -- without Dr. Smith. So the -- we're 17 moving towards saying Dr. Smith, No, we don't you want 18 you doing cases any -- any longer. 19 And at this point in time we either -- I - 20 - I can't remember exactly in the chronology whether Dr. 21 Pollanen is -- is hired at this point or -- or just 22 finishing. It's around the time that we know that -- I 23 mean, we've essentially been waiting for Dr. Pollanen to 24 finish his residency so we can hire him and he can start 25 to work. So we're starting to -- we have alternatives at
291 this point in time and we're starting to be able to use 2 those alternatives. 3 MR. MARK SANDLER: All right. Well, 4 we're going to -- we'll come back to that just shortly. 5 But if I can just take you to -- to the next document, 6 which is Volume IV, Tab 38. 7 DR. JAMES YOUNG: Okay. 8 MR. MARK SANDLER: And -- and these are 9 notes dated October 16th, 2003, and they're headed up 10 "JGY". 11 And can you help me out as to what these 12 pertain to? 13 DR. JAMES YOUNG: I'd have to see the 14 written -- the typed copy. I -- I can't read all of -- 15 all of Mr. O'Marra's lawyerly writings. They're not 16 quite -- 17 MR. MARK SANDLER: Well, we'll put -- 18 DR. JAMES YOUNG: -- as bad as a doctor, 19 but they're not -- 20 MR. MARK SANDLER: Fair enough. We'll 21 put up the typed version on the -- on the screen. 22 DR. JAMES YOUNG: And, you know, I would 23 also say to you, you know, I -- until last week, I've 24 never -- never seen any of these. They -- I didn't write 25 them and I didn't see them and I'm not sure I even knew -
301 - well, I think I knew they existed because Al took notes 2 but... 3 MR. MARK SANDLER: All right. Well, 4 let's just see what the notes say and see whether they 5 assist in refreshing your memory as to what was being 6 discussed. It says: 7 "Considered points seriously. Valid. 8 Concern: lightning rod effects. Met 9 with CLA: terms of reference. 10 Aggressive, sent out issues; what to do 11 with dealing with pathologist. 12 Discipline. Even raised CPSO. 13 Potential for Under Two for forensic 14 involvement. Can't figure out -- can't 15 figure how to separate out involvement; 16 constantly battling. Even name on 17 report causes concerns. Fair? 18 Probably not but defence smells blood. 19 Possibly battling public inquiry into 20 OCC. Prefer to work with them to have 21 them understand pathology. As hard as 22 we try, decided we have to sever 23 relationship. 24 No [question, or] "Q", you've raised 25 the bar but we can't see any way around
311 it. Our view is we ought to sever the 2 relationship. It's our collective 3 thought you may wish to resign. We 4 don't need an answer this a.m. but 5 soon. 6 Our sense is that it may be a better 7 solution for you to resign but that's 8 your decision. 9 Charles Smith. Implications for CPSO 10 and lawsuits have to decide whether 11 it's positive or negative impact." 12 Does that assist in refreshing your memory 13 as to what these notes would have been referring to? 14 DR. JAMES YOUNG: Yeah. This -- this is 15 a meeting that we had with Charles and I led the meeting. 16 But Charles is there and we're discussing Charles 17 resigning from cases at this point in time. I believe at 18 this meeting, the other Deputies were there as well; I 19 believe Dr. Cairns, Dr. Porter, Dr. McLellan were all at 20 this meeting as well. 21 MR. MARK SANDLER: Now just to be clear. 22 This one is dated October the 16th and I earlier took you 23 to notes of a meeting of October the 2nd of 2003 that 24 reflects meeting with Charles Smith, Barry McLellan, 25 James Young, Jim Cairns, Bonnie Porter --
321 DR. JAMES YOUNG: Oh. 2 MR. MARK SANDLER: -- and Mr. O'Marra. 3 Do you remember whether you had one (1) or 4 more meetings with Dr. Smith where -- 5 DR. JAMES YOUNG: No. 6 MR. MARK SANDLER: -- this issue came up? 7 DR. JAMES YOUNG: No. No, I -- I 8 actually can't. We had a meeting where everyone was 9 there, and we discussed these things. I -- I may be 10 mixing two (2) meetings and putting them together, I -- I 11 don't know. I -- 12 The -- the issue at the time was whether 13 or not he should continue to do cases, and we may have 14 had a meeting with him with everyone there and had the 15 discussion after and this is the follow-up and -- and I 16 don't -- I just don't remember. 17 I -- I know what we were talking about 18 roughly at that point in time, but I -- 2003 is a blur. 19 2003 I had SARS, I had the power blackout, I had the 20 tainted meat to manage for government; I was literally 21 not in the office that whole year and I -- I remember 22 this -- doing this because that was still my 23 responsibility, but I -- I've just the -- the -- the -- 24 which meeting, which day I can't tell you. 25 MR. MARK SANDLER: Okay, so leaving aside
331 whether it was one (1) or more than one (1) meeting, and 2 I'm not sure a lot turns on the point, the reflection 3 here is concern "lightening rod" effects, and -- and is 4 that the point that you made earlier to the Commissioner, 5 that you were concerned about the lightening rod effect 6 associated with Dr. Smith's involvement in cases? 7 DR. JAMES YOUNG: Yes, and it -- and it's 8 the point -- it's the point we had been making to him 9 that -- that everything -- he had be -- increasingly, 10 even at the time in 2001 had become a lightening rod. 11 At this point he's become a major 12 lightening rod. I mean it's -- it's not -- you know we 13 initially had hoped -- you know initially the first day 14 he talked about whether or not he might even come back 15 following a review, but at this point we're saying really 16 it -- it's not in the foreseeable future. 17 We're not going to do the review and we're 18 not going -- you know, we're going to pull you off even 19 the cases you were doing. 20 MR. MARK SANDLER: And -- and even as of 21 October of 2003 was -- was the only concern at that point 22 in time that -- that he was a lightening rod or at that 23 point in time did you have any concern about the quality 24 of the work that he'd be performing? 25 DR. JAMES YOUNG: Yeah, but we're -- what
341 we're trying to -- you know what Al is making the point 2 is part of what we're discussing with him. The College 3 has taken place; we're all aware of that. 4 What we're having is a discussion that's 5 trying to convince him that it's in everybody's best 6 interest that he doesn't do cases any further. So, you 7 know, you can do it many ways, but you know what we're in 8 fact trying to do with him is say to him, This is -- 9 certainly in the au -- interest of the Office of the 10 Chief Coroner, but it's also in your own interest, as 11 well. 12 You're attracting too much attention, it's 13 got to be having an affect on you, so it's not the 14 fullness of the whole discussion, but it's a point that's 15 being made. You know what we're trying to do is, 16 gracefully, say to him like, We -- we don't need your 17 services any longer, and we're not even going to let you 18 do the cases you were doing, so that's -- that's what 19 this is really about. 20 MR. MARK SANDLER: And do you remember 21 what his attitude was as articulated in these meetings, 22 or meeting, or meetings in October of 2003? 23 DR. JAMES YOUNG: Yeah, we -- we -- we 24 found his attitude disturbing at this point in time. We 25 -- the meetings at -- at times went into a number of
351 cases and Charles gave us explanations for things that 2 had happened that we found very, very defensive. And at 3 this point in time, he was -- had a reason for everything 4 and the reason was always someone else not doing 5 something, or letting -- letting him down, or not. 6 I can remember, for example, specifically 7 him saying the police officer -- I asked the police 8 officer if he wanted the hair, he said no, and I still 9 thought it was important and kept it. And various 10 explanations along this sort of line were -- were 11 tendered and -- and discussed. 12 And I think we all came out of it feeling 13 that -- that his insight into these events was literally 14 nonexistent and -- but we also recognized that he was 15 under enormous emotional pressure at this point in time 16 and -- and that, you know, one (1) of the things that 17 happens when people get under a lot of pressure is they 18 shift blame. 19 You know we -- we're physicians and we're 20 very used to -- you'd be surprised how many families 21 blame the coroner for the death and, you know, the 22 coroner doesn't come along until after the death and yet 23 they somehow work the events into it being the Coroner's 24 Office fault. 25 And that's a human reaction and I so I
361 think we -- we allowed for that. We -- we understood it, 2 but we weren't going to -- we were going to stand our 3 ground that he wasn't going to do cases. 4 MR. MARK SANDLER: Okay. The -- these 5 notes for October the 16th reflect possibly battling 6 public inquiry into the OCCO. 7 What was that with reference to, do you 8 recall? 9 DR. JAMES YOUNG: Well, I'm not sure of 10 the -- the phrasing, because I didn't write it. But, I 11 mean, at that point in time, had the thought occurred to 12 us that, you know, that there were issues that -- you 13 know, we just finished another inquiry if -- you know, 14 could there be a public inquiry into the cases that we 15 had had? Yes, there --perhaps there could be. 16 I think it's just nothing but a reflection 17 of -- they weren't quieted down, there were still 18 lawsuits, there might be further action. 19 MR. MARK SANDLER: And then it say -- it 20 says in one (1) of the bullet points: 21 "No [question, or] Q, you've raised the 22 bar, but we can't see any way around 23 it." 24 Do you know what you might have been 25 referring to --
371 DR. JAMES YOUNG: Well, it isn't 2 necessarily -- 3 MR. MARK SANDLER: -- in saying -- 4 DR. JAMES YOUNG: No. No, I don't know 5 what that means -- you know, but it -- it isn't 6 necessarily something I said. I don't think this is 7 just, you know, just a quoting of me. I think it's -- it 8 may reflect the meeting. 9 It may reflect something I said, but I'm - 10 - I don't -- I don't know, other then to say to Charles, 11 there's no way around this, one (1) way or another you're 12 not going to be doing cases, but that's all I can think 13 of. 14 But I -- I don't know. I didn't write it, 15 and I don't recall exactly. 16 MR. MARK SANDLER: What transpired as a 17 result of these discussions in October 2003? Did Dr. 18 Smith immediately resign or where did it go from there? 19 DR. JAMES YOUNG: No, he -- he didn't, 20 but by December he was no longer doing cases. He didn't 21 -- you know, we didn't -- we didn't insist, as the note 22 reflects, on an answer that day. But he didn't get back 23 to me too quickly either, and I continued to press him on 24 it, and eventually in -- by December I said, That's it, 25 you're not doing cases any longer.
381 MR. MARK SANDLER: All right. And did he 2 continue on as the Director of the Ontario Pediatric 3 Forensic Pathology Unit in -- in -- after December of 4 2000? 5 DR. JAMES YOUNG: Yep, he did. 6 MR. MARK SANDLER: And why? 7 DR. JAMES YOUNG: Well at -- at that 8 point -- at that point he was no longer doing any cases; 9 he was -- he had a couple of cases left to testify on. 10 As I had related to you, I didn't give the Director of 11 the Forensic Unit position a huge amount of thought, 12 because in my mind, that position was an administrative 13 position. 14 Again, no one wished to do the job at that 15 point in -- in time. He was doing an administrative 16 position, scheduling people, and we've already taken away 17 every case, and he's not doing anything; I had no reason 18 to think he was -- couldn't -- I'd had no complaint or no 19 problem with his administrative duties and no one else 20 wanted to do it, so it just didn't -- it -- it didn't -- 21 wasn't high on my list to -- of things to do. 22 I did have a discussion at some point with 23 Dr. McLellan about this point and he said he thought he 24 should be taken off. And I said, Well I think we've done 25 enough right now, and I'm not sure that it's necessary to
391 do it. 2 And I -- at the time, I certainly -- I 3 didn't think of the point that it would be on his CV. 4 But I -- and thinking about it being on a CV, by this 5 point in time everyone knows he's been restricted, 6 everyone knows the controversy around him, everyone in 7 the Defence Bar knows that he's been under investigation 8 from the various things, so having that one (1) thing on 9 a CV with everything else that was going on, I don't 10 think would particularly alter the course of justice in a 11 criminal hearing -- it's -- or act in his favour to -- to 12 much of an extent. 13 MR. MARK SANDLER: Excuse me for a 14 moment. 15 16 (BRIEF PAUSE) 17 18 MR. MARK SANDLER: Excuse me just for a 19 moment -- 20 DR. JAMES YOUNG: Sure. 21 MR. MARK SANDLER: -- Dr. Young. 22 23 (BRIEF PAUSE) 24 25 MR. MARK SANDLER: And if you could go to
401 Volume VIII of the materials that you've been provided at 2 Tab 49. 3 DR. JAMES YOUNG: Okay. 4 MR. MARK SANDLER: I never did get a PFP 5 for this. I don't believe there's a PFP number for this 6 yet, Commissioner. I'll -- I'll read out the relevant 7 passages. It's really quite short. This is an email 8 from you to Charles Smith dated April the 14th of 2005, 9 re: Provision of Pediatric Forensic Services. And it 10 says: 11 "Charles, attached is a copy of the 12 letter --" 13 DR. JAMES YOUNG: Excuse me, but it 14 couldn't have been 2005. I wasn't even the Chief Coroner 15 there -- 16 MR. MARK SANDLER: 2004, I'm sorry. 17 COMMISSIONER STEPHEN GOUDGE: Yes, 2004. 18 19 CONTINUED BY MR. MARK SANDLER: 20 MR. MARK SANDLER: Thank you. 21 "...attached is a copy of the letter. 22 It sounds, from your email, like the 23 College will be completed by the end of 24 May. While this is longer than I would 25 prefer to resolve this matter, I'm
411 prepared to agree provided that I have 2 your reply by the first week of June." 3 And then you see below there, there's an 4 email of April the 7th from Charles Smith to you, and it 5 says: 6 "Thank you for your message. As I 7 indicated to you some time ago, the 8 counsel I received indicated it would 9 be best if my status remained unchanged 10 until the end of investigations. 11 Meanwhile, I've removed myself from the 12 provision of medicolegal services. 13 Today, I received word from the CPSO 14 that they'll be finished with this by 15 the end of May. It would be of 16 assistance if I could receive a copy of 17 the letter you wrote them about a year 18 ago. The letter was drafted in 19 December of 2002, and I think it was 20 mailed in February of 2003." 21 And we -- we've already gone to that 22 letter earlier on, so -- so I won't -- 23 DR. JAMES YOUNG: Mm-hm. 24 MR. MARK SANDLER: -- I won't go to that. 25 And if you go -- look at the following page, this is an
421 email from you to Charles Smith of April the 1st of 2004. 2 It says: 3 "I've not received your reply 4 concerning your intentions. Your last 5 email of February 2nd asked for a few 6 weeks grace. I do not believe the OPP 7 investigation has any bearing on the 8 timing of the decision. This is the 9 start of a new contract and fiscal 10 year, and I wish to resolve this 11 matter. Please indicate your decision 12 to me by Wednesday, April 7th, 2004. 13 In the interest of all parties affected 14 by this decision, I believe this matter 15 must be resolved in the very near 16 future." 17 Can you tell the Commissioner what -- what 18 this exchange is about in April of 2004? 19 DR. JAMES YOUNG: Sure. This is the 20 issue of whether or not Charles remains as the Director 21 of the unit, and whether or not he remains on the 22 Committees, at this point in time. And I'm -- had -- had 23 discussions with him asking him again to resign from 24 these Committees and resign from that opinion -- from 25 that position because that -- my preference would be that
431 he resign rather than that -- that I made the decision 2 for him. 3 MR. MARK SANDLER: And am I right that 4 when one looks at that exchange it appears that -- that 5 he's been provided some -- some grace to accommodate the 6 fact that there's an outstanding CPSO proceeding? 7 DR. JAMES YOUNG: Yeah, I think the CPSO 8 proceeding is something -- I -- I can't remember what was 9 going on at that point in time, but something is going on 10 at the CPSO and -- and in fact, there's a -- a further 11 issue around -- around the OPP going on. 12 But, yes, the -- so that -- essentially, I 13 agreed to wait a -- a tiny bit longer, but I was running 14 out of patience. 15 MR. MARK SANDLER: And when was it that 16 he actually did resign from the positions that he held? 17 DR. JAMES YOUNG: Not -- it was after -- 18 I think it was 2004, not very long after I left as Chief 19 Coroner. 20 MR. MARK SANDLER: All right. Now, I 21 just want to shift topics, if I may, and ask you very 22 briefly about a an issue that -- 23 COMMISSIONER STEPHEN GOUDGE: Can I just 24 ask one (1) or two (2) questions, Mr. Sandler -- 25 MR. MARK SANDLER: Sure.
441 COMMISSIONER STEPHEN GOUDGE: -- to make 2 sure I understand your thought process, Dr. Young. 3 The meetings that Mr. Sandler has taken 4 you to in October of '03; the result of that was that Dr. 5 Smith no longer was doing any medicolegal work? 6 DR. JAMES YOUNG: That's correct. 7 COMMISSIONER STEPHEN GOUDGE: But he was 8 remaining in his positions as Director and Committee 9 member? 10 DR. JAMES YOUNG: That's correct. 11 COMMISSIONER STEPHEN GOUDGE: And then 12 the exchange of emails we just saw were related to his 13 stopping those positions. 14 DR. JAMES YOUNG: That's right. 15 COMMISSIONER STEPHEN GOUDGE: When did 16 you form your view that he should come off those 17 positions as well as stopping work of a medicolegal kind? 18 DR. JAMES YOUNG: At some point in around 19 that time, Dr. Cairns came to me and indicated that 20 members of the Committee were becoming nervous and upset 21 about Dr. Smith being on the Committees; that they felt 22 that, potentially, that could affect their reputations. 23 So while they -- my understanding was, 24 while they had no issue, in fact, with his participation 25 in the sense of what he was saying and what he was doing,
451 they were becoming alarmed about the fallout from just 2 being associated with -- with his views. And so he -- 3 Dr. Cairns indicated that and to my mind then, that said 4 to me, fine, then -- 5 COMMISSIONER STEPHEN GOUDGE: At that 6 point you said, Well, the time has come, even though I 7 think it's an administrative position only, it's 8 affecting -- 9 DR. JAMES YOUNG: Exactly. 10 COMMISSIONER STEPHEN GOUDGE: -- the work 11 of the Committees and so... 12 DR. JAMES YOUNG: Exactly. 13 COMMISSIONER STEPHEN GOUDGE: Okay. 14 Then one (1) other related question. Dr. 15 McLellan told us that when he took over as Acting Chief 16 Coroner back in 2002, the understanding he had with you 17 was that you would continue responsibility for Dr. Smith. 18 You nod your head as -- 19 DR. JAMES YOUNG: Yes. 20 COMMISSIONER STEPHEN GOUDGE: -- if you 21 agree with that? 22 DR. JAMES YOUNG: Yeah. I think he was 23 smarter than I was because -- 24 COMMISSIONER STEPHEN GOUDGE: Why did you 25 do that?
461 Why -- why of all the things that you were 2 doing as Chief Coroner, did he take over everything 3 except that? 4 DR. JAMES YOUNG: Well, essentially, this 5 was an ongoing issue that -- and I knew more of the 6 history. I mean, Dr. McLellan was certainly involved in 7 it because he was responsible for a period of time 8 leading up to that and, in fact, during that time for the 9 day-by-day running of pathology in the Province. But I 10 believe his thinking was that the ultimate decisions -- I 11 had been the one (1) that had made them up to this point 12 in time. 13 It had happened -- most of the significant 14 things had happened while I was still around the office, 15 therefore -- I mean, I was still around the office but to 16 a much, much less extent, really increasingly after; you 17 know, from 2001 on, I was essentially not there that 18 much, so. But this was the one (1) issue, you know, 19 earlier I had -- that was still raging. 20 There were a few other things. I mean, 21 there were -- there were a few other families, for 22 example, that I have continued to deal with and 23 literally, every anniversary of a -- of the death and 24 certain other times a year, they would contact and go 25 through the whole thing again with me.
471 So there was -- there were a few files 2 that, sort of, were legacy files that I kept. But -- 3 COMMISSIONER STEPHEN GOUDGE: That you 4 thought you should keep? 5 DR. JAMES YOUNG: I didn't -- I think Dr. 6 McLellan didn't want that, and he agreed to do the rest 7 of the work and I -- you know, I -- I agreed. 8 He was part of the decision-making group. 9 I mean, most -- most decisions I make are consensus 10 decisions with the Regional Coroners, with the other 11 people. So he's not -- he's not out of the loop. The 12 meetings he's at, the meetings he -- he knows what I'm 13 doing, but -- but I'm retaining the overall 14 responsibility for it. 15 COMMISSIONER STEPHEN GOUDGE: Okay. 16 Thanks. Sorry, Mr. Sandler. 17 MR. MARK SANDLER: No, that's fine. 18 19 CONTINUED BY MR. MARK SANDLER: 20 MR. MARK SANDLER: Dr. Young, we've 21 reviewed in some detail what information came to your 22 personal knowledge or to the knowledge of the Chief 23 Coroner's Office concerning Dr. Smith over the period of 24 time that you and I have explored together. You've also 25 outlined various circumstances in which cues or
481 information was out there but either didn't make its way 2 to you or -- or wasn't followed up on by the Chief 3 Coroner's Office. 4 The question I have for you is: Do you 5 think with the benefit of hindsight, that the Chief 6 Coroner's Office showed appropriate objectivity in 7 evaluating the information that was coming forth about 8 Dr. Smith? 9 DR. JAMES YOUNG: Okay, let me start -- I 10 mean, that's a very difficult question because you're 11 talking about the whole Office of the Chief Coroner; I'm 12 part of that. I think there are times that -- that 13 different people had different views of the information 14 and some information got passed on and some didn't. 15 But I -- to properly answer that question, 16 I -- I've really got to draw us back to the actions we 17 took and what we did and what we didn't do. 18 When we got a number of cases, including 19 the -- the Nicholas case which certainly played on our 20 mind; the Amber case did not, as I've indicated. We were 21 certainly aware of the emerging issues and problems in 22 Jenna. We were aware that the Tyrell case had -- had to 23 be dropped and we were aware of -- of Sharon's case and 24 the issues around that. On that basis, we made the 25 decision to stop Dr. Smith doing cases and I explained
491 the review that we undertook. 2 The second action we did and -- was to -- 3 to go to the Crowns and discuss the impact of that with 4 the criminal justice system. And we took action and it 5 was the appropriate action at the appropriate time. We 6 made them aware of what we were doing and why we were 7 doing it, et cetera. In fact, what we -- what we got 8 back from Mr. McMahon at the time was an indication he 9 wasn't aware that there was a problem with Dr. Smith. 10 We did not discuss at any time, and no one 11 discussed with me doing a review of the nature of the 12 review that was ultimately carried on. That was not a 13 discussion that took place; it wasn't in our mind. 14 At that point historically, such a review, 15 to the best of my knowledge, had never been done anywhere 16 in the world. The first review I'm aware of, of this 17 depth and of that nature and going into cases and looking 18 for wrongful convictions, the first review I'm aware of 19 is the Meadows Review which was -- may or may not have 20 been taking place in -- at that point in time. 21 But was not -- so that we didn't -- we -- 22 we weren't discussing, reviewing and looking for wrongful 23 conviction cases. And even if we'd been discussing it, 24 the first thing we'd have to do is go to the Crown 25 attorneys and say we're thinking about going back into
501 old cases and -- and going back into old transcripts and 2 we -- and uncovering things, because we couldn't even 3 attempt such a thing without the -- without the go ahead 4 from the -- from the Crown attorney system and the -- and 5 the -- and the Crowns. 6 And -- but we weren't hearing from them; 7 they weren't asking for such a thing. The Defence Bar 8 clearly had concerns about Dr. Smith but the Defence Bar 9 were planning on -- on dealing with their issues in court 10 and -- and taking him down in terms of credibility; they 11 certainly weren't sharing their concerns with us. And 12 that -- that's a valid option but it was -- they chose 13 not to share them with us. 14 So our mind was set around: Does he do 15 cases and what do we do about what the case is doing? We 16 -- it was not set around going back and looking for 17 wrongful convictions. 18 And in fact, after I left, the -- the 19 issue of wrongful convictions was not addressed until 20 Barry realized that there was the problem with the one 21 (1) case, with Valin. Once they knew there was a 22 wrongful -- a potential wrongful conviction case, then 23 people got together and decided to do the -- to do that 24 study. But that wasn't our thinking. There was no 25 discussion by anyone at any time that I recall and it
511 certainly wasn't on my mind that we would go back and do 2 wrongful conviction cases. 3 It was -- it would have been unprecedented 4 and there was never an example, that I'm aware of, of -- 5 of a coroner's office or ME's office going back and doing 6 that. It's -- it's something that's being done now but 7 was never done before. So it was not even on the radar 8 screen; it wasn't in my thoughts or my considerations. 9 MR. MARK SANDLER: I guess I was asking 10 something, it may have been a little different -- 11 DR. JAMES YOUNG: Oh, I'm sorry -- 12 MR. MARK SANDLER: No, no, but I 13 appreciate your answer. What I was asking, and I'll put 14 it another way: Do you think with the benefit of 15 everything that you know now, and you kind of look back 16 at -- at the way in which the Chief Coroner's Office 17 responded, that -- that the Office failed to see the 18 alarm bells or red flags concerning Dr. Smith because it 19 was so invested with Dr. Smith and the work that he was 20 doing with the Coroner's Office? 21 DR. JAMES YOUNG: Mm -- 22 MR. MARK SANDLER: Is that a fair...? 23 DR. JAMES YOUNG: Yes and no. I 24 completely disagree that we failed to do that because we 25 were invested with Dr. Smith. I take real exception to
521 that. 2 We were not invested with Dr. Smith. We 3 had to consider a whole lot of things, including manpower 4 and the real world of how we were going to get the work 5 done. We -- we had to consider fairness and appearances 6 to every other pathologist in the Province in what we 7 did. But we were prepared to take action and did take 8 action when we -- when we got enough evidence and we -- 9 and we acted. 10 But the other part that I -- while I agree 11 with you that the communication within the office at 12 times fell down and that different people knew other 13 things, and that's got to be repaired and -- and that's 14 very important. And I accept that and I completely agree 15 with you. 16 The danger, in my mind, in -- in saying 17 that and stopping there is that that then means that all 18 of the responsibility in the future in -- in repairing 19 this kind of problem lies within the Office of the Chief 20 Coroner; that will not work. 21 The Office of the Chief Coroner doesn't 22 have the tools or will never have the ability and the 23 tools to do that or the money to do that. The 24 responsibility lays with the entire system. 25 The responsibility lays with the feedback
531 from the Courts. If there's problems in the Courts we've 2 got to hear that -- those problems from the Crown 3 attorneys from the Defence Bar, if necessary from the 4 Judge through judgments, but we can't sit in isolation 5 and not know those things and then expected -- the -- 6 it's equally important what's happening with defence 7 experts and what they're saying and what they're doing; 8 that's the other check and balance in this system and 9 that has to be fixed, as well. 10 We were sitting there; yes, we had certain 11 information, but, you know, when you look at it, no one 12 else was giving us any of the information, either. We 13 were not hearing from Crown attorneys in large numbers. 14 In fact the senior Crown attorney in the Province was 15 unaware of any problem. 16 We were not hearing from police officers. 17 We weren't hearing from the Defence Bar. The Defence Bar 18 were planning an ambush in a different way and that's 19 fine. But, you know, we weren't getting phone calls 20 saying we want a review of Charles Smith; it didn't 21 happen. 22 And we had pieces of information, we acted 23 upon them. We certainly were not -- never was anything 24 except the best interest of -- of the -- the Chief -- the 25 -- the justice system other than in our mind, but we had
541 to get the work done and we had to do the best we could 2 do. 3 MR. MARK SANDLER: Okay. 4 DR. JAMES YOUNG: We thought we were 5 doing that. 6 MR. MARK SANDLER: Now, I'm going to ask 7 you two (2), perhaps three (3) more questions in the last 8 half hour that we have together. 9 COMMISSIONER STEPHEN GOUDGE: Can I just 10 ask a systemic question flowing out of that, Mr. Sandler, 11 if I could? 12 Dr. Young, looking forward -- and taking 13 it away from Dr. Smith for the moment -- if in the future 14 the Coroner's Office develops concerns about a 15 pathologist arising out of one (1) or two (2) cases, or 16 three (3) cases, which was where the Office was at, 17 you've clearly explained the view of the Office, that 18 what was their focus was what do we do now going forward 19 about the services of this person; do we keep that person 20 or not. 21 DR. JAMES YOUNG: Exactly. 22 COMMISSIONER STEPHEN GOUDGE: Should the 23 Office, if they've discovered those kinds of concerns, 24 have any role in at least exploring whether the cases 25 themselves require attention, correction, or is the
551 Coroner's Office only prospective at that point and 2 reliant on the Court system to correct what may have been 3 mistakes in past cases? 4 DR. JAMES YOUNG: I think that there 5 certainly is a role to review those cases. Now, in our 6 view that was -- that was excentia -- essentially 7 happening by the College taking over that, but -- but 8 should the particular cases in future -- is there now 9 good evidence that we should take them and look at them 10 and analyse them -- 11 COMMISSIONER STEPHEN GOUDGE: Without 12 worrying about these specific cases. 13 DR. JAMES YOUNG: Yeah. 14 COMMISSIONER STEPHEN GOUDGE: I'm just 15 getting away from -- 16 DR. JAMES YOUNG: Yeah. 17 COMMISSIONER STEPHEN GOUDGE: -- these 18 specific cases. Because you say -- and it's -- I can 19 understand -- you say the role of the coroner is to carry 20 on the service efficiently going forward. 21 On the other hand, you've become informed 22 of information that also may speak to individual cases in 23 the past. 24 DR. JAMES YOUNG: Yeah, and -- 25 COMMISSIONER STEPHEN GOUDGE: I mean,
561 what should the coroner's role be vis-a-vis the cases in 2 the past that have led to the concerns? 3 DR. JAMES YOUNG: Yeah, I think we would 4 have to look at them. I -- I think what we have to look 5 at, at this point is certainly in my own mind there were 6 no cases in the past that we were aware of where there 7 had -- where there had been convictions. 8 The cases that I was aware of -- in fact, 9 they were caught too late and there were issues of people 10 being arrested, preliminary trials, or -- or losing 11 custody of children -- all very, very serious matters and 12 all matters which bother me greatly, but they didn't deal 13 with cases where there were wrongful convictions. 14 DR. JAMES YOUNG: Mm-hm. 15 COMMISSIONER STEPHEN GOUDGE: And my mind 16 then didn't go to those cases; they weren't arising. In 17 the future if there was a doubt about those, absolutely. 18 I was aware then -- I had a meeting with 19 Dr. McLellan after -- when he was going to embark on the 20 major review and he asked my view of it and I had 21 completely supported it at that point. Now there was a 22 case of a wrongful conviction and now there needed to be 23 an in-depth review of not only that case, but others. 24 But one (1) of the first things he did was 25 go to the Crown attorneys and say, I'm recommending this.
571 2 But they have to agree to it too because 3 the implications are enormous, and as we've discovered 4 afterwards, you can do the review and you can get this 5 agreement, but then you have to sort out what does it 6 mean. And what it means is much harder then doing the 7 review in many ways. 8 The -- what role, in fact, then was the 9 wrong information, the wrong impression? A minor role, 10 was it a major role, did it result in a wrongful 11 conviction, did it not, do you reopen the case, do you 12 not? 13 That's not the -- your job, I realize, 14 Commissioner, but that's work that has to be undertaken-- 15 COMMISSIONER STEPHEN GOUDGE: Right. 16 DR. JAMES YOUNG: -- as a result of it. 17 COMMISSIONER STEPHEN GOUDGE: Right. 18 DR. JAMES YOUNG: So we can do it, but we 19 can't do it in -- in isolation. We -- we cannot not and 20 ought not to go back into criminal cases without -- 21 without the knowledge and -- and support of the -- of the 22 Attorney General because we're messing in areas that are 23 beyond -- beyond our -- our -- both our expertise and our 24 -- our control. 25 COMMISSIONER STEPHEN GOUDGE: Okay.
581 Thank you. Sorry, Ms. Sandler. 2 3 CONTINUED BY MR. MARK SANDLER: 4 MR. MARK SANDLER: No, that's fine. Dr. 5 Young, over the last few days, I've asked you some 6 difficult and, sometimes, pointed questions about the 7 events that took place during the period of our 8 examination. I also want to ask you, in fairness, two 9 (2) questions systemically. 10 The first is, would you like to identify 11 what measures were taken during the period that you were 12 Chief Coroner that, in your view, do begin to address 13 some of the systemic issues that have been raised at this 14 Inquiry? 15 And secondly, when you've completed that, 16 I want to ask you what, if any, recommendations you'd 17 like to urge upon the Commissioner. 18 DR. JAMES YOUNG: Okay. Thank you. When 19 I became the Chief Coroner in 1990, the pathology was 20 still separated, and Dr. Hillsdon Smith was -- was 21 running the pathology unit. At one time, he had had 22 education for pathologists and education for police 23 officers, and that had stopped in the years leading up to 24 that. 25 He had, essentially, stopped doing the
591 administrative work that had to be done in the unit, and 2 the Office of the Chief Coroner was doing that on his 3 behalf. And the amount of administrative work and the 4 complexity of it, even in those days, was increasing, but 5 it was becoming evident that administrating small units 6 sometimes is as much work as administrating big -- big 7 units. 8 And they don't have the manpower, 9 expertise, or the interest in doing it, and he certainly 10 lacked the interest and -- and the experience to do it, 11 at that point in time. Essentially, what was happening 12 was he was operating as a consultant available to people 13 in the province if they had a case that interested him. 14 He was doing almost no autopsies himself, 15 and he wasn't even doing the scheduling of the Toronto 16 office. That was being done by the Office of the Chief 17 Coroner; as to which pathologist in Toronto would do 18 which cases. So he was really in a consultant's role and 19 that was it. 20 It was evident to me that there were 21 disconnects between pathology and between coroner's work 22 and that we had to start and build a system. And if 23 there was a voi -- a void, then we would step into the 24 void. So we began to build a system. 25 So the beginnings of the system began, for
601 example, with the paper that I wrote indicating that we 2 needed centres of excellence in pathology in the 3 province; that we needed to fund these and develop these. 4 And the purpose of these -- of these units were -- 5 whereas, I've said to -- to do excellent pathology, but 6 also to train people for the future and interest them in 7 forensic pathology. 8 And to, where -- where possible, serve 9 their academic needs and do some research in them, as 10 well. That's -- sounds easy, but it's a much bigger job 11 to actually get those units, get the funding, get the 12 grants done. That takes, as you can see from the 13 timelines, several years to get the money for all of 14 those. 15 But we began that, in fact, even before 16 Dr. Hillsdon Smith retired. When he retired then, the -- 17 one (1) of the first things we did was -- was say to 18 pathologists -- well, the first thing we did was hire 19 David Chiasson to work on pathology and to revitalize it, 20 and to begin to build a system that we needed to build. 21 The first thing then that we did was 22 required CVs of the people that were doing the work, so 23 we knew who was out there and what their experience was 24 and what they would do. 25 And as I mentioned, I think the first day
611 of my evidence, we began to build a system from the 2 bottom-up that would look at the expertise of people and 3 try to move the cases into the area where they could 4 safely be done and be done effectively and well. 5 The next thing we did then was to 6 interview and agree that -- who would be regional 7 pathologist. Who would -- if the local pathologist 8 didn't have the experience, then the case would be 9 transferred to a -- an area within their setting where 10 they were able to do the cases. 11 Then we built the Centres of Excellence, 12 but we also built up Toronto at the -- at the same time. 13 For example, we -- we got up to four (4) full time 14 pathologists, and got the money and the funding to do the 15 four (4) full time pathologists. 16 We began again to teach -- for teaching 17 for pathologists, so we reinstituted the courses for 18 pathologists. And we did the courses with the coroner, 19 so we would have a stream where some of the time they 20 were getting -- receiving specific education, some of the 21 time they were sitting in the room for the -- with the 22 coroners and having joint education. Topics where both 23 people needed to know the same things, were scheduled 24 when they were all sitting in the room. 25 And we did it for two (2) reasons: one
621 (1) is to increase their knowledge in those areas, but 2 the second was to increase the contact between them and 3 get the -- the necessary chemistry going where people 4 understood they were working as part of a team. 5 We worked very hard on the -- on wages for 6 example within the unit, because we knew we had 7 attraction, and -- and retention problems. But generally 8 in government, from the time you would go for a wage 9 increase, until you actually achieved it, would usually 10 take three (3) we -- three (3) years of very hard work in 11 order to do it. But we tried to, as quickly and as 12 effectively as we could, to get the wages in line so we 13 could not only attract, but we could retain. 14 COMMISSIONER STEPHEN GOUDGE: These were 15 for your salaried pathologists? 16 DR. JAMES YOUNG: The salaried positions. 17 But we also worked on a yearly basis on the fees for the 18 -- fee-for-service -- 19 COMMISSIONER STEPHEN GOUDGE: On the fee- 20 for-service. 21 DR. JAMES YOUNG: And again, I mean, at 22 one point, for very good reasons, government were trying 23 hold the financial line. They -- they always worry when 24 they either increase the -- even a fee-for-service or any 25 wage, that there's a spillover effect. If you increase a
631 doctor's wage in one (1) small area, every other doctor 2 in the Province is going to say, I want my wage -- my 3 OHIP rates increased or -- so the spillover effect is 4 something you're constantly fighting government. 5 And the fee-for-service, at one point -- 6 we -- the government said, No, and they refused my 7 advice. We got a strike of pathologists who stopped 8 doing work. Half the -- more then half the pathologists 9 in the province stopped for a period of time doing any 10 work for us. 11 I went back to the Premier and said, We -- 12 now we have a market economy and I don't have the 13 resource. We either pay or we don't get them back. And 14 he relented and we got our increase. 15 COMMISSIONER STEPHEN GOUDGE: When was 16 that? 17 DR. JAMES YOUNG: It was during the Mike 18 Harris time, so it would be -- what year did -- sometime 19 around '98/'99. 20 COMMISSIONER STEPHEN GOUDGE: All right. 21 DR. JAMES YOUNG: It was in around that 22 time. We never did get all of the people back. We lost 23 a significant number of people who just said, I stopped 24 doing them And it was a bit like stopping to hit your 25 head against the wall. I -- I liked it when I stopped
641 and I'm not going back. 2 So we -- we lost a significant number of 3 people who -- who never came back to do work as a result 4 of that. Other measures we took, we very much encouraged 5 people to go to meetings. 6 We paid for people to go to international 7 meetings and national meetings. We encouraged people to 8 give papers. We ran a course at one point on giving 9 evidence in court and had the pathologists along with 10 people from the Centre of Forensic Science go to that 11 course and spend time and be educated as to the correct 12 ways of giving evidence. 13 We created money for a Fellow in the 14 office. We weren't able to attract anybody to come in 15 and be trained as a Fellow, but our idea was we would try 16 to fund people to be Fellows. 17 We did pay for people like Dr. Pollanen 18 and -- and Dr. Chiasson to go to the United States and be 19 trained and be certified and, you know, despite it, I 20 think probably at times breaking the rules in doing that, 21 we simply did it and didn't say too much about it, but -- 22 because it was the right thing to do. 23 When Dr. Chiasson left we -- as Chief 24 Forensic Pathologist, we had, for example, Dr. McLellan 25 do the day-by-day work, but we re-employed Dr. Chiasson
651 on a fee-for-service basis to review all of the cases and 2 continue to offer all of the technical work, so we didn't 3 lose that aspect of it. In fact, we paid him to do that 4 and that continued to be done. 5 We instituted all of the reviews, I think 6 you've heard about, of the cases; both the under twos, 7 but all of the homicide reports. And there are lessons 8 to be learned in regards to that that I'll come to in a 9 few minutes. But we -- we certainly at the time; I'm not 10 aware of anybody that was reviewing all of the cases that 11 we were. 12 We started morning rounds after Dr. 13 Chiasson came back from Baltimore. We started weekly 14 rounds based on the information we gleaned from those 15 visits. And we started rounds at Sick Kids on problem 16 cases. 17 So what we were trying to do was build a - 18 - build a system that was tiering the work and bringing 19 it up to the level of the people that were trained. We 20 were trying to finance it properly and support it so 21 that, in fact, the forensic pathology would be growing 22 over time. And what we didn't build was -- was enough 23 checks and balances of the person that's in charge of 24 certain areas -- the -- your ultimate expert. And again, 25 I'll address that in my -- in my recommendations.
661 But the -- the flaw in our system was we 2 were worried about the bottom end, and we were trying to 3 increase the overall quality, but we assumed a level of 4 competence and quality at the top end that -- without 5 checking hard enough at that particular end. 6 I think those are most of the things I can 7 remember, but, you know, this was -- you know, and ten 8 (10) minutes sounds easy. Every one (1) of those; 9 getting more money, getting units, getting -- takes an 10 enormous amount of -- of work and writing paper and going 11 to meetings and talking government into funding those. 12 Each year, I -- every time we got a new 13 one that represents a large amount of work to get every 14 unit added. 15 MR. MARK SANDLER: All right. If you 16 could turn then to your recommendations to the 17 Commissioner, please. 18 DR. JAMES YOUNG: Okay. 19 MR. MARK SANDLER: You have a few minutes 20 to deal with that as well. 21 DR. JAMES YOUNG: Okay. Well, I have a - 22 - quite a number of -- of areas that I'll touch on. 23 Let me start, because I think it's 24 important and it hasn't been raised to a large degree; 25 the defence bar and the defence experts.
671 I think one of the very, very important 2 checks and balances in the system has to be the defence 3 pathologist who is going to court and opposing the views 4 of -- of someone -- someone else. 5 There is an enormous problem getting 6 defence pathologists because we're a small environment, 7 and there are limited numbers of people in Canada. Going 8 to international meetings certainly makes us aware of 9 other people who may be willing to do the work and come 10 and -- and -- or come from other jurisdictions in Canada. 11 But, I think it's, clearly, been a problem 12 along the way; either finding the supply and very often 13 paying for the defence experts. And, I think, if the 14 system is going to be vital and it's going to work well, 15 the defence has to have access to the experts, and there 16 must be adequate funding. People will not do the work 17 and endure it if they're not sure they're going to get 18 paid or they're being offered amounts of money that are - 19 - that are not proper to do the work. 20 Along that line, I -- none of us that go 21 into this work went into it because we love the 22 adversarial system. If we love the adversarial system, 23 we would have become lawyers not doctors. And using -- I 24 understand in the system that the system has to be 25 adversarial, but using experts in adversarial positions,
681 I think potentially colours the evidence and doesn't get 2 us closer to the truth of the evidence. 3 And I'm very much a -- a very strong 4 supporter, as I was in the Kaufman Inquiry, of the 5 British system of reciprocal disclosure of defence. 6 I'm not advocating that the defence has to 7 disclose all of the experts they go to who don't support 8 their ultimate position. I understand their need to -- 9 to shop around and find someone that they're comfortable 10 with. And I understand why that's in the system and I'm 11 not advocating that that has to be disclosed. But the 12 people that they intend to go to court, I think it's very 13 important that there's reciprocal disclosure early of 14 who's going to court and what it is they're going to say. 15 We, in fact, have had very positive 16 experiences where, in several cases, the defence have 17 decided to allow and encourage reciprocal disclosure and 18 that has meant that we've been able to hand our experts 19 another opinion and they looked at it and said, You know, 20 there's an aspect of this we haven't thought of; can we 21 have a discussion. 22 And between us, we may, in fact, agree 23 either on what the defence expert is saying or on a 24 mutually-agreeable point of view, and we're aware of each 25 other's point of view. And we have solved some very
691 significant cases where that has been done. 2 The system, as I understand it, in 3 Britain, in fact, says there's reciprocal disclosure. 4 There is discussion between the experts, and what then 5 happens is that what is agreed to by the experts -- and 6 that's usually about -- you know, a very large percentage 7 of what's being said, is then agreed to in -- in more-or- 8 less -- in a statement of fact. 9 The jury then doe -- and the judge don't 10 have to deal with the complexities of those issues. 11 They're put to them in a straightforward manner. What 12 then is discussed is the points where they disagree, and 13 that focusses it on the points of disagreement and stays 14 away from the points of agreement. 15 It makes it much less contentious and, 16 into my mind, it uses experts much better. So I would 17 continue to strongly advocate for that. I became aware, 18 this summer, of the system after the Meadows case in 19 Britain, that allows for both a forensic pediatric 20 pathologist and a -- and a -- a forensic pathologist and 21 a pediatric pathologist to be doing ca -- very 22 contentious cases -- cases. 23 I like the system. I have -- again 24 concerns about the manpower issues; you know where -- 25 whether we can actually find enough people and be able to
701 do it easily. But it makes an abundance of -- of sense 2 to me -- if we are able to find the people and do it. It 3 makes total sense to me that -- that two (2) people be 4 involved with different areas of expertise and that they 5 begin to discuss it right from the beginning. 6 I have touched on, but will come back to 7 the issue again of remuneration because it does have an 8 effect on -- on recruitment and retention. Of both the 9 Regional Coroners and the coroners and the pathologists, 10 the system to work correctly the -- the coroners play a 11 very important role in -- in dealing with the families; 12 with dealing with all of the other areas of expertise, 13 dealing with the Centre of Forensic Science, bringing the 14 case conferences together. 15 To attract the right people and to hold 16 them, it's always a struggle in government because the 17 physicians in government often make more than the senior 18 administrators including the Deputy Minister. And -- and 19 yet, in relative terms to the profession, they make very 20 -- very -- very little. 21 I came to work in government, and I -- it 22 was -- it was nearly fifteen (15) years before I made the 23 same amount of money as I made when I left practice. And 24 that was not factoring in any factor of inflation, but in 25 -- in -- just in the number of dollars I was paid, it
711 took me fifteen (15) years to get back to where I 2 started. 3 And I'm not saying that to complain 4 because I did it -- because I wanted to do it; because I 5 could make a difference. But I -- that's the reality, 6 but we can't hold people if we -- if we don't pay them. 7 And we can't expect to get the best people. 8 And we're competing against the hospitals 9 for the pool of forensic pathologists, for example. And 10 we're competing against the hospitals for the pool for 11 forensic -- or Regional Coroners as well. As you're 12 aware, Dr. McLellan has gone back to the hospital sector. 13 14 That was the constant battle. Not just 15 for him, but for other Regional Coroners and people, as 16 well; that they would be drawn out of -- out of the 17 office. 18 I think that we need more education for 19 all of the people involved; the pathologists, the 20 coroners, the defence people. 21 And with -- with defence and Crowns, we 22 need -- we need to all be sitting down a little more 23 often and doing -- doing education together. We -- we 24 really need to continue to be sending people to meetings 25 like the American Academy of Forensic Science.
721 And I say that not just because I was the 2 past President of the organization, but the reality is 3 there's very few -- the National Organization of Medical 4 Examiners name -- the America Academy, are two (2) of the 5 only large, large meetings where people run into other 6 people, can discuss these issues, find out what the 7 controversies are, hear other people's points of view, 8 and establish relationships for later that they can phone 9 each other up and -- and do this. 10 And they're not -- you know, it comes down 11 to re -- both Justice Kaufman and Justice Campbell both 12 recommended, for example, that continuing education be a 13 large part and money gets allocated to these things. 14 What happens within government though is, with time, 15 people change and the corporate memory leaves and then 16 governments start to look at it and say, Well, we can't 17 send ten (10) people to the American Academy of Forensic 18 Science, that -- how is that going to look to the public. 19 The problem if you don't is your area has 20 become insular, they don't have the contacts, they don't 21 know what's happening outside, and what ends up happening 22 then is you have a big disaster and you -- you start back 23 and you look at it and say, Whoops, we better start 24 sending people out in the real world to find out what's 25 on again.
731 But it -- it -- we've got to get past this 2 being worried about the appearance and recognise that 3 it's simply part of the job. You cannot do it by just 4 staying in Ontario. You've got to be going other places, 5 you've got to be going to meetings, you've got to be 6 establishing a network; that's the safe way and the way 7 that it's really going to make a difference in the 8 future. 9 Clearly we need to do better peer reviews 10 and I think one of the huge lessons out of this is that 11 the reports have to be a little bit different. The 12 report review that Dr. Chiasson started was a good first 13 effort and it was appropriate for the time; it was as 14 much or more than anyone else was doing. But what this 15 case has illustrated is if you're going to do it, you 16 have to review the histology and ultimately you have to, 17 at least in some instances, review the whole -- the -- 18 the Court hearing, as well. 19 The problem, of course, is the more review 20 you do, the more resources it takes, not only in terms of 21 money, but in terms of actual people to do it. And -- 22 and, you know, that's really the part of the sticking 23 point, is we haven't got enough people to do it now and 24 you start saying to people, By the way, we want you to do 25 all of this other review. They are going to say, In
741 which life or which twenty-four (24) hours am I going to 2 do in? 3 They're just -- finding people and trying 4 to do it is very, very difficult, but there is the need 5 to do it. 6 The Court testimony in particular is a 7 huge problem. We had enough problem instituting a system 8 and we did it at the Centre of Forensic Science, but how 9 we do it and who we send and we -- these were our 10 employees where we knew when they were going to Court, we 11 knew where they were going and we had a much bigger 12 organization; we had people who could go and monitor the 13 Court testimony. 14 Getting Court transcripts is both costly 15 and -- and is very difficult to actually put in context 16 and -- because you're not there and you're -- you're only 17 reading what's on the -- it's second best at best. So 18 it's a really hard area to monitor, but one (1) that I 19 think we will have to build a system for. 20 The real issue in my mind in the -- in 21 this case is how do you review the leaders, how do you 22 review the -- the people at the top of the system? And, 23 you know, I -- I look at that and I say, you know, we all 24 look at the person who's atop of someone and they're 25 usually the expert within that area and we tend to sort
751 of say, Well, they're the expert and we -- we'll just 2 leave them and they're okay. 3 And whether it's Dr. Chiasson, or whether 4 it's Dr. Pollanen, or whether it's Dr. Smith, the 5 question is how do you build a system that reviews them, 6 as well. And I asked Dr. Cordner awhile ago who reviews 7 him and he looked at me and said, I don't know. 8 The Courts do to some extent and every 9 time you go to Court and you -- but -- but who really 10 sits down and does the kind of review that's necessary to 11 ensure that they're doing the work; that's the question 12 that -- that's where we didn't do it right, but that's 13 where it has to be done in the future for Dr. Pollanen, 14 and for Dr. Chiasson, and others, the very senior people. 15 We need a system. 16 I suspect that what you need to do -- 17 we'll need to do then is to bring in people from outside 18 and to do an audit on a regular and on a random basis of 19 their cases. But that audit, again, then would have to 20 include not only their -- their report and the report 21 writing, but their histology, and it would have to 22 include some Court appearances and obtaining the 23 transcripts and reviewing the transcript of the same 24 case, because the problem can arise at any one (1) of the 25 three (3) -- the three (3) levels.
761 But that's difficult to do and you're -- 2 you're having senior people reviewed so you're going to 3 need very senior people to come in and do that work, but 4 I think that's the -- that's the -- the -- the prob -- 5 the large -- the largest problem in this particular case; 6 it was the senior person where the failing was, and we -- 7 we tend to not do that in any -- in any field. You know, 8 medicine in general, that's -- the reviews are done by 9 the senior people of the other people. 10 And the person who reviewed me as the 11 Chief Coroner knew very little, if anything, about 12 coroners work, so they were reviewing more on my 13 administrative skills than -- than my coroner abilities. 14 There needs -- I think we have to continue 15 to build more case conferences. The only way you solve a 16 lot of these problems is communication, communication, 17 communication. People sitting in isolation, operating 18 without getting the right expertise and not discussing 19 it, is the flaw. It's the flaw in the Tyrell case; it's 20 the flaw repeatedly in cases. 21 The cases go off the rails at the 22 beginning. If people do the wrong things at the 23 beginning and they go off the rails because the right 24 expertise is brought in too late or people misinterpret 25 each other's reports. So the more communication there
771 is, the better it is in my view, and the more likely that 2 we'll stop the kind of problem. 3 Certainly, there's been discussion of 4 fuller report writing and we, for very good reasons, I 5 think, try to get people to cut out extraneous details in 6 reports. But, my sense from discussing this with Dr. 7 Chiasson and Dr. Pollanen and others is that, perhaps, 8 the reports need to be more fulsome in the future. And 9 that was an issue we spent a huge amount of time and 10 studied and revised following the Kaufman Inquiry. The 11 reports to the Centre of Forensic Science now are 12 completely different than what they were before. 13 At the time the Centre of Forensic Science 14 reports came out, what they did was very, very similar to 15 the FBI and many of the bigger labs in the States. And, 16 in fact, our report writing has gone the other way and 17 been much, much more fulsome, and the other people are 18 playing catch-up. 19 So I think that's being looked at and 20 needs to be looked at and is a valid area for further 21 consideration. 22 Forensic services, in general, need to be 23 continued to be beefed-up. I -- I would strongly argue 24 that it -- for reasons of communication and operating 25 within government, that it's much, much better to keep
781 the forensic services with the Coroner's Office and not 2 break them off separately. I think separation creates 3 isolation, and -- and it will create administrative 4 headaches for someone. 5 Trying to get money for a small unit in 6 government is extremely difficult. And I had enough 7 trouble because my division in government was tiny 8 compared to Corrections or the OPP, but I could stand up 9 and say and demonstrate why it needed to be done, and I 10 was at the table meeting with the senior people and could 11 make the argument. 12 But trying to do it for small units, you - 13 - you really risk isolation. You risk spending a 14 disproportionate amount of time on administration because 15 the -- as I said earlier, the same -- almost the same 16 amount of administration is required. And you risk 17 losing communication. 18 But within the Office of the Chief 19 Coroner, the forensic services need more resources. Dr. 20 Pollanen needs more people supervising and helping him, 21 and those positions need to be funded, and they need to 22 be encouraged. 23 And the role of the Chief Forensic 24 Pathologist is to act as a Deputy Chief Coroner and to be 25 responsible for the quality assurance of the pathology.
791 That could be served within the Office of the Chief 2 Coroner and if the -- if the Chief Forensic Pathologist 3 is -- wants to be the Chief Coroner, that could happen 4 easily as well. 5 But I think the discussions within the 6 Office of the Chief Coroner is that that's the model they 7 want, including Dr. Pollanen, and I think it's the right 8 model. To separate it out in Ontario's environment will 9 not be positive in my view. It's a matter of resources. 10 And you've got a good person there that can supervise; 11 give him the resources and let him operate with the 12 others in the Office. 13 Obviously, a small point but an important 14 point is the record-keeping of who's giving what 15 consultation at what time. The Valin case would have 16 fallen under the radar screen in the Office of the Chief 17 Coroner because Dr. Smith was asked to give a 18 consultation. The Head Office would not have been aware 19 of that consultation. If we had done a search of Dr. 20 Smith's cases to review anything, it would not have shown 21 up as a case to review so we wouldn't have even known 22 about it. So we need a much better track of -- of which 23 cases and where they're happening and what's happening 24 with those. 25 And I think that's my list.
801 MR. MARK SANDLER: All right. And that 2 completes my examination-in-chief, Commissioner. 3 COMMISSIONER STEPHEN GOUDGE: Thanks, Mr. 4 Sandler. 5 Just let me ask you -- that was very 6 helpful, Dr. Young. Just to ask you a couple of 7 questions: 8 Clearly, one (1) of the suggestions that 9 you made, that others have made, are that in these 10 difficult cases there be some form of double-doctoring to 11 conduct the pathology. 12 DR. JAMES YOUNG: This is a positive 13 double-doctoring as opposed to the normal use of the 14 term. 15 COMMISSIONER STEPHEN GOUDGE: Yeah. I 16 don't even know the normal use of the term. I certainly 17 have heard -- 18 DR. JAMES YOUNG: It's -- 19 COMMISSIONER STEPHEN GOUDGE: -- of it as 20 a positive. 21 DR. JAMES YOUNG: Yeah, in medicine -- 22 MR. MARK SANDLER: I can assure -- 23 DR. JAMES YOUNG: -- it's a -- it's a bad 24 thing. 25 MR. MARK SANDLER: I can assure you
811 criminal lawyers are very familiar with it. 2 COMMISSIONER STEPHEN GOUDGE: If you said 3 "double-docketing" I guess I would get it. 4 DR. JAMES YOUNG: Yeah. It's a dangerous 5 -- it's a dangerous practice in medicine but it's -- 6 COMMISSIONER STEPHEN GOUDGE: Okay. 7 DR. JAMES YOUNG: -- a good practice 8 here, Commissioner. 9 COMMISSIONER STEPHEN GOUDGE: The 10 question that -- a question that I have in my head, Dr. 11 Young, is: This enhanced scrutiny that the more 12 difficult cases get is going to be resource-intensive, 13 there's no question about that? 14 DR. JAMES YOUNG: Absolutely. 15 COMMISSIONER STEPHEN GOUDGE: How does 16 one define the catchment area, to use a medical term, for 17 those cases going in? That is, is it always apparent 18 going in which cases are the ones to which this enhanced 19 scrutiny should be applied? 20 DR. JAMES YOUNG: No, I wish it was. 21 COMMISSIONER STEPHEN GOUDGE: Then how 22 does -- 23 DR. JAMES YOUNG: It often is. You have 24 to approach -- approach the cases with a high index of 25 suspicion. We don't think dirty anymore so we -- we
821 wouldn't do that. 2 But we -- we would -- if you -- you have 3 to be suspicious, and you have to move too many cases. 4 You have to move cases that turn out to be nothing. You 5 have to be prepared to say, The catchment is larger and 6 we'll try to capture them all. 7 Will you always capture every case? No. 8 You'll miss some cases because they turn out to be very 9 different. Information comes to light afterwards that -- 10 but you can capture most and you can be right. 11 I always say in -- in anything I do, 12 Commissioner, you know, faced with a large emergency you 13 can sit around and you can try to solve the emergency in 14 one (1) fell swoop or you may be able to solve 80 percent 15 of the emergency by doing two (2) or three (3) simple 16 things and doing them well. 17 So I -- I'm of -- believe the philosophy 18 that you do, you solve the 80 percent and then you work 19 on the solution for the 20 percent. But, at least, you 20 got 80 percent of the problem solved and so that by doing 21 this and defining which cases come, you'll get, at least, 22 an 80 percent if not a 90 or a 95 percent solution and 23 then you work on the other 5 percent after that. 24 COMMISSIONER STEPHEN GOUDGE: One (1) way 25 that one might do it that would be more resource-
831 intensive than another way would be to simply eliminate 2 from the catchment area only those cases -- to take the 3 context in which this Inquiry has to operate -- that are 4 for sure never going to go to court. One could eliminate 5 those cases. 6 DR. JAMES YOUNG: Oh, I wouldn't envision 7 this being for every pediatric case; you couldn't do it. 8 You'd have to -- to -- from a resource point of view, in 9 any jurisdiction, but in Ontario for sure, given the 10 resources we have, you would have to limit it to the 11 cases that you had a high index of suspicion at the 12 beginning; not -- you know, not every pediatric pathol -- 13 autopsy. 14 The ones that -- the cadre -- essentially, 15 the cadre of cases that we stopped Dr. Smith doing, 16 that's the group of cases that need two (2) forensic 17 pathologists. In a perfect world -- you -- or two (2) 18 pathologists. 19 In a perfect world, you do all of them 20 that way but you can't. You'll -- you won't have that 21 resource. But the cadre that you would start with are 22 the ones that we had -- were able -- 23 COMMISSIONER STEPHEN GOUDGE: Okay. 24 Thinking back then to the rule of thumb that you used to 25 stream the cases away from Dr. Smith that would have
841 formerly gone to him. How would you articulate that? 2 Because that is your definition -- 3 DR. JAMES YOUNG: Yeah. 4 COMMISSIONER STEPHEN GOUDGE: -- in a 5 working sense of how to stream cases? 6 DR. JAMES YOUNG: I would -- the better 7 qualified person to ask that is Dr. Chiasson and Dr. 8 Pollanen. 9 COMMISSIONER STEPHEN GOUDGE: Okay, so -- 10 DR. JAMES YOUNG: But, you know, they had 11 talked about, in their own minds, what kinds of cases 12 they were satisfied led to these problems -- 13 COMMISSIONER STEPHEN GOUDGE: Okay. 14 DR. JAMES YOUNG: -- and they did it, and 15 they did it very well. Dr. Pollanen wasn't at the time, 16 but I know -- 17 COMMISSIONER STEPHEN GOUDGE: Right. 18 Right. 19 DR. JAMES YOUNG: -- in his mind he's -- 20 he can address it as well. I mean, they -- they have a 21 pretty good sense of -- of how they would define those. 22 But that would be where I would suggest you use the 23 resource first. Because if you try to use the resource 24 for every pediatric case, it will fail because we won't 25 have the resource.
851 COMMISSIONER STEPHEN GOUDGE: Right. 2 DR. JAMES YOUNG: I mean, even if the 3 money is put in, there won't be the human resource 4 available to do it. 5 COMMISSIONER STEPHEN GOUDGE: Right. I 6 have two (2) other questions, the second one (1) is: Do 7 the universities -- do medical schools have a role to 8 play in enhancing the supply of pathologists, generally, 9 and within that, forensics pathologists who can do 10 pediatric? 11 DR. JAMES YOUNG: That -- we believe they 12 do. And that was the reason that -- that the Centres of 13 Excellence were all set up in teaching hospitals. We 14 also -- Dr. Chiasson and I renewed our -- our work at the 15 university, we both became Associate Professors at the 16 University. We lectured and -- and increased our ties to 17 the University, not for our own personal gratification, 18 but rather because we wanted to be seen as being part of 19 the university commi -- community, and we wanted the -- 20 the University thinking about streaming people through 21 the -- the forensic morgues and -- and en -- encouraging 22 people to do pathology. 23 The issue around pathology, though -- I 24 mean, the issue around what specialities people go into 25 is an enormous issue for the --
861 COMMISSIONER STEPHEN GOUDGE: Right. 2 DR. JAMES YOUNG: -- for the hosp -- the 3 universities. There's a shortage, a huge shortage, of 4 family doctors -- 5 COMMISSIONER STEPHEN GOUDGE: Right. 6 MR. MARK SANDLER: -- anaesthetists, 7 obstetricians and gynecologists. And certainly we've 8 been seeing in writing about the shortage of pathologists 9 for the last -- you'll see my materials going back to 10 1990 or '92 or something. 11 COMMISSIONER STEPHEN GOUDGE: Right, 12 right. 13 DR. JAMES YOUNG: How -- we are doing a 14 little better because again supply and demand -- what 15 happened was that as the -- one of the first areas that 16 grew really short were pathology and what -- what 17 happened then was the wages rose in pathology. 18 They went from being the very lowest paid 19 to somewhere in the middle of the pack. All of a sudden 20 then some people decided they would start to go into 21 pathology or more people did, but then, of course, our 22 problem in government in can -- can we keep track -- keep 23 pace with that. 24 And just because people go into pathology 25 doesn't mean they want to do forensics. The more
871 complicated it gets the more -- the harder it gets to 2 attract them. 3 COMMISSIONER STEPHEN GOUDGE: Okay. Then 4 the last question I have for you, Dr. Young: You have 5 graphically outlined how much the Province asked you to 6 do over the entire you were the Chief Coroner of Ontario, 7 would it be better if the Chief Coroner Of Ontario was a 8 full-time job? 9 DR. JAMES YOUNG: There -- there are 10 times, Commissioner, and -- and I know we'll be getting 11 into this in some detail after the break -- but there are 12 time, I believe, that there are -- there are times for 13 certain kinds of leaders at certain places in history. 14 At the time that I was the Chief Coroner and doing the 15 other work, I made a conscious decision to agree with 16 government to do the other work and to do the ADM's work. 17 The reasons that I did it was because -- 18 for -- major -- two (2) really major reasons: one (1) 19 was that we were absolutely starving to death in terms of 20 resources, and the second was that I thought we had to 21 build much stronger relationship with, in particular, the 22 Centre of Forensic Science, but also with the Fire 23 Marshal's Office. 24 By being the Assistant Deputy Minister of 25 Public Safety, I was in a position to be at the table, to
881 get the resources, to build the -- the strength of the 2 system, to get the centres of excellence, to get the 3 money for travel, to do all of the things we've talked 4 about; to build case conferencing, to do -- that required 5 -- you know, if the Centre of Forensic Science could say 6 they didn't like an idea, but they had to listen to me, 7 at least, because I was the boss. 8 And they -- it -- when I talked about 9 integrating and us doing things, they had to listen. 10 When I talked and complained about the turnaround times 11 in toxicology, this was the boss asking the question, not 12 the grumpy chief coroner, who is in a different division. 13 So there were -- there were decided 14 advantages. The disadvantage, of course, is exactly 15 what's been illustrated here. I'm distant from the 16 office increasingly over time, and so I'm not as involved 17 in the day -- day-by-day affairs. 18 The -- to be fair to the Government 19 though, what the Government did do was increase the size 20 of the compliment back of me. So I was replaced with 21 full people that were back of me. So there wasn't one 22 (1) deputy chief coroner, there were three (3). And 23 there were more pathology resources and more people back 24 there doing the work. 25 So the loss is that I'm not dedicated to
891 it every day. The gain is that there are people back of 2 me. But we have more money, we're able to get the 3 attention of government, we're getting DNA in the labs -- 4 COMMISSIONER STEPHEN GOUDGE: All right. 5 Looking forward, what is the right answer? 6 DR. JAMES YOUNG: The right answer 7 depends on the time and the -- and the -- the times that 8 we're in. The right answer right now is that the chief 9 coroner is the chief coroner. The right answer in thirty 10 (30) years or fifty (50) years might be that there's some 11 other model. But the right answer right now is -- 12 COMMISSIONER STEPHEN GOUDGE: Right. 13 DR. JAMES YOUNG: -- the chief coroner is 14 the chief coroner all of the time. 15 COMMISSIONER STEPHEN GOUDGE: Thanks. 16 Thanks, Dr. Young. 17 MR. MARK SANDLER: Commissioner, why 18 don't we take the morning break, at this point. 19 COMMISSIONER STEPHEN GOUDGE: Okay. 20 MR. MARK SANDLER: We're a little bit 21 behind schedule, but I -- I think we can make it up in 22 the course of the day. 23 COMMISSIONER STEPHEN GOUDGE: That's 24 probably my fault. But we will break now until 11:30. 25
901 --- Upon recessing at 11:15 p.m. 2 --- Upon resuming at 11:35 p.m. 3 4 THE REGISTRAR: All rise. Please be 5 seated. 6 COMMISSIONER STEPHEN GOUDGE: Mr. 7 Gover...? 8 9 CROSS-EXAMINATION BY MR. BRIAN GOVER: 10 MR. BRIAN GOVER: Thank you, Mr. 11 Commissioner. Now, Dr. Young, just before we broke, the 12 Commissioner asked you a question about how your duties 13 as Assistant Deputy Minister fit in to your role as Chief 14 Coroner, and as I understood your answer, you responded 15 that it enabled you, for one (1) thing, to gain better 16 resources for the Office of the Chief Coroner. 17 Is that correct? 18 DR. JAMES YOUNG: Absolutely. 19 MR. BRIAN GOVER: And I understand that 20 as of 1997, in fact, you were the Senior Assistant Deputy 21 Minister within the Ministry. 22 Is that right? 23 DR. JAMES YOUNG: Yeah, in terms of -- of 24 experience and corporate memory, I -- there was no such 25 title as Senior Assistant Deputy Minister, but I was the
911 person who had been around the table the longest, and 2 held the corporate memory as to why we did what we did. 3 MR. BRIAN GOVER: And frequently that 4 required you, I understand, to act as Deputy Minister in 5 the absence of the Deputy. 6 Is that correct? 7 DR. JAMES YOUNG: Yes. And sometimes for 8 fairly extensive periods of time when major events were 9 going on, I would serve as Deputy. For example, when the 10 young offender escaped the day before the -- Young 11 Offender Institute was to be opened in Northern Ontario, 12 I was the Deputy for -- not that day, but the day after 13 then, for about five (5) or six (6) weeks, so. 14 MR. BRIAN GOVER: And, Dr. Young, I'm 15 going to review with you a number of incidents where you 16 were called upon to do national or international work on 17 behalf of either the Province of Ontario or the 18 government of Canada during your tenure as Chief Coroner. 19 And I understand for example, that you 20 assisted in the investigation of the crash involving 21 Swiss Air Flight 111 in 1998. 22 Is that correct? 23 DR. JAMES YOUNG: Yes, I was -- Dr. Butt 24 asked me to come down, and ultimately, I was appointed 25 licenced in Nova Scotia and became his deputy for
921 purposes of -- of that investigation. 2 But most importantly, we took our own 3 people down then on a rotational basis which served the 4 backbone of the pathology for that investigation, but 5 also because there were no forensic pathologists in Nova 6 Scotia other then Dr. Butt. 7 But it also gave us the experience then if 8 a similar event happ -- would happen in Ontario, that we 9 would have people who had been to a crash and been ultima 10 -- or infant -- intimately involved in it. 11 MR. BRIAN GOVER: Now, in addition, in 12 1998 you were involved in the investigation of the death 13 of Chief Abiola in Nigeria. 14 Is that correct? 15 DR. JAMES YOUNG: Yes, I led an 16 international team that investigated -- Chief Abiola was 17 the elected -- duly elected President of Nigeria, but the 18 dictator he was running against threw him in jail the 19 last day of the election. 20 He -- that caused racial rioting in the 21 streets in -- in Nigeria and was leading towards the 22 potential of civil war. The last civil had been the 23 Biafran War and a million people had died. 24 So I was sent to -- had a team to try to 25 find out why he died and see if we could in fact stop the
931 unrest and we succeeded in doing that. Ultimately there 2 were elections in Nigeria and some progress made towards 3 democracy. 4 MR. BRIAN GOVER: Now, Doctor, earlier in 5 1996 you had been involved in the Bernardo investigation 6 review conducted by Justice Campbell. 7 Is that right? 8 DR. JAMES YOUNG: Well, in fact the -- 9 when the Bernardo case was going on I went to the then 10 Solicitor General, Mr. Runciman, and suggested that we 11 form a group that would study the difficulty in dealing 12 with this type of serial rapist or murderer. So Mr. 13 Lucas, the -- from the Centre of Forensic Science and -- 14 and Wayne Fiset from the OPP and myself, did a literature 15 search, but went around the world looking at systems that 16 were dealing with similar problems. 17 We then produced a -- we then had a 18 conference at the Fire College, called the Fire College 19 Conference, where we brought in all the homicide from the 20 Province, the head people, and went through the possible 21 solutions with them. When the trial ended, then I went 22 to the Solicitor General and said, We can get -- now we 23 need to have a commission to look at this. We've got 24 some ideas and all of the areas should feed in and we can 25 see what we could do.
941 So I actually recommended Justice Campbell 2 as the person that would be well suited to it and the 3 Government agreed. And we did the review and we all 4 cooperated and gave our recommendations. He issued the 5 report and then my job over, just about the next ten (10) 6 years, was to implement them. 7 So my performance agreement with 8 government every year included a -- that I would co-chair 9 the implementation task force along with the ADM of 10 policing services. I was the constant, in fact, that got 11 the -- the funding for the computer systems, and we built 12 a case management system, and the case conferences, and 13 all of the aspects of that, which are many of the aspects 14 that I've talked about in terms of how we deal with 15 police and coroners working together. 16 So that was a -- really a job that over 17 about twelve (12) -- twelve years. 18 MR. BRIAN GOVER: And Dr. Young, in 19 addition you dealt with issues affecting the Centre of 20 Forensic Science that arose from the Kaufman Commission. 21 Is that correct? 22 DR. JAMES YOUNG: Yes, when the Kaufman 23 Inquiry came we were most anxious that the direction of 24 the Kaufman Inquiry be as consistent and -- and build on 25 the successes we were enjoying from the -- from the
951 Campbell Inquiry. And I worked with Ray Prime to look at 2 the Centre of Forensic Science, see how we would change 3 the Centre of Forensic Science. 4 We went about getting funding to implement 5 some of the potential changes in advance so we could go 6 to the Commission and demonstrate good will and that we 7 were serious about changing things. But that took most - 8 - a huge amount of time. 9 Prior to the Commission I was the one that 10 ultimately -- that gave evidence when Mr. Sandler was 11 asking me on that occasion the questions. And -- and we 12 -- and then -- and then I worked with the Centre to 13 implement the recommendations over the next few years and 14 -- and went to government to get all of the funding for 15 it. 16 MR. BRIAN GOVER: And that would have 17 been trough the period 1997 through 1999. 18 Is that correct? 19 DR. JAMES YOUNG: At least '99, probably 20 2000 we were -- because we had the Advisory Committee to 21 the Centre that I chaired, so I continue to be very 22 active implementing that and working on that really for, 23 again, probably at least a four (4) or five (5) year 24 period. 25 MR. BRIAN GOVER: And, Doctor, in and
961 after 1998 you became involved in emergency management 2 planning for Ontario. 3 Is that right? 4 DR. JAMES YOUNG: Well, I was actually 5 involved from '94; I was the ADM of -- of Public Safety 6 and that included Emergency Planning. '98 was when we 7 got our first big emergency, that being the ice storm, 8 and my role was to manage the ice storm on behalf of the 9 Province. 10 MR. BRIAN GOVER: Now, Doctor, in April - 11 - before I ask you -- 12 DR. JAMES YOUNG: And that -- I must add 13 that -- that wasn't just the couple of weeks of the ice 14 storm; you have to manage your way back out of it. So 15 that's -- that's about a -- probably about a two (2) 16 month -- it takes about two (2) months to -- before 17 we're, sort of, at a point where it's not most of what I 18 do every day. 19 MR. BRIAN GOVER: Right. And that, in 20 your role as Assistant Deputy Minister and on occasion, 21 Acting Deputy Minister, took you away from the day-to-day 22 activities of the Office of Chief Coroner to some extent. 23 Is that right? 24 DR. JAMES YOUNG: That and -- and my 25 duties within the -- within the Ministry.
971 I mean, just -- just budget alone would -- 2 we would have a senior management meeting a half day 3 every week and then, in and around budget time, we may be 4 having a meeting three (3) or four (4) times a week and 5 sometimes lasting the whole day while we go through and 6 figure out where the cuts are going to come and where the 7 -- where we're going to ask for other money. 8 So at various times of the year, depending 9 what's going on, in either a policy context or in a -- in 10 a budget context, there may be a lot more work besides 11 either acting as Deputy or just as -- because I was part 12 of the senior management team. 13 MR. BRIAN GOVER: Now, Doctor, in April 14 2004, you resigned as Chief Coroner. 15 Is that right? 16 DR. JAMES YOUNG: Yes. 17 MR. BRIAN GOVER: Can you tell us why you 18 did that? 19 DR. JAMES YOUNG: Well, in -- in 2003, I, 20 in fact, had been involved at that point as the 21 Commissioner and -- and partly as the ADM, in managing 22 both the power -- the power blackout and SARS. SARS, in 23 particular, obviously frightened people, and there was 24 lots of debate about what was done and what wasn't done 25 and how things were done.
981 And it became obvious that -- that in 2 managing SARS, I had turned over all of the day-by-day 3 running and all of the issues surrounding the management 4 of SARS. I was managing, Bar -- and Dr. McLellan was -- 5 was managing the Coroner's Office. 6 But I -- I had -- at that point, I felt I 7 had a -- the potential of a genuine conflict and -- 8 because of the increasing number of emergencies that I 9 could, in fact, have my own office investigating my 10 actions. And I felt that it wasn't a theoretical 11 conflict; it was becoming real. 12 I also was finding doing three (3) jobs a 13 little on the tiring side and so I, in fact, asked the 14 government -- I asked the government what their 15 preference was. Actually, my personal preference at the 16 time was that I go back and be the Chief Coroner; their 17 preference was that I remain as the Commissioner and the 18 ADM. So we negotiated, and I stayed as the ADM and the 19 Commissioner. 20 MR. BRIAN GOVER: Now, Dr. Young, 21 contained within the Institutional Report prepared by the 22 Office of the Chief Coroner is the Act itself, the 23 Coroners Act, and Section 4, subsection (2) provides 24 that: 25 "The Lieutenant Governor in Council may
991 appoint one (1) or more coroners to be 2 Deputy Chief Coroners for Ontario who 3 may act as and have all the powers and 4 authority of the Chief Coroner during 5 the absence of the Chief Coroner or his 6 or her inability to act." 7 How did your statutory ability to delegate 8 responsibility influence the way you functioned as Chief 9 Coroner? 10 DR. JAMES YOUNG: My style in general, 11 and -- and specifically in the Coroner's Office is I am a 12 delegator. I -- I delegate people. I give them the 13 authority. I expect them to come to me when there's a 14 problem, but I'm not -- I'm a macro-manager not a micro- 15 manager. 16 I -- as I'll discuss, I'm not detail- 17 orientated; I'm vision. I look at things in big -- in 18 big ways and frankly, I -- I get bored ,sort of, doing 19 the same thing every day and I'm not well-suited to it. 20 I -- the Act absolutely allowed me to 21 delegate virtually everything within the Act down. And I 22 expected people -- the Regional Coroners, I wanted them 23 to be very strong. I wanted them to be very known in the 24 area; I wanted them to be the go-to people. The Head 25 Office shouldn't be the dominant thing and only people
1001 come to the Head Office. 2 I wanted good people running the areas in 3 the Head Office. I wanted Inquest to be the strongest 4 and the best; the forensic pathology to be world class, 5 and I wanted the investigations to be absolutely top 6 rate. And I expected those people to do that and to 7 manage it and to talk to me about the issues that they 8 needed to bring to my attention. 9 But that -- my role was not to be the day- 10 by-day manager or try to manage twenty thousand (20,000) 11 cases and everything else I had to manage. It simply -- 12 I'd have killed myself trying to do that, and I -- that's 13 not the way I think or I do things. 14 MR. BRIAN GOVER: Now, to the extent that 15 there were any typical days when you were both Chief 16 Coroner of Ontario and Assistant Deputy Minister, within 17 what started out as the Ministry of the Solicitor 18 General, can you describe a typical day for us? 19 DR. JAMES YOUNG: I usually got to the 20 office by 6:30 or seven o'clock. That was my brief quiet 21 time for the day. I would often either write speeches or 22 do things that required some measure of -- of solitude 23 during that part of the day, and that's my most 24 productive part of the day. 25 I often talked to the fire marshal early
1011 in the morning 'cause he got to work early, so we often 2 worked on our issues. I would certainly begin to attack 3 the paper, at that point. In a week, in the coroner's 4 office -- if I was away for a week, the size of the -- 5 tho -- that number of briefs is roughly what would be 6 sitting on my desk when I got back after -- 7 MR. BRIAN GOVER: You're referring to 8 Volumes I through, I suppose we're up to IX now, of the 9 documents. 10 DR. JAMES YOUNG: All -- all of those 11 volumes together would be about the volume of paper I 12 would have in a week. And then I would have an equal 13 volume upstairs. So I had twice that volume of paper 14 every week. 15 MR. BRIAN GOVER: When you say 16 "upstairs," you're referring to your office as Assistant 17 Deputy Minister? 18 DR. JAMES YOUNG: My -- my ADM and 19 Commissioner offices, yeah. So between the two (2) of 20 them, I had dou -- double this volume in a week. 21 COMMISSIONER STEPHEN GOUDGE: They were 22 in a different building, those offices? 23 DR. JAMES YOUNG: They were just across a 24 courtyard. Yeah, they were close. I could slip back and 25 forth between the offices.
1021 COMMISSIONER STEPHEN GOUDGE: Where were 2 they, just geographically? 3 DR. JAMES YOUNG: 25 Grovner Street and 4 26 Grenville Street. It's the same physical complex. 5 There's actually an underground route through them, but-- 6 COMMISSIONER STEPHEN GOUDGE: Okay. 7 DR. JAMES YOUNG: -- so they're -- 8 they're quite near to here and near to Queen's Park. And 9 the Minister's Office was in 25 Grovner and the Deputy 10 Minister's was there. Centre of Forensic Science is in 11 that building. 12 COMMISSIONER STEPHEN GOUDGE: Okay. 13 DR. JAMES YOUNG: So I would -- I am -- 14 was a scanner of paper. I'm -- I'm not -- I'm not a 15 reader, and I don't gain my knowledge by reading. I gain 16 my knowledge by listening. I'm a very verbal and not 17 very -- not very, by vision. I operate best when people 18 are telling me things, not by reading things. 19 I -- I parse things quickly, and I'm -- 20 I'm not -- I get -- I don't analyse things in huge, huge 21 detail. I don't have the time. So most of the paper the 22 -- you know, I would look at it, glance at it, scan it, 23 put a sticky on it, and send it to someone. 24 And if there was something that 25 particularly perturbed me then I'd -- I'd speak to
1031 somebody, but I -- I -- you'll find very, very few memos 2 from me to people or memos from people to me because 3 that's not the way you communicated with me. You -- you 4 did it by verbal. 5 My -- my role as Chief Coroner really was 6 -- I -- I dealt with the vision of where the office would 7 go. I dealt with the financial aspects. I dealt with 8 the families that needed to be arbitrated at -- at the 9 end of it. I dealt with the crisis management if there 10 was a particular case or something that was happening. 11 Either Dr. Cairns or I would deal with the press and the 12 issues around what we were doing and what we would 13 investigate. 14 Those would be the -- those are the four 15 (4) main things that I would do within the coroner's 16 office. Then I became the representative of the 17 coroner's office at the -- at the larger table, but I -- 18 I would carry on and do the financial things, et cetera. 19 And really what I -- my -- my strengths in 20 -- in the systems as a leader were that I can simplify 21 complex issues, I can make decisions, and I can juggle 22 lots of balls at the same time. My weakness is I'm 23 terrible on detail 'cause I don't -- I'm not a detail 24 person. I'm a -- I'm a big -- a big picture person. 25
1041 CONTINUED BY MR. BRIAN GOVER: 2 MR. BRIAN GOVER: Now, Dr. Young, let's 3 go back to 1990 for a moment and, in particular, the 4 relationship between the Office of the Chief Coroner and 5 the Chief Forensic Pathologist at the time when you 6 became Chief Coroner of Ontario. 7 Now, to a large extent, Mr. Sandler has 8 dealt with this. My question is a focussed one. How was 9 Dr. Hillsdon Smith managing the budget allocated to the 10 forensic pathology division? 11 DR. JAMES YOUNG: He wasn't, even to the 12 extent that some of the budget wasn't being spent, which 13 in government is an absolute no-no. If you don't spend 14 the money then you don't get it back. 15 And essentially, he wasn't running the 16 courses for police and pathologists and the money was in 17 -- in danger of being removed from the budget, so that, 18 in fact, we wouldn't be able to do continuing education 19 if we didn't soon start to reinstitute it and spend the 20 money. And it was, in my view, very necessary to do so. 21 MR. BRIAN GOVER: When you became Chief 22 Coroner in 1990, did you have a vision for forensic 23 pathology services in Ontario? 24 DR. JAMES YOUNG: I had the same vision 25 for the Coroner's Office: It was to be world class. It
1051 was to provide expert evidence in court. It was to 2 provide families with -- with good infor -- and solid 3 information in answers to their questions and ultimately 4 to also make recommendations and prevent deaths. 5 And that held for pathology and the whole 6 coroner's system. And -- and really, within a division, 7 and the aim of the Fire Marshall's Office was to be world 8 class, and the -- and our response to emergencies in a 9 province like this should be the best it can be in world 10 class. 11 So we were aiming to be leaders in our 12 field, not followers. 13 MR. BRIAN GOVER: How did your vision for 14 the Office of the Chief Coroner and for provision of 15 forensic pathology services compare to a medical examiner 16 system? 17 DR. JAMES YOUNG: I wanted anybody to be 18 able to look at -- at the forensic pathology that was 19 done and not be able to draw any adverse comparisons. I 20 wanted them to be able to say what they do and how they 21 do it is -- is a good or better then any system; they're 22 well funded, they're -- they know what they're doing, 23 they have good people. 24 So, I mean, the aim -- what I said to 25 David Chiasson is, If -- if you need it, ask me and I'll
1061 try to get it for you. I can't promise how long it'll 2 take, but I'll -- you know, if you want it and you need 3 it, and you can make a case for it then go for it. 4 MR. BRIAN GOVER: Now, Doctor, can you 5 explain why in September 1993 you initiated the 6 integration of the Forensic Pathology Division and the 7 Office of Chief Coroner? 8 DR. JAMES YOUNG: Well I thought at the 9 time, forensic pathology was just drifting with -- it was 10 actually -- it had improved originally under Dr. Hillsdon 11 Smith's leadership, but in later years it was just 12 failing and they were not able to administer themselves. 13 It was isolated and it wasn't being led. 14 If we were going to -- we needed to in 15 fact -- you know, as I've always said, I think 16 communications the key. They were much better being 17 administered as part of a larger unit, but the key was it 18 gets people talking and discussing things if they belong 19 to the same office. It meant the expertise was being 20 integrated better, which is what we were trying to do 21 with the Centre of Forensic Sciences and Fire Marshall's 22 people as well, so the people knew each other, and they 23 integrated and they talked. 24 At the time the Government were not 25 pleased with Dr. Hillsdon Smith's leadership in an
1071 administrative way, but there was also questions around 2 the Kaufman Inquiry, and some of his medical opinions as 3 well. 4 And so they -- the feeling was that it -- 5 it was a good time to integrate it. 6 MR. BRIAN GOVER: Okay. Lets stop and 7 unpack what you've just said then. You said that 8 government wasn't happy. 9 DR. JAMES YOUNG: That's correct. 10 MR. BRIAN GOVER: How did you know that? 11 DR. JAMES YOUNG: Well the ADM of the 12 time, and the Deputy Minister certainly were aware of 13 that and speaking to me about it. 14 MR. BRIAN GOVER: Who was the Assistant 15 Deputy Minister of the day? 16 DR. JAMES YOUNG: Dominic Alfieri was the 17 Assistant Deputy Minister and Michele Noble was the 18 Deputy. 19 MR. BRIAN GOVER: And you've said that 20 government, I suppose as expressed through them, was 21 unhappy with two (2) aspects. 22 Is that right? 23 DR. JAMES YOUNG: Yes, in -- in 24 particular, Dominic Alfieri was recognizing that Dr. 25 Hillsdon Smith was not -- not working as hard as perhaps
1081 he would have liked. 2 MR. BRIAN GOVER: Right. And you said 3 there were issues surrounding his work? 4 DR. JAMES YOUNG: There was -- he wasn't 5 doing a whole lot of work. The last autopsy he had done 6 had been the -- an autopsy that was -- was -- there was 7 controversy about. 8 MR. BRIAN GOVER: Which one was that? 9 DR. JAMES YOUNG: That's the -- 10 MR. BRIAN GOVER: Are you concerned now 11 with Christine Jessup? 12 DR. JAMES YOUNG: Christine Jessup, yeah, 13 right. 14 MR. BRIAN GOVER: Okay. And -- 15 DR. JAMES YOUNG: Seniors moment. 16 MR. BRIAN GOVER: And I take it that this 17 initiative to integrate then, was something that you 18 couldn't do on your own. 19 Is that fair? 20 DR. JAMES YOUNG: No, it's up to the -- I 21 mean the Assistant Deputy Minister can generally make 22 some changes in organization within their division, but 23 the Deputy Minister and the Minister sort of have to be 24 happy with it. They -- they're -- they've got to approve 25 it as well.
1091 MR. BRIAN GOVER: And by that time, how 2 was the administration of the Forensic Pathology Division 3 being effected, in any event? 4 DR. JAMES YOUNG: We're essentially de 5 facto already running it, and what it does is bring the 6 pathologist in so then we can start to build from there. 7 And certainly when -- when Dr. Chiasson 8 came, he came knowing that and knowing some of the 9 administration would be done for him and saying, Yes, 10 this is what -- I can not only live with this, I want 11 this and we can work together. And we got along very 12 well and felt it was stronger to work together. 13 MR. BRIAN GOVER: Right. And did -- did 14 Dr. Chiasson express a view as to the integration 15 initiative, if I can call it that? 16 DR. JAMES YOUNG: It seemed logical to 17 him. He -- Dr. Chiasson works well with a team. He had 18 -- he worked well with Dr. Cairns. He knew that I could 19 go off to government and try to get resources. I mean, 20 that's what I did best was -- was convince government to 21 put money. 22 And often in very, very tough times when 23 we were getting cuts, I still was able to get money for 24 Centre of Forensic Sciences for computers, for DNA labs, 25 for full time pathologists in the pathology unit.
1101 MR. BRIAN GOVER: And, Doctor, you told 2 Mr. Sandler or perhaps the Commissioner that you were 3 able to obtain funding for four (4) full time 4 pathologists. 5 Is that correct? 6 DR. JAMES YOUNG: Yes. 7 MR. BRIAN GOVER: And it's now, of 8 course, December 2007, but when you obtained the funding 9 can you tell us what it was like to be not only in the 10 Ontario Public Service but at the senior levels of the 11 Ontario Public Service? 12 DR. JAMES YOUNG: Well, we spent a lot of 13 times in those days not talking about how to build things 14 but rather how to cut things. And the cuts were in two 15 (2) areas: one (1) was money and the other was bodies; 16 "FTEs" as we call them. 17 MR. BRIAN GOVER: Full-time equivalents? 18 DR. JAMES YOUNG: Full-time equivalents. 19 And we had lots and lots and lots of discussions about 20 FTEs. 21 And the overall aim of government was to 22 cut the size of government. I believe the budget we were 23 cutting in our area of somewhere around 15 percent. Some 24 ministries cut even deeper than that, but in our areas it 25 was around 15 percent and we had to cut FTEs as well. It
1111 had to be seen that the size of government was smaller. 2 So we were swimming uphill; we needed more 3 people in the lab for DNA; we needed more full time 4 pathologists; we needed more forensic scientists; I 5 needed more Regional Coroners, all at a time when 6 government is saying we want the count of the number of 7 people to be fewer and less. 8 MR. BRIAN GOVER: So how in that 9 environment did you obtain funding for more full time 10 professional staff? 11 DR. JAMES YOUNG: A lot of work. A lot 12 of meeting with people and explaining our situation and 13 selling them on the notion that this had to be done. 14 Very good support from the Ministers of the time, both 15 Mr. Runciman and Mr. Tabucchi, and good support from 16 Deputies and a lot of work with Management Board. 17 And -- but making sure that -- that what 18 we needed was known to most of the Cabinet. If I ran 19 into a Cabinet Minister, I always buttonholed them about 20 what our needs were and where we needed money in my 21 division, because they sat on the committees that 22 approved the money. 23 So I spent a lot of time -- a lot of time 24 making sure that my message was out there so I went -- 25 when I went to get money I would have some chance of
1121 success. 2 MR. BRIAN GOVER: Now we've heard 3 evidence that -- 4 COMMISSIONER STEPHEN GOUDGE: Sorry, Mr. 5 Gover, can I just -- 6 MR. BRIAN GOVER: Yes. 7 COMMISSIONER STEPHEN GOUDGE: -- ask two 8 (2) sort of date questions, Dr. Young -- 9 DR. JAMES YOUNG: Sure. 10 COMMISSIONER STEPHEN GOUDGE: -- and you 11 may not be able to give them precisely. 12 But give me the time frame, as best you 13 can, for when the Chief Forensic Pathologist gets folded 14 into the OCCO. 15 DR. JAMES YOUNG: It would be -- 16 COMMISSIONER STEPHEN GOUDGE: When does 17 that actually get affected? 18 DR. JAMES YOUNG: I think Dr. Hillsdon 19 Smith leaves in 1992. 20 COMMISSIONER STEPHEN GOUDGE: If you -- 21 DR. JAMES YOUNG: I became Chief Coroner 22 -- sorry? 23 COMMISSIONER STEPHEN GOUDGE: If you 24 cannot remember this is not -- 25 DR. JAMES YOUNG: Well, I can tell you
1131 roughly, it's before he left. The last six (6) months to 2 a year that he was there before he retired, I was -- he 3 reported to me instead of to the ADM. So it would be six 4 (6) months to a year before he left. 5 COMMISSIONER STEPHEN GOUDGE: So very 6 shortly after you take over as -- 7 DR. JAMES YOUNG: Yes. 8 COMMISSIONER STEPHEN GOUDGE: -- Chief 9 Coroner? 10 DR. JAMES YOUNG: Yes. 11 COMMISSIONER STEPHEN GOUDGE: And then 12 when do you succeed in achieving these four (4) pathology 13 positions? I take it that is some time '96 -- 14 DR. JAMES YOUNG: Some time -- 15 COMMISSIONER STEPHEN GOUDGE: -- '97 -- 16 DR. JAMES YOUNG: Yes, some -- 17 COMMISSIONER STEPHEN GOUDGE: -- in 18 there? 19 DR. JAMES YOUNG: -- somewhere in that 20 range that we get the -- it's after Dr. Chiasson comes 21 and -- but not too long after I believe that we actually 22 get the -- 23 COMMISSIONER STEPHEN GOUDGE: I am just 24 plotting it in terms of -- 25 DR. JAMES YOUNG: Yes.
1141 COMMISSIONER STEPHEN GOUDGE: -- the 2 Ministers you recited -- 3 DR. JAMES YOUNG: Yes. 4 COMMISSIONER STEPHEN GOUDGE: -- and 5 trying to think to myself when that election was. 6 DR. JAMES YOUNG: Yeah. The -- 7 COMMISSIONER STEPHEN GOUDGE: It would be 8 '94 or '95, and subsequent to that -- 9 DR. JAMES YOUNG: Yeah, somewhere in 10 around there, that's right. 11 MR. BRIAN GOVER: Right. And we know 12 that Dr. Chiasson started as Chief Forensic Pathologist 13 April 1st, 1994, and we know that there was a change in 14 government in June 1995. 15 DR. JAMES YOUNG: Okay. 16 COMMISSIONER STEPHEN GOUDGE: Thanks, Mr. 17 Gover. That is -- 18 MR. BRIAN GOVER: And Mr. -- 19 COMMISSIONER STEPHEN GOUDGE: -- that is 20 what I was going at, only because of the names you put on 21 the ministerial position. 22 DR. JAMES YOUNG: Yeah, and before that - 23 - before that we would have been dealing with the -- not 24 only with -- it was an NDP government, but we were 25 dealing with the -- and you'll recall there were two (2)
1151 major budgets during that time; the first one spent some 2 money and the second one cut -- 3 COMMISSIONER STEPHEN GOUDGE: Right. 4 DR. JAMES YOUNG: -- like mad. And the 5 second one resulted in fact in Rae Days. And -- 6 COMMISSIONER STEPHEN GOUDGE: Right. 7 DR. JAMES YOUNG: -- we were actually -- 8 we weren't exactly a model -- a place that people wanted 9 to work because we would be able to say, Yes, we can pay 10 you this wage, but then we're going to claw back a 11 certain amount of it because of the restrictions -- 12 COMMISSIONER STEPHEN GOUDGE: Right. 13 DR. JAMES YOUNG: -- on government. 14 COMMISSIONER STEPHEN GOUDGE: Right. 15 DR. JAMES YOUNG: So it was during that 16 era. But -- but also I must say at that point in time we 17 had a particularly supportive Minister who was working 18 with us in trying to increase our resources, Mr. 19 Christopherson, so we had -- 20 COMMISSIONER STEPHEN GOUDGE: Right. 21 DR. JAMES YOUNG: -- we were well -- well 22 led by the Minister at that point in time, as well. 23 COMMISSIONER STEPHEN GOUDGE: Sorry, Mr. 24 Gover. 25 MR. BRIAN GOVER: No, not at all.
1161 2 CONTINUED BY MR. BRIAN GOVER: 3 MR. BRIAN GOVER: And we have heard 4 evidence, though, about two (2) positions being lost: 5 one (1) a radiologist and the other a photographer -- 6 DR. JAMES YOUNG: Yeah. 7 MR. BRIAN GOVER: -- who had been 8 employed in, what was initially known as the Forensic 9 Pathology Division. 10 DR. JAMES YOUNG: Mm-hm. 11 MR. BRIAN GOVER: Can you -- 12 DR. JAMES YOUNG: We were making cuts and 13 we continued at various times to make cuts and -- and 14 what happens with the cuts generally is they would come 15 to the division, to me as the ADM, and I would be told as 16 a division you must cut "x" million dollars. 17 Then the leaders of the division, the 18 Centre of Forensic Science, the Fire Marshal, and Chief 19 Coroner's Office, EMO, sit around the table and say who's 20 going to cut what this year and who's going to take most 21 of the hit. 22 We got some cuts in particular where 23 everyone had to take part of the -- the cut. and as I 24 recall, the cuts were somewhere in the range -- I don't 25 think they ended up being 15 percent, but that -- we had
1171 to give listings of what we would do. I can remember one 2 time even putting in a list of 25 percent cuts and what 3 would this mean. And -- and we'd sometimes have only a 4 few hours or days to work this up. 5 This particular round of cuts -- I believe 6 the Coroner's Office was taking a good -- good amount of 7 cut. And within the Coroner's office we -- we stopped 8 doing all of the deaths in custody -- or the nursing home 9 deaths. We dropped our number cases from thirty (30) 10 thousand to twenty (20) thousand. We put into place a 11 safety mechanism to review those on a paper review basis. 12 We upped the coroner's fees because the -- the easiest of 13 their cases were now -- now being done, but we 14 essentially -- we did quite a large saving through the 15 coroner's side. 16 When I looked at forensic pathology and I 17 discussed things with Dr. Chiasson, I said I need some -- 18 something in your office. What we decided was in fact 19 that most of the photography was being done by police 20 photographers by this point in time. We were perfectly 21 willing and did purchase a good camera for Mr. Blenkinsop 22 and -- and the other pathology assistants to use. So in 23 essence the photographer, while desirable, was -- was 24 somewhat redundant and we -- that was an area where if we 25 had to make a cut and -- and we also not only had to make
1181 cuts in money, we had to make FTE cuts, as well, that we 2 didn't need a full time person doing photography. 3 Some days there was a lot of volume, some 4 days there was none. The same thing with a -- with 5 radiology; we could get the same service by buying it on 6 a part-time basis. We would know the night before how 7 many actu -- how many cases we need x-rayed. Those that 8 we needed x-rayed, we had people willing to come in on a 9 part-time basis and do the x-ray. 10 So essentially we were going to lose an 11 FTE, which was valuable to us at the time, without losing 12 any service. And so we made those cuts because they 13 would have the least overall effect on our day-by-day 14 operation and they would -- we really could make them up 15 in other ways. 16 MR. BRIAN GOVER: And perhaps I could ask 17 you, Dr. Young, to help us understand the budget for the 18 Office of the Chief Coroner. And I'll refer you to 19 Appendix F, to the institutional report prepared by the 20 Office of the Chief Coroner. 21 So this is Appendix F, it's at page 114. 22 DR. JAMES YOUNG: Okay. 23 MR. BRIAN GOVER: And we'll just wait for 24 the screen to reflect it. 25
1191 (BRIEF PAUSE) 2 3 MR. BRIAN GOVER: Just while that's 4 happening: Dr. Young, you've seen this sort of thing on 5 many, many occasions; other's in the room haven't -- 6 DR. JAMES YOUNG: Too many. 7 MR. BRIAN GOVER: Can you explain -- 8 explain this to us, please? 9 DR. JAMES YOUNG: Well, essentially, 10 government gives money for one (1) year periods. And 11 increasingly, the way government operates is that they go 12 -- they do what's called a line-by-line budg -- line 13 budget, and there are categories within those budgets, 14 and you ask for what you need, and you justify each line 15 of your budget each year as to what's in it and what's 16 covered by it. 17 And you then receive your total budget for 18 the year, but that -- that budget gives you approval to 19 do the things that are contained within the line, and you 20 can't vary outside of those lines. So if a new problem 21 or a new program comes along and you want to start it 22 midyear, you can't cut one (1) thing and start another 23 and start a new program. 24 You have to go back to government -- you 25 can offer to cut something and start something else. The
1201 risk you run is that they'll take the money, tell you to 2 start the program and not give you the money back. So 3 you have to be very careful what you do. 4 And you can't move money between salaries 5 and wages, and -- and buying equipment, and -- and soft 6 costs. Your -- your operating budget and your salaries 7 and wage budget are exclusive to each other. You -- you 8 must manage those budgets within, and so salaries, for 9 example, very often what government will do is midway 10 through the year they'll give a -- a raise, for example. 11 But then they give the raise and they 12 approve the raise and often with retroactive pay -- 13 because they haven't been settling for a while -- and 14 then they don't put the money for the raise in the 15 budget. So you're -- look at your wage side and your 16 wage side is suddenly completely out of balance with what 17 you actually have in your money, so what you end up doing 18 is managing that through vacancies. 19 You -- you reduce your wages by not 20 backfilling for extensive periods of time until you're 21 back in balance and then you -- and that keeps your FTE 22 count down, which is good for government too, and 23 government likes that. 24 On the operating side, there are -- in 25 recent years, there are a large number of charges that
1211 get charged to an area. For example, anything to do with 2 computers, the rent that you pay on all of the buildings, 3 ministry projects; there'll be a sort of a tax that comes 4 through and a bill comes through for these things, and 5 those areas set the bill so that they can manage to 6 survive. 7 If the bill happens to go up by 10 or 15 8 or 20 percent in a year then it goes up by 10 or 15 or 20 9 percent and you're obligated to pay it -- shared 10 services, another example. And then whatever money is 11 left is left for your operating. 12 So you -- you operate within a fixed 13 envelope, but parts of the envelope get nibbled away in 14 advance from you. And then -- and generally then the 15 further down the more -- the closer you are to the ground 16 that you're actually doing the service, the more people 17 you have taking part of the money before you actually get 18 to do the service because the other things take -- you 19 know, get paid first. 20 So -- so you -- you can't just sort of run 21 out and decide to do something or there's -- there will 22 be a certain equipment budget and you -- you can -- you 23 have the choice of what you buy, but you -- it has to be 24 within that equipment budget. 25 You can't just be moving money into the
1221 equipment budget. And frankly, there isn't the money to 2 move anyway because you're always, at the end of the 3 year, trying to figure out how you're going to balance 4 off all of these various expenses. 5 MR. BRIAN GOVER: What are the four (4) 6 biggest areas then for the budget of the Office of the 7 Chief Coroner? 8 DR. JAMES YOUNG: Well, salaries and 9 wages would be probably the single biggest, and then fees 10 for pathologists and coroners would be the second 11 biggest. Body transportation and then areas like running 12 inquests; the various committees. 13 And, I guess, the -- and also the Centres 14 of Excellence there -- is a big budget. Those are all 15 big -- big line items within the office. And most of 16 that is fixed. I mean, we -- the number of people -- we 17 have no control over who dies and how many die in a year. 18 It happens to be fairly regular. Or how 19 many cases turn out to be big, big, big cases and take 20 extra resources. Fortunately, it more or less averages 21 out over a year, but it's -- if you get whomped with two 22 (2) of three (3) really big events in a year it -- it's 23 very, very difficult to -- to balance it all out. 24 COMMISSIONER STEPHEN GOUDGE: Dr. Butt's 25 budget, at the time with Swiss Air, would have had that
1231 difficulty? 2 DR. JAMES YOUNG: Yeah, his budget at the 3 time of Swiss Air is -- government will fortunately pour 4 money back in in a case like that, but -- but it takes 5 something the size of Swiss Air before. You know, 6 otherwise what you're told is, Oh, you -- you seemed to 7 have managed it, it's okay. 8 You know, don't -- you know, and somehow 9 you limp through each year. But it -- it's not as simple 10 as just, Here's the money, spend it anyway you want. You 11 don't have anything like that kind of -- and all year 12 long -- you may be halfway through the year when a 5 13 percent cut is made. 14 5 percent really means if you get it six 15 (6) -- six (6) months through the year that it's a 10 16 percent cut because it's -- it's meant to be 5 percent of 17 the overall budget for the whole year. 18 MR. BRIAN GOVER: Let me take you to 19 Volume VIII, Tab 58, please, Doctor. 20 COMMISSIONER STEPHEN GOUDGE: Are you 21 moving away from budgets, Mr. Gover? 22 MR. BRIAN GOVER: No, I'm not actually. 23 COMMISSIONER STEPHEN GOUDGE: Okay. 24 MR. BRIAN GOVER: This is the forensic 25 pathology expenditure budget.
1241 COMMISSIONER STEPHEN GOUDGE: Okay. 2 DR. JAMES YOUNG: Volume VIII, I don't 3 see Volume VIII here. 4 COMMISSIONER STEPHEN GOUDGE: It is a 5 white volume and there it is on the desk. 6 DR. JAMES YOUNG: On here it is, here it 7 is. It's this one (1). 8 9 CONTINUED BY MR. BRIAN GOVER: 10 MR. BRIAN GOVER: And this will be Tab 11 58, Doctor. 12 DR. JAMES YOUNG: Okay. Yeah. 13 MR. BRIAN GOVER: And this bears the 14 heading, Forensic Pathology Expenditure. 15 DR. JAMES YOUNG: Yeah. 16 MR. BRIAN GOVER: And we see the 17 provincial pathology unit operating expenses -- 18 DR. JAMES YOUNG: Yeah. 19 MR. BRIAN GOVER: -- broken down into 20 four (4) categories. Then we see the transfer payments 21 to forensic pathology units in Kingston, --- 22 DR. JAMES YOUNG: Mm-hm. 23 MR. BRIAN GOVER: -- Hospital for Sick 24 Children In London, Ottawa, and Hamilton. 25 DR. JAMES YOUNG: Mm-hm.
1251 MR. BRIAN GOVER: We see expenditures for 2 pathologists for fee-for-services, use of facilities, and 3 the total OCC budget allocation. 4 Is that correct? 5 DR. JAMES YOUNG: That's right. 6 MR. BRIAN GOVER: And can you -- can you 7 explain this aspect of the budget to us, please? 8 DR. JAMES YOUNG: Well, it shows pretty 9 much what I was saying before. If you look at the very 10 big items, even within forensic pathology, the -- the 11 salaries and benefits is the largest one (1); the 12 transfer to the forensic units is -- is a big one (1). 13 The very biggest is the fee-for-service 14 for pathologists at -- at almost 6 million. The use of 15 facilities is the money that gets paid back to the 16 hospitals because we've stored bodies there and we've 17 used their autopsy facilities, and we've used their -- 18 their staff, their pathology assistants. 19 So if you add those together that's 20 virtually all of the money that exists in the budget. 21 There's, you know, supplies and that would include all 22 the computers and everything else. And -- and services - 23 - but they're -- they're -- essentially, the -- you know, 24 most of the budget is non-discretionary; it -- it happens 25 because people have died and the work has to be done.
1261 So there's very, very little discretionary 2 room in the -- in the budget. And that's true of the 3 Office of the Chief Coroner, as well. There -- there's 4 discretion as to which op -- inquest to call, but once 5 you call an inquest, the costs are pretty well fixed. 6 MR. BRIAN GOVER: Right. And -- and even 7 for some inquests, they're statutorily mandated. 8 Is that right? 9 DR. JAMES YOUNG: About half the inquests 10 are statutorily mandated, that's right. 11 MR. BRIAN GOVER: And, Mr. Commissioner, 12 I am about to move from budget to another area. 13 COMMISSIONER STEPHEN GOUDGE: I just 14 wanted to ask you, Dr. Young, I mean, to a degree under 15 the legislation, the Office of the Chief Coroner of 16 Ontario has a certain independence from government? 17 DR. JAMES YOUNG: It has actually very 18 good independence in terms of the decision making and the 19 investigation, what is chosen to be done in particular 20 cases -- 21 COMMISSIONER STEPHEN GOUDGE: Right. 22 DR. JAMES YOUNG: -- I've never been in a 23 government that interfered in any way. 24 COMMISSIONER STEPHEN GOUDGE: Do you have 25 any views or has there ever been any discussion that you
1271 have been part of about the office getting an envelope 2 within which they would have, not line-by-line 3 responsibility, but overall responsibility? 4 DR. JAMES YOUNG: No. 5 COMMISSIONER STEPHEN GOUDGE: In other 6 words, to match the independence that goes with the 7 functioning? 8 DR. JAMES YOUNG: There isn't -- there 9 isn't any area of government that's given that kind of an 10 envelope and said just manage it. There -- it's not -- 11 it's not done in government. 12 COMMISSIONER STEPHEN GOUDGE: Would that 13 be a good thing or a bad thing? 14 DR. JAMES YOUNG: Well, it would be -- 15 what they need is more money. It's not the line-by-line 16 because most of the money has to be spent anyway, but 17 they need more money that would be a little bit more 18 discretionary. 19 COMMISSIONER STEPHEN GOUDGE: Right. 20 DR. JAMES YOUNG: You're still going to 21 be accountable with provincial auditors and -- and all 22 the other things, and if you just sort of plop down of -- 23 an amount of money and said what has to be done -- I 24 mean, government doesn't work in a way that you can set 25 wages and spend more money. You -- you know, the wages
1281 have to be approved through a process for a good reason. 2 COMMISSIONER STEPHEN GOUDGE: Right. 3 DR. JAMES YOUNG: Because they have the 4 effect on everyone else's wages, as well. So even 5 agencies of government have quite a lot of restriction in 6 terms of what budget they're given and what they can do 7 with it. They have a little more freedom than the Office 8 of the Chief Coroner. 9 COMMISSIONER STEPHEN GOUDGE: All the 10 employees of the office are government employees -- 11 DR. JAMES YOUNG: Yes. 12 COMMISSIONER STEPHEN GOUDGE: -- as 13 opposed to employees of the Office of the Chief Coroner? 14 DR. JAMES YOUNG: Yes. And -- and there 15 are huge advantages in attracting and retaining; not the 16 least of which is the benefit packages and the pensions, 17 et cetera. And the office would be too small otherwise. 18 COMMISSIONER STEPHEN GOUDGE: Right. 19 DR. JAMES YOUNG: And -- and even in 20 agencies of government that's -- that's -- the hiring and 21 firing practices -- 22 COMMISSIONER STEPHEN GOUDGE: Right. 23 DR. JAMES YOUNG: -- are the practices of 24 Government of Ontario. 25 COMMISSIONER STEPHEN GOUDGE: Okay. The
1291 last question: Who sets the fee for the fee-for-service 2 autopsy? 3 DR. JAMES YOUNG: The Cabinet of Ontario 4 does on advice from the Chief Coroner. But what I would 5 do is pro -- produce -- similar to the document that I 6 produced to get the money for the -- the forensic units - 7 - we produce what's called an MB20, a management board 8 form 20, which is a document that might be up to several 9 hundred pages -- and we would write the case for the 10 increase and then we would give the government a series 11 of options; no increase, 5 percent increase, 10 percent 12 increase, 15 percent increase. 13 We would make the case for -- for each of 14 those cases and then we would do the work with our 15 analyst -- with whatever the dep -- the Ministry agrees 16 on, then goes out to the Management Board -- then we work 17 with our analyst to get them to approve -- 18 COMMISSIONER STEPHEN GOUDGE: Right. 19 DR. JAMES YOUNG: -- it, and they always 20 want to knock it down. Then you work with a Chair of 21 Management Board, -- 22 COMMISSIONER STEPHEN GOUDGE: Right. 23 DR. JAMES YOUNG: -- and then with the 24 Cabinet Members that sit and they ultimately make the 25 decision. Their decision as Management Board then goes
1301 to the Cabinet for final ratification, so... 2 COMMISSIONER STEPHEN GOUDGE: And is 3 there one (1) fee for every level of difficulty in an 4 autopsy? 5 DR. JAMES YOUNG: No, we -- we used to 6 have a joint fee; one (1) for difficult and one (1) for 7 straightforward. What happened was then, increasingly, 8 everything became more difficult, and everybody billed 9 for the higher one (1) of the two (2). 10 And with agreement from the Ontario 11 Pathologists Association many years ago, we went to a 12 single fee that would reflect the average in between the 13 harder and the -- and more diffi -- and the easier. 14 COMMISSIONER STEPHEN GOUDGE: And has 15 that been the state of play for some period of time now? 16 DR. JAMES YOUNG: Yeah, probably twenty 17 (20) years or -- or more. It happened towards the 18 beginning -- 19 COMMISSIONER STEPHEN GOUDGE: -- a single 20 fee over that twenty (20) year period, what would it have 21 -- what would have happened to it? 22 DR. JAMES YOUNG: Oh, it's gone up, but 23 it goes up the -- 24 COMMISSIONER STEPHEN GOUDGE: Give me 25 sense of order of magnitude where it began and where it
1311 is now, if you can. 2 DR. JAMES YOUNG: I think it began around 3 two fifty (250) for an autopsy and it -- when I left it 4 was -- it was somewhere over five hundred dollars ($500), 5 but I don't -- 6 COMMISSIONER STEPHEN GOUDGE: You don't 7 know the precise number. 8 DR. JAMES YOUNG: Well, no I've -- 9 COMMISSIONER STEPHEN GOUDGE: If we -- 10 DR. JAMES YOUNG: -- been gone for five 11 (5) years, so I -- 12 COMMISSIONER STEPHEN GOUDGE: Right. 13 DR. JAMES YOUNG: -- you know it -- it's 14 -- I don't know where it is now, I'm afraid. 15 COMMISSIONER STEPHEN GOUDGE: Okay, 16 thanks. Thanks. 17 18 CONTINUED BY MR. BRIAN GOVER: 19 MR. BRIAN GOVER: Mr. Commissioner, 20 that's reflected in Appendix H to our institutional 21 report. 22 COMMISSIONER STEPHEN GOUDGE: Thanks, Mr. 23 Gover, that's helpful. Thank you. 24 25 CONTINUED BY MR. BRIAN GOVER:
1321 MR. BRIAN GOVER: All right. Now, Dr. 2 Young, we've got some ground to cover here and -- 3 COMMISSIONER STEPHEN GOUDGE: Yes, I 4 apologize, that's my fault. 5 6 CONTINUED BY MR. BRIAN GOVER: 7 MR. BRIAN GOVER: Not at all. But can 8 you tell us what the impetus was for creating the 9 specialized unit at the Hospital for Sick Children? 10 DR. JAMES YOUNG: Well, certainly from my 11 point of view, the impetus was that we were -- the 12 recognition that pediatric pathology was very difficult. 13 It was -- required special expertise. It required 14 special testing. And it required people with -- a larger 15 group of people with expertise, such as radiology and 16 neuropathology, et cetera. 17 From the hospital's point of view, as 18 well, they were -- they were agreeing to do more of the 19 work and they wanted some -- some compensation because 20 they faced the same budget pressures as every other 21 institution. They were spending a lot of resource and 22 not getting anything back from the Coroner's Office. So 23 we undertook to adjust that, and I wanted people then 24 dedicated and committed to the work, and we wanted to 25 build excellence in pediatric pathology.
1331 MR. BRIAN GOVER: And who was actually 2 doing the work as of 1990, in any event? 3 DR. JAMES YOUNG: Dr. Smith was doing the 4 largest amount and Sick Kids were -- as a whole were 5 doing all of the Toronto cases, but an increasing number 6 of cases from the rest of the Province. 7 MR. BRIAN GOVER: And to what extent did 8 the fact that Dr. Smith was at the Hospital for Sick 9 Children drive the result? 10 DR. JAMES YOUNG: Well, Dr. Smith was 11 interested in the cases. He was -- he was highly 12 recommended by the hospital, and he -- he had this great 13 interest. He was a good teacher. He was good with 14 families and -- and, you know, when you have the 15 combination; if somebody's academically interested they - 16 - he's got -- by having it there we have the access to 17 all of these other experts, he -- you know he presents 18 himself well, and speaks well, and -- and deals with 19 families well. 20 You know you've got a very positive and he 21 wants to do the work, so... 22 MR. BRIAN GOVER: Right. 23 DR. JAMES YOUNG: And people were very 24 impressed by him; they thought he was very competent and 25 very trustworthy and he's very sel -- confident, but not
1341 in a boastful way. 2 They -- they felt he was a very -- you 3 know he was -- had a great future. 4 MR. BRIAN GOVER: And why, according to 5 the service agreements, is the Chief Coroner responsible 6 for professional services at the forensic unit? 7 DR. JAMES YOUNG: Well, the cases are 8 being done under coroner's warrant and if -- those that 9 order it and those that are legally responsible for it 10 should be the people that are -- are looking after the 11 quality assurance aspect as well. 12 MR. BRIAN GOVER: Who took the lead in 13 the contract negotiations? 14 DR. JAMES YOUNG: The original contract - 15 - it was myself and -- and Dr. Phillips that negotiated. 16 It wasn't a lengthy or difficult negotiation. He put 17 together the idea in the budget, and it looked reasonable 18 to me and my job, then, was to try to get the money from 19 government. And I -- I must say we succeeded; we got 20 what we went for. 21 It was -- what he asked for was 22 reasonable, and the government agreed. And it took a 23 while; it took time to get it but it -- but it succeeded. 24 25 (BRIEF PAUSE)
1351 MR. BRIAN GOVER: Now did Dr. Becker or 2 Dr. Phillips ever ask you or the Office of the Chief 3 Coroner for more money to continue to run the unit? 4 DR. JAMES YOUNG: I don't remember them 5 asking but I have to say, I mean, we got all of the units 6 and with time, you know, the topic or how much money 7 becomes everybody -- you know, and whether you ask -- and 8 you ask too. 9 I mean, even if they asked, and they may 10 have -- I don't recall them asking -- but even if they 11 did, my answer back probably was, I can't get any more 12 right now. I'm trying to get the other units and I've 13 got to balance the amount of money, and I can only go to 14 the well so many times. 15 I mean, just increasing the amount of 16 money means I have to go back to Cabinet. You know, I 17 have to get it at budget time. I have to write a whole 18 paper about it and -- and justify the amount of money. 19 So it's not a simple matter just moving some money 20 around; it's a major, major issue. 21 MR. BRIAN GOVER: Did either Dr. Becker 22 or Dr. Phillips ever suggest to you that the hospital 23 could not continue to provide services to the Office of 24 the Chief Coroner because of resource limitations or 25 other restraints?
1361 DR. JAMES YOUNG: No, I don't think -- I 2 don't recall any conversation about that. 3 MR. BRIAN GOVER: Did Dr. Smith ever say 4 that he did not want to take on any more coroner's cases 5 because he was overwhelmed? 6 DR. JAMES YOUNG: No. No, he -- you 7 know, Charles' fault, if anything, was the opposite -- 8 that he took on everything -- and whether -- you know. 9 And in retrospect, sometimes he couldn't do it in a 10 timely manner but he was -- you know, he was the willing 11 -- the willing person to do things. 12 MR. BRIAN GOVER: Now you've already 13 discussed many of the improvements made to forensic 14 pathology services during the time when you were Chief 15 Coroner, when you responded to questions from Mr. 16 Sandler. But could I ask that PFP057563 be brought up, 17 please? 18 And what we have here is a memorandum from 19 you, dated June 21st, 1993. It's to Mr. Doug Lucas, the 20 Acting Assistant Deputy Minister of the Public Safety 21 Division, and it's re. Centres of Excellence in 22 Pathology. 23 Is that right, Doctor? 24 DR. JAMES YOUNG: Yeah, that's correct. 25 MR. BRIAN GOVER: And I understand that
1371 this is the covering memorandum to a submission, which by 2 the way is PFP057564, relating to this subject of 3 Regional Forensic Centres of Excellence. 4 Is that right, sir? 5 DR. JAMES YOUNG: Yeah. This is 6 essentially the form that, at that time, an MB20 would 7 take. This is if you're requesting a new program and 8 more money from government, then this is the kind of 9 document you would produce to get that. 10 In today's terms, this is even 11 straightforward. It was pretty complicated then, but now 12 they're a lot longer and even more complex. 13 MR. BRIAN GOVER: Right. "MB20" refers 14 to -- 15 DR. JAMES YOUNG: Management Board. 16 MR. BRIAN GOVER: -- a form -- Management 17 Board submission -- 18 DR. JAMES YOUNG: Yes. 19 MR. BRIAN GOVER: -- is that right? 20 DR. JAMES YOUNG: Yeah. They just were 21 called within government, MB20s. 22 MR. BRIAN GOVER: Right. And can you 23 tell us what your thinking was then, in June 1993, 24 briefly, because of our time, in setting up the regional 25 centres, in particular.
1381 DR. JAMES YOUNG: Well, I think the paper 2 illustrates at that point in time I was very worried 3 about the future supply of forensic pathology in the 4 province. I knew that we had two (2) problems. We had a 5 manpower shortage, and we had a quality problem. 6 And what I was trying to do, in fact, then 7 was to solve both problems by moving more of the cases to 8 various regions within the province and not developing a 9 system that moved all of the pathology to Toronto; both 10 for cost but also for doability. I mean, the morgue was 11 already operating in Toronto at nearly full capacity 12 anyway. So if we move it all to Toronto, we got to get 13 more resources, more people. 14 Our building is inadequate. The building 15 was inadequate then. It's more of a now. It's a -- so 16 it was -- you know, I was trying to, in fact, vision a 17 way of improving pathology and do it in a cost effective 18 way that would work. 19 MR. BRIAN GOVER: All right. And the 20 -- the MB20 as it's called, by the way, is at Volume I, 21 Tab 25. 22 COMMISSIONER STEPHEN GOUDGE: Thanks. 23 Volume I of overview, or -- 24 MR. BRIAN GOVER: No. Volume -- 25 COMMISSIONER STEPHEN GOUDGE: -- the
1391 black -- 2 MR. BRIAN GOVER: -- I in the black 3 binders. 4 COMMISSIONER STEPHEN GOUDGE: Okay. 5 6 (BRIEF PAUSE) 7 8 CONTINUED BY MR. BRIAN GOVER: 9 MR. BRIAN GOVER: Right. And here you 10 propose a solution at page 6. 11 Is that correct, Doctor? 12 DR. JAMES YOUNG: That's correct. 13 MR. BRIAN GOVER: And in brief, can you 14 tell us why you felt that the Regional Centres were the 15 solution? 16 DR. JAMES YOUNG: Well, I felt that we 17 could move expertise into those areas. We had the 18 possibility of finding forensic pathologists who were in 19 that area and were trained as forensic pathologists. 20 It's a good way of -- of not putting all 21 of the pressure on Toronto. It makes them a little less 22 accessible to the pressures of -- of government as well, 23 because you move some of your eggs outside of just 24 government. 25 It takes advantage of the physical
1401 facilities in -- in a number of other locations. And the 2 hospital morgues were being redeveloped at that point in 3 time in the province, and I had spent a lot of time with 4 the Ministry of Health to try to ensure, in fact, that -- 5 that we would build good morgues and -- and it was a good 6 way of using Ministry of Health money instead of money I 7 didn't have to get better facilities, so. 8 It -- it was sort of -- I viewed it as a 9 win, win, and it would increase the quality of forensic 10 pathology in the province, and hopefully the supply, 11 because they were all set out in teaching centres, so we 12 would be running the residents and the interns through 13 these. 14 And hopefully get them interested in -- 15 for the future. 16 COMMISSIONER STEPHEN GOUDGE: The 17 Regional Morgues were all to be at teaching hospitals? 18 DR. JAMES YOUNG: Well, they were 19 certainly set up initially with that idea, that's right. 20 They were in Ottawa, they were in -- in London -- 21 COMMISSIONER STEPHEN GOUDGE: London. 22 DR. JAMES YOUNG: -- and -- 23 COMMISSIONER STEPHEN GOUDGE: And then 24 eventually Kingston. 25 DR. JAMES YOUNG: -- Kingston. And --
1411 COMMISSIONER STEPHEN GOUDGE: And 2 Hamilton? 3 DR. JAMES YOUNG: -- Hamilton. Yep. 4 They were set-up -- and Sick Kids. They were all set-up 5 with the idea they would be connected with universities 6 and teaching hospitals. 7 8 CONTINUED BY MR. BRIAN GOVER: 9 MR. BRIAN GOVER: Right. And I notice, 10 returning to the memorandum that covered the proposal of 11 the MB20. You say in the second paragraph -- this is 12 PFP057563: 13 "Situations such as the current 14 construction of a new morgue facility 15 in Ottawa make this the ideal time to 16 seriously consider these proposals." 17 DR. JAMES YOUNG: Exactly. I've been -- 18 I've been trying to -- as the construction's coming on, 19 that's the ord -- part of the order of is they come on. 20 So they were building a new morgue in the Ottawa Heart 21 Institute. They had an interest. They had people there. 22 Now I've got to convince government to get 23 the money in there quickly. 24 MR. BRIAN GOVER: Right. Now, I'd like 25 to turn to Charles Smith in particular. And in large
1421 measure, in response to a question from me a few moments 2 ago, you told us what Charles Smith was like. 3 But I don't know if anyone has asked you 4 that question directly, Dr. Young? From your dealings 5 with Charles Smith, what was he like? 6 DR. JAMES YOUNG: I mean, besides the 7 frustration of -- of not producing reports, but 8 otherwise, he was quite agreeable. He was bright. He 9 came across as somebody that was confident and -- and 10 competent, without being boastful or -- you know, he 11 didn't -- he didn't have strong airs of -- he was viewed 12 for -- and I can't explain it to you why a -- I mean, his 13 -- his -- he was viewed as being very ethical and -- and 14 principled. 15 And people were aware that -- that he had 16 a strong faith, but -- but he didn't wear that on his -- 17 on his sleeve, but people were aware of it, and it sort 18 of -- you know, if you watched him you -- you would -- 19 you would know that. And I can't -- I'm -- I'm afraid I 20 can't put words to it any better than that, that that -- 21 that was sort of the way you viewed him. 22 MR. BRIAN GOVER: Now, Doctor, you've 23 been asked questions about the Fifth Estate program, and 24 to what extent did you become aware of comments made by 25 Mary Case on that program?
1431 DR. JAMES YOUNG: I didn't. I knew that 2 Mary Case had -- had been interviewed for it because she 3 told me when I saw her, I think, the next year at the 4 American Academy of Forensic Science. She just said -- 5 and the conversation I recall -- was she was sort of 6 surprised that a film crew would be sent to follow her 7 around. 8 And -- so she said, Boy, I was surprised 9 they went to all of that trouble. That was the extent of 10 the conversation. In past -- in times since then, 11 occasionally she said, Oh, I hear that there are still 12 issues and there's still discussions, and I believe I 13 told her that sh -- this coming year that the commission 14 was going to be held. 15 So she's -- she was aware of that, but we 16 -- we never discussed what she had said on the broadcast 17 specifically. She knew I knew her report, and I -- at 18 one time I told her that I agreed with her report and 19 that was what we had -- had keyed off and -- and that was 20 the accepted report in the office. 21 And I think that's -- that's essentially 22 everything that we -- that the two (2) of us have 23 discussed. 24 MR. BRIAN GOVER: Did she ever tell you 25 that in her view Dr. Smith had given irresponsible
1441 testimony -- 2 DR. JAMES YOUNG: No. 3 MR. BRIAN GOVER: -- in the Nicholas 4 case? 5 DR. JAMES YOUNG: No. No, we didn't have 6 that kind of depth of conversation of -- about it. I 7 didn't ask her because I hadn't seen it, and I knew -- 8 and she didn't mention it either. 9 MR. BRIAN GOVER: Had you been made aware 10 of that, what would you have done? 11 DR. JAMES YOUNG: Well, I probably would 12 have asked her more on what she felt about it. And then 13 -- and taken -- you know, decided from then what to do. 14 But the Nicholas case, to be fair, would -- I knew there 15 were problems. 16 I'd accepted there were problems in that 17 case, and I -- I can't say to you that -- you know, with 18 a retroscope I still don't know -- you know, depends what 19 she told me and how it was what I would have done. 20 I just, you know -- I don't -- you know, I 21 don't like to speculate. It's real easy for him to say, 22 I would have done everything differently. I -- you know, 23 I don't know that that's true. I don't -- I was in -- 24 not worried about the Amber case. 25 I was already aware and it was fig --
1451 factoring in the -- the Nicholas case. I would have been 2 more concerned about the Nicholas case, but I don't know 3 -- I don't honestly know what I would have done if I'd 4 had the conversation. I can't say. 5 MR. BRIAN GOVER: Fair enough. What were 6 your respective roles at the American Academy of Forensic 7 Science? 8 DR. JAMES YOUNG: Well, I had sat on a 9 whole number of committees on -- through the years, 10 including the Ethics Committee and the Long Term Planning 11 Committee. I served in all of the executive positions on 12 the way through because it -- it cert -- it narrows down 13 -- it's about six/seven thousand (6,000/7,000) person 14 organization. 15 And one (1) person leads it, who 16 ultimately is the president, so I sat in pretty well 17 every chair along the way till I became the president. 18 MR. BRIAN GOVER: And Mary Case sat on 19 the Ethics Committee, as well, I understand? 20 DR. JAMES YOUNG: She sat on it after me. 21 I -- I sat on it until I joined the executive and then 22 she sat -- she may have even taken my place -- I don't 23 know, but she -- but I did a lot of work with the Ethics 24 Committee. During my year as president, one (1) of the 25 things I undertook was a full review of the ethics
1461 policies and standards of the Academy in view of revising 2 them and changing them and -- so that's actually a review 3 that's being completed this year. 4 But I put the Ethics Committee and the 5 Long Term Planning Committee together for several 6 weekends when we went through all of this, so we met in - 7 - in Chicago a couple of times and spent the whole 8 weekend going through all of this. 9 And Mary Case was there; Long Term 10 Planning Committee was there, and I was -- I was there 11 first as president and now as Chair of the Long Term 12 Planning Committee. 13 MR. BRIAN GOVER: Doctor, did you ever 14 receive requests from any of the stakeholders in the 15 Criminal Justice System for you to conduct a full scale 16 review of Dr. Smith? 17 DR. JAMES YOUNG: No. No, I -- I didn't, 18 and no one was thinking in those terms. The -- or they 19 weren't talking to me in terms of thinking in those 20 terms. But as I said earlier this morning, until the 21 Meadows review, no one in the world was doing a review of 22 that nature. 23 I -- it -- to the best of my knowledge, 24 had never been done before. 25 MR. BRIAN GOVER: Now, in your various
1471 roles as Assistant Deputy Minister of the Public Safety 2 Division, as Chief Coroner of Ontario, did you have 3 regular contact with senior members of the Crown and 4 defence bars? 5 DR. JAMES YOUNG: I -- I was at -- not 6 every year but most years I was at the Crown Attorneys' 7 Conference. I lectured at Crown School of Law in the 8 summer quite a number of times. I knew the Crown 9 attorneys. I frequently went to retirements of -- of 10 both police and Crown attorneys. I sat with senior 11 police and Crown attorneys and members of AIDWYC, like 12 Mr. Lockyer, on the Centre for Forensic Science Advisory 13 Council, and I chaired that, and all of those parties 14 were part and parcel of that. 15 So I had -- I think I was well-known to 16 everyone and I was frequently in contact with these 17 groups. 18 MR. BRIAN GOVER: And I understand that 19 throughout the vast majority of your tenure as Chief 20 Coroner, you had Chief Counsel assigned to your Office, 21 who was seconded from the Criminal Law Division of the 22 Ministry of the Attorney General. 23 Is that correct? 24 DR. JAMES YOUNG: That's true. 25 MR. BRIAN GOVER: And those were Mr.
1481 Wolski, as he then was, and Mr. O'Marra. 2 Is that right? 3 DR. JAMES YOUNG: That's right. 4 MR. BRIAN GOVER: Did either of them ever 5 tell you that they had been contacted by Crown counsel 6 complaining about Dr. Smith's testimony? 7 DR. JAMES YOUNG: No. 8 MR. BRIAN GOVER: And just turning to a 9 different issue for the time being. 10 Can you express your view with regard to a 11 full-scale review of pediatric cases in this Province? 12 DR. JAMES YOUNG: Yes, I -- I can 13 understand how people might think about doing that; I 14 guess I would throw up something of a caution flag in 15 doing it. 16 I think -- first of all, I -- as I've 17 said, I take issues and I try to make them simple, so I 18 say, to what purpose? The first -- the review that's 19 been done is still being digested and no one is that sure 20 what to do with some of the results of it. So until 21 that's even completed, to start on a further review when 22 we don't know the results of the first review and we have 23 no idea whether there's one (1) wrongful conviction or 24 two (2) wrongful convictions or ten (10) wrongful 25 convictions, to me is somewhat premature.
1491 Then there's the issue of how you do it 2 and how you pay for it. And paying for it is not the 3 real issue but how you do it and how you find the 4 resources is an issue. 5 To do it and do it properly certainly 6 means then finding people willing to do it and it means 7 getting all of the transcripts and doing it like the 8 other review was done, with transcripts, with slides and 9 with the reports. But when you start to do that and you 10 start to find the manpower, in reality as soon as you do 11 it, you know, with one (1) person and one (1) person 12 only, you're actually introducing the bias of that one 13 (1) person. 14 If you were really going to do it 15 properly, you'd do it with two (2) independent people 16 doing it so that you had an idea whether in fact you just 17 happen to hit one (1) person who disagreed with whoever 18 had done the study or whether -- whether in fact, you had 19 two (2) people who were on one (1) side quite far from 20 the person who did the study. 21 Even by doing it as -- it's second-best to 22 do it with one (1) person reviewing and then a committee, 23 but that brings a bias in because the person who has done 24 the review then presents it to the committee, they know 25 the most about the case, and they've already -- in
1501 science, have already influenced those people to some 2 degree. It's certainly better than only having one (1) 3 person review it but it's -- it's not a perfect world. 4 But I think beyond the resource issues and 5 everything else, the question or the issue in my mind, as 6 well, is: If you have no evidence of anyone else having 7 the problem and you embark on this type of thing, you can 8 do it and you can say, Well, that's to build confidence 9 in the Office of the Chief Coroner. 10 But it's -- it's a bit akin to saying, 11 Well, a hospital has a bad surgeon so we're going to stop 12 and we're going to review all of the work of every other 13 surgeon in the hospital. There is no link between that 14 and there is no correlation and there is no issue at this 15 point with anyone else's work. 16 And the downside of doing it, and the real 17 risk in doing it, is if I was a pathologist who had done 18 that and done it in good faith and gone through the 19 trials, nobody was raising an issue, and now you start to 20 say I'm going to review all of your work, I would not 21 only be professionally insulted but I would really re- 22 evaluate whether I was going to stay and do this work. 23 If -- if that's going to be what happens 24 and that's going to be the way the -- the issues are 25 dealt with in the Province. I'm not sure that a lot of
1511 people need that aggravation on an ongoing basis, and so 2 I -- I -- my caution would be -- my largest caution is -- 3 of all would be, you may end up doing more -- more damage 4 to the system because you'll cut out the pool of people, 5 not just to do the cases, but to do review and defence 6 work, as well. 7 The more of these sort of massive things 8 that are undertaken -- which are hard to interpret anyway 9 -- the more that they're undertaken, the more skiddish 10 people are going to get and eventually we're going to 11 have a boomerang effect. And we saw it in England, and 12 we'll certainly see it in -- and are probably already 13 seeing it in Ontario. 14 I'm out of it, so it's not going to make 15 any difference to me, but it sure will to whoever is the 16 new chief coroner. 17 MR. BRIAN GOVER: Doctor, my second last 18 question of you is this: Would a change to a medical 19 examiner base system help with the oversight and 20 supervision of pathologists? 21 DR. JAMES YOUNG: No, the -- there needs 22 to be very, very good supervision of the pathologist. 23 There's no question of that and -- because of the 24 technical nature. That is the role of the chief forensic 25 pathologist; that's why the position's there; that's what
1521 needs to be done. 2 And I -- I'm -- in saying that and not 3 being the least bit critical of -- of, for example, Dr. 4 Chiasson, because Dr. Chiasson and I built the system 5 with the money we had in the way that we did to try to 6 make sure that we were increasing the supervision. But I 7 do admit and readily say through my recommendations, it 8 can be improved. But that's the place for it and that's 9 what exists. 10 The problem here was the supervision of a 11 pathologist. You don't fix the problem by -- by 12 rebuilding and throwing out a whole system and throwing 13 out all the good parts of the system. You've got a very 14 good and competent chief forensic pathologist, you -- the 15 question or the issue will be watching him and watching 16 whoever does the pediatric cases, not just throwing it 17 somewhere else or having them report to somebody who 18 knows nothing about what they're doing. That's solving 19 the wrong problem, in my view. 20 MR. BRIAN GOVER: My last question, Dr. 21 Young. It might be observed that all but the Amber case 22 arose during your watch as Chief Coroner of Ontario. 23 What do you have to say about that? 24 DR. JAMES YOUNG: Well, the -- certainly, 25 even the Amber case -- I mean, did -- and I've -- I've
1531 given this -- this whole thought -- this whole issue a -- 2 a great deal of thought because I didn't do this work 3 without believing in it and being very concerned about 4 it. 5 And I -- it -- it distresses me 6 tremendously to think that during my watch and during my 7 time that these thing happened and -- and it -- it -- I 8 really do apologize for the miscarriages of justice. I 9 don't know how many of them are -- there are, but there 10 would certainly appear to be at least one (1). 11 I recognize that -- that people may have 12 been wrongfully convicted. I recognize that people were 13 detained. And I recognize, as well, that people lost 14 their children either temporarily or permanently, so und 15 -- from a personal point of view and on behalf of the 16 office, during the time that I was -- that I was running 17 the office, I do apologize and I think we have to do 18 better. 19 I think the issues that face the 20 Commission are complicated and the solutions aren't as 21 simple as just saying, well, we'll fix this one (1) thing 22 or we'll do this one (1) thing or somebody wasn't doing 23 this. They're much, much more complicated than that to 24 me. 25 They involve all whole justice system and
1541 the solution has to be a justice system solution or it 2 just simply isn't going to work. Blaming a person or -- 3 it just -- and putting all the pressure on one (1) 4 person just simply isn't going to work. 5 We tried our best to build a system that 6 was world class and we succeeded in many ways. And much 7 of what we do, whether it's the memos, or the protocols, 8 or the reviews or all of the things are -- are as good or 9 better then anyone else in the world. 10 But we failed in some respects, and we 11 have work still to do. And I -- I accept that and it 12 accept the responsibility for that. 13 But it was done with the best of 14 intentions, and I think the best thing for the Commission 15 is to build on that success and -- and make sure that 16 these problems don't reoccur rather then getting lost in 17 whose fault was it before. I think that just -- that's 18 going to build resistence in people. 19 People are going to do things on a 20 defensive basis and I don't think people do things well 21 when they do it defensively. I think they have to 22 believe in what they do, and I think they have to 23 sometimes take chances. But they do it because they're 24 passionate about it not because they're trying to protect 25 themselves.
1551 And that's what we tried to do, and I 2 think it can be built on very successfully. So I hope 3 some of the recommendations in which you're learning will 4 help you in doing that, Commissioner. 5 COMMISSIONER STEPHEN GOUDGE: Thanks, Dr. 6 Young. 7 MR. BRIAN GOVER: Thank you, Dr. Young. 8 Thank you, Mr. Commissioner. 9 COMMISSIONER STEPHEN GOUDGE: Thanks, Dr. 10 Young. We will break now until two o'clock and resume 11 with you Ms. Langford. 12 13 --- Upon recessing at 12:45 p.m. 14 --- Upon resuming at 2:01 p.m. 15 16 THE REGISTRAR: All Rise. Please be 17 seated. 18 COMMISSIONER STEPHEN GOUDGE: Good 19 afternoon. Ms. Baron, you're next. 20 21 CROSS-EXAMINATION BY MS. ERICA BARON: 22 MS. ERICA BARON: Good afternoon, Dr. 23 Young. My name is Erica Barron. I'm one (1) of the 24 lawyers for Dr. Smith, and I have a few questions for you 25 this afternoon. I don't expect I'll be too long.
1561 I -- I think you've all ready got open in 2 front of you Volume VIII, Tab 78 -- 3 DR. JAMES YOUNG: I do. 4 MS. ERICA BARON: -- and that's 5 PFP129358. 6 And you talked a little bit in your 7 evidence earlier with Mr. Sandler about the review of 8 potentially homicidal cases by Dr. Chiasson, the review 9 of the post-mortem reports. 10 And I take it that that review arose out 11 of this policy that was issued on September 1st, 1995? 12 DR. JAMES YOUNG: That's correct. 13 MS. ERICA BARON: And it appears from the 14 document that this policy was provided to all 15 pathologists and coroners in Ontario? 16 DR. JAMES YOUNG: Yes. 17 MS. ERICA BARON: And I take it that 18 included the pathologists at the Hospital for Sick 19 Children? 20 DR. JAMES YOUNG: Yes. 21 MS. ERICA BARON: And Dr. Chiasson, who 22 was going to be doing these reviews, you've told us was 23 trained as a forensic pathologist? 24 DR. JAMES YOUNG: Yes, he was. 25 MS. ERICA BARON: And he was sent by your
1571 office to the United States to get that training before 2 he took over the role as ch -- of Chief Forensic 3 Pathologist in Ontario? 4 DR. JAMES YOUNG: Actually with -- by us, 5 and by -- the University of Toronto paid part of it as 6 well, so it was jointly agreed by Dr. Silver, who was 7 Chief of Pathology for the University and myself, that we 8 would co-sponsor Dr. Chiasson. 9 MS. ERICA BARON: And am I right that he 10 was one (1) of the few pathologists working for the 11 Coroner's Office in the 1990s who had that forensic 12 training? 13 DR. JAMES YOUNG: Yes, I -- I think 14 that's right. That's right -- that's correct. 15 MS. ERICA BARON: Okay. And am I also 16 right that at that time, none of the pathologists at the 17 Hospital for Sick Children who were doing work for the 18 Coroner's Office had that training? 19 DR. JAMES YOUNG: No, I'm not aware that 20 any did. 21 MS. ERICA BARON: Okay. And -- and that 22 remained the case until Dr. Chiasson moved to the 23 Hospital for Sick Children? 24 DR. JAMES YOUNG: Yes, I think it would. 25 Yes.
1581 MS. ERICA BARON: Okay. Now, this policy 2 provides in it that the purpose of the review will be to 3 identify any major forensic pathologic issues that may 4 need to be addressed prior to the final release of the 5 report. 6 I -- I take it that you understood that 7 that's what -- what Dr. Chiasson was doing when he 8 reviewed the reports? 9 DR. JAMES YOUNG: Yes. 10 MS. ERICA BARON: And you will recall -- 11 I -- I think you'll recall -- that Mr. Sandler suggested 12 to you on Friday that -- asked you a series of questions 13 suggesting that Dr. Chiasson's oversight of Dr. Smith in 14 particular may not have been adequate in view of the fact 15 that he was more junior to Dr. Smith and had trained with 16 Dr. Smith? 17 DR. JAMES YOUNG: Yes. I don't think I 18 ever answered that. I -- he made that statement; I don't 19 think I ever responded to it. 20 MS. ERICA BARON: And -- and I want to 21 ask you a couple of follow-up questions on that. 22 Did Dr. Chiasson ever say to you that he 23 was not willing to do this review of Dr. Smith's work 24 because he was more junior to Dr. Smith? 25 DR. JAMES YOUNG: No. I -- if I had any
1591 conversation with Dr. Chiasson, it was -- would be not 2 being comfortable when pediatric -- knowing a huge amount 3 about pediatric pathology, but the issue of 4 junior/senior, I don't think I -- I ever recall any -- 5 any discussion about that. 6 But when it -- at one point when we asked 7 Dr. Chiasson if he would do cases at -- at Sick Kids, he 8 wasn't interested, and -- and I think that was when there 9 was some discussion as to whether or not he was 10 comfortable at that time in doing pediatric cases. 11 But it -- it -- the discussion probably 12 wasn't in relation to this memo. It was in relation to 13 him doing cases at Sick Kids at a -- at a later date. 14 MS. ERICA BARON: Okay. And I would be 15 right in saying that Dr. Chiasson would have, in the 16 course of the reviews he did generally under this policy, 17 reviewed many pathologists who were senior to him; 18 reviewed their post-mortem reports? 19 DR. JAMES YOUNG: Yeah. I -- I don't see 20 years of seniority as being necessarily the -- the issue. 21 I -- I -- it certainly -- I wasn't aware 22 of it, but it wouldn't be an issue in my mind. 23 MS. ERICA BARON: And -- 24 DR. JAMES YOUNG: You know, when I 25 started as the Chief Coroner, I -- or as the -- the
1601 Regional Coroner for Toronto, I was much younger and much 2 less experienced than some of the people I supervised. 3 MS. ERICA BARON: Okay. And am I right 4 that, in view of what you've all ready said, Dr. Chiasson 5 never expressed the view to you that he was intimidated 6 by Dr. Smith in any way? 7 DR. JAMES YOUNG: No, I don't recall us 8 ever having a discussion about -- about his supervision 9 of -- of the autopsies by Dr. Smith, but certainly he -- 10 he didn't express any views in terms of intimidation, no. 11 MS. ERICA BARON: Or that he felt in any 12 way like he wasn't able to challenge Dr. Smith's post- 13 mortem reports if he didn't agree with the forensic 14 conclusions that had been reached? 15 DR. JAMES YOUNG: I don't think I ever 16 had a discussion like this, so I don't know whether -- 17 what his thinking is, but I -- I recall no -- no 18 conversation about these things specifically with Dr. 19 Chiasson. 20 MS. ERICA BARON: I want to now turn to a 21 slightly different area, Dr. Young, and that's, some of 22 the challenges that you've told us about in obtaining 23 assistance to do pathology work and -- and to provide 24 opinions in difficult cases. 25 If you could turn up Volume VII, Tab 33,
1611 and this is PFP032320. 2 DR. JAMES YOUNG: 33? 3 MS. ERICA BARON: 33, yes. 4 DR. JAMES YOUNG: Okay. 5 MS. ERICA BARON: And I think you've also 6 given some evidence previously about this memorandum 7 which was issued in April -- on April 12th, 1999, 8 entitled "Forensic Pathology Pitfalls". 9 And if you could turn forward to page 3 of 10 that document -- 11 DR. JAMES YOUNG: Okay. 12 MS. ERICA BARON: -- I want to spend a 13 little bit of time talking about the section on 14 consultations. 15 DR. JAMES YOUNG: Yes. 16 MS. ERICA BARON: And in this memorandum 17 you expressed -- the office expressed some concern that 18 these consultations were being relied upon by 19 pathologists to reach conclusions, but no formal written 20 reports were obtained by this -- the individuals who had 21 been consulted. 22 DR. JAMES YOUNG: Yes. 23 MS. ERICA BARON: And I take it from what 24 you've told us already that this was a fairly common 25 practice and a common concern in -- in the work that was
1621 being done for the Coroner's Office? 2 DR. JAMES YOUNG: It -- it's -- 3 essentially it's a -- actually a doctor's habit, I mean 4 that's how we treat ourselves; we run around the hospital 5 and ask our colleagues whether we've had a heart attack 6 or we have cancer. They say, No, and we say, Okay, and 7 we go on with our life. 8 It's a -- it's not necessarily advisable, 9 but it's the way we -- it's partly the way we're trained 10 and we operate and we -- we're -- we're often asking the 11 advice of people without actually writing it down. But 12 in -- in the particular, in the Nicholas case, it had 13 caused considerable problems, so we realised we needed to 14 formalise it more. But it certainly was not uncommon in 15 the way doctors in general behave. 16 MS. ERICA BARON: Okay. And I want to 17 take you to a specific example, being the Dustin case. 18 So I'm now wondering if you can take Volume I of the 19 overview reports. And you'll find the Dustin report at 20 Tab 5 in that volume; it's PFP142940. 21 DR. JAMES YOUNG: I must have the wrong 22 one here. Tab -- Tab 5 of -- 23 COMMISSIONER STEPHEN GOUDGE: It's a 24 white coloured -- a big white coloured volume -- 25 MS. ERICA BARON: Yes, sorry.
1631 COMMISSIONER STEPHEN GOUDGE: -- Dr. 2 Young. 3 DR. JAMES YOUNG: Tab -- sorry, the tab 4 again? 5 6 CONTINUED BY MS. ERICA BARON: 7 MS. ERICA BARON: Tab 5. 8 DR. JAMES YOUNG: Okay. Now, I -- I must 9 say, I've never read this report. 10 MS. ERICA BARON: No, and -- and -- 11 DR. JAMES YOUNG: I'm completely 12 unfamiliar with it, so -- 13 MS. ERICA BARON: No, and I'll -- I'll -- 14 there's just a couple of brief paragraphs that I want to 15 take you to. 16 DR. JAMES YOUNG: Okay. 17 MS. ERICA BARON: So, this case, and I'll 18 just give -- give everyone a bit of context, was a two 19 (2) month old who died in Belleville after being brought 20 to the hospital sign -- the hospital with vital signs 21 absent, and he was resuscitated and died about a day 22 later. 23 So that's sort of the background. I 24 recognise you're not familiar with the facts of this 25 case, but what I can also tell you is that the -- the --
1641 Dr. Nag was the pathologist who did the post-mortem, the 2 original post-mortem. 3 Are you familiar with Dr. Nag? 4 DR. JAMES YOUNG: Not really. I've seen 5 his name before, but beyond that, no. 6 MS. ERICA BARON: I -- I think it's a 7 women. 8 DR. JAMES YOUNG: Oh. 9 MS. ERICA BARON: I'll be corrected if 10 I'm wrong, but -- 11 DR. JAMES YOUNG: There we go. 12 MS. ERICA BARON: Okay. 13 DR. JAMES YOUNG: I've just proved it. 14 MS. ERICA BARON: Fair enough. And I 15 gather the Dr. Nag was the -- the local pathologist 16 practising in Belleville -- 17 DR. JAMES YOUNG: Yes. 18 MS. ERICA BARON: -- and was not a 19 pediatric pathologist. 20 DR. JAMES YOUNG: Fair enough. 21 MS. ERICA BARON: And -- and you'd agree 22 that often times when post-mortems are done by 23 pathologists in local hospitals, they're often done by 24 just the general pathologist without any pediatric 25 experience?
1651 DR. JAMES YOUNG: They may have varying 2 amount of pediatric experience, but seldom would they be 3 a pediatric pathologist -- 4 MS. ERICA BARON: Okay. 5 DR. JAMES YOUNG: -- which was of course 6 our reason for moving more and more of the cases to Sick 7 Kids because of the recognition that these are the most 8 difficult cases being done with people -- by people with 9 little -- little experience. 10 MS. ERICA BARON: And she gave testimony 11 at the trial in this case and I want to take you to a 12 couple of those passages. 13 So if you can turn to page 68. Now this 14 is the page that's in the middle of the page, not in the 15 right corner of the page. It's paragraph 179. 16 DR. JAMES YOUNG: Yes. 17 MS. ERICA BARON: So you'll see that the 18 paragraph reads as follows: 19 "Dr. Nag testified that prior to 20 submitting her report, she was provided 21 with an opinion by pediatric 22 pathologist Dr. Allen Fletcher on the 23 lung. Dr. Nag indicated that Dr. 24 Fletcher had looked at the sections 25 and, [quote], 'Since he's the pediatric
1661 pathologist, he indicated to her if 2 there's anything that she missed.' [end 3 quote] Dr. Fletcher did not provide a 4 report as Dr. Nag and Fletcher, 5 [quote], 'just have this collegial -- 6 collegial sort of arrangement'." 7 And then turning forward to paragraph 181, 8 Dr. Nag went on during her cross-examination and said: 9 "She had spoken with at least five (5) 10 doctors prior -- prior to certifying 11 the cause of death. When asked their 12 names she initially responded by saying 13 that she did not know if it would be 14 appropriate because, [quote] 'They 15 weren't really consults'." End quote. 16 Oh, sorry: 17 "They didn't provide a written opinion 18 and, you know, unless they do that then 19 people aren't willing to stand by what 20 they say." End quote. 21 She then provided the following names: Dr. 22 Fletcher; Dr. David Robinson, the former head of 23 neuropathology at KGH, which I think is Kingston General 24 Hospital; and Dr. Ford. 25 DR. JAMES YOUNG: Mm-hm.
1671 MS. ERICA BARON: Recognizing that you'll 2 -- you weren't familiar with this case, I take it that 3 this story that Dr. Nag has related, or this -- this 4 explanation she's provided doesn't come as any surprise 5 to you? 6 DR. JAMES YOUNG: No, it's -- it's the 7 reason that in the pitfalls memo that we're trying to 8 codify this. And there's a line; asking someone whether 9 or not a concept or an idea you have makes sense is one 10 (1) thing. When you're actually asking for their area of 11 expertise and -- and you may be relying on that to -- to 12 reach the conclusion and ultimately testify in court, I 13 think that's -- crosses the line where we -- where we 14 were saying the people you need to -- you need to get 15 that written down. 16 But the practice itself, no. You know, 17 it's the way that medicine is practised everyday in this 18 Province and in hospitals. But it -- for medicolegal 19 reasons we have to be a little bit more precise. 20 MS. ERICA BARON: And I take it it was -- 21 wouldn't be -- you wouldn't describe it as an isolated 22 problem to the doctors at Belleville Hospital, for 23 instance? 24 DR. JAMES YOUNG: No, that's why it's in 25 the Pitfalls, to remind everybody that it's not a good
1681 forensic practice. 2 MS. ERICA BARON: And indeed, am I right 3 in understanding that it's not just the individuals who 4 are consulted by pathologists doing work for the 5 Coroner's Office that are sometimes reluctant to give 6 opinions, but you've even had problems with pathologists 7 themselves being reluctant to get involved in criminal 8 cases? 9 DR. JAMES YOUNG: It's a -- it's a 10 growing problem that people don't want to get involved in 11 things that are going to cause them a lot of -- court 12 appearances. Frighten doctors in general and they take a 13 lot of time, they're often -- you know, involve long 14 periods away and cancelling things, so it's a -- 15 generally it's a -- it's a problem. People don't want to 16 get involved in things that are going to get them into 17 problems. 18 And I -- I gave the other example, you 19 know, with the -- with the College. We sought an 20 opinion, and the person along with many others are -- are 21 facing, you know, review by the College. And that just 22 doesn't -- you know, in the end then people just say, I 23 don't want to get involved. 24 MS. ERICA BARON: I'm wondering on -- to 25 that end, if you could turn up Volume II. This is of the
1691 regular volumes, not the overview reports, Tab 25. This 2 is PFP057144. 3 DR. JAMES YOUNG: Not the overview? 4 MS. ERICA BARON: No, not the overview. 5 The regular Volume II. 6 COMMISSIONER STEPHEN GOUDGE: It's a 7 black covered one. 8 DR. JAMES YOUNG: Black cover, okay. 9 10 CONTINUED BY MS. ERICA BARON: 11 MS. ERICA BARON: Tab 25. 12 DR. JAMES YOUNG: Before I finish, I'll 13 probably figure out what all these titles mean, but -- 14 okay. 15 MS. ERICA BARON: So sorry, it's actually 16 the next document, Registrar. That's it. 17 DR. JAMES YOUNG: At Tab 26? 18 MS. ERICA BARON: Tab 25. No, I'm sorry, 19 it was just for the Registrar. 20 DR. JAMES YOUNG: Oh, okay. 21 MS. ERICA BARON: So this is a letter 22 dated July 2nd, 1997, addressed to you. 23 DR. JAMES YOUNG: Yes. 24 MS. ERICA BARON: And it's from the 25 Sudbury Regional Police.
1701 DR. JAMES YOUNG: It's from the Chief of 2 Police, I believe. 3 MS. ERICA BARON: And it relates to a 4 doctor by the name of Dr. Chen? 5 DR. JAMES YOUNG: Mm-hm. 6 MS. ERICA BARON: And do you recall 7 receiving this letter? 8 DR. JAMES YOUNG: Yes. 9 MS. ERICA BARON: And -- and so I'm -- 10 I'm just going to summarize it and if you think I'm doing 11 it inaccurately -- 12 DR. JAMES YOUNG: Sure. 13 MS. ERICA BARON: -- tell me otherwise. 14 But the Sudbury Police are expressing to you that they 15 are concerned that Dr. Chen is not willing to give 16 opinions in cases where there's a suspicion of 17 criminality because he's actually afraid for his own 18 personal security. 19 DR. JAMES YOUNG: Mm-hm. 20 MS. ERICA BARON: That's a fair accura -- 21 that's a fair representation of -- of the concern that 22 was expressed? 23 DR. JAMES YOUNG: Yes. 24 MS. ERICA BARON: And they were actually 25 asking you to find a different pathologist to do the
1711 work, as a result? 2 DR. JAMES YOUNG: Mm-hm, yes. 3 MS. ERICA BARON: And is it fair to say 4 that this is not the normal concern expressed by the 5 pathologists who are unwilling to get involved in -- in 6 cases of this nature; a fear for personal safety? 7 DR. JAMES YOUNG: No, it -- it certainly 8 -- it's at one (1) -- it's at one (1) end of the 9 concerns. 10 MS. ERICA BARON: Right. 11 DR. JAMES YOUNG: But -- but it's -- 12 it's an example, an extreme example, of what I had talked 13 about, the reluctance of people to get involved. 14 MS. ERICA BARON: And the other example 15 you talked about is the fact that criminally suspicious 16 cases are -- tend to be time consuming for pathologists? 17 DR. JAMES YOUNG: Absolutely. 18 MS. ERICA BARON: And not only are they 19 time consuming, but they tend to be very high profile 20 cases, in general? 21 DR. JAMES YOUNG: They're high profile 22 and they -- they go to court and they're adversarial and 23 they involve, you know, what could at least be described 24 usually as a vigorous cross-examination. 25 MS. ERICA BARON: And you also told us in
1721 your testimony that they often require pathologists to 2 meet with the police and the -- the Crown on numerous 3 occasions prior to the preliminary hearing and the trial, 4 for instance? 5 DR. JAMES YOUNG: The police, the Crown 6 attorney, and the defence, if the defence so wishes. 7 MS. ERICA BARON: And indeed your office 8 actively encourage pathologists to participate in those 9 types of meetings? 10 DR. JAMES YOUNG: Yes. 11 MS. ERICA BARON: And am I correct -- you 12 talked about this a little bit with Mr. Gover -- that the 13 compensation in the 1990s for performing an autopsy was 14 in the range of about $500? 15 DR. JAMES YOUNG: I don't think it even 16 started the '90s that high. I think it got there by the 17 end of the '90s. 18 MS. ERICA BARON: Okay. 19 DR. JAMES YOUNG: I -- I can't remember 20 exactly, but I think it always was a -- an issue in 21 relation to the coroner's fees, as well. You know, how 22 many multiples of a coroner's fee -- and the coroner gets 23 out of bed in the middle of the night -- how many 24 multiples of it is a pathologist worth doing it in the 25 light of day. So it was always a sore point with both
1731 camps. 2 MS. ERICA BARON: And am I right, 3 whatever that fee was, that the fee was meant to -- was 4 paid to require the performance of the autopsy, the 5 review of the histology, and preparing the report itself? 6 DR. JAMES YOUNG: Yes, all -- all those 7 elements. 8 MS. ERICA BARON: Okay. What 9 compensation, if any, was provided by your office to fee- 10 for-service pathologists for participating in case 11 conferences with police or the Crown? 12 DR. JAMES YOUNG: We -- once the case got 13 to that point then the -- any arrangement for any other 14 time or court appearances was between the Crown attorney 15 and the -- and the pathologist. We didn't pay at that 16 point because we -- we were -- it was out of our -- our 17 realm of what we were controlling at that point. 18 MS. ERICA BARON: And do you know whether 19 the Crown compensated pathologists fee-for-service 20 pathologists for those pre-trial proceedings rather than 21 attending the trial itself? 22 DR. JAMES YOUNG: I don't know with 23 certainty, but having with the Government a long time, I 24 would -- I would venture I guess that they probably 25 didn't.
1741 COMMISSIONER STEPHEN GOUDGE: Just to be 2 absolutely clear, Dr. Young, the fee-for-service took the 3 service up to the point of the post-mortem report having 4 been filed with the coroner's office? 5 DR. JAMES YOUNG: Exactly, exactly. And 6 if there was any appearance of work after that, that's in 7 addition to that. 8 MS. ERICA BARON: Thank you, Dr. Young, 9 those are my questions. 10 DR. JAMES YOUNG: Thank you. 11 COMMISSIONER STEPHEN GOUDGE: Thank you, 12 Ms. Baron. 13 Mr. Campbell...? 14 15 CROSS-EXAMINATION BY MR. PHILLIP CAMPBELL: 16 MR. PHILLIP CAMPBELL: Good afternoon, 17 Dr. Young. I represent a -- a group of clients who were 18 charged and convicted in cases where Dr. Smith gave an 19 opinion on pathological issues, usually relevant to the - 20 - or related to the cause of death. 21 I want to begin at the level of detail and 22 perhaps move to the bigger picture as I go on. You were 23 taken, in considerable detail, by Mr. Sandler through a 24 history that begins with Amber's case in 1991 and runs 25 through a kind of climax in January of 2001, ten (10)
1751 years later, with the withdrawal of charges in Sharon's 2 case and Tyrell's case. 3 And along the way there was emphasis on 4 Jenna's case and Nicholas' case and Sharon's case at the 5 end. 6 Is that a fair summary of -- of your 7 examination-in-chief? 8 DR. JAMES YOUNG: Well, it actually 9 begins for me in 1988. I mean, my significant 10 involvement actually was in -- in Amber's case was 1988. 11 So it would begin in 1988 and -- and otherwise, your 12 characterization, I agree, Mr. Campbell. 13 MR. PHILLIP CAMPBELL: And you gave 14 reasons why those cases, individually and taken together, 15 didn't crystalize for you into a state of alarm about Dr. 16 Smith, that led to some comprehensive addressing of his 17 work, rather than an individual response. 18 Is that fair to say? 19 DR. JAMES YOUNG: It led to action but it 20 didn't lead to a review; it led to him not doing cases. 21 MR. PHILLIP CAMPBELL: It led by 2001 to 22 him -- 23 DR. JAMES YOUNG: Yes. 24 MR. PHILLIP CAMPBELL: -- not doing 25 cases?
1761 DR. JAMES YOUNG: Yes. 2 MR. PHILLIP CAMPBELL: And then by 2004, 3 to his loss of all privileges and indeed his entire 4 relationship with your office? 5 DR. JAMES YOUNG: Absolutely. 6 MR. PHILLIP CAMPBELL: All right. But 7 what we're looking at, to some degree here and through 8 your evidence, is whether that process had to take 9 thirteen (13) years. 10 And you understood that to be a subtext of 11 the earlier questioning? 12 DR. JAMES YOUNG: Mm-hm. 13 MR. PHILLIP CAMPBELL: All right. And 14 I'm going to deal with just a few of those cases, three 15 (3) of them at -- with a little bit of particularity, and 16 firstly, the question of reading Justice Dunn's judgment 17 in Amber. 18 And I took your comments late in your 19 testimony in-chief, about your own approach to executive 20 office as -- as some part of the explanation for that; 21 that is, that you tend to look at the big picture and 22 delegate mastery of the details to others. And that's a 23 well-known and -- 24 DR. JAMES YOUNG: Yeah. 25 MR. PHILLIP CAMPBELL: -- legitimate
1771 approach to -- 2 DR. JAMES YOUNG: Yeah. Yeah, you're 3 absolutely right and that's a fair characterization. 4 I guess in the case of -- of Justice 5 Dunn's, I simply, for a variety of reasons that I accept 6 are -- some responsibility for, didn't know it existed, 7 so -- and it never came to my attention. 8 MR. PHILLIP CAMPBELL: Well, I -- I said 9 I was going to get particular here and I -- 10 DR. JAMES YOUNG: Okay. 11 MR. PHILLIP CAMPBELL: -- I don't want to 12 let particulars go by if they might be important. 13 You did know a critical judgment existed, 14 I take it? 15 DR. JAMES YOUNG: No. No -- 16 MR. PHILLIP CAMPBELL: You didn't know -- 17 DR. JAMES YOUNG: -- I did not. 18 MR. PHILLIP CAMPBELL: -- that a -- 19 DR. JAMES YOUNG: No. 20 MR. PHILLIP CAMPBELL: -- judge had made 21 findings rejecting Dr. Smith's testimony? 22 DR. JAMES YOUNG: No. I knew that the 23 person was acquitted and that's all -- what I knew. 24 I did not know that there was a lengthy 25 judgment -- or a judgment or that there were findings. I
1781 knew there was an acquittal, that's what I knew. 2 MR. PHILLIP CAMPBELL: You didn't know 3 there was defence evidence called -- 4 DR. JAMES YOUNG: No. 5 MR. PHILLIP CAMPBELL: -- that was 6 accepted by a trial judge? 7 DR. JAMES YOUNG: No. I knew none of the 8 particulars. I didn't know when the trial went on. I 9 didn't hear the judgment until some period of time after. 10 My knowledge of it was -- what I knew was 11 that there was a defence expert who came and argued that 12 there was no such thing as Shaken Baby and that's all I 13 knew of the details of the trial; nothing more that I can 14 recall. 15 MR. PHILLIP CAMPBELL: We've looked at 16 the complaint of Nicholas' grandfather and we know that 17 he extracted -- 18 DR. JAMES YOUNG: Mm-hm. 19 MR. PHILLIP CAMPBELL: -- elements of the 20 critical -- 21 DR. JAMES YOUNG: Mm-hm. 22 MR. PHILLIP CAMPBELL: -- judgment by 23 Justice Dunn. 24 DR. JAMES YOUNG: Mm-hm. 25 MR. PHILLIP CAMPBELL: And we know that
1791 that document literally passed under gaze, correct? 2 DR. JAMES YOUNG: Parts of that document 3 did; parts of it I didn't -- I believe I didn't read. 4 MR. PHILLIP CAMPBELL: Well -- 5 DR. JAMES YOUNG: And I explained wh. I 6 didn't read them because I couldn't consider them in my 7 judgment. That's not -- it's very, very common for 8 people to send letters to the Chief Coroner detailing in 9 great detail something and starting to include other 10 cases, but they've taken them most often from clippings 11 and from heaven knows where. 12 And I can't consider those as part any 13 more than in an inquest. I've refused standing to 14 families coming to an inquest and saying this death is 15 similar to my loved one's death and I can't -- you can't 16 do -- you can't consider it. 17 So for that reason, I don't believe I ever 18 read that part of it. It -- I would have looked at, 19 said, This is about a different case, and not read that 20 part. 21 I fully acknowledge it was there. I fully 22 acknowledge if I had read it it might well have tweaked 23 something in my mind. But I know why I wouldn't have 24 read it, because it's not relevant to what I have to do 25 and it's not relevant to me answering his question. And
1801 it's a very detailed complaint as it is, but that part of 2 it isn't relevant and I would have recognised that being 3 time pressed and not done it, because it -- it happened a 4 lot; it was very common for this to happen. 5 MR. PHILLIP CAMPBELL: So, as I break 6 down what you're saying -- I have a reason for pursuing 7 this -- you could go through that complaint on Nicholas' 8 case and apart from not absorbing the extracts that refer 9 to Justice Dunn's judgment, you would remain, after you 10 had set the document aside, ignorant of the fact that 11 there is a judge who has rejected Dr. Smith's findings. 12 DR. JAMES YOUNG: Yes, exactly, because I 13 didn't read that part of it. I -- I -- that part of it 14 has a subtitle; the subtitle would have indicated to me 15 that this isn't relevant and I would have -- I would have 16 skipped through it, because it's not -- it's not part of 17 what I can consider in making my judgment. 18 MR. PHILLIP CAMPBELL: If you -- you've 19 told us that one of the things that ultimately gave you 20 comfort on the Nicholas case was an assurance from Dr. 21 Smith that he had this out-of-school conversation with 22 the Judge who said I was wrong then or I would -- if I 23 knew then what I know now I would have endorsed your 24 findings. 25 DR. JAMES YOUNG: You mean in the Amber
1811 case? 2 MR. PHILLIP CAMPBELL: On the Amber case. 3 DR. JAMES YOUNG: Yeah, yeah. 4 MR. PHILLIP CAMPBELL: It strikes me, 5 whatever the plausibility of Dr. Smith's account to you, 6 that for you to take any comfort from that you must know 7 that there is this critical judgment which the Judge is 8 now purporting to repudiate -- 9 DR. JAMES YOUNG: No. 10 MR. PHILLIP CAMPBELL: -- but didn't that 11 follow -- 12 DR. JAMES YOUNG: No. No, that's -- 13 that's simply not -- what I knew was that from the 14 beginning the discussion with the Crown and -- and the 15 police was going to be that this was going to be a 16 difficult case, it was going to be the first case of its 17 kind in -- in northern Ontario, that there may or may not 18 be a conviction. 19 What I knew is that there had been a 20 trial, there had been -- I was aware at some point, and I 21 don't know when, about the lost x-ray. I was aware that 22 there was a pathology apin -- opinion, as I've stated, 23 you know, saying there is no thing as -- such thing as 24 Shaken Baby and that's as much as I knew. 25 And then later, and I don't remember
1821 exactly when -- and this -- this knowledge doesn't come 2 at the end of the trial, this comes at some period after 3 that. I have no idea when the trial ended relative to 4 when I knew this, but I know it's some period of time 5 after. 6 And what I -- told, in and around that 7 time by Dr. Smith is that -- that I've run into Justice 8 Dunn and he -- he has assured me that he didn't 9 understand the evidence. And -- and in light of what I 10 know and in light of the -- my thinking at the time, 11 acknowledging that it's wrong, but my thinking at the 12 time that the -- that there was an opinion that there's 13 no such thing as Shaken Baby, he's now changed his mind; 14 that didn't seem nonsensical to me. It made sense to me 15 and it reassured me. Based on the limited knowledge I 16 had it fit what I was told and I was -- I was persuaded 17 by it. 18 MR. PHILLIP CAMPBELL: What in your view 19 should a Chief Coroner do once he or she becomes aware of 20 a critical judicial opinion? 21 DR. JAMES YOUNG: Investigate it. If 22 we're aware of it, we would investigate it. I -- I 23 wasn't aware of it and I -- I can't -- I can't 24 investigate what I'm not aware of. 25 That investigation, depending on the
1831 nature of it, could take many, many forms, but it -- but 2 it certainly needs -- it's come from a Justice, it 3 deserves to be looked at. 4 5 (BRIEF PAUSE) 6 7 MR. PHILLIP CAMPBELL: You gave evidence 8 at some length before Justin Kaufman. 9 DR. JAMES YOUNG: Yes. 10 MR. PHILLIP CAMPBELL: Have you had an 11 occasion to read that over in preparation for your 12 testimony here? 13 DR. JAMES YOUNG: No, I -- I haven't, but 14 I certainly remember it. I believe it was ten (10) years 15 ago to the day, so... 16 MR. PHILLIP CAMPBELL: Ten (10) years ago 17 to that -- 18 DR. JAMES YOUNG: I have a ten (10) year 19 -- I have a ten (10) year memory, I think. 20 MR. PHILLIP CAMPBELL: How about that. 21 You're right. Just -- let's put up PFP300878. You'll 22 have it, I hope. I'm not going to be able to give you 23 every volume and tab number, but I think you'll have it 24 at Volume VIII, Tab 76. 25 DR. JAMES YOUNG: Okay.
1841 MR. PHILLIP CAMPBELL: Let's go to page 2 100 of that document. 3 DR. JAMES YOUNG: It's just the -- the 4 standard numbering then in this case? 5 MR. PHILLIP CAMPBELL: What you have 6 should have 129 hyphen 100 -- 7 DR. JAMES YOUNG: Yeah. 8 MR. PHILLIP CAMPBELL: -- in the upper 9 right -- 10 DR. JAMES YOUNG: That's fine. 11 MR. PHILLIP CAMPBELL: -- corner. 12 DR. JAMES YOUNG: Yeah. 13 MR. PHILLIP CAMPBELL: We've only got up 14 to ninety-six (96) by going to a hundred (100), so I 15 guess we go to a hundred and four (104). Okay. 16 And you'll see picking up in the first 17 indented paragraph, this is you speaking, as the document 18 indicates, ten (10) years ago today: 19 "Unfortunately, then when someone goes 20 out as I think some of the evidence 21 yesterday would indicate, they can go 22 out and they can give evidence and we 23 may or may not hear back whether or not 24 there is a problem. In most instances 25 we don't. We get, as Dr. Robertson
1851 does, a fair number of letters 2 commending the scientists and I am 3 proud to say a good number from the 4 Defence Bar as well, but we don't 5 always hear when there's a problem. 6 When we do hear that there's a problem, 7 it's taken very seriously and 8 transcripts are obtained and things are 9 reviewed. So for us it's very 10 important to get that feedback." 11 You continue: 12 "The best way of monitoring people in 13 terms of their science is to send a 14 supervisor out with them and that's our 15 preferred method." 16 And you go on to indicate why the 17 preferred method isn't always the practical method. 18 DR. JAMES YOUNG: Mm-hm. 19 MR. PHILLIP CAMPBELL: And you would say 20 the same today; that is, that judicial opinions critical 21 of scientific findings ought to be taken seriously? 22 DR. JAMES YOUNG: Absolutely. 23 MR. PHILLIP CAMPBELL: And that the 24 presumptive response is to order a transcript and get to 25 the bottom of it?
1861 DR. JAMES YOUNG: Yes. 2 MR. PHILLIP CAMPBELL: And would that 3 standard and your expectations in that regard, whether 4 formally or just by osmosis around the office, have been 5 known within the Chief Coroner's Office? 6 DR. JAMES YOUNG: Yes, because, you know, 7 the transparency was what we try -- how we tried to run 8 our office and what our standard was. 9 I would sort of make the comment that -- 10 that my evidence in regards to this is in regards to the 11 Centre of Forensic Science and the forensic scientists. 12 The Court Monitoring Program is a standard 13 part of -- of forensic labs and forensic scientists. We 14 have the distinct advantage in that situation that -- 15 that these are our employees, we know when they're going 16 to court, and there's a number of other people in the 17 section who -- including a section head, that we can send 18 to monitor in that situation. 19 The difficulty in pathology is it's rarely 20 done in pathology. The only thing I'm aware of in 21 pathology where it's ever done, in terms of actually 22 monitoring, was situations where somebody -- a new 23 employee comes along and they go the first couple of 24 times with them. 25 But -- but the practice, if you're aware
1871 of a problem, of ordering the transcript would certainly 2 be the standard practice. Absolutely. 3 MR. PHILLIP CAMPBELL: Would it be fair 4 to say then that insofar as responsible people in the 5 coronial system knew about Justice Dunn's critical ruling 6 in Amber's case, the performance of your office fell 7 below the standards that you would have set for it and 8 expected of it? 9 DR. JAMES YOUNG: I would say yes without 10 knowing exactly. I don't have the benefit of knowing and 11 I was out of -- out of the country for some of, for 12 example, Dr. Cairns' evidence, or I was preparing during 13 most of his evidence. I don't know what review he did or 14 what action he took, and I can't answer for that because 15 I -- I just simply don't know. 16 But would the recep -- would the receipt 17 of Justice Dunn's report cause me to want to know more 18 about it? The answer is yes, from my point of view, it 19 would. 20 MR. PHILLIP CAMPBELL: And what then, if 21 your office had grasped the issue, taken ownership of it, 22 such that the judgment was ordered, the evidence 23 criticized was ordered, and the material was assembled, 24 what then would you have wished to be done with it? 25 DR. JAMES YOUNG: Well, I think there has
1881 to be some analysis of it. And -- and, you know, you 2 have to look at it and say, What is reasonable and fair? 3 What isn't? How much do we agree? How much do we not 4 agree? 5 Certainly, you know, learning that there 6 were a number of other experts that were critical and 7 held different opinions raises issues, and they need to 8 be explored. But in and by themselves, they don't 9 necessarily mean that those people are right and Dr. 10 Smith is wrong. They wouldn't have been called to the 11 trial if they agreed with Dr. Smith. So this was an 12 issue where there were some very different views in the 13 world of what was going on, and one wouldn't expect that 14 everyone would agree with each other. 15 They wouldn't be defence pathologists if 16 they did agree. They wouldn't have been called. So I 17 expect an element of difference, but I don't expec -- you 18 know, if it's too broad a diff -- area of difference and 19 too many people, then you start to say, We better look at 20 this and see how comfortable are we. 21 But I -- what -- what you do is consider 22 it very carefully, but don't -- you know, you don't over- 23 consider it. 24 MR. PHILLIP CAMPBELL: Would you have 25 referred the material once it was assembled to a forensic
1891 pathologist? 2 DR. JAMES YOUNG: Yeah, I think -- I 3 mean, my -- my own personal of way of doing things like 4 this would be to say to someone, This needs to be 5 reviewed. And most likely, what I would have done is -- 6 is -- and -- and -- you know, I've got the retroscope on 7 and I -- so that I -- I don't want to -- I don't want to 8 overstate this, but, I mean, my normal course would be to 9 think of getting someone from outside to review something 10 like this. 11 That's -- as we did with -- with Dr. Case. 12 I mean, that's the way I think normally would be to -- 13 you arbitrate something by getting someone else to look 14 at it and see whether or not it's in the range of 15 acceptable or not. 16 MR. PHILLIP CAMPBELL: Someone outside 17 your office or having a working relationship with? 18 DR. JAMES YOUNG: I mean, you may -- you 19 may or you may not get somebody within the office; 20 depending who it is and what the circumstance and their 21 level of experience. There are things that I'd be 22 comfortable with somebody in the office managing -- 23 talking about -- there would be things that I wouldn't, 24 you know. 25 At the time, I'm not sure that Dr.
1901 Chiasson would have been comfortable reviewing this case 2 at that point in time, so I probably -- but again, I'm -- 3 I'm using the retroscope, but I -- you know, you would 4 likely want to send it to a -- a pediatric forensic 5 pathologist to see what they say about it; somebody who 6 is doing a volume of like work. 7 MR. PHILLIP CAMPBELL: Let me then go 8 from that to a little bit of retrospection of Nicholas' 9 case. 10 DR. JAMES YOUNG: Okay. 11 MR. PHILLIP CAMPBELL: A theme in your 12 evidence, and I think it emerged here, is that there is a 13 range of reasonable or defensible opinion with whi -- 14 within which credible experts can disagree? 15 DR. JAMES YOUNG: Yes. Well, I -- that 16 was certainly what I felt in the Nicholas case, that's 17 right. 18 MR. PHILLIP CAMPBELL: I want to ask you 19 this, and it is, for me, an important but detailed 20 question. Is that opinion based on having familiarized 21 yourself with the actual grounds of scientific 22 disagreement in that case or is it more impressionistic - 23 - big picture? 24 DR. JAMES YOUNG: I can't hones -- you 25 know, I wouldn't be honest to tel -- give you the answer.
1911 I don't know what I was thinking then. I -- I just -- it 2 was my view, and I clearly wrote it, but I -- I can't 3 tell you which was in my mind, at that time. I don't 4 know. 5 It certainly, as a principle, it's there, 6 and I would've applied it in this case and said, I may 7 not be happy with his view, and I described in detail 8 what I told him about it, but I certainly, clearly, 9 didn't feel it fell out -- completely outside of the 10 range. 11 But I can't -- I can't tell you exactly 12 anymore thinking than that. 13 MR. PHILLIP CAMPBELL: I understand. 14 You'd accept that in general critiques of forensic 15 pathology do have to be detail oriented. That -- that's 16 just inevitable -- 17 DR. JAMES YOUNG: Yeah, oh, yeah. 18 MR. PHILLIP CAMPBELL: -- it's detail 19 work? 20 DR. JAMES YOUNG: Yes, yeah. 21 MR. PHILLIP CAMPBELL: All right. And it 22 is important in determining what to make of any 23 disagreement to understand whether it is on a matter of 24 interpretation within a wide range of reasonableness or 25 on a fundamental matter, correct?
1921 DR. JAMES YOUNG: Yup, yeah, I'd agree. 2 MR. PHILLIP CAMPBELL: And I'd just like 3 to suggest this to you that by the time Dr. Case's report 4 had been digested -- and she is a -- an expert certainly 5 very well respected throughout North America, correct? 6 DR. JAMES YOUNG: Mm-hm. I agree. 7 MR. PHILLIP CAMPBELL: And Dr. de Sa's 8 opinion a couple of years later; it -- it ought to have 9 been obvious to anybody attentive to the details that Dr. 10 Smith's error was fundamental and not simply within a 11 reasonable range. 12 And I -- that's the proposition I'm going 13 to ask you to consider, and I'd like to bring up in 14 support of it, 007687 first, which is Dr. Case's report, 15 and I believe that I am at page 2 of it. 16 DR. JAMES YOUNG: What binder and number, 17 sorry? 18 MR. PHILLIP CAMPBELL: I'm sorry, I can't 19 give you that because I've -- my cross-examination notes 20 had a series of four (4) unhelpful question marks by that 21 and I'm hopeful somebody -- 22 COMMISSIONER STEPHEN GOUDGE: If it is 23 humanly possible, Mr. Centa will get it for us. 24 25 CONTINUED BY MR. PHILLIP CAMPBELL:
1931 MR. PHILLIP CAMPBELL: Volume I. 2 DR. JAMES YOUNG: Volume I white or 3 Volume I blue -- or black? 4 MR. PHILLIP CAMPBELL: Mr. Centa thinks 5 that's wrong, from which I take some comfort. We have it 6 at the bottom of the page. If you -- are you able to 7 follow on the screen? I know we'd all like to see the 8 whole document, but the last paragraph there is my focus. 9 And I know it can be -- it can be made a bit bigger. 10 DR. JAMES YOUNG: Okay. 11 MR. PHILLIP CAMPBELL: 12 "My opinions about this death are as 13 follows: 14 I would not attribute this death to a 15 head injury as there are no findings on 16 which to make such a conclusion. The 17 presence of brain swelling or cerebral 18 edema was based primarily on the weight 19 of the brain at autopsy of 1,220 grams 20 and some mild splitting of the sagittal 21 and coronal sutures on radiographs. 22 I see many infants and young children 23 dying from a variety of causes who have 24 similar amounts of brain swelling. And 25 for teaching purposes, I often
1941 demonstrate such brain swelling in 2 photographs, in non-traumatic deaths, 3 to illustrate how the terminal event of 4 dying from many causes can result in 5 rather marked swelling which is not 6 pathological in the sense of causing 7 herniation or increased intra-cranial 8 pressure. Certainly brain swelling or 9 cerebral edema should never be used as 10 an isolated finding to make a diagnosis 11 of head injury." 12 And I'm suggesting that, politely put, Dr. 13 Case is telling the reader that the foundation for Dr. 14 Smith's opinion, crucial opinion in that case, is -- is 15 non-existent; that he has vastly over-interpreted a 16 common-place finding. 17 DR. JAMES YOUNG: Well, I think over- 18 interpreting is there. I don't think he's -- she's 19 saying that there's no finding. I think the finding is 20 the swelling, the issue is the interpretation of the 21 swelling. 22 So that it -- the find -- it's an issue of 23 interpretation. I would agree it's an issue of 24 interpretation and -- and, you know, what I would 25 remember about this would be reading, at some point,
1951 through the three (3) reports and saying, Well, they're 2 all interpreting it in different ways. 3 I agree with Dr. Case and I think Dr. 4 Case's interpretation makes the most sense to me, 5 although I -- you know, I'm not pretending to be a 6 pathologist looking under the microscope or arguing about 7 it. They see swelling and they all think it means a 8 different thing. I think she's -- what she says is the 9 most conservative and makes the most sense. So that 10 would be the way I viewed it and looked at it. 11 MR. PHILLIP CAMPBELL: Do you view her 12 opinion as saying that Dr. Smith's opinion makes no sense 13 and is not only not her opinion but not a defensible 14 opinion? 15 Do you see her saying that there? 16 DR. JAMES YOUNG: Well, I'm not sure she 17 says it that strongly. She says that this is a 18 generalized finding that shouldn't be interpreted in this 19 manner; that she doesn't view this as being specific 20 enough to say it in this case that it's caused by a head 21 injury. She's saying I don't know the cause. 22 I've got -- everyone agrees there's 23 swelling and what they're arguing about is whether it's 24 accidental, whether you can't tell or whether it 25 represents an injury, and they're arguing over the
1961 interpretation of that finding. And I -- I agree that 2 she's right. 3 But I don't see this as being -- you know, 4 when I read it it certainly doesn't strike me as that -- 5 that firm. I -- I remember reading it and saying, This 6 makes sense to me, but beyond that I couldn't tell you. 7 And I formed the opinion, rightly or wrongly, that he was 8 within a range of opinion based on sort of, you know, 9 this paragraph certainly would -- would have been under 10 my consideration. 11 MR. PHILLIP CAMPBELL: Can we look at Dr. 12 De Sa's opinion from 1999. 007691. 13 DR. JAMES YOUNG: Yeah. I'm not sure 14 I've ever seen this opinion, so. 15 MR. PHILLIP CAMPBELL: Are you sure you 16 haven't -- 17 DR. JAMES YOUNG: I -- no -- 18 MR. PHILLIP CAMPBELL: -- or don't know? 19 DR. JAMES YOUNG: -- no, I don't know. I 20 -- I don't know if I have or not. 21 MR. MARK SANDLER: If it refreshes Dr. 22 Young's memory, I took him to the overview report on this 23 and Dr. De Sa's report was sent later, but copied to Dr. 24 Young. So you'll see that in the overview report for 25 Nicholas.
1971 DR. JAMES YOUNG: I may have had a copy 2 of it. I -- I'm not questioning whether I had a copy. I 3 don't know if I ever reviewed it in detail. At that 4 point in time in -- two (2) years later, I'm not sure 5 whether -- you know, whether or not there would have be a 6 reason that I would have taken it. 7 I sure wouldn't have taken it out and 8 gotten all the other reports and -- and reread them all 9 and rethought our way through it. 10 11 CONTINUED BY MR. PHILLIP CAMPBELL: 12 MR. PHILLIP CAMPBELL: But this was a 13 case with a history, I am sure -- 14 DR. JAMES YOUNG: But I'm not sure there 15 was much going on in the case at that point in time, and 16 we're certainly -- it's being reviewed by the Ombudsman, 17 but I'm not -- I've agreed with Dr. Case, I've agreed 18 with her position, I've -- I've reprimanded Dr. Smith on 19 the basis of it. I've told him what I think of -- so 20 this report wouldn't -- I mean, it -- it -- I can say 21 absolutely it didn't -- if -- if I read it at all, I 22 didn't take any further action as a result of it, because 23 I -- I wouldn't have known what other action to take at 24 this point in time. 25 It -- I considered the case, I dealt with
1981 the case, and I don't remember -- this -- this report 2 doesn't sort of ring any bells with me. 3 MR. PHILLIP CAMPBELL: Let me just make 4 it -- take you to a couple points that I think arise from 5 that. As with Justice Dunn's judgment in Amber, whether 6 this document was digested by you, read and -- 7 DR. JAMES YOUNG: Mm-hm. 8 MR. PHILLIP CAMPBELL: -- an absorbed for 9 its meaning or not, it was like Justice Dunn's judgment, 10 available to you, correct? 11 DR. JAMES YOUNG: Well, I don't know -- 12 well, I -- Justice Dunn -- I -- I'm not sure that I'd 13 agree -- this was certainly available to me; whether 14 Justice Dunn's was available to me, I -- I -- it depends 15 on your definition of how it was available. 16 But, I mean, you can construct a way, I 17 suppose, but it wasn't something where I would have known 18 to call it up. This, at least, may have passed over my 19 desk. I see it's gone to Dr. Porter. Whether or not I - 20 - my stamp isn't on it. 21 Whether I say it or don't, I don't know. 22 It -- it doesn't have -- it definitely was reviewed by 23 Dr. Porter, but I don't know. It's gone to the office, 24 it's gone to Dr. Porter, it may or may not have gone to 25 me. I don't know.
1991 MR. PHILLIP CAMPBELL: Let's take a look 2 at its second page. 3 DR. JAMES YOUNG: Okay. 4 COMMISSIONER STEPHEN GOUDGE: Can we blow 5 up part of it. Mr. -- which part would you like to 6 7 CONTINUED BY MR. PHILLIP CAMPBELL: 8 MR. PHILLIP CAMPBELL: Well, I have to 9 identify that we've got it first of all. Sorry, it's the 10 third page. I apologize. 11 Where Dr. De Sa is getting to his 12 conclusion in the fourth paragraph from the bottom. 13 And I'm not going to be able to take you 14 through all the preliminaries, but I'm going to suggest 15 that he is talking about the evidence, as Dr. Case was, 16 that Dr. Smith relied upon in his attribution of cause of 17 death in Nicholas' case. And he said: 18 "If we were to adopt the line that all 19 such cases were automatically non- 20 accidental, we would guilty of a gross 21 overrepresentation of non-accidental 22 deaths and marked distortion of 23 reality." 24 DR. JAMES YOUNG: Yeah, I would agree 25 with that statement.
2001 MR. PHILLIP CAMPBELL: Is that not a 2 statement that in light of Dr. Case's opinion, as well, 3 ought to have caused you to reflect on whether there was 4 a fundamental problem with Dr. Smith rather than just a 5 disagreement between him and other capable pathologists? 6 DR. JAMES YOUNG: Well, there's a couple 7 of suppositions in that. First -- first of all, the 8 statement is a general statement that says we shouldn't 9 always automatically do this. I think it's a -- it's a 10 different way of saying exactly what Dr. Case said. 11 It -- to me, that's exactly what it says: 12 Just because you see this finding you can't automatically 13 decide that -- that the person is there. Would it evoke 14 then in -- it's a -- it's a state -- it's a statement for 15 which I -- I take no issue. 16 You then have to make the leap that -- 17 that that's precisely what he did in that case. And the 18 -- I mean, the basic problem I have is I -- I can't 19 remember if I ever saw the document let alone if I -- if 20 I read that statement and it -- it sunk in. I don't 21 know. I -- I can't help you because I don't know. 22 But it -- but the statement is -- 23 virtually, to me, is what Dr. Case was saying, as well. 24 MR. PHILLIP CAMPBELL: But we know that 25 the document came within the confines of your office?
2011 DR. JAMES YOUNG: Fair enough. 2 Absolutely. 3 MR. PHILLIP CAMPBELL: All right. I ask 4 because you gave us a description of a memorable 5 conversation with Dr. Smith -- 6 DR. JAMES YOUNG: Mm-hm. 7 MR. PHILLIP CAMPBELL: -- in which you 8 used a striking image that he's -- that if he's going out 9 on limbs in terms of the literature and the -- and the 10 sort of orthodox science -- 11 DR. JAMES YOUNG: Yes. 12 MR. PHILLIP CAMPBELL: -- you want him to 13 come back in off the limb, which is prone to snapping 14 off, and hug the -- the tree trunk -- 15 DR. JAMES YOUNG: Yes. 16 MR. PHILLIP CAMPBELL: -- the mainstream 17 of pathology opinion. 18 DR. JAMES YOUNG: I agree. 19 MR. PHILLIP CAMPBELL: And I -- I can 20 appreciate that distinction; a distinction between the -- 21 the leading edge and -- and the mainstream or the avant 22 garde and the conventional. 23 DR. JAMES YOUNG: Mm-hm. 24 MR. PHILLIP CAMPBELL: But what I'm 25 suggesting is that if you look closely at Nicholas' case,
2021 or had a -- an expert look closely at it, it might have 2 told you that he wasn't either on the trunk or on a limb, 3 but he was -- you know like -- like a cartoon figure, 4 just sort of paddling the air; he didn't have support for 5 this. 6 And it -- that it was identifying, not the 7 difference between the limb and the trunk, but the thin 8 air in the trunk that really had to be focussed on. 9 DR. JAMES YOUNG: I had an expert -- 10 another expert -- look at it. I mean somebody did, Dr. 11 Case, and I had a report from Dr. Case. And I drew the 12 conclusion from the report, rightly or wrongly, that the 13 analogy of the trunk was what I got out of it. So that I 14 -- I understand your point and I -- you know if you take 15 a whole bunch of reports and you sit and you discuss it 16 this way, you could come to that conclusion. 17 The conclusion I came to was that the 18 analogy -- the correct analogy was the trunk, and the 19 tree, and -- but it was based on the report from Dr. -- 20 when I read Dr. Case's report, that's how I -- that's how 21 I viewed it. 22 MR. PHILLIP CAMPBELL: You didn't give 23 Dr. Case a mandate to advise your office on the overall 24 competence of Dr. Smith. 25 DR. JAMES YOUNG: No. No, that was --
2031 that wasn't what her review was about; her review was -- 2 we had an important case that needed -- needed review. 3 MR. PHILLIP CAMPBELL: And we know from 4 her comments on The Fifth Estate that if she were invited 5 to speak candidly and without professional politus, she 6 might have given particularly striking testimony about 7 his -- his competence. 8 Is that fair to say? At least as its 9 reflected in this one case. 10 DR. JAMES YOUNG: I -- I haven't seen it, 11 so I don't know, and I don't know what was edited in or 12 edited out of the Fifth Estate, but one could presume if 13 it's there that there was certainly some criticism, you 14 know, at least in part in -- in what she said, but I -- 15 beyond that, I -- I don't know. 16 MR. PHILLIP CAMPBELL: All right. Let's 17 move on to Jenna's case, and I want to just revisit your 18 logic on that case -- 19 DR. JAMES YOUNG: Okay. 20 MR. PHILLIP CAMPBELL: -- because I'm 21 going to suggest that it is a kind of big-picture logic 22 again that might not stand up to scrutiny of the level of 23 detail. 24 DR. JAMES YOUNG: Mm-hm. 25 MR. PHILLIP CAMPBELL: The big-picture
2041 logic that you brought to your evaluation of Jenna's case 2 was something like Dr. Smith is allowing for a wider time 3 frame than some of the other pathologists who are 4 narrowing it down to six (6) hours. 5 DR. JAMES YOUNG: We didn't have those 6 pathologist's views at that time, no. None of them 7 existed at the time of the Jenna case. 8 MR. PHILLIP CAMPBELL: You drew a 9 contrast between Dr. Smith's views and those -- the views 10 of other experts; there was clearly a point in time at 11 which you had both and -- 12 DR. JAMES YOUNG: No, only at the time of 13 this hearing. These other opinions were sought in 14 relation to this hearing. There wasn't -- 15 MR. PHILLIP CAMPBELL: The opinion of Dr. 16 Ein and Dr. Clare (phonetic), and Fitzgerald? 17 DR. JAMES YOUNG: No, Dr. -- Dr. Ein 18 makes the very point that I was making that -- that 19 sometimes you have to combine the clinical side of things 20 in order to narrow it down. Just as the other example I 21 used, is Dr. Humphrey, in a head injury, that -- that the 22 pathologist says I -- this is what I know and then the -- 23 the clinician comes along and says, Well, no, people 24 behave in certain ways at certain times, so if you have a 25 clinical story that says this or that, therefore we can,
2051 with certainty, narrow this down. 2 So it's a combination of the pathology 3 confirms a broader time and the -- and the clinical 4 narrows it down, and that's exactly what I would of 5 expected them to do, was -- was to go out and get a 6 clinical opinion in this kind of case, just as you do in 7 head injury cases. That's exactly the problem in Tyrell. 8 MR. PHILLIP CAMPBELL: And how did you 9 understand that Dr. Smith reacted to his awareness of the 10 clinical information? 11 DR. JAMES YOUNG: My understanding is he 12 adopted it, that he accepted that Dr. Ein would be better 13 placed to -- to add the clinical data and to accept it. 14 So he -- he accepted that as the -- as being the -- an 15 acceptable range. He didn't argue against it. 16 It fell within his range; it just narrowed 17 down the range after that. That's my understanding of 18 his acceptance of -- 19 MR. PHILLIP CAMPBELL: Did you not 20 understand that there was, apart from Dr. Smith, a 21 consensus of opinion on Jenna's case, that the clinical 22 analysis aside -- and lets define that; that rests on 23 Jenna would have shown symptoms shortly after receiving 24 these blows. So by simple reasoning, she must have 25 received the blows sometime after she is last confirmed
2061 to have been pain free and that's -- 2 DR. JAMES YOUNG: That's clinical -- 3 that's clinical knowledge. 4 MR. PHILLIP CAMPBELL: Right. And that's 5 one (1) line of reasoning that helps time the delivery of 6 the blows? 7 DR. JAMES YOUNG: That's -- that's using 8 -- 9 MR. PHILLIP CAMPBELL: And you say Dr. 10 Smith adhered to that when it was pointed out to him? 11 DR. JAMES YOUNG: My -- my involvement in 12 -- of this was very, very early. It was an early meeting 13 when the discussion was that it was -- Dr. Smith's view 14 was it was within twenty-four (24) hours. 15 The substance of that meeting then, was to 16 find out how to narrow that down, and to go and get other 17 opinions that would help narrow that beyond the twenty- 18 four (24) hours, down in time, and to add the clinical 19 element. That was my involvement in that case. 20 MR. PHILLIP CAMPBELL: Did you have no 21 understanding of the opinions apart from Dr. Smiths, 22 converging on the view that six (6) hours is the outside 23 distance between delivery of this blow and time of death? 24 DR. JAMES YOUNG: No. My -- my 25 involvement was one (1) day, when the discussion was
2071 around twenty-four (24) hours, and how do we narrow it 2 down. That's my involvement in the case. 3 MR. PHILLIP CAMPBELL: Did your 4 involvement -- 5 DR. JAMES YOUNG: Until the -- until the 6 issue around the -- the hair. 7 MR. PHILLIP CAMPBELL: Did you get back 8 into the substantive pathology issues when you heard that 9 the second degree murder charge had been withdrawn? 10 DR. JAMES YOUNG: I didn't hear that the 11 -- I -- I at some point became aware that -- that the 12 decision was that -- that the time was narrowing down; it 13 would be withdrawn, it would continue to be investigated. 14 But that's all I was aware of. 15 MR. PHILLIP CAMPBELL: You gave evidence 16 to -- 17 DR. JAMES YOUNG: But my -- my -- sorry. 18 MR. PHILLIP CAMPBELL: Yes? 19 DR. JAMES YOUNG: I -- I apologize. The 20 -- the reason then in my -- was that the time was 21 narrowing down there for -- the charges would be 22 dropped, there would be further investigation, but that 23 does -- doesn't imply that there was necessarily a 24 problem with Dr. Smith's pathology. That implies that 25 there's been other opinions added that narrows the time
2081 down. 2 So the issue in mind, there was -- I was 3 not aware of any issue around Dr. Smith's pathology and 4 his view that -- that -- you know, in further review if 5 people are saying, He should have been able to say six 6 (6) hours instead of twenty-four (24) hours, that came 7 much later, and I wasn't aware of that until very 8 recently. 9 MR. PHILLIP CAMPBELL: You weren't aware 10 of that during your tenure at the Chief Coroner's Office? 11 DR. JAMES YOUNG: No, no. My -- my 12 knowledge of -- of that case was the first meeting I went 13 to; my name appears that I was there. The conclusion of 14 that meeting is that we're going with twenty-four (24) 15 hours right now, we're going to go out and we're going to 16 look for some clinical infor -- help in order to ensure 17 that -- that we get this -- this time down. 18 My next involvement is when Dr. Cairns 19 comes to me and tells me about the hair. 20 Any issue around the quality of the 21 pathology and -- and the fact that he should have 22 narrowed down that time, I became aware in preparation 23 for this Hearing, but not before that. 24 MR. PHILLIP CAMPBELL: You gave evidence 25 under questioning by -- by Commission Counsel that your
2091 own rational for being unalarmed by Jenna's Case was that 2 Dr. Smith had not made the common sin of excess pers -- 3 excessive precision; that he was wider in his allowance 4 for possibilities then the other experts, and he hadn't 5 committed that familiar failing of saying, We can refine 6 it very closely when you can't. And so you were 7 untroubled by the divergence between his opinion and the 8 other opinion. 9 DR. JAMES YOUNG: Well -- 10 MR. PHILLIP CAMPBELL: Can I just add, do 11 you recall that evidence, because if you do, I'd like to 12 know the context in which you gave that if it wasn't -- 13 DR. JAMES YOUNG: You know -- 14 MR. PHILLIP CAMPBELL: -- in awareness of 15 the divergence. 16 DR. JAMES YOUNG: -- I was -- I was being 17 asked the questions around -- around, Am I bothered by 18 this. No one said to me, Did you know about it? I 19 didn't know about it. 20 I -- this case -- I was at a meeting, I 21 knew the case existed, I knew they were looking for 22 opinions and then I knew about the hair and the hair was 23 the issue in my mind not the pathology. I was not aware 24 of the issues surrounding the -- surrounding the 25 pathology and the controversy around the pathology at
2101 that point. 2 And I believe that when I was answering 3 Mr. Sandler about it, it was in -- we were talking about 4 now that the opinions were there would that -- would that 5 bother you and I'm -- what I was simply saying is the 6 error is usually made the other way. 7 It would be perfect if he got right and he 8 got it in the six (6) -- in the six (6) hours but if 9 you're going to make an error or if you're not going to - 10 - if you're not going to hold a strong opinion, the 11 better opinion is the broader opinion because it's the 12 safer opinion. But I -- this was not, in this case, an 13 issue in my mind. 14 MR. PHILLIP CAMPBELL: I can't answer the 15 question I'm about to ask, but maybe you can and maybe 16 you can't. 17 Was the raw material for the -- of the 18 divergent -- the diverging or opposing opinions, that is, 19 the reports of the other experts on Jenna's case, in your 20 office during the tenure of Dr. Smith? 21 DR. JAMES YOUNG: I -- no, I wouldn't -- 22 I don't know what reports there are. I'm not aware of 23 any reports other than the -- the review that was 24 undertaken as part of this Commission. I -- I don't 25 know.
2111 MR. MARK SANDLER: Just to assist My 2 Friend. I did take Dr. Young to Dr. Porter's report 3 which he said he was unfamiliar with at the time and she 4 either summarized the pathological evidence or summarized 5 it and expressed her own view on it. 6 7 CONTINUED BY MR. PHILLIP CAMPBELL: 8 MR. PHILLIP CAMPBELL: And you were 9 unfamiliar with that report at the time? 10 DR. JAMES YOUNG: I was surprised even to 11 see her name on it and then realized that it was during a 12 period when Dr. Cairns was away. So, yeah, I wouldn't -- 13 wasn't involved in any way. I don't remember what year 14 it is, but -- 15 MR. PHILLIP CAMPBELL: Dr. Cairns was 16 away? 17 DR. JAMES YOUNG: I think that's why Dr. 18 Porter was involved in that case. 19 MR. PHILLIP CAMPBELL: And she was 20 involved in what capacity at that point? 21 DR. JAMES YOUNG: I think she was running 22 the Paediatric Review Committee. 23 MR. PHILLIP CAMPBELL: And what was her 24 status within the Coroner's Office? 25 DR. JAMES YOUNG: She was the Deputy
2121 Chief Coroner. 2 MR. PHILLIP CAMPBELL: All right. So the 3 -- the pathology reports that came before her, if Mr. 4 Sandler has assisted us with the fact that they are 5 summarized by her, were summarized in her capacity as 6 Deputy Chief Coroner? 7 DR. JAMES YOUNG: Yeah. I don't know 8 what came before. I have no idea what -- what they were; 9 whether it was evidence in court or -- I have -- I have 10 no idea I'm afraid, Mr. Campbell. 11 MR. PHILLIP CAMPBELL: I started off by 12 talking about how things didn't crystalize for you and 13 dots weren't connected in say, the '90s, about Dr. Smith 14 so -- 15 DR. JAMES YOUNG: Mm-hm. 16 MR. PHILLIP CAMPBELL: -- that there was 17 a global concern. 18 DR. JAMES YOUNG: Mm-hm. 19 MR. PHILLIP CAMPBELL: You'd accept that 20 Fifth Estate expressed global concerns in its 1990 piece? 21 Is that fair to say? 22 DR. JAMES YOUNG: I don't know. I've 23 never seen it. 24 MR. PHILLIP CAMPBELL: It linked 25 different cases together. It linked at least Sharon,
2131 Nicholas and Amber, correct? 2 You know that? 3 DR. JAMES YOUNG: Well, we were aware of 4 all of those cases but, you know, I didn't see The Fifth 5 Estate and I -- I guess the only thing I've been able to 6 say is I asked if there was anything new in it and I was 7 told no, and I -- I didn't take any action. 8 MR. PHILLIP CAMPBELL: If we look at it 9 today, at least one (1) thing that's new in it is that 10 they are looking at one (1) case in light of other cases, 11 rather than seeing them as -- as distinct boxes. 12 Now if you haven't read the transcript or 13 seen the show I suppose you can say you don't even -- you 14 can't even agree to that. But -- 15 DR. JAMES YOUNG: Well, I'll accept that 16 that's probably -- 17 MR. PHILLIP CAMPBELL: -- it's a bit of-- 18 DR. JAMES YOUNG: -- that's fine. Yeah. 19 MR. PHILLIP CAMPBELL: All right. And as 20 I understand your response to Fifth Estate, it was 21 firstly in sense ad hominem; you don't think much of the 22 journalists and therefore you're not going to pay much 23 attention to the journalism. 24 Is that fair to say? 25 DR. JAMES YOUNG: Well, it's not my first
2141 response. My first response is I wasn't around, I didn't 2 -- I wasn't home to view it and I got no sense from 3 anyone that -- that there was any particular -- anything 4 either particularly new or alarming in the broadcast so 5 it didn't set off any -- any alarm bells. And -- and, 6 you know, I -- I -- personally not particularly not 7 enamoured with the show, but that's -- that's -- either, 8 that wasn't my primary reason. 9 MR. PHILLIP CAMPBELL: And I think you 10 testified that nobody else -- no other journalistic 11 outlets picked it up and ran with it? 12 DR. JAMES YOUNG: That's right. 13 MR. PHILLIP CAMPBELL: But you knew that 14 it was a lengthy and detailed and critical piece on the 15 work the -- of Dr. Smith, a key figure in your office. 16 DR. JAMES YOUNG: No, I -- I had no idea 17 how lengthy it was. You know, my -- my experiences with 18 Fifth Estate have not been great, and I'm not -- you 19 know, I -- I -- you know, I don't know how many ways to 20 say it, but, you know, I want to -- it -- it doesn't 21 represent the best in journalism to me, and it's not 22 balanced. And it's -- you know, I -- I'm not a -- you 23 know, it -- when you finish up a broadcast and you say, 24 Well, thanks for watching the show, that's -- that's 25 entertainment, that's not journalism.
2151 You know, it's not my -- I did -- you 2 know, if -- if everybody had said to me, Did you see, it 3 was -- you know, it -- it uncur -- unearthed all kinds of 4 things, we have to look into it. Yes, I would have said 5 it alarms me, but no one said anything. 6 The one (1) brief comment I had was, 7 There's nothing new. So I really -- you know, we've 8 talked about it way, way more here than I ever gave it 9 thought, at the time. It was -- it passed with a single 10 comment and no one said anything again and that was the 11 end of it. 12 It -- it was a non-event. That -- that's 13 why I did nothing about it. It just simply -- it never 14 really got on my radar screen because no one -- no one 15 was commenting or talking about it. 16 MR. PHILLIP CAMPBELL: Okay. And in 17 retrospect, with your retroscope fitted on, you're 18 satisfied that that is a sufficient managerial response 19 to a piece of investigative journalism? 20 I'm asking you now to look at it, 21 retrospectively and understanding that it was critical 22 and it did draw a linkage that you hadn't drawn. 23 DR. JAMES YOUNG: Well, I mean, you can't 24 -- you can't operate with a retroscope that way. It's -- 25 it's -- at the time it doesn't come across your radar
2161 screen; it's not a -- it didn't invoke great debate or 2 discussion among anyone that I was aware of. 3 It -- it -- you know, press -- we would be 4 on the press everyday with all kinds of stories and some 5 of them were accurate and some of them weren't and some 6 of them were -- you know, it wasn't unusual for the 7 Office of the Chief Coroner to be in the -- in the press 8 or being discussed or with inquests and investigations 9 and our opinions on this and that. It just didn't 10 strike. 11 If -- if -- you know, if you look at it 12 now and you look at it and you put great importance, but 13 you -- you know, you don't run government offices based 14 on -- on CBC shows. But, you know, if -- if it had 15 gotten more of a response, yeah, I probably would have 16 done more, but I didn't -- it didn't reach that level 17 that it really -- that I realized that it was there and - 18 - and an issue. 19 MR. PHILLIP CAMPBELL: Okay. And those 20 are the -- the criteria that you applied to deciding 21 whether this is something that requires anything further 22 or is a closed book? 23 DR. JAMES YOUNG: Well, I don't remember 24 thinking about it. I -- I mean, I -- I simply asked -- 25 as I say, I asked if any -- if there was anything. No
2171 one said anything. But it wasn't just the person I 2 asked. No one else said anything. 3 No one phoned me up from any -- you know, 4 the defence bar, or the police, or anything else and 5 said, Did you see the Fifth Estate last night? It was 6 terrible. We need to look into Charles' case. No one 7 said anything. I wasn't even around when it happened, 8 and -- and I got no feedback. 9 I don't remember thinking about -- you 10 know, I -- should I launch a study based on the Fifth 11 Estate? I don't think the thought even went through my 12 head. 13 MR. PHILLIP CAMPBELL: I'm leaving the 14 Fifth Estate now. I'd like to go back to your evidence, 15 if I may, of Justice Kaufman's Inquiry. We've put your 16 testimony on the record here and -- and it was a couple - 17 - it's a couple of volumes reflecting a couple of days of 18 evidence. 19 And you testified at considerable length 20 before Justice Kaufman about quality assurance 21 mechanisms, proficiency testing, accreditation, and a 22 variety of other devices put in place at CFS before you 23 even testified before Justice Kaufman and planned for 24 after your testimony. 25 Is that fair to say?
2181 DR. JAMES YOUNG: Yeah, we -- what we had 2 was we had put in place a number of the directions we 3 wanted to go and then we -- we sought affirmation from 4 Justice Kaufman to continue down that road and finish the 5 project, that's right. 6 MR. PHILLIP CAMPBELL: And it was on the 7 kinds of things that I have just spoken about. 8 DR. JAMES YOUNG: Yes, it was. 9 MR. PHILLIP CAMPBELL: And it involved a 10 heavy emphasis on peer review and making sure that work 11 was monitored before it went out of the lab and -- and 12 checked periodically afterwards. 13 DR. JAMES YOUNG: Yes. 14 MR. PHILLIP CAMPBELL: I'm just going to 15 take you, if I can, not because I want to question you on 16 it specifically, but to a representative page, which I 17 hope just captures the flavour of your evidence. 18 DR. JAMES YOUNG: Okay. 19 MR. PHILLIP CAMPBELL: It should be at 20 PFP300878, and that's in Volume VIII at Tab 76. You're 21 being questioned here by Ms. Forestell -- 22 DR. JAMES YOUNG: Do you know what page 23 that's -- 24 COMMISSIONER STEPHEN GOUDGE: What page, 25 Mr. Campbell?
2191 2 CONTINUED BY MR. PHILLIP CAMPBELL: 3 MR. PHILLIP CAMPBELL: Page 27 of Volume 4 CXXX. It's the December 4th Volume. I have it as 300878 5 and the Registrar is with me on that. 6 Yeah, this is the earlier page, so we have 7 to go to -- we have to go quite a bit later in this. Can 8 we maybe leap forward -- are both volumes under -- 9 DR. JAMES YOUNG: Yeah. 10 MR. PHILLIP CAMPBELL: -- with the same 11 PFP number? No. 12 So let's go to the next -- no, maybe we're 13 not going to bring it up on the screen. Don't -- is it 14 available on the -- 15 COMMISSIONER STEPHEN GOUDGE: Yeah, I 16 have the hard copy. 17 MR. PHILLIP CAMPBELL: -- hard copy? And 18 you have it, Dr. Young? It's -- 19 DR. JAMES YOUNG: I haven't found it so 20 far. If you can -- 21 COMMISSIONER STEPHEN GOUDGE: Try Tab 77, 22 Dr. Young. 23 DR. JAMES YOUNG: Okay. 24 COMMISSIONER STEPHEN GOUDGE: Volume 25 VIII.
2201 DR. JAMES YOUNG: Yep. 2 COMMISSIONER STEPHEN GOUDGE: I think the 3 two (2) days you testified are back to back here. 4 DR. JAMES YOUNG: Okay. 5 COMMISSIONER STEPHEN GOUDGE: We've got 6 the second day, Mr. Campbell, is that what -- 7 MR. PHILLIP CAMPBELL: Yes, it is -- it 8 is Justice Goudge. 9 COMMISSIONER STEPHEN GOUDGE: And what 10 page in the second day? 11 MR. PHILLIP CAMPBELL: Page 27. 12 13 CONTINUED BY MR. PHILLIP CAMPBELL: 14 MR. PHILLIP CAMPBELL: And again, this is 15 not because I want to ask you about it in detail, but 16 just to -- 17 DR. JAMES YOUNG: That's fine. 18 MR. PHILLIP CAMPBELL: -- give the 19 flavour of your avenues. 20 DR. JAMES YOUNG: Okay. 21 MR. PHILLIP CAMPBELL: And I -- and I 22 defer asking you about it in detail because I think some 23 other counsel might ask you about the -- the Morin 24 Inquiry. From line 5 Ms. Forestell says: 25 "Q: All right. And you've described
2211 elements of the quality assurance 2 scheme that's going to come into place 3 or has come in to place in some cases 4 at the CFS in terms of training and 5 proficiency testing, but is there any 6 system that you've described that would 7 constitute a check or balance to catch 8 an error should one (1) occur." 9 Your answer is: 10 "Yes, I think we've described a number 11 of checks and balances. When I was 12 describing technical reviews for 13 example, the technical reviews are 14 intended to do just that and to look 15 and attempt to find errors. As well, 16 we mentioned that in subjective testing 17 that at the key times in the subjective 18 testing there will be a retesting by 19 someone. The third method of doing 20 that is to enter into a retesting 21 program on a random basis and part of 22 our plans, and I may not have mentioned 23 it yesterday, but a -- part of our 24 plans in having the five (5) person 25 quality insurance unit, in fact, is to
2221 step up and increase retesting within 2 the lab. So that's a random check, but 3 it's thought to be a good practice when 4 you can do it." 5 DR. JAMES YOUNG: Mm-hm. 6 MR. PHILLIP CAMPBELL: And that's a 7 summary in a one (1) convenient question and answer of a 8 lot of the kinds of themes that you had discussed with 9 Justice Kaufman and they became applicable to CFS, some 10 before and some after your testimony. 11 DR. JAMES YOUNG: That's correct. 12 MR. PHILLIP CAMPBELL: And I'd just like 13 to ask you if in the aftermath of that educational 14 experience that Justice Kaufman's Inquiry was and -- and 15 with its sort of seismic effects across the justice 16 system, the Chief Coroner's Office did anything 17 comparable in relation to quality assurance after the -- 18 after the Morin Inquiry? 19 DR. JAMES YOUNG: Yeah, we -- we did and 20 we were doing it at that time, but the -- there's a 21 significant difference between the two (2). The -- what 22 we're talking about in the laboratory is -- is bench 23 science where we're trying to be -- first of all, use 24 objective sciences as much as we can possibly use and 25 then we're putting in place certain checks and balances
2231 in a lab where there are layers of people and managers in 2 place to -- to do quality assurance and watch and sign 3 reports out. 4 And we're operating, basically, in the way 5 that forensic labs are -- are operating, with a set of 6 standards called "ASCLAD"'s lab -- The Asso -- The 7 American Association of Crime Lab Directors. So there's 8 a prescribed way of -- of running a forensic lab if you 9 want accreditation and what we're talking about are many 10 of the many mechanisms. 11 In terms of proficiency testing, you're 12 able to actually buy kits that are mailed to you that you 13 move to the bench and you have people do the test and 14 then you can see how they're -- how they're doing and 15 whether or not they're doing it right. 16 The problem is translating that into a 17 coroner's office and into a medical examiner's office and 18 that's where the -- the body is only there for a limited 19 period of time; the best evidence is the first evidence 20 that's taken. And then you -- you're dealing then with, 21 mostly, subjective opinions afterwards. 22 So there is no -- there is an inspection 23 system called the "NAME," National Academy of Medical 24 Examiners. There is a standard and an accreditation but 25 it's much, much different than the ASCLAD in terms of
2241 what it does and how it does it and how it's organized. 2 And there isn't the equivalent in forensic 3 pathology because of the nature of the differences 4 between the two. This is -- and the other major check 5 and balance in the system is that forensic pathology is 6 almost always, because of its subjective nature, has a 7 defence pathologist appearing and giving a view in court, 8 where sometimes forensic evidence is opposed -- the 9 forensic science is opposed, sometimes it isn't. So it's 10 a different system. 11 We certainly looked at the NAME system and 12 we -- I talked to Dr. Chiasson about it and -- and Dr. 13 Pollanen about it. We were aiming to do what -- what 14 NAME does. We decided there was no point trying to 15 achieve NAME accreditation because we had a problem with 16 our toxicology turnaround. 17 We were working on that with the Centre 18 for Forensic Science because we couldn't pass an 19 accreditation until we solved that problem. And so we -- 20 we -- while we could get the -- and we did get the 21 Standards and look at them and work on them, we couldn't 22 -- we couldn't actually go for an accreditation. 23 But we worked on other ways. I mean, 24 that's in essence, what Dr. Chiasson started to do by 25 checking the reports before they go out, it's -- by doing
2251 the education we did. Those are all elements of any 2 quality assurance. So we were doing -- we were moving in 3 that direction, but you can't just import a lab Standard 4 into a -- into a medical examiner or coroner's office. 5 They're -- they really -- they work very, very 6 differently, one (1) to the other. 7 COMMISSIONER STEPHEN GOUDGE: Before we-- 8 DR. JAMES YOUNG: And most of the 9 pathology is not even done in our office. Ninety (90) 10 percent of it's done in other places in the province. 11 It's being done, you know, in -- in centres all over; 12 about two hundred (200) different -- or a hundred (100) 13 different hospitals. 14 COMMISSIONER STEPHEN GOUDGE: Before we 15 break, Mr. Campbell, give me the name that NAME is the 16 acronym for. 17 DR. JAMES YOUNG: NAME is the National -- 18 and I can't really remember the "A"; I've got to think of 19 it, Commissioner -- Medical Examiners. 20 COMMISSIONER STEPHEN GOUDGE: Do you want 21 to do that over the break and... 22 MR. MARK SANDLER: Association. 23 DR. JAMES YOUNG: Association. It is 24 "Association." 25 COMMISSIONER STEPHEN GOUDGE: National
2261 Association -- 2 DR. JAMES YOUNG: Of Medical -- that's 3 what it is. National Asso -- 4 MR. PHILLIP CAMPBELL: We'll stipulate to 5 that. 6 DR. JAMES YOUNG: NAME, yeah. National 7 Association of Medical Examiners. 8 COMMISSIONER STEPHEN GOUDGE: Okay. Can 9 we take fifteen (15) minutes now then, Mr. Campbell? 10 You've been going an hour, just to give you some sense of 11 the time. 12 We will be back at twenty-five (25) to 13 4:00. 14 15 --- Upon recessing at 3:20 p.m. 16 --- Upon resuming at 3:36 p.m. 17 18 THE REGISTRAR: All rise. Please be 19 seated. 20 COMMISSIONER STEPHEN GOUDGE: Just before 21 you pick up again, Mr. Campbell. I just want to say a 22 couple of things about the schedule. 23 First, as all of you know it is imperative 24 that we complete Dr. Young's testimony by the end of the 25 day tomorrow. To that end, we are going to sit until
2271 5:00 tonight as previously scheduled. 2 I recognize that Dr. Young is an important 3 witness, and that I did indeed cut back a number of the 4 requests that were made, although not all of them and 5 that we have picked up some time. The way I propose to 6 proceed is that for those yet to come cross-examining, if 7 at the end of time I have allotted to you, you think you 8 need another five (5) minutes or so to cover another 9 issue, you can make that request and depending on whether 10 it's important or not I'll deal with it at that time, 11 okay? 12 So that's the way I purpose to proceed. 13 Dr. Young, we will get you out of here by the end of 14 tomorrow. 15 DR. JAMES YOUNG: That's fine. Thank 16 you, Commissioner. 17 COMMISSIONER STEPHEN GOUDGE: Mr. 18 Campbell...? 19 MR. PHILLIP CAMPBELL: Thank you, 20 Commissioner. I see the second hand is conveniently at 21 the top of the hour and -- 22 COMMISSIONER STEPHEN GOUDGE: Well you 23 have about half an hour by my count, okay? 24 25 CONTINUED BY MR. PHILLIP CAMPBELL:
2281 MR. PHILLIP CAMPBELL: I pulled up 2 through the Registrar, Dr. Young, 115727 which is Mr. 3 Lockyer's letter on behalf of AIDWYC dated February 20th, 4 2001 -- 5 DR. JAMES YOUNG: Mm-hm. 6 MR. PHILLIP CAMPBELL: -- and received in 7 your Ministry that day. You've looked at this in 8 preparation for your testimony? 9 DR. JAMES YOUNG: I have. 10 MR. PHILLIP CAMPBELL: And is it fair to 11 say in summary, that it is a request on behalf of AIDWYC 12 to participate in what it presumes will be -- and here 13 I'm picking up the sec -- the second paragraph, first 14 line: 15 "A review of Dr. Smith's case work in 16 past criminal cases." 17 Do you see they use they phrase? 18 DR. JAMES YOUNG: Sorry? 19 MR. PHILLIP CAMPBELL: Second paragraph, 20 top line. 21 MR. MARK SANDLER: It's in your binder, 22 Volume VIII, Tab 78. 23 DR. JAMES YOUNG: Okay, I see the wording 24 now, yep, okay. 25
2291 CONTINUED BY MR. PHILLIP CAMPBELL: 2 MR. PHILLIP CAMPBELL: And he then goes 3 on to propose AIDWYC's participation and invites the 4 participation of the Crown as well. 5 Is that your understanding of the letter? 6 DR. JAMES YOUNG: Yes. 7 MR. PHILLIP CAMPBELL: And talks about 8 creating a mechanism for what Mr. Lockyer clearly 9 presumes is going to be a comprehensive review of Dr. 10 Smith's pathology work in past cases. 11 Is that fair to say? 12 DR. JAMES YOUNG: Well I'm not sure that 13 I knew that that's what he said -- he wants some -- and 14 he's thinking there's going to be some kind of a review. 15 MR. PHILLIP CAMPBELL: And it will 16 involve past cases? 17 DR. JAMES YOUNG: I guess taking that out 18 of that one -- yeah, that's fine. 19 MR. PHILLIP CAMPBELL: All right. And 20 you -- he suggests in the third paragraph that, quote: 21 "One (1) idea would be to choose a 22 lawyer, agreeable to yourself and 23 AIDWYC to assist in the 24 investigations." 25 DR. JAMES YOUNG: Mm-hm.
2301 MR. PHILLIP CAMPBELL: And it makes a 2 reference to the qualifications of that person saying: 3 "Such a person could combine his/her 4 legal knowledge and expertise in 5 reviewing past cases and provide 6 necessary assistance to the 7 pathologists chosen to review Dr. 8 Smith's files." 9 DR. JAMES YOUNG: Okay. 10 MR. PHILLIP CAMPBELL: Can I suggest to 11 you that it's apparent that Mr. Lockyer has taken from 12 whatever he has been able to glean about the proposed 13 review, that it will be something considerably more 14 ambitious then you had in mind? 15 DR. JAMES YOUNG: Yes. 16 MR. PHILLIP CAMPBELL: And can I also 17 suggest to you that from the stand point of both the 18 Defence Bar, and a well know and credible organization on 19 behalf of the wrongly convicted, this could reasonably be 20 understood as a request for such a review, albeit, 21 resting on a misinterpretation -- 22 DR. JAMES YOUNG: No. 23 MR. PHILLIP CAMPBELL: -- of the review 24 you'd announced? 25 DR. JAMES YOUNG: No, I would -- I would
2311 not agree to that. It's not a request. It's an offer to 2 -- it's not a request for a review at all. It's a -- a - 3 - an offer to take part in -- in what is been referred to 4 in a -- in a newspaper story as a review that's going to 5 take place. 6 MR. PHILLIP CAMPBELL: You would infer 7 from what Mr. Lockyer is saying, that AIDWYC's view is 8 that such a review is called for and would be a healthy 9 thing? 10 DR. JAMES YOUNG: Well, I think you're -- 11 I think you're reading more into it then I would have. I 12 -- what -- what they're reading -- what they're writing 13 and saying is, We'd like to take part in the review 14 that's been ordered. And what I'm -- I'm thinking of it 15 in the context of the review -- first of all that has 16 been ordered and cancelled, and secondly then in the 17 review that's going to take place or is taking place. 18 I -- I don't see it as -- as strongly as 19 you do. I think he was -- you know, he was offering, 20 will -- will take part in a review and -- but the review 21 isn't going to take place, so. 22 MR. PHILLIP CAMPBELL: And he proposes a 23 model for that review? 24 DR. JAMES YOUNG: Yeah. The -- the -- 25 but, I mean, the review, I had never even got to the
2321 stage of deciding on a model before it had been 2 cancelled. 3 MR. PHILLIP CAMPBELL: Would it be fair 4 to say that the model that he sets up has some 5 similarities -- the model that he proposes, I should say 6 -- has some similarities to the 2005 Chief Coroner's 7 review in the sense that it involves your office, the 8 Crown, and the defence and it involves -- 9 DR. JAMES YOUNG: Well, I don't know the 10 -- how much the review -- honestly, I don't know the 11 model that well that I know that the role that the -- the 12 defence played in the -- in the actual review when it 13 came about. I -- I wasn't party to that. I know the -- 14 MR. PHILLIP CAMPBELL: What about the 15 review of -- of Valin's case and the conviction in that 16 case? Were you aware of how that was ultimately 17 resolved? 18 DR. JAMES YOUNG: No. No, just that it 19 was -- I -- I heard the pathology results and -- and then 20 after that just that there were discussions, but I -- I'm 21 not aware of how -- how it was done, no. 22 MR. PHILLIP CAMPBELL: Let's bring up 23 your response of March 30th at 115718. And you should 24 have that at Volume IV, Tab 6. 25 DR. JAMES YOUNG: Okay. Volume IV.
2331 COMMISSIONER STEPHEN GOUDGE: The white 2 coloured volume. 3 DR. JAMES YOUNG: Okay. Yeah. 4 5 CONTINUED BY MR. PHILLIP CAMPBELL: 6 MR. PHILLIP CAMPBELL: And your response 7 in summary is that Mr. Lockyer has misunderstood the 8 scope of the review and that it is, indeed, only in 9 regard to two (2) specific cases that Dr. Smith was 10 involved in, both of which were abandoned by the Crown. 11 And the point you're making is that there 12 were no convictions. There's nothing for the 13 organization supporting the wrongly convicted even to be 14 engaged with? 15 DR. JAMES YOUNG: That's certainly part 16 of what I'm saying, yeah. I think -- let me have a look 17 here. Yeah, that's certainly what it -- yeah, okay. 18 MR. PHILLIP CAMPBELL: And I think the 19 letter speaks for itself in terms of your -- your view of 20 the nature of the review and -- and its diff -- the way 21 in which it differs from Mr. Lockyer's. What I'm 22 interested in is the timing of the letter. 23 It seems to presuppose as of March 30th, 24 the review is going ahead, is in progress, -- 25 DR. JAMES YOUNG: No, the -- the review
2341 I'm refe -- 2 MR. PHILLIP CAMPBELL: -- such as it is. 3 DR. JAMES YOUNG: The -- the review I'm 4 referring to is the review with the Crowns. 5 MR. PHILLIP CAMPBELL: But the Crown was 6 going to be reviewing up to twenty (20) cases? 7 DR. JAMES YOUNG: Yeah, I -- I understand 8 that, and I -- I said in my evidence I don't know exactly 9 why I worded it the way I did. The -- the review -- I've 10 cancelled the earlier review at this point. The review 11 that is going on is the review of the -- of the cases in 12 preparation for the Crown. 13 I know there's a reference in the 14 Maclean's article of the two (2) cases, as well, but I 15 really don't know. I've read this, you know, repeatedly 16 over the last week, and I can't -- I just don't why I 17 wrote the letter that way. 18 MR. PHILLIP CAMPBELL: Did you dictate 19 it? 20 DR. JAMES YOUNG: Oh, undoubtedly, that's 21 the way I did most of my letters. I dictated letters. I 22 never wrote them out. I quickly dictate them and send 23 them out, but I don't -- I don't know. It's -- it's 24 quite confusing to me. I don't know what I'm talking 25 about here -- with any certainty, I don't know.
2351 MR. PHILLIP CAMPBELL: Does Mr. 2 Mainland's email, 129226, of February 12 reflect the 3 cancellation of the review and tell us that the timing 4 was before that date? 5 DR. JAMES YOUNG: I think so, yes. I -- 6 okay, it's up here now. What's the date there, the 12th? 7 MR. PHILLIP CAMPBELL: February 12th, 8 2001. 9 DR. JAMES YOUNG: Yes, I think that -- 10 that says that -- call off the -- call off the expert 11 right now 'cause we're not going ahead. I think that's 12 correct. 13 MR. PHILLIP CAMPBELL: And it never -- it 14 was never resurrected after that day? 15 DR. JAMES YOUNG: No. 16 MR. PHILLIP CAMPBELL: That reflected a 17 cancellation that you had made and that you stuck by. 18 DR. JAMES YOUNG: Cancellation postponed 19 in the event that we were going to talk about him coming 20 back, but we never had that discussion. So that it -- it 21 wasn't can -- what's the -- what's the legal term when 22 you set something off, but you don't call it back? 23 MR. PHILLIP CAMPBELL: Sine die. 24 DR. JAMES YOUNG: Yeah, sine die. 25 Essentially, I was saying maybe in the future, but it
2361 isn't going ahead now. 2 MR. PHILLIP CAMPBELL: I'd like to know, 3 Dr. Young, because I listened carefully to your testimony 4 about this cancellation, I'd like to know if you made the 5 decision to cancel the review based on the factors that 6 you set out in your testimony in-chief or whether it was 7 driven by legal advice? 8 DR. JAMES YOUNG: No, it was driven by 9 the -- by the facts I set out in my evidence. 10 MR. PHILLIP CAMPBELL: And your analysis? 11 DR. JAMES YOUNG: And my analysis. The 12 legal advice was, unfortunately, a corridor consultation, 13 very -- done very quickly. 14 But no, I -- I had determined in my mind 15 it was the wrong thing to do at this point. I didn't 16 want to proceed with it, and I made that decision. It 17 was the wrong timing, and so I -- I made the decision. 18 MR. PHILLIP CAMPBELL: Did you authorize 19 others to communicate to the public that this rested on 20 legal advice or did you -- 21 DR. JAMES YOUNG: No, I -- I said -- I 22 got -- I had a brief conversation with the lawyer in the 23 Ministry. I said, This is what I'm thinking of doing, 24 this is why I'm doing it. The answer I got back was it 25 makes sense. That's it. That's...
2371 But I -- if I -- I later then said I did 2 it on the basis of legal advice, then I -- that's what I 3 considered that they had listened to me and said, Yeah, 4 that's -- that's fine, that's... 5 But I made the decision and, you know, and 6 I ran it by one (1) of the lawyers to say, Does this make 7 sense, and they said yes. 8 MR. PHILLIP CAMPBELL: Well, the thing 9 about saying that something is based on legal advice, as 10 I suppose you would understand, is that it prevents or 11 has the capacity to prevent scrutiny any further because 12 it's -- 13 DR. JAMES YOUNG: Yeah. 14 MR. PHILLIP CAMPBELL: -- implicit; it 15 is a claim of privilege. 16 DR. JAMES YOUNG: No, that wasn't -- 17 that's not my thinking. I -- that's a lawyer thinking 18 not a doctor. 19 The legal -- by saying that I'm getting 20 legal advice, what I'm saying is, I'm -- you know, I -- 21 there is a good reason why I'm doing this. But I would 22 have done it. I did it because I thought it was the 23 right decision to do and I -- you know. And I thought it 24 was correct decision at that point in time for the 25 reasons I've stated. And I still do.
2381 MR. PHILLIP CAMPBELL: Can we pull up 2 021218? 3 4 (BRIEF PAUSE) 5 6 MR. PHILLIP CAMPBELL: 021218. 7 COMMISSIONER STEPHEN GOUDGE: Is that 8 what you want? 9 MR. PHILLIP CAMPBELL: That's the correct 10 document and I'd like to go to page 82 of it. 11 DR. JAMES YOUNG: Where would I find it? 12 COMMISSIONER STEPHEN GOUDGE: Volume III, 13 Tab 5. 14 MR. PHILLIP CAMPBELL: Page 82. 15 COMMISSIONER STEPHEN GOUDGE: It is a 16 black binder, Dr. Young. 17 DR. JAMES YOUNG: Okay. 18 COMMISSIONER STEPHEN GOUDGE: Page 82? 19 MR. PHILLIP CAMPBELL: That's correct, 20 Commissioner. 21 COMMISSIONER STEPHEN GOUDGE: Numbers at 22 the top of the page or...? 23 MR. PHILLIP CAMPBELL: Yes. 24 COMMISSIONER STEPHEN GOUDGE: Okay. 25 MR. PHILLIP CAMPBELL: Seems to be 83
2391 within the document. 2 3 (BRIEF PAUSE) 4 5 DR. JAMES YOUNG: Okay. 6 7 CONTINUED BY MR. PHILLIP CAMPBELL: 8 MR. PHILLIP CAMPBELL: This I take to be 9 Dr. Cairns at the Kporwodu Preliminary Inquiry, 10 testifying on a voir dire on your cross-examination. 11 Picking up, to get to my point, at about line 16 of the 12 question: 13 "Because that was the one (1) that was 14 in the paper? 15 A: And in fact it was then on his 16 instructions [and he's referring to 17 your instructions, Dr. Cairns is, Dr. 18 Young] that we were told to stop the 19 further independent investigation. We 20 had got to the stage of trying to 21 gather the material. And it had been 22 our viewpoint that once all that 23 material had been gathered, and it 24 would include, obviously, transcripts 25 from preliminary hearings, et cetera,
2401 that it should go and we were searching 2 as to who we should send it to. And 3 then he said, 'I want you to stop that 4 review as a result of legal advice I've 5 obtained'." 6 Does that strike you as consonant with 7 your own recollection of the reality of how the review 8 was stopped? 9 DR. JAMES YOUNG: No. I think -- I think 10 he's paraphrasing it there. I think if you look in Mr. 11 O'Marra's notes, there's a more fulsome explanation of my 12 logic and -- and what I would have said that included the 13 reasons that I stated; that I -- I had concerns that 14 there were too many hearings going on at the same time; 15 we may interfere with each other and I wanted it stopped. 16 So they -- you know, I think one (1) of -- 17 did I say that I had spoken to the lawyers? Yes. 18 But would I -- did I say I stopped it on 19 legal advice? Not in the sense that you're asking or 20 with the -- with the meaning you're -- you're saying is 21 the legal meaning because that's not the way -- that's 22 not the way we would have thought that's the -- that's 23 not a -- you know, I wouldn't interpret that as meaning 24 that as -- as a layperson. 25 MR. PHILLIP CAMPBELL: And I -- and --
2411 and would you say the same thing if it emerged that Dr. 2 Chiasson and Dr. McLellan gave evidence to the same 3 effect in that case? 4 DR. JAMES YOUNG: They may well have 5 taken that out of the -- I -- I'm not saying that I 6 didn't say that I hadn't received some legal advice, but 7 I think the note of Mr. O'Marra reflects the full reason 8 that I gave. 9 I -- I had a detailed reason, including 10 the fact that I -- that the legal people had agreed with 11 me that it was not a good -- but we wouldn't have taken 12 the meaning out of it -- none of us in using it -- but I 13 -- at least I'm not aware of us -- of that kind of 14 meaning by me using that phrase; it wouldn't mean that to 15 me. 16 It -- I don't think it would to the 17 others, either,'cause it's not something we would know 18 that it means that to a lawyer. 19 MR. PHILLIP CAMPBELL: You would be 20 unaware of the notion that if you say something's on the 21 basis of legal advice, the rules of privilege prevent it 22 from being inquired into further. 23 DR. JAMES YOUNG: No -- yeah, that 24 wouldn't be -- I mean we -- if we think about it in those 25 terms could -- can you explain it to me and do I
2421 understand it, yes, but if I use that phrase would I be 2 using that phrase for that reason and with that 3 implication, no, not at all. 4 I'd be simply saying I talked to the 5 lawyers and they agree with us that it's not a good idea 6 to proceed at this time; nothing more and nothing less. 7 I -- not as a means of -- of protecting the information 8 and that wouldn't even be -- that's not even the -- a 9 consideration. 10 I -- I wouldn't even have thought of that 11 or that wouldn't have been a way why I would use the 12 phrase. 13 MR. PHILLIP CAMPBELL: You allowed to 14 proceed the review of the cases still pending in Court, 15 correct? 16 DR. JAMES YOUNG: I encouraged it. 17 MR. PHILLIP CAMPBELL: You initiated it 18 and wanted it to continue. 19 DR. JAMES YOUNG: Well, it -- no, I 20 didn't initiate it so much as it -- we -- we went -- Dr. 21 Cairns and I believe, Dr. Chiasson went -- to see Dr. -- 22 Mr. McMahon, and it was agreed on that this was a good 23 thing and it's something that should happen and 24 certainly, I -- I had no objection; I thought it was -- 25 made sense.
2431 MR. PHILLIP CAMPBELL: Sure. 2 DR. JAMES YOUNG: And it was a -- it was 3 a result I would have expected from that meeting. 4 MR. PHILLIP CAMPBELL: Did you take that 5 Inquiry or review, which went ahead, to be, in its 6 essence and in its purpose, a genuine attempt to 7 determine if Dr. Smith had made mistakes in other cases 8 that should be caught? 9 DR. JAMES YOUNG: No. 10 MR. PHILLIP CAMPBELL: Was it instead an 11 exercise in -- in damage control so that you would be 12 able to say that there had been a review? 13 DR. JAMES YOUNG: No. 14 MR. PHILLIP CAMPBELL: Was it an -- 15 DR. JAMES YOUNG: It was neither. 16 MR. PHILLIP CAMPBELL: Okay. Was it then 17 an exercise in determining whether if he comes under 18 attack you will need a backup opinion to support it? 19 DR. JAMES YOUNG: No, it may -- no, it's 20 not that, either. It's -- the purpose of it is to -- 21 there are a number of pending cases the Crown wants to 22 ensure, in fact, that the information that they're going 23 to go to Court is the correct information and that they 24 want to proceed with the charges. 25 It also means that if there's any doubt
2441 about it, they may want another opinion before they make 2 up that mind. Or in the event that the -- that the other 3 opinion backs Dr. Smith, they may want him -- that 4 opinion to go to Court so that, in fact, knowing full 5 well that his very appearance will -- will result in -- 6 in very stiff questioning. 7 So it's not -- it's serving the purposes 8 of the Crown attorneys in deciding and -- and fulfilling 9 their roles to decide whether or not there's a reasonable 10 prospect of conviction and whether the charges should go 11 ahead or not, and it's -- and it's -- certainly it's done 12 for their purposes, not ours. 13 MR. PHILLIP CAMPBELL: Isn't the logical 14 premise then of that review -- which you endorsed and -- 15 and facilitated -- isn't its logical premise a simple one 16 (1) that if Dr. Smith has got it wrong, in a now 17 significant number of cases, there's at least a 18 possibility we have to address that he's got it wrong in 19 others? 20 DR. JAMES YOUNG: No, that's not the 21 thinking, or the logic, or the discussion that was taking 22 place at the time; no one was talking in those terms. 23 It's fine today to talk and -- and this year in that 24 manner, but that was not the discussion that was taking 25 place to my knowledge.
2451 I wasn't at the meetings with the Crown 2 attorneys, but the Crown attorneys were not saying, We 3 want to institute a further review into all of his other 4 cases. We weren't reading that in editorials in the 5 paper, we weren't hearing that from other people. That 6 was not the discussion that was taking place. 7 The discussion was the Crown attorneys 8 wish this work to be done in order for them to proceed 9 with the cases. And further, he was not doing cases, so 10 there would be no further cases from that point. 11 We were not focussed on issues of wrongful 12 conviction. That was not the discussion. 13 MR. PHILLIP CAMPBELL: Well, with cases 14 pending, though, you're obviously not focussed on 15 wrongful conviction, but you may be focussed on the risk 16 that there will be a wrongful conviction in the future 17 and that the evidence may be wrong. 18 That's surely the only logical reason for 19 opening up cases on which there has been, to that point, 20 no attack; a reasoning from past errors to the 21 possibilities of other errors. 22 Isn't that right? 23 DR. JAMES YOUNG: No, I think what the -- 24 the focus is, let's make sure -- let's make sure that we 25 want to proceed with these charges and let's not be
2461 releasing people either following a preliminary trial or 2 as the trial starts. Let's have a review and make sure 3 that -- that this is what we want to do; we want to 4 proceed in the -- in the cases. But again, I wasn't -- 5 MR. PHILLIP CAMPBELL: To make sure -- 6 DR. JAMES YOUNG: But again, I wasn't -- 7 MR. PHILLIP CAMPBELL: -- got it right. 8 DR. JAMES YOUNG: But -- but you're 9 asking me -- you know, this discussion is taking place 10 with Dr. Chiasson, Dr. Cairns, and Mr. McMahon, and I'm 11 not even there. So I can't -- you know, you're -- you're 12 asking me to think of what they were thinking of. 13 I -- I wasn't party to setting this up. I 14 agreed that it was a great idea, we should do it, but I'm 15 not -- you know, beyond that, I'm not the one that's 16 setting it up or thinking it through, at this point, as 17 to how or what it's achieving. I'm only guessing that 18 that's what the logic was. But I -- I wasn't party to 19 it. 20 MR. PHILLIP CAMPBELL: I -- I guess what 21 I'm getting at -- and I'll you give the chance to address 22 it, although I've got at least one (1) systemic thing I 23 want to get into my dwindling time -- what I'm getting is 24 that, at some point, there does become a powerful line of 25 reasoning that says, if in these series of isolated
2471 cases, this man has made documented errors or at least 2 errors that reputable pathologists say are fundamental 3 and that the justice system has acted upon, it gives rise 4 to the possibility that he has made other errors so far 5 undiscovered. 6 A mechanism is put in place to see if that 7 has happened in a series of pending cases, but your 8 evidence is that the idea that it might have happened 9 throughout this man's career in past cases never dawned 10 on you or anybody in your circle. 11 Is that right? 12 DR. JAMES YOUNG: Anybody in the justice 13 system. Don't -- don't restrict it to my circle. If it 14 dawned on anybody in the justice system, they weren't 15 telling us about it. But -- but, no, I -- I -- 16 MR. PHILLIP CAMPBELL: It dawned on Mr. 17 Lockyer, at least, from AIDWYC? 18 DR. JAMES YOUNG: Well, Mr. Lockyer 19 didn't write back and say why not and why isn't it full? 20 or he didn't phone me or come or see me. He sent a 21 letter, I sent a reply, and I never heard from him again. 22 But it dawned on people, ultimately. 23 MR. MARK SANDLER: I -- I don't want Dr. 24 Young or -- or Mr. Campbell to be inadvertently mislead. 25 There actually is a followup letter from -- from the
2481 letter that wasn't introduced that -- in the exchange, 2 and I just think in fairness, I'm a little concerned 3 that, Commissioner, you might be under a misimpression 4 about it. 115715. 5 6 CONTINUED BY MR. PHILLIP CAMPBELL: 7 MR. PHILLIP CAMPBELL: And for the 8 record, it's -- Mr. Lockyer, a letter dated April 4th, 9 2001, four (4) days after getting your letter says: 10 "I must say that I feel a thorough 11 review of Dr. Smith's past cases is 12 necessary and understood from redai -- 13 media reports that Dr. Smith considered 14 such a review appropriate." 15 He adds: 16 "AIDWYC has had one (1) case under 17 review for some time, a case in which 18 Dr. Smith played a significant role. I 19 will let you know when we have formed 20 our opinion on the case, especially 21 regarding Dr. Smith's role in it." 22 I take the latter paragraph to be a 23 reference to Valin's case, which Mr. Bayliss followed up 24 on in a letter that Mr. Sandler took you to? 25 DR. JAMES YOUNG: Yeah, I -- and I think
2491 at that point what we would have said is, Okay, well, you 2 know, we're -- we would -- I would want to hear from him 3 when they -- when they have a an issue. 4 MR. PHILLIP CAMPBELL: But he does 5 clearly communicate -- 6 DR. JAMES YOUNG: Yeah, I acknowledge 7 that. Yeah, I'd forgotten about that letter, but -- 8 MR. PHILLIP CAMPBELL: -- the need for a 9 thorough review? He communicates that? 10 DR. JAMES YOUNG: Yes, yeah, yeah. 11 MR. PHILLIP CAMPBELL: All right. And 12 the Crown attorney is asking for a review of cases then 13 pending? 14 DR. JAMES YOUNG: Yes. But, you know, I 15 have to take you back to what it is I know and why I'm 16 making the decision I make. You know, it -- it -- in the 17 cold light of today, it's very different then what I knew 18 and what I thought then. 19 For all the reasons I outlined to you, the 20 Amber case was not of particular concern. I knew a 21 limited amount about -- I acknowledged the problems in 22 Nicholas, and I've said what I believed and -- and why. 23 In Jenna's case, at that point, I didn't 24 know about the -- the hair, and I really had no 25 particular concerns in that particular case. In Tyrell's
2501 case, I -- the issue was the lack of getting an opinion 2 beforehand, not the quality of any work that Dr. -- Dr. 3 Smith had done, and in fact, my information with Dr. 4 Cairns was that Mr. Armstrong was content with that. 5 And -- I'm leaving one (1) -- and in -- in 6 -- we had dealt with the issues in Sharon, and the -- and 7 -- so that could -- two (2) cases that concerned me at 8 this point -- that I know that are of a real concern to 9 me are -- are Nicholas and to a lesser extent but to some 10 extent, Sharon. 11 That's the -- that's first of all the 12 knowledge that I have at that point in time. I have, at 13 that point in time, a degree of trust and confidence in 14 Dr. Smith as witnessed by my views about -- about the 15 Amber Case. 16 And in the context of everything else that 17 people were talking about the -- the review -- you know, 18 I've indicated why I did the review, and why I cancelled 19 it, but there was not -- I was not hearing a large amount 20 from other people about the need for a review. 21 You know -- 22 COMMISSIONER STEPHEN GOUDGE: Yeah, 23 you've said that a number of times. 24 DR. JAMES YOUNG: Yep. 25 COMMISSIONER STEPHEN GOUDGE: Mr.
2511 Campbell, you have one (1) systemic issue, then I'm going 2 to have to ask you wind up. 3 MR. PHILLIP CAMPBELL: All right. I'm 4 going to -- 5 COMMISSIONER STEPHEN GOUDGE: Dr. Young, 6 I'm going to ask for your cooperation to -- 7 DR. JAMES YOUNG: Of course. 8 COMMISSIONER STEPHEN GOUDGE: -- try to 9 keep your answers limited if you possibly can, because we 10 have a lot of people who want to ask you questions, in an 11 only limited time. Mr. Campbell...? 12 13 CONTINUED BY MR. PHILLIP CAMPBELL: 14 MR. PHILLIP CAMPBELL: I heard you, Dr. 15 Young, echo evidence given by Dr. McLellan and Dr. 16 Pollanen, that it is inappropriate for the Chief 17 Coroner's Office to initiate a review of its pathology 18 findings at the instance of the defence broadly, or 19 AIDWYC specifically, without the consent of the Crown? 20 DR. JAMES YOUNG: Mm-hm. 21 MR. PHILLIP CAMPBELL: Now, you spoke of 22 the enormous implications when something like that is 23 done. I'd like to suggest to you that in cases of 24 pediatric homicide, where your office or pathologists 25 under your auspices have given the foundational evidence
2521 for the whole case; that is the cause of death is 2 homicide not something else. 3 That if that finding is called credibly 4 into question by submissions from the defence or from 5 AIDWYC, your office is obliged legally, and I would add 6 morally, to entertain those submissions and re-open the 7 question of cause of death, regardless of the 8 consequences and regardless of the assent of the Crown. 9 Do you disagree with that? 10 DR. JAMES YOUNG: I -- my -- I'm not sure 11 that I've actually fully answered what I would do. What 12 I would do if -- if I received a -- a request from AIDWYC 13 about a specific case, I would take that request 14 seriously, and I certainly would be interested in doing a 15 review. 16 What I -- my first line though would be to 17 contact the Crown and indicate that -- that the defence 18 had asked for a review of this case, and to get the 19 Crown's view of -- of that request. I would assume from 20 everything I've done -- in fact in -- in many years in -- 21 in the province, that the Crown would say, Fine then lets 22 go ahead. 23 COMMISSIONER STEPHEN GOUDGE: What if 24 they said no? 25 DR. JAMES YOUNG: Well if they said, No,
2531 what I would do then is ask for a meeting with the three 2 (3) parties. 3 COMMISSIONER STEPHEN GOUDGE: Crown, 4 defence and you? 5 DR. JAMES YOUNG: Yes. And work -- work 6 our way through it. I certainly would take it seriously, 7 and I would certainly -- it would -- I would hope to be - 8 - end up doing it. 9 I have to take some direction from the 10 Crown or I have to take direction from the Crown, 11 ultimately, I -- the Crown are our lawyers and our 12 advisors, but -- 13 14 CONTINUED BY MR. PHILLIP CAMPBELL: 15 MR. PHILLIP CAMPBELL: But the Crown -- 16 just two (2) questions in follow up to that. The Crown 17 in its prosecutorial capacity does not have authority 18 over whether or not you can re-open a death 19 investigation, does it? 20 DR. JAMES YOUNG: Well, the Crown makes 21 the decision in court to proceed, not to proceed, and the 22 Crown has an obligation to weigh all of the evidence and 23 to -- to recognize various sides and to collapse cases 24 when necessary, et cetera, so the Crown is the -- where 25 the defence's job is simply to defend.
2541 So I -- I'm a Crown agent in the sense 2 that I don't necessarily -- our opinions don't have to be 3 the Crown's opinions; our opinions are our opinions 4 whether they help the Crown or the defence. But 5 ultimately, my role in the criminal justice system is 6 through the office of the Crown. That's my -- 7 MR. PHILLIP CAMPBELL: That's -- 8 DR. JAMES YOUNG: -- that's my entry into 9 the system. So I'm going to say to them this needs to -- 10 this needs to be reviewed. And my experience in this 11 Province is we would then agree to review it. I don't -- 12 I can't think of an instance where -- where people fought 13 it or would say no, that's a bad idea, or I won't do it, 14 so. 15 MR. PHILLIP CAMPBELL: Well, if the 16 question was moot, I wouldn't raise it. But that -- 17 DR. JAMES YOUNG: Okay. 18 MR. PHILLIP CAMPBELL: -- your answer 19 leads me to my final question. 20 The Crown is your entree into the criminal 21 justice system. Do you not, or does the Coroner not, 22 under the Coroners Act, have an independent obligation, 23 setting aside its consequences, whatever they may be, for 24 the justice system, to get the cause of death right, and 25 therefore an obligation to entertain new credible
2551 evidence about that question if it's presented to it from 2 any source? 3 DR. JAMES YOUNG: I would do it and I 4 would do it from any source, but I -- I -- if it's 5 already been the subject of a trial and it's already been 6 the subject of a criminal matter, for me to just 7 unilaterally go into that and begin to investigate it and 8 to not have the -- the understanding of the Crown in 9 doing that, I think is wrong. 10 I -- I would fight very hard if there was 11 a view that it needed to be reviewed, but I -- but I 12 still -- I don't think it would be right for the 13 Coroner's Office independently to just launch its own 14 investigation into a criminal matter, willy-nilly, 15 without paying attention to the effect that that can 16 have. 17 That's -- you know, that's not our role in 18 the system; we don't run the criminal justice system. 19 We're a very small part that feeds independent expert 20 advice in, but -- but that's -- we're not the gatekeepers 21 for that system and I'd be very cautious to do -- to do 22 that. And I don't think the Crowns would appreciate it 23 much. 24 MR. PHILLIP CAMPBELL: Well, we could go 25 on but we won't.
2561 DR. JAMES YOUNG: Okay. Thank you, Mr. 2 Campbell. 3 COMMISSIONER STEPHEN GOUDGE: Thank you, 4 Mr. Campbell. 5 Mr. Wardle...? 6 7 (BRIEF PAUSE) 8 9 COMMISSIONER STEPHEN GOUDGE: Mr. Wardle, 10 to meet my own convenience. I confess if you could break 11 fairly promptly, or find a place to break fairly promptly 12 at 5:00, that would be -- I have a phone call I would 13 like to try to participate in at five o'clock and then 14 you can pick it up tomorrow morning. 15 MR. PETER WARDLE: I will do my best, 16 sir. 17 COMMISSIONER STEPHEN GOUDGE: Thank you. 18 19 CROSS-EXAMINATION BY MR. PETER WARDLE: 20 MR. PETER WARDLE: Good afternoon, Dr. 21 Young. 22 DR. JAMES YOUNG: Good afternoon. 23 MR. PETER WARDLE: Just to set the 24 context, Dr. Young, I act for the families and in one (1) 25 case, a caregiver, for -- in these five (5) cases,
2571 Nicholas, Jenna, Sharon, Athena and Tyrell. 2 DR. JAMES YOUNG: Okay. 3 MR. PETER WARDLE: That's a number of the 4 cases that you've been giving evidence on -- 5 DR. JAMES YOUNG: Yes. 6 MR. PETER WARDLE: -- over the last few 7 days. And my questions are going to be focussed really 8 on oversight of Dr. Smith and of the Unit, the OPFPU. 9 DR. JAMES YOUNG: Okay. 10 MR. PETER WARDLE: Can we just start back 11 in 1991 when the Unit was established and funded by your 12 Ministry, and ask you to turn up in Volume I, Tab 16? 13 DR. JAMES YOUNG: Volume I of the black 14 volumes? 15 COMMISSIONER STEPHEN GOUDGE: Black 16 volumes, Dr. Young. 17 DR. JAMES YOUNG: Okay. 18 19 CONTINUED BY MR. PETER WARDLE: 20 MR. PETER WARDLE: And you'll see that 21 this is PFP057355. 22 DR. JAMES YOUNG: Yes. 23 MR. PETER WARDLE: There's the agreement 24 which deals with the grant, if I can put it that way, 25 between the hospital and the Ministry.
2581 Do you see that? 2 DR. JAMES YOUNG: Yeah. 3 MR. PETER WARDLE: And then there's an 4 appendix which is about seven (7) pages into the 5 document, which deals with more operational matters, if 6 you can -- if you can see that. Starting at page 7. 7 DR. JAMES YOUNG: Okay. 8 MR. PETER WARDLE: It describes what the 9 unit is actually to do. 10 DR. JAMES YOUNG: Yes. 11 MR. PETER WARDLE: And there's -- would 12 you agree with me that there's very little in this 13 document about oversight of the unit? 14 DR. JAMES YOUNG: Yes. Yeah, at this 15 point in time, we were -- essentially, we were trying to 16 flow the money in for the work that was being done, and 17 we were -- we certainly sorted out oversight in the sense 18 of administrative oversight later. And -- but there is 19 very little about oversight, that's right. 20 MR. PETER WARDLE: In fact, the only 21 thing I could find about evaluation, if you look at page 22 8, right at the bottom, there's a paragraph, 5B, that 23 says: 24 "A quarterly report of the workload and 25 activities of the unit will be
2591 forwarded to the Chief Coroner's 2 Office." 3 Do you know if that was even ever actually 4 done? 5 DR. JAMES YOUNG: Yeah, I think we were 6 aware of -- of workloads. 7 MR. PETER WARDLE: And then if I can take 8 you to the appointment of Dr. Smith to head up the unit, 9 and that is also in Volume I at Tab 22. And this is 10 PFP044014. 11 This is your letter to Dr. Phillips 12 appointing Dr. Smith. 13 DR. JAMES YOUNG: That's right. 14 MR. PETER WARDLE: And you'll see in the 15 second -- third sentence: 16 "It occurred to me, however, that there 17 will be problems [arising, I think it 18 should have said] from time to time and 19 that the unit should have someone 20 supervising it and accountable for its 21 activity. I recognize that you have 22 been informally doing this to date and 23 wonder whether it might be appropriate 24 to consider appointing someone to this 25 position."
2601 So I take it, your thought at the time was 2 we should have someone in charge of this unit who would 3 supervise its activities and be responsible? 4 DR. JAMES YOUNG: Supervise from an 5 administrative point of view. 6 MR. PETER WARDLE: Right. 7 DR. JAMES YOUNG: Not -- not from a 8 quality assurance point of view. 9 MR. PETER WARDLE: All right. And -- but 10 aside from this letter and the agreement we've seen, 11 there really wasn't anything in writing dealing with 12 quality assurance, at this point in time, was there? 13 DR. JAMES YOUNG: There was nothing in 14 quality assurance in pathology in the Province; we were 15 just beginning to build it. Quality assurance wasn't a 16 term, I think, I ever had heard in 1991 or probably any 17 of us had heard. 18 It wasn't -- that it -- that was not the - 19 - what we -- in labs or anywhere else, we were just 20 beginning to work our way through that. But we -- we're 21 starting with a system of pathology at that time, that 22 we're -- we're trying to get a handle on who's doing it 23 and how -- what -- how qualified they are -- 24 MR. PETER WARDLE: I under -- I 25 understand all that.
2611 DR. JAMES YOUNG: -- so that -- that 2 that's -- we're starting at the bottom end to build it. 3 That's the quality assurance being built in. 4 MR. PETER WARDLE: I understand all that, 5 but this unit is being funded with a couple hundred 6 thousand dollars from your Ministry? 7 DR. JAMES YOUNG: Yeah. 8 MR. PETER WARDLE: And there's nothing in 9 writing that deals with oversight, really, aside from 10 these two (2) documents? 11 DR. JAMES YOUNG: There wouldn't of been 12 in that period of time in any government document. It 13 wasn't -- it wasn't something we were doing at that 14 period of time. 15 MR. PETER WARDLE: Let me go forward a 16 little bit in time and take you to Volume V, Tab 1, and 17 this is PFP137802. And this is a letter March 30, 2007 18 from Dr. Taylor to Dr. Laxer at Sick Kids. 19 Do you have that in front of you? 20 DR. JAMES YOUNG: I do. 21 MR. PETER WARDLE: And this is not a 22 document, sir, you will have seen before, correct? 23 DR. JAMES YOUNG: No. No, I've never 24 seen it. 25 MR. PETER WARDLE: And you'll see it says
2621 in the -- it -- it has: 2 "Re. Coroner's Office, Pediatric 3 Forensic Pathology Unit Agreement. 4 Attached are the contracts for fiscal 5 year 2006/2007 and the original 1991 6 Grant Agreement. I've also attached an 7 email indicating that between 1991 and 8 2004, there were no formal contracts 9 superceding the 1991 agreement." 10 And just stopping there. Is that 11 consistent with your understanding that after the first 12 agreement there was no second agreement until some time 13 around 2004? 14 DR. JAMES YOUNG: I can't argue that 15 point. I wouldn't -- I wouldn't remember. 16 MR. PETER WARDLE: All right. 17 DR. JAMES YOUNG: It's probably so. 18 MR. PETER WARDLE: And then going 19 further, you'll see it says: 20 "Reviewing the 1991 agreement, I do not 21 see any mention of the administrative 22 organizational structure for the 23 provision of forensic pathology 24 services." 25 And again, we've just gone through that
2631 agreement and there really isn't anything in that 2 agreement, the -- 3 DR. JAMES YOUNG: No. 4 MR. PETER WARDLE: -- 1991 agreement, 5 correct? 6 DR. JAMES YOUNG: No, initially, there 7 wasn't. 8 MR. PETER WARDLE: And then this was 9 clearly laid out in the 2004 contract, and, of course, 10 that's a document you're not familiar with, sir, correct, 11 because that's after your tenure as Chief Coroner -- 12 DR. JAMES YOUNG: That's true. 13 MR. PETER WARDLE: -- right? 14 DR. JAMES YOUNG: Right. 15 MR. PETER WARDLE: And the it says: 16 "My understanding was that Dr. Smith, 17 as Director of the Pediatric Forensic 18 Pathology Unit, had responsibility for 19 the administration of the unit. I do 20 not know what his reporting obligations 21 were to the pathology head, the 22 hospital administration, or the Office 23 of the Chief Coroner." 24 And is it fair to say that there really 25 isn't a piece of paper somewhere at any point between
2641 1991 and 2004 that would tell us what Dr. Smith's 2 reporting responsibilities were to the Office of the 3 Chief Coroner? 4 DR. JAMES YOUNG: I don't know that I can 5 answer. I mean I -- I don't know whether there's pieces 6 of paper. What I know is we would have a -- we would 7 have meetings, we would discuss the unit and the running 8 of the unit, and Dr. Smith was part of that process. 9 Was there -- was there a report in 10 writing? I -- at one (1) point there may have been, but 11 I -- I mean what -- what was done was a regular 12 discussion that discussed the functioning of the unit. 13 MR. PETER WARDLE: Is it fair to say that 14 it was a very informal arrangement? 15 DR. JAMES YOUNG: Inform -- well, I mean 16 it -- there was a purpose of what the money was used for 17 and the -- and I mean it -- it was paying costs of -- of 18 running a unit, but it wasn't -- it was never meant that 19 the administrator, for example, would be the quality 20 assurance of the unit; that was never envisioned and it 21 wasn't the way it ran. 22 MR. PETER WARDLE: But there's -- but 23 there's nothing in writing, Dr. Young, dealing with that 24 issue at all one way or the other, is there? There's 25 just nothing at all.
2651 DR. JAMES YOUNG: Yes, there is. There 2 is, there's early correspondence that indicates that the 3 job is administrative and administrative only. 4 MR. PETER WARDLE: But is there -- 5 DR. JAMES YOUNG: I would take into that 6 document -- there's one (1) or two (2) documents that 7 talk about it being an administrative role. 8 MR. PETER WARDLE: But isn't it fair, as 9 Dr. say -- Taylor says in this letter: 10 "I do not know what his reporting 11 obligations were." 12 There's nothing in writing that deal with 13 -- Dr. Smith's reporting obligations were to your office. 14 Isn't that fair? 15 DR. JAMES YOUNG: Well, Dr. Taylor wasn't 16 there when the original unit was set up and -- 17 MR. PETER WARDLE: I know that, sir. You 18 were. I'm asking you. 19 DR. JAMES YOUNG: Yeah, well, there was. 20 There was -- the correspondence was there that indicated 21 that it was administrative only and that was what -- 22 certainly what drove me -- those original documents. 23 That was my understanding and that's how I 24 always operated. 25 MR. PETER WARDLE: Can -- can you point
2661 to a document during your ten (10) year which deals 2 directly with the responsibilities of the Director of 3 this unit because I must say, we have been unable to find 4 such a document? 5 DR. JAMES YOUNG: Somewhere in this set 6 of documents there was documents that -- an original 7 exchange that talked about the role being administrative; 8 that's what I'm referring to. 9 MR. PETER WARDLE: All right. Now -- 10 DR. JAMES YOUNG: I've seen it and I've 11 been questioned on it sometime in the last few days. 12 MR. MARK SANDLER: I questioned Dr. Young 13 on Volume I, Tab 22. 14 15 (BRIEF PAUSE) 16 17 MR. PETER WARDLE: 044014? 18 MR. MARK SANDLER: Tab 23 also deals with 19 some issues of responsibility. 20 21 (BRIEF PAUSE) 22 23 DR. JAMES YOUNG: And there was an 24 earlier document I was shown at some point that talked 25 about Charles not being in charge in -- of the unit in
2671 terms of the -- the quality assurance that he -- that it 2 was an administrative position. And I was asked the 3 question around why that would be and I answered in part 4 that he was the youngest and it would -- in the unit; it 5 would cause some problems. 6 And that -- I -- I don't know where -- 7 where the document is, but the -- in and around this time 8 there was at least one (1) document that talked about it 9 being an administrative position, but I -- I couldn't 10 tell you which one. 11 12 CONTINUED BY MR. PETER WARDLE: 13 MR. PETER WARDLE: But I guess, with -- 14 with respect, whether it was an administrative position 15 or not, it -- there just seems to be a bit of a gap in 16 terms of paperwork with respect to who he reported to and 17 what he reported about. 18 DR. JAMES YOUNG: Fair enough. I mean, 19 it was set up -- we knew -- it was set up, there was a 20 contract and -- and we carried on, but I -- in today's 21 standards, yes, you're right, it -- it's not as detailed 22 as it would have been. 23 That was what the lawyers prepared at the 24 time and we proceeded on that basis. 25 MR. PETER WARDLE: Now you did say, as I
2681 understand it in your evidence that during the early 2 years while Dr. Hillsdon Smith was still involved, there 3 was very little quality assurance coming from him or -- 4 or -- you know, towards the unit. 5 Is that fair? 6 DR. JAMES YOUNG: That's correct. 7 MR. PETER WARDLE: And then as Dr. 8 Chiasson became involved in the mid '90's, things began 9 to change. 10 And you've explained how that process 11 began to change, correct? 12 DR. JAMES YOUNG: We began to change 13 sooner then that, but we certainly accelerated the pace 14 when Dr. Chiasson came onboard. 15 MR. PETER WARDLE: And as I understand 16 it, and we're going to hear from him about the role he 17 played with respect to reviewing some of the post-mortem 18 reports of pathologists around the Province. 19 DR. JAMES YOUNG: Mm-hm. 20 MR. PETER WARDLE: And you're familiar at 21 -- you're familiar with that process? You weren't 22 directly involved in it as I understand, correct? 23 DR. JAMES YOUNG: That's right. That's 24 right. 25 MR. PETER WARDLE: And you didn't have
2691 any direct role in what I would call sort of quality 2 assurance as the work was going on? 3 DR. JAMES YOUNG: No. 4 MR. PETER WARDLE: That simply wasn't 5 your job? 6 DR. JAMES YOUNG: No. 7 MR. PETER WARDLE: Okay. But am I right 8 that you did have an important role to play after the 9 fact, if there was a complaint or some kind of a red flag 10 came up to the surface through the system, you did have a 11 role in trying to deal with that? 12 DR. JAMES YOUNG: Yes. 13 MR. PETER WARDLE: And I just want to 14 take you to Volume IV, Tab 30 and this is a document I 15 want to come back to a number of times. 16 DR. JAMES YOUNG: The white binders? 17 MR. PETER WARDLE: Yes. 18 COMMISSIONER STEPHEN GOUDGE: It's a thin 19 white binder. 20 DR. JAMES YOUNG: Tab 30? 21 22 CONTINUED BY MR. PETER WARDLE: 23 MR. PETER WARDLE: Yes. April 10, 2002. 24 It's PFP144922. 25 Do you have that, Dr. Young?
2701 DR. JAMES YOUNG: Yes, I do. 2 MR. PETER WARDLE: And just looking 3 through it, would you agree with me that this is a 4 somewhat -- it's an important letter because it describes 5 a number of your responsibilities in connection with 6 pathologists? 7 DR. JAMES YOUNG: It -- yes, it does. I 8 didn't -- as recognizing, I didn't write it. 9 MR. PETER WARDLE: I appreciate you may 10 not have authored it, but someone in your office would 11 have authored it, and you would have signed it. 12 DR. JAMES YOUNG: No, I think this is 13 the -- 14 MR. PETER WARDLE: Sorry. 15 DR. JAMES YOUNG: This is the letter 16 that -- 17 MR. MARK SANDLER: This is the one that 18 McCarthy's related. 19 20 CONTINUED BY MR. PETER WARDLE: 21 MR. PETER WARDLE: Okay. I haven't 22 forgotten that, and I'm going to come back to that a 23 little bit later. 24 But someone in your office likely would 25 have reviewed it as well as you? Or would you simply
2711 have signed it? 2 DR. JAMES YOUNG: I don't know. 3 MR. PETER WARDLE: Okay. 4 DR. JAMES YOUNG: I -- I don't know. 5 MR. PETER WARDLE: Can we just look at 6 the first page for a moment. And in the second paragraph 7 there's a -- there's a series of sub-paragraphs, a, b, c, 8 d, and those appear to me to come from Section 4 of the 9 Coroners' Act. 10 DR. JAMES YOUNG: That's correct. 11 MR. PETER WARDLE: And then you'll see it 12 says: 13 "Dr. Smith was involved in the SM, 14 Gagnon and Jenna investigations as 15 agent for the coroner responsible for 16 these investigations." 17 And then there's a reference to three (3) 18 other sections of the Act. And I just want to stop you 19 there and ask you to think about this question: 20 Does the Coroners' Act clearly set out the 21 responsibility of the Chief Coroner with respect to 22 supervision of pathologists? 23 DR. JAMES YOUNG: No. 24 MR. PETER WARDLE: In fact there's a -- 25 there's a bit of a gap in the legislation, is there not?
2721 You have to sort of piece it together? 2 DR. JAMES YOUNG: Well, I mean 3 legislation generally has lots of gaps. When you write 4 legislation, it's very loose and -- and then you fill in 5 the gaps with a regulation. In fact a trend in writing - 6 - in legislation is to put less in, and put more in the 7 regs, because as things change you end up having to open 8 acts too often. 9 So Acts traditionally have all kinds of 10 gaps. You could drive a house through gaps in the Acts 11 normally. 12 MR. PETER WARDLE: No, I understand that, 13 sir, but one (1) of the -- one (1) of the things the 14 Commissioner has to look at is whether the Coroners' Act 15 should be modernized. 16 DR. JAMES YOUNG: Sure. 17 MR. PETER WARDLE: And when -- is it fair 18 to say that when you look at the Coroners' Act there -- 19 first of all, there's not very much about pathologists? 20 DR. JAMES YOUNG: No. I'm not -- I'm not 21 sure the word even appears in the -- in the Act. 22 MR. PETER WARDLE: Correct. And 23 secondly, there is very little about oversight of 24 pathologists, supervision? 25 DR. JAMES YOUNG: That's right.
2731 MR. PETER WARDLE: So -- 2 DR. JAMES YOUNG: It would fall under 3 experts I suppose. And I mean, really the only reference 4 would be in regards to the coroner choosing experts. 5 MR. PETER WARDLE: And there's nothing in 6 the Act that really deals in a direct way with your 7 supervision as Chief Coroner over pathologists who were - 8 - who were doing coroner's warrant work, correct? 9 DR. JAMES YOUNG: No. 10 MR. PETER WARDLE: Okay. 11 DR. JAMES YOUNG: No. 12 MR. PETER WARDLE: And then your role, as 13 I understand it, after the fact, in -- you did have a 14 direct role in investigating a complaint. For example, 15 in the Nicholas case, the complaint about Dr. Smith came 16 to your attention, correct? 17 DR. JAMES YOUNG: Yes. 18 MR. PETER WARDLE: And whether or not the 19 Act said you had a responsibility to deal with it, I 20 assume you thought, as a matter of fact, you were the 21 right person to deal with it. 22 DR. JAMES YOUNG: Yes. 23 MR. PETER WARDLE: Is that fair? 24 DR. JAMES YOUNG: Yes. 25 MR. PETER WARDLE: And similarly, the
2741 complaint that the family made about Dr. Cairns, 2 initially, that also came to your attention as Chief 3 Coroner? 4 DR. JAMES YOUNG: I can't remember if it 5 - whether that went to me or that went directly to the 6 ombudsman. I'm -- I -- I'm just not sure. 7 MR. PETER WARDLE: You may recall that it 8 was -- that it was sent to the Coroners' Council and the 9 Coroners' Council at that point was either inoperative or 10 in the process of being abolished? 11 DR. JAMES YOUNG: I thought the letter 12 that went to the Coroners' Council was -- I'm not sure. 13 I -- I -- 14 MR. PETER WARDLE: All right. 15 DR. JAMES YOUNG: -- my recollection is 16 different that the letter to the Coroners' Council was -- 17 was about Dr. Smith, I think. I think where -- where it 18 came in, once the complaint moved to the ombudsman, the 19 ombudsman decided that he didn't have jurisdiction over 20 Dr. Smith, but he did have jurisdiction over Dr. Cairns. 21 And that's how the thing shifted at that 22 point. 23 MR. PETER WARDLE: All right. But just 24 looking at the letter we've got in front of us, the April 25 10, 2002 letter, and we go over to the second page.
2751 You'll see that in -- about the third paragraph down, the 2 paragraph starting: 3 "Furthermore, the conclusions reached 4 in his post-mortem investigation of the 5 SM and Nicholas cases are within the 6 range of reasonable expectation. As I 7 advise Mr. Gagnon, in response to his 8 complaints in the spring of 1999, there 9 is often a range of opinions amongst 10 experts in any investigation and 11 experts are entitled to their 12 individual opinions. The question, 13 when reviewing an expert's involvement, 14 is whether or not the opinion falls 15 within a reasonable range given the 16 facts of the case. I am satisfied that 17 Dr. Smith's findings were within this 18 range in these two (2) cases." 19 And that terminology that you use in that 20 paragraph, that's not untypical for you. I see that in a 21 number of other documents? 22 DR. JAMES YOUNG: Well, I think this has 23 just about been lifted out of the letter that I wrote 24 back to Mr. Gagnon. So I think -- I think it's a 25 reasonably direct lift out of something I had already
2761 said. 2 MR. PETER WARDLE: In fact, if we just 3 went for a moment to the Nicholas overview report, and 4 that's in Volume II of your volume of the overview 5 reports; Tab 12. 6 DR. JAMES YOUNG: Yes. 7 8 (BRIEF PAUSE) 9 10 MR. PETER WARDLE: At paragraph 178. 11 DR. JAMES YOUNG: Yes, okay. 12 MR. PETER WARDLE: You'll see you refer 13 to the variety of opinions held by the various experts in 14 the case, correct. 15 DR. JAMES YOUNG: Mm-hm. 16 MR. PETER WARDLE: And then a -- a little 17 bit further going over to paragraph 190. This is now 18 referring to the ombudsman investigation. The Solicitor 19 General's letter: 20 "As you are aware from Dr. James Young 21 letter -- letter to you on May 6th, 22 1999, the Chief Coroner of Ontario has 23 reviewed Dr. Smith's involvement in the 24 investigation and concluded that the 25 opinion that Dr. Smith came to was
2771 within a reasonable range, given the 2 facts of the case." 3 DR. JAMES YOUNG: Yeah, I -- I think 4 that's in my letter to Mr. Gagnon -- 5 MR. PETER WARDLE: Yeah. 6 DR. JAMES YOUNG: -- that I stated that. 7 MR. PETER WARDLE: And then one (1) -- 8 just one (1) last reference in your letter to Mr. 9 Lockyer. And let me just turn that up, if I can. This 10 is at Volume IV, Tab 6. 11 12 (BRIEF PAUSE) 13 14 DR. JAMES YOUNG: Yes. 15 MR. PETER WARDLE: And perhaps this is 16 the place where you elaborate a little bit on this whole 17 issue about reasonable range. If you look at the bottom 18 of the first page -- 19 DR. JAMES YOUNG: Mm-hm. 20 MR. PETER WARDLE: -- this is PFP115718, 21 you say -- and I'll -- maybe I'll start in the middle 22 paragraph: 23 "Dr. Smith's role in these cases was to 24 perform an autopsy and to give expert 25 opinion. Any evidence that he gave at
2781 preliminary hearings was, of course, 2 just that, an expert opinion. Had 3 either case gone to trial, Dr. Smith's 4 opinions might have been challenged by 5 other experts." 6 And then you'll see going to the last 7 paragraph: 8 "The standard for reviewing experts and 9 their opinions would seem to me to be 10 as follows: 11 1. Did the expert appear to be 12 unbiased? 13 2. Was the expert willing to consider 14 further information and modify his/her 15 opinion accordingly? 16 3. Did the expert testify within the 17 areas of his/her expertise? 18 And 19 4. Did the expert hold opinions that 20 would fall into a broad range of 21 acceptable opinions with -- within a 22 particular area of expertise?" 23 And then you say: 24 "With respect to the last 25 consideration, it is not simply a
2791 matter of finding another expert who 2 would agree or disagree with the 3 expert's opinion." 4 DR. JAMES YOUNG: Mm. 5 MR. PETER WARDLE: So I take it, Dr. 6 Young, this is something you've encountered a number of 7 times and -- and you have given the matter some thought. 8 As outlined here in this letter to Mr. Lockyer, it's not 9 a simple matter. 10 DR. JAMES YOUNG: Yeah, and it's not just 11 in relationship to pathologists. It's -- I've been, ten 12 (10) years ago, through the Kaufman Inquiry and given 13 this a great deal of thought. 14 MR. PETER WARDLE: So I don't want to 15 take you back to the discussion you had with My Friend, 16 Mr. Campbell. You've told us in some detail over the 17 last four (4) days why you thought that in a number of 18 these cases, to the extent they intersected with you, you 19 thought at the time that Dr. Smith's opinion was within 20 that broad range -- 21 DR. JAMES YOUNG: Mm-hm. 22 MR. PETER WARDLE: -- correct? 23 DR. JAMES YOUNG: Yes. 24 MR. PETER WARDLE: But we have a little 25 bit of a different problem now. We've had three (3) now,
2801 of these international pathologists, come to this hearing 2 and say that in a number of these cases, his opinion and 3 his findings and his conclusions were not within a 4 reasonable range. 5 In fact, that's the question My Friend, 6 Mr. Sandler, put to them repeatedly when they were in the 7 witness box. 8 DR. JAMES YOUNG: Mm-hm. 9 MR. PETER WARDLE: Are you aware of that? 10 DR. JAMES YOUNG: No. I was out of the 11 country for that and I -- you know, and I'm not -- and I 12 don't know either whether those are the same cases or the 13 -- are the cases that I was aware of. 14 MR. PETER WARDLE: So I'm just going to - 15 - I'm not going to take you through this chapter and 16 verse but I'll just give you a little bit of a flavour of 17 what they've said. 18 With respect to Nicholas, Dr. Crane, and 19 you're aware of -- you're familiar with Dr. Crane? 20 DR. JAMES YOUNG: I've never met him but 21 I -- I know him by name, yes. 22 MR. PETER WARDLE: Okay. Dr. Crane's 23 written report says that Dr. Smith's opinion was 24 seriously flawed. And -- and that would raise concerns 25 about whether it fell within a reasonable range if you
2811 read that, correct? 2 DR. JAMES YOUNG: That's his -- would be 3 his view, yes. 4 MR. PETER WARDLE: And in his testimony - 5 - and this is in November the 20th at page 37 -- he asked 6 whether Dr. Smith's opinion was a reasonable opinion and 7 he said it was not. 8 In the Jenna case, Professor Milroy, 9 dealing with the timing of the injuries -- and again, I'm 10 not -- I'm not taking you through this to criticize you, 11 Dr. Young. 12 DR. JAMES YOUNG: No, I know. 13 MR. PETER WARDLE: I want to make a 14 systemic point if I can. 15 DR. JAMES YOUNG: Yeah, that's fine. 16 MR. PETER WARDLE: Okay? 17 DR. JAMES YOUNG: Because I was unaware 18 of the injuries and the timing -- 19 MR. PETER WARDLE: I -- 20 DR. JAMES YOUNG: -- issue, so -- 21 MR. PETER WARDLE: -- understand all 22 that, but -- 23 DR. JAMES YOUNG: -- I never arbitrated 24 upon it. 25 MR. PETER WARDLE: Right. But Professor
2821 Milroy said he was asked a question by My Friend, Mr. 2 Sandler. And with respect to the timing, he said it 3 wasn't a close call. This is at November the 19th, page 4 136. He said: 5 "That the opinion was unreasonable; it 6 was based on a wrong interpretation of 7 the pathology." 8 This is at page 173. 9 In the Sharon case, Professor Milroy said 10 that the conclusions were unreasonable. 11 In the Tyrell case, Dr. Crane -- sorry, I 12 should give the reference for the Sharon case. This is 13 November 19th at page 53. 14 In the Tyrell case, November the 20th, 15 page 210, Dr. Crane, dealing with the neurological 16 consult, said that these were not reasonable findings. 17 So that the tenor of the evidence, you 18 know, and we are using the retroscope, so -- and you 19 dealt with these cases in passing at a much different 20 time with a much different knowledge base, correct? 21 DR. JAMES YOUNG: Yes. 22 MR. PETER WARDLE: But what we have now 23 is we have all of these international experts coming to 24 the Commission and, in response to questions from My 25 Friends, saying these are not within a reasonable range;
2831 these are outside that broad range you talked about in 2 the letter to Mr. Lockyer. 3 So, my question for you is this, really, 4 does that suggest that in terms of oversight, after the 5 fact, in dealing with a complaint or a red flag that's 6 raised, that it should be someone other than the Chief 7 Coroner or people within the Chief Coroner's Office who 8 deal with those kinds of issues as they make their way to 9 the surface? 10 DR. JAMES YOUNG: Yes, it -- it -- on 11 occasion. I think you -- the difficulty in saying an 12 absolute yes, I mean -- I think I've indicated very 13 clearly that my preferred method would be to engage 14 somebody outside to -- to review cases. 15 The question really in my mind is 16 establishing the threshold of when you do that. You 17 don't do it every time there's a complaint or every time 18 someone goes to Court and disagrees with someone else. 19 It -- it's -- the question and the issue for the 20 Commission is, I think I totally agree that you want to 21 get them reviewed and I think an external review is 22 usually better than in internal review; it's finding the 23 people, but it's finding the cases, too, that becomes a 24 challenge. 25 MR. PETER WARDLE: In fact, one (1) of
2841 the -- one (1) of -- when I took Dr. Cairns through this 2 in the context of the Nicholas case and at the time we 3 were discussing the Coroner's Manual, Dr. Cairns also -- 4 actually volunteered, without me really asking him this, 5 that it would be helpful to have some guidance on this 6 question. 7 In other words, helpful for the Office of 8 the Chief Coroner to have some guidance as to when you do 9 go outside for an independent opinion. 10 DR. JAMES YOUNG: Yeah. 11 MR. PETER WARDLE: And would you agree 12 with that? 13 DR. JAMES YOUNG: Yeah, I -- the problem 14 I always find with protocol is when people try to define 15 things in advance, though, is that they're a lot harder 16 to actually write and to figure out all of the situations 17 than it sound -- it always sounds great. 18 We -- we went through an exercise in 19 Ontario trying to figure out -- define for me when the 20 Cabinet should call an emergency. And we batted it 21 around for six (6) months, but in the end, you know, you 22 can have all kinds of debate about it and then you 23 realize, Oh, we forgot this, or what about this, or what 24 about this circumstance and not this one (1), and it gets 25 so complicated that it comes down to common sense at some
2851 point. 2 The -- what you're trying to do, I -- I 3 support and I agree with you. Writing an exact protocol 4 that always fits and you can figure out which cases, 5 that's the challenge, but the principle of doing it, I -- 6 I agree and I think you can do some sort of broad 7 guidance; these are the kinds of cases. 8 The more defined you make it, the -- the 9 more likely people are to miss something because, Well, 10 it didn't quite qualify and we'd be sitting here ten (10) 11 years from now saying, Well, here was the document and I 12 interpret it this way and it didn't meet the -- it didn't 13 meet the standard, so... 14 But I agree with you. It's just a hard 15 thing to do in great detail. That would be my warning. 16 MR. PETER WARDLE: It's -- it's a hard 17 problem, but it's something that's really at the core of 18 what we're doing here in this Inquiry, would you agree? 19 DR. JAMES YOUNG: No, I have no issue 20 with that. I -- it's -- the question is, how defined to 21 make it not whether to agree to do it. I agree to do it. 22 I agree external is best. I agree you develop a 23 protocol. I just think the protocol -- in my experience, 24 the protocol should stay reasonably broad and capture 25 more, than to be, the more specific it is, the more that
2861 people get using it as a check sheet; that's when you're 2 going to have problems, that's -- that would be my point. 3 MR. PETER WARDLE: And could we add to 4 that the fact that as these cases were, you know, coming 5 to you on a -- on an irregular basis. You know, in the 6 way they were coming to you, as complaints, as things you 7 were hearing about in the office; whatever it was through 8 your tenure as Chief Coroner, you weren't getting a 9 complete package because you weren't getting the 10 testimony, for example. 11 So, you know, for all the reasons you've 12 described, your office was only seeing one (1) piece of 13 the puzzle. 14 DR. JAMES YOUNG: Well, and it's very 15 difficult. I mean, some of the cases, as we know, relate 16 to testimony and the quality of testimony, and that's the 17 -- that's the piece that is so hard to bring into the -- 18 in that loop of what's happening in Court and how you 19 monitor Court testimony is -- is really a difficult -- 20 not one (1) that I think anyone has successfully tackled 21 at this point, that I'm aware of. 22 23 (BRIEF PAUSE) 24 25 MR. PETER WARDLE: Commissioner, I'm
2871 going to start into a -- a new area that I probably can't 2 finish in ten (10) minutes or so, so would this be an 3 appropriate time for a break? 4 COMMISSIONER STEPHEN GOUDGE: Sure. You 5 are pretty comfortable with your time allocation? 6 MR. PETER WARDLE: I'm going to finish in 7 twenty (20) minutes, twenty/twenty-five (20/25) minutes. 8 COMMISSIONER STEPHEN GOUDGE: Right. 9 MR. PETER WARDLE: But I can't do it by 10 five o'clock. 11 COMMISSIONER STEPHEN GOUDGE: Okay. And 12 you'll be done entirely? 13 MR. PETER WARDLE: Yes. 14 COMMISSIONER STEPHEN GOUDGE: With that 15 incentive, we'll break now until 9:30 tomorrow morning. 16 MR. PETER WARDLE: I thought it might. 17 18 (WITNESS RETIRES) 19 20 --- Upon adjourning at 4:45 p.m. 21 Certified correct, 22 23 _________________ 24 Rolanda Lokey, Ms. 25