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 4th, 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 (np) ) 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 ) 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 (np) ) seven unnamed persons 11 12 Peter Wardle ) Affected Families Group 13 Julie Kirkpatrick ) 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 (np) ) of Toronto and Nishnawbe 23 Sheila Cuthbertson (np) ) Aski-Nation 24 Julian Falconer ) 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 Continued Cross-Examination by Mr. Peter Wardle 7 5 Cross-Examination by Mr. Louis Sokolov 43 6 Cross-Examination by Ms. Mara Greene 65 7 Cross-Examination by Mr. Julian Falconer 79 8 Cross-Examination by Ms. Suzan Fraser 114 9 Cross-Examination by Mr. William Manuel 141 10 Cross-Examination by Mr. William Carter 165 11 Cross-Examination by Ms. Carolyn Silver 174 12 Re-Cross-Examination by Mr. Brian Gover 216 13 Re-direct Examination by Mr. Mark Sandler 220 14 15 16 17 Certificate of transcript 259 18 19 20 21 22 23 24 25
61 --- Upon commencing at 9:30 a.m. 2 3 THE REGISTRAR: All rise. Please be 4 seated. 5 COMMISSIONER STEPHEN GOUDGE: Good 6 morning. 7 MR. PETER WARDLE: Good morning, Mr. 8 Commissioner. I understand that I've caused My Friend, 9 Mr. Centa, some consternation, because overnight I 10 decided that I might actually be longer then twenty-five 11 (25) minutes. And I apologize for that, but I still will 12 be within my allotted time. 13 COMMISSIONER STEPHEN GOUDGE: Your 14 allotted time as of the end of yesterday or your allotted 15 time as of...? 16 Okay, but try to be expeditious, okay, 17 because we've prepared this in a way -- now your allotted 18 time gave you -- just so I'll be able to keep time, you 19 were to have -- 20 MR. PETER WARDLE: An hour and a half, 21 sir. And I've used up, as I recall, thirty-five (35) 22 minutes of that. 23 COMMISSIONER STEPHEN GOUDGE: All right. 24 MR. PETER WARDLE: Sorry, I'm -- 25 COMMISSIONER STEPHEN GOUDGE: Why don't
71 we say you've got forty-five (45) minutes. Can you do it 2 in forty-five (45) minutes? 3 MR. PETER WARDLE: And -- and I will be 4 well within that time. 5 COMMISSIONER STEPHEN GOUDGE: Okay. Why 6 don't we -- 7 MR. PETER WARDLE: But I won't be twenty- 8 five (25) minutes. 9 COMMISSIONER STEPHEN GOUDGE: Okay. 10 forty-five (45) minutes then. 11 MR. PETER WARDLE: Thank you, sir. If I 12 finish early, do I get some small reward, a -- 13 COMMISSIONER STEPHEN GOUDGE: Early in my 14 book is under twenty-five (25) minutes. And if you do 15 that, you'll get a big reward. 16 MR. PETER WARDLE: Well, I'll work on 17 that, starting right now. 18 19 JAMES GORDON YOUNG, Resumed 20 21 CONTINUED CROSS-EXAMINATION BY MR. PETER WARDLE: 22 MR. PETER WARDLE: Dr. Young, can I take 23 you to the events of January 2001? 24 And I'm going to go through them in a 25 slightly different way then My Friend Mr. Campbell did.
81 But I want to start first with the decision to ask Dr. 2 Smith not to do more cases. 3 DR. JAMES YOUNG: Okay. 4 MR. PETER WARDLE: And, do I understand 5 it that there were a number of factors, you called it a 6 combination of factors, that led to that? 7 DR. JAMES YOUNG: There was -- a number 8 of cases were coming together at that point in time and I 9 took the decision that he would no longer do cases at 10 that time. 11 MR. PETER WARDLE: And the factors 12 included, as I understand it, the withdrawal of the 13 charges in Sharon's case and in Tyrell's case? 14 DR. JAMES YOUNG: That's -- they were 15 probably the major of the factors. 16 MR. PETER WARDLE: And in addition, The 17 Fifth Estate and the publicity surrounding that? 18 DR. JAMES YOUNG: Exactly. 19 MR. PETER WARDLE: All right. And you 20 told us that Dr. Smith had become an enormous lightning 21 rod at that point. 22 Do you remember saying that? 23 DR. JAMES YOUNG: Yes. That was -- that 24 was my analogy, that when I talked to him, was that he 25 was a lightning rod.
91 MR. PETER WARDLE: And that he would 2 benefit from time away? 3 DR. JAMES YOUNG: He would benefit, and 4 the Office would benefit. 5 MR. PETER WARDLE: Yeah. And you had a 6 meeting with him early in the morning late in the month, 7 correct, just before his letter came out? 8 DR. JAMES YOUNG: Quite early in the 9 morning, that's right. 10 MR. PETER WARDLE: And as I understand 11 it, what you said at the meeting was that he had become a 12 lightning rod and the everything he did from that point 13 forward would attract undue attention. 14 DR. JAMES YOUNG: That's correct. 15 MR. PETER WARDLE: And that is was a 16 problem for both the Office and for him. 17 DR. JAMES YOUNG: Yes. 18 MR. PETER WARDLE: So am I right that 19 this concept of the lightning rod, one (1) of the things 20 you were thinking of was that it reduced Dr. Smith's 21 effectiveness, correct? 22 DR. JAMES YOUNG: Exactly. If you go to 23 Court and every time you go to Court you're spending days 24 defending your reputation, that's not good for you, but 25 it's also not good for the Office.
101 MR. PETER WARDLE: And one (1) of the 2 examples we might pick of that is a little later on when 3 some of the members of the committee, the Under Two 4 Committee or the Death Under Five Committee, didn't want 5 to be on the Committee with him, it wouldn't be so much a 6 matter of his competence, but it certainly would be a 7 matter of his effectiveness, correct? 8 DR. JAMES YOUNG: Exactly, or -- or the 9 -- the association. Exactly, that was the fall of 2003, 10 that's right. 11 MR. PETER WARDLE: Now, would it also be 12 fair to say that a second part of the lightning rod 13 effect was the impact on the Office of the Chief Coroner 14 as a unit? 15 DR. JAMES YOUNG: Yes. Yes, I have to -- 16 I have to make my decisions. I mean I want to pay 17 attention to the well-being of the person, but I -- I 18 have a system to run and I have to weigh that and -- and 19 protect that. I -- the integrity of the Office is 20 important. 21 MR. PETER WARDLE: And I'm just going to 22 take you to one (1) reference, but earlier when you were 23 asked by Mr. Sandler about the Maclean's interview and 24 Dr. Cairns making a comment and you wanting him to be 25 cautious and conservative, you said -- and I'm -- and I'm
111 paraphrasing, but my notes have: 2 "At this point in time I was becoming 3 worried about the potential damage to 4 the Office of the Chief Coroner and I 5 didn't want any strong endorsements of 6 Dr. Smith at this time." 7 Do you recall saying that or words to that 8 effect? 9 DR. JAMES YOUNG: Yes. We had already -- 10 he was not doing cases and I was worried enough to stop 11 him doing cases, so I certainly didn't want to -- a 12 strong endorsement at that point in time. 13 MR. PETER WARDLE: So is it fair to say 14 or -- and for the Commissioner to draw this conclusion 15 that as we get into 2001, one (1) of your concerns was 16 about the credibility of your office and the need to 17 preserve public confidence in your office? 18 DR. JAMES YOUNG: Yes. 19 MR. PETER WARDLE: Now, I want to take 20 you very briefly to the reviews. 21 And first of all, as I understand it, 22 there were three (3) reviews contemplated originally. 23 DR. JAMES YOUNG: No, there were two (2) 24 contemplated originally. The third, the Carpenter 25 Review, was added when we got into the problem of
121 manpower an decided that he would come back, but that was 2 not part of the original -- the original plan or the 3 original -- not in my mind; it -- it came about as a 4 matter of necessity. 5 MR. PETER WARDLE: All right. Well, let 6 me walk you through this because I think it may be just a 7 matter of characterisation. 8 DR. JAMES YOUNG: Okay. 9 MR. PETER WARDLE: There was at some 10 point in 2001 an internal review carried out by Dr. 11 Cairns and other people within your office, correct? 12 DR. JAMES YOUNG: The review that I think 13 you're referring to is the review or the work that was 14 done on behalf of the -- the Crown attorneys and the 15 Attorney General. 16 MR. PETER WARDLE: Well, that's what I 17 want to explore. There was an effort made to reach out 18 the Crown system, correct? 19 DR. JAMES YOUNG: Yeah, and that work -- 20 in my mind, that was relative to that work that that was 21 done. 22 MR. PETER WARDLE: Okay. And the Crowns 23 identified -- the Crowns and the police identified a 24 number of cases and these were cases that were in the 25 system that -- in which Dr. Smith was a witness, correct?
131 DR. JAMES YOUNG: Either cases where Dr. 2 Smith was a witness or cases where the issues of that 3 case might be raised as part of another case and 4 therefore they wanted to have looked at them and have 5 answers for the Crowns. 6 And so it was to do that and the other 7 purpose of it was if the Crowns wished further expert 8 advice to -- to do that for them, to find the people, 9 such as Dr. Dowling, for example, in the one (1) -- in 10 the one (1) case. 11 MR. PETER WARDLE: And -- and this is the 12 review that led to the identification of approximately 13 seventeen (17) or eighteen (18) cases, correct? 14 DR. JAMES YOUNG: Yeah, I -- I wasn't 15 part of that in the sense that I -- I knew they were 16 doing it; I wasn't there for the discussions. I -- I 17 think that's right, but I really couldn't say with any 18 certainty. 19 MR. PETER WARDLE: All right. And so 20 there were two purposes. One (1) of the purposes was to 21 identify any cases which might require an external review 22 by an independent party, correct? 23 DR. JAMES YOUNG: Yes. 24 MR. PETER WARDLE: And one (1) was for 25 the Coroner's Office, not you, but Dr. Cairns and other
141 people, to review those cases to see if there were any 2 concerns, correct? 3 DR. JAMES YOUNG: I'm not sure that it -- 4 I mean, in my mind the focus of it was -- was serving the 5 needs of -- of the Crown attorney's office for the 6 courts. I'm not sure -- I didn't view it as a review of 7 Dr. Smith on behalf of the Office, I viewed it as these 8 cases are still before the courts, he's not doing any 9 other cases, these cases are before the courts and this 10 is to ensure that the court process is running as 11 smoothly as possible. 12 If there was a review on behalf of the 13 Office, the review -- that would have been the review 14 that I cancelled. In my mind, that was -- that was the 15 purpose of that. Before he goes back and does cases, I 16 want to know that I'm satisfied that I want him to 17 continue to do cases. 18 MR. PETER WARDLE: But just focussing for 19 a moment on the review that was done in conjunction with 20 the Crown's office. 21 DR. JAMES YOUNG: Mm-hm. 22 MR. PETER WARDLE: That was not a review 23 done for the purpose of determining whether Dr. Smith 24 could go back to work, correct? 25 DR. JAMES YOUNG: No, absolutely not.
151 MR. PETER WARDLE: So would I -- would it 2 be fair to say that the purpose of that, to the extent it 3 was done either internally or externally, was to consider 4 questions of competence and whether his opinion in those 5 cases was a valid opinion? 6 DR. JAMES YOUNG: Well, I would 7 characterize it broader. It was to serve the needs of 8 the Crown attorney system, for them to go to court and be 9 satisfied. Do they need further opinions? Do they 10 withdraw charges? Do they go ahead? 11 You know, that was the purpose of it, as 12 far as I was concerned. And as I've said, all of the 13 discussion of that and the negotiation was with Dr. 14 Cairns, Dr. Chiasson and Mr. McMahon. 15 So -- but in my mind that's what we were 16 doing; that was the purpose of that particular -- 17 COMMISSIONER STEPHEN GOUDGE: From your 18 perspective, Dr. Young, that was not retrospective at 19 all? That was not to look at any -- 20 DR. JAMES YOUNG: No. 21 COMMISSIONER STEPHEN GOUDGE: -- cases 22 that were concluded in the court system but only to see 23 that the cases going forward were done properly? 24 DR. JAMES YOUNG: Exactly. Or if there 25 was a particular -- if there was a particular thing that
161 might arise in court. For example, the -- none -- none 2 of the cases that had proceeded to trial and yet were 3 being publicized, there might be questions by the Crown 4 in regards to those, so they would be prepared to provide 5 information or answer any Crown queries in regards to 6 those; the -- the Sharon case, the Tyrell case, even 7 though they hadn't gone to court. 8 It was certainly not intended at any point 9 to review cases that had already gone to court. 10 11 CONTINUED BY MR. PETER WARDLE: 12 MR. PETER WARDLE: And then there was -- 13 DR. JAMES YOUNG: To the best of my 14 knowledge, anyway. 15 MR. PETER WARDLE: Then there was the 16 Carpenter Review. And as I understand it, the Carpenter 17 Review was a review of six (6) specific cases to 18 determine whether Dr. Smith could go back to doing non- 19 criminally suspicious autopsy work, correct? 20 DR. JAMES YOUNG: They were cases that 21 were exactly of the type that he would be going back to 22 do to ensure then that we satisfied and could demonstrate 23 to people -- we knew we had the need, we knew that -- 24 that we needed to be assured that it was okay for him to 25 go back and doing those, so they were the check in that
171 system. 2 MR. PETER WARDLE: And then as I 3 understand it, there was a -- some consideration given to 4 a broader external review and that's the review you 5 decided, as you told us the other day, not to proceed 6 with at that time? 7 DR. JAMES YOUNG: No, no. The review -- 8 the review that you're talking about is the review that I 9 was -- had discussed with Charles and is the one (1) line 10 in that -- in that -- 11 COMMISSIONER STEPHEN GOUDGE: Press 12 release. 13 DR. JAMES YOUNG: -- press -- or letter-- 14 COMMISSIONER STEPHEN GOUDGE: Yeah. 15 DR. JAMES YOUNG: -- that he sent me. 16 And the purpose of that review was to determine before he 17 came back and started doing case, that I was satisfied 18 that -- that we should make that move; that was the 19 purpose; that was what was in my mind; that was why I was 20 doing it. 21 It was not -- I wouldn't characterize it 22 as a review for any other purpose other than to help me 23 decide that -- whether or not he would come back and do 24 cases. 25
181 CONTINUED BY MR. PETER WARDLE: 2 MR. PETER WARDLE: If we could just turn 3 up for a moment Volume IV, Tab 2, and that's PFP139736. 4 DR. JAMES YOUNG: Volume IV, in the 5 white? 6 COMMISSIONER STEPHEN GOUDGE: Yes. 7 8 CONTINUED BY MR. PETER WARDLE: 9 MR. PETER WARDLE: Yes. 10 DR. JAMES YOUNG: Tab 2? 11 MR. PETER WARDLE: Correct. 12 DR. JAMES YOUNG: Okay. 13 MR. PETER WARDLE: And you'll see these 14 are notes of a meeting at the Pathology boardroom on 15 January 26, 2001. 16 DR. JAMES YOUNG: Mm-hm. 17 MR. PETER WARDLE: And if memory serves, 18 January 26, 2001 is also the day you spoke to The Whig 19 Standard, coincidentally. 20 DR. JAMES YOUNG: I -- I won't -- 21 MR. PETER WARDLE: You wouldn't -- 22 DR. JAMES YOUNG: -- argue. I won't 23 debate it, I wouldn't know. 24 MR. PETER WARDLE: All right. Now this 25 is a meeting you're not at, from the participants who are
191 listed at the top, correct? 2 DR. JAMES YOUNG: I -- it would appear I 3 wasn't at it, that's right. 4 MR. PETER WARDLE: All right. You'll see 5 though, if we look about three (3) or four (4) lines 6 down, the word "review" appears. 7 DR. JAMES YOUNG: Mm-hm. 8 MR. PETER WARDLE: And then you'll see 9 the words, "external, US, England, Australia". Above 10 that, "purpose, forensic not pathology per se." 11 Do you see that? 12 DR. JAMES YOUNG: Mm-hm. 13 MR. PETER WARDLE: And then right below 14 that too, "is he a good forensic pathologist?" 15 DR. JAMES YOUNG: Mm-hm. 16 MR. PETER WARDLE: So I took it from this 17 note that at this time there was at least some 18 consideration being given within your office to some sort 19 of broader review that would focus on that question. 20 DR. JAMES YOUNG: No. The review that -- 21 the review that I was -- and I can only speak from my 22 mind, I wasn't at this meeting and I'm not interpreting 23 what they're doing. 24 The purpose of the meeting and the 25 discussion in the meeting had been on the January meeting
201 when Charles had said to me, If I agree to do this, can I 2 come back, and what's going to happen? And my answer 3 was, If you're going to come back, we would have to do 4 some form of a review first. 5 I spoke to both Dr. Cairns and Dr. 6 Chiasson and said, If we're going to do this, it would be 7 external. We would bring somebody in, in order to do 8 that, and you should start thinking about it and start 9 planning what it would be. 10 Now what they're planning and what they 11 are -- are thinking, and my thinking at that time quite 12 possibly could be different, because they -- they went 13 off to start to figure out which cases and how they would 14 do it, and who would do it, knowing that it would be a 15 very difficult role. 16 I had in my mind, this was the purpose of 17 the review. When the -- when the controversy continued 18 and -- and Sharon's lawsuit was launched, et cetera, and 19 the College was moving ahead, I made the decision at that 20 point in time that I wanted to wait for that review, that 21 he was not going to be doing cases. 22 I would have the benefit of the 23 information of the College review as well to help me in 24 form my decision of what I would do in the future and 25 that I would cancel it at that point in time, because it
211 wouldn't serve my purpose. I wasn't prepared to 2 reinstate him until these matters were resolved. So I 3 might as well have the best information. 4 That's all that was in my mind from the 5 beginning. And I -- I can't -- I'm not -- I can't put 6 words or thoughts in either Mr. O'Marra's mind or Dr. 7 Cairns. I know what I intended to do with the review at 8 that point in time. 9 MR. PETER WARDLE: Lets just look at one 10 (1) document, if we may, on this subject, at Volume V, 11 Tab 11. It's PFP043 -- 12 DR. JAMES YOUNG: Yep. 13 MR. PETER WARDLE: -- 561. 14 DR. JAMES YOUNG: Mm-hm. 15 MR. PETER WARDLE: So this is the Whig 16 article on the 26th, and you'll see about a third of the 17 way down: 18 "Young said he has completed an 19 investigation into the disappearance of 20 the evidence and he had ordered another 21 probe that will focus on Smith's 22 initial conclusions about how the child 23 died." 24 Do you see that? 25 DR. JAMES YOUNG: Mm-hm.
221 MR. PETER WARDLE: And then down at the 2 bottom of the page: 3 "More important then the lost material, 4 Young maintains, is an independent 5 review of Smith's initial conclusions 6 that the girl was murdered and that a 7 dog did not attack her." 8 DR. JAMES YOUNG: Mm-hm. 9 MR. PETER WARDLE: And then at the next 10 page, at the top: 11 "Whether Dr. Smith's view initially is 12 supportable is the purpose of having 13 the review, Young said." 14 Now with respect, Dr. Young, that doesn't 15 sound to me like a review that's being done for the 16 purpose of determining whether he can go back to work. 17 DR. JAMES YOUNG: Well one (1) of the 18 cases that would have been reviewed is this case. Very 19 logically in my mind that would have been -- that would 20 have been -- you know -- you're obviously going to decide 21 in large part based on -- on the particular cases that 22 have caused the problem. 23 So in my -- that's very logical in my 24 mind. I -- I would have included that. It would have 25 been the first -- first thing that would pop into my mind
231 is that we will review, I think that case and -- and I -- 2 I made my decision to not have him doing cases on the 3 basis of the -- of what I know about the -- this case and 4 the events of Tyrell. So those are the two (2) that I'm 5 going to review for sure. 6 What else is reviewed, I haven't made up 7 my mind. I -- I make the commitment to him that I'll do 8 the review, but beyond that, I don't -- I haven't flushed 9 it out yet. I've sent others off to think about it. 10 They haven't come back and given me a -- a plan at this 11 point. 12 MR. PETER WARDLE: Now, this review was - 13 - you did not proceed with before -- the review we're 14 talking about now? 15 DR. JAMES YOUNG: That's right. 16 MR. PETER WARDLE: And there was no 17 public announcement, although you told a press person 18 about it. There was no public announcement that this 19 review was not being proceeded with? 20 DR. JAMES YOUNG: There was -- there was 21 no public announcement that this review was being done. 22 I mean, I happened to be interviewed. I was asked a 23 question that lead me to -- to disclosing it. A period 24 of time later I was called by Mr. Levy from the Toronto 25 Start; said How's the review proceeding, and I said, It's
241 not, I'm not -- I'm not moving ahead with it. 2 It was no -- it wasn't a secret, but I 3 didn't make it a public statement. Either way this is 4 was an administrative matter with Dr. Smith. But I 5 wasn't afraid to say it, but I wasn't going to 6 necessarily publically announce it. 7 MR. PETER WARDLE: Right. In fact, what 8 you told us was that you didn't actually tell Dr. Smith 9 about that and you might owe him an apology because you 10 never told him? 11 DR. JAMES YOUNG: I forgot to tell him 12 that I changed my mind that I was -- that he wasn't 13 coming back, that's right, and that I had postponed the - 14 - I believe I did anyway. I agree. 15 MR. PETER WARDLE: And then I think what 16 you told us or what you told My Friend, Mr. Sandler, was 17 that you weren't prepared to reinstate Dr. Smith, and 18 while these other processes were going on -- and by that 19 I think you meant the civil lawsuits and the College 20 processes -- you were simply going to suspend the review 21 and see what you could learn from those investigations. 22 DR. JAMES YOUNG: That's right. 23 MR. PETER WARDLE: Is that fair? 24 DR. JAMES YOUNG: Yes. 25 MR. PETER WARDLE: Okay. And this is why
251 -- this is where I see a -- a bit of a disconnect, with 2 respect, because you told us earlier, and your position 3 in writing throughout this whole series of events, was 4 that the College wasn't the appropriate place to be 5 investigating the work of one (1) of your pathologists, 6 correct? 7 DR. JAMES YOUNG: Yes and no. I had -- I 8 had a strong view that the College was not the 9 appropriate place for a coroner. I have misgivings about 10 the College -- the College's ability to do -- because of 11 the court side, but I always conceded that that argument 12 was much weaker and that a -- an autopsy might well be a 13 medical act for a pathologist. 14 But by this point in time, the College -- 15 were proceeding and eventually as -- as -- what happened, 16 we conceded. I mean, the -- when the College -- when 17 they -- I can't remember the name of the review committee 18 that ruled that they had jurisdiction -- we made a very 19 clear, very deliberate decision not to appeal that, not 20 to -- to allow the College to go ahead with our blessing. 21 MR. PETER WARDLE: I understand -- 22 understand all of that, but your position throughout was 23 that the College wasn't the best place for these issues 24 to be reviewed? 25 DR. JAMES YOUNG: Well, it wasn't the
261 best place, but once they decided to do it, I'm -- you 2 know, I -- we've made the move, we've decided that 3 they're going to do it and we -- you know, then we were 4 going to support it. But you know, I also mentioned that 5 I had other reasons for opposing the College in terms of 6 the overall management of the system and my concerns 7 about more appeal mechanisms. 8 So I -- I think I was true to my position, 9 but I -- once the College was doing it, I'm -- I'm 10 certainly not going to do anything to -- do anything, but 11 support that. And if they're going to do it, I'm going 12 to look at their result, I'm going to look at the quality 13 of their result, and I'm going to judge for myself then, 14 you know, how that influences me. So I want that 15 information to influence my future decision making. 16 MR. PETER WARDLE: Well, Dr. Young, 17 wasn't it somewhat convenient that now these matters 18 would be looked at in another forum and the heat, in 19 effect, would be off the Coroner's Office? 20 DR. JAMES YOUNG: No, that -- that 21 thought never -- never crossed my mind. 22 MR. PETER WARDLE: Never crossed your 23 mind? 24 DR. JAMES YOUNG: No, absolutely didn't 25 cross my mind. My thinking at that time is -- as I've
271 illustrated it, my thinking at the time was, he isn't 2 doing cases anyway, he -- in fact, he's not going to be 3 doing cases, I should just wait and not get too many 4 investigations all going at once, all gathering 5 information and all trying to figure out how to disclose 6 to each other. I'm going to get better information by 7 simply waiting and it isn't going to affect what I'm 8 going to do because he isn't going to be doing cases 9 anyway. 10 That was my thinking, not -- my thinking 11 never was, 'I'm going to take the heat off the office.' 12 The heat was off, he wasn't doing cases, and he wasn't 13 going to do cases. If anything, I was keeping the heat 14 off longer because it's -- he's not going to be doing 15 cases. 16 MR. PETER WARDLE: And you've told us 17 already that while he wasn't going to be doing cases, he 18 continued to sit on these committees and he continued to 19 have that title, which you've told me over and over was 20 administrative only, Director of the unit, correct? 21 DR. JAMES YOUNG: And sitting on the 22 committees, he's sitting among many other people. And I 23 stated yes, that the -- the reason that I -- that I 24 allowed him to do that, he had been cooperative, he had 25 agreed to resign, he wasn't doing cases and I -- I felt
281 that he could continue to do these other things. 2 Ultimately, when someone on the Committee objected, he 3 was taken off. 4 MR. PETER WARDLE: Well, in April of 2002 5 you became aware of the issue of the hair, correct? 6 DR. JAMES YOUNG: Yes. 7 MR. PETER WARDLE: And you became aware 8 of it from your Deputy, Jim Cairns. 9 DR. JAMES YOUNG: Mm-hm. 10 MR. PETER WARDLE: And he'd had a meeting 11 with Dr. Smith and Dr. Smith had given him an 12 explanation, which he didn't believe. 13 DR. JAMES YOUNG: Yeah. 14 MR. PETER WARDLE: And when he told you 15 about it, you didn't believe it, either, right? 16 DR. JAMES YOUNG: I agree. 17 MR. PETER WARDLE: And can I suggest that 18 the hair raised a number of issues; it raised an issue 19 about Dr. Smith's credibility -- 20 DR. JAMES YOUNG: Mm-hm. 21 MR. PETER WARDLE: -- correct? 22 DR. JAMES YOUNG: Yes. 23 MR. PETER WARDLE: It raised an issue 24 about his competence originally when he was conducting 25 the original autopsy?
291 DR. JAMES YOUNG: No, not in my mind 2 because I didn't know that part of the story. The -- for 3 -- the story about not doing the rape kit and -- is a 4 story that was not available to me at that point in time. 5 MR. PETER WARDLE: No, no, but the story 6 about the hair and what he did with the hair and what he 7 said with the hair goes to his competence, as well as to 8 his credibility, doesn't it? 9 DR. JAMES YOUNG: Well, it goes to his 10 credibility more in my mind than his -- than his 11 competence. I mean they gathered the hair, he didn't -- 12 he did the wrong thing with it. And -- and it wouldn't 13 be how I would normally define competence; it would be -- 14 it's an issue of credibility and -- and common sense more 15 than it is competence to me. 16 MR. PETER WARDLE: Well, wouldn't it have 17 also raised a potential issue about obstruction of 18 justice? 19 DR. JAMES YOUNG: Well, a crow -- I -- I 20 guess I didn't think about it in terms of obstruction of 21 justice because my initial analysis of it as -- and it 22 turned out right is that it's a -- the hair really has 23 little or no evidentiary value, we'll go through and 24 we'll test it, but it's -- I mean as a forensic -- as 25 somebody who -- who does this work, I looked at it and I
301 said this is not a really significant forensic piece of 2 evidence that's going to -- anything's going to turn on 3 it, it's going to turn out to be a lot of work with no -- 4 with no result, because when I went through the logic of 5 what the hair would mean, it meant very little to me. 6 MR. PETER WARDLE: But, Dr. Young, a 7 forensic pathologist who takes a hair in a sample bag, 8 sticks it in his desk for a number years, and then lies 9 about it at a preliminary inquiry, that would raise some 10 very serious issues, wouldn't it? 11 DR. JAMES YOUNG: It did, but at that 12 point in time, you know, the -- it -- we -- he isn't 13 doing cases at this point in time; he isn't going to be 14 doing cases. I mean if I -- if I was sure he wasn't 15 going to be doing cases, I became surer he wasn't going 16 to be doing cases at that point in time. 17 That's what I'm thinking about at that 18 point in time. I -- in the cold light of day today with 19 everything we know, I agree with you, but we've spent way 20 longer on this than I did that day. 21 I hear the thing I -- I conclude in my own 22 mind; we're right, we've done the right thing, he's not 23 doing cases, he isn't going to be doing cases. Certainly 24 when I consider whether he'll ever do cases, that's going 25 to weigh into it.
311 But I have to say to you I -- you know, at 2 that point I had taken action, we're discussing things 3 with the Crowns, the Crowns are aware of what's going on, 4 and the issues; the college is aware of these issues; 5 that's -- as far as I was thinking things were moving 6 along, everyone that needed to know -- know knew what was 7 happening and was -- was acting on it. I didn't see 8 further action at that point. 9 MR. PETER WARDLE: And then, as we know, 10 you wrote the letter -- 11 COMMISSIONER STEPHEN GOUDGE: Just before 12 you turn to the letter, what was in your head when you 13 thought the -- the hair was forensically irrelevant or 14 would likely be? 15 DR. JAMES YOUNG: It -- first of all, the 16 first thing I look -- what I knew about the hair is I 17 knew that we would not be able to probably do nuclear 18 DNA, that we've to do mitochondrial DNA. Mitochondrial 19 DNA then is -- is much more complicated to do and just 20 gives you an idea -- it's much less precise. 21 But if the hair was Jenna's mother's hair, 22 then it would mean nothing, if the hair was -- was the 23 babysitter's hair, very quickly the story would be: I did 24 a diaper change and -- and the hair fell in when I was 25 doing a diaper change.
321 It -- it -- it's a piece of evidence that 2 -- that simply doesn't give you any specific -- and if 3 the hair is from someone else, it could be from anyone in 4 trying to figure out who it was and whether it came from 5 the factory itself, would be virtually impossible. 6 So it -- as opposed to -- as opposed to 7 DNA in a -- in a rape case, it -- it simply wouldn't have 8 a particular evidentiary value. 9 10 CONTINUED BY MR. PETER WARDLE: 11 MR. PETER WARDLE: And then you wrote the 12 letter. The letter's at Tab -- Volume IV, Tab 30. And 13 I'm not going to take you back to the letter, Dr. Young; 14 you've given us your explanation about the letter. 15 DR. JAMES YOUNG: Which letter is this, 16 I'm sorry? 17 MR. PETER WARDLE: This is the letter at 18 Volume IV, Tab 30; the lawyer -- letter that McCarthy's 19 asked you to write to the college. 20 You haven't forgotten that letter? 21 DR. JAMES YOUNG: Oh no. 22 MR. PETER WARDLE: No. Didn't think you 23 would. 24 And you've told us your explanation for 25 writing that letter and you've given us your rationale
331 for why you did what you did at that time, correct? 2 DR. JAMES YOUNG: Yes. 3 MR. PETER WARDLE: Let me turn you now to 4 Volume IX, at Tab 8. 5 DR. JAMES YOUNG: Yeah. 6 MR. PETER WARDLE: So this is a letter to 7 you dated November 18, 2002, from an inspector with the 8 Northumberland OPP. 9 DR. JAMES YOUNG: Yeah. 10 MR. PETER WARDLE: And this is about a 11 traffic stop, correct? 12 DR. JAMES YOUNG: Mm-hm. 13 MR. PETER WARDLE: And an officer, 14 Constable Nancy Wagner, has stopped a Ford Explorer with 15 a personalized licence plate, "CORONR", driven by Charles 16 Smith, and she's made a report that's set out in this 17 letter, correct? 18 DR. JAMES YOUNG: Yes. 19 MR. PETER WARDLE: And I'm not going to 20 read all of it, but it starts: 21 "Constable Wagner advised the driver 22 she had clocked him at 136 kilometres 23 an hour, and asked if he had a reason 24 for travelling at that speed. He 25 indicated, I was passing.
341 The officer showed some discretion and 2 issued the driver a ticket for 115 3 kilometres an hour, which would result 4 in no demerit points, instead of four 5 (4), and approximately two hundred 6 dollars ($200) less of a fine. 7 The driver got angry and said, Did you 8 not see my licence plate? The officer 9 said, Yes, sir. 10 He then said, Do you know who I am? I 11 am the Head of Pediatric Forensic 12 Pathology for this Province. He asked, 13 What office do you work out of? The 14 officer responded, Northumberland OPP, 15 Cobourg office. 16 He then said, quotes: 17 "Next time Cobourg needs forensic on a 18 child -- forensics on a child, they 19 won't get one from our office." End 20 quotes. 21 Now, am I correct, sir, that these are 22 disturbing allegations? 23 DR. JAMES YOUNG: Yes. 24 MR. PETER WARDLE: And putting aside the 25 merits of what took place and who said what to whom, does
351 this letter not indicate that at least there's an 2 allegation out there that the title is being misused by 3 Dr. Smith, at this point in time? 4 DR. JAMES YOUNG: Yeah -- 5 MR. PETER WARDLE: A title you've 6 referred to repeatedly as being administrative only. 7 DR. JAMES YOUNG: That is -- yes. It 8 does, but that's not the conclusion or what I focussed 9 on in -- in -- you know, in the cold light of day, today, 10 yes I see your point and I agree with it, but it's not 11 how -- what I was thinking or how I approached this 12 problem. 13 Mr. PETER WARDLE: You didn't take the 14 title away, did you sir? 15 DR. JAMES YOUNG: I didn't because I 16 didn't see the title -- I didn't see the title as meaning 17 anything. I didn't see the title as being anything but 18 an administrative job. No one else wanted to do it. 19 And frankly, if he went to court, the 20 title would be valueless, because he -- there was so much 21 else swirling around Dr. Smith at this point in time, 22 that a defence attorney, the least of his problems would 23 be the title. He's got enormous other problems. 24 So I just -- I didn't view the title or 25 the -- you know, I had him doing a job that no one else
361 wanted to do and I didn't spend the time or think about 2 the title in these terms. 3 MR. PETER WARDLE: Well, in fact -- 4 DR. JAMES YOUNG: What -- what's wrong 5 about this letter is he -- he -- at this point in time, 6 if they had a serious case, he wouldn't be doing it 7 anyway. He's not even -- he wouldn't be doing the case; 8 someone else would be doing it in -- in the -- in the 9 unit, so. 10 MR. PETER WARDLE: In fact, what you did, 11 sir, was you wrote a nice letter back to the officer on 12 Dr. Smith's behalf saying that he regretted what had 13 taken place, isn't that right? 14 DR. JAMES YOUNG: Well, I -- I had a 15 discussion with him, and he told me his side of it and I 16 -- I told Dr. Smith he was wrong and that -- that his 17 side was not believable, and -- and he owed the police an 18 apology. 19 MR. PETER WARDLE: And just looking at 20 the next tab, Volume VIIII, Tab 9, PFP056635, that's your 21 letter, correct? 22 DR. JAMES YOUNG: Yes. Yes, it is. 23 MR. PETER WARDLE: And coming back to the 24 -- sorry, the Nicholas matter, you'll recall the exchange 25 of correspondence with the grandfather that led
371 eventually to the Ombudsman investigation and 2 correspondence between your office and the Ombudsman's 3 Office, correct? 4 DR. JAMES YOUNG: I did. 5 MR. PETER WARDLE: And do you recall the 6 correspondence about setting up some kind of independent 7 complaints mechanism? 8 DR. JAMES YOUNG: That's what we did 9 following the Ombudsman's Report. We -- we went about 10 and did that. That's exactly what was done. 11 MR. PETER WARDLE: All right. And 12 paragraph -- if I can just take up -- pick up the 13 overview report Volume II, Tab 12 -- 14 15 (BRIEF PAUSE) 16 17 DR. JAMES YOUNG: Overview report -- 18 MR. PETER WARDLE: It's paragraphs -- 19 DR. JAMES YOUNG: -- sorry -- 20 MR. PETER WARDLE: -- for Nicholas. 21 DR. JAMES YOUNG: -- is the overview 22 report the white or the -- 23 COMMISSIONER STEPHEN GOUDGE: White 24 volume. 25 DR. JAMES YOUNG: Oh, I'm sorry. I'm in
381 the wrong one (1) again. 2 MR. PETER WARDLE: It's Volume II. 3 COMMISSIONER STEPHEN GOUDGE: The big 4 thick white ones. 5 DR. JAMES YOUNG: Okay. And what -- what 6 tab? 7 8 CONTINUED BY MR. PETER WARDLE: 9 MR. PETER WARDLE: Tab 12. 10 DR. JAMES YOUNG: Okay. 11 MR. PETER WARDLE: And paragraphs 200 and 12 2 -- sorry 201 and 202. 13 DR. JAMES YOUNG: Yep. 14 MR. PETER WARDLE: Now does paragraph 202 15 -- and it's really the last part of that paragraph, 16 outline the process that was set up? 17 18 (BRIEF PAUSE) 19 20 DR. JAMES YOUNG: I think -- I think 21 we're -- we're -- we may be mixing two (2) issues 22 together. The process I believed -- or I answered the 23 question, in regard to earlier, was the process of how 24 complaints would be dealt with. 25 And that -- that was the mechanism in the
391 issue there. As I understand it, was the issue of -- of 2 the Coroner's Council was gone, and there needed to be a 3 mechanism in place to review those -- to review those 4 complaints. 5 And that was set up through the -- the -- 6 the hierarchy of the Ministry, up to the level of the 7 Deputy Minister. That's not what this is referring to. 8 MR. PETER WARDLE: All right. Well, what 9 I'm interested in, and I think, is issues that come up 10 through the system about pathologists who are -- 11 DR. JAMES YOUNG: Yes. 12 MR. PETER WARDLE: -- who are supervised 13 through your office. 14 DR. JAMES YOUNG: That -- that wasn't 15 what the Ombudsman was dealing with, because the 16 Ombudsman had no jurisdiction and was not dealing with 17 the -- with the pathologists. He was dealing with the 18 coroner's system. 19 MR. PETER WARDLE: I understand that. I 20 understand that. 21 DR. JAMES YOUNG: Okay. 22 MR. PETER WARDLE: I absolutely get that, 23 sir. 24 DR. JAMES YOUNG: Okay. 25 MR. PETER WARDLE: Isn't -- doesn't what
401 we've just gone through for the last half hour, 2 demonstrate the need for some kind of mechanism, 3 independent of the Office of the Chief Coroner, to review 4 pathologists whose work may be questionable? 5 DR. JAMES YOUNG: Well I think we agreed 6 on that yesterday afternoon. I -- I agree with you. 7 MR. PETER WARDLE: In -- 8 DR. JAMES YOUNG: That -- 9 MR. PETER WARDLE: -- in -- 10 DR. JAMES YOUNG: -- there was -- there 11 is no mechanism -- there is nothing in law that -- that 12 codifies what a forensic pathologist does right now. 13 There was no formal structured review mechanism. 14 But I agree with that if complaints come 15 up, there has to be a review that takes place. I agree 16 entirely. 17 MR. PETER WARDLE: And wouldn't it be 18 fair to say, given what we know about what took place 19 between the late 1990s and, you know, right up until the 20 time of November 2002, the correspondence with the OPP 21 I've just taken you through, doesn't that cry out for the 22 review to be independent of your office? 23 DR. JAMES YOUNG: No. Well, there is no 24 structure that the forensic pathologists -- they're 25 operating under warrants under the Coroner's Office; it's
411 in the Coroner's Office's interest to make the 2 determination whether they're going to continue to use 3 them or not. 4 You can set it up independent of the 5 Office but I guess the question is they're not -- they're 6 not Order-in-Council appointments, so you're not taking 7 an Order-in-Council way. The ultimate decision is: Do 8 you use them or do you not use them? 9 MR. PETER WARDLE: But my focus is 10 really -- 11 DR. JAMES YOUNG: And the sanction is: 12 Do you use them or not use them? Does someone sue them, 13 do they not? Do they go to the College, do they not? So 14 the mechanisms have to be set up with that in mind. 15 I mean, clearly in the future one (1) of 16 the mechanisms available to anyone is to complain to the 17 College, because that's been established and that's a -- 18 that's a method now and that's an acceptable method. 19 MR. PETER WARDLE: My focus was really on 20 the concept of independence. 21 DR. JAMES YOUNG: Right. 22 MR. PETER WARDLE: And the concept of 23 independence would take all of the concerns I've just put 24 in front of you about, you know, your office perhaps 25 being concerned about the lightning rod effect; undue
421 publicity; loyalty to a professional colleague; all of 2 those issues would be put out of the way if there was 3 some independent mechanism. 4 Isn't that fair? 5 DR. JAMES YOUNG: The problem with -- 6 with that -- and I see your point and I don't disagree 7 with it -- the problem with it is, I mean, to date, this 8 is virtually a one-of. So you set up an independent 9 mechanism, you start to run into the same problem as the 10 Coroners' Council. It -- you set up a mechanism and you 11 try to support and then with time the Government turns 12 around and says it's never used or it's so rarely used 13 it's an orphan sitting out somewhere with -- with no 14 support. 15 And it -- that's my concern, it's just 16 simply, I understand the concept of what you're saying, 17 it's certainly in the off -- in the interest of the 18 Office of the Chief Coroner though, to -- to know what 19 happens as well. And the independence I would have 20 brought into it is by bringing somebody independent in to 21 do the review to advise the Chief Coroner, because 22 ultimately, it's the Chief Coroner who has to decide 23 whether the person does or doesn't do cases. 24 If you set up a whole mechanism for it, it 25 might get used, it may never get used again and it may
431 have no teeth or ability to function when it actually 2 happens. 3 That -- that would be my only concern. 4 But the -- the concept in what you're saying, I -- you 5 know, I agree with you. 6 MR. PETER WARDLE: Well, thank you, sir. 7 Those are all my questions, Commissioner. 8 COMMISSIONER STEPHEN GOUDGE: Thanks, Mr. 9 Wardle. 10 Mr. Sokolov...? 11 12 CROSS-EXAMINATION BY MR. LOUIS SOKOLOV: 13 MR. LOUIS SOKOLOV: Good morning, Dr. 14 Young. My name is Louis Sokolov and I'm the counsel to 15 AIDWYC at this Inquiry. 16 DR. JAMES YOUNG: Good morning. 17 MR. LOUIS SOKOLOV: I want to begin by 18 having you turn your mind back to the Morin Inquiry. I 19 have a few questions -- 20 DR. JAMES YOUNG: Okay. 21 MR. LOUIS SOKOLOV: -- to ask you about 22 that. 23 There's no question that you weren't in 24 control or overseeing the CFS at the time that the events 25 which gave rise to the Morin Inquiry took place.
441 But you were responsible for the CF -- CFS 2 during the Inquiry itself, correct? 3 DR. JAMES YOUNG: That -- that's correct. 4 MR. LOUIS SOKOLOV: And you were 5 responsible in your role as Assistant Deputy Minister? 6 DR. JAMES YOUNG: That's right. 7 MR. LOUIS SOKOLOV: And you'll recall, I 8 expect quite vividly, that there were approximately ten 9 (10) months of testimony during that Inquiry? 10 DR. JAMES YOUNG: It's ingrained in my 11 mind. 12 MR. LOUIS SOKOLOV: And for a fair bit of 13 the time, the Centre for Forensic Science was put under a 14 high level of scrutiny -- 15 DR. JAMES YOUNG: Yes. 16 MR. LOUIS SOKOLOV: -- and a high level 17 of criticism in the press. 18 DR. JAMES YOUNG: Yes, I think that's 19 fair. 20 MR. LOUIS SOKOLOV: And whatever the 21 positive effects of the report, would I be fair to 22 suggest that the process itself would have been extremely 23 difficult for the CFS? 24 DR. JAMES YOUNG: Yes -- 25 MR. LOUIS SOKOLOV: And --
451 DR. JAMES YOUNG: -- that's fair. 2 MR. LOUIS SOKOLOV: -- and disruptive to 3 the functioning of the CFS? 4 DR. JAMES YOUNG: It was a time when -- 5 yes, that's right. 6 MR. LOUIS SOKOLOV: And there would have 7 been, I expect, significant challenges in respect of 8 morale at the CFS during that time? 9 DR. JAMES YOUNG: Yes. 10 MR. LOUIS SOKOLOV: And significant 11 challenges in terms of the resources that were required 12 to implement the recommendations? 13 DR. JAMES YOUNG: In term -- particularly 14 in terms of human resource -- more than the Government, 15 were making money available, but you have to have the 16 people to spend the money. 17 MR. LOUIS SOKOLOV: And as the person who 18 had this hot potato passed to him, as it were, I -- would 19 I be correct in suggesting that this was a difficult and 20 challenging time for you, as well? 21 DR. JAMES YOUNG: It certainly was. 22 MR. LOUIS SOKOLOV: Now, you were 23 responsible for reviewing and implementing the 24 recommendations that were -- that applied to the CFS? 25 DR. JAMES YOUNG: The director of the CFS
461 and I were, that's true. 2 MR. LOUIS SOKOLOV: And you -- you'll 3 recall that the report came out in the spring of 1998? 4 DR. JAMES YOUNG: Yes. 5 MR. LOUIS SOKOLOV: And I take it you 6 would have read the report or at least those parts of the 7 report that applied to the CFS? 8 DR. JAMES YOUNG: Yes. 9 MR. LOUIS SOKOLOV: All right. I -- I 10 have some excerpts which I'll ask you to turn up. And I 11 don't intend to spend a lot time within them. That's 12 Volume VIII, Tab 60. There's a PFP Number 300769. I 13 don't believe the document is in the database, though. 14 COMMISSIONER STEPHEN GOUDGE: White 15 binder, Dr. Young. 16 MR. LOUIS SOKOLOV: Yeah. 17 COMMISSIONER STEPHEN GOUDGE: Tab, sorry? 18 MR. LOUIS SOKOLOV: Oh, it is in the 19 database. Tab 60, 6-0, Mr. Commissioner. 20 COMMISSIONER STEPHEN GOUDGE: Thank you. 21 22 CONTINUED BY MR. LOUIS SOKOLOV: 23 MR. LOUIS SOKOLOV: And I -- I just want 24 to take you briefly through a few excerpts. And the -- 25 the first page I -- I would take you to is page 8, which
471 was an executive summary. And that -- in the middle 2 paragraph that the -- just the -- the -- Commissioner 3 Kauf -- Kaufman summarized his findings with respect to 4 the CFS. 5 And I'll read from the middle of that 6 paragraph there: 7 "A large number of CFS scientists 8 perform their work with distinction. 9 On the other hand, it would be a 10 serious mistake to assume that the 11 failings identified are confined to two 12 (2) scientists. A number of those 13 failings are rooted in systemic 14 problems, many of which transcend, even 15 the CFS and have been noted in cases 16 worldwide where science has been 17 misused. Dr. -- Dr. James Young, 18 assistant Deputy, Solicitor General 19 with responsibility for the CFS, 20 apologized on behalf of the CFS for any 21 role in Guy Paul Moran's conviction and 22 advised the Commissioner that he had 23 not appreciated the depth of issues 24 which -- which would arise at the 25 inquiry."
481 And it goes on to summarize some of the 2 corrective measures. So -- so suffice to say that if you 3 -- you didn't recognize the issues before the inquiry, 4 you certainly did by the time the inquiry was finished 5 and the report was published? 6 DR. JAMES YOUNG: Well, I think the 7 reference there, in fact, is that in the ensuing years 8 between the case and the inquiry, I think the importance 9 of the fibre evidence had -- had increased. As the 10 inquiry was taking place, we were certainly addressing 11 the issues. 12 And I think I'd recognize them, 13 proactively, before we gave evidence so that the period, 14 I think, is in reference to the -- the years as the case 15 was going on. 16 MR. LOUIS SOKOLOV: If you turn up page 17 250 and on the monitor, I believe, that'll be at page 17. 18 DR. JAMES YOUNG: Yeah. 19 MR. LOUIS SOKOLOV: I just want to take 20 you to the middle paragraph. Again, the Commissioner 21 makes reference -- this is in the body of the report: 22 "Dr. Young apologized to Guy Paul Moran 23 for anything that the CFS did to 24 contribute to his wrongful conviction. 25 The contribution of the CFS to Mr.
491 Moran's wrongful arrest, prosecution, 2 and conviction was indeed substantial." 3 And -- and I take it you -- you agreed 4 with that? 5 DR. JAMES YOUNG: I agreed that it was 6 substantial. I think there were a lot of other factors, 7 as well. The CFS news during the inquiry was the new 8 news, so I think it was important and it was canvassed, 9 but there are -- 10 MR. LOUIS SOKOLOV: I don't take issue 11 with that. 12 DR. JAMES YOUNG: -- tunnel vision and -- 13 and other things played at jailhouse convictions. The 14 fibre evidence, actually, at the trial was relatively a 15 minor part of the trial, but it certainly took a lot of 16 significance, ultimately. 17 MR. LOUIS SOKOLOV: If -- if you turn 18 back to the previous page 249, which is page 16 on the 19 monitor. The -- and this is the -- a very, very brief 20 summary, but you'll recall that the Commissioner found a 21 number of factors -- and if you just scroll down please, 22 Mr. Registrar, under Systemic Evidence and 23 Recommendations -- including that the limitations upon 24 scientific findings were not accurately or adequately 25 communicated to police, prosecutors, the defence, and --
501 and to the courts. 2 You -- you'll recall that finding? 3 DR. JAMES YOUNG: Yes. 4 MR. LOUIS SOKOLOV: And that scientific 5 findings were overstated at times? 6 DR. JAMES YOUNG: Yeah, this was the 7 issue around the studies and -- that had been taken about 8 transfer of fibres, I believe. 9 MR. LOUIS SOKOLOV: And again, over to 10 the next page, page 250 or page 17 on the monitor. There 11 were -- there's reference made to the loss of evidence 12 and that there were at times a loss of object -- 13 objectivity inconsistent with the proper role of a 14 forensic scientist. 15 DR. JAMES YOUNG: The loss of evidence, I 16 think deserves a little bit because if one read through 17 the report I think it would be clear that what we're 18 talking about is -- is a period of many, many years and a 19 reorganization and the storage of -- not the original 20 evidence but some secondary evidence being lost over 21 about a ten (10) or -- a ten (10) year period. 22 So we're not talking about at the time of 23 trial or -- we're talking about -- and we're not talking 24 about primary evidence, we're talking about secondary 25 supporting evidence that -- that got misplaced over an
511 extensive period of time following the trial. So it's -- 2 it's true but it's -- it's not quite as -- as stark as it 3 may appear in that particular reference to it. 4 MR. LOUIS SOKOLOV: Fair enough. And the 5 -- then the next issue of loss of objectivity 6 inconsistent with the proper role of a forensic 7 scientist. 8 And out of that, you would be aware that 9 this wasn't necessarily an issue that was solely the 10 concern of the CFS, this was an issue that could properly 11 be the concern of forensic science as a whole? 12 DR. JAMES YOUNG: In the broader 13 definition of forensic science, yes. 14 MR. LOUIS SOKOLOV: And indeed, much of 15 the findings and indeed the recommendations regarding the 16 Morin Report, need not only concern the CFS but concern 17 the wider issues of forensic science. 18 Would you agree with that? 19 DR. JAMES YOUNG: Yes. 20 MR. LOUIS SOKOLOV: And if you'd just 21 briefly turn up some of the recommendations, and we won't 22 spend a long time with those, those are at the end of 23 this document, starting at page 36 on the monitor. It's 24 actually on 35. But if you turn -- if you -- you see, 25 for example -- and I'll ask you to scroll down, Mr.
521 Registrar, issues such as: 2 "Forensic opinions to be acted upon 3 only when in writing." 4 That's an issue that was relevant not just 5 to the CFS, but indeed to the -- indeed, to forensic 6 science as a whole? 7 DR. JAMES YOUNG: Yes, it -- it was 8 particularly important in regards to the Centre of 9 Forensic Science and the, you know, the practises of -- 10 at that point in time. 11 It's not as -- as easily or -- or readily 12 addressed, for example, in forensic pathology, because if 13 one was going to hold to that then the evidence and some 14 of the work that can be done in a forensic pathology exam 15 can be done at the time before the report is -- is 16 produced. 17 So if you're going to hold to that for a 18 forensic pathologist, you'd have to say then the police 19 can't act or pay any attention to anything they're told 20 at the time of the autopsy and they have to wait till all 21 the microscopic work and all the other work is done to go 22 out and take any investigative actions based on what they 23 see that day. 24 And the nature of that and the nature of 25 forensic science in the laboratory is different. There's
531 certainly -- they should be cautious what they do out of 2 the autopsy, but I -- I'm not sure you could apply that 3 rule completely to the forensic pathology sphere. I 4 think the -- you know, it would be -- it would be 5 probably impractical to try to make that the general rule 6 for forensic pathology. 7 MR. LOUIS SOKOLOV: All right. Fair 8 enough. If you can turn over the next page then. 9 There's a number of other recommendations I want to you 10 ask you about briefly. 11 A written policy for forensic reports, 12 Recommendation 7. And that applies to forensic pathology 13 as well? Or could apply to forensic pathology as well? 14 DR. JAMES YOUNG: Well, it does. I mean, 15 forensic pathology, as you've heard it -- I think some 16 evidence from -- it's my impression that there's a set 17 report for forensic pathology just as at the time there 18 was a separate report for the Centre of Forensic Science 19 for reports. Now they're very different in their nature 20 and we completely revised the way that reports were 21 written at the CFS, based on -- on this recommendation 22 and -- and the Inquiry. 23 The forensic reports that our -- our 24 office write are -- are sort of one (1) form that's quite 25 standard, as you've heard, I think throughout North
541 America, but that's being looked at and revised 2 accordingly now. 3 MR. LOUIS SOKOLOV: Let me just briefly 4 move, because there isn't a lot of time, to 5 Recommendations 8 and 9: "The Use of Appropriate Forensic 6 Language" and Recommendation 9, "Specific Language to be 7 Avoided by Forensic Scientists." 8 These were concepts that were suggested to 9 you; equally applicable to forensic pathology as to the 10 CFS? 11 DR. JAMES YOUNG: Well, they weren't -- 12 they weren't -- I mean, the discussion what language was 13 used in forensic reports in -- in forensic pathology, was 14 something that was discussed within forensic pathology 15 circles. 16 And what was -- what this is really 17 referring to, we were -- the language of when you take 18 evidence and how certain you can be in your -- in your -- 19 in your characterization of it. 20 And there were a couple of particular 21 words that we were -- we spent many, many evening 22 meetings debating how forensic scientists should debate 23 certain words and what should be used and what shouldn't 24 be used in terms of -- "match" was one (1) of the words. 25 And there was at the time that DNA was
551 coming in and fibres were coming in, and -- and the 2 scientific certainty of the word "match" and what it 3 meant. And that's what this is referring to, because the 4 -- the Commission went into a lot of work, and we went 5 into an enormous amount of work afterwards about the use 6 of -- of words like "match" and what it meant. 7 That -- that really doesn't apply to -- 8 MR. LOUIS SOKOLOV: Well -- well -- 9 DR. JAMES YOUNG: -- forensic pathology. 10 That was the lesson out of that. 11 MR. LOUIS SOKOLOV: Well, it also uses -- 12 it also refers to the term "consistent with", which as 13 I'm sure you're -- 14 DR. JAMES YOUNG: "Consistent with", we 15 had a lot of discussion about as well. 16 MR. LOUIS SOKOLOV: And -- and I'm sure 17 you're aware that that's an issue in forensic pathology 18 as well, the use of that term? 19 DR. JAMES YOUNG: It -- it was being 20 discussed some in forensic pathology as well, that's 21 right. 22 MR. LOUIS SOKOLOV: So -- and I 23 appreciate that not everything in all these 24 recommendations could be applied to forensic pathology, 25 because that wasn't the purpose of this report?
561 DR. JAMES YOUNG: No. 2 MR. LOUIS SOKOLOV: But having said that, 3 you -- you'd agree with me that there were larger 4 concepts involving forensic pathology -- involving 5 forensic science as a whole that were addressed in the 6 report, which you -- you could have turned your mind to 7 in the context of forensic pathology? Is that fair? 8 DR. JAMES YOUNG: There are lessons out 9 of it, and there are things we did. For example, we -- 10 we ran a course for our scientists on -- on forensic 11 pathology giving evidence. And we invited the forensic 12 pathologists to that course, including Dr. Smith. 13 So yes, there were things that we 14 recognized. We -- we developed a Crown policy for the 15 giving of evidence and what happens if you're -- you get 16 inconsistencies in the courtroom, and we shared that with 17 the pathologists and with the scientists, because those 18 areas completely overlapped. 19 Absolutely there were areas, and -- and we 20 attempted to -- to highlight some of those areas. 21 MR. LOUIS SOKOLOV: And by the spring of 22 1998, if not before, I -- I suggest to you that you would 23 have been highly sensitized to the role that scientific 24 evidence can play in contributing to wrongful conviction? 25 DR. JAMES YOUNG: Yes.
571 MR. LOUIS SOKOLOV: So turning then -- 2 briefer then some others -- to the issue of the 2001 3 external review. You -- you gave evidence yesterday, in 4 a different kind of context, that you'd generally make 5 decisions on a consensus basis, is that -- is that a fair 6 summary? 7 DR. JAMES YOUNG: Mm-hm. Generally I do, 8 that's right. 9 MR. LOUIS SOKOLOV: And would that then 10 go to -- that your decision to cancel the external review 11 in 2007; was that done on a consensus basis, or was that 12 your own decision? 13 DR. JAMES YOUNG: No, I think I -- I 14 think I own that one. 15 MR. LOUIS SOKOLOV: All right. And if 16 not by consensus, I assume you would have, at the very 17 least, consulted your team before coming to that 18 decision? 19 DR. JAMES YOUNG: I -- I can't tell you. 20 I -- I came to the decision. I can't tell you -- I can't 21 remember what -- I -- I came to the decision, and I 22 certainly told Dr. Cairns and Mr. Mainland who were 23 working on it, what discussion there was or anything. I 24 -- I just don't recall. I don't know. 25 MR. LOUIS SOKOLOV: Right. But you did
581 say yesterday that you're generally not a paper person. 2 DR. JAMES YOUNG: That's for sure. 3 MR. LOUIS SOKOLOV: And we -- we know 4 that you had a lot on your plate at the time? 5 DR. JAMES YOUNG: Mm-hm. 6 MR. LOUIS SOKOLOV: And you -- you would 7 have had to be briefed, and I suggest to you orally, by 8 the people on your team? Is that fair? 9 DR. JAMES YOUNG: I mean the -- the 10 decision was made on the basis of -- of some facts that 11 were emerging, and I -- I think at some point -- I mean, 12 my own recollection of it would be that I -- I thought 13 through what was happening; the -- the progression of the 14 College, the -- the lawsuit, and simply said, You know 15 what? I'm not going to reinstate Charles at this point 16 in time in any event. 17 If I'm not going to reinstate him, I'm not 18 going to complicate things by continuing my work, and I'm 19 going to wait for that information because it may be 20 useful eventually. 21 It's a fairly -- in my mind that flows 22 quite -- you know I -- it's not a big -- it's not a hard 23 decision for me to make because it -- it's a -- if he 24 isn't doing cases and he's not going to continue to do 25 them later, it's not something -- for a period of time
591 longer, it's not something I would have pondered for a 2 long time. 3 I reached that conclusion, and I passed on 4 the information to others that I had decided not to 5 continue and I -- it wasn't, in my mind, either a 6 difficult decision or something that I would have spent a 7 long time debating or being briefed on. 8 MR. LOUIS SOKOLOV: All right. You -- 9 you said yesterday, or at least I understood your 10 evidence to be yesterday, that you didn't give any 11 serious thought at that time to the prospect of there 12 being miscarriages of justice in the system. 13 DR. JAMES YOUNG: It wasn't -- it wasn't 14 being discussed, and it wasn't what our mind was focussed 15 on. My -- my mind was focussed on, We don't want him 16 doing anymore cases and the discussions with the Crown 17 attorneys that the cases that still remained needed to be 18 -- we needed to help work through those. That was what 19 my focus was. 20 I don't recall thinking about previous 21 cases. There's -- nothing had come to my attention and 22 bear in mind, I was making this decision largely based on 23 -- on -- I -- for the reasons I've explained; had not 24 used the Amber cases as being particularly significant. 25 I was doing it on the basis of Nicholas
601 and -- and on the basis of the problems with Sharon. I 2 was not aware of the controversy in -- in Jenna's case, 3 so I'm doing it on very limited information. 4 I still think that was the best thing to 5 do for the reasons I've stated, but that's -- that's the 6 context that I'm thinking in. 7 MR. LOUIS SOKOLOV: Dr. Cairns testified 8 last week that in 2001, at the time of the cancellation 9 of the external review, despite his own trust in Dr. 10 Smith at the time, he was, at least, alive to the 11 possibility that there were miscarriages of justice in 12 the system and -- and he said, and I'm just quoting from 13 it: 14 "It was clear to me in 2001 that we 15 should have an external review of Dr. 16 Smith's work and that would have been 17 the way to deal with that." 18 Now, that was -- that's what Dr. Cairns 19 said last week. 20 DR. JAMES YOUNG: Fair enough. It may 21 have been in his mind, and I certainly can't -- it -- it 22 was not -- it was not in my mind, and it wasn't a 23 discussion that -- that we formally had. 24 I -- I was not hearing -- as I've said 25 repeatedly -- I wasn't hearing from Crown attorneys, or
611 defence attorneys, or generally in the media, or from my 2 own people that -- that we needed this greater review. 3 It didn't come up, and it didn't get 4 ordered until the evidence was in the Valin case, and 5 certainly, at that point in time, with that evidence, Dr. 6 McLellan discussed it with me. I completely supported 7 and agreed on it at that time, but I -- you know, I would 8 note, I left for, you know, a number of months -- close 9 to year -- before -- before it was called and no one else 10 called it during that period and there were no editorials 11 and no one phoning during that period, as well. 12 In retrospect, it's -- it's easy sitting 13 here and putting it together and piecing the paper 14 together, but it's just not what was happening. No one 15 was having these open discussions or thinking in those 16 terms. 17 MR. LOUIS SOKOLOV: Well -- well, Dr. 18 Young, with respect, we're not just simply looking at 19 retrospect. At the time in 2001, you didn't have the 20 benefit of the Moran Inquiry; you had the benefit of your 21 experience and your understanding of the role that 22 scientific evidence can play in a miscarriage of justice. 23 DR. JAMES YOUNG: But I -- 24 MR. LOUIS SOKOLOV: So it wasn't purely 25 looking through the retrospect, was it?
621 DR. JAMES YOUNG: All I can say is, I -- 2 I had taken action. I had done two (2) major things; I 3 had stopped him doing cases. He was not going to 4 continue doing cases in the foreseeable future. I was 5 dealing directly with the Crown attorney system and 6 saying, This is what we're doing and these are the 7 actions and this is what we're aware of. 8 No one came back to me at that point and 9 said, We want a fuller review; we want this done. 10 I accept I could have thought of it, but 11 the entire Criminal Justice System could have thought of 12 it, as well. 13 And you're not going to solve the problem 14 in the future, which is what we're here to do, by simply 15 saying the Chief Coroner, in the future, has to always do 16 this. The whole Criminal Justice System has to talk to 17 each other and do it. 18 I -- I accept my part of -- I didn't think 19 of it. I thought I was doing the appropriate things. 20 But, if we lose sight of the fact that no one else was 21 saying it either, we're losing sight of all of the checks 22 and balances that need to be in the system. And that's 23 my point is it's easy to say it's all the Coroner's 24 Office. 25 The major thing the Coroner's Office does
631 in terms of percentage of time is not service the 2 Criminal Justice System; it's all the other twenty 3 thousand (20,000) deaths a year and inquests and all the 4 other things. 5 The number of homicides in a year is less 6 than two hundred (200) in the Province, so this is a 7 very, very important function; one that has to be done 8 very carefully. But we are not the Criminal Justice 9 System. 10 And that's -- that's my point, is that no 11 one else was doing it either. And -- and I -- we need to 12 fix that in the whole system. 13 MR. LOUIS SOKOLOV: Dr. Young -- 14 COMMISSIONER STEPHEN GOUDGE: You're 15 running out of time, Mr. Sokolov. 16 MR. LOUIS SOKOLOV: May I ask one (1) 17 more question? 18 COMMISSIONER STEPHEN GOUDGE: Yes. 19 MR. LOUIS SOKOLOV: I can't control the 20 length of the answer, but I'll keep the question sort -- 21 short. 22 COMMISSIONER STEPHEN GOUDGE: Okay. It 23 would help, Dr. Young, if you could try to be succinct, 24 because there's a lot of questioners. 25 DR. JAMES YOUNG: I thought I was being
641 succinct. 2 COMMISSIONER STEPHEN GOUDGE: Try to be 3 more succinct. 4 5 CONTINUED BY MR. LOUIS SOKOLOV: 6 MR. LOUIS SOKOLOV: Dr. Young, you've 7 offered a -- a few rationales for the cancellation of the 8 2001 external review, but I want to ask you whether 9 another one might have been at play. 10 And that was -- I -- I suggest to you, Dr. 11 Young, that given your experience with the Morin Inquiry 12 and the disruptive, difficult process that that entailed 13 in the CSF; you were reluctant to open up your office -- 14 the Coroner's Office -- to any kind of external review at 15 that time, lest you go down the same road. 16 DR. JAMES YOUNG: I think that's a fair 17 question to ask, and I can, categorically and absolutely, 18 say to you the thought never occurred to me. I -- I -- 19 it's -- it's a very fair question, but I can give you an 20 absolute and brief answer. No. 21 MR. LOUIS SOKOLOV: Thank you. 22 COMMISSIONER STEPHEN GOUDGE: Thanks, Mr. 23 Sokolov. 24 Ms. Green...? 25
651 CROSS-EXAMINATION BY MS. MARA GREENE: 2 MS. MARA GREENE: Good morning. 3 DR. JAMES YOUNG: Good morning. 4 MS. MARA GREENE: My name is Mara Greene, 5 and I'm one (1) of the lawyers acting for the Criminal 6 Lawyers Association. And I'm not going to take you to 7 the January 2001 review situation. I'm going to focus on 8 systemic issues, in particular, as they relate to checks 9 and balances in the system. 10 DR. JAMES YOUNG: Okay. 11 MS. MARA GREENE: And I want to start 12 with the autopsy report, in and of itself. 13 DR. JAMES YOUNG: Mm-hm. 14 MS. MARA GREENE: Because we've already 15 heard some evidence about these reports, and what we've 16 heard is that the reports include the cause of death but 17 they don't include the pathologist's opinions, nor do 18 they include, sort of, the path or the -- the route to 19 get to the cause of death. 20 Is that correct? 21 DR. JAMES YOUNG: Yes. Traditionally in 22 Ontario that's -- that's the way the reports have been 23 written. 24 MS. MARA GREENE: So, given that that's 25 the -- the limited content of these reports, it would be
661 fair to say that the first time that the pathologist 2 gives formal information about his or her opinions, and 3 the path to his or her opinions, would be when they 4 testify in court? 5 DR. JAMES YOUNG: Yes. 6 MS. MARA GREENE: And while there may be 7 meetings beforehand with Crown or defence counsel, that 8 is the first time the formal opinion is given? 9 DR. JAMES YOUNG: That's -- that's fair. 10 MS. MARA GREENE: Okay. And, so, would 11 you accept that it would be helpful for the parties 12 preparing for court to know the pathologist's opinions, 13 and paths to his or her opinions, prior to hearing it in 14 court? 15 DR. JAMES YOUNG: I think it would be 16 useful, probably, in future. There were reasons why it 17 wasn't done, but if it's going to be done, I'm -- I'm 18 certainly not opposed to it. I -- I would extend it and 19 say it would be useful to have and to understand the 20 defence pathologist's opinions as well, and that there be 21 reciprocal disclosure of both. 22 MS. MARA GREENE: Okay, well, right now 23 we're dealing with the state pathologist. So, before we 24 get to reciprocal disclosure issue, let's first deal with 25 the -- the pathologist --
671 DR. JAMES YOUNG: Okay. 2 MS. MARA GREENE: -- from -- 3 DR. JAMES YOUNG: Okay. 4 MS. MARA GREENE: -- that prepares the -- 5 prepares the ini -- initial report. That pathologist, if 6 it goes to court, will have to testify and will you agree 7 that it would be helpful to all parties to know the 8 opinions of that pathologist prior to his or her 9 testifying in court? 10 DR. JAMES YOUNG: What I would say to you 11 on that issue is the person whose view, I think, is much 12 more important than mine is -- is Dr. Chiasson and -- and 13 probably Dr. Pollanen -- because they -- they're the ones 14 that are in that position and have been doing it. 15 And, so, the logic, up to that point in 16 time, was that stick to the facts in the report, and -- 17 and the opinion -- let the opinion flow, depending on the 18 questioning and -- and the issues in the courtroom. 19 I understand what you're saying, and -- 20 and at first blush, given the facts of this case, I -- I 21 see your point and I'm -- I don't argue it, but I'm not 22 the best one to think it through, they are. 23 So I would much more value their opinion 24 on this than mine, because I'm not in that position of 25 either writing that report, or defending it.
681 MS. MARA GREENE: So at this point, while 2 you can't speak to the extent of its usefulness, you 3 don't see how it could harm, and it may very well be 4 useful. 5 DR. JAMES YOUNG: I can't think of 6 anything, in particular -- my -- you know, as you're 7 asking me the question, but I -- I'm not pretending to be 8 the expert. They -- they may have reasons that I can't 9 think of, so I would value their opinion much more than 10 mine. 11 COMMISSIONER STEPHEN GOUDGE: Let me ask 12 you a question. Ms. Greene, I'll stop your clock while I 13 ask it. 14 What's the history? Why did this 15 tradition develop in Ontario post-mortem reports? 16 DR. JAMES YOUNG: It's not unique to 17 Ontario. In -- in general, in most jurisdictions in 18 North America -- 19 COMMISSIONER STEPHEN GOUDGE: But why? 20 DR. JAMES YOUNG: -- at least one of the 21 things that used to be a lot of pathology reports was a 22 summary of the case. And the summary of the case often 23 was frozen in time with the day that the case started. 24 And there was often a lot of inaccurate 25 information by the time the case got to court. When that
691 happened, then many hours would be spent in court arguing 2 about why this information is in there, and what 3 influence did it have, etc. 4 And so the -- thi I -- this I believe it 5 to be the case in Dr. -- 6 COMMISSIONER STEPHEN GOUDGE: Yeah, I'm 7 sure this is all oral history, so to speak Dr. Young. 8 DR. JAMES YOUNG: Exactly, exactly. The 9 -- so the thinking was take that out and keep the -- keep 10 the reports as factual as possible. That -- that's, as I 11 understand it, the reason that they evolved that way. 12 COMMISSIONER STEPHEN GOUDGE: Okay, thank 13 you. 14 Ms. Greene...? 15 16 CONTINUED BY MS. MARA GREENE: 17 MS. MARA GREENE: Thank you. I then want 18 to lead into this concept of peer review, because we 19 understand that there is some peer review mechanism in 20 place for reports now. But we've heard evidence, and 21 tell me if you disagree, that it's difficult to peer 22 review testimony in court. 23 DR. JAMES YOUNG: Very. 24 MS. MARA GREENE: Okay. 25 DR. JAMES YOUNG: Yeah, it is.
701 MS. MARA GREENE: So given that it's 2 easier to peer review reports and more difficult to peer 3 review testimony, would you agree that there may be some 4 benefit by a review mechanism, if more of the opinion was 5 in the report, than just being said for the first time in 6 testimony, in court. 7 DR. JAMES YOUNG: Yeah, that certainly -- 8 when I agreed with you, that's part of my logic. Again 9 though, I defer to Dr. Chiasson's, sort of, if there's a 10 problem with that, but I -- absolutely, I agree with you. 11 MS. MARA GREENE: And while lawyers by 12 themselves aren't scientists, they're not pathologists, 13 and they can't review some of the substance of the 14 opinions, if they have a report with an opinion in it, 15 and they have testimony, they can affect a kind of review 16 by determining if the evidence in court, matched the 17 opinion of the report, Correct? 18 DR. JAMES YOUNG: Yes. 19 MS. MARA GREENE: Okay. 20 DR. JAMES YOUNG: Yeah. 21 MS. MARA GREENE: Now you've already 22 indicated that you were heavily involved with the CFS, 23 correct? 24 DR. JAMES YOUNG: Yes, I -- I was the 25 Assistant Deputy Minister, so the CFS answered to me.
711 MS. MARA GREENE: All right. And are you 2 aware that when the CFS was getting their accreditation 3 and sort of revamping, they created a process where, 4 after one of their experts testified in court, a form 5 would be sent out to the lawyers to fill out, to sort of 6 comment on the experts testimony? 7 DR. JAMES YOUNG: Yes. 8 MS. MARA GREENE: Okay. And that form 9 included things like, you know, did they stick to their 10 opinion, right? Were they unbalanced in their evidence? 11 Did they, you know, meet with the defence beforehand? 12 Were they available to you? 13 That kind of stuff is what's in those 14 reports, correct? 15 DR. JAMES YOUNG: Mm-hm. 16 MS. MARA GREENE: And what these reports 17 end up doing is sort of bypassing the need for the 18 defence or the Crown counsel to initiate the process by a 19 complaint, but it worked into the system, to allow 20 comments to come back after every time that expert 21 testified. 22 DR. JAMES YOUNG: Well, it doesn't work 23 out that you get them every time. You get a fairly small 24 percentage back, but it -- it's a mechanism to remind 25 people that there's a mechanism.
721 I think in practice, the rep -- they -- 2 they don't come back all that often, but they do on 3 occasion come back, I think. 4 MS. MARA GREENE: And when they come 5 back -- 6 COMMISSIONER STEPHEN GOUDGE: And this is 7 a -- sorry, this is a form sent to Defence and Crown? 8 DR. JAMES YOUNG: Yes, yes. I'm not sure 9 how they -- I think they -- if I'm not mistaken, I think 10 the person who goes to court takes it with them, but I -- 11 but I would defer to the defence. I think that's how we 12 -- how they know to -- to give it to them. 13 COMMISSIONER STEPHEN GOUDGE: I see. 14 MR. MARK SANDLER: Just for the benefit 15 of My Friend, we actually have the form in the database 16 at 140213. 17 COMMISSIONER STEPHEN GOUDGE: Thank you. 18 MR. MARK SANDLER: 213 19 DR. JAMES YOUNG: Yeah. 20 21 CONTINUED BY MS. MARA GREENE: 22 MS. MARA GREENE: So, just to go back to 23 this, these reports when they're sent back, they're not 24 just put in some file that no one looks at. There's 25 someone assigned to look at them and review them and if
731 problems arise, to address those problems. 2 DR. JAMES YOUNG: Yes. The Quality 3 Assurance Unit does it, I think. 4 MS. MARA GREENE: Okay. And some of -- 5 and it would be fair to say that this process doesn't 6 exist right now within the pathology department, correct? 7 DR. JAMES YOUNG: No. There is -- there 8 is no court monitoring system in any pathology service 9 anywhere in the world that I'm aware of other than what I 10 mentioned the other day; You know, occasionally, 11 monitoring somebody's testimony the first couple times. 12 It's not a -- it's never been a feature of -- of forensic 13 pathology. 14 MR. MARA GREENE: But if people actually 15 filled them in and they were read by some supervisor, -- 16 DR. JAMES YOUNG: Mm-hm. 17 MR. MARA GREENE: -- this would be sort 18 of a first step in being able to review an expert's 19 testimony in court, correct? 20 DR. JAMES YOUNG: Yeah, I think it's a -- 21 it's a sentry system and gives you an idea what you're 22 interested in and what you want to look at. I -- I 23 agree. 24 MR. MARA GREENE: And there's no bar that 25 you can envision now for this being put in place for
741 pathologists? 2 DR. JAMES YOUNG: No, I -- I think, you 3 know, when you raise it, if you -- if you sent a copy to 4 the pathologists who go to court and say, you know, one 5 (1) of your obligations when you go to court is to hand 6 one (1) of these to the defence, hand one (1) to the 7 Crown, and -- and then have them address back to the 8 Office of Chief Coroner. That would -- that would work. 9 MR. MARA GREENE: Okay. And then what 10 you -- could be put up is sort of some system where if 11 there's a sufficient number of negative comments that 12 there could be a more a formal review process of the 13 testimony, correct? 14 DR. JAMES YOUNG: Yeah. And -- and 15 sometimes it would be a number, sometimes it would just - 16 - it could be a single case, yes. 17 MR. MARA GREENE: Now, I want to sort of 18 move onto another topic on checks and balances, which is 19 blind reviews; because we've heard a lot of peer reviews 20 so far, and I want to sort of address the concept about a 21 -- a blind review. 22 Because there's been some evidence so far 23 in this Inquiry about the affect of having a really 24 senior person or someone who's sort of on a pedestal and 25 seen as being the leading expert, and the difficulty in
751 having someone more junior or less experienced reviewing 2 that person. 3 DR. JAMES YOUNG: Mm-hm. 4 MR. MARA GREENE: Okay. And you 5 recognize that that can be a problem, correct? 6 DR. JAMES YOUNG: Absolutely. 7 MR. MARA GREENE: And that there's always 8 going to be a leading person or the expert, right? 9 DR. JAMES YOUNG: Well, there's going to 10 be senior people and less senior people, exactly. 11 MR. MARA GREENE: And so it would -- 12 might be a better way to sort of reviewing the more 13 senior people is that the person doing the reviewing 14 doesn't know who they are reviewing, correct? 15 DR. JAMES YOUNG: If you could -- if you 16 could do that, but I think most reports, the giveaway 17 would be the -- the language and the approach that 18 someone takes would probably -- probably give them away 19 in many instances. Just -- we all these tendencies to 20 use expressions and write things in certain ways. 21 But -- but if -- if you could truly do 22 that, yes, that -- that certainly might improve it, 23 that's right. 24 MR. MARA GREENE: So a blind review -- 25 while I appreciate the limitations of doing it
761 internally, given that it's diff -- you would know who it 2 is by recognizing the writing -- but a blind review is 3 better than a non-blind review? 4 DR. JAMES YOUNG: Well, I mean, I would - 5 - I think I argued another way of doing it is -- is by -- 6 by having senior people reviewed by external people so 7 that you're -- you're having them peer reviewed by 8 someone. You can't have -- you absolutely could not have 9 a system where everything was reviewed externally because 10 you -- you haven't got that many external people and you 11 don't have that amount of money and external people would 12 -- they'd be saying, You know, I work for somebody else 13 and I don't have time. 14 But could you on a regular basis on a -- a 15 scheduled basis have your very senior people reviewed by 16 -- by someone externally? Yeah, you probably could. 17 Bearing in mind, that all of these are 18 opinions, so that, you know, again you're into just 19 because two (2) people don't necessarily totally agree, 20 you -- you can't just sort of say they're -- they're 21 wrong. You -- you -- it's a -- it's a mat -- a matter of 22 degree, but I -- you need to review the senior people; 23 you can either do it blindly or you could do it 24 externally. 25 MR. MARA GREENE: And given the problems
771 of doing it blindly internally, it's better to use an 2 external process? 3 DR. JAMES YOUNG: I think it may be 4 better. I -- intuitively, I say, you know, by using an 5 external you're -- it's easier, but -- but you have to 6 even bear in mind, with an external, there are -- of the 7 external reviewers, all of these people know each other. 8 You know, when I -- you know, most of the 9 people that are involved in this case or a good number of 10 the people that are involved in these cases, external 11 reviewers, are people I know. And some of them I may see 12 two (2) or three (3) times a years in different places 13 and -- and be quite familiar. And, you know, Dr. Cordner 14 I've seen already twice this year. 15 You know, it -- it -- that's -- it's a 16 small -- it's a very small world when you get to -- to 17 the top of the forensic field and, you know -- so you 18 know people really quite well, as well. That can create 19 problems in and by itself. 20 MR. MARA GREENE: So given that you could 21 do a blind external review? 22 DR. JAMES YOUNG: You'd almost have to 23 except -- except they'd look at where it's mailed from 24 and say, Oh, we're reviewing Michael Pollanen or we're 25 reviewing David Chiasson because they're the people that
781 you'd want this done on. But yes, you could. 2 MS. MARA GREENE: Okay. Now I just have 3 one (1) other area that I'd like to question you about 4 and it might be my confusion. But in your opinion, the 5 best person to supervise the pathologist; would it be the 6 Chief Forensic Pathologist or would it be the Coroner? 7 DR. JAMES YOUNG: The Chief Forensic 8 Pathologist has the responsibility to -- for the quality 9 assurance and the -- and the operation of the pathology 10 system. What the -- the issue or the question then 11 becomes, Who does the Chief Forensic Pathologist report 12 to? And my view would be that it's better that they 13 report to a coroner. 14 First of all, they're part of the coroner 15 system and they should be integrated into the coroner 16 system. And there's a much greater chance that the 17 coroner will be able to assist and help with the -- with 18 that reporting if -- because they're familiar with 19 forensic issues than reporting to somebody who's an 20 Assistant Deputy Minister who may know absolutely nothing 21 about forensics. So it's simply that it's better, in my 22 mind, that they stay -- (a) that they stay integrated 23 within the system; and (b) that they're reporting to 24 someone who has knowledge in the area. 25 But the quality assurance is -- is by the
791 Chief Forensic Pathologist. But somebody has to do 2 quality assurance on them and be satisfied that they're 3 operating correctly as well. 4 MS. MARA GREENE: Thank you. I have no 5 further questions. 6 COMMISSIONER STEPHEN GOUDGE: Thank you, 7 Ms. Greene. 8 Mr. Falconer...? 9 10 CROSS-EXAMINATION BY MR. JULIAN FALCONER: 11 MR. JULIAN FALCONER: Good morning, Dr. 12 Young. 13 DR. JAMES YOUNG: Good morning, Mr. 14 Falconer. 15 COMMISSIONER STEPHEN GOUDGE: Your clock 16 is running, Mr. Falconer. 17 MR. JULIAN FALCONER: It will run faster 18 if my throat is dry. Sorry, Mr. Commissioner. 19 20 CONTINUED BY MR. JULIAN FALCONER: 21 MR. JULIAN FALCONER: Dr. Young, I act on 22 behalf of Aboriginal Legal Services of Toronto and 23 Nishnawbe-Aski Nation. 24 DR. JAMES YOUNG: Okay. 25 MR. JULIAN FALCONER: Aboriginal Legal
801 Services of Toronto is a multi-service legal agency 2 providing services to First Nations across the province. 3 And Nishnawbe-Aski Nation consists of forty-nine (49) 4 First Nations communities occupying approximately two- 5 thirds (2/3) of the Province of Ontario in the north -- 6 DR. JAMES YOUNG: Mm-hm. 7 MR. JULIAN FALCONER: -- and representing 8 the political entity that runs those communities. 9 DR. JAMES YOUNG: Yeah, I'm familiar with 10 -- with both organizations. 11 MR. JULIAN FALCONER: Would you agree as 12 a general proposition that First Nations are as entitled 13 as any other community in this province to accountability 14 from its government institutions? 15 DR. JAMES YOUNG: Yes. I think the aim 16 of government is to provide consistent service in all 17 areas to everyone, whether -- whether First Nations or -- 18 or in isolated communities in the North. And that's 19 certainly the aim; it's not easy to achieve but that's 20 the aim. 21 MR. JULIAN FALCONER: In particular, in 22 the context of this case, you'd agree that First Nations 23 communities are as entitled as any other community to 24 expect the Office of the Chief Coroner to be accountable 25 in the services it provides?
811 DR. JAMES YOUNG: Well, the 2 accountability is -- is steady across the board, of 3 course. 4 MR. JULIAN FALCONER: Yes. And you'd 5 agree that a key feature of government accountability is 6 effective oversight? 7 DR. JAMES YOUNG: Yeah, I -- yes. Yeah. 8 I'm not sure -- 9 MR. JULIAN FALCONER: And -- 10 DR. JAMES YOUNG: -- I'd connect it that 11 way, but yes, okay. 12 MR. JULIAN FALCONER: You wouldn't 13 connect -- 14 DR. JAMES YOUNG: Well, I'm not sure 15 where -- 16 MR. JULIAN FALCONER: -- accountability 17 oversight? 18 DR. JAMES YOUNG: I'm not sure -- yes. 19 I'll answer "yes." 20 MR. JULIAN FALCONER: Thank you. 21 Now you've presided over or been involved 22 in many, many coroner's inquests that have looked at 23 different systemic failings throughout our society, fair? 24 DR. JAMES YOUNG: Yes. 25 MR. JULIAN FALCONER: And you know that
821 at times, juries, as well as coroners, recognize that 2 systemic failings may flow from ineffective oversight, 3 fair? Ineffective oversight over institutions; that that 4 is one (1) of the kinds of flaws that get identified from 5 time to time. 6 DR. JAMES YOUNG: Mm-hm. 7 MR. JULIAN FALCONER: Yes? 8 DR. JAMES YOUNG: Yes. 9 MR. JULIAN FALCONER: Could I ask you to 10 look at Tab 63, binder 8; so binder 8, Tab 63, which is 11 document number 300814. 12 DR. JAMES YOUNG: Which tab, Mr. 13 Falconer? 14 MR. JULIAN FALCONER: Tab 63, binder 8. 15 It's the job description for the Office of the Chief 16 Coroner and the Assistant Deputy Minister. 17 DR. JAMES YOUNG: Okay. 18 MR. JULIAN FALCONER: Now, you've already 19 answered some questions from Mr. Sandler and, in fact, 20 the Commissioner. The bottom line is you occupied, for 21 fourteen (14) years, the position of Chief Coroner from 22 1990 to 2004. 23 DR. JAMES YOUNG: Yes. 24 MR. JULIAN FALCONER: And at the same 25 time, in a ten (10) period, you were both Assistant
831 Deputy Minister from 1994 to 2002 and Commissioner of 2 Public Safety and Security from June 2002 to April 2004, 3 correct? 4 DR. JAMES YOUNG: Yes. 5 MR. JULIAN FALCONER: And so from the 6 period 1994 to 2004, for that ten (10) year period, you 7 occupied the very posts that the Chief Coroner of Ontario 8 was accountable to, correct? 9 DR. JAMES YOUNG: But, I, in turn, was 10 accountable up through the system. There was a check and 11 balance in place, but in -- in theory, I reported to 12 myself and instead the -- the level of accountability 13 just raised -- was raised one (1) level. 14 I still was absolutely accountable to the 15 Minister and to the Deputy. 16 MR. JULIAN FALCONER: Was there a formal 17 change in the reporting structure in view of your 18 occupation of the role of Assistant Deputy Minister or 19 the Commissioner of -- of Public Safety; could we look up 20 the job description change somewhere? 21 DR. JAMES YOUNG: Sorry? 22 MR. JULIAN FALCONER: Was there a formal 23 change in -- 24 DR. JAMES YOUNG: There -- there isn't -- 25 I don't think in anybody's job description, it -- it
841 would detail to that level of detail. 2 MR. JULIAN FALCONER: Well, I'm looking 3 at document number 300814 and it indicates on page 1: 4 "The following position reports jointly 5 to the Commissioner of Community Safety 6 and the Deputy Minister." 7 And it says: 8 "Assistant Deputy Minister of Public 9 Safety." 10 And then it says: 11 "The following areas report to the 12 Commissioner of Community Safety and 13 includes the Office of the Chief 14 Coroner." 15 So those are detailed -- 16 DR. JAMES YOUNG: What -- what year is -- 17 what year is that? 18 MR. JULIAN FALCONER: Can I just finish? 19 DR. JAMES YOUNG: Yeah. 20 MR. JULIAN FALCONER: Those are detailed 21 descriptions; that's document number 300814, and it's the 22 most recent incarnation which is 2007. 23 DR. JAMES YOUNG: Mm-hm. 24 MR. JULIAN FALCONER: But it's an example 25 of a detailed reporting structure, is it not?
851 DR. JAMES YOUNG: Mm-hm. 2 MR. JULIAN FALCONER: Yes? 3 DR. JAMES YOUNG: Yes. 4 MR. JULIAN FALCONER: And that would be 5 the kind -- 6 DR. JAMES YOUNG: That's -- 7 MR. JULIAN FALCONER: -- of detail one 8 would expect in the job descriptions you held from 1994 9 to 2004, yes? 10 DR. JAMES YOUNG: The -- the -- there was 11 always Ministry organization charts that -- that went 12 through. 13 MR. JULIAN FALCONER: Sure. 14 DR. JAMES YOUNG: And the ministry 15 organization charts would show the -- the Public Safety 16 Division, but they always showed -- during that entire 17 period they showed me occupying both the position of the 18 ADM and the position of the Chief Coroner. That was, you 19 know, it was not a secret to anyone, it was well-known. 20 MR. JULIAN FALCONER: I'm not asking if 21 your name wasn't disclosed. I'm asking, was there a 22 formal change in the reporting structure as a result of 23 your decision to occupy the role of Assistant Deputy 24 Minister? 25 DR. JAMES YOUNG: Well, I didn't make
861 that decision; the Government chose that -- that -- and 2 asked me to assume that role. I went along with it and 3 agreed, for reasons that I've outlined, so... 4 MR. JULIAN FALCONER: Yes. 5 DR. JAMES YOUNG: The government was well 6 aware that I was reporting to myself and -- but also I 7 was reporting, in essence, to the Deputy Minister at -- 8 at a higher level with more detail. 9 MR. JULIAN FALCONER: Because my time is 10 so limited, I'm -- I'm just going to, with respect, ask 11 you to direct your mind to my question. My question was, 12 was there a formal change in the reporting structure as a 13 result of your decision to accept the position of 14 Assistant Deputy Minister? 15 MR. BRIAN GOVER: Surely that has been 16 answered, Mr. Commissioner. 17 COMMISSIONER STEPHEN GOUDGE: He answered 18 the part. What do you want to get at? 19 MR. JULIAN FALCONER: Well, in -- from 20 the position of my client, Mr. Commissioner, if there is 21 going to be that kind of deficiency in the accountability 22 structure, one (1) way to remedy it, for example, would 23 be to change the formal reporting line. 24 So, for example, the Office of the -- 25 COMMISSIONER STEPHEN GOUDGE: Why don't
871 you suggest that to him? 2 MR. JULIAN FALCONER: I asked him if 3 there had been a formal change in the accountability 4 structure as a result of his decision -- 5 COMMISSIONER STEPHEN GOUDGE: But he says 6 it wasn't his decision, so... 7 MR. JULIAN FALCONER: Oh, I see, that's-- 8 COMMISSIONER STEPHEN GOUDGE: Yes. 9 MR. JULIAN FALCONER: Okay. 10 COMMISSIONER STEPHEN GOUDGE: Yes. 11 MR. JULIAN FALCONER: Fine, let me -- 12 COMMISSIONER STEPHEN GOUDGE: Yes. 13 MR. JULIAN FALCONER: -- avoid that and-- 14 COMMISSIONER STEPHEN GOUDGE: Once he 15 assumes the role, why don't you phrase it that way? 16 17 CONTINUED BY MR. JULIAN FALCONER: 18 MR. JULIAN FALCONER: Once you -- fair 19 enough. Once you assumed the role of Assistant Deputy 20 Minister, was there a formal change in the accountability 21 structure in who the Office of the Chief Coroner reported 22 to? 23 DR. JAMES YOUNG: No, I -- I reported 24 through, but -- but there was a difference in terms of my 25 reviews by government. My review the -- with the Deputy
881 Minister included my performance as the Chief Coroner and 2 my performance as the ADM, so while it -- it didn't 3 appear on a piece of paper -- the piece of paper showed 4 the org -- but the -- but the accountability was -- was 5 there on both counts. 6 MR. JULIAN FALCONER: You'd agree with 7 me, though, that the appearance never changed. 8 DR. JAMES YOUNG: Well, it did, because - 9 - because part of the appearance is whose names appear in 10 which boxes. So -- 11 MR. JULIAN FALCONER: Fair enough. 12 DR. JAMES YOUNG: -- that -- that 13 changed, and that was reflected by Government. 14 MR. JULIAN FALCONER: Did you ever 15 consult with the Conflicts Commissioner in respect of the 16 decision to occupy the position of Assistant Deputy 17 Minister and Chief Coroner for the Province of Ontario? 18 DR. JAMES YOUNG: No, the Conflicts 19 Commissioner, at least in those days, was -- was in -- in 20 regards to politicians. I'm -- I'm a civil servant; I'm 21 not a -- not a politician. I'm not aware that the 22 Conflicts Commissioner deals with -- with the bureaucracy 23 and -- and makes rulings. 24 MR. JULIAN FALCONER: And leaving aside 25 any legal privileged opinion you may have had -- 'cause I
891 don't want to know about that -- did you ever obtain any 2 kind of formal opinion validating the decision to occupy 3 both the position of Assistant Deputy Minister and Chief 4 Coroner for the Province of Ontario? 5 DR. JAMES YOUNG: I certainly gave it 6 some thought, and I didn't see a conflict other than in 7 one (1) area. And I established a Chinese Wall on that 8 one (1) area. The area that -- that came in conflict, 9 potentially, was the area around a fire death and -- and 10 my responsibilities to the Fire Marshall of Ontario. 11 And I had a formal mechanism in place; in 12 the event of a fire death, I had a signed piece of paper 13 that made Dr. Cairns the Chief Coroner and excluded me 14 from not only any -- any decision-making in regards to a 15 fire death, but any meetings. 16 And if we were having a meeting about 17 anything and the fire death was going to be discussed, I 18 left the room for that entire time, and I was not party 19 to any -- any information as a result of that meeting, 20 other than if it would affect -- the Fire Marshall would 21 be told and then he, in turn, would tell me what the 22 decision was. 23 So the -- the conflict that -- that 24 existed was -- was addressed very carefully and -- and 25 that was adhered to in absolute terms. That was the only
901 -- during the -- during the time un -- until I -- I 2 resigned, that was the major conflict, potentially, that 3 I ran into. 4 MR. JULIAN FALCONER: In -- in terms of 5 Dr. Cairns, he was your Deputy Chief Coroner; your 6 subordinate? 7 DR. JAMES YOUNG: Well, he was in terms 8 of the org chart, yes. Yeah. 9 MR. JULIAN FALCONER: And you're saying 10 that you would have basically placed him as a defacto 11 Chief Coroner for the purposes of fire investigations? 12 DR. JAMES YOUNG: Yes. 13 MR. JULIAN FALCONER: And then he would 14 report -- 15 DR. JAMES YOUNG: Not defacto. I did. I 16 signed a piece of paper that -- that made him the Chief 17 Coroner. 18 MR. JULIAN FALCONER: And then he, your 19 subordinate on the org chart, would in turn be 20 accountable to the Assistant Deputy Minister, yes? 21 DR. JAMES YOUNG: No -- well, no. 22 "Accountable" is a -- is a word can be used many ways. 23 All of the decision-making within the Office of the Chief 24 Coroner was independent of Government, and it was -- and 25 Government never, in my time, interfered.
911 He was perfectly free to make whatever 2 decisions -- and often they -- decisions they made 3 weren't what I necessarily would have liked to have hear 4 -- heard, because I had to work with the Fire Marshall, 5 and they would make a decision to hold an inquest in 6 cases where I then would work with the Fire Marshall on 7 the other side of the issue. 8 The accountability comes in the Office -- 9 at the end of the processes. How many inquests did we 10 do? How well did they do? Is the Office operating in 11 budget? 12 But the accountability is not for that 13 decision. The -- the Government never made the 14 accountability, the decisions that were being made or 15 criticized the Office for the decisions they made; that - 16 - that was not -- that would be interfering with the 17 independence of the Office, and it wasn't done. It 18 simply wasn't done. 19 MR. JULIAN FALCONER: In respect of the 20 ministerial positions -- so it's clear -- it's fair to 21 say that the Assistant Deputy Minister provided important 22 support to the Deputy Minister, correct? 23 That was the function of the Assistant 24 Deputy Minister; to provide support to the Deputy 25 Minister, correct?
921 DR. JAMES YOUNG: Support and -- and to - 2 - they are the message carrier from the Division -- from 3 the Public Safety Division. 4 MR. JULIAN FALCONER: And the Deputy 5 Minister is meant to provide bureaucratic support to the 6 Minister, correct? 7 DR. JAMES YOUNG: Yes. 8 MR. JULIAN FALCONER: It's also fair to 9 say that in terms of the Coroners Act, there are specific 10 sections that bear out the independent and distinct 11 status that the Minister enjoys, vis-a-vis, the coroner, 12 correct? 13 DR. JAMES YOUNG: Sorry, I'm not sure I 14 understand what -- 15 MR. JULIAN FALCONER: There are sections 16 of the Coroners Act -- Sections 22 to 24, Section 27 -- 17 dealing with the independent and distinct status of the 18 Minister vis-a-vis the Chief Coroner and the coroner 19 system, isn't that right? 20 DR. JAMES YOUNG: The Minister, you mean 21 like the Minister's ability to call an inquest? 22 MR. JULIAN FALCONER: The Minister's 23 ability to direct a coroner to call an inquest even if 24 the Chief Coroner doesn't want to. 25 DR. JAMES YOUNG: Mm-hm.
931 MR. JULIAN FALCONER: The Minister's 2 ability to appoint -- this is under Section 22. 3 DR. JAMES YOUNG: Mm-hm. 4 MR. JULIAN FALCONER: Section 23, the 5 Minister's ability to appoint a Commissioner in the place 6 of the coroner. 7 DR. JAMES YOUNG: Yes. 8 MR. JULIAN FALCONER: The Minister's 9 ability to intervene in respect of criminal charges. 10 DR. JAMES YOUNG: Yeah. 11 MR. JULIAN FALCONER: The ability of a 12 Minister to actually review what would otherwise be a 13 final decision by a Chief Coroner under Section 23. 14 All of those are independent and distinct 15 statuses that a Minister has vis-a-vis a Chief Coroner. 16 Isn't that right? 17 DR. JAMES YOUNG: That -- that's true. 18 MR. JULIAN FALCONER: The Act actually 19 contemplates giving the Minister an override power over 20 the Chief Coroner. 21 Isn't that right? 22 DR. JAMES YOUNG: Well, ultimately, the 23 accountability in government rests with the elected 24 official. So I think that's what the Act is reflecting. 25 MR. JULIAN FALCONER: But during the ten
941 (10) years that you occupied the status of Assistant 2 Deputy Ministers, were any steps taken to formally 3 safeguard that independent status? 4 I mean, you were Assistant Deputy 5 Minister, loyal to the Minister, and you were Chief 6 Coroner. What formal steps were taken to safeguard that 7 distinct and independent status in those ten (10) years? 8 DR. JAMES YOUNG: I'm sorr -- I -- I 9 can't understand what your question is asking. I -- I -- 10 the Minister is the Minister, and the Minister has that 11 independence. And the -- the Assistant Deputy Minister 12 doesn't protect that status, that -- he has that, he has 13 it in law. 14 The Chief Coroner has independence, and 15 the Chief Coroner, as I've said to you, exercise that -- 16 that independently. They -- I was never ordered to do 17 anything by a Minister of any political stripe in 18 government in all the years I was the -- in the office, 19 not just as the Chief Coroner. 20 MR. JULIAN FALCONER: Well, let's just 21 confine ourselves to -- to the Minister, now for Public 22 Safety and Correctional Services, then the Solicitor 23 General when the Act was originally created. Let's 24 confine ourselves to that. 25 It clearly contemplates, for example,
951 under Section 26(3), it contemplates that a Chief 2 Coroner's decision can actually be overridden. 3 Isn't that right? 4 DR. JAMES YOUNG: Sure. 5 MR. JULIAN FALCONER: So that a Minister, 6 acting on the advice of his Deputy Minister and his 7 Assistant Deputy Minister, can actually override the 8 actions of a Chief Coroner. 9 Isn't that right? 10 DR. JAMES YOUNG: Sure. 11 MR. JULIAN FALCONER: What steps were 12 taken to safeguard the independent and distinct status of 13 that ministerial office relative to the functions of the 14 coroner while you occupied by both spaces for ten (10) 15 years? 16 DR. JAMES YOUNG: There was still a 17 Deputy Minister. There was no special steps taken 18 because nothing had changed. As far as -- there was 19 still a checks and balances in place. There was a Deputy 20 Minister, and there was the independence of the Minister. 21 There was nothing -- I don't ever remember 22 a discussion or a thought that the Minister didn't have 23 his independence or that I didn't have my independence. 24 It didn't -- nothing changed. 25 MR. JULIAN FALCONER: I'm going to put it
961 to you, sir, with all due respect, because it's my 2 obligation to. 3 DR. JAMES YOUNG: Sure. 4 MR. JULIAN FALCONER: It may well be that 5 my client takes the position at the end of the day that - 6 - notwithstanding your claim of attracting additional 7 resources by being Assistant Deputy Minister -- it may 8 well be that at the end of the day my client takes the 9 position that your decision to occupy the post of 10 Assistant Deputy Minister seriously eroded the 11 accountability of the Office of the Chief Coroner and in 12 essence was borne of professional ambition and had 13 nothing to do with enhancing -- I'm going to finish my 14 question. 15 COMMISSIONER STEPHEN GOUDGE: Was it a 16 question or a statement? 17 MR. JULIAN FALCONER: It's a suggestion, 18 because it's a position that my client intends to take at 19 the end of the day, and I am duty bound to put it to the 20 witness to allow him to respond. 21 COMMISSIONER STEPHEN GOUDGE: See if you 22 can shorten the question. 23 MR. JULIAN FALCONER: I'll try, Mr. 24 Commissioner. 25
971 CONTINUED BY MR. JULIAN FALCONER: 2 MR. JULIAN FALCONER: I'm going to 3 suggest to you that the decision to occupy the position 4 of Assistant Deputy Minster while remaining Chief Coroner 5 for the Province of Ontario was borne of a professional 6 ambition and resulted in the erosion of the 7 accountability of the Office of Chief Coroner and had 8 nothing to do with enhancing the credibility or 9 functioning of the Office of the Chief Coroner. 10 DR. JAMES YOUNG: Well -- 11 OBJ MR. BRIAN GOVER: Well, my objection 12 won't even address the insulting nature of the question 13 but it will address this: My Friend stands before you on 14 behalf of someone whose standing at this Inquiry was 15 granted, and I refer now to page 10 of the Ruling on 16 Standing Funding of August 17th. Page 10: 17 "The ALST-NAN Coalition is well-placed 18 to assist the Commission with issues 19 raised by the use of and access to 20 pediatric forensic pathology in 21 investigations of criminal proceedings 22 that may be unique to Aboriginal 23 people. This warrants standing." 24 I don't question at all the basis on which 25 standing is granted. But in my respectful submission the
981 question asked has nothing to do with that. And with 2 respect, it takes us beyond the mandate of this 3 Commission. 4 And in my submission, My Friend ought not 5 to be allowed to ask the question, nor should the witness 6 be compelled to answer it. 7 COMMISSIONER STEPHEN GOUDGE: And you 8 say, Mr. Falconer? 9 MR. JULIAN FALCONER: As I sought and 10 -- and drew from the witness early in my questioning of 11 Dr. Young, First Nations communities are no less entitled 12 to expect effective accountability from its government 13 institutions, including the Office of the Chief Coroner, 14 than any other party in this room. 15 So by being First Nation they don't all of 16 a sudden waive their right to expect effective oversight 17 and effective accountability. For well nine (9) -- ten 18 (10) to fifteen (15) years during the reign of Dr. Young 19 -- and to be fair to Dr, Young, before Dr. Young -- there 20 were reports that indicated that remote communities were 21 grossly underserviced, that people continually, year 22 after year, went without help. 23 We heard Dr. Young testify that doctors 24 get up in the middle of the night, rain or shine. They 25 didn't go to Mishkeegogamang. Dr. Young got a report on
991 point. I've given him notice on it. 2 The Law Reform Commission spoke to it 3 during the tenure of Dr. Young. Things didn't change. 4 With great respect to My Friend's position, this is 5 precisely why my client's here. It's about 6 accountability for services, services they never got. 7 COMMISSIONER STEPHEN GOUDGE: Why don't 8 you ask him whether he agrees that by occupying both 9 positions the accountability of the Chief Coroner's 10 office was eroded? 11 Is that not your question? 12 MR. JULIAN FALCONER: Yes. 13 COMMISSIONER STEPHEN GOUDGE: Why do you 14 not put that? 15 16 CONTINUED BY MR. JULIAN FALCONER: 17 MR. JULIAN FALCONER: Do you agree that 18 by occupying both positions, Assistant Deputy Minister 19 and Chief Coroner for the Province of Ontario, the 20 accountability of the Office of the Chief Coroner of 21 Ontario was seriously eroded? 22 DR. JAMES YOUNG: No, I do not. I do not 23 believe it was seriously eroded. I think there were 24 advantages and disadvantages that had to be weighed at 25 that point in time in me doing both positions. But
1001 accountability was not seriously eroded, and I think your 2 -- your questions are without foundation. 3 We don't have time to go into the issues, 4 but, in fact, we've -- you know, I -- I completely 5 disagree with you assertion and do not feel it was 6 eroded. 7 MR. JULIAN FALCONER: Did you read in 8 1995, a report on the law of coroners, the Law Reform 9 Commission Report? 10 DR. JAMES YOUNG: Yes, I did. 11 MR. JULIAN FALCONER: Tab 66 of binder 8, 12 document number 300822 is where it can be found. 13 DR. JAMES YOUNG: What -- what Tab 14 number? 15 MR. JULIAN FALCONER: Tab number 66 of 16 binder 8. 17 DR. JAMES YOUNG: Okay. 18 MR. JULIAN FALCONER: Could you direct 19 your attention, please, to page 192 of the report? 20 21 (BRIEF PAUSE) 22 23 DR. JAMES YOUNG: Unfortunately, I can't 24 read in my binder page 192. It's too -- it's too faint. 25 COMMISSIONER STEPHEN GOUDGE: Pretty
1011 faint. 2 3 CONTINUED BY MR. JULIAN FALCONER: 4 MR. JULIAN FALCONER: Oh, that's -- all 5 right. What I'll do is I'll read to you -- I -- I -- we 6 didn't reproduce it there, but I apologize for that, Dr. 7 Young. What I'll do is I'll read you the relevant 8 passage. 9 We'll see if this works and if it doesn't 10 I'll give you my page, all right? 11 DR. JAMES YOUNG: Bearing in mind, I 12 haven't seen this document since what year, 1988? Or 13 what year is it? 14 MR. JULIAN FALCONER: The document was 15 1995. 16 DR. JAMES YOUNG: Okay. 17 MR. JULIAN FALCONER: It's the only Law 18 Reform Commission Report on the coroner's system given 19 while you were Chief Coroner, is that right? 20 DR. JAMES YOUNG: Yeah, I -- I appreciate 21 that. All I'm saying is I haven't seen it for a number 22 of years. 23 MR. JULIAN FALCONER: And it's fair to 24 say not one (1) of the recommendations of the Law Reform 25 Commission in 1995 were enacted into the Coroner's Act.
1021 Isn't that right? 2 DR. JAMES YOUNG: I -- I would have to 3 reread it. I haven't seen the document, and I -- I know 4 that there was discussion within doc -- within government 5 of the Law Reform Commission. This was the -- just 6 before the Law Reform Commission was -- was abolished by 7 government and government chose not to implement -- I -- 8 I can't say none of the report, but most of the report. 9 I -- I agree that it -- that was not the 10 direction government chose to move. Mind you, government 11 didn't choose to move and revise the act at all. It 12 hasn't been revised. I -- I can't remember the last 13 time. It goes back beyond my time since government 14 wanted to open the Act up and revise it, so... 15 MR. JULIAN FALCONER: Fair enough, but 16 that report was issued in 1995, and that means the 17 considerations you're referring to would have happened in 18 and around 1996/ 1997. 19 DR. JAMES YOUNG: That's right, but I -- 20 I -- 21 MR. JULIAN FALCONER: While you were 22 Assistant Deputy Minister. 23 DR. JAMES YOUNG: I was Assistant Deputy 24 Minister at that time. 25 MR. JULIAN FALCONER: Now on page 192 I'm
1031 going to read you the passage that's -- that's relevant. 2 And again, I emphasize if it's too fast, I'll bring you 3 the page. 4 It's seven (7) lines from the top. The 5 report states as follows: 6 "Similarly, First Nations issues, 7 including the problems associated with 8 life in remote communities, will 9 require responses that are consistent 10 with the cultural and social context. 11 This has not always been the case." 12 And then it refers to a footnote 13 underneath. 14 "See, for example, the criticisms of 15 Grant, Bader, and Cromarty." 16 And you know Michael Bader. He's now 17 Department of Justice. 18 Do you know Mr. Bader? 19 DR. JAMES YOUNG: Yes. 20 MR. JULIAN FALCONER: "Report of the 21 Osnaburgh Windigo Tribal Council" -- and for the purposes 22 of the record, so it's clear, Osnaburgh Windigo is 23 actually Mishkeegogamang, Commissioner. In other words, 24 the -- what is termed as the colonial name for 25 Mishkeegogamang is in fact Osnaburgh Windigo.
1041 "See, for example, the criticisms of 2 Grant, Bader, and Cromarty report of 3 Osnaburgh Windigo Tribal Council 4 Justice Review Committee prepared for 5 the Attorney General of Ontario. 6 The report noted a number of cases in 7 which inquests were not conducted, and 8 the authors were of the view that had 9 the deaths taken place in a non-native 10 community, inquests would have been 11 conducted. After asking pointed 12 questions about the attitudes of the 13 coroner's system, the report concluded 14 as follows. 'The reluctance to hold 15 inquests may be attributed in part to 16 the problems of language and culture. 17 The coroner is a medical doctor; his 18 investigators are members of the OPP 19 and his counsel is the Crown attorney. 20 None of them is a First Nations person, 21 all or part of what perceived as an 22 alien justice system.'" 23 Now, I -- there is another passage that 24 sort of puts the perspective of the Chief Coroner 25 forward, and -- and I do want to draw it to your
1051 attention. It says: 2 "The Chief Coroner has expressed 3 concern that the authors of the report 4 commented on specific cases without 5 consulting the relevant coroner or 6 regional coroner." 7 And -- and it goes on to refer to some 8 responses. What I want to put to you, because to be fair 9 to you we also gave you notice on this report didn't we? 10 In other words, you'll find included, as 11 Tab 70, binder 8, document number 300857, the actual 12 report on Osnaburgh Windigo Tribal Justice Review 13 Committee. We've provided you notice of that report. 14 And all I want to put to you is this. 15 During your time, during your time as Chief Coroner for 16 the province and Assistant Deputy Minister, it was 17 brought to your attention that Mishkeegogamang was 18 horribly and seriously under-serviced, isn't that fair? 19 DR. JAMES YOUNG: I'm sorry, under- 20 serviced in regards to what? 21 MR. JULIAN FALCONER: The coroner's 22 system. Access to death investigation services, access to 23 coroners, and access to the kinds of services that other 24 members of the province, non-First Nations, received as a 25 matter of routine.
1061 DR. JAMES YOUNG: We could not provide 2 services in the same manner that we could provide 3 services in other places, because of geography and 4 because of the -- the marching of time after death. We - 5 - we can't provide services in that manner, and we 6 attempt to provide services at the highest forensic level 7 we possibly can. 8 We have had instances where -- where we're 9 able to get a coroner into a -- into a -- a remote 10 reserve on -- on occasion, but most times we can't do 11 that. 12 MR. JULIAN FALCONER: Dr. Cairns 13 testified -- 14 DR. JAMES YOUNG: Can I finish my answer? 15 MR. JULIAN FALCONER: Oh, I apologize. 16 I'm sorry, I thought you were finished. 17 DR. JAMES YOUNG: We -- we made a policy 18 of -- of trying to get, in fact, the best pathology we 19 could by -- by ordering more autopsies and -- and moving 20 the -- the cases to centres where we were confident in 21 that we would get the pathology possible. 22 We -- we couldn't -- trying to get a 23 coroner into the area in a timely manner would mean then 24 that by the time they get there, the scene my be 25 disturbed. But also there's the need after death to get
1071 moving on -- if we're going to do an autopsy, to do it as 2 quickly as possible. 3 We were happy to incur the tremendous cost 4 in moving bodies. It -- it's an enormous cost, but we 5 understood that was part of -- of doing the business. 6 We kept a regional coroner in northwestern 7 Ontario despite the fact the volumes really don't -- 8 don't indicate it, and a good part of his job was to -- 9 was to pay careful attention to -- to First Nations 10 issues. 11 I personally visited, virtually, all of -- 12 not all, but virtually all of the fly-in communities at 13 the beginning of my tenure as Chief Coroner in order to 14 understand the issues more -- more fully. 15 So, did we do a -- a perfect job? No, 16 these are very difficult issues to deal with. Did we 17 attempt to deal with them? Did we attempt to be sen -- 18 sensitive? Are we aware that it's a -- a difficult area 19 to provide a level of -- of -- a level of service that we 20 are comfortable with? 21 Yeah, we -- we accept that. It's a 22 challenging job to do it. It cannot be managed in the 23 same way as a death in downtown Toronto. It's simply -- 24 there is no way we can find to do it. But we were aware 25 of it, and we were dealing with it.
1081 And -- I mean, that -- I think that's the 2 answer to your question. 3 MR. JULIAN FALCONER: Dr. -- 4 COMMISSIONER STEPHEN GOUDGE: Mr. 5 Falconer, you're running out of time. 6 MR. JULIAN FALCONER: And I'm -- I'm just 7 closing. Thank you, Mr. Commissioner. 8 9 CONTINUED BY MR. JULIAN FALCONER: 10 MR. JULIAN FALCONER: Dr. Cairns 11 testified on November 28th, 2007, page 221/222. He 12 answered the following -- I put to him: 13 "Would you agree with me that it would 14 actually be a surprise if an 15 investigating coroner, in the form of a 16 doctor, actually visited a remote First 17 Nations community?" 18 And Dr. Cairns answered, quote: 19 "I think it would be rare." Closed 20 quotes. 21 Do you disagree with Dr. Cairns? 22 DR. JAMES YOUNG: No. Our problem was 23 getting coroners in. It was not non-existent, but it was 24 not the usual practice, because we couldn't get them in 25 in a timely fashion in order to do the investigation.
1091 MR. JULIAN FALCONER: The last document I 2 want to bring to your attention on that issue is at Tab 3 65 of your binder, and it's document 300818. I don't 4 know if it's possible to bring it up. 300818; it's a 5 legislative table. 6 DR. JAMES YOUNG: Mm-hm. 7 MR. JULIAN FALCONER: Do you have that in 8 front of you? 9 DR. JAMES YOUNG: I do. 10 MR. JULIAN FALCONER: It's a four (4) 11 page document, and what it does, in essence, is it 12 canvasses -- due to the great work of Ms. Esmonde and 13 others -- it canvasses -- of our office -- it canvasses 14 the existence of investigators throughout the country, 15 and what their status is. 16 DR. JAMES YOUNG: Yes, sir. I'm pretty 17 familiar with -- with it anyway, so. 18 MR. JULIAN FALCONER: Yes. And it looks 19 at first of all, the question of what the professional 20 credentials of the Chief Coroner or Chief Medical 21 Examiner are from province to province. 22 And then it looks at the question of the 23 credentials of the investigator that actually goes to the 24 site, province to province, all right? 25 DR. JAMES YOUNG: Mm-hm.
1101 MR. JULIAN FALCONER: What you'll notice 2 from looking at the table is that when it comes to Chief 3 Coroners or Medical Examiners, and we're dealing with 4 thirteen (13) jurisdictions. Ten (10) provinces and 5 three (3) territories, all right? 6 DR. JAMES YOUNG: Mm-hm. 7 MR. JULIAN FALCONER: Of the thirteen 8 (13) jurisdictions, six (6) provinces have a medical 9 doctor as a Chief Coroner or Medical Examiner, whereas 10 seven (7) -- four (4) provinces and three (3) territories 11 do not have a doctor, do not have a medical practitioner 12 as Chief Coroner or Medical Examiner, correct? 13 DR. JAMES YOUNG: Yes. 14 MR. JULIAN FALCONER: Are all those four 15 (4) provinces and three (3) territories engaged in 16 incompetent or unreasonable investigations -- death 17 investigations? It's not a fair question. Let me 18 revise. 19 DR. JAMES YOUNG: It's not. You know -- 20 MR. JULIAN FALCONER: Would you say that 21 in the case of all four (4) provinces and three (3) 22 territories that they suffer from serious systemic 23 failings in how they do their business? 24 DR. JAMES YOUNG: I would say that -- 25 that they are operating in systems that are much smaller,
1111 much less complex environments then Ontario, and count on 2 assistance from Ontario and the bigger provinces in order 3 to -- to carry on these functions. 4 We are constant advisors to -- to those 5 systems, and when they get complex medical cases, so. I 6 think they -- they do the best they can in the systems 7 and -- and the circumstances they -- they deal with. 8 But their -- their systems are not as 9 sophisticated or as able to deal with complex cases as 10 Ontario. 11 MR. JULIAN FALCONER: Quebec, British 12 Columbia, these are tiny -- 13 DR. JAMES YOUNG: No, Quebec is led by a 14 physician. 15 MR. JULIAN FALCONER: Quebec's 16 legislations provides for either a doctor or a lawyer. 17 And -- 18 DR. JAMES YOUNG: Quebec's system is led 19 by a doctor, and the doctors do the medical examinations. 20 The lawyers conduct inquests. I -- I just spent four (4) 21 days with the Chief Coroner from Quebec. 22 MR. JULIAN FALCONER: You're talking 23 about right now. I'm talking about what the legislation 24 allows, that's all. 25 DR. JAMES YOUNG: This is the practice --
1121 MR. JULIAN FALCONER: Fair enough. 2 DR. JAMES YOUNG: -- it's what's always 3 been done in Quebec. I mean we have to deal with -- 4 you're asking me a question about the -- the quality of 5 the system. The Quebec system is, virtually, a carbon 6 copy of Ontario. The Act is, virtually, identical. 7 It operates with the exception of what I 8 just said, in virtually an identical way. When they got 9 the new Act, they spent considerable time in Ontario 10 talking to us about how to run the system and how to make 11 it work the way we make it work, so. 12 MR. JULIAN FALCONER: Could I ask -- 13 DR. JAMES YOUNG: So I'm very familiar 14 with the Quebec system. 15 COMMISSIONER STEPHEN GOUDGE: You're 16 going to have to wind up. 17 18 CONTINUED BY MR. JULIAN FALCONER: 19 MR. JULIAN FALCONER: Sure. Could I ask 20 you to look at page 2 that sets out Quebec in the 21 legislative provisions? 22 COMMISSIONER STEPHEN GOUDGE: This is 23 your last question. 24 25 CONTINUED BY MR. JULIAN FALCONER:
1131 MR. JULIAN FALCONER: Fair enough. 2 DR. JAMES YOUNG: I understand they can 3 use people -- other people, but they don't do it; that's 4 not what the -- that's not their practice. 5 MR. JULIAN FALCONER: In this country 6 there is only one (1) province that requires the 7 investigating coroner, the investigator, to be a doctor 8 and that's Ontario. 9 Do you concede that in every other 10 province and territory, that is nine (9) provinces and 11 three (3) territories, that investigators going out into 12 communities do not have to be medical practitioners? 13 DR. JAMES YOUNG: That -- that's fact, 14 yes. 15 MR. JULIAN FALCONER: Thank you. Those 16 are my questions, thank you. 17 COMMISSIONER STEPHEN GOUDGE: Thanks, Mr. 18 Falconer. 19 We will take our morning break now and be 20 back at twenty (20) to 12:00. And we will pick up with 21 you, Ms. Fraser. 22 23 --- Upon recessing at 11:25 a.m. 24 --- Upon resuming at 11:43 a.m. 25
1141 COMMISSIONER STEPHEN GOUDGE: Please sit 2 down. I am lacking my assistant here. Please sit down, 3 Christopher. 4 Ms. Fraser...? 5 6 CROSS-EXAMINATION BY MS. SUZAN FRASER: 7 MS. SUZAN FRASER: Thank you, 8 Commissioner. Dr. Young, my name is Sue Fraser, and I'm 9 here on behalf of an organization called Defence for 10 Children International Canada. And that is an 11 international organization, which is founded in Geneva 12 and its goal is to protect and promote the rights of the 13 child as spelled out in the UN Convention. 14 DR. JAMES YOUNG: Okay. 15 MS. SUZAN FRASER: Okay. And I'm going 16 to be -- I've been asked to be judicious with my 17 questions, and I'll ask, if you can, to be judicious with 18 your answers. I've framed some of them that are capable 19 of being answered yes or no, so that we could have time 20 to talk about the issues I'm interested in hearing from 21 you about. 22 DR. JAMES YOUNG: If I can. 23 MS. SUZAN FRASER: All right, thank you. 24 You acknowledged yesterday that you were sorry for those 25 who may have been wrongfully convicted and you recognized
1151 those people -- that some people may have been wrongfully 2 convicted and you also recognized that people lost their 3 children either temporarily or permanently. 4 You recall that? 5 DR. JAMES YOUNG: Yes. And that people 6 were charge -- some people were charged and ultimately 7 let go. 8 MS. SUZAN FRASER: Yes. 9 DR. JAMES YOUNG: I had the three (3) 10 categories of people. 11 MS. SUZAN FRASER: Okay. And I'm just -- 12 I wanted to bring to your attention that the flipside of 13 that and those that weren't mentioned -- but I'm sure it 14 was through inadvertent -- were the children who lost 15 their parents. 16 DR. JAMES YOUNG: I -- I have never lost 17 sight of the fact that -- that a child died in each and 18 every one of these cases and that it's certainly on my 19 mind, at all times. 20 MS. SUZAN FRASER: All right. And that 21 surviving children, some of those children lost -- lost 22 their parents? All right? 23 And they were -- you're familiar that at 24 least Joshua's brother was placed in foster care and 25 ultimately adopted into that family? Do you --
1161 DR. JAMES YOUNG: That's -- that's the 2 reference I'm making to -- that's what I'm referring to 3 when I say children were either placed for a period of 4 time or permanently. 5 MS. SUZAN FRASER: All right. 6 DR. JAMES YOUNG: I'm -- I'm aware of 7 that; that's what my reference was in -- in -- 8 MS. SUZAN FRASER: All right. 9 DR. JAMES YOUNG: -- to that, even though 10 I'm not aware of the case. 11 MS. SUZAN FRASER: All right. And until 12 those charges and the issue of whether the person is 13 wrongfully convicted, those children would be sent to be 14 raised by people who thought of their parents as abusers 15 and killers? 16 DR. JAMES YOUNG: I understand that. 17 MS. SUZAN FRASER: All right. And I 18 think that, based on what you've told me, you understand 19 that those children are the most vulnerable and that to 20 the extent it's possible their voices need to be heard? 21 Some of these children were too young to have their 22 voices heard in the process. 23 DR. JAMES YOUNG: Yes. 24 MS. SUZAN FRASER: All right. So can we 25 start from the object -- the object of a death
1171 investigation is to get a right answer about how a person 2 comes to their end, that's sort of the ideal here. 3 Is that fair? 4 DR. JAMES YOUNG: Yes. 5 MS. SUZAN FRASER: All right. And that 6 has a number of effects that we -- we learn from those 7 deaths are preventable deaths, that's one (1) affect? 8 DR. JAMES YOUNG: Yes. 9 MS. SUZAN FRASER: And that if somebody 10 is culpable in the death that they will be apprehended 11 and dealt with by the criminal justice system? 12 DR. JAMES YOUNG: Yes. 13 MS. SUZAN FRASER: All right. And so to 14 the extent that forensic science and forensic pathology 15 can assist in that accountability in the criminal justice 16 system, it's important that the science be the best that 17 it can be? 18 DR. JAMES YOUNG: It can assist both ways 19 in deciding that something is or isn't culpable. 20 MS. SUZAN FRASER: All right. And you 21 are aware that pathologists also act as actors in the 22 child protection proceedings? 23 DR. JAMES YOUNG: Yes. 24 MS. SUZAN FRASER: All right. 25 DR. JAMES YOUNG: All -- all physicians
1181 do. 2 MS. SUZAN FRASER: All right. And that 3 comes in part of the role as being State actors as part 4 of an investigation? 5 DR. JAMES YOUNG: Yes. And -- and -- 6 MS. SUZAN FRASER: And duties arising 7 under the Child and Family Services Act? 8 DR. JAMES YOUNG: Which requires 9 everyone, but particularly people like doctors and -- and 10 -- to be part of that -- that system and to report and 11 cooperate with the system. 12 MS. SUZAN FRASER: All right. And you 13 have specifically, in the time that you were Chief 14 Coroner, reminded coroners of their obligation to report 15 under the Child and Family Services Act? 16 DR. JAMES YOUNG: Yes. 17 MS. SUZAN FRASER: All right. And my 18 question for you then is that to the extent that that is 19 something that your office must do by law, and does do by 20 history and convention and by direction of your office, 21 is there any program that the Office of the Chief Coroner 22 had to monitor where and when pathologists or doctors 23 operating under the coroner's system, give that kind of 24 evidence? 25 DR. JAMES YOUNG: No. We weren't aware
1191 of -- we had no program for when anyone was going to 2 court because they go to court right across the Province 3 and most of them aren't our employees. So we -- no, we 4 were unaware of anyone going to court for any 5 circumstance. 6 MS. SUZAN FRASER: All right. So if you 7 were asked to identify where and when Dr. Smith gave 8 evidence in a child protection proceeding, you would not 9 be able to do that? 10 DR. JAMES YOUNG: No. Or any other 11 pathologist or any other coroner in the Province. 12 MS. SUZAN FRASER: And in -- in the event 13 that a pathologist who was involved in a death 14 investigation is asked to give evidence in a child 15 protection proceeding, do they bill the Attorney Gen -- 16 who do they bill for their services? 17 DR. JAMES YOUNG: I would assume either 18 the Attorney General or the -- or the Children's Aid 19 Society. I don't know, I've not had any personal 20 experience with it but I -- it wouldn't be our office in 21 any event. 22 MS. SUZAN FRASER: All right. And I 23 suppose it is possible that Dr. Smith or other 24 pathologists gave evidence that resulted in someone being 25 made a Crown ward or taken away from their parents where
1201 there were no criminal charges. 2 Is that -- is that possible? 3 DR. JAMES YOUNG: It's certainly 4 possible. 5 MS. SUZAN FRASER: And do you think it's 6 probable? 7 DR. JAMES YOUNG: I suppose in -- in and 8 about surrounding the -- there may be a death of a child 9 and then there were other siblings, yes, it would seem to 10 me that it may well have happened. 11 MS. SUZAN FRASER: All right. You have 12 essentially said that good pathology depends on a good 13 death investigation team. 14 Is that fair? 15 DR. JAMES YOUNG: Sorry? That good -- 16 MS. SUZAN FRASER: I'm paraphrasing you: 17 but if you're going to get good pathology you need a good 18 investigating team? The coroner side needs to be -- 19 DR. JAMES YOUNG: I don't think I put it 20 that way. I think -- I think a good investigation 21 requires a good team -- 22 MS. SUZAN FRASER: Yes. 23 DR. JAMES YOUNG: -- that includes good 24 pathology. 25 MS. SUZAN FRASER: Right. And good
1211 pathology also depends on the way that the investigation 2 is conducted? 3 DR. JAMES YOUNG: Well, that's the team. 4 I mean, that's -- 5 MS. SUZAN FRASER: Okay. 6 DR. JAMES YOUNG: -- the information; 7 that's a good police investigation; it's good lab; it's 8 good other experts, radiology or neuropathology or 9 whatever; whatever is necessary for that case. It means 10 pulling it all together. 11 MS. SUZAN FRASER: Okay. And we have 12 been -- the overview reports have primarily focussed on 13 children who were in the care of their parents or an 14 alternative caregiver, but you are aware that children do 15 also die in institutions in this Province. 16 DR. JAMES YOUNG: Yes. 17 MS. SUZAN FRASER: Those would include 18 young offender institutions, they might include group 19 homes or children's mental health facilities? 20 DR. JAMES YOUNG: Yes, and we would 21 investigate those. Yes. 22 MS. SUZAN FRASER: All right. And those 23 deaths are somewhat unique because they occur in a closed 24 setting; something that's not generally open to the 25 public to see what happens behind the doors?
1221 DR. JAMES YOUNG: Yes. 2 MS. SUZAN FRASER: And so those children 3 are particularly vulnerable and the Act speaks to that by 4 making those types of deaths reportable and in some cases 5 making inquests mandatory? 6 DR. JAMES YOUNG: Yes. 7 MS. SUZAN FRASER: All right. Now those 8 -- those deaths raise particular challenges in terms of 9 an investigation because there may be licensing 10 standards, there may be all types of communication books, 11 that I think, based on your experience you can tell us 12 that when you're investigating a death in custody the 13 investigation becomes more complex. 14 Is that fair? 15 DR. JAMES YOUNG: Well, they add elements 16 -- they add different elements to the investigation, 17 which we're aware and would -- would cover. The actual 18 investigation may turn out to me or less complex then any 19 other one. 20 They're -- they're -- every investigation 21 is different. That's the thing with -- with all of this 22 work, is it's very complex and very different in each 23 case. 24 But that adds whole elements that have to 25 be looked at very carefully, just as a death in custody
1231 or death in any institutional setting raises some unique 2 features to that institution. 3 MS. SUZAN FRASER: All right. And just - 4 - I did not see it in the coroner's investigating manual, 5 any specific protocols as to what for look -- what to 6 look for when investigating a death in custody or someone 7 who -- a child who's died in a group home. 8 DR. JAMES YOUNG: Well what -- what would 9 happen in that particular instance, the coroner wouldn't 10 -- at the time is going to -- what -- what the manual 11 deals with is the investigation at the initial time, when 12 -- you know, any unique features that they have to do. 13 But what they would do is order the 14 autopsy. But once -- in all of those instances there -- 15 a coroner's investigator would be assigned, and the first 16 thing that they -- and there would be a police officer 17 assigned to the coroner. 18 And they -- out of training and -- and 19 route would know, then, they go and get policy manuals 20 and -- and investigate all of those features, because 21 that's -- that's the way it's done, and they know that. 22 And that would be what we would be looking 23 for. And that would certainly be what the regional 24 coroner would be looking for. 25 MS. SUZAN FRASER: So what you're telling
1241 me is that those deaths are treated as somewhat either 2 contentious or suspicious, such that it was necessary to 3 engage a police officer to assist in the investigation. 4 Is that fair? 5 DR. JAMES YOUNG: Well a death within an 6 institution would -- would -- I mean, if there was any -- 7 any cause of concern on the -- on the part of the coroner 8 that it was going to require -- any death, period, if it 9 requires more investigation, the Coroners Act allows that 10 a police officer is assigned and does that -- that 11 background work on behalf of the coroner. 12 That's -- that's a feature of the Act. 13 But more often than not, in an institutional death the 14 police would be called in and would be assisting the 15 coroner. That would -- that would happen on a 16 percentage-wide basis more often than it would in -- in 17 other types of deaths. 18 MS. SUZAN FRASER: All right. All right. 19 20 (BRIEF PAUSE) 21 22 MS. SUZAN FRASER: Dr. Young, are you 23 aware that over the years, either through recommendation 24 of juries -- at least one (1) jury -- and also through 25 other organizations, that there has been a call for there
1251 to be a comprehensive death review process when children 2 die? 3 DR. JAMES YOUNG: Well there is a 4 comprehensive death review process when children die if 5 they -- if the circumstances are other then a natural 6 death. In a hospital if someone expected to die, the 7 coroner's office is involved. 8 And then we have the paediatric review and 9 the -- the Death Under Two Committee, and those 10 mechanisms exist. And then the possibility of an 11 inquest. 12 MS. SUZAN FRASER: All right. Are you 13 aware in that there are criticisms of the Paediatric 14 Death Review Committee? And I think that Dr. Cairns 15 himself said he would have liked to have been able to 16 republish the report? 17 He did in 2007, a lot earlier, but he did 18 not have the funding to do that. 19 DR. JAMES YOUNG: Yeah, I mean things in 20 government always come down to how much funding is there. 21 We fortunately have the money to run the Committee. 22 MS. SUZAN FRASER: Yes. 23 DR. JAMES YOUNG: But turning out reports 24 costs a good deal of money as well, because it's not just 25 the -- the publishing's the small part of it. It's the
1261 preparation of it, the writing of it, the vetting of it 2 that takes time. 3 And -- and that -- that takes manpower and 4 money. And I'm -- I'm not familiar with exactly where 5 things are at now, because I haven't been in the office 6 for the last few years, so. 7 But -- but along the development, that's 8 always been the issue, is -- is we can take it this far, 9 but we haven't got the money to publish a yearly report. 10 MS. SUZAN FRASER: All right. So I just 11 want to talk to you about the things that would be 12 beneficial in terms of a death review process and whether 13 you can -- you would agree with me on these or not. 14 DR. JAMES YOUNG: Okay. 15 MS. SUZAN FRASER: One (1) -- 16 DR. JAMES YOUNG: I'm -- I'm certainly 17 not the expert in this. I mean, Dr. Cairns is -- 18 MS. SUZAN FRASER: All right. 19 DR. JAMES YOUNG: -- better qualified 20 than I am, but -- 21 MS. SUZAN FRASER: Right. But I -- I 22 want to ask you the questions anyway. 23 DR. JAMES YOUNG: Okay. 24 MS. SUZAN FRASER: And you can tell me 25 whether you agree or disagree. Over the years it has
1271 been recommended that there be power for the Committee to 2 publish those recommendations and publish them widely? 3 DR. JAMES YOUNG: Yeah. Subject to -- 4 again, what would come to mind -- and I don't have the 5 answer for you, sort of a -- in an instant -- we have to 6 be very careful about the privacy concerns. 7 In this -- in this province our Act is set 8 up in such a way that privacy is prec -- takes precedent. 9 MS. SUZAN FRASER: Okay. Let's put those 10 aside. Let's put -- 11 DR. JAMES YOUNG: Well, it's an important 12 consideration -- 13 MS. SUZAN FRASER: If we can stay -- we 14 can deal with those. 15 DR. JAMES YOUNG: -- though. It's -- 16 it's a very important consideration. In other provinces 17 in the country the legislation is the reverse, and -- and 18 the -- the public side of death investigation is the 19 norm. In this province it's not. The privacy is -- is 20 the paramount -- 21 MS. SUZAN FRASER: Okay, let's -- 22 DR. JAMES YOUNG: -- feature, so that -- 23 MS. SUZAN FRASER: Let me just put it -- 24 DR. JAMES YOUNG: -- that can create a 25 problem.
1281 MS. SUZAN FRASER: -- another way. As 2 Chief Coroner, when a jury makes recommendations, you as 3 Chief Coroner -- when you were Chief Coroner, it was part 4 of your job to circulate those recommendations widely and 5 to the people to whom they were directed. 6 Is that fair? 7 DR. JAMES YOUNG: Anyone who asked for 8 them got them, and they were sent very, very widely. 9 MS. SUZAN FRASER: All right, but you 10 also took it upon yourself as part of your job to -- job 11 to send those recommendations -- 12 DR. JAMES YOUNG: Yes. 13 MS. SUZAN FRASER: -- to those who needed 14 to -- to hear about them? 15 DR. JAMES YOUNG: But they're very 16 different from a report. 17 MS. SUZAN FRASER: Okay, but let's just - 18 - I just want to stop with -- 19 DR. JAMES YOUNG: Okay. 20 MS. SUZAN FRASER: -- the rec -- there's 21 a value in circulating those recommendations? 22 DR. JAMES YOUNG: Absolutely. 23 MS. SUZAN FRASER: All right. Rather 24 than making recommendations to a particular institution, 25 to make the recommendations widely --
1291 DR. JAMES YOUNG: Mm-hm. 2 MS. SUZAN FRASER: -- so that other 3 institutions can learn from one (1) institution's 4 mistakes. You'll agree with me that that -- 5 DR. JAMES YOUNG: Absolutely. 6 MS. SUZAN FRASER: -- that's beneficial? 7 DR. JAMES YOUNG: Absolutely. 8 MS. SUZAN FRASER: Okay. And it would be 9 important that those recommendations be made in a timely 10 fashion? 11 DR. JAMES YOUNG: As timely as can be. 12 It -- these things are complex and they take time, but 13 yes. 14 MS. SUZAN FRASER: All right. So using 15 co-sleeping as an example, if the Coroner's Office has a 16 concern about co-sleeping, let's make it known widely and 17 as soon as we can, because this is an issue for -- that 18 people face every day. 19 DR. JAMES YOUNG: Yes. 20 MS. SUZAN FRASER: All right. And would 21 you also agree that to the extent that information is 22 gathered on a child's death, that that information be 23 coded and stored as part of a database so that we can 24 start to accumulate evidence as to how children come to 25 their end?
1301 DR. JAMES YOUNG: Yeah, the principle I 2 agree with. The -- the problem can be in the detail. I 3 mean, when you start now talking about databases, the 4 question I ask back is, What are you coding? How 5 extensively? Who's doing it? How do you set up the 6 databank? Who pays for it? 7 You know it -- it's -- the intent is abs - 8 - I -- I agree with, but you know, I'm the guy who would 9 always have to find the money, too, and -- 10 MS. SUZAN FRASER: Right. 11 DR. JAMES YOUNG: -- you know, to do a 12 really good databank, that really means you sub-code and 13 you do a whole lot of work. And you have to develop a 14 computer program for that, and someone has to care and 15 feed it. 16 Would it be, ultimately, a source of 17 valuable information? Absolutely, but it -- 18 MS. SUZAN FRASER: All right. 19 DR. JAMES YOUNG: -- it's not as simple 20 as just saying, Well, let's -- let's gather this and 21 let's publish it. It's -- it's a whole lot more 22 complicated. 23 MS. SUZAN FRASER: Okay, but there would 24 be -- the devil always being in the details, the -- the 25 value of having that information so that we can have
1311 evidence-based medicine is something that you can 2 appreciate. 3 Is that fair? 4 DR. JAMES YOUNG: Absolutely. I'm not 5 questioning the -- the motive, just the -- how you get 6 there. 7 MS. SUZAN FRASER: All right. Now, I 8 meant to ask you when I asked you the questions about the 9 evidence that forensic pathologists give in child 10 protection proceedings whether if the Commissioner sees 11 fit to make recommendations about pediatric forensic 12 pathology as it applies to the Criminal Justice System, 13 in terms of the way that evidence is presented, the 14 tracking of that evidence. 15 Can you see those types of recommendations 16 also having relevance to child protection proceedings? 17 DR. JAMES YOUNG: Because of the 18 importance of these proceedings, I mean they -- 19 essentially our -- they're -- they're not a from of 20 criminal trial, but they certainly take on that 21 significance within family dynamics. So yes, I -- I 22 understand your point and agree. 23 MS. SUZAN FRASER: All right. 24 25 (BRIEF PAUSE)
1321 MS. SUZAN FRASER: Just two (2) small 2 other areas or two (2) short other areas, Dr. Young. 3 Sometimes, just picking up a point, criminal proceedings, 4 if there was an issue about whether you were going to 5 have an inquest and you wanted to have an inquest, but 6 there was also a criminal justice process in play -- 7 DR. JAMES YOUNG: Mm-hm. 8 MS. SUZAN FRASER: -- the Coroner's 9 Office would wait for the criminal process to come to an 10 end. Is that right? 11 DR. JAMES YOUNG: We must -- the only 12 time we can do other than that is with a waiver from the 13 Minister. It's -- statutorily we can't proceed when 14 there's a criminal proceeding -- 15 MS. SUZAN FRASER: Right, and you don't 16 want -- 17 DR. JAMES YOUNG: -- without a waiver for 18 the Minister. 19 MS. SUZAN FRASER: Okay, and that -- 20 DR. JAMES YOUNG: And there's good reason 21 for that. 22 MS. SUZAN FRASER: You don't want to 23 interfere with somebody's right to a fair trial. 24 DR. JAMES YOUNG: Exactly. And -- and 25 you're -- you're holding a broad hearing in an issue that
1331 is going to be litigated and -- and affect the freedom of 2 someone, so you -- it takes precedence first. 3 MS. SUZAN FRASER: And it's fair to say, 4 then, in those cases the Coroner's Office would monitor 5 the outcome of the criminal proceedings because the 6 coroner's office might, at the end of the day, decide 7 whether they were going to have an inquest based on what 8 happens at the criminal proceeding? 9 DR. JAMES YOUNG: If we were planning on 10 -- I mean, if we had made a commitment or a decision that 11 we were going to have a -- an inquest, in that case, we 12 would monitor tho -- that subset of -- of cases. That 13 would be the only subset that we would. 14 I mean, we -- most of these cases if 15 they're going to be a criminal hearing, you know, aren't 16 necessarily going to be an inquest, but -- but in the 17 ones that -- where we had decided, yes, that's -- that's 18 a case we may do that then someone would -- would follow 19 that. 20 MS. SUZAN FRASER: All right. So I'm 21 just thinking about Amber's case, and if you have a judge 22 who doesn't understand the evidence or if there's an 23 issue about people not understanding Shaken Baby 24 Syndrome, as there was a concern at the time, that might 25 be the kind of case that you might want to have an
1341 inquest about? 2 DR. JAMES YOUNG: I don't think -- I 3 don't recall any discussion about having an inquest in 4 that case. There was no -- at the time we -- we 5 concentrated on that case and it was not a -- it -- it 6 was not something that we contemplated having -- it would 7 very hard to hold an inquest into -- 8 MS. SUZAN FRASER: I'm -- I don't want 9 talk specifically about that case. My question was posed 10 as a hypothetical just in -- in that kind of situation 11 where there's an -- 12 DR. JAMES YOUNG: But -- but even the 13 issue of -- of -- I mean, you might -- you might look at 14 the issue of -- in general of -- of shaken baby in the 15 sense that you want warn people -- 16 MS. SUZAN FRASER: Yes. 17 DR. JAMES YOUNG: -- not to shake babies, 18 but the issue -- you know, you've got to be very careful 19 you stay out of court rulings and -- and what was decided 20 in a trial, so when you pick a case and -- and it's been 21 to trial you can get into an awful mess in the courtroom 22 about who said what and -- and whether the judgment was 23 fair, whether it wasn't. 24 It -- it becomes an -- an enormous 25 management issue in the inc -- because I've experienced
1351 this in other cases for other reasons. And it's -- 2 MS. SUZAN FRASER: But -- but it can be 3 done. And certainly in Kassandra's case, there was a 4 criminal trial and then there was an inquest. 5 DR. JAMES YOUNG: There are -- there are 6 times. It 's-- it's -- yes, it's difficult to do, but 7 you can do it in some cases. 8 MS. SUZAN FRASER: All right. And, Mr. 9 Court, I'm just winding up on a final point, if I may -- 10 or Mr. Commissioner, sorry. 11 COMMISSIONER STEPHEN GOUDGE: I 12 understand the mistake. 13 DR. JAMES YOUNG: I just wish I was 14 running this by myself. 15 16 CONTINUED BY MS. SUZAN FRASER: 17 MS. SUZAN FRASER: Sometimes I feel like 18 you are, Dr. Young. 19 DR. JAMES YOUNG: It comes with 20 experience, you know. I have run a few in my life. 21 MS. SUZAN FRASER: All right. So let's 22 just talk briefly about that. During the time that you 23 were Chief Coroner you were apor -- appointed by Order in 24 Council or by Cabinet. That's a -- the way that the 25 appointment is made, is that fair?
1361 DR. JAMES YOUNG: Yes. 2 MS. SUZAN FRASER: And your coroners who 3 reported to you, those are also appointments that were 4 made by Cabinet? 5 DR. JAMES YOUNG: Yes. 6 MS. SUZAN FRASER: And are the -- the 7 Office of the Chief Coroner, during that period of time, 8 did you have specific term; did you have security of 9 tenure? 10 DR. JAMES YOUNG: No, I -- I was 11 appointed at the pleasure of the government, so I had a - 12 - a no -- no-fixed term. 13 MS. SUZAN FRASER: All right. And 14 similarly, the coroners who were appointed -- 15 DR. JAMES YOUNG: Till age seventy (70). 16 MS. SUZAN FRASER: All right. Coroners 17 are appointed till age seventy (70)? 18 DR. JAMES YOUNG: Or as long as they may 19 -- remain resident in the area where they're appointed. 20 MS. SUZAN FRASER: All right. So they 21 have security of tenure? 22 DR. JAMES YOUNG: Well, not total 23 security. They're at the pleasure of the Crown, but they 24 have -- the appointment is until age seventy (70) and -- 25 and it -- or un -- or they move. But the pleasure of the
1371 -- of the government is a very broad term that one 2 wouldn't describe as full tenure. 3 MS. SUZAN FRASER: All right. All right. 4 5 DR. JAMES YOUNG: Deputy ministers serve 6 at the pleasure of the government too. And the -- 7 sometimes the pleasure changes and you don't need reasons 8 of -- that would fall under the occ -- under labour law 9 in order to -- to remove someone. 10 So there -- it's a different -- it's a 11 very different appointment then -- 12 MS. SUZAN FRASER: Yes. 13 DR. JAMES YOUNG: -- what you would 14 describe as tenure at a university or something like 15 that. 16 MS. SUZAN FRASER: All right. But you're 17 familiar that the legislature had independent officers, 18 the Ombudsman, the privacy commissioner and -- 19 DR. JAMES YOUNG: Who are fixed term. 20 MS. SUZAN FRASER: All right. And they 21 are appointed, essentially, by all party committees and 22 they basically have tenure for that fixed term -- 23 DR. JAMES YOUNG: Mm-hm. 24 MS. SUZAN FRASER: -- that they're 25 appointed for?
1381 DR. JAMES YOUNG: Yeah. 2 MS. SUZAN FRASER: And they do not report 3 to a minister? 4 DR. JAMES YOUNG: Well, they report to 5 the legislature. 6 MS. SUZAN FRASER: Right. 7 DR. JAMES YOUNG: Yeah. 8 MS. SUZAN FRASER: And they're -- most 9 recently, there's a third independent office, that I can 10 think of, appointed, which is the new Provincial Advocate 11 for Children and Youth. That is now a independent 12 office? 13 DR. JAMES YOUNG: Mm-hm. 14 MS. SUZAN FRASER: All right. And you're 15 familiar with that. And -- and the Commissioner had some 16 questions to you -- for you earlier about the value of 17 being -- I took it, as being the values being separate 18 from the Minister or being an agency, and you talked 19 about some of the problems with agency funding, and you 20 talked about there being advantages to having both of 21 those roles. But can you see some value to the Coroner's 22 Office being an independent office? 23 DR. JAMES YOUNG: There has been no 24 problem with it being an independent office. So, in my 25 mind, you're fixing a problem that doesn't exist; it's --
1391 it has not had a problem. In the twenty-five (25) years 2 I was in the Office, it had no problem with -- 3 MS. SUZAN FRASER: And -- 4 DR. JAMES YOUNG: -- independence. It -- 5 we operated it without interference from the Minister. 6 You can put it wherever but the -- the critical thing for 7 me is you've got to pay attention to who -- who are you 8 relating to; are you still in the area of government 9 where your -- the people that you need to relate to are - 10 - like the Centre of Forensic Science, in particular; 11 have you got access to funding. 12 Those are -- what makes a good office is 13 good leadership, a good Act and good funding, and that's 14 what you really need. 15 Where it's placed is less important but 16 it, frankly, hasn't been a problem to be where it is. 17 MS. SUZAN FRASER: And would you 18 acknowledge, Dr. Young, that some -- some individuals -- 19 members of -- members of the family of a deceased person 20 who died in custody might have a concern about the 21 appearance of the Office of the Chief Coroner being part 22 of the same Ministry that is also in charge of the 23 institution? The appearance of -- 24 DR. JAMES YOUNG: In a Corrections -- 25 MS. SUZAN FRASER: -- that --
1401 DR. JAMES YOUNG: Well, Corrections was 2 in and out of the Ministry with some regularity. It was 3 in about half the time and out about half the time -- 4 MS. SUZAN FRASER: Yeah. 5 DR. JAMES YOUNG: -- because it's one (1) 6 of those ministries government moves around. 7 I suppose, but you have to weigh that 8 against the risk of moving it outside and moving outside 9 of the sphere with the Centre of Forensic Science. 10 If -- I would certainly suggest if you 11 move one (1), you move them both because, you now, to 12 separate -- as soon as you start separating people out, 13 you fix one (1) problem, and you create another one. 14 Every action you always take in a government, you have to 15 always look at the inadvertent reaction and the problem 16 that it creates. 17 MS. SUZAN FRASER: All right. My -- 18 DR. JAMES YOUNG: And Walkerton was a 19 great example. 20 MS. SUZAN FRASER: My -- my question, Dr. 21 Young, had been about the appearance -- if I recall my 22 question -- had been about the appearance that some 23 people might have. 24 DR. JAMES YOUNG: But if you solve the 25 appearance --
1411 MS. SUZAN FRASER: Yes? 2 DR. JAMES YOUNG: -- you may create 3 another problem that we'd be sitting, ten (10) years down 4 the line in this room, solving and that is that -- that 5 you've isolated the Office and you've set it in an 6 environment where it's no longer working as closely with 7 the people it needs to work with. 8 So you -- there are pluses and minuses to 9 all these. And that's all I'm saying is that I understand 10 your point, and I -- I accept that point but there's a 11 downside to it as well, or there's a risk to it as well. 12 MS. SUZAN FRASER: Thank you. Thank you, 13 Dr. Young. Thank you, Commissioner, those are my 14 questions. 15 COMMISSIONER STEPHEN GOUDGE: Thank you, 16 Dr. (sic) Fraser. 17 Mr. Manuel...? 18 MR. WILLIAM MANUEL: We're all going to 19 be doctors or coroners or -- 20 DR. JAMES YOUNG: I'm renouncing mine. 21 MR. WILLIAM MANUEL: Thank you, sir. 22 23 CROSS-EXAMINATION BY MR. WILLIAM MANUEL: 24 MR. WILLIAM MANUEL: Dr. Young, my name 25 is Bill Manuel and I have some questions for you in
1421 respect of the dealings between you and your office and 2 the Crown attorneys who I represent. 3 DR. JAMES YOUNG: Yes. 4 MR. WILLIAM MANUEL: And the first is -- 5 the first point I want to make is sort of a general one. 6 I'm going to touch on areas that have been touched on, 7 but my objective is not to elicit the same evidence that 8 you've already given and if I'm doing that in your mind, 9 then tell me and I'll try to refocus my question. 10 So the first one (1) I'd like to take you 11 to again is the Amber case. Volume I, Tab 1 of the 12 overview report, which is the white binders as I 13 understand it. 14 And if I could ask you to -- 15 DR. JAMES YOUNG: Okay. 16 MR. WILLIAM MANUEL: Sorry. If I could 17 ask you to pick -- to go to page 18. 18 DR. JAMES YOUNG: Tab...? Sorry, tab...? 19 MR. WILLIAM MANUEL: Tab 1. 20 DR. JAMES YOUNG: Okay. 21 MR. WILLIAM MANUEL: Volume I, Tab 1, the 22 Amber report. 23 DR. JAMES YOUNG: Yes, okay. Page 18. 24 Yes. 25 MR. WILLIAM MANUEL: And I just want to
1431 examine your involvement and your Office's involvement in 2 the pre-charge process -- 3 DR. JAMES YOUNG: Yes. 4 MR. WILLIAM MANUEL: -- in this case and 5 then try to see whether that raises any systemic issues-- 6 DR. JAMES YOUNG: Okay. 7 MR. WILLIAM MANUEL: -- for the 8 Commissioner. 9 And the first paragraph I want you to look 10 at is paragraph 53. You had been addressed to this or 11 directed -- 12 DR. JAMES YOUNG: Mm-hm. 13 MR. WILLIAM MANUEL: -- to this by 14 Commission Counsel. And I just -- by way of background 15 to where I'm going, I'm going to your discussions with 16 the Crown attorney. But I want to highlight that on 17 August 12, 1988, you meet, you and Dr. Huxter meet with 18 the police officers in Toronto, and this is prior to the 19 exhumation, correct? Am I in the -- 20 DR. JAMES YOUNG: Yes. 21 MR. WILLIAM MANUEL: -- right...? 22 DR. JAMES YOUNG: Yes. 23 MR. WILLIAM MANUEL: And at that time, in 24 the middle paragraph, it's indicated in the police 25 officer's notes:
1441 "Dr. Young indicated he suspected the 2 Shaking Syndrome as there was evidence 3 of retinal hemorrhages, no external 4 bruising, and acute cerebral edema, 5 swelling of the brain. These were all 6 consistent with the Shaking Syndrome, 7 and not consistent with a fall." 8 DR. JAMES YOUNG: I think I gave 9 evidence, that's probably Dr. Driver that said that. 10 MR. WILLIAM MANUEL: Well but Dr. 11 Driver's not there, is he (sic)? 12 DR. JAMES YOUNG: Yes, she is. 13 MR. WILLIAM MANUEL: Where is that 14 indicated? 15 DR. JAMES YOUNG: It says, "to interview 16 Doctors Young and Driver." 17 MR. WILLIAM MANUEL: Yes, but when he 18 says -- when he says in this paragraph, he says, "Dr. 19 Young indicated." 20 DR. JAMES YOUNG: Yeah. I -- that 21 information as I indicated at the time would come 22 completely from Dr. Driver, from my conversations with 23 her. 24 MR. WILLIAM MANUEL: But the notes 25 indicate that "we were..." --
1451 "We were escorted to the coroner's 2 building where we met with Dr. Young at 3 ...Dr. Bob Huxter also said in during 4 our discussion of the case." 5 DR. JAMES YOUNG: I -- I understand what 6 you're saying. What I -- my point is that I would only 7 know that information -- I would be conveying that 8 information on that basis of Dr. Driver -- you know, what 9 -- what the note doesn't say is, Dr. Driver told Dr. 10 Young that there is a suspicion of Shaken Baby as -- 11 witnessed by retinal hemorrhage, et cetera, et cetera, 12 because -- 13 MR. WILLIAM MANUEL: So what's -- what's 14 -- 15 DR. JAMES YOUNG: -- I would have no 16 knowledge of any of that without Dr. Driver saying to me, 17 These are what we saw. 18 And all I'm doing is simply passing a 19 message. I'm not even passing a message on the -- 20 someone else saw these things and I -- I -- 21 MR. WILLIAM MANUEL: So you take no 22 responsibility for passing that opinion on to the police 23 officer as your opinion, correct? You didn't do that? 24 And you wouldn't do that? 25 DR. JAMES YOUNG: This is 1988, in a --
1461 in a meeting. That would not be my normal way of 2 operating -- 3 MR. WILLIAM MANUEL: Okay. So lets park 4 that one and -- 5 DR. JAMES YOUNG: What I would say is, 6 this is -- you know, this is the information that we have 7 from Sick Kids. This would normally -- 8 MR. WILLIAM MANUEL: So can we park that? 9 DR. JAMES YOUNG: -- this may be -- 10 MR. WILLIAM MANUEL: We've heard that. 11 DR. JAMES YOUNG: -- may be -- 12 MR. WILLIAM MANUEL: We've heard that. 13 COMMISSIONER STEPHEN GOUDGE: Just let 14 him finish for a moment. 15 DR. JAMES YOUNG: Yeah, I mean, I didn't 16 write this and this is his view of what he heard. But I 17 couldn't remember back to what I said in 1988, but I only 18 have this information and I could only pass it on because 19 someone gave it to me. None of it is mine. I didn't 20 produce any of it, I don't know any of it. I'm simply 21 making them aware of this information. 22 23 CONTINUED BY MR. WILLIAM MANUEL: 24 MR. WILLIAM MANUEL: And do you think 25 police officers would appreciate that distinction when
1471 you're talking to them? 2 DR. JAMES YOUNG: Yes. 3 MR. WILLIAM MANUEL: They would? 4 DR. JAMES YOUNG: Of course they would. 5 MR. WILLIAM MANUEL: Lets carry on then. 6 You then, after the exhumation, Dr. Smith produces his 7 autopsy report in November and you send that on to the 8 Crown counsel, David Thomas. 9 Is that correct? 10 DR. JAMES YOUNG: Yes, which -- which is 11 the -- what we're required to do by law. 12 MR. WILLIAM MANUEL: Right. And if I can 13 ask you to pull up PFP152516. 14 DR. JAMES YOUNG: Which is where? 15 MR. WILLIAM MANUEL: Which is -- yes, 16 thank you. Volume VIII of the black binders, as I 17 understand it, Tab 61. 18 COMMISSIONER STEPHEN GOUDGE: It's 19 actually white. 20 MR. WILLIAM MANUEL: Is it white? 21 COMMISSIONER STEPHEN GOUDGE: Yes, once 22 we get past III. That's it. 23 DR. JAMES YOUNG: Okay. And what -- 24 which Tab, Mr. Manuel? 25
1481 CONTINUED BY MR. WILLIAM MANUEL: 2 MR. WILLIAM MANUEL: 61. 3 DR. JAMES YOUNG: Okay. 4 MR. WILLIAM MANUEL: Have you had -- I -- 5 I had given notice that I might question you on this 6 letter, have you had a chance -- have you had a chance to 7 review it? 8 DR. JAMES YOUNG: Yes. 9 MR. WILLIAM MANUEL: Good. So December 10 5, 1988, Crown attorney David Thomas writes to Sergeant 11 Harwood of the Timmins police, and he indicates he's 12 forwarding a copy of the post-mortem report: 13 "...which I have received on my desk 14 this morning from Dr. Young, Deputy 15 Chief Coroner for Ontario. And your -- 16 if your lack of appreciation for 17 medical terms is anything like my own, 18 a quick reading of the report will 19 likely not illuminate the circumstances 20 of Amber -- [I'm sorry] Amber's death." 21 Quote -- I quote now, reading from the 22 letter, continuing: 23 "In speaking with Dr. Young however, he 24 indicated to me that these results are 25 consistent with the Infant Shaking
1491 Syndrome, and not consistent with 2 toppling four (4) or five (5) carpeted 3 stairs." 4 Now does that not indicate to you that 5 you're passing on your opinion to Mr. Thomas? 6 DR. JAMES YOUNG: No, I'm passing on a -- 7 what it indicates to me is I'm having the conversation 8 with Mr. Thomas, I'm telling him that the autopsy has 9 been completed and this is the thinking on the case right 10 now; that thinking and that opinion is formed by Dr. 11 Smith. 12 I -- I'm not saying it's wrong. It's -- 13 it's not inconsistent with I -- with -- with what I'm 14 aware of, but I -- but it's not my -- the opinion and 15 none of the evidence of what's being seen and what's 16 being done is being done by me. I'm -- 17 MR. WILLIAM MANUEL: So -- so your -- 18 DR. JAMES YOUNG: -- I'm simply passing 19 on information that -- 20 MR. WILLIAM MANUEL: So you're passing on 21 information but you accept no responsibility for... 22 DR. JAMES YOUNG: No, I -- that's not 23 what I said. That's not what I said at all and that's 24 not what -- what I would have said to Mr. Thomas. I -- 25 he would have been aware that the autopsy was completed.
1501 Dr. Smith did the autopsy, this is what the thinking is. 2 And the discussion in fact that is taking 3 place, is about having a further meeting to -- with Dr. 4 Smith to discuss it. I'm not -- I'm not saying I -- I 5 disagree with the information, but the information -- 6 what I'm saying is, I'm not the one producing the 7 information. 8 MR. WILLIAM MANUEL: Okay. So then -- 9 DR. JAMES YOUNG: -- I'm not pretending 10 to produce it. 11 MR. WILLIAM MANUEL: Let's carry on. You 12 indicate to him that you're available to come to Timmins 13 for a meeting, and in fact, you do come to Timmins for a 14 meeting. 15 DR. JAMES YOUNG: Yes. 16 MR. WILLIAM MANUEL: You meet separately 17 with the Crown attorney, and then with the police, and 18 then with the family, correct. 19 DR. JAMES YOUNG: Yes. Well, I can't 20 remember whether it's separately with the Crown, the 21 police -- I remember meeting with the family, and I 22 remember meeting with the police and the Crown, and I 23 couldn't tell you whether the two (2) of them were 24 together or separate. 25 MR. WILLIAM MANUEL: Okay. And on
1511 December the 13th, my information is that that's the date 2 you met and that on the date that you -- the charges were 3 laid was December the 15th? So accept that for my -- 4 DR. JAMES YOUNG: Okay. 5 MR. WILLIAM MANUEL: The issue that I 6 think it -- this raises for me is, is it appropriate for 7 the coroner to play a role in the decision whether to 8 charge someone or not for the criminal offence? 9 DR. JAMES YOUNG: The coroner plays no 10 role. The decision to charge or not charge, first and 11 foremost, is the police officer, and secondly, then it -- 12 it's upon review of the Crown attorney to decide whether 13 there's a reasonable con -- a prospect of conviction. 14 MR. WILLIAM MANUEL: Well, what role are 15 you playing when you -- when you speak to the Crown 16 attorney and pass on the information that this is shaken 17 baby when you go to Timmins and meet with them and tell 18 them that? What role are you playing? 19 DR. JAMES YOUNG: Well, how are they 20 going to get -- understand a -- a new concept or 21 understand an issue if -- if we don't -- 22 MR. WILLIAM MANUEL: Isn't that -- 23 DR. JAMES YOUNG: -- pass that 24 information on. 25 MR. WILLIAM MANUEL: Isn't that the
1521 pathologist's job? 2 DR. JAMES YOUNG: Well, the pathologist 3 is there and doing that. I'm -- I'm going -- my purpose, 4 first of all, I'm the Deputy Chief Coroner and as -- as 5 people have -- have said -- I mean, the -- it's not under 6 my warrant. 7 Certainly, the -- the ability of the 8 coroner to relate information in cases is -- there's all 9 kinds of cases where -- where police and Crown attorneys 10 ask us to find experts, also ask us our opinion on -- 11 MR. WILLIAM MANUEL: But part of that -- 12 DR. JAMES YOUNG: -- on something. It -- 13 it -- we can't divorce that out -- that's one (1) of our 14 -- we're a resource to that system. But I'm not 15 expressing my opinion. It's Dr. Smith that's going to go 16 to court; it's him that expresses the opinion. 17 This is a -- setting up meetings and -- 18 and telling them where -- where the office is -- or where 19 the result is coming from. 20 MR. WILLIAM MANUEL: And you accept -- as 21 I think if I understood your evidence correctly -- once 22 the charges are laid, you -- you have the view that your 23 office has no role to play whatsoever in the prosecution? 24 DR. JAMES YOUNG: We have a role to play 25 if someone comes back and says to us, Do you need -- we
1531 need more expertise. We have a role to play if somebody 2 -- you know, if there's some reason that we have to be a 3 witness, but as a matter of routine, normally, no, we 4 don't have a role. 5 MR. WILLIAM MANUEL: Part of the problem 6 with the report -- and the post-mortem report in this 7 case -- was that it really didn't explain the cause of 8 death in terms of the mechanism or the manner in which 9 the death occurred, did it? It indicated head injury, 10 but didn't indicate the mechanism for head injury. 11 It's not until you get the Shaken Baby 12 Syndrome that you understand how the head injury is to 13 alleged to have been -- occurred, correct? 14 DR. JAMES YOUNG: Well, that -- as we 15 talked about earlier in the day -- would have been the 16 practice in those days to -- to write the report and not 17 give the opinion. The -- the shaken baby part of the 18 opinion is the very part that we were discussing whether 19 or not in future that should be in a report. 20 But -- but clearly the mechanism of 21 writing the report, at that time, was not to include 22 because that's opinion -- 23 MR. WILLIAM MANUEL: Right. 24 DR. JAMES YOUNG: -- at that time. The 25 fact is that it's the head injury that causes the death.
1541 MR. WILLIAM MANUEL: But then part of 2 your role in meeting with the Crown attorney and the 3 police would be to provide orally what was missing from 4 the report in written form? 5 DR. JAMES YOUNG: No, it's not my role. 6 That's Dr. Smith's role. I don't -- I have no weight in 7 this matter. I'm not the pathologist. I'm not -- my 8 opinion doesn't matter except as -- as a quality 9 assurance within the system. 10 But my opinion of the case is not the 11 determinative or -- or definitive. I'm not the one doing 12 it. I'm not the one seeing down the microscope or in the 13 room when it's done, so I'm not -- that's not my role. 14 MR. WILLIAM MANUEL: No. Okay. Let's 15 move on then in terms of another topic. Deal with the 16 Tiffani's case and the issue of the complaints by Crown 17 attorneys. 18 DR. JAMES YOUNG: Mm-hm. 19 MR. WILLIAM MANUEL: As you've indicated 20 that you were aware the Crown attorneys complained about 21 delay in producing Dr. Smith's -- obtaining Dr. Smith's 22 reports. 23 DR. JAMES YOUNG: Yes. 24 MR. WILLIAM MANUEL: You were aware that 25 they had to have resort to subpoenas to obtain those
1551 reports? 2 DR. JAMES YOUNG: Aware that, sorry? 3 MR. WILLIAM MANUEL: They had to obtain 4 subpoenas to compel the production of those reports -- 5 DR. JAMES YOUNG: Oh, I'm aware now of 6 that. I wasn't necessarily aware at the time. 7 MR. WILLIAM MANUEL: Dr. Cairns didn't 8 make you aware of that? 9 DR. JAMES YOUNG: I may have been aware 10 in -- in one (1) case, but I can't tell you what case. 11 MR. WILLIAM MANUEL: Okay. I want to go 12 on to the other issue that I dealt with with Dr. Cairns. 13 And that is that Crown attorneys were complaining to him 14 in four (4) or five (5) case, he said, that Dr. Smith was 15 changing his evidence-in-chief when he took the stand as 16 opposed to what he told them before he took the stand. 17 Do you -- 18 DR. JAMES YOUNG: Yes. 19 MR. WILLIAM MANUEL: You were aware of 20 that evidence? 21 DR. JAMES YOUNG: Only now. 22 MR. WILLIAM MANUEL: Only now. I take it 23 Dr. Cairns didn't bring that to your attention, either? 24 DR. JAMES YOUNG: No. 25 MR. WILLIAM MANUEL: Okay. I want to
1561 take you to the Tiffani report, and that's Volume II, Tab 2 16 of the overview reports. 3 DR. JAMES YOUNG: Okay. Vol -- Volume 4 II? 5 MR. WILLIAM MANUEL: Tab 16. 6 DR. JAMES YOUNG: Okay. 7 MR. WILLIAM MANUEL: And if you could go 8 to paragraph 228 -- 9 DR. JAMES YOUNG: Mm-hm. 10 MR. WILLIAM MANUEL: -- which is page 99. 11 DR. JAMES YOUNG: Yes. 12 MR. WILLIAM MANUEL: You were directed to 13 that -- this in your examination by Commission Counsel -- 14 DR. JAMES YOUNG: Yes. 15 MR. WILLIAM MANUEL: -- and you've had an 16 opportunity to read it. 17 DR. JAMES YOUNG: Yes. 18 MR. WILLIAM MANUEL: At the time, this is 19 in the mid '90's, did you -- have you oriented yourself 20 in that respect, that Ms. Walsh is speaking about 21 '95/'96; that time frame? 22 DR. JAMES YOUNG: Mm-hm. 23 MR. WILLIAM MANUEL: Correct. And at 24 that time frame you -- your office was, in fact, 25 introducing this new team, wasn't it?
1571 DR. JAMES YOUNG: Yes. 2 MR. WILLIAM MANUEL: Right. And Dr. 3 Smith was going to be a member of that team. 4 DR. JAMES YOUNG: Yes. 5 MR. WILLIAM MANUEL: Correct. And you 6 said that you and Dr. Cairns attended Crown attorney's 7 regular -- Crown Attorney Association meetings regularly 8 to present on the coroner's topics, including this 9 pediatric forensic initiative. 10 DR. JAMES YOUNG: I have no recollection 11 right now of having given that particular talk, but my CV 12 says I was there and I did it, so if it's in my CV, I did 13 it, but I -- I -- it wouldn't normally be a topic I would 14 talk about; it's certainly not one (1) I would do on my 15 own because it's not the area that I was as involved in, 16 but it -- 17 MR. WILLIAM MANUEL: Right. 18 DR. JAMES YOUNG: -- but I -- clearly I 19 was there to do that -- 20 MR. WILLIAM MANUEL: Right. 21 DR. JAMES YOUNG: -- at that time, and I 22 certainly went to lots of Crown attorney meetings over 23 the years. 24 MR. WILLIAM MANUEL: Right. And -- I'm 25 sorry, did I -- did you tell me you're familiar with
1581 Sheila Walsh? I mean I -- 2 DR. JAMES YOUNG: No. 3 MR. WILLIAM MANUEL: You -- you don't 4 know her? 5 DR. JAMES YOUNG: I have no -- I have no 6 recollection whatsoever of -- of her, unfortunately. 7 MR. WILLIAM MANUEL: Okay, past -- either 8 no recollection of her or no recollection of any Crown 9 attorney ever approaching you with a concern about Dr. 10 Smith being a member of this committee, of this team? 11 DR. JAMES YOUNG: No, I -- I -- the 12 reference -- she has two (2) references, one (1) has me 13 as the person and one (1) doesn't have me as the person. 14 Dr. Cairns has the recollection of that kind of 15 conversation; I don't. I don't. 16 MR. WILLIAM MANUEL: His evidence was 17 that he did not recollect the conversation with Ms. 18 Walsh. 19 DR. JAMES YOUNG: No, but he had a 20 recollection of -- of a similar -- of that kind of 21 conversation; I have none. 22 MR. WILLIAM MANUEL: Right. 23 DR. JAMES YOUNG: I -- I don't recall 24 hearing this at all. 25 MR. WILLIAM MANUEL: The information that
1591 she records as having received back is rather specific. 2 She indicates that you, or someone that she's uncertain 3 who, indicated that they were aware; your office was 4 aware of the issue in the Tiffani case and was going to 5 have a meeting about that. 6 That would be incorrect information as far 7 as you're aware, correct? 8 DR. JAMES YOUNG: No. No, it isn't. I - 9 - I can't make that statement because I don't have any 10 familiarity with the Tiffani case. I don't remember 11 anything that I would be able to say to you that I -- I'm 12 familiar or not familiar. 13 I -- I -- it wouldn't be the type of 14 comment I would make because I -- I don't know anything 15 about the case, but... 16 MR. WILLIAM MANUEL: Assuming that she 17 was given that information and we can trust what she 18 writes as being accurate, she was given misinformation by 19 someone from your office in respect of what you were 20 going to do. 21 DR. JAMES YOUNG: No, I don't think 22 that's -- I don't think you can draw that conclusion. I 23 mean taking the -- an incident like this years later and 24 saying, You know, people can forget about -- someone 25 could have said that very easily, but she says in the one
1601 (1) reference she doesn't remember who she was talking 2 to. 3 Could someone have said that? Of course, 4 you know, if she wrote it down she may well have said it, 5 but, you know, to take it any further I think is just -- 6 it becomes speculation. 7 MR. WILLIAM MANUEL: Okay, I'll move on 8 to the next topic, and that is a meeting with Mr. McMahon 9 in January of 2001. 10 DR. JAMES YOUNG: Mm-hm. 11 MR. WILLIAM MANUEL: Now, you did not 12 attend that meeting. Dr. Cairns and Dr. Chiasson 13 attended that meeting. 14 DR. JAMES YOUNG: That's right. 15 MR. WILLIAM MANUEL: Right. And you've 16 given a lot of evidence about the Crown attorney reviews 17 that you were contemplating and I understand all of that 18 and my questions are not directed to that. 19 DR. JAMES YOUNG: Okay. 20 MR. WILLIAM MANUEL: At the time that 21 they met with Mr. McMahon, however, they were under the 22 impression, as indicated by you, that there was going to 23 be a review of Dr. Smith's cases for purposes of 24 determining his competency on whether he should continue 25 to be brought back on to do autopsies.
1611 DR. JAMES YOUNG: Initially -- initially 2 when they did they were -- they were -- that's right. 3 MR. WILLIAM MANUEL: Right, so you're not 4 surprised that they passed that information on to Mr. 5 McMahon? 6 DR. JAMES YOUNG: No. 7 MR. WILLIAM MANUEL: And the failure, as 8 you've indicated, for any Crown attorney to ask for a 9 general review of Dr. Smith after January of 2001 has got 10 to be taken into account in the light of the fact that 11 Mr. McMahon was told there was one (1) going on or going 12 to be done. 13 DR. JAMES YOUNG: Well, I -- I suppose, 14 but on the other hand, there was ongoing conversations 15 with Mr. McMahon about that review, so he may well at 16 some point -- 17 MR. WILLIAM MANUEL: Well, in -- in -- 18 DR. JAMES YOUNG: -- have been told. 19 MR. WILLIAM MANUEL: Sorry, sir. What do 20 you know about that? Those ongoing discussions about the 21 review. 22 DR. JAMES YOUNG: That's my -- 23 MR. WILLIAM MANUEL: Are you saying Mr. 24 McMahon -- 25 DR. JAMES YOUNG: I haven't finished the
1621 -- I haven't finished saying what I'm saying. 2 MR. WILLIAM MANUEL: Thank you. So carry 3 on. 4 DR. JAMES YOUNG: There were ongoing 5 discussions about the work that was being done on -- on 6 Mr. McMahon -- on the Crown attorney's behalf, on the 7 other review. 8 MR. WILLIAM MANUEL: Right. So we're 9 parking that -- 10 COMMISSIONER STEPHEN GOUDGE: Let him 11 answer the question. 12 DR. JAMES YOUNG: As part of that, there 13 -- I don't know. I have no idea but I -- whether or not 14 the information would passed on that we're not doing the 15 review. 16 17 CONTINUED BY MR. WILLIAM MANUEL: 18 MR. WILLIAM MANUEL: So you don't know 19 and you didn't ask anyone to -- 20 DR. JAMES YOUNG: That's what I'm saying. 21 MR. WILLIAM MANUEL: Right. And you 22 didn't ask anyone to advise Mr. McMahon that the review, 23 that was indicated to him was going to be done, had been 24 cancelled, correct? 25 DR. JAMES YOUNG: Well, I don't remember
1631 specifically saying to anybody to do that. Whether it 2 was done or whether it isn't, I really don't know. I 3 don't remember thinking about it at the time. 4 MR. WILLIAM MANUEL: Assuming it wasn't 5 done, it's not surprising then that in light of the fact 6 that Mr. McMahon was told there was going to be a review 7 of Dr. Smith's work, that he wasn't pressing for one? 8 DR. JAMES YOUNG: Well, there were -- it 9 was widely reported. It was in -- it formed the basis of 10 -- of a Toronto Star article. It appeared in Maclean's 11 Magazine. It was certainly -- it was no secret, but I 12 would have assumed that he knew. 13 But I -- I think at the time -- I mean, I 14 think, at the time, my point about Mr. McMahon was, at 15 the time, he was unaware that there was some great urge 16 or some great problem either because he was not a -- he 17 was not pressing saying that he was aware. That was my 18 point, was -- 19 MR. WILLIAM MANUEL: Thank you. 20 DR. JAMES YOUNG: -- he wasn't aware that 21 there was a big issue either. 22 MR. WILLIAM MANUEL: One (1) last area: 23 Tyrell's case. After Tyrell, the charges were withdrawn 24 by Mr. Armstrong. Did Mr. -- you and Mr. Armstrong have 25 a conversation?
1641 DR. JAMES YOUNG: No, Dr. Cairns and Mr. 2 Armstrong did. 3 MR. WILLIAM MANUEL: So you had no 4 discussion with Mr. Armstrong? 5 DR. JAMES YOUNG: No. 6 MR. WILLIAM MANUEL: Were you aware that, 7 in fact, what Mr. Armstrong was concerned with in the 8 Tyrell case was that he only discovered the direct 9 involvement of Dr. Becker on the eve of trial. 10 Were you aware of that? 11 DR. JAMES YOUNG: No, the -- the issue I 12 was told was that they needed more expertise and that 13 they -- they got the expertise from Dr. Humphries and 14 that expertise led to a view that the charges were not 15 sustainable but that there wasn't an issue around -- 16 around the opinion of Dr. Smith. That's the information 17 that I had, and that's -- that's all the information I 18 had at that point in time. 19 MR. WILLIAM MANUEL: So you weren't aware 20 that, in fact, Dr. Smith had incorporated into his post- 21 mortem report the examination of the brain which had, in 22 fact, been done by Dr. Becker but was just unattributed 23 to it. 24 You weren't aware of that? 25 DR. JAMES YOUNG: Today is the first time
1651 -- this is the first time I've heard that. 2 MR. WILLIAM MANUEL: And that that was 3 Mr. Armstrong's concern in this case; that Dr. Becker 4 came to light. 5 DR. JAMES YOUNG: I -- I have to take 6 your word on it, I don't know. I've never heard that 7 before. 8 MR. WILLIAM MANUEL: Thank you very much. 9 COMMISSIONER STEPHEN GOUDGE: Thanks, Mr. 10 Manuel. 11 Mr. Carter...? 12 13 CROSS-EXAMINATION BY MR. WILLIAM CARTER: 14 MR. WILLIAM CARTER: Dr. Young, my name 15 is Bill Carter. I act for The Hospital for Sick 16 Children. 17 I will be brief, and I only want to 18 address one (1) area with you. And for the purposes of 19 my discussion in this area, I just want to make sure we 20 understand our terminology and it has to do with -- 21 DR. JAMES YOUNG: Yeah. 22 MR. WILLIAM CARTER: -- coroner's 23 autopsies. 24 DR. JAMES YOUNG: Okay. 25 MR. WILLIAM CARTER: A subject with which
1661 you're very familiar. 2 Can we agree that coroner's autopsies are 3 those autopsies that are performed pursuant to a 4 coroner's warrant? 5 DR. JAMES YOUNG: That's correct. 6 MR. WILLIAM CARTER: And they are 7 variously described as medicolegal autopsies or forensic 8 autopsies, but the correct legal description would be a 9 coroner's autopsy, would it not? 10 DR. JAMES YOUNG: That's correct. 11 MR. WILLIAM CARTER: Okay. And within 12 that broad setting, there's a small group which involve 13 the Criminal Justice System. 14 Is that fair? 15 DR. JAMES YOUNG: Yes. 16 MR. WILLIAM CARTER: And we have 17 described those for the purposes of this Commission as 18 suspicious or criminally suspicious or homicide cases. 19 Is that fair? 20 DR. JAMES YOUNG: Yes. 21 MR. WILLIAM CARTER: And we've heard from 22 other witnesses, both Dr. Cairns and Dr. Pollanen, that 23 in the case of pediatric deaths, the percentage of 24 coroner's autopsies that involve that area, the 25 criminally suspicious area, is approximately 5 percent.
1671 Is that fair? 2 DR. JAMES YOUNG: That seems reasonable 3 to me. 4 MR. WILLIAM CARTER: Okay. And so -- and 5 for the purposes of this discussion, can we agree that 6 those cases we will refer to as "forensic cases"? 7 DR. JAMES YOUNG: Okay. 8 MR. WILLIAM CARTER: Because those are 9 the cases that in -- involve an interface with the 10 justice system, fair? 11 DR. JAMES YOUNG: Yes. 12 MR. WILLIAM CARTER: So within the broad 13 description of coroner's autopsies we have a small group, 14 perhaps 5 percent, that are truly forensic cases. 15 Is that fair, dealing with pediatrics? 16 DR. JAMES YOUNG: Well, no. I mean, I -- 17 I hold a -- a broader view of forensic. Forensic in the 18 sense that they relate into the criminal justice system, 19 but I think that the -- many of the other cases still 20 have a component that, in a broader definition of 21 forensic, would -- would fit. 22 MR. WILLIAM CARTER: Okay. Well, there 23 may be some -- 24 DR. JAMES YOUNG: Otherwise we wouldn't 25 be doing them.
1681 MR. WILLIAM CARTER: Well, I -- I -- so 2 in the broader sense, any coroner's autopsy is forensic-- 3 DR. JAMES YOUNG: That's right. 4 MR. WILLIAM CARTER: -- because it's 5 required by law? 6 DR. JAMES YOUNG: Well, it -- it may or - 7 - there's a huge amount of discretion. But it's -- it's 8 required for -- it's felt to be required for a medical- 9 legal purpose. 10 MR. WILLIAM CARTER: Okay. So I don't 11 want to get hung up on the terminology here. You'll 12 agree with me that within the broad context of coroner's 13 cases, approximately 5 percent involve the criminal 14 justice system? 15 DR. JAMES YOUNG: Yes. 16 MR. WILLIAM CARTER: Okay. And in the -- 17 and I'm confining my questions to the pediatric realm, 18 because the numbers may be different in the adult realm. 19 Is that fair? 20 DR. JAMES YOUNG: Yes, in fact -- yes, 21 they -- they would be different. 22 MR. WILLIAM CARTER: Okay. And we've 23 heard that in the pediatric realm during your time, as 24 both Deputy Chief Coroner and subsequently Chief Coroner, 25 there were a number of units that had been established
1691 within the province to deal with the pediatric coroner's 2 autopsies? 3 DR. JAMES YOUNG: Well, to deal with all 4 autopsies. I mean, those units did -- dealt with both 5 adult and pediatric cases. 6 MR. WILLIAM CARTER: Well, with the 7 exception of the Hospital for Sick Children? 8 DR. JAMES YOUNG: Yes. 9 MR. WILLIAM CARTER: Okay. 10 DR. JAMES YOUNG: Yes. 11 MR. WILLIAM CARTER: And perhaps CHIO in 12 Ottawa? 13 DR. JAMES YOUNG: Well, CHI -- yes, in 14 Ottawa the -- the unit we had at the Heart Institute 15 dealt with the adult cases, and most of the kids' cases 16 went over the CHIO, that's right. 17 MR. WILLIAM CARTER: Okay. Well, thanks 18 for that clarification. Now, during the time that you 19 were both Deputy Chief Coroner and Chief Coroner, the 20 information I have -- and we've seen some of this in 21 evidence -- is that the number of coroner's cases being 22 done at the Hospital for Sick Children would be in excess 23 of a hundred (100) per annum? 24 DR. JAMES YOUNG: Yes. 25 MR. WILLIAM CARTER: Does that seem
1701 reasonable to you? 2 DR. JAMES YOUNG: Yes. 3 MR. WILLIAM CARTER: Okay. 4 DR. JAMES YOUNG: And it was rising. 5 MR. WILLIAM CARTER: Yeah, we've heard 6 numbers like a hundred and twenty (120), a hundred and 7 thirty (130), maybe as high as a hundred and forty (140) 8 in some years -- 9 DR. JAMES YOUNG: That's right. 10 MR. WILLIAM CARTER: -- does that seem 11 reasonable to you? 12 DR. JAMES YOUNG: Yeah, it was -- it was 13 rising at -- through the years at a fairly steady rate. 14 MR. WILLIAM CARTER: And during the time 15 when you were responsible for the conduct of coroner's 16 autopsies involving children at the Hospital for Sick 17 Children -- and leaving aside that small percentage of 18 cases involving the criminally suspicious and homicide 19 cases -- were you satisfied with the quality of the work 20 that was being done? 21 DR. JAMES YOUNG: I certainly -- nothing 22 came to my attention to suggest there were problems with 23 it, yes. 24 MR. WILLIAM CARTER: Okay. And the -- we 25 -- we know that there's been some evidence that there was
1711 a -- a timeliness problem with the turnaround on some of 2 these reports. 3 DR. JAMES YOUNG: Mm-hm. 4 MR. WILLIAM CARTER: And that as a 5 problem, I understand from your evidence, was not 6 confined to the Hospital for Sick Children? 7 DR. JAMES YOUNG: No. 8 MR. WILLIAM CARTER: That's a systemic 9 problem, is it not? 10 DR. JAMES YOUNG: It's a systemic 11 problem. I think Dr. Smith was at one end of the scale. 12 But it's a huge problem everywhere, because most of the 13 people are not our employees, they're busy, and the 14 turnarounds are not what we would like them to be. 15 MR. WILLIAM CARTER: Okay. And some of 16 that may be due to the type of work and -- and some of 17 the requirements of the work. I'm thinking, for 18 instance, of the advent of the toxicology screening that 19 became mandatory for children in the mid '90s. 20 So that might be something that would slow 21 down the turnaround times. Is that right? 22 DR. JAMES YOUNG: Toxicology would -- 23 other opinions, when you get a neuropathology, or 24 radiology opinion, or whatever, some people are fast at 25 returning them, some people are very slow at returning
1721 them. 2 So the more experts you get involved, the 3 more you're -- you're subject to their -- their 4 scheduling and their attention. And then often the -- 5 the primary pathologist waits to write their report until 6 they incorporate the views of the other people into it. 7 MR. WILLIAM CARTER: Okay. So there may 8 be a number of explanations, either alone or in 9 combination, that give rise to a delay in the turnaround 10 of a report? 11 DR. JAMES YOUNG: Absolutely. 12 MR. WILLIAM CARTER: And -- and some of 13 these relate to the complexity of the case, fair? 14 DR. JAMES YOUNG: Yes. 15 MR. WILLIAM CARTER: And some relate to 16 the need to obtain additional information from 17 consultants, including toxicologists? 18 DR. JAMES YOUNG: Yeah. There would -- 19 there would be cases, for example, involving, if we 20 wanted to do heart conduction studies, then we would -- 21 if a family asked us for the report and we knew we were 22 doing that, we would add six (6) months to the report 23 time knowing that we weren't going to get a report back 24 inside of that time, because it's detailed work, it's not 25 widely available, and it would take us that long to get a
1731 report. 2 I mean, that's -- that's the reality of 3 the world we lived in. 4 MR. WILLIAM CARTER: Right. And I take 5 it, one of the constant themes in your life as Chief 6 Coroner was trying to communicate in an effective and 7 compassionate way with family members who were very 8 concerned about a -- an intelligent and understandable 9 explanation for why their child had died? 10 DR. JAMES YOUNG: Exactly. 11 MR. WILLIAM CARTER: And that would -- 12 and those people would be distressed often? 13 DR. JAMES YOUNG: And dealing with the 14 regional coroners or -- 15 MR. WILLIAM CARTER: Yeah. 16 DR. JAMES YOUNG: -- or those of us in 17 Toronto. 18 MR. WILLIAM CARTER: So your -- your 19 office, in addition to having to deal with the 20 frustrations, if I can describe them, of waiting for the 21 reports from the pathologist would have the additional 22 pressure applied to you from those members of the public 23 who were terribly interested in the reports, as well? 24 DR. JAMES YOUNG: We were the meat in the 25 sandwich, that's --
1741 MR. WILLIAM CARTER: Okay. 2 DR. JAMES YOUNG: -- the way I would put 3 it. 4 MR. WILLIAM CARTER: Okay. Thank you, 5 Doctor. 6 COMMISSIONER STEPHEN GOUDGE: Thanks, Mr. 7 Carter. 8 It is 12:39, 12:40. Rather than start, 9 Ms. Silver, we will start with you at 2:00, is that okay? 10 MS. CAROLYN SILVER: Mm-hm. 11 COMMISSIONER STEPHEN GOUDGE: Okay. We 12 will rise now until 2:00. 13 14 --- Upon recessing at 12:39 p.m. 15 --- Upon resuming at 2:01 p.m. 16 17 THE REGISTRAR: All rise. Please be 18 seated. 19 COMMISSIONER STEPHEN GOUDGE: Ms. 20 Silver...? 21 MS. CAROLYN SILVER: Thank you. 22 23 CROSS-EXAMINATION BY MS. CAROLYN SILVER: 24 MS. CAROLYN SILVER: Good afternoon, Dr. 25 Young.
1751 DR. JAMES YOUNG: Good afternoon. 2 MS. CAROLYN SILVER: My name is Carolyn 3 Silver and I represent the College of Physicians and 4 Surgeons of Ontario. 5 DR. JAMES YOUNG: Okay. 6 7 (BRIEF PAUSE) 8 9 MS. CAROLYN SILVER: I want to start by 10 discussing with you, Dr. Young, your position that the 11 College didn't have jurisdictions over complaints that 12 came to them against coroners when they were acting in 13 their capacity as coroners. 14 DR. JAMES YOUNG: Mm-hm. 15 MS. CAROLYN SILVER: And that was your 16 position, correct? 17 DR. JAMES YOUNG: Yes. 18 MS. CAROLYN SILVER: And you took that 19 position with the College in response to a complaint in 20 1997, correct? 21 DR. JAMES YOUNG: You'll have to refresh 22 my -- was it -- was it in discussion -- I mean, we'd had 23 discussions for quite some period of time. I can't 24 remember whether there was a specific complaint. And 25 this was an ongoing discussion between the College and
1761 myself. 2 MS. CAROLYN SILVER: And the on -- the -- 3 the subject of that ongoing discussion was that your 4 office should have jurisdiction over complaints against 5 coroners, not the College, correct? 6 DR. JAMES YOUNG: That's right. 7 MS. CAROLYN SILVER: That was the 8 position that you adhered to, correct? 9 DR. JAMES YOUNG: Yes. 10 MS. CAROLYN SILVER: And I was referring 11 to 1997 because there is a document, which is a letter 12 from you to a College investigator, dated June 30th, 13 1997. I believe it's PFP145576. I don't need to turn 14 you to it, Dr. Young -- 15 DR. JAMES YOUNG: Okay. 16 MS. CAROLYN SILVER: -- just for the 17 reference, it's Volume VIII, I believe, at Tab 3. 18 And that was a letter you wrote to a 19 College investigator taking that same position, that 20 there was a complaint against you in your capacity as 21 coroner and the College doesn't have jurisdiction to deal 22 with that. 23 Fair enough? 24 DR. JAMES YOUNG: Yes, yes. 25 MS. CAROLYN SILVER: Okay. And you
1771 maintained that position with the College into 1998, 2 correct? 3 DR. JAMES YOUNG: Yes. 4 MS. CAROLYN SILVER: And you told the 5 College that you wanted to have sole jurisdiction over 6 those types of complaints. Fair enough? 7 DR. JAMES YOUNG: Yes, with the exception 8 of -- of issues around ethics and, you know, if there 9 was, for example, a criminal matter against the coron -- 10 or a doctor who was also a coroner. 11 But in terms of -- of the administration 12 of coroner duties, that was my position. 13 MS. CAROLYN SILVER: Okay. And that's 14 how the discussion arose? It arose in the context of 15 complaints against coroners, correct? 16 DR. JAMES YOUNG: Yes. 17 MS. CAROLYN SILVER: And then later it 18 came up when there was a complaint against Dr. Smith in 19 his role as a pathologist, correct? 20 DR. JAMES YOUNG: That's fair. 21 MS. CAROLYN SILVER: Okay. And the 22 College told you at some point -- I'm suggesting to you, 23 because it's contained in memos -- that they didn't want 24 to fight with you over jurisdiction, correct? 25 DR. JAMES YOUNG: That's right.
1781 MS. CAROLYN SILVER: And it was their 2 position that this would not be an appropriate 3 application of public funds, and it wouldn't serve the 4 public interest. 5 Fair enough? 6 DR. JAMES YOUNG: Yes. 7 8 (BRIEF PAUSE) 9 10 MS. CAROLYN SILVER: So then in 1999 you 11 discussed with the College a complaint that comes in over 12 Dr. Smith acting as a pathologist, correct? 13 DR. JAMES YOUNG: Yes. 14 MS. CAROLYN SILVER: And you maintained 15 your same position with respect to jurisdiction in that 16 you told the College that it did not have jurisdiction 17 over Dr. Smith acting as a pathologist, correct? 18 DR. JAMES YOUNG: I think I modified it 19 slightly. I mean, I -- I certainly made the argument 20 that I wondered whether they did, and I expressed 21 particularly the view about -- about courts. 22 But I think in general my starting 23 position was that they didn't have jurisdiction. 24 MS. CAROLYN SILVER: Well, I'm suggesting 25 to you, Dr. Young, that you did more than wonder whether
1791 they had jurisdiction -- 2 DR. JAMES YOUNG: Yeah, I stated they 3 didn't have it. 4 MS. CAROLYN SILVER: Right. You wrote a 5 letter -- 6 DR. JAMES YOUNG: Yeah. And I say, This 7 is opening position and we're having discussions. And 8 that's what I would have written, that's correct. 9 MS. CAROLYN SILVER: Well, just to be 10 fair to you, Dr. Young, you wrote a letter to Michelle 11 Mann, who was investigating the complaint against Dr. 12 Smith in the Amber case. You wrote that letter on March 13 4th, 1998. 14 DR. JAMES YOUNG: Mm-hm. 15 MS. CAROLYN SILVER: And that's 16 PFP000047, which I think is found at Volume IV, Tab 22. 17 And you wrote that you understood there was a complaint 18 against Dr. Smith and related to the matter, corr -- 19 correct? 20 DR. JAMES YOUNG: Mm-hm, yes. 21 MS. CAROLYN SILVER: And you took the 22 position that the College -- and this is in the third 23 paragraph -- does not have jurisdiction to deal with 24 complaints about the findings and opinions of a 25 pathologist acting under Section 28(1) of the Coroners
1801 Act, correct? 2 DR. JAMES YOUNG: Yes. 3 MS. CAROLYN SILVER: And I put it to you, 4 Dr. Young, that you weren't waffling there? You took a 5 strong position on that? 6 DR. JAMES YOUNG: I -- I've said that. 7 In -- in writing I was taking a strong position, I agree. 8 MS. CAROLYN SILVER: In writing to the 9 College with respect to this complaint, correct? 10 DR. JAMES YOUNG: Yes. But there were 11 discussions taking place as well. 12 MS. CAROLYN SILVER: Well I suggest to 13 you, this was your official position? 14 DR. JAMES YOUNG: Absolutely. 15 MS. CAROLYN SILVER: Okay. And in that 16 official position that you put in writing to the College, 17 you said that it was the position of the Office of the 18 Chief Coroner that the actions, finding, and opinions of 19 a pathologist, acting under Subsection 28(1) of the 20 Coroners Act are not caught by -- for the provisions of 21 51(1) of the Code, correct? 22 DR. JAMES YOUNG: Yes. 23 MS. CAROLYN SILVER: And you said: 24 "Therefore, the college has no 25 jurisdiction to deal with complaints
1811 about the actions, findings, or 2 opinions of a pathologist acting 3 pursuant to the Coroner Act." 4 Correct? 5 DR. JAMES YOUNG: Yes. 6 MS. CAROLYN SILVER: And that was your 7 official position that you put forward to the College, 8 fair enough? 9 DR. JAMES YOUNG: That was the position I 10 put forward in writing to the college. 11 12 (BRIEF PAUSE) 13 14 MS. CAROLYN SILVER: And I just want to 15 discuss next with you, Dr. Young, why you took that 16 position. And I think you've stated several times in 17 your evidence that you took that position, at least in 18 large part, because of a concern you had about getting 19 pathologists to do this type of work for your office, 20 fair enough? 21 DR. JAMES YOUNG: That was one of my 22 reasons, that's correct. 23 MS. CAROLYN SILVER: Okay. And that I 24 put to you, you said there were two (2) reasons, this was 25 one (1) of the main reasons?
1821 DR. JAMES YOUNG: Absolutely. 2 MS. CAROLYN SILVER: Okay. The other 3 reason you talked about a concern about whether to 4 College could do a proper job on it, correct? 5 DR. JAMES YOUNG: And I don't mean that 6 in a demeaning way. I'm -- 7 MS. CAROLYN SILVER: What -- 8 DR. JAMES YOUNG: -- the College -- there 9 is no way for the College easily within, for example, 10 Ontario, to find people to act as experts to give them 11 advice. And the -- the problem they're going to get into 12 is that a major part of the review is going to include 13 courts and court evidence. 14 And it's, as we've learned, very difficult 15 to sort out court evidence and to put it in context. 16 MS. CAROLYN SILVER: Sorry, you -- you 17 just said that it's impossible for the College to obtain 18 experts to give -- to do this kind of review, is that 19 what you said? 20 DR. JAMES YOUNG: No, what I said, it 21 would be difficult to find experts within Ontario that 22 weren't -- there are a limited number of people with this 23 kind of experience in Ontario, particularly in a narrower 24 field like pediatric -- complex pediatric cases. 25 MS. CAROLYN SILVER: Okay.
1831 DR. JAMES YOUNG: So there would be a 2 small pool of people available. But my concern as well 3 is that these are matters that have been dealt with 4 through the criminal courts. 5 There's evidence that has to be reviewed, 6 and how that affects, and how you make a judgment on -- 7 on what's gone before a criminal court, and the value of 8 that evidence, and how it's -- it compares with another 9 expert's opinion, et cetera, is a very -- as -- as we've 10 all learned from reviews like this, is very difficult and 11 very complex. 12 MS. CAROLYN SILVER: Okay. So without 13 getting into that too far, you felt that that -- that was 14 one (1) concern you had with the College assuming 15 jurisdiction, correct? 16 DR. JAMES YOUNG: That's one (1) of the 17 others, that's right. 18 MS. CAROLYN SILVER: And you felt that 19 your office would be in a better position to do that kind 20 of review by assuming jurisdiction, correct? 21 DR. JAMES YOUNG: That -- that kind of 22 review is -- is hard to do at the best of times, but at 23 least we have a network of people that we normally deal 24 with. We have the network of experts somewhere else. 25 We understand the context of courts,
1841 because that's what we do more of the time. So I -- I 2 felt it was -- it was an ambitious -- I understood the 3 jurisdictional debate within -- within the College, but I 4 understood that there were practical problems that you -- 5 that we've talked about in -- in the College doing it. 6 MS. CAROLYN SILVER: Let me just take it 7 simply. You had two (2) main concerns, Dr. Young. One 8 (1) was you thought you could do it better than the 9 College, fair enough? 10 DR. JAMES YOUNG: No. No, that's not -- 11 that's not what I stated. I said that I -- I was 12 concerned first and foremost about exposing pathologists 13 to an extra layer of review and the implications that 14 that would have. 15 And the second is I had concerns about 16 both the practical experience and the difficulty that the 17 College would encounter in doing it, particularly in 18 reviewing -- in reviewing the courts. 19 I didn't say we could do it better. I 20 just said those were my concerns. 21 MS. CAROLYN SILVER: So by suggesting -- 22 since you said that was one (1) of the reasons you 23 thought your office should assume jurisdiction over the 24 College, your evidence now is that you didn't think that 25 you were better equipped to do it than the College?
1851 DR. JAMES YOUNG: Well, we're better 2 equipped in the sense that we at least operate within the 3 sphere of no more experts. So from that point of view, 4 yeah, I -- I -- it wasn't -- it was -- the main reasons 5 are the reasons I stated, that -- that -- why we were 6 having this discussion. 7 MS. CAROLYN SILVER: Well that's what I 8 want to go through, the two (2) reasons. 9 DR. JAMES YOUNG: Yeah. 10 MS. CAROLYN SILVER: One (1) is you were 11 worried about manpower. 12 If pathologists were subject to the 13 jurisdiction of the College in its discipline process, 14 you were worried about retaining pathologists to do your 15 work, correct? 16 DR. JAMES YOUNG: Yes. 17 MS. CAROLYN SILVER: And the second 18 issue, which I don't want to explore in depth was that 19 you mentioned in your testimony that you were concerned - 20 - I think you said in your testimony that the College 21 ill-equipped to manage these types of cases, correct? 22 That's what -- 23 DR. JAMES YOUNG: I -- I may have used 24 that phrase, but I think I've explained in detail in the 25 last few minutes. That's right.
1861 MS. CAROLYN SILVER: Right. And I was 2 only suggesting to you that implicit in that must have 3 been that you thought your office was better equipped. 4 Is that not fair? 5 DR. JAMES YOUNG: Implicit in -- and I 6 don't think that's the way you put it to me, but that's 7 fine. I'll accept that. 8 MS. CAROLYN SILVER: Well, you weren't 9 suggesting that someone else take jurisdiction, not you 10 and not the College? 11 DR. JAMES YOUNG: We weren't even 12 discussing who else might have jurisdiction. I mean, you 13 put to me that my reason was that -- 14 MS. CAROLYN SILVER: So you accept -- 15 DR. JAMES YOUNG: -- that my office could 16 do better, and that's not -- wasn't, in my view, my 17 reason. That's okay. 18 19 (BRIEF PAUSE) 20 21 MS. CAROLYN SILVER: And you told the 22 College in discussions that you were, if necessary, 23 prepared to litigate over the issue of jurisdiction, 24 correct? 25 DR. JAMES YOUNG: Well, I -- I told the
1871 College I was prepared to litigate, I think in particular 2 over the issue of coroners. I'm not sure whether I said 3 I was prepared to litigate over pathologists or not. I 4 was prepared to -- I felt the case was much stronger. 5 I -- I can't remember whether I included 6 pathologists or not in -- when I said I was prepared or - 7 - or thinking about whether I would litigate. 8 MS. CAROLYN SILVER: Well, I -- I take 9 that suggestion, Dr. Young, from a memo, an internal 10 College memo, that was written in March of 2000. It's 11 March 15th, 2000. 12 DR. JAMES YOUNG: Yes. 13 MS. CAROLYN SILVER: And it's PFP145639. 14 I believe it's found at Volume IV, Tab 26. And I'm 15 suggesting to you that this was being discussed in March 16 of 2000, so this was after the issue of jurisdiction over 17 Dr. Young as a pathologist came up. 18 DR. JAMES YOUNG: Dr. Smith. 19 MS. CAROLYN SILVER: Dr. Smith as a 20 pathologist. 21 So I'm suggesting to you that when there's 22 -- when it says in the memo that during these discussions 23 in 2002 you said, if necessary, will litigate over the 24 issue of jurisdiction, that included the jurisdiction 25 over pathologists.
1881 Wouldn't that be reasonable? 2 DR. JAMES YOUNG: It's one 3 interpretation. I'm not sure that I would adopt it, 4 but... 5 MS. CAROLYN SILVER: You don't recall? 6 DR. JAMES YOUNG: I -- I don't -- that's 7 what I said, I don't recall. 8 MS. CAROLYN SILVER: Okay. So you were 9 prepared to -- you know you were prepared to litigate 10 over the issue of complaints against coroners acting as 11 coroners, fair enough? 12 DR. JAMES YOUNG: We were thinking of 13 litigating. We were -- were certainly considering that's 14 option and it's a valid option available. 15 MS. CAROLYN SILVER: Okay. 16 DR. JAMES YOUNG: There were other 17 options as well. 18 MS. CAROLYN SILVER: I'm not suggesting 19 it wasn't. I'm only suggesting to you that you told the 20 College that you were considering whether to litigate, if 21 it came to that, fair enough. 22 DR. JAMES YOUNG: Considering to litigate 23 is one -- is a good way to put it. 24 MS. CAROLYN SILVER: Right. 25
1891 (BRIEF PAUSE) 2 3 MS. CAROLYN SILVER: And I'm suggesting 4 to you, Dr. Young, that by telling the College that your 5 office was the place that should assume jurisdiction over 6 coroners -- over pathologists and coroners, you were 7 asking the College to rely on your office to properly 8 investigate complaints that came in about the competence 9 of pathologists. 10 Fair enough? 11 DR. JAMES YOUNG: I don't think we 12 settled the issue. I mean, we eventually settled it with 13 the College doing the investigation, but -- I mean, 14 you're -- yes, if -- if -- once we settle the question, 15 then it'll -- it would live one place or the other. 16 And that's what we were discussing, is 17 where is it -- where is this responsibility going to 18 live? 19 MS. CAROLYN SILVER: Okay. But just 20 listen to my question. Initially, -- 21 DR. JAMES YOUNG: I did. 22 MS. CAROLYN SILVER: Okay. I -- it's a 23 long question, so I'm not faulting you, Dr. Young, but 24 initially the College didn't take jurisdiction and they 25 accepted what you had proposed, which is that your office
1901 should have jurisdiction, correct? 2 DR. JAMES YOUNG: Yes, that's right. 3 MS. CAROLYN SILVER: Right. And what I'm 4 suggesting to you is that when you told the College that 5 it was your office that assume jurisdiction over these 6 types of complaints against pathologists like Dr. Smith-- 7 DR. JAMES YOUNG: Mm-hm. 8 MS. CAROLYN SILVER: -- you were asking 9 the CPSO to rely on you to properly investigate those 10 complaints, fair enough? 11 DR. JAMES YOUNG: Once the issue was 12 settled, what happens initially, as soon as the -- the 13 matter is -- is -- goes before the College and -- and 14 they say they don't have jurisdiction, immediately an 15 appeal is -- is filed and the matter is not resolved 16 until later. And we're aware of that. 17 We're aware that there's a -- an appeal 18 and that the matter is still in the air and that it 19 hasn't been settled. 20 It, ultimately, got settled when -- when 21 the College was told it did have jurisdiction; it assumed 22 the jurisdiction, and we didn't -- we didn't fight that; 23 we -- we allowed it to proceed. 24 MS. CAROLYN SILVER: I'm talking about 25 the period -- Dr. Young, just let me finish --
1911 DR. JAMES YOUNG: Yeah. 2 MS. CAROLYN SILVER: -- when there were 3 discussions between you and the College about who should 4 take jurisdiction, okay? 5 DR. JAMES YOUNG: Yes. 6 MS. CAROLYN SILVER: So I want you to 7 take your mind back to that time. 8 DR. JAMES YOUNG: Yes. 9 MS. CAROLYN SILVER: And you took the 10 position, we've established, that your office should 11 assume jurisdiction over both coroners and pathologists 12 like Dr. Smith? 13 DR. JAMES YOUNG: Yes. 14 MS. CAROLYN SILVER: And what I'm 15 suggesting to you -- maybe I'll put it another way, is 16 that you were -- by saying "let the Coroner's Office take 17 jurisdiction," you were telling the College that it could 18 rely on you to properly address those types of complaints 19 about pathologists, correct? 20 DR. JAMES YOUNG: Yes. 21 MS. CAROLYN SILVER: Okay. And that it 22 could rely on you to properly investigate those types of 23 complaints? 24 DR. JAMES YOUNG: If that's the way the 25 matter ended up at the end of the day. But it's not the
1921 way the matter ended up. 2 MS. CAROLYN SILVER: Well, you did 3 receive a complaint in the Gagnon case, correct? 4 DR. JAMES YOUNG: Yes. 5 MS. CAROLYN SILVER: And you dealt with 6 that complaint you said, correct? 7 DR. JAMES YOUNG: Yes. 8 MS. CAROLYN SILVER: Right. So what I'm 9 suggesting to you, you agreed that you were telling the 10 College they could rely on you to properly address the 11 complaint. I'm suggesting to you that you were telling 12 them, If we get a complaint in, we will properly 13 investigate it. Fair enough? 14 DR. JAMES YOUNG: Yes. 15 MS. CAROLYN SILVER: Okay. And in fact 16 in -- with respect to the Gagnon complaint, Mr. Gagnon 17 sent you a letter which we've looked at, and I won't take 18 you there, in February 1999, setting out his concerns 19 about Dr. Smith, correct? 20 DR. JAMES YOUNG: Yes. 21 MS. CAROLYN SILVER: And it was a 22 detailed brief that we've gone over, correct? 23 DR. JAMES YOUNG: Yes. 24 MS. CAROLYN SILVER: And you eventually 25 responded to that brief, and you sent him a letter dated
1931 May 6, 1999, correct? 2 DR. JAMES YOUNG: Yes. 3 MS. CAROLYN SILVER: Okay. And he was -- 4 wasn't satisfied with your response and you know that he 5 wrote a letter to Dr. Bonn at the College about your 6 response, correct? 7 DR. JAMES YOUNG: Yes. 8 MS. CAROLYN SILVER: And that was 9 November 30th, 1999? 10 DR. JAMES YOUNG: Yes. 11 MS. CAROLYN SILVER: And, in turn, you 12 wrote a letter to the College addressing Mr. Gagnon's 13 dissatisfaction. Fair enough? 14 DR. JAMES YOUNG: Yes. 15 MS. CAROLYN SILVER: And in that letter - 16 - and that was a letter of December 17th, 1999, and it's 17 PFP053489. I believe it's Volume VIII, Tab 15 -- I'm 18 suggesting to you that you told Dr. Bonn in that letter, 19 you said that you took his -- Mr. Gagnon's complaints 20 very seriously and that you stood by your conclusions. 21 That's on page 2. 22 DR. JAMES YOUNG: Yes. 23 MS. CAROLYN SILVER: Okay. So you 24 essentially told the College that you could deal with 25 these complaints, correct?
1941 DR. JAMES YOUNG: No, I didn't. I never 2 said to the College I could deal with them. It was 3 implied that I would deal with them. 4 MS. CAROLYN SILVER: Okay. 5 DR. JAMES YOUNG: But if you can find -- 6 MS. CAROLYN SILVER: Fair enough. 7 DR. JAMES YOUNG: -- in writing where I 8 said I could deal with them -- 9 MS. CAROLYN SILVER: Fair enough. It was 10 implicit. 11 DR. JAMES YOUNG: Well, that's fine; 12 that's different, yeah. 13 MS. CAROLYN SILVER: You agree with that? 14 DR. JAMES YOUNG: You're -- you're 15 implying that I did, yes. But I -- I didn't say I could 16 deal with them. There was no writing, no correspondence 17 about that. 18 COMMISSIONER STEPHEN GOUDGE: Did you 19 think you could deal with them? 20 DR. JAMES YOUNG: Yes. 21 22 CONTINUED BY MS. CAROLYN SILVER: 23 MS. CAROLYN SILVER: And I'm just 24 suggesting that in that letter to Dr. Bonn, you told the 25 College that you had dealt with it. Fair enough?
1951 DR. JAMES YOUNG: I thought I had. I had 2 -- I had a review by Dr. Case; I had three autopsies 3 before me. I looked through them. I had met with Dr. 4 Smith. 5 I have limited options available to me in 6 the sense of what I can do and I had chosen the option of 7 -- of discipline and education for the other -- other 8 pathologists. So I felt I had -- within the options 9 available to me, I had selected two (2) of the options 10 and dealt with them in that way. 11 MS. CAROLYN SILVER: I'm -- we've heard a 12 lot of evidence on what you did, Dr. Young, and I 13 appreciate that -- 14 DR. JAMES YOUNG: Yeah. 15 MS. CAROLYN SILVER: -- and I'm going to 16 get into how you dealt with the complaint. But I'm just 17 saying this letter was simply you writing to the College 18 and saying, We did deal with that complaint. 19 Fair enough? 20 DR. JAMES YOUNG: Yes. 21 MS. CAROLYN SILVER: Okay. And so let's 22 talk about what you did do in response to the Gagnon 23 complaint. 24 You've given a lot of evidence, in terms 25 of your review, but I just want to talk about the
1961 complaint itself. And in response to the complaint you - 2 - you -- I just mentioned that you responded to it, that 3 was by letter of May 6th, 1999 that I just mentioned to 4 you, correct? 5 DR. JAMES YOUNG: Yes. 6 7 (BRIEF PAUSE) 8 9 MS. CAROLYN SILVER: And in that letter 10 of May 6th, 1999 -- and that is PFP007885. I believe 11 it's at Volume VIII, Tab 55. In that letter -- we've 12 looked at it several times, Dr. Young -- you say to Mr. 13 Gagnon, I have read your brief in detail and considered 14 it very carefully. 15 DR. JAMES YOUNG: Yes. 16 MS. CAROLYN SILVER: Do you see that? 17 DR. JAMES YOUNG: Yes. 18 MS. CAROLYN SILVER: Okay. 19 20 (BRIEF PAUSE) 21 22 MS. CAROLYN SILVER: And we heard your 23 evidence that you suspect you actually didn't read his 24 entire brief, correct? 25 DR. JAMES YOUNG: No. No, that's -- I
1971 read his brief carefully, and I did consider it in 2 detail. I eliminated the parts that were not appropriate 3 for me to read, and I -- I stand by that statement. I 4 read it carefully, and I considered it in detail. 5 MS. CAROLYN SILVER: I'm asking you a 6 different question, Dr. Young. This is the question; you 7 would agree with me that you've given evidence that you 8 didn't read the entire complaint, isn't that fair? 9 DR. JAMES YOUNG: Yes. 10 MS. CAROLYN SILVER: Okay. And you said 11 that you omitted the part dealing with the Amber case, 12 correct? 13 DR. JAMES YOUNG: Yes. 14 MS. CAROLYN SILVER: Okay. And you were 15 asked about whether you read the conclusion, and you said 16 that you don't know if you read the conclusion, correct? 17 DR. JAMES YOUNG: I -- I -- that's right. 18 I -- I don't remember exactly what I read. 19 MS. CAROLYN SILVER: And you say you 20 stand by your statement to Mr. Gagnon that you, -- I have 21 read your brief in detail and considered it very 22 carefully. I'm -- I'm asking you if you'd agree, Dr. 23 Young, that isn't it implicit in that statement or 24 wouldn't that suggest to Mr. Gagnon that you had actually 25 read his complaint it's -- in its entirety?
1981 DR. JAMES YOUNG: Well, the -- what I was 2 conveying to Mr. Gagnon is I -- I've read it, and I've 3 considered it. I -- I didn't put in a phrase -- I didn't 4 read the part that is -- isn't relevant to my discussion 5 because I ought not to read it and I ought not to 6 consider it. 7 You're right, I could have put that in. I 8 -- I chose not to -- to write that in the reply. 9 MS. CAROLYN SILVER: So, you'd agree with 10 me that that could imply to Mr. Gagnon that you had read 11 his whole complaint, fair enough -- the way it's worded? 12 DR. JAMES YOUNG: I guess, yes. 13 MS. CAROLYN SILVER: And, in fact, you 14 gave evidence with respect to complaints that your office 15 received, in general. When you got a lengthy complaint, 16 Dr. Young, that it -- often you weren't able to go 17 through those lengthy complaints line by line, correct? 18 DR. JAMES YOUNG: No, what I said -- I 19 didn't say that I couldn't go through them line by line. 20 I said it was our custom not to reply to those complaints 21 line by line. 22 MS. CAROLYN SILVER: Well, I'm just 23 looking at your evidence, sir, that is from November 24 30th, 2007 at page 165 of the transcript and I want to be 25 fair to you, Dr. Young, you say -- you said:
1991 "People write letters about the deaths, 2 particularly suicides, and they will 3 have a fifty (50) page letter and we 4 don't. We generally don't go through 5 line by line because we couldn't devote 6 the resources." 7 DR. JAMES YOUNG: Yes, and what I mean is 8 we don't go through answering line by line because we 9 don't have the resources and it -- I went on to talk 10 about the fact that -- that it creates pen pals. 11 MS. CAROLYN SILVER: Correct. 12 DR. JAMES YOUNG: That what happens is 13 that we -- we answer the letter, then we get another 14 letter, then we get another letter, then we get another 15 letter, and it never ends, the letters, because our 16 experience is that it -- when you reply in this way every 17 word gets analysed to such a degree that you can't stop 18 the -- the flow. 19 MS. CAROLYN SILVER: Okay, so usually 20 your office practice, you're saying, is to go through a 21 complaint line by line? 22 DR. JAMES YOUNG: It's to read through 23 the complaint very carefully as it exists and -- and to 24 try to address the issues, but not to addre -- to address 25 it in a more general way, rather than a specific line one
2001 (1) says this, here is our answer. 2 MS. CAROLYN SILVER: And -- 3 DR. JAMES YOUNG: That kind of reply just 4 -- we have found with time just is not terribly 5 successful. 6 MS. CAROLYN SILVER: And when you say 7 it's your practice to read through the complaint 8 carefully, that -- that may include omitting some parts 9 that you didn't think were relevant to the complaint. 10 DR. JAMES YOUNG: Well, that would be my 11 -- if I'm aware of a part -- I'm only speaking for 12 myself. But if I'm aware of a part of the complaint, not 13 only is it not relevant but ought not to be considered by 14 me, that I don't read it. 15 I -- both because I don't think it's 16 correct to read it but secondly, because it's -- I don't 17 have time. 18 19 (BRIEF PAUSE) 20 21 MS. CAROLYN SILVER: And with respect to 22 the Gagnon complaint, Dr. Young, I think you agreed 23 before in your testimony that you didn't respond 24 specifically to each of the multiple concerns set out by 25 Mr. Gagnon. Fair enough?
2011 DR. JAMES YOUNG: Fair enough. 2 MS. CAROLYN SILVER: Okay. And you said 3 that that would be in accordance with your usual practice 4 of a more general response, correct? 5 DR. JAMES YOUNG: Yes. 6 MS. CAROLYN SILVER: And he listed, I 7 think we looked at them, more than a dozen (12) specific 8 concerns, correct? 9 DR. JAMES YOUNG: Yes. 10 MS. CAROLYN SILVER: And your response, I 11 think you've agreed, was more general, correct? 12 DR. JAMES YOUNG: Yes. 13 14 (BRIEF PAUSE) 15 16 MS. CAROLYN SILVER: And you -- you've 17 spoken several times about what influenced you in 2001 18 when you were considering whether to conduct a review, 19 correct? 20 You talked about -- just to put it in 21 context, I think you said there were two (2) things that 22 were influencing you at that time when you were 23 considering the review: the Sharon lawsuit and the 24 CPSO's investigation, correct? 25 DR. JAMES YOUNG: Yes.
2021 MS. CAROLYN SILVER: Okay. And I think 2 you said -- 3 DR. JAMES YOUNG: Well, no, I -- I mean, 4 no, because it wasn't -- the review wasn't what was 5 driving things. The question in my mind was Charles 6 doing cases. The review was the -- was the agreement as 7 a method for Charles to get back doing work. 8 So it wasn't being driven by a review. It 9 was being driven by what was on my mind and what I was 10 thinking about is, is Charles going to continue to doing 11 cases -- 12 MS. CAROLYN SILVER: But I -- 13 DR. JAMES YOUNG: -- and my answer is in 14 relation to that. 15 MS. CAROLYN SILVER: I thought your 16 evidence, Dr. Young, was that you were waiting for two 17 (2) things to gain more information: one, the Sharon 18 lawsuit, and two -- 19 DR. JAMES YOUNG: Oh -- 20 MS. CAROLYN SILVER: -- the College 21 investigation. 22 DR. JAMES YOUNG: -- in terms of him 23 resuming cases and me cancelling the -- I'm sorry -- 24 MS. CAROLYN SILVER: In terms -- 25 DR. JAMES YOUNG: -- I thought this was
2031 in relation to why I -- why he stopped doing the cases. 2 MS. CAROLYN SILVER: No, this was in 3 terms of how you were going to move forward. You were 4 considering -- you were waiting for two (2) things: one 5 -- 6 DR. JAMES YOUNG: Yes. 7 MS. CAROLYN SILVER: -- the Sharon 8 lawsuit and two, the College investigation, correct? 9 DR. JAMES YOUNG: Yes, I'm sorry, you're 10 right. Yes. 11 MS. CAROLYN SILVER: Okay. And you said 12 you were hoping to gain additional information from the 13 College investigation, correct? 14 DR. JAMES YOUNG: Yes. 15 MS. CAROLYN SILVER: Because at that time 16 the College was proceeding with its investigation of that 17 complaint, correct? 18 DR. JAMES YOUNG: Well, of that and 19 others. 20 MS. CAROLYN SILVER: Right. 21 22 (BRIEF PAUSE) 23 24 MS. CAROLYN SILVER: And I think this 25 morning you said that you were waiting because you were
2041 hoping that review might help you -- might help inform 2 your decision about how to move forward. Fair enough? 3 DR. JAMES YOUNG: It would provide 4 additional information, that's right. 5 MS. CAROLYN SILVER: You said it was 6 going to give you important information for the purposes 7 of how to -- how to proceed? 8 DR. JAMES YOUNG: Mm-hm. 9 MS. CAROLYN SILVER: Okay. And the CPSO, 10 or the College, ultimately hired independent reviewers to 11 look at Dr. Smith's work in the Gagnon case, correct? 12 DR. JAMES YOUNG: And -- and the others. 13 Yes, that's right. 14 MS. CAROLYN SILVER: Okay. And just with 15 respect to the Gagnon complaint, I think you agreed with 16 Mr. Sandler that those experts addressed more 17 specifically the concerns raised by Mr. Gagnon, correct? 18 DR. JAMES YOUNG: Yes. 19 MS. CAROLYN SILVER: And you agreed with 20 Mr. Sandler's suggestion that in the light of day, and 21 after reviewing the College report, your office could 22 have done a better job responding to Mr. Gagnon's 23 complaint, correct? 24 DR. JAMES YOUNG: Yes. 25 MS. CAROLYN SILVER: And you'd agree,
2051 then, in the end when the College took jurisdiction it 2 actually did a better job with respect to this particular 3 complaint. Fair enough? 4 DR. JAMES YOUNG: In this particular 5 complaint, yes they did. 6 7 (BRIEF PAUSE) 8 9 MS. CAROLYN SILVER: I just want to turn 10 last, Dr. Young, to your involvement with the College 11 when it ultimately took jurisdiction in the three (3) 12 complaints in the Amber, Nicholas, and Jenna cases. 13 DR. JAMES YOUNG: Okay. 14 15 (BRIEF PAUSE) 16 17 MS. CAROLYN SILVER: And I want to go 18 back to the letter that you've looked at several times of 19 April 10th, 2002, that you wrote to the College 20 investigator. And that's PFP144922. 21 COMMISSIONER STEPHEN GOUDGE: Is that in 22 one of our volumes, Ms. Silver? 23 MS. CAROLYN SILVER: Yes, I'm sorry. 24 It's Volume IV, Tab 30. 25 COMMISSIONER STEPHEN GOUDGE: Thank you.
2061 (BRIEF PAUSE) 2 3 CONTINUED BY MS. CAROLYN SILVER: 4 MS. CAROLYN SILVER: And that was the 5 letter that had been drafted by Dr. Smith's legal 6 counsel, correct? 7 DR. JAMES YOUNG: Yes. 8 MS. CAROLYN SILVER: This was your letter 9 that I'm referring to you, but you agree that you 10 essentially adopted the letter that -- that coun -- that 11 legal counsel for Dr. Smith had drafted, fair enough? 12 DR. JAMES YOUNG: Yes. 13 MS. CAROLYN SILVER: And you 14 participated, to some extent at least, in the College's 15 investigation of those three (3) complaints into Dr. 16 Smith in those cases by sending this letter to the 17 College, correct? 18 DR. JAMES YOUNG: Yeah, in the strictest 19 of sense, yes. Yeah. 20 MS. CAROLYN SILVER: And you talked about 21 the specifics -- or some specifics about each of those 22 cases, correct? 23 Well, really you deal with two (2) of the 24 cases and third you say you don't want to comment on, 25 fair enough?
2071 DR. JAMES YOUNG: Yes, and I -- and 2 virtually all of the comments about the Gagnon case, 3 about Mr. Gagnon, are direct lifts from earlier 4 correspondence I sent him, which would be in possession 5 of the College. 6 MS. CAROLYN SILVER: Okay. I'm just 7 suggesting to you that you at least commented on the 8 merits of Dr. Smith's involver -- in the Amber case and 9 in the Gagnon case. 10 Fair enough? 11 DR. JAMES YOUNG: Well, the merits in the 12 broader sense of his involvement, that he was acting 13 under coroner's warrant, et cetera, yes. 14 MS. CAROLYN SILVER: Well, you also 15 talked in your letter about the conclusions being within 16 the range of reasonable expectations, correct? 17 DR. JAMES YOUNG: Yes, which was my 18 belief at the time, that's right. 19 MS. CAROLYN SILVER: I -- I -- 20 DR. JAMES YOUNG: Yeah. 21 MS. CAROLYN SILVER: -- don't disagree 22 with that, but I'm just suggesting to you that that was 23 dealing with the merits of the case, fair enough? 24 DR. JAMES YOUNG: Okay, sure. 25 MS. CAROLYN SILVER: Okay. And I suggest
2081 to you that that letter was meant, at least to some 2 extent, to lend your support to Dr. Smith, correct? 3 DR. JAMES YOUNG: It was -- it was an 4 attempt to be -- to be fair to Dr. Smith. You know, he - 5 - if this is going to go ahead, this provides some basic 6 knowledge of what -- what was done. 7 I'm -- I don't know that I'd describe it 8 as support so much as it -- he -- you know, anybody going 9 into something like this, there has to be a presumption 10 at this point in the Hearing of -- of fairness. 11 And this is background information as to 12 what he's done and how he's done it for the College to 13 know. That's -- I mean, it's not a letter of support in 14 the sense that it -- you know, you would normally support 15 someone in a hearing. 16 It's providing information and -- and it's 17 -- it's done in fairness to him. 18 MS. CAROLYN SILVER: Well, it was at 19 least meant to assist him in answering the complaint by 20 the College, correct? The complaint that the College was 21 reviewing, fair enough? 22 DR. JAMES YOUNG: Well, it put some 23 context into -- into the cases, sure. 24 MS. CAROLYN SILVER: And I suggest to you 25 that it wasn't only providing information or context, Dr.
2091 Young. And I want to look at the end of the letter. On 2 page 3, where you say: 3 "I trust the College will, in the 4 course of its investigation of Dr. 5 Smith, be cautious that it is not used 6 to discourage expert participation in 7 the work of the coroner by encouraging 8 parties dissatisfied with the opinions 9 of coroner's experts to make complaints 10 of professional misconduct. There are 11 other far more appropriate forums for 12 challenging the substance or 13 methodology of an opinion." 14 You'd agree with me that in that respect 15 you weren't providing any background information or 16 context about the specific complaints, fair enough? 17 DR. JAMES YOUNG: Well, I wasn't really 18 dealing with Dr. Smith here. I was dealing my concern, 19 which, in fact, has turned out to be absolutely true. 20 That has become a problem now. That -- that actually has 21 occurred. The very thing I was saying to the College 22 might happen has happened. 23 MS. CAROLYN SILVER: Well, -- 24 DR. JAMES YOUNG: We've had other people 25 who -- who -- complaints lodged at the College over the -
2101 - over other people's views. 2 MS. CAROLYN SILVER: Well, I'm suggesting 3 to you that when you told the College that it should be 4 cautious and that is should try not to discourage expert 5 participation in the work of the coroner, I was sug -- 6 I'm suggesting that you were, in a sense, saying that the 7 College shouldn't be too harsh in its dealings with Dr. 8 Smith? 9 DR. JAMES YOUNG: No. No, that's not 10 what I'm saying at all. I'm saying that -- the same 11 thing that I've been saying to the College from the 12 beginning, that I have concerns that this is going to -- 13 these kinds of cases are going to cause me problems with 14 -- with carrying on and finding experts. 15 And -- and what they decided to do and 16 what the appropriate punishment -- I wouldn't presume to 17 tell the College once they've judged it. I'm just saying 18 to them, this is a precedent and it -- it -- you know, it 19 -- it's -- it has the potential to cause problems. 20 And -- and it's exactly, as far as I'm 21 concerned, what -- it's still a problem and an issue that 22 hasn't been solved, because it -- it is a potential 23 problem. 24 MS. CAROLYN SILVER: But aren't you 25 telling the College, In doing these investigations,
2111 College, you should be cautious that you don't discourage 2 expert participation in coroner's work. So you were 3 trying to suggest to them that they should be careful in 4 this investigation. 5 Isn't that fair? 6 DR. JAMES YOUNG: Well, in general this 7 whole -- was a new area, and I had been expressing this 8 exact same view, both verbally and in writing to them. 9 It -- this wasn't a new -- a new thing for me to say. 10 You know, beware that -- you know, these -- these cases 11 are going to cause us potentially some problems in the 12 system, nothing more. 13 I'm certainly not -- I wouldn't want to 14 infer that I'm trying to say to them that the punishment 15 if they -- what -- whatever they decide in the end, that 16 I'm trying to influence the punishment. I'm just simply 17 saying, this is a president; we're now investigating 18 these cases and that has implications to my system as 19 well. 20 MS. CAROLYN SILVER: And all I'm 21 suggesting to you that in -- in putting in that 22 paragraph, or in keeping in that paragraph, the 23 McCarthy's route, that was an attempt to at least 24 influence the manner in which the College generally dealt 25 with these types of complaints?
2121 DR. JAMES YOUNG: I just want them to be 2 cognisant of the concerns that I have, that's all. 3 MS. CAROLYN SILVER: Dr. Young, thank 4 you, those are my questions. 5 COMMISSIONER STEPHEN GOUDGE: Thanks. 6 Before you sit down, Ms. Silver, I just want to ask one 7 (1) or two (2) questions in looking forward, Dr. Young -- 8 DR. JAMES YOUNG: Okay. 9 COMMISSIONER STEPHEN GOUDGE: -- about 10 the mechanisms for dealing with complaints about 11 pathologists working under warrant. 12 The CPSO obviously has jurisdiction now. 13 What's your view as to whether there 14 should be in effect, dual jurisdiction? That is, should 15 the Office of the Chief Coroner also have a system in 16 place to deal with complaints lodged against pathologists 17 working under warrant? Or do you only need one (1), and 18 if so, which one (1)? 19 DR. JAMES YOUNG: I haven't given that a 20 great deal of thought. My -- my concern is -- it'll be 21 no surprise, Commissioner, for you to know that my 22 concern would be that there aren't too many, and there 23 isn't a lot of duplication, because what our experience 24 and what happens is people go from complaint mechanism to 25 complaint mechanism to complaint mechanism.
2131 And we deal literally these days with 2 complaints in -- into the Coroner's Office, a complaint 3 to the College, a complaint to the Ombudsman, a complaint 4 to the Minister, a complaint in the press, and it -- it's 5 literally can go on for extended periods of time. And -- 6 and at several points there's considerable jeopardy that 7 people are in in terms of their profession. 8 COMMISSIONER STEPHEN GOUDGE: I take it 9 from that, that your concern would be there should 10 probably be only one (1) complaint mechanism? 11 DR. JAMES YOUNG: Yeah, there does -- 12 multiple complaint mechanism, you know, sound wonderful 13 because you can say, Well that's a vigorous system and 14 it's fair. It -- it isn't if you're the professional 15 that is constantly battling this, and it's going on for 16 long periods, and it discourages people from doing the 17 work. 18 COMMISSIONER STEPHEN GOUDGE: If there 19 were to be one (1), which is your preference? 20 DR. JAMES YOUNG: I -- I would probably 21 actually see if there was a way of working with the 22 College and the -- and the Coroner's Office together in 23 blending. The Coroner's Office has certain levels of 24 expertise, and they certainly have an -- an interest in - 25 - jurisdictionally in it as well and decisions to make on
2141 the basis of it. They have the access to the people and 2 they can certainly help. 3 So if there was a way of blending the two 4 (2) of them together, I would -- 5 COMMISSIONER STEPHEN GOUDGE: By access 6 to the people I take it you mean access to experts that 7 could comment on whether the pathologists performed up to 8 a professional standard or not? 9 DR. JAMES YOUNG: Exactly. Exactly. 10 COMMISSIONER STEPHEN GOUDGE: Okay. How 11 would you blend them? 12 DR. JAMES YOUNG: I -- 13 COMMISSIONER STEPHEN GOUDGE: I mean, I 14 don't want to -- 15 DR. JAMES YOUNG: I'm already sitting 16 here thinking of this -- 17 COMMISSIONER STEPHEN GOUDGE: Yes, but 18 obviously I've got to think about this. 19 DR. JAMES YOUNG: What I think -- I -- I 20 mean the first thing I think about is whether or not you 21 can blend it, because -- 22 COMMISSIONER STEPHEN GOUDGE: Yes, I 23 mean, if you feel uncomfortable going down this roads, 24 say something. 25 DR. JAMES YOUNG: No. No, I'm going
2151 through sort of my thought processes originally. I mean, 2 I would look at it and say, Okay, is there any -- is 3 there any legal impediment to doing it? 4 To some extent they have overlapping 5 jurisdiction and -- and to give you an example of 6 blending something and using overlapping jurisdiction: at 7 Walkerton I had virtually the same jurisdiction as the 8 Commissioner did in -- in Walkerton. I chose not to 9 exercise mine with an inquest but rather to take special 10 standing at the hearing, to work with Justice O'Connor 11 more directly on the hearing and -- and combine the 12 assets of -- of his commission and my office to come up 13 with one (1) result rather then two (2). 14 And if you read through some of the 15 report, it's quite clear that he -- 16 COMMISSIONER STEPHEN GOUDGE: Right. 17 DR. JAMES YOUNG: -- acknowledges that -- 18 that role that we did together. I think if there weren't 19 legal impediments to doing that, that might be an 20 approach where the -- we -- we have traditionally 21 excellent relations with the College. 22 We provide names of physicians and for 23 further investigation as we go through. We meet with the 24 College on a regular basis. I mean, it's not a matter of 25 building a relationship. This whole discussion of who
2161 had jurisdiction was very collegial and very fairminded. 2 It was a -- you know there was differences of opinion, 3 and we accepted that. 4 That's -- we had to sort it out. So I 5 think it could be done. As long as there was no legal 6 impediment, we could combine the best of both and come up 7 with a system. 8 COMMISSIONER STEPHEN GOUDGE: Thanks. 9 Any questions arising out of that, Ms. Silver? 10 MS. CAROLYN SILVER: No, thank you. 11 COMMISSIONER STEPHEN GOUDGE: Thank you. 12 Mr. Gover...? 13 14 RE-CROSS-EXAMINATION BY MR. BRIAN GOVER: 15 MR. BRIAN GOVER: Doctor, don't let this 16 stack of books intimidate you. I have only a few 17 questions. I'm going to start with a reminder about a 18 question asked by Mr. Wardle pertaining to the nature of 19 the duties of the Director of the Ontario Pediatric 20 Forensic Pathology Unit. 21 And as I understood your evidence, you 22 said there was correspondence to the effect that as 23 Director of the unit, Dr. Smith had an administrative 24 role only. Do you recall giving that evidence, sir? 25 DR. JAMES YOUNG: Yeah, I think we were -
2171 - at that point we were trying to figure out where the -- 2 where that was put and then I don't think we ever found 3 what I was referring to in terms of a document. 4 MR. BRIAN GOVER: Right, and in fairness, 5 you weren't taken to a document. You testified, as well, 6 somewhere there was a document referring to the 7 Director's role as administrative. 8 And what I'm going to take you to, Dr. 9 Young, is found in Volume I at Tab 16 and I'll take you 10 to this document which is also PFP057354. 11 DR. JAMES YOUNG: This is Volume I in the 12 black -- 13 MR. BRIAN GOVER: This is Volume I and it 14 will be a black binder, Dr. Young. 15 COMMISSIONER STEPHEN GOUDGE: Tab what, 16 Mr. Gover? 17 MR. BRIAN GOVER: Tab 16. 18 COMMISSIONER STEPHEN GOUDGE: Thank you. 19 MR. BRIAN GOVER: And what you'll have 20 before you, Dr. Young, is a letter to you dated September 21 17, 1991 from Dr. Phillips, the Chief of Pathology. 22 DR. JAMES YOUNG: Right. 23 MR. BRIAN GOVER: And in particular, I'm 24 going to take you to the third paragraph which reads as 25 follows:
2181 "However, you will note that section 4C 2 was added. The purpose of this 3 addition is to clarify lines of 4 authority and to underscore the fact 5 that the individual pathologists remain 6 responsible to the coroner and not a 7 director of this unit for their work." 8 And you've had a chance to review that 9 with me, Dr. Young? 10 DR. JAMES YOUNG: Yes. 11 MR. BRIAN GOVER: And does that assist 12 you now in recalling whether there was, in fact, a 13 document to the effect that you've described? 14 DR. JAMES YOUNG: That's the document I 15 was thinking of and, in fact, it's the opposite to saying 16 it's administrative. It says it isn't supervisory, so 17 the implication -- 18 COMMISSIONER STEPHEN GOUDGE: What you 19 would call quality control or quality assurance. 20 DR. JAMES YOUNG: Exactly. That's the 21 document I was referring to, and that's what I was trying 22 to think of. The word "administrative" doesn't appear in 23 it, but it's the -- it -- it implies the administrative; 24 that's -- that's what I was trying to remember. 25
2191 CONTINUED BY MR. BRIAN GOVER: 2 MR. BRIAN GOVER: Right. And, Dr. Young, 3 can you think of any other document to that effect? 4 DR. JAMES YOUNG: Well, I think somebody 5 put something else to me, and I can't remember whether it 6 was -- well, it's a signed agreement, but there was 7 something -- it seems to me there was something else, but 8 it -- it goes back to mon -- or -- 9 COMMISSIONER STEPHEN GOUDGE: It goes 10 back to the first day your -- 11 DR. JAMES YOUNG: -- four (4) days -- 12 three (3)-- well, almost four (4) days ago. 13 COMMISSIONER STEPHEN GOUDGE: The second 14 day because I read it last night and -- 15 DR. JAMES YOUNG: Yeah. 16 COMMISSIONER STEPHEN GOUDGE: -- 17 Commission Counsel actually refers to this letter and 18 there is a sequence. 19 MR. BRIAN GOVER: Yes. 20 COMMISSIONER STEPHEN GOUDGE: Yeah. 21 22 CONTINUED BY MR. BRIAN GOVER: 23 MR. BRIAN GOVER: Yes, so three (3) days 24 and sixteen (16) years. 25 DR. JAMES YOUNG: Yeah, that's right.
2201 MR. BRIAN GOVER: And with that, Dr. 2 Young, thank you very much. 3 COMMISSIONER STEPHEN GOUDGE: Thanks, Mr. 4 Gover. 5 Mr. Sandler...? 6 7 RE-DIRECT-EXAMINATION BY MR. MARK SANDLER: 8 MR. MARK SANDLER: Dr. Young, you were 9 asked some questions about the review mechanisms that 10 were discussed and may exist arising out of the 11 correspondence involving the Ombudsman and -- and it's 12 probably my failing, but I'm not entirely clear on this, 13 so if I can take you to the Nicholas overview report and 14 let's see if together we can figure out what mechanisms 15 were talked about and what mechanisms truly do exist. 16 DR. JAMES YOUNG: Okay. 17 MR. MARK SANDLER: And -- and this is in 18 the overview reports, Volume II, Tab 12. 19 20 (BRIEF PAUSE) 21 22 MR. MARK SANDLER: And if you'd go with 23 me to page 67, please. 24 25 (BRIEF PAUSE)
2211 MR. MARK SANDLER: Because there are a 2 variety of mechanisms that are discussed, because Mr. 3 Gagnon on behalf of his family sought redress through a 4 number of avenues, you'll recall? 5 DR. JAMES YOUNG: Yes. 6 MR. MARK SANDLER: So we see at paragraph 7 188 that in March of 2000 Mr. Gagnon filed a complaint 8 with the Solicitor General regarding Dr. Cairns' conduct 9 in the investigation into Nicholas' death. 10 And we see on the following page, page 68, 11 that -- paragraph 190 -- on April 13th, 2000 the 12 Solicitor General replied to Mr. Gagnon's letters. 13 And -- and apparently you had indicated to 14 the Ombudsman that you prepared the reply on behalf of 15 the Solicitor General. Is that right? 16 DR. JAMES YOUNG: That's right. 17 MR. MARK SANDLER: And just so that I 18 understand it, so insofar as a complaint was made by Mr. 19 Gagnon about the conduct of the Deputy Chief Coroner, he 20 went to the Solicitor General. 21 And was there a formal mechanism in place 22 to go to the Solicitor General in relation to the Chief 23 Coroner or Deputy Chief Coroner? Or was that simply Mr. 24 Gagnon's initiative? 25 DR. JAMES YOUNG: That was Mr. Gagnon's
2221 initiative. 2 MR. MARK SANDLER: All right. So -- so 3 that the Commissioner can understand it, back then if 4 someone had a complaint about the Chief Coroner or the 5 Deputy Chief Coroner, was there a mechanism in place for 6 redress? 7 DR. JAMES YOUNG: Not -- not a formal 8 mechanism, no. 9 MR. MARK SANDLER: All right. And -- and 10 do you know whether or not, since Mr. Gagnon brought that 11 complaint in 2002, there has been created a formal 12 mechanism to address a complaint that's directed about -- 13 and I'm confining myself right now to the Chief Coroner 14 or the Deputy Chief Coroner? 15 DR. JAMES YOUNG: Yes. 16 MR. MARK SANDLER: And what -- what would 17 that formal mechanism be? 18 DR. JAMES YOUNG: The formal mechanism 19 then that was created was created as a result of the -- 20 this investigation and the Ombudsman's report. 21 And as a result of that, we agreed within 22 the Ministry then that the -- if a complaint came in 23 about a senior management of the -- member of -- the 24 Deputy Chief Coroner or the Chief Coroner, the -- the 25 complaint would go directly to the Deputy Minister's
2231 Office. 2 And it would be investigated on behalf of 3 the Minister by the -- by the Deputy Minister and -- and 4 dealt with in that manner and -- and investigated 5 independent of the Office. 6 MR. MARK SANDLER: All right. Because -- 7 and I take it -- it's implicit in your answer, but I take 8 it that one of the concerns that could be expressed in 9 connection with the informal mechanism that existed back 10 in April of 2000 -- or at least the mechanism that Mr. 11 Gagnon employed by going to the Deputy -- or sorry the 12 Solicitor General back in April of 2000 -- is first that 13 there wasn't a formal mechanism in place. 14 So -- so there's -- there's nothing that 15 documents the nature of the process. 16 And second of all we see that you're 17 responding on behalf of the Solicitor General to the 18 complaint. So if you're trying to build in a process 19 that appears to be independent of the Chief Coroner's 20 Office that sure doesn't do it, am I right? 21 DR. JAMES YOUNG: I agree. 22 MR. MARK SANDLER: Okay. And do you know 23 -- and -- and I -- we can further investigate this as 24 well. 25 Do you know whether there's something that
2241 documents the nature of that formal process that you've 2 described now exists when a complaint is made about the 3 Chief Coroner or Deputy Chief Coroner? 4 DR. JAMES YOUNG: Documented in what -- 5 in what sense -- 6 MR. MARK SANDLER: In other words, will - 7 - will we be able to find something within the Chief 8 Coroner's Office that actually sets out that formal 9 process, that now exists, to address complaints against 10 the Chief Coroner or Deputy Chief Coroner? 11 DR. JAMES YOUNG: It would have been 12 contained in the -- the reply that the Ministry 13 ultimately sent to the Ombudsman. I can remember us 14 working out the mechanism and -- and replying to the 15 Ombudsman's report, exactly what was sent. 16 It would be probably -- I think the deputy 17 at the time was Virginia West, so it's likely a document 18 that was sent from Virginia West back to the Ombudsman 19 that would -- would document that. 20 But I'm -- I'm -- that would be the place 21 I would look, anyway, at this point. 22 MR. MARK SANDLER: Okay. Let's just go - 23 - go on, if we may, just in -- in the correspondence with 24 the Ombudsman, again, to -- because what I want to do is 25 clarify what mechanisms did or do exist --
2251 DR. JAMES YOUNG: Mm-hm. 2 MR. MARK SANDLER: -- in relation to 3 complaints against the Chief Coroner and Deputy Chief 4 Coroner -- which we've already talked about -- in 5 relation to coroners, and in relation to pathologists 6 acting as agents for coroners. 7 So if you'd look with me at page 69 of the 8 same overview report, we see that in June of 2000 -- I'm 9 at paragraph 192 -- Mr. Gagnon wrote to the Ombudsman 10 regarding the Chief Coroner's Office investigation into 11 Nicholas' death. 12 And he set out certain requests, and I'm 13 interested in the ones are -- that are at the top of the 14 following page, page 70. 15 He requested a thorough investigation of 16 the complaint process in the Chief Coroner's Office and 17 the establishment of a nonpartisan forum for appeals of 18 summarily dismissed complaints against the Coroner's 19 Office. 20 So -- so he raised the issue squarely as 21 to the adequacy of existing complaints mechanism. Am I 22 right? 23 DR. JAMES YOUNG: Yes, this -- this was 24 the period just after the Coroner's Council has been -- 25 been cancelled.
2261 MR. MARK SANDLER: Right. Right. And 2 then if you skip forward -- and I -- and I know that you 3 responded in part to -- to the Ombudsman by -- by 4 providing the Ombudsman with similar material that had 5 been provided in responding to Mr. Gagnon's initial 6 complaint. 7 But -- but I -- I just want to take you to 8 the dialogue that takes place over the mechanisms and not 9 about the substance of Mr. -- 10 DR. JAMES YOUNG: Right. 11 MR. MARK SANDLER: -- Gagnon's complaint. 12 DR. JAMES YOUNG: Right. 13 MR. MARK SANDLER: So if you go to page 14 72 -- 15 DR. JAMES YOUNG: Okay. 16 MR. MARK SANDLER: -- we see that at 17 paragraph 198 on May the 31st of 2001 you write to the 18 Executive Director of the Ombudsman's office, further to 19 an earlier meeting, and you say that it was -- it's your 20 intention to complete certain undertakings. 21 And -- and I'm interested in just Item E 22 on the following page. And Item E says: 23 "Undertake through the Solicitor 24 General an examination of the 25 feasibility of establishing an
2271 independent complaint handling 2 mechanism separate from the OCCO and 3 report to the Ombudsman in nine (9) 4 month's time." 5 Right? 6 DR. JAMES YOUNG: Yes. 7 MR. MARK SANDLER: You see that there. 8 And then if you skip along to the page 74. And I'll just 9 put what we have in front of you and then ask you a 10 question about it. 11 Paragraph 201, this is the Ombudsman 12 reporting back as part of his investigative findings. 13 And he addressed the fact -- and again, I won't deal with 14 what he says about the substance of the -- of the 15 complaint, just the mechanism. 16 He also addressed the fact that there was 17 no independent review of Mr. Gagnon's complaint against 18 the OCCO. 19 He noted that the Solicitor General should 20 consider establishing an independent complaint handling 21 body with special expertise to review complaints and 22 ensure the accountability of the coroner system. 23 And then you'll see that he then wrote to 24 Mr. Gagnon in April of 2002, and he states at the 25 following page, page 75:
2281 "The Ministry has agreed to review the 2 feasability of establishing an 3 independent complaint handling 4 mechanism separate from the OCC. 5 On March, 2002, the Deputy Solicitor 6 General outlined an approach that may 7 provide an appropriate review mechanism 8 and address my concern with respect to 9 this issue. 10 The Deputy Solicitor General explained 11 that following her review of available 12 options she had concluded that 13 complaints against a coroner will be 14 dealt with by the Chief Coroner, 15 pursuant to his responsibilities under 16 the Coroners Act. 17 In keeping with her accountability and 18 legal authority as Deputy Solicitor 19 General, she will review complaints 20 concerning the conduct of a Deputy 21 Chief Coroner or the Chief Coroner. 22 Depending on the nature of the 23 complaint, she will determine the need 24 to retain and consult independent 25 experts for assistance in determining a
2291 response to the complaint. 2 I will be monitoring the use of this 3 process in future matters to determine 4 its efficacy." 5 So just stopping there for a moment, it 6 would appear at least at that point in the discussion 7 that -- that what the Ombudsman was reflecting was that 8 the Minister was going to establish the process that 9 you've already described for dealing with complaints 10 against the Chief Coroner and Deputy Chief Coroner. 11 Am I right so far? 12 DR. JAMES YOUNG: Yes. 13 MR. MARK SANDLER: But that insofar as 14 the complaint related to the coroner, it was 15 contemplated, at least at that point in time, that those 16 complaints would continue to be dealt with by the Chief 17 Coroner. 18 Do I have that right so far? 19 DR. JAMES YOUNG: That's right. 20 MR. MARK SANDLER: Now, you were asked 21 some questions about existing mechanisms. And so -- so 22 we looked through the -- the database, because up until 23 this point in time in -- in the materials that I've shown 24 you, apart from the mechanism that has been created to 25 address complaints against the Chief Coroner or Deputy
2301 Chief Coroner, we don't see any creation of new formal 2 mechanisms to address complaints either against coroners 3 or against pathologists acting in a coronial role, right? 4 DR. JAMES YOUNG: Mm-hm. 5 MR. MARK SANDLER: So -- so if I can take 6 you to -- to PFP -- because I had taken from your 7 evidence that you believed that there is an additional 8 mechanism now in place, and I want to ask you if -- if 9 I've found the right one. 10 DR. JAMES YOUNG: Okay. 11 MR. MARK SANDLER: So if we look at 12 PFP032462. This is a memorandum from your successor, Dr. 13 McLellan: 14 "To all coroners re. the Chief 15 Coroner's Review Process." 16 COMMISSIONER STEPHEN GOUDGE: Is that in 17 the manual? 18 MR. MARK SANDLER: I'll ask the all- 19 knowing -- 20 COMMISSIONER STEPHEN GOUDGE: That's -- 21 MR. MARK SANDLER: -- and all-wise 22 counsel. 23 COMMISSIONER STEPHEN GOUDGE: Or do you 24 know, Mr. Sandler? 25 MR. MARK SANDLER: He's given me a
2311 definitive "maybe." 2 COMMISSIONER STEPHEN GOUDGE: Yeah, okay. 3 MR. MARK SANDLER: We'll find it for you, 4 Commissioner. I believe it is in the manual because the 5 first line says, "Insert the memo into the manual," so -- 6 so we probably do have it in the manual. 7 DR. JAMES YOUNG: These are doctors so it 8 may not have been done. 9 MR. MARK SANDLER: But -- 10 COMMISSIONER STEPHEN GOUDGE: Why -- why 11 don't you carry on. 12 MR. MARK SANDLER: Why don't we use the 13 screen for now? 14 COMMISSIONER STEPHEN GOUDGE: We will 15 find it at some point. I -- 16 MR. MARK SANDLER: We will. 17 COMMISSIONER STEPHEN GOUDGE: -- I just 18 have the manual open. 19 MR. MARK SANDLER: Right. 20 21 CONTINUED BY MR. MARK SANDLER: 22 MR. MARK SANDLER: So -- so what it 23 reflects, and I'm just looking at the first full 24 paragraph, it says, second line: 25 "Albeit an uncommon situation, serious
2321 concerns regarding the work or conduct 2 of a coroner have arisen in the past. 3 A Chief Coroner's review process has 4 been established in order to ensure 5 that any future serious concerns will 6 be fully and fairly investigated 7 through a process that is transparent 8 to all involved." 9 And then skipping down, it says: 10 "The process includes rules and 11 guidelines for investigative panels 12 which will be overseen by a steering 13 committee. The rules and guidelines 14 for investigative panels are also 15 included with this memorandum." 16 Is that the mechanism that you were making 17 reference to, that you are familiar with that has been 18 created to address coroner's issues? 19 DR. JAMES YOUNG: Yes, I can't say to you 20 I'm familiar with it. I know they were working on it; I 21 knew that they -- but this is well after my time and I -- 22 MR. MARK SANDLER: Fair enough. 23 DR. JAMES YOUNG: -- I've actually never 24 seen the memo till today but I -- but I was aware that 25 they were working on it. I was aware that they had come
2331 up with a mechanism, so this would be it as far as I'm 2 concerned. 3 MR. MARK SANDLER: And I can tell you 4 just in light of that answer, Commissioner, I'm not going 5 to take Dr. Young through what we have, but we do have in 6 the database the rules and guidelines for the 7 investigative panels that exist. 8 COMMISSIONER STEPHEN GOUDGE: Fair 9 enough. It's after his time, it's probably -- 10 MR. MARK SANDLER: Yes. And I can just 11 indicate -- 12 COMMISSIONER STEPHEN GOUDGE: -- not very 13 -- 14 MR. MARK SANDLER: -- to all parties that 15 those are to be found at PFP32 -- sorry, 032464, 032468 16 and 032463. Just so that we have those. 17 And -- and as I put all of that together, 18 and subject to information to the contrary from the Chief 19 Coroner's -- from the current Chief Coroner's Office, it 20 would appear that -- that no formal mechanism came out of 21 either the Ombudsman's investigation, Mr. Gagnon's 22 complaints or anything that we've seen to date, to 23 address pathologists, other than the mechanism that we 24 now know exists where the complaint goes to the College. 25 Does that appear to be an accurate
2341 description -- 2 DR. JAMES YOUNG: Yeah -- 3 MR. MARK SANDLER: -- of what we've seen? 4 DR. JAMES YOUNG: -- the -- the 5 Ombudsman's investigation eventually -- all of this part 6 of it centred on investigations about coroners. 7 And the -- at the same time as, you know, 8 when the -- when things went forward to the College. I 9 think that's a fair appraisal; it went through -- forward 10 to the College and that's current. That's all I'm aware 11 of that's currently in place. I'm not aware of whether 12 anything else has been built since that time. 13 But at the time when I left, if there had 14 been a complaint about the pathologist, I would have 15 expected it to go to the College, that's -- that's 16 correct. 17 MR. MARK SANDLER: All right. And when 18 we're dealing with existing mechanisms -- 19 COMMISSIONER STEPHEN GOUDGE: Just -- can 20 I stop you there? 21 At the time you left, Dr. Young, suppose a 22 complaint had come in to you about a pathologist having 23 allegedly done something that was less than satisfactory. 24 Would you have handed that to the Chief Forensic 25 Pathologist --
2351 DR. JAMES YOUNG: Yes. 2 COMMISSIONER STEPHEN GOUDGE: -- or would 3 you simply have replied saying, Take this to the College 4 of Physicians and Surgeons or -- 5 DR. JAMES YOUNG: No, I -- I would have 6 given it to the Foren -- Chief Forensic Pathologist, I'm 7 sure. 8 As well, I think one (1) of the problems 9 in discussing all this is this is the only time it's ever 10 happened so -- 11 COMMISSIONER STEPHEN GOUDGE: Yes. 12 DR. JAMES YOUNG: -- so we're talking 13 about a -- 14 COMMISSIONER STEPHEN GOUDGE: I just 15 wondered if you sort of had any thought process that felt 16 comfortable to you about what you would have done in a 17 Nicholas -- 18 DR. JAMES YOUNG: My normal route of 19 anything like this would have been to give it to the 20 person who is the deputy in charge of that area and say-- 21 COMMISSIONER STEPHEN GOUDGE: Right. 22 DR. JAMES YOUNG: -- We -- we need to 23 investigate this. 24 COMMISSIONER STEPHEN GOUDGE: Okay. 25 DR. JAMES YOUNG: That undoubtedly would
2361 be my response, but that -- I'm presuming that with the 2 retroscope, because it never happened -- 3 COMMISSIONER STEPHEN GOUDGE: Right, 4 right, understood. 5 DR. JAMES YOUNG: -- so I -- this is the 6 only case we ever -- 7 COMMISSIONER STEPHEN GOUDGE: Only time. 8 DR. JAMES YOUNG: -- the only time we 9 ever had this particular case. 10 11 CONTINUED BY MR. MARK SANDLER: 12 MR. MARK SANDLER: And just while we're 13 on the -- the topic of available forum, if we could go 14 back to PFP144922, which you'll find at Volume IV, Tab 30 15 of your materials. And this is the letter that Ms. 16 Silver, just a few moments ago, was asking you some 17 questions about that was directed to the College. 18 And if I can take you just to the portion 19 that -- that she referred you to, right at the end of the 20 document, page 3. You -- in the second last paragraph, 21 Ms. Silver questioned you about -- about its contents. 22 And I just want to ask you about the last line where you 23 advise the College: 24 "There are other far more appropriate 25 forums for challenging the substance or
2371 methodology of an opinion." 2 So I want to understand it. From -- from 3 your perspective, what other far more appropriate forums 4 existed at that point in time for challenging the 5 substance or methodology of an opinion? 6 DR. JAMES YOUNG: Well, I mean, I guess 7 the problem I've got -- I did -- as we've already allude 8 -- I didn't write this. I adopted it. I couldn't tell 9 you what I was thinking at any point in -- of any line. 10 So, you know, I -- I sent it, I agree. I 11 didn't write it. I think -- you know, at that point in 12 time, we haven't got the -- you know, we haven't settled 13 the issue. The -- we're -- it -- it appears the 14 College is -- is starting to do it, but, you know, I 15 don't know. 16 COMMISSIONER STEPHEN GOUDGE: Do any 17 occur to you now? 18 DR. JAMES YOUNG: I have to -- I got to 19 put it all on the timelines and everything of -- 20 COMMISSIONER STEPHEN GOUDGE: Yes, that 21 may difficult. 22 DR. JAMES YOUNG: It's a -- you know, I'm 23 going back in time and trying to figure out what I'm 24 thinking at this point in time. 25 COMMISSIONER STEPHEN GOUDGE: Yes.
2381 DR. JAMES YOUNG: I'm not sure that I can 2 easily do it. 3 COMMISSIONER STEPHEN GOUDGE: Yes, we are 4 just looking for help, Dr. Young, as to what might be 5 appropriate -- 6 DR. JAMES YOUNG: Well, I -- I guess what 7 I'd be saying is -- you know, what -- as I said to you 8 before, I think -- I think, certainly, the area -- within 9 the Coroner's Office there is expertise, and it needs to 10 be used. 11 COMMISSIONER STEPHEN GOUDGE: Right. 12 DR. JAMES YOUNG: And they have a large 13 part to play in -- in doing this. They -- you know, they 14 -- they're most affected and they're doing the quality 15 control, and they have to give the product through to 16 whoever it has to be given. 17 I think, you know, we accept that the 18 College has a role now at this point, as well. So those 19 would be, I'm sure, what I -- you know, that would be 20 what would occur to me right now. 21 22 CONTINUED BY MR. MARK SANDLER: 23 MR. MARK SANDLER: All right. And -- and 24 the last question in that area, if I may, is -- is this, 25 that -- that what you made clear in your testimony is
2391 that even when the College assumed jurisdiction over -- 2 over this matter, in your view that did not oust the 3 Chief Coroner's jurisdiction to also address the same 4 kinds of issues with the pathologist acting within the 5 coronial system. 6 Am I right? 7 DR. JAMES YOUNG: Well, I have to. They 8 have to make a -- ultimately, at some point -- either 9 before, during, or at the same time -- make a decision 10 whether the pathologist is going to continue to do work 11 and what to do and whether there needs to be further 12 reviews, et cetera. So, no, it doesn't -- it doesn't 13 preclude. 14 I think in a ideal world what you want to 15 do is -- is minimize the number of times you do it, and 16 do it -- do it once and do it well and not be doing it 17 three (3) or four (4) different times. 18 And, you know, and that would be my plea 19 is that we do it -- if we're going to do it, do it well. 20 But do it once; don't do it over and over again. 21 MR. MARK SANDLER: But the question that 22 arises from that is that: Would you see the role of the 23 Chief Coroner, when the College had spoken on -- on the 24 issue, to meet with the affected pathologist with a view 25 to gauging, in your dialogue with the pathologist, how
2401 the College's decision impacts upon your decision-making 2 function, as to whether that pathologist will continue to 3 do work? 4 DR. JAMES YOUNG: Well, you would, 5 certainly. Depending on the College's ultimate -- what 6 the College decides, you're going to decide what it is -- 7 what action you're going to take. I mean, by the time 8 the College decision came out in this case, Dr. Smith 9 wasn't doing that type of case and never did go back to 10 doing that type of case, so... 11 MR. MARK SANDLER: Well -- 12 DR. JAMES YOUNG: I mean it -- it has -- 13 it had that -- it had that effect, but yes, I mean the 14 two (2) of them are lengthy and you're going to pay 15 attention to the result. 16 MR. MARK SANDLER: Okay, so would you see 17 as a valid role for the Chief Coroner, for example, after 18 the College delivered its -- its decisions in -- in those 19 three (3) cases, to make your independent evaluation 20 based upon the College's determination as to whether Dr. 21 Smith should continue to perform medicolegal autopsies, 22 which we know he was performing at that point in time, 23 albeit not suspicious or homicide cases? 24 DR. JAMES YOUNG: Well, that -- certainly 25 that thought went through my head as to whether or not
2411 this report precluded him from continuing to do those 2 cases. I thought about it having read the report that I 3 would -- but my decision was, for all the reasons we've 4 stated, not the least of which was the manpower issues, 5 and the fact that we had done some review and were not 6 concerned that he was -- that -- the -- the cases that 7 are being reviewed are very complicated and complex 8 cases. 9 These are very different cases that he was 10 doing, so our -- our feeling was that -- or my feeling 11 was that -- that it -- while I wasn't going to reinstate 12 him for the one (1) kind of case, I wasn't going to stop 13 him doing the others at that point in time. 14 MR. MARK SANDLER: I'm really just 15 asking, as a systemic -- from a systemic -- 16 DR. JAMES YOUNG: Yes, you would -- you 17 have an evaluation and you would consider it, absolutely. 18 MR. MARK SANDLER: And wouldn't part of 19 that systemic evaluation have to form part, and again, 20 without reflecting one what was or wasn't done by you 21 back in October of 2002, but shouldn't part of that 22 evaluation on your part include sitting down with the 23 pathologist discussing what it is that the College has 24 determined, seeing whether the pathologist, quote, "gets 25 it" in determining whether or not he's going to continue
2421 on and do the work? 2 DR. JAMES YOUNG: Probably in an ideal 3 world, yes, you would do that, yep. 4 MR. MARK SANDLER: Okay. Now, several 5 questioners asked you about the January 2000 review and 6 its scope and breadth, and I dealt with that at some 7 length with you and I -- I don't want to go over that 8 territory again, but -- but in response to several of the 9 questions from parties that followed, you indicated to 10 them that -- that you acknowledged that you didn't think 11 of instituting a broader review of cases in which Dr. 12 Smith had been involved, but you wanted the Commissioner 13 to -- to at least recognize or not overlook that nobody 14 else was asking for you to conduct the wider review of 15 Dr. Smith's cases or to -- or to have a public inquiry, 16 do you remember -- 17 DR. JAMES YOUNG: Mm-hm. 18 MR. MARK SANDLER: -- having that 19 discussion? 20 DR. JAMES YOUNG: Yeah. 21 MR. MARK SANDLER: And -- and you may 22 recall that when Mr. Campbell was asking you questions on 23 that score, I thought in fairness you should have 24 available to you a document that you didn't have at the 25 time and I just want to take you to that because I want
2431 to understand what -- what your evidence is in this 2 regard, and it's PFP115715. 3 And -- and you'll recall that -- and this 4 won't be in a binder, so -- so you -- 5 DR. JAMES YOUNG: This is the letter back 6 --this is the letter back from -- 7 MR. MARK SANDLER: Right. 8 DR. JAMES YOUNG: -- Mr. Lockyer that -- 9 after I sent him the letter, yes. 10 MR. MARK SANDLER: Right. And you 11 remember he -- he had -- he had volunteered AIDWYC's 12 assistance in the review. You had written back and said 13 that -- that the review only extends to two (2) cases and 14 -- and didn't take him up on the invitation. 15 DR. JAMES YOUNG: Mm-hm. 16 MR. MARK SANDLER: And then he wrote back 17 to you on April the 4th and said: 18 "I must say that I feel a thorough 19 review of Dr. Smith's past cases is 20 necessary and understood from media 21 reports that Dr. Smith considered such 22 a review appropriate." 23 Can't that be taken as a -- as a request 24 on the part of AIDWYC or Mr. Lockyer on his initiative 25 for a -- for the wide review of Dr. Smith's past cases?
2441 DR. JAMES YOUNG: No, I -- it's a reply - 2 - it could. I'm not suggesting it wou -- it couldn't, 3 but he's replying to me writing and saying, No, I'm not 4 doing the reply -- doing the review. 5 Mr. Lock -- the -- the very significant 6 sentence in that is the second sentence, that they have a 7 case under review and they'll get back to us on that; 8 that -- I mean that's -- that's the paragraph that -- 9 that I would have paid more attention to. 10 But I've dealt with Mr. Lockyer enough 11 over time that I'd have been -- if he's going to write me 12 back, the fact that he would express disappointment that 13 we weren't going ahead, I could -- I could have written 14 that myself because, you know, Mr. Lockyer, when he has a 15 point of view, is like a dog with a bone; he doesn't let 16 it go. 17 We would have meetings at the Centre of 18 Forensic Science on issues and we could discuss 19 something; have a nine (9) to one (1) vote and then two 20 (2) hours later, we were still dealing with Mr. Lockyer 21 saying, But I want this done or I want -- I don't agree 22 or whatever. He's a very persistent man. 23 So in my experience with Mr. Lockyer, this 24 is pretty mild. These -- this didn't surprise me or -- 25 or I didn't read it that way. He's expressing
2451 disappointment that it's not there. It's -- it's sure 2 not a request. 3 If Mr. Lockyer wanted a -- wanted a public 4 inquiry generally what he'd do is call a press conference 5 and talk about it. You know, he wasn't shy about letting 6 people know what he thought. So -- 7 MR. MARK SANDLER: But you see, the 8 reason I raise it is because you've made the point to the 9 Commissioner that -- that others have to be looked at as 10 well for their failure to -- 11 DR. JAMES YOUNG: Mm-hm. 12 MR. MARK SANDLER: -- to 13 DR. JAMES YOUNG: I -- I -- 14 MR. MARK SANDLER: -- suggest -- to 15 suggest -- excuse me for a moment -- 16 DR. JAMES YOUNG: Yeah. 17 MR. MARK SANDLER: -- to suggest that a 18 wider review of Dr. Smith's past cases should be held. 19 And surely, I mean, hearing everything that you've just 20 said about how you interpreted it and what you focussed 21 on and whether Mr. Lockyer showed the usual vehemence 22 that he might show in pressing for a particular position, 23 surely this can only be taken as -- as the expression of 24 a viewpoint on the part of a member of the Defence Bar 25 and AIDWYC, that a thorough review of Dr. Smith's past
2461 cases is necessary? 2 DR. JAMES YOUNG: I accept. I think I 3 said at the time I gave my evidence, I gave credit to Mr. 4 Lockyer; the one (1) exception was this particular -- 5 this particular -- I don't take it as a strong -- it's 6 not a lengthy letter asking for a review or detailing. I 7 -- I agree with you it could be written that way. 8 It didn't -- at the time, in fact, what I 9 -- what happened is that -- that the review that he 10 refers to in the second paragraph, eventually the name 11 was turned over and, in fact, that led to -- directly, to 12 this Inquiry here, because that's what led to the review 13 when everyone agreed that -- that the issue was there. 14 But I did not take this as a strong, you know, it was -- 15 it was a comment on what I had sent him was that the 16 review was -- was not going forward. 17 But, you know, it's the -- certainly the 18 strongest word I got from anyone. But that's it. This 19 is it. This is the only example I remember. 20 MR. MARK SANDLER: All right. And the 21 second point, just dealing with the breadth of the 22 review. 23 Do you accept -- I'll just put this to you 24 because it's implicit in some of the questions that were 25 asked in cross-examination and I think -- I think you
2471 should be asked the point directly, and that is that -- 2 that it has implicitly been suggested that -- that at the 3 very least you should share some responsibility in that 4 regard. Because the way in which the nature and scope of 5 the reviews that the Chief Coroner's Office were 6 directing were disseminated; at the very least left 7 significant confusion in the minds of others as to what 8 reviews were taking place, when they were taking place, 9 whether they were ongoing, whether they had been 10 cancelled or not. 11 So -- so could it not be said that to some 12 extent the failure of individuals to ask you for a wider 13 review may have reflected a failure on the Chief 14 Coroner's Office to adequately communicate the fact that 15 no such review was taking place? 16 DR. JAMES YOUNG: That's one (1) way of 17 looking at and certainly, that's -- I accept that there 18 was confusion around it. 19 I -- I think this whole issue of the 20 review really is something that came along much later and 21 -- and, you know, my own view of it is that at the time 22 we were doing what we were going to do. 23 We'd never dealt with a situation like 24 this before. We were -- we had taken action and stopped 25 him doing it.
2481 Our thinking was not around a detailed 2 review. As I've said before, there had never been such a 3 thing in forensic pathology anywhere that I'm aware of, 4 in the world. So I think there's been an enormous use of 5 the retroscope here, that everyone has positions -- it's 6 really easy now to view it like everybody, It's the 7 obvious thing is to do this review. That was not the 8 thinking then. 9 I agree, our communication was not 10 absolutely clear because we weren't trying to communicate 11 that we were going to do this kind of review. We weren't 12 intending to do -- or I wasn't intending to do this, so 13 you're right, there was confusion. 14 But my point in saying -- saying -- you 15 know, I'm not trying to blame everyone else. I'm trying 16 to say that you can't build a system that counts on one 17 part to -- you know, the first time we're faced with 18 this, we -- we made errors in the way we conducted 19 things. 20 But no one else was phoning us up and 21 saying, Boy, you're headed in all the wrong directions. 22 You're doing all the wrong things. We want this review 23 done the -- you know, I wasn't getting phone calls from 24 the Attorney General or the Crowns or the police or the - 25 - or anybody about this. And it led to people making
2491 assumptions. 2 But frankly I think the old discussion 3 about this kind of review, I think everybody -- a lot of 4 people have imported what happened once we know about the 5 case that got reviewed extensively. 6 They then pull back and say, Well we 7 wanted this before. And I -- if they did, they sure 8 didn't make it known to us. 9 MR. MARK SANDLER: Okay. And then I just 10 want to turn to the overview reports, Volume I. And I'm 11 only going to be a couple of minutes, Commissioner, and 12 I'll be done. 13 Volume I of the overview reports at Tab 7, 14 which is the Jenna -- 15 DR. JAMES YOUNG: Yes. 16 MR. MARK SANDLER: -- report. 17 DR. JAMES YOUNG: Whoops, I've -- 18 COMMISSIONER STEPHEN GOUDGE: White 19 volume. 20 MR. MARK SANDLER: The white volume of 21 overview reports, Volume I. 22 COMMISSIONER STEPHEN GOUDGE: It's a big, 23 white volume. 24 DR. JAMES YOUNG: Okay. 25 MR. MARK SANDLER: And if you could go to
2501 page 69, paragraph 118. And if we could just go up a 2 little bit. This section of the overview report is 3 headed up, "Part 7, Ms. Waudby's Request for a Public 4 Inquiry." 5 And we've just been talking about the 6 absence or presence of requests for a review. 7 DR. JAMES YOUNG: Mm-hm. 8 MR. MARK SANDLER: I want to ask you 9 about that second component, which is a public inquiry. 10 And that is that we see here that -- at paragraph 118 11 that Mr. Meneley pressed -- acting on Ms. Waudby's 12 behalf, pressed for a public inquiry into the matter. 13 14 On December the 15th, 1999, he wrote a 15 letter to the Honourable Michael Harris, Premier of 16 Ontario; the Honourable James Flaherty, Attorney General; 17 the Honourable David Tsoubouchi, Solicitor General and 18 Minister of Correctional Services; the Honourable John 19 Baird Minister of Community and Social Services; and Mr. 20 Gary Stewart, the MPP for Peterborough. 21 And he reflected that he acts for Ms. 22 Waudby respecting matters in the family court: 23 "She's the mother of three (3) 24 children. Jenna died in 1997. Her 25 death was declared by the coroner to be
2511 a homicide, and the cause of death was 2 determined to be blunt abdominal 3 trauma. 4 I'm reque -- writing to request that 5 the death of Jenna and the 6 investigation that followed her death 7 be reviewed by a commission conducting 8 an inquiry under the Public Inquiries 9 Act. 10 It is my opinion that Jenna's death and 11 the investigation that followed merit 12 review by a commission and inquiry, 13 because the circumstances of these 14 events affect the good Government of 15 Ontario, the conduct of the public 16 business of Ontario and the 17 administration of justice in an area of 18 public concern." 19 And then a detailed chronology is -- 20 follows, which I won't take you to. And then he outlines 21 the kinds of issues that a commission of inquiry could 22 review as being thrown up by this case. 23 And if you go to the next page, please. 24 And then we actually see that the Assistant Deputy 25 Attorney General, Criminal Law Division, writes back to
2521 Mr. Meneley. And if you go just one (1) more page. If 2 you keep going please. 3 And then you see at page 72, paragraph 4 121, the letter in response was copied to the various 5 politicians outlined. And on March 10th, 2000, a screen 6 capture from the Assistant Deputy Attorney General reads: 7 "Forwarded letter from the lawyer who's 8 acting on behalf of Ms. Waudby. Re: 9 matters in the family court in 10 Peterborough. Re. death of Jenna. 11 Lawyers requesting inquiry into Jenna's 12 death." 13 And that there's a subheading, "Assigned 14 To," following by the letters "CO," second subheading 15 entitled "RC," followed by the words "Dr. Young, PRS of 16 MN." 17 And we see that the Federal Justice of 18 Minister was also asked for a public inquiry in 2001. 19 Did the fact that -- that counsel, on 20 behalf of Ms. Waudby, was requesting a public inquiry 21 into the Jenna case come to your attention? 22 DR. JAMES YOUNG: No, I'm not aware of 23 it. It was -- I -- this is first I have any recollection 24 of this at all. 25 MR. MARK SANDLER: Would -- in the
2531 ordinary course, if -- if all of those people were -- 2 were requested, including your Minister, and -- and 3 references made in the screen saver from the Assistant 4 Deputy Attorney General to -- to you as -- as the party 5 it being assigned to, wouldn't this come to your 6 attention? 7 DR. JAMES YOUNG: Well, the reply went 8 back from the Attorney General, so what -- what happened 9 to it or how it was routed or what, I -- I can't tell 10 you. It -- it -- all I can tell you is I -- I have no 11 knowledge of it. 12 MR. MARK SANDLER: But just -- 13 DR. JAMES YOUNG: This is the -- 14 MR. MARK SANDLER: -- systemically -- 15 systemically, wouldn't one expect -- I just want to ask 16 as a matter of how the Government operated, wouldn't one 17 expect that if the nature of this complaint came in that 18 had to do with the death investigation conducted by the 19 Coroner's Office, giving rise to the need for a public 20 inquiry, that -- that it would be the Chief Coroner's 21 Office that would be asked to provide insight or 22 information to the political side in order to respond? 23 DR. JAMES YOUNG: I would have thought 24 so, but it -- I wouldn't have thought that the reply 25 would have come out of the Attorney General's Office.
2541 But I can't -- I can't tell you -- I can't tell you what 2 happened to it. 3 MR. MARK SANDLER: Okay. The last area 4 that I want to ask you about has to do with -- with some 5 answers that you gave to Ms. Silver right near the end of 6 your cross-examination. And this had to do with Mr. 7 Gagnon's complaint. 8 And we've already gone over the -- the 9 territory of how it was that -- that you didn't read -- 10 as I recall your evidence -- the -- the portions of the 11 complaint that -- that addressed the Amber matter, but 12 only read the portions of the complaint that had to do 13 with the Nicholas matter. 14 And again, I don't -- I don't need to go 15 over that territory with you again. But in -- in 16 response to Mr. Silver, you used the phrase that you were 17 separating out matters that ought not to be considered by 18 you as opposed to the matters that ought to be considered 19 by you. 20 And I want to understand what your 21 evidence is in that regard. Leaving aside the issue of 22 the extent to which you were made aware of the Amber 23 case, would you not agree that it would have been an 24 appropriate consideration on your part to evaluate a 25 complaint that includes as a component an allegation that
2551 a judge has made findings that -- that bear striking 2 similarity to the concerns that are being raised in this 3 case? 4 I mean, isn't that a valid matter that 5 ought to be considered by the Chief Coroner, leaving 6 aside whether you were positioned to have consider it in 7 this case? 8 DR. JAMES YOUNG: Well, with a 9 retroscope, I mean, any way I could have found out about 10 that, but I -- as a normal course, you know, in reading 11 through these kinds of letters that are not infrequent, 12 you know, if something wasn't relevant to what I had to 13 do, I didn't read through it. 14 You -- you know, this was very common, to 15 see very lengthy pieces and -- and with largely rel -- 16 lots of irrelevant information that wasn't -- and ought 17 not to be considered is part of it. 18 So if there's a way of doing that, yes. 19 But I -- you know, I -- I mean, the problem when you get 20 a -- when you get these long, long letters is -- is 21 sorting through them and figuring out what to do and how 22 to -- how to address them. 23 But I -- you know, I -- I told you why I 24 didn't read through it. Would that information have been 25 of use or would it be in the future to somebody? Yes.
2561 MR. MARK SANDLER: I'm just really asking 2 a different question. 3 DR. JAMES YOUNG: All right. 4 MR. MARK SANDLER: And I'm going to wrap 5 us this way. And that is, I -- I just want to understand 6 this. And I guess I'm asking it from -- from the 7 perspective that Mr. Gagnon, watching these proceedings, 8 might take. 9 And that is that would you agree that 10 there's a significant difference between someone who -- 11 who makes a complaint to the Chief Coroner and throws in 12 the kitchen sink -- including what they've read on the 13 internet or in a -- or in some triple hearsay, or what 14 have you -- as opposed to somebody who is saying, In 15 addition to the matter that causes me to bring the 16 complaint, I'm aware of a judicial decision that 17 addresses the same issues. 18 DR. JAMES YOUNG: But I didn't get that 19 far. I mean I probably would have if there wasn't the 20 heading in it, but I saw the heading and I stopped 21 reading that part of it. I -- I agree with you. 22 MR. MARK SANDLER: Okay. 23 DR. JAMES YOUNG: I completely agree with 24 you. If -- 25 COMMISSIONER STEPHEN GOUDGE: And the
2571 heading, as I recall, was about another case. 2 DR. JAMES YOUNG: Yes. When I saw that 3 heading I stopped reading that part. And I completely 4 agree with you; if I had read it -- probably if the 5 heading hadn't been there and I hadn't seen the heading, 6 I probably would have read on. 7 COMMISSIONER STEPHEN GOUDGE: Because a 8 priori, it might be that another case would be relevant 9 to the complaint being made. 10 DR. JAMES YOUNG: Yeah. 11 COMMISSIONER STEPHEN GOUDGE: It might 12 not be. 13 DR. JAMES YOUNG: It might not be. 14 COMMISSIONER STEPHEN GOUDGE: It could 15 often not be. 16 DR. JAMES YOUNG: Most often as I -- 17 COMMISSIONER STEPHEN GOUDGE: Most often 18 not be. 19 DR. JAMES YOUNG: Exactly. 20 COMMISSIONER STEPHEN GOUDGE: It may have 21 been in this case. 22 DR. JAMES YOUNG: Oh, I accept that. I 23 mean I -- I was very clear. You know, the -- I wish I 24 had read it. I -- I didn't and I stated the reason why 25 and I -- you know, the -- the heading threw -- threw me
2581 and I -- 2 COMMISSIONER STEPHEN GOUDGE: Right. 3 DR. JAMES YOUNG: I saw it, I didn't read 4 on -- 5 MR. MARK SANDLER: Thank you. 6 DR. JAMES YOUNG: -- for that reason. 7 MR. MARK SANDLER: Thank you. 8 DR. JAMES YOUNG: I wish I had. 9 MR. MARK SANDLER: Thank you. Those are 10 all the questions I have. Thank you, Dr. Young. 11 COMMISSIONER STEPHEN GOUDGE: Thanks, Mr. 12 Sandler. Well, Dr. Young, it's been a long three and a 13 half (3 1/2) days. Let me simply say, as far as I'm 14 concerned, I am very grateful for the time you devoted 15 and the thought you've devoted to the evidence. It will 16 be of great assistance to me in what I do. Thank you. 17 DR. JAMES YOUNG: Thank you. 18 19 (WITNESS STANDS DOWN) 20 21 COMMISSIONER STEPHEN GOUDGE: We'll rise 22 until 9:30 tomorrow morning. 23 24 --- Upon adjourning at 3:25 p.m. 25
2591 2 Certified correct, 3 4 5 6 _________________ 7 Rolanda Lokey, Ms. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25