1 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 5th, 2007 25


1 Appearances 2 Linda Rothstein (np) ) Commission Counsel 3 Mark Sandler ) 4 Robert Centa (np) ) 5 Jennifer McAleer (np) ) 6 Johnathan Shime ) 7 8 Brian Gover (np) ) 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 ) 14 Erica Baron (np) ) 15 Grant Hoole (np) ) 16 17 William Carter ) Hospital for Sick Children 18 Barbara Walker-Renshaw(np) ) 19 Kate Crawford ) 20 21 Paul Cavalluzzo ) Ontario Crown Attorneys' 22 Association 23 24 25


1 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 ) 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 ) of Toronto and Nishnawbe 23 Sheila Cuthbertson (np) ) Aski-Nation 24 Julian Falconer (np) ) 25


1 APPEARANCES (cont'd) 2 3 Suzan Fraser ) Defence for Children 4 ) International - Canada 5 6 William Manuel (np) ) Ministry of the Attorney 7 Heather Mackay ) General for Ontario 8 Erin Rizok (np) ) 9 Kim Twohig (np) ) 10 11 Natasha Egan (np) ) College of Physicians and 12 Carolyn Silver (np) ) Surgeons 13 14 Michael Lomer (np) ) For Marco Trotta 15 Jaki Freeman (np) ) 16 17 18 19 20 21 22 23 24 25


1 TABLE OF CONTENTS Page No. 2 List of Undertakings 6 3 4 MICHAEL SVEN POLLANEN, Resumed 5 6 Examination-In-Chief by Mr. Mark Sandler 7 7 Continued Cross-Examination by Mr. James Lockyer 246 8 Cross-Examination by Mr. Paul Cavalluzzo 257 9 10 11 Certificate of transcript 290 12 13 14 15 16 17 18 19 20 21 22 23 24 25


1 UNDERTAKING 2 NO. DESCRIPTION PAGE NO. 3 1 Dr. Pollanen, taking a sample year 4 or two (2), to determine which cases 5 would present themselves, based upon 6 the pre-autopsy information, as those 7 for which double-doctoring should be 8 done at the outset 164 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25


1 --- 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. Sandler...? 8 MR. MARK SANDLER: Good morning, 9 Commissioner. Commissioner, for the next two (2) days 10 you'll be hearing from Dr. Pollanen again. You'll recall 11 that Dr. Pollanen testified in the first week of the 12 Inquiry and in the next few days we'll be exploring some 13 additional issues that arise out of the twenty (20) cases 14 that are the subject of -- of review. 15 I should indicate both to you and to the 16 parties withstanding, that it is anticipated that Dr. 17 Pollanen will return at least one (1) more time to deal 18 with the balance of issues that we will not be addressing 19 in the next two (2) days. 20 21 MICHAEL SVEN POLLANEN, Resumed 22 23 EXAMINATION-IN-CHIEF BY MR. MARK SANDLER: 24 MR. MARK SANDLER: Dr. Pollanen, please 25 consider yourself still under oath --


1 DR. MICHAEL POLLANEN: I will. 2 MR. MARK SANDLER: -- and we will proceed. 3 Several weeks ago you outlined for the Commissioner the 4 creation and structure of the Chief Coroner's Review of 5 selected cases in which Dr. Smith was involved. 6 And you remember that testimony? 7 DR. MICHAEL POLLANEN: Yes, I do. 8 MR. MARK SANDLER: And as a result of that 9 involvement, I take it you acquired significant 10 familiarity with a number of the twenty (20) cases that 11 have been under consideration here? 12 DR. MICHAEL POLLANEN: Yes, and through 13 other processes. 14 MR. MARK SANDLER: And when you make 15 reference to other processes, I understand that outside of 16 the Chief Coroner's Review, you wrote reports on three (3) 17 of the cases, Joshua, Valin and Paolo, and performed a re- 18 autopsy of the exhumed skeletal remains of Joshua, and 19 also provided formal review in the Jenna Case. 20 Am I right? 21 DR. MICHAEL POLLANEN: Correct. 22 MR. MARK SANDLER: And all of those 23 activities took place in your role as forensic pathologist 24 outside of the Chief Coroner's Review. 25 Am I right?


1 DR. MICHAEL POLLANEN: Correct. 2 MR. MARK SANDLER: And in addition to the 3 familiarity gained as well through -- through what you've 4 just described, you've also had an opportunity, as I 5 understand it, during the currency of this Inquiry to 6 review the overview reports that have been prepared by the 7 Commission in connection with eighteen (18) of the cases 8 under consideration. 9 Am I right? 10 DR. MICHAEL POLLANEN: Yes, I have. 11 MR. MARK SANDLER: And what you've done, 12 as I understand it, is identify what, in your mind, are 13 significant systemic issues that are thrown up as a result 14 of your knowledge of those cases? 15 DR. MICHAEL POLLANEN: Yes. 16 MR. MARK SANDLER: And what we're going to 17 do in the next few days, Dr. Pollanen, is focus on the 18 systemic issues that, in your view, arise from those cases 19 and give you an opportunity to address those systemic 20 issues using our cases as illustrative. All right? 21 DR. MICHAEL POLLANEN: I understand that, 22 yes. 23 MR. MARK SANDLER: That's the exercise. 24 And to assist in the exercise, Commissioner, Dr. Pollanen 25 has prepared a document which is 301189 and it's entitled


1 "Review of the Pediatric Forensic Pathology Overview 2 Reports: Ten (10) Systemic Issues." 3 And this is a document that you have 4 prepared for the purposes of this Inquiry. Am I right? 5 DR. MICHAEL POLLANEN: Yes. 6 MR. MARK SANDLER: And you've got a copy 7 of the document with you as well? 8 DR. MICHAEL POLLANEN: I do. 9 MR. MARK SANDLER: And what I'd like to 10 do, in essence, is draw upon the document to -- to review 11 a number of the systemic issues with you. 12 And at the outset, are these all of the 13 systemic issues that you have identified as flowing from 14 the cases under consideration? 15 DR. MICHAEL POLLANEN: No. 16 MR. MARK SANDLER: All right. We're going 17 to deal with a subset of them today. And, again, I can 18 indicate to you, Commissioner, that -- that there are a 19 number of issues -- for example, the relationship between 20 the coroner system and the Chief Forensic Pathologist's 21 office -- that will be dealt with when Dr. Pollanen 22 returns. 23 We're going to try to focus, though there's 24 no bright lines here, on the systemic issues that are 25 thrown up, in particular by the forensic pathology


1 services that were performed in this case. 2 Do you understand that, Dr. Pollanen, as 3 well? 4 DR. MICHAEL POLLANEN: Yes, those are the 5 parameters that I analysed; the -- the overview reports 6 and produced the ten (10) issues. 7 MR. MARK SANDLER: All right. Well you've 8 listed the ten (10) issues at page 1 of your report -- a 9 little bit further down on the screen if we may. 10 And simply, could you outline for the 11 Commissioner what are the ten (10) issues that you have 12 identified, and then I'm going to deal with them in -- to 13 varying degrees in -- in the questions that follow. 14 DR. MICHAEL POLLANEN: From my point of 15 view, the ten (10) issues are: 16 First, the absence of specialized 17 education, standards and certification in forensic 18 pathology in Canada; Growth of knowledge in forensic 19 pathology in general; the importance of evidence-based 20 forensic pathology, that being a framework upon which to 21 do forensic pathology; the sliding scale for degree of 22 certainty in forensic pathology, and that specifically 23 relates to how we make diagnoses and testify to them in 24 court; the issue of professional consultation and 25 interaction; the forensic pathology quality processes that


1 should be in place across the investigative and other 2 phases of the criminal justice; continuity of evidence; 3 the importance of the scene; timeliness of autopsy 4 reports; and issues related to defence pathology. 5 MR. MARK SANDLER: All right. If we could 6 go straight to the first systemic issue which you've 7 identified: the absence of specialized education, 8 standards and certification in forensic pathology in 9 Canada. And what you have to say about that systemic 10 issue is reproduced at page 2 of -- of your document. And 11 you say at the outset: 12 "Canadian forensic pathology has been 13 neglected for decades. The national 14 development of forensic pathology has 15 been hampered by the lack of action by 16 faculties of medicine in Canadian 17 universities, the Royal College of 18 Physicians and Surgeons of Canada and 19 the Canadian Association of 20 Pathologists." 21 Can you describe for the Commissioner what 22 you see as the systemic issue flowing out of the overview 23 reports and what you've learned about these cases and how 24 it has application here? 25 DR. MICHAEL POLLANEN: Well, in general, I


1 think we would have to say that it is generally agreed 2 upon in forensic pathology, certainly in Canada, that the 3 discipline has lagged behind other branches of laboratory 4 medicine. 5 And there are many examples of this and 6 there are many reasons why that is the case, but they, in 7 my view, stem from the fact that there's been very little 8 initiative taken on the educational end. And this 9 includes advocacy, professional advocacy, on the part of 10 professional organizations and colleges, but also at the 11 faculty level. 12 And if you -- I can give you an example of 13 this and that is, in the -- in the heyday of British 14 forensic pathology we had departments of forensic medicine 15 in universities, we had endowed chairs. For example, I 16 think Professor Milroy told you about the Regis chairs in 17 Scotland. There was this -- this powerhouse of academic 18 base in the learned institutions and with that came 19 educational programs, post graduate programs for training, 20 graduate programs for research. And this created a 21 culture of academic excellence. It created a culture of 22 progress within the discipline. 23 This was also mirrored by in the -- in the 24 '60s in the United States and in the UK the development of 25 specialty examinations for forensic pathologist, the DMJ


1 and the American Board of Pathology. 2 And all of these events speak to the growth 3 of the profession and the growth of knowledge; producing 4 mechanisms to grow knowledge in the profession. And in 5 Canada, sadly, that has not occurred. 6 We have -- despite the fact that in the US 7 and in the UK, we've had speciality examinations since the 8 '60s, we don't have speciality examinations at all in 9 forensic pathology. Now, that is, of course, changing 10 and, of course, it's changing for the better through 11 initiatives taken by the Royal College, but in -- in -- I 12 would say that we've lagged behind about forty (40) years 13 in comparison to other jurisdictions. 14 And this has had, in my view, a ripple 15 effect throughout the -- the system. Because if you're 16 training people, if you're not certifying people, you 17 encourage different mechanisms to develop within systems 18 to fill in the gaps. Some of those things I've listed in 19 -- in the twelve (12) points. And those include, for 20 example, in the absence of well defined postgraduate 21 training programs, people have to be self taught or they 22 have to develop informal networks of training and that 23 does not produce a good result in the end. 24 It -- you may produce isolated highly 25 competent forensic pathologists, there's no question about


1 that -- and Canada is full of such forensic pathologists - 2 - but it's hardly a systemic approach to -- to education 3 and certification and a commitment to professional 4 quality. 5 So this is a very big issue and it has been 6 a -- a impediment; it's hampered development of forensic 7 pathology in -- in Canada. And -- 8 COMMISSIONER STEPHEN GOUDGE: Can I just 9 ask a couple of questions, Dr. Pollanen, about the 10 educational component of it. 11 Has there have ever been part of the MD 12 program at medical schools across the country a course in 13 forensic medicine, at any time? 14 DR. MICHAEL POLLANEN: I can tell you 15 certainly when I went through medical school there was no 16 such course. 17 COMMISSIONER STEPHEN GOUDGE: Okay. 18 DR. MICHAEL POLLANEN: And -- and 19 traditionally, there has been a curriculum of -- of 20 forensic or legal medicine that has become squeezed out of 21 the medical curriculum. 22 COMMISSIONER STEPHEN GOUDGE: Okay. Where 23 would it have been addressed within the overall course 24 program of the MD degree? 25 DR. MICHAEL POLLANEN: Well, in --


1 COMMISSIONER STEPHEN GOUDGE: That is, 2 where would forensics had been addressed at all, if there 3 was not a separate course? 4 DR. MICHAEL POLLANEN: Well, you -- 5 traditionally, it would be a separate course -- 6 COMMISSIONER STEPHEN GOUDGE: Yes. 7 DR. MICHAEL POLLANEN: -- forensic 8 medicine. 9 COMMISSIONER STEPHEN GOUDGE: Was not when 10 you went there? 11 DR. MICHAEL POLLANEN: Correct. And -- 12 and when I went through there was nothing at all. 13 COMMISSIONER STEPHEN GOUDGE: Okay. And 14 as far as you are aware, nothing in any other medical 15 school in Canada or do you know? 16 DR. MICHAEL POLLANEN: Well, I would say 17 that what I've tried to do at the University of Toronto is 18 I've been given three (3) hours in the medical curriculum. 19 COMMISSIONER STEPHEN GOUDGE: Yes. 20 DR. MICHAEL POLLANEN: And -- and other 21 pla -- and other universities in Toronto would have a 22 similar arrangement. 23 COMMISSIONER STEPHEN GOUDGE: Okay. Now, 24 that is what I want to get at because to put it into the 25 curriculum something else has to leave.


1 It is a zero sum game, is it not? 2 DR. MICHAEL POLLANEN: I actually think 3 that there are other mechanisms to do it. 4 COMMISSIONER STEPHEN GOUDGE: Shoot. 5 DR. MICHAEL POLLANEN: And for example, in 6 the undergraduate curriculum, the philosophy is something 7 called problem based learning where you create a week and 8 you -- you deliver a message, for example, it might be 9 Genetic Disease week. 10 COMMISSIONER STEPHEN GOUDGE: Yes. 11 DR. MICHAEL POLLANEN: I think what we 12 should have in the undergraduate curriculum is a Legal 13 Medicine week. 14 COMMISSIONER STEPHEN GOUDGE: But to do 15 that you'd have to shed something that's now being taught, 16 wouldn't you? 17 DR. MICHAEL POLLANEN: I don't think so. 18 I think what you would do is you would look at the 19 curriculum, and you would redistribute the topics that 20 could be delivered from a medicolegal perspective. 21 For example, in the pediatric section, 22 there would be a lecture necessarily on the mandatory 23 reporting of child abuse. 24 COMMISSIONER STEPHEN GOUDGE: Right. 25 DR. MICHAEL POLLANEN: Well, I think that


1 should just be redistributed into a Forensic Medical week 2 and take the different parts of the medical curriculum, 3 unify them under the sort of medical jurisprudence concept 4 and deliver the program in that way. 5 COMMISSIONER STEPHEN GOUDGE: Okay. To do 6 that would you have to have full time faculty members who 7 are conversant with forensic medicine? 8 DR. MICHAEL POLLANEN: You would have to 9 have, in -- in my view, some faculty members that were 10 largely dedicated to research and education in forensic 11 medicine. 12 COMMISSIONER STEPHEN GOUDGE: Okay, 13 thanks. Thanks, Mr. Sandler. 14 15 CONTINUED BY MR. MARK SANDLER: 16 MR. MARK SANDLER: All right, two (2) 17 questions arising out of the points that you've made, 18 contained in this document. The first is that which 19 you've identified at Item 7, The Lack of Significant 20 Continuing Medical Educational Programs, and -- and I want 21 to ask you about that. 22 What difficulties are currently encountered 23 by your forensic pathologists in attending continuing 24 legal education programs? 25 DR. MICHAEL POLLANEN: We try to offer


1 them locally. So, for exam -- 2 COMMISSIONER STEPHEN GOUDGE: We being? 3 DR. MICHAEL POLLANEN: The Office of the 4 Chief Coroner. 5 COMMISSIONER STEPHEN GOUDGE: Yes. 6 DR. MICHAEL POLLANEN: And so what we have 7 done is we have made six (6) opportunities, Wednesday 8 conferences, at the end of each month where people come to 9 our facility and we engage in -- in CME activities, 10 Continue Medical Education, and then we have larger 11 meetings which are held jointly with the coroners and the 12 pathologists. 13 Those provide sort of our base from the 14 Office of the Chief Coroner. 15 COMMISSIONER STEPHEN GOUDGE: Do you use 16 technology for that? I mean, can it be done remotely? 17 DR. MICHAEL POLLANEN: It's very 18 interesting; that issue has come up and the answer is no. 19 We've -- we've done once with telephone conferencing -- 20 COMMISSIONER STEPHEN GOUDGE: Right. 21 DR. MICHAEL POLLANEN: -- But we don't 22 have, for example, the -- the audio visual components. 23 COMMISSIONER STEPHEN GOUDGE: So, a lot of 24 continuing medical education is done remotely, isn't it? 25 DR. MICHAEL POLLANEN: Very effectively,


1 yes. It can be done. 2 COMMISSIONER STEPHEN GOUDGE: Why can't 3 you do it with forensics? 4 DR. MICHAEL POLLANEN: It can be done with 5 forensics; you just need the equipment to do it. 6 COMMISSIONER STEPHEN GOUDGE: Okay. 7 DR. MICHAEL POLLANEN: So the -- so that's 8 one (1) level of -- of CME. Traditionally, there was -- 9 John Hillsdon Smith, the first Chief Forensic Pathologist, 10 had actually quite a vibrant educational program directed 11 to pathologists and homicide investigators, and that went 12 on for many, many years through ministerial funding, and 13 that has largely been replaced by the joint coroners and 14 pathologist's course the offered. 15 Then at the next level, continuing medical 16 education can be sponsored by universities, and there is 17 sporadic CME provided by universities, usually in the 18 context of pathology symposia and usually a small part of 19 -- of pathology symposia. And then national organizations 20 such as the Canadian Association of Pathologists will run 21 workshops. 22 But for the most part, if you want to gain 23 large numbers of CME hours in forensic pathology, directed 24 to forensic pathology, you have to leave the country, and 25 that's the reality.


1 2 CONTINUED BY MR. MARK SANDLER: 3 MR. MARK SANDLER: All right. 4 COMMISSIONER STEPHEN GOUDGE: Large 5 numbers; give me some sense of magnitude that might be 6 appropriate. 7 DR. MICHAEL POLLANEN: In terms of numbers 8 of hours of CME. 9 COMMISSIONER STEPHEN GOUDGE: Annual, yes. 10 DR. MICHAEL POLLANEN: Very -- 11 COMMISSIONER STEPHEN GOUDGE: What would 12 you in an optimal world look for? 13 DR. MICHAEL POLLANEN: I'd have to 14 consider that. This would be related to the maintenance 15 of certification requirements. 16 COMMISSIONER STEPHEN GOUDGE: Yes, the 17 maintenance of high standards. 18 DR. MICHAEL POLLANEN: Yes. 19 COMMISSIONER STEPHEN GOUDGE: I mean, 20 don't pull a number out of there if you don't want to, 21 but -- 22 DR. MICHAEL POLLANEN: Yeah, I don't -- I 23 can't tell you. 24 COMMISSIONER STEPHEN GOUDGE: -- if you'd 25 reflect on it -- I don't know what we're talking about


1 here; are we talking about ten (10) hours a year or are we 2 talking about fifty (50) hours a year? 3 DR. MICHAEL POLLANEN: I think this would 4 be encompassed by going to at least one (1) national or 5 international conference and partaking in a workshop or 6 some other activity within -- within the meeting; that 7 would be very useful. 8 COMMISSIONER STEPHEN GOUDGE: Right. 9 10 CONTINUED BY MR. MARK SANDLER: 11 MR. MARK SANDLER: And what is the current 12 impediment to your forensic pathologists being able to do 13 that? 14 DR. MICHAEL POLLANEN: Funding; it's a 15 very serious impediment. And for example, in the hospital 16 sector, pathologists who are employed have approximately 17 seven thousand dollars ($7,000) per year for CME 18 activities. 19 The hospital sector finds that a very 20 important part of professional development. But there is 21 no such allo -- allocation for government forensic 22 pathologists. So what we have to do is we have to apply 23 for funding to -- 24 COMMISSIONER STEPHEN GOUDGE: To...? 25 DR. MICHAEL POLLANEN: -- to the


1 Government, to, the Ministry, and that funding is exc -- 2 is either provided or not provided. 3 MR. MARK SANDLER: All right. And -- 4 COMMISSIONER STEPHEN GOUDGE: Do you have 5 an order of magnitude comparison as to the level of 6 funding hospital, government, for continuing education? 7 DR. MICHAEL POLLANEN: No. 8 COMMISSIONER STEPHEN GOUDGE: What would 9 the counterpart to the seven thousand dollars ($7,000), 10 per pathologist, a year be for government employed 11 pathologists? Rough number? 12 DR. MICHAEL POLLANEN: I think the -- I 13 think that the policy right now -- if I -- if I remember 14 it correctly -- is that there is a rotation, a three (3) 15 yearly rotation, essentially to go to meetings. 16 COMMISSIONER STEPHEN GOUDGE: If you tried 17 to put a dollar per year cost? 18 DR. MICHAEL POLLANEN: That the government 19 is spending? 20 COMMISSIONER STEPHEN GOUDGE: Yes. 21 DR. MICHAEL POLLANEN: Well I think it 22 would be, essentially, a third of seven thousand (7,000). 23 COMMISSIONER STEPHEN GOUDGE: Okay. 24 DR. MICHAEL POLLANEN: You know, that 25 would be the sort of magnitude.


1 COMMISSIONER STEPHEN GOUDGE: All right. 2 3 CONTINUED BY MR. MARK SANDLER: 4 MR. MARK SANDLER: All right. And the -- 5 the second issue that arises out of the discussion that 6 you've had with the Commissioner and in your paper is 7 this; that Professor Milroy identified the -- the tension 8 that exists between forensic pathology and the University 9 setting, and expressed some trepidation about the extent 10 to which universities are truly interested in forensic 11 pathology as a -- as a core function within the university 12 setting. 13 Is there a tension between the two (2), and 14 how do you see it being resolved, if at all? 15 DR. MICHAEL POLLANEN: Well, I can tell 16 you from my own experience, there -- there certainly is a 17 tension in developing departments -- new departments 18 within universities. 19 For example, the -- it's unlikely that any 20 Canadian university is going to -- to create a department 21 of forensic medicine, because of the costs and -- and the 22 resources that are associated with that. 23 And that's been the -- the difficulty in 24 the UK, is the failure to -- to support traditionally 25 developed part -- departments of forensic medicine. But


1 in my view, there is actually a solution to that, and -- 2 and a solution that's, I believe, encouraged by university 3 -- universities in general. 4 And that is that there are -- there are 5 now, what in university lingo are called, extra 6 departmental units, which are -- they're sometimes called 7 centres or institutes; where one (1) can create a 8 community of scholars or -- or investigators that are 9 unified by a common educational or research objective that 10 come from different parts of the university and they work 11 together in the -- in a centre. 12 And that type of model has been -- has been 13 used, for example, in the -- one (1) of the best success 14 stories of that is the Joint Centre for Bio Ethics at the 15 University of Toronto; where from -- from disparate 16 faculties -- mostly from the faculty medicine, but -- but 17 oth -- from other communities, people created this -- this 18 multi-disciplinary centre. 19 And that is the sort of model for 20 development that one (1) could see working very well, for 21 example, in the University of Toronto; creating something 22 like the Joint Centre for Forensic Medicine. 23 And that centre would have, as its 24 objective, the research and educational portfolio that is 25 desperately needed in Ontario and in Canada. Whereas --


1 and -- but be firmly linked with the service elements 2 which would be for example, housed at the Office of the 3 Chief Coroner. 4 So this is the ser -- this -- from -- I 5 guess what I'm saying is from the impediment that you've 6 identified, there are solutions within the university 7 community. Such as -- 8 COMMISSIONER STEPHEN GOUDGE: What 9 disciplines would be involved in that? 10 DR. MICHAEL POLLANEN: So -- I -- in my 11 view, the -- the way you would construct such a centre 12 would be to identify faculties, for example, the Faculty 13 of Law, which would be an important partner in providing 14 inter -- in -- in terms of inter-professional education, 15 doctors to lawyers and lawyers to doctors. 16 You could unify, for example, the Faculty 17 of Nursing, where they deal with forensic nursing issues. 18 You could unify the SCAN Team as being brought into that 19 membership; the forensic pathology units as they exist in 20 Toronto; the Department of Pathology; the Women's College 21 centre for dealing with sexual violence; trauma centres at 22 the St. Michael's Hospital and the Sunnybrook Hospital. 23 There are many partnered -- you know, potentially 24 partnered organizations. 25 And you could create such a structure that


1 would advance the -- the educational objectives, both at 2 the undergraduate level, the graduate level and ultimately 3 in the post-graduate level through the new Royal College 4 certification. But it would be a hub of activity within 5 the university. 6 This would require, of course, some 7 infrastructure but -- but that's one (1) approach to deal 8 with the issue. 9 MR. MARK SANDLER: Okay. Now let's move 10 from the first systemic issue and you will have an 11 opportunity, which I know you look forward to when you 12 return, to talk about your very specific recommendations 13 that you'd urge upon the Commissioner. But when we're 14 identifying this -- 15 COMMISSIONER STEPHEN GOUDGE: Can I just - 16 - before you move away, there is an issue that has run 17 through most of what we have heard, Dr. Pollanen, and it 18 stems from the very small pool of forensic pathologists 19 that are available for everything from initial service to 20 peer review. How far does this educational initiative go 21 to redressing that? 22 Let me put it bluntly: I have inferred that 23 there are some that think forensic pathology is not seen 24 as a destination of choice for medical students. How do 25 you correct that?


1 DR. MICHAEL POLLANEN: Through education 2 and research platforms. The only way we will provide a 3 domestic workforce of forensic pathologists in Canada is 4 by growing our own; it will not be through recruitment 5 internationally. 6 And so what we need to do is we need to 7 create opportunities within the undergraduate medical 8 curriculum to open people's eyes up to the interest of 9 forensic medicine; turn them on; create environments that 10 foster excellence in development in that direction; target 11 undergraduate medical students; target residents in 12 laboratory medicine; target, you know, people that are 13 starting off in other specialties but are better suited 14 for a career in forensic pathology. 15 That's what we need to do and it needs to 16 start very early on in the training process and it needs 17 to be a positive, encouraging process. That's the only 18 way to do it. I don't think that we can -- we can grow a 19 workforce of forensic pathologists any other way. 20 COMMISSIONER STEPHEN GOUDGE: I want ask a 21 related -- sorry for taking -- 22 MR. MARK SANDLER: No, not at all. 23 COMMISSIONER STEPHEN GOUDGE: -- you off - 24 - this probably does count as part of your time, Mr. 25 Sandler. I think I can probably do this to you.


1 Does global technology assist in increasing 2 the supply by providing access to forensic pathologists 3 from elsewhere to individual service requirements in 4 Canada in a way that wasn't possible ten (10) years ago? 5 I mean, is that another part of this supply 6 solution? 7 DR. MICHAEL POLLANEN: No. It increases 8 the quality of our work through professional 9 collaboration. 10 So, for example, one (1) model that has 11 worked very well to increase quality is, for example, the 12 initiative taken at the Victorian Institute of Forensic 13 Medicine and the forensic pathology group in Singapore, 14 where they created an MoU of partnership between the two 15 (2) organizations, making sort of cousin or sister 16 organizations, and then facilitating consultation across 17 jurisdictions. 18 COMMISSIONER STEPHEN GOUDGE: On 19 particular cases? 20 DR. MICHAEL POLLANEN: On particular cases 21 or issues that arise. 22 COMMISSIONER STEPHEN GOUDGE: Okay. 23 DR. MICHAEL POLLANEN: For example, we do 24 that in an ad hoc way already with the Victorian Institute 25 of Forensic Medicine. Sometimes I'll send an interesting


1 digital image to Professor Cordner and his group for 2 discussion and they'll bring it to their group -- 3 COMMISSIONER STEPHEN GOUDGE: Right. 4 DR. MICHAEL POLLANEN: -- and have a 5 discussion and we'll have an email conversation. 6 COMMISSIONER STEPHEN GOUDGE: So it 7 enhances the quality of the service in individual cases 8 but obviously does not increase the indigenous frontline 9 service component? 10 DR. MICHAEL POLLANEN: It does not put 11 bodies, that is upright bodies, in the morgue. 12 COMMISSIONER STEPHEN GOUDGE: On the site? 13 DR. MICHAEL POLLANEN: Correct. 14 15 CONTINUED BY MR. MARK SANDLER: 16 MR. MARK SANDLER: Yes, they have to be 17 upright bodies? 18 DR. MICHAEL POLLANEN: Yes. 19 MR. MARK SANDLER: And I take it -- and 20 we'll come to this in another context, but you've 21 described as -- as one (1) of the prerequisites to 22 obtaining highly qualified and sufficient numbers of 23 forensic pathologists, exc -- excellence at the 24 educational level. 25 But I -- I take it as well one (1) of --


1 one (1) of the messages that you want to communicate to 2 the Commissioner as well is that once these people become 3 forensic pathologists in Ontario there's got to be a 4 system that promote -- that -- that encourages their 5 promotion within the system? 6 DR. MICHAEL POLLANEN: Yes, and that has 7 two (2) elements. The first element is they have to be 8 employed within organizations where there is a hierarchal 9 career structure. 10 So for example, as I've indicated in the 11 Office of the Chief Coroner, there is no hierarchy in the 12 forensic pathology service. You come in at the ground 13 level and you stay at the ground level until you become 14 the Chief Forensic Pathologist. That -- that does not 15 facilitate a career path in forensic pathology. 16 We need to populate the career structure, 17 for example, in the Office of the Chief Coroner will 18 Fellows, junior pathologists, a director, deputies, and 19 then up to the Chief Forensic Pathologist. And by 20 representing that training spectrum or that career 21 spectrum it becomes a destination and it becomes a -- 22 there is a timeline to track through. 23 And the other important element is salary. 24 Under any system that is going to be self-sustaining in 25 forensic pathology there will need to be parity in -- in


1 the salary of people who are doing forensic pathology and 2 those doing hospital pathology. It won't -- it will be 3 impossible to retain forensic pathologists in full-time 4 practice if the salary differential is so large. 5 MR. MARK SANDLER: And I take it implicit 6 in what you're saying is that currently it is so large? 7 DR. MICHAEL POLLANEN: Yeah, it's -- it's 8 prohibitive. 9 MR. MARK SANDLER: All right. 10 COMMISSIONER STEPHEN GOUDGE: Can I ask a 11 question about the career path issue, Dr. Pollanen? That 12 is career paths of full-time pathologists, forensic 13 pathologists? 14 DR. MICHAEL POLLANEN: Yes. 15 COMMISSIONER STEPHEN GOUDGE: Can one 16 deliver the service required in a province as big as 17 Ontario with only full-time forensic pathologists or is it 18 necessary that fee-for-service pathology provide a 19 component of the service? 20 And if so, how do you mesh those two (2)? 21 I mean, isn't there, to some degree, a delivery reality 22 that we have to face in Ontario? 23 DR. MICHAEL POLLANEN: To deliver forensic 24 pathology services by full-time forensic pathologists in 25 the province of Ontario would require a massive


1 reorganization of the system. That is probably not 2 tenable. 3 So I think -- I think ultimately you will 4 always need to have some population of fee-for-service 5 pathologists. But these fee-for-service pathologists will 6 probably not be -- well, will not be involved in homicide 7 and criminally suspicious cases, but doing the more 8 routine coroner's autopsies outside of a formal regional 9 forensic pathology unit. 10 COMMISSIONER STEPHEN GOUDGE: Okay. 11 Thanks. 12 13 CONTINUED BY MR. MARK SANDLER: 14 MR. MARK SANDLER: If we can turn to 15 systemic issue number 2 that you've identified at page 3 16 of the document and that is the growth of knowledge in 17 forensic pathology. And you've reflected in the bolded 18 portion that: 19 "We need to recognize that forensic 20 pathology is a progressive discipline 21 and the developments in knowledge may 22 produce legal controversies. It's clear 23 that discovery and knowledge creation in 24 forensic pathology will be the only 25 definitive and lasting mechanism that


1 can prevent adverse outcomes in the 2 criminal justice system when problematic 3 issues relate to such controversies." 4 Now, you set out a number of controversies, 5 challenges, or enigmas that exist in forensic pathology 6 and pediatric forensic pathology and I see Item 3: 7 "The involving nature of forensic 8 pathology of infantile head injury 9 including the so-called Shaken Baby 10 Syndrome." 11 And we're going to discuss that in some 12 detail later in the day, but that certainly was a -- was 13 and is a controversy thrown up by the cases under 14 consideration, am I right? 15 DR. MICHAEL POLLANEN: Yes. 16 MR. MARK SANDLER: We see under 4: 17 "The pitfalls of autopsy diagnosis of 18 mechanical asphyxia in infants and small 19 children, that is the problems with 20 under and over-diagnosis." 21 And again, is that an issue thrown up by 22 the cases under consideration? 23 DR. MICHAEL POLLANEN: Yes. 24 MR. MARK SANDLER: We see under Item 6: 25 "Post-mortem and autopsy artifacts that


1 can be over-interpreted as injuries." 2 And again, that's an issue that's thrown up 3 by some of the cases that we've seen here? 4 DR. MICHAEL POLLANEN: Correct. 5 MR. MARK SANDLER: And number 9, "The 6 enigma of SIDS". 7 And the Commissioner has heard much about 8 that and -- and undoubtedly more -- and again, that's an 9 issue that was thrown up in some of the death 10 investigations that are the subject of the cases under 11 consideration. 12 DR. MICHAEL POLLANEN: Yes. 13 MR. MARK SANDLER: So, could you outline 14 what you've had to say about this systemic issue, as set 15 out at paragraph 4, but could you advise the Commissioner 16 what the -- what the interplay is between the -- the 17 growth of knowledge in forensic pathology and how these 18 issues have to be dealt with in the criminal justice 19 system? 20 DR. MICHAEL POLLANEN: Well, there -- 21 there's a lot of discussion and has been a lot of 22 discussion about, for example, error correction 23 mechanisms, post-conviction mechanisms, but from a 24 forensic pathology point of view the underlying issue 25 there is that because knowledge grows and because we may


1 change our prevailing view or dogma may change, this 2 produces a fundamental tension in -- in the criminal 3 justice system, a tension between medicine and law. 4 And that essentially is that at some point 5 in the past a diagnosis can be offered in the criminal 6 justice system that represents a prevailing or dog -- view 7 or dogma of medicine. And at some later point in time 8 that may be replaced by better understanding that negates 9 the prior conclusion, or -- and this is an -- also an 10 unhappy circumstance for the criminal justice system -- 11 the evolution of thought may simply make the certainty 12 less. 13 In other words, it goes from being -- the 14 prevailing view being more black and white, to knowledge 15 developing and growing, and instead of producing an 16 alternative, it produces a gray result, and that's a major 17 challenge for forensic pathologists because we have to 18 somehow encapsulate or capture that in our reports and in 19 our testimony. 20 But then it -- the next question is, how 21 does the medical -- the legal system deal with that 22 graying of knowledge and that introduces an entirely new 23 level of complexity. And obviously that's not -- that's 24 not my area, but what I can say is that the only lasting 25 solution to that is through research and -- and increasing


1 our understanding of the issues. 2 Because ultimately if you -- if you take 3 any controversy now, the -- the only chance of it being 4 ultimately resolved is for -- is through increased 5 understanding, and we have to create opportunities to 6 increase our understanding through research and 7 scholarship. 8 MR. MARK SANDLER: All right. Well, 9 several questions arising out of that. If one has a 10 scenario where the -- the forensic pathology wisdom of the 11 day is -- is A), and then later on it turns out that -- 12 that that wisdom has to be modified or -- or altered, then 13 -- the what you're saying is the criminal justice system 14 has to accommodate some process to -- to reconcile and 15 deal with that change in -- in the state of knowledge. 16 But what happens when you have a 17 controversy that's already known at the time that the 18 forensic pathologist is expressing his or her opinions in 19 reports or in testimony? How should the forensic 20 pathologist accommodate the existence of the controversy 21 in the approach to the case in the formulation of the 22 opinion and in the testimony given in Court? 23 DR. MICHAEL POLLANEN: The -- the only way 24 to do it, in my view, is through giving a balanced view of 25 the controversy. So, in other words, you have to -- you -


1 - you ultimately have to come to an opinion based upon 2 your own view of the matter, but then you have to situate 3 that opinion within the range of -- of controversy in the 4 discipline. 5 Now, to what extent you do that may relate 6 to how strongly you view the literature, so, you know, you 7 -- there may be a controversial area that -- where there 8 is quite a division in opinion, growth of knowledge, but 9 you're not particularly convinced by -- by it, and in that 10 circumstance you may not offer such an incredible balance. 11 Whereas, if you were more convinced by the uncertainty in 12 -- in the -- in the issue, then you would interject more 13 balance. 14 But -- but really it's the -- it's 15 providing that balance through testimony or through a 16 written opinion. 17 MR. MARK SANDLER: All right. Can you use 18 several of the cases as illustrative to show where there 19 has been either some growth of -- of knowledge or -- or 20 development of -- of controversy in the cases that the 21 Commissioner has heard about? 22 DR. MICHAEL POLLANEN: Well, the -- well, 23 the most -- the most obvious is infantile head injury. 24 And essentially the -- there are multiple linked issues 25 there. And that is the whole issue of Shaken Baby


1 Syndrome itself -- can shaking produce fatal injury? 2 The specificity of individual pathologic 3 observations, such as retinal hemorrhages; the frequency 4 and lethality of short domestic falls as sort of a -- as 5 an alternative to Shaken Baby Syndrome; the criteria for 6 live birth and separate existence. 7 You know, there are -- there are many 8 others. There are, for example, controversies that exist 9 with regard to timing of injury. 10 One (1) -- one (1) of the classical 11 problems in forensic pathology that has never really been 12 satisfactorily addressed is the age of a bruise or the 13 time of death; extremely straightforward questions that, 14 essentially, have very difficult solutions. 15 MR. MARK SANDLER: All right. We're going 16 to deal in great detail with the Shaken Baby Syndrome and 17 -- and all of the issues arising out of it a little bit 18 later in the examination. So if we can move from there 19 for a moment to systemic issue Number 3. 20 And you've identified that at page 4. And 21 that is the importance of evidence-based forensic 22 pathology. And you've said: 23 "We need to foster an evidence-based 24 culture in forensic pathology that 25 creates opportunities to detect and


1 recognize the significance of critical 2 evidence, including evidence that is 3 contradictory to a prevailing 4 investigative theory." 5 Now the Commissioner heard from you, in the 6 first week of your testimony -- or the first week of this 7 Inquiry, about the evidence-based approach to -- to 8 pathology. And one (1) of the things that you were 9 examined on was -- was the notion of confirmation bias. 10 And -- and you've reflected in the second 11 paragraph under -- under the bold faced portion, that -- 12 that a commonly discussed version of confirmation bias is 13 tunnel vision. And you've said: 14 "In forensic pathology this version of 15 confirmation bias is demonstrated by 16 actively interpreting positive 17 pathological findings to corroborate a 18 pre-determined or expected diagnosis." 19 And -- and -- and I believe that that has 20 been fully developed in your testimony up until this point 21 in time. But you've also described another variant for 22 this which you described as default diagnosis. 23 Could you explain to the Commissioner what 24 you mean by default diagnosis and what you see as the 25 dangers associated with it?


1 DR. MICHAEL POLLANEN: Well, there is a 2 tradition in medicine of diagnosis by exclusion. And it 3 is a legitimate practice, and is associated with 4 diagnosing many different things in forensic pathology 5 such as drowning. 6 But it also introduces a problem. And the 7 problem is, essentially, encompassed by the statement that 8 sometimes appears in this context which is: 9 "In the absence of evidence to the 10 contrary, the findings are indicative of 11 non-accidental injury." 12 So this is a way of saying that there are - 13 - there are certain positive findings at autopsy, that in 14 the absence of essentially a benign history, imply non- 15 accidental injury or inflicted injury. 16 And the -- that in fact may be a -- in 17 particular instances, a very valid -- may lead to a valid 18 conclusion. The problem is that it is putting the onus on 19 other people to seek contrary evidence. 20 And the -- the difficulty there is that the 21 pathologist needs to situate the evidence as best as they 22 can into a level of certainty or a -- illustrate the 23 degree of the limitations of the medical evidence in 24 coming to a positive conclusion about non-accidental 25 injury, as opposed to simply saying, Unless you can find


1 some reason to think otherwise, you should think of non- 2 accidental injury is not really sufficient to communicate 3 what the medical evidence is telling you. 4 So some type of -- and the -- and the 5 evidence-based approach, I think, is more compatible with 6 just explaining what the scopes and the limits are of the 7 pathological findings that you have as opposed to giving, 8 essentially, a statement that provides for a malignant 9 diagnosis. 10 For example, in -- in pathology, in 11 general, when somebody goes to a -- you know, a surgeon 12 with a lump, you know, a tumour, and the pathologist takes 13 a -- is given a biopsy of the tumour, we don't say -- and 14 when we look at the section under the microscope and we're 15 uncertain if it's cancer or not, we don't say, In the 16 absence of evidence to the contrary this is cancer. What 17 we say is, The findings of the histology are not 18 sufficient to come to a diagnosis; re-biopsy. Do more 19 investigations to find out. 20 That's the sort of concept that I am trying 21 to communicate here. 22 MR. MARK SANDLER: At the top of page 5, 23 you -- you also introduce -- 24 COMMISSIONER STEPHEN GOUDGE: Can I just - 25 - I am sorry, Mr. Sandler, let me just ask a question in


1 relation to this. 2 Dr. Pollanen, you, when you gave evidence 3 before, talked about your perspective on the need for 4 fulsome explanation of reasoning process in post-mortem 5 report. A single line like the line you've quoted here 6 provides for truly no reasoning. But is it possible to 7 imagine a reasoning process that could yield as its bottom 8 line this line? 9 Let me give you the hypothetical and see if 10 it works. 11 Would it be possible to say, As the 12 pathologist, given all I know, if this were an accidental 13 injury in the ways that I can envisage accidents 14 happening, knowing what I know about the history and the 15 circumstances, there would be pathological evidence that I 16 don't see. 17 And in the absence of the pathological 18 evidence that I would see if it were an accident of the 19 only sorts I can envisage, I can conclude not an 20 accidental injury? 21 Now that is a sort of -- more reasoned 22 narrative that leads to this sentence. 23 DR. MICHAEL POLLANEN: I would say that, 24 in addition to reason, you would have to encompass some 25 balance. In other words, if you're going to -- if you're


1 going to say, essentially, on the one (1) hand, non- 2 accidental and the competing hypothesis is accidental -- 3 if you're going to set it up in that way, you've got to 4 then provide the balance sheet. 5 COMMISSIONER STEPHEN GOUDGE: There has to 6 be some evidence that suggests, in this case, non- 7 accidental? 8 DR. MICHAEL POLLANEN: This is for, this 9 is against. I weigh the balance more towards this way as 10 opposed to defaulting to. 11 COMMISSIONER STEPHEN GOUDGE: Okay. 12 Thanks. 13 14 CONTINUED BY MR. MARK SANDLER: 15 MR. MARK SANDLER: Now, at the top of page 16 5, you've raised another notion that I want to ask you 17 about and you've said that there's another version of 18 confirmation bias: 19 "The failure to seek out or recognize 20 facts that negate a prevailing view." 21 Could you explain to the Commissioner what 22 it is that you're contemplating there and outline for him 23 why the cases under consideration provide examples of 24 that? 25 DR. MICHAEL POLLANEN: So if you're


1 engaged in an evidence-based approach, where you're 2 basically collecting evidence and using the -- the 3 individual pieces of evidence or facts as your guide to 4 the opinion, one (1) of the things that you will -- will 5 come to see is that some of the evidence will steer you 6 away from certain conclusions. 7 So some evidence will corroborate 8 conclusions, and some evidence will steer you away. 9 And the evidence-based approach is very 10 good at steering you away from conclusions by recognizing 11 the significance of contradictory evidence. 12 And the best example that I could find in 13 the overview reports was, in fact, Valin. Because leaving 14 aside the interpretative issues regarding the anus and the 15 challenges that come with that, there was an example of 16 good practice by taking swabs and taking biological trace 17 evidence. And all of this analysis, at the time of the 18 initial investigation, was negative. So there's no semen; 19 there's just no forensic biological support for sexual 20 assault. 21 Now, clearly, that does not exclude it. 22 There could have been digital interference or there could 23 have been, you know, other forms of sexual abuse. But it 24 does represent an opportunity. When you know that the 25 biological evidence is not supporting your view of the


1 pathology, it does provide an opportunity to look back at 2 the evidence. 3 So, for example, question. Question your - 4 - your initial interpretations in the same way that the 5 presence of sperm would have supported your pathological 6 observations, if they had been correct. 7 So I sort of view it as an opportunity to 8 look at the significance of negative evidence. 9 There are other examples. 10 MR. MARK SANDLER: Yes, if you could just 11 briefly take the Commissioner through the other examples 12 that you've provided. 13 DR. MICHAEL POLLANEN: So, in the -- in 14 the Gaurov case, which -- which is the shaken baby issue, 15 one (1) of the issues there, that we'll discuss later, is 16 the -- the presence of the triad -- a group of three (3) 17 findings -- is often used as evidence to support the 18 presence of Shaken Baby Syndrome. 19 Yet, in -- and at autopsy, indeed, Gaurov 20 had the triad but on initial admission to hospital one (1) 21 element of the triad was absent on initial examination. 22 So -- 23 MR. MARK SANDLER: And that was the 24 retinal hemorrhaging? 25 DR. MICHAEL POLLANEN: Correct. Now, that


1 leads to one (1) of two (2) possibilities. The one (1) 2 possibility is that the doctor who examined the back of 3 the eye simply missed them which sometimes happens, or 4 that they weren't there and they developed subsequently 5 through another process. And there is, in fact, in the 6 case, evidence of another process that could produce them, 7 which was brain swelling. 8 So this actually does provide an 9 opportunity then to revisit the diagnosis. Is there an 10 alternate cause, for example, that's not Shaken Baby 11 Syndrome? 12 COMMISSIONER STEPHEN GOUDGE: So what does 13 the doctor do with that? 14 What does the post-mortem author do? 15 DR. MICHAEL POLLANEN: Well, in that 16 circumstance, you would have to, essentially, determine if 17 the absence of the triad, upon admission, excludes or 18 negates the diagnosis of Shaken Baby Syndrome. 19 COMMISSIONER STEPHEN GOUDGE: And do your 20 best to come to an opinion with some level of certainty 21 one (1) way or the other. 22 DR. MICHAEL POLLANEN: Correct -- or at 23 least identify that as an issue. 24 Because, clearly, if you take the -- the 25 sort of, the standard view that the triad is the -- is


1 indicative of Shaken Baby Syndrome -- if you don't have 2 the triad initially then there's some doubt about it. So 3 how -- so, the pathologist then has to -- has to engage 4 that issue. 5 Well, okay, so we have the triad at 6 autopsy, we don't have the triad -- 7 COMMISSIONER STEPHEN GOUDGE: On 8 admission. 9 DR. MICHAEL POLLANEN: -- on admission, 10 what does that mean; how do I reconcile the two? 11 12 CONTINUED BY MR. MARK SANDLER: 13 MR. MARK SANDLER: So you're saying that a 14 -- that a death investigation free of confirmation bias 15 would at least assimilate this information and evaluate 16 how it effects the underlying opinion that you've 17 expressed? 18 DR. MICHAEL POLLANEN: Correct. 19 MR. MARK SANDLER: All right. In the 20 Sharon case. 21 DR. MICHAEL POLLANEN: In the Sharon case, 22 sometimes what -- what we would do is -- and admittedly, 23 this is sometimes quite difficult to do -- is actively 24 collect specimens or seek evidence that would be contrary 25 to a view; a prevailing investigative theory at the time.


1 So -- so, for example, one (1) of the 2 approaches that might have been helpful in the Sharon case 3 was to -- to swab the edge of the wounds to determine if 4 amylase was present. So, the -- the reconstruction here 5 being, if the pathologist is presented essentially with 6 two (2) competing hypotheses, a scissor stabbing and a dog 7 bite, then one (1) -- one (1) evidence based approach is 8 to say, Okay, well, let's collect evidence that is capable 9 of corroborating and excluding on both sides of the 10 possibility, and one (1) -- one (1) such mechanism would 11 be, for example, to collecting -- collection of swabs for 12 amylase. 13 Now -- 14 MR. MARK SANDLER: Saliva, in effect? 15 DR. MICHAEL POLLANEN: Correct. Now, to 16 be -- to be entirely fair about this, that is clearly not 17 something that we would do routinely. 18 COMMISSIONER STEPHEN GOUDGE: No, you'd 19 have to have a close call as between stab wound and dog 20 bite. 21 DR. MICHAEL POLLANEN: Correct. I mean -- 22 and -- and I'm not suggesting that, you know, in -- in 23 every case of stabbing that we go and collect -- 24 COMMISSIONER STEPHEN GOUDGE: Yes -- 25 DR. MICHAEL POLLANEN: -- so, you know,


1 saliva -- 2 COMMISSIONER STEPHEN GOUDGE: You see an 3 obvious stab wound you're not going to worry about 4 swabbing the edge for animal saliva. 5 DR. MICHAEL POLLANEN: Correct, so -- but 6 -- but it does -- this does represent an evidence based 7 opportunity when you are -- at the beginning -- you're 8 standing in the autopsy room and you're being shown a pair 9 of scissors and you have information about a dog, and if 10 you then say, Okay, well, I have these two (2) 11 possibilities and I'm going to use an evidence based 12 approach, what am I going to do? 13 14 CONTINUED BY MR. MARK SANDLER: 15 MR. MARK SANDLER: All right. The Amber 16 case? 17 DR. MICHAEL POLLANEN: The Amber case is 18 very interesting because it essentially comes back to this 19 statement of default diagnosis and the -- the statement 20 there is, in the absence of evidence to the contrary, the 21 findings are indicative of non-accidental injury. Well, 22 in the Amber case there's lots of evidence to the 23 contrary. 24 And in fact, the -- the issues there are, 25 there is a history of a fall and there is a unilateral


1 space occupying subdural haematoma that -- for which there 2 are mass effects and the child has undergone a craniotomy; 3 this is clearly contradictory evidence for Shaken Baby 4 Syndrome. 5 Even under a standard interpretation of 6 Shaken Baby Syndrome, with the triad and how those 7 features are distributed in -- in the head and brain, this 8 -- there was -- there's lots of evidence to the contrary, 9 and putting yourself in a position to -- to say how is 10 that evidence significant to negate the issue of Shaken 11 Baby Syndrome. 12 COMMISSIONER STEPHEN GOUDGE: At the very 13 least, a full report would have to deal with it. 14 DR. MICHAEL POLLANEN: Yes. Again, you're 15 putting -- putting a similar sit -- situation to, on the 16 one hand, a fall, and on the other hand, shaking, and then 17 seeing how the ledgers compare. 18 COMMISSIONER STEPHEN GOUDGE: Yes. The 19 bruising sort of makes it an easy call here, at least. 20 DR. MICHAEL POLLANEN: The bruising, the 21 unilateral space occupying subdural; I mean it's not -- 22 it's not part of the -- 23 COMMISSIONER STEPHEN GOUDGE: Take that 24 away; if it were just the fall and the triad? 25 DR. MICHAEL POLLANEN: The fall and the


1 triad is serious pause to consider -- to reconsider the 2 Shaken Baby diagnosis. 3 COMMISSIONER STEPHEN GOUDGE: Even a fall 4 of -- a low level fall? 5 DR. MICHAEL POLLANEN: Yes, absolutely. I 6 mean the -- the point of the matter there is -- 7 COMMISSIONER STEPHEN GOUDGE: Sorry, I 8 don't want to get into this, Mr. Sandler, because I know 9 you -- 10 MR. MARK SANDLER: Yeah, we're going to 11 spend a lot of time on it a little later. 12 COMMISSIONER STEPHEN GOUDGE: Yes, yes, I 13 -- why don't we just wait, Dr. Pollanen, because otherwise 14 you and I might divert the discussion here. 15 DR. MICHAEL POLLANEN: I want to keep you 16 in suspense, Commissioner. 17 18 CONTINUED BY MR. MARK SANDLER: 19 MR. MARK SANDLER: So, then you -- finally 20 you -- you use the Jenna case as a illustrative? 21 DR. MICHAEL POLLANEN: Yes. So -- so in 22 the Jenna case the -- there were additional opportunities 23 around -- around the forensically events and around 24 timing; and, for example, the -- the facial burn is a 25 recent injury, and so how that fits into the whole timing


1 constellation is a very important part. 2 It's a -- in other words, it's a piece of 3 evidence that you -- that you can use outside of the 4 abdominal injuries to situation yourself on a timing 5 spectrum. 6 Now, there's a lot more to say about -- 7 about Jenna, frankly, in terms of diagnostic reasoning 8 because, in my view, Jenna's actually quite a complicated 9 matter when it comes to timing. 10 MR. MARK SANDLER: All right. And we're 11 going to come to that shortly. 12 So, in -- in the next paragraph after Jenna 13 you -- you address the interplay between confirmation bias 14 and the use of anecdotal evidence or authoritative claims. 15 And could you explain to the Commissioner 16 was you see as the role of anecdotal evidence and -- and 17 how it factors into the discussion that we're having now? 18 DR. MICHAEL POLLANEN: We all form 19 opinions or views about -- about things based upon our 20 autopsy experience and our -- and our case experience. 21 And -- so that means that -- that experience is part of 22 the entire mix, but often anecdotal evidence, and that is 23 specific cases, are often a very good substrate to 24 challenge dogma. 25 And the best examples of that again, in


1 fact, come from the Shaken Baby literature, and that's the 2 issue of the short fall. And that is that the -- these 3 shor -- the lethal short falls in the domestic 4 circumstance are admittedly rare, but they are very good 5 foils or counterexamples to the Shaken Baby dogma. 6 So these -- these anecdotal cases to 7 provide very good foundations to challenge dogma. And on 8 that basis can open up new lines of thinking or new lines 9 of inquiry. So what I'm saying there is that while the 10 evidence-based approach is -- is very good and ultimately, 11 for -- in fact, may -- may lead to dogma itself, the -- 12 the opportunities created by individual cases to challenge 13 dogma needs to be recognized. 14 MR. MARK SANDLER: All right. So -- so 15 taking the example that you've provided, if there is 16 evidence based upon experience or in the literature that - 17 - that there are examples of short household falls that 18 have produced fatal injury then that might not contradict 19 the view that household falls that are fatal are 20 relatively rare, but it would contradict a theory that 21 said, "can't happen"? 22 DR. MICHAEL POLLANEN: Precisely. What it 23 does is, if you have a -- a child with a triad, a bruise 24 on the head, and a history of the fall, then this issue is 25 squarely on how specific is the medical evidence to


1 deliver a certain conclusion about a homicide. 2 And then the debate becomes more properly 3 situated into other ways of knowing if this is a fall or 4 not. In other words, it sets a limit on the medical 5 evidence. The medical evidence does not provide a ready- 6 made conclusion that the trier of fact can just accept. 7 It provides you to a certain lev -- gets you to a certain 8 level and then after that other evidence needs to be 9 adjudicated on the issue. 10 The -- the other perfect example of this is 11 -- is the frequent example that we see with neonatal or 12 pre -- or punitive neonatal death where you may have very 13 good evidence at autopsy of live birth. The -- the lungs 14 are aerated, well expanded, and you have a host of 15 exclusionary evidence for the actual cause of death. In 16 other words, the placenta is normal, there are no diseases 17 present, et cetera. 18 Where the pathology gets you there, in many 19 circumstances, is live birth, but unless there is -- is a 20 self-evident cause of death, such as strangulation, 21 stabbed in the heart, other -- other straightforward 22 causes of death, in those cases the pathology gets you to 23 live birth; cause of death unascertained. And then the 24 trier of fact needs to mobilize other evidence to 25 determine if, for example, that is a homicide.


1 MR. MARK SANDLER: Okay. 2 COMMISSIONER STEPHEN GOUDGE: Can I come 3 back and I am afraid I do have the use the shaken baby 4 example and Mr. Sandler had asked this question, but it 5 relates to the degree to which the pathologists as opposed 6 to the justice system factors in a rarity infant death 7 from short falls in a household, okay. 8 If you what you have -- let me take a 9 hypothetical with the triad and history of a fall and that 10 is it. No bruises, no brain swelling, et cetera, as in 11 the example you have used before. 12 Does the pathologist or should the 13 pathologist factor into the opinion making the rarity 14 statistically of infant death from short falls? 15 DR. MICHAEL POLLANEN: Forensic 16 pathologists, post-Meadow, are very wary of statistical 17 arguments, but it is an element. I mean, we -- part of 18 informing the Crown and the defence in those types of 19 cases is fairly representing the epidemiology of the 20 scenario -- 21 COMMISSIONER STEPHEN GOUDGE: Mm-hm. 22 Right. 23 DR. MICHAEL POLLANEN: -- which is that 24 short falls are rare -- rarely lethal. And that is a 25 fact.


1 COMMISSIONER STEPHEN GOUDGE: Right. 2 DR. MICHAEL POLLANEN: And -- and the 3 forensic pathologists must also bring that out as well. 4 And it might be -- it might be, in these scenarios, that 5 the forensic pathologist just has to say, This is the 6 state of the art; this is the state of the debate right 7 now. 8 COMMISSIONER STEPHEN GOUDGE: But it's not 9 to be excluded? I mean, it is a fact? 10 DR. MICHAEL POLLANEN: It cannot be 11 excluded. It's -- it's a -- I guess the -- what it comes 12 down to is, to what extent does that pathologist make that 13 determination, and to what extent does the trier of fact 14 do so. In other words, where -- where is that bright line 15 where the pathologist is going to usurp the -- the trier 16 of fact? 17 COMMISSIONER STEPHEN GOUDGE: Right. 18 19 CONTINUED BY MR. MARK SANDLER: 20 MR. MARK SANDLER: So, for example, you 21 might say in -- in that kind of a case that -- that the 22 pathology which we see here has -- has been shown in the 23 past to be explained by a non-accidental event. 24 It has been shown in the past to -- to have 25 occurred in an accidental scenario. It is relatively rare


1 for -- for the household fall to produce a fatal injury, 2 but one (1) cannot exclude that possibility. 3 I mean, would that be the kind of 4 discussion that you could have? 5 DR. MICHAEL POLLANEN: Essentially yes. 6 Now there may be other elements of the autopsy that may 7 help you. 8 COMMISSIONER STEPHEN GOUDGE: Yes, 9 absolutely. I was trying to pose the most difficult case 10 where one (1) has no other pathological evidence and 11 perhaps, no other circumstantial evidence. And the degree 12 to which a pathologist says, I am looking only at what I 13 saw with the body and what I see with the histology and 14 the other lab work. And the degree to which the 15 pathologist should include in a properly done report, 16 evidence to what I would call epidemiology of a sort? 17 DR. MICHAEL POLLANEN: That is the 18 quandary. That -- that is the issue. 19 COMMISSIONER STEPHEN GOUDGE: I get to ask 20 the questions. What's the answer? 21 DR. MICHAEL POLLANEN: Well, the -- the 22 answer is there is no answer. The answer is this is the-- 23 COMMISSIONER STEPHEN GOUDGE: The answer 24 is to lay it out I would have thought, and to say, Okay, 25 here are the considerations that are relevant to


1 determining the question the court must ultimately answer? 2 DR. MICHAEL POLLANEN: Essentially, that 3 is the role of the pathologist as a consultant and as an 4 educator if you will, to say, These are my findings. This 5 is my interpretation of the findings situated within the 6 greater context. 7 COMMISSIONER STEPHEN GOUDGE: But the 8 greater context includes the epidemiology so far as -- 9 DR. MICHAEL POLLANEN: It does. 10 COMMISSIONER STEPHEN GOUDGE: -- the 11 literature sustains it? 12 DR. MICHAEL POLLANEN: And to some extent 13 it includes circumstantial information as well. 14 COMMISSIONER STEPHEN GOUDGE: Right. 15 16 CONTINUED BY MR. MARK SANDLER: 17 MR. MARK SANDLER: If we can to turn to 18 systemic issue Number 4, and you've headed that up at page 19 6 as the Sliding Scale for Degree of Certainty in Forensic 20 Pathology. And if the Commissioner thought the last 21 question was a difficult one (1), I -- I know from -- from 22 discussing this with you that this one (1) is a 23 particularly difficult one (1) as well. 24 You've reflected that: 25 "We need to recognize that there's no


1 uniform standard for the level of 2 certainty for expert opinions by 3 different forensic pathologists. And 4 that there's often a sliding scale for 5 that standard depending on the issue." 6 Let's just start from basics here. If one 7 (1) looks to the literature or the dialogue that's taking 8 place in the profession about this issue, is there a 9 universally agreed upon approach to the standard to be 10 applied? 11 DR. MICHAEL POLLANEN: No. 12 MR. MARK SANDLER: You've identified three 13 (3) basic problems here. Could you outline for the 14 Commissioner what you see as those problems in addressing 15 this issue? 16 DR. MICHAEL POLLANEN: Yes. The first is 17 that there -- there are circumstances occasionally in 18 forensic pathology where two (2) experts and their occupy 19 -- occupying an evidence-based position, they're well 20 educated, qualified; they have all the desirable 21 attributes to be an expert. 22 And they will look at the same set of 23 facts, and they will come to different conclusions. And 24 the reason for that is where the individual pathologists 25 essentially put the cut off for evidence.


1 In other words there is through a body of 2 evidence, one (1) pathologist will say, You know, that 3 constellation of evidence is sufficient to render this 4 diagnosis. 5 The other pathologist says, You know what, 6 my bar is higher. I need a little bit more evidence to 7 give that diagnosis; these -- these sets of facts are not 8 sufficient. 9 And will give a more tentative opinion or, 10 in fact, might even say "unascertained" as the cause of 11 death. And that is -- that is a fact of life in forensic 12 pathology because we -- although we try to be scientific, 13 we strive to be scientific, our tool ultimately is the 14 autopsy not a scientific test like mass spectroscopy. 15 So there -- there is a fundamental 16 difference. So it does require a human element to -- to 17 examine the nature of the facts. 18 And I would suggest that -- 19 COMMISSIONER STEPHEN GOUDGE: It is an 20 expression of opinion in the end. 21 DR. MICHAEL POLLANEN: Exactly. And I 22 would suggest that providing that in an evidence-based 23 fashion, linked to the medical literature, is a highly 24 desirable approach. But even doing so may result in two 25 (2) experts disagreeing legitimately.


1 The problem that leads to is problem number 2 two (2), which is the fact that because we are then 3 imbedded within the Criminal Justice System. This is 4 often viewed as one (1) pathologist being right, and the 5 other pathologist being wrong. 6 Whereas, if this were in another branch of 7 medicine, it might ensue about a healthy debate about 8 professional difference of opinion, which is exactly 9 what's being manifest among pathologists but it assumes a 10 greater importance because of the -- the Criminal Justice 11 System. 12 And so one (1) pathologist is right, the 13 other pathologist is wrong; this is a binary, you know, 14 construction because there is a -- 15 COMMISSIONER STEPHEN GOUDGE: Right. 16 DR. MICHAEL POLLANEN: -- essentially, a 17 prosecution and a defence; you're guilty or not guilty. 18 And -- and so that structure, the criminal 19 justice structure does not well reflect medical -- 20 medicolegal nature of some of these issues and that 21 creates -- that creates a difficulty. 22 Now, that is not an apologist's approach 23 for saying that there may be differences of opinion. 24 Sometimes, one (1) pathologist is wrong, factually 25 incorrect, and their opinions are not substantiated. I


1 mean, that does occur. But not all circumstances where 2 pathologists differ represent that very stark contrast. 3 COMMISSIONER STEPHEN GOUDGE: There could 4 be differing opinions drawn from the same pathological 5 evidence, both of which would be defensible to some 6 extent? 7 DR. MICHAEL POLLANEN: Yes. Exactly. 8 COMMISSIONER STEPHEN GOUDGE: Okay. 9 MR. MARK SANDLER: And we're going to see 10 how this plays out in the individual cases. 11 COMMISSIONER STEPHEN GOUDGE: Okay, fine. 12 Can I ask a couple of questions? 13 MR. MARK SANDLER: You can ask anything 14 you want, Commissioner. 15 COMMISSIONER STEPHEN GOUDGE: Why 16 shouldn't pathologists in the circumstance you posed -- 17 that is, properly trained, gathering pathology facts and 18 using evidence-based approach -- why shouldn't they be 19 able to articulate the level of certainty with which they 20 hold their opinion? 21 DR. MICHAEL POLLANEN: Because it's not 22 reproducible. 23 Having said that -- 24 COMMISSIONER STEPHEN GOUDGE: Well, why 25 can't they articulate why? That is, wouldn't it be


1 possible, Dr. Pollanen, for a pathologist to say, On this 2 set of facts, as we agree they exist, the pathology is 3 indisputed -- undisputed. My opinion is that the cause of 4 death is X and I hold that with a high degree of certainty 5 for the following reasons. Reasons articulated. Okay? 6 Pathologist B, the one (1) that you would 7 say has a different cutoff point for certainty, would do 8 exactly the same thing, I'm not as certain as pathologist 9 A; I think there is a probability of cause of death being 10 X but I'm not as certain as my colleague, here's why. 11 What's wrong with that paradigm? 12 DR. MICHAEL POLLANEN: There's nothing 13 wrong with it, it's essentially, Does that language 14 encapsulate the difference? That's the issue. And the 15 issue is -- 16 COMMISSIONER STEPHEN GOUDGE: Well, why 17 wouldn't it? 18 DR. MICHAEL POLLANEN: Well, because in 19 one (1) circumstance you're saying the test is 20 probability, and I'm not sure what the other word you used 21 but, you know, reasonable certainty, and -- 22 COMMISSIONER STEPHEN GOUDGE: High level 23 of, yeah, reasonable certainty. 24 DR. MICHAEL POLLANEN: And -- and, you 25 know, these are -- they do not naturally correlate with


1 sort of percentages. And how I use that term and somebody 2 else uses that term -- pathologist A and B may have 3 different usage of that term, so how is it ultimately 4 meaningful? 5 So I understand that -- 6 COMMISSIONER STEPHEN GOUDGE: I guess what 7 I -- sorry. 8 DR. MICHAEL POLLANEN: We need to -- we 9 need to have a narrative, we need to explain when we get 10 into these gray zones, but there is no easy solution. You 11 can't, for example, say to expert witnesses, you know, 12 here's a Likert scale, a one (1) to five (5) scale, or a 13 one (1) to ten (10) scale, and say, you know, sort of, 14 Tell us is that an eight (8) out of ten (10) or a two (2) 15 out of ten (10). 16 There's no easy relationship like that for 17 -- for expert opinion evidence. There have been attempts 18 to create such scales, but how -- but essentially the 19 issue there is, how do you cre -- how do you divide up a 20 spectrum of continuous variation into bits, into 21 categories, non-overlapping categories? 22 COMMISSIONER STEPHEN GOUDGE: I can't -- 23 can't get away from the paradigm that in the -- in the 24 hypothetical you and I are talking about, one (1) 25 pathologist is more certain of the conclusion than the


1 other. 2 Is that wrong? Is it wrong to think of it 3 that way? 4 DR. MICHAEL POLLANEN: It's wrong to think 5 of it that way insofar as that is a meaningful analysis 6 the encapsulates the difference between them within -- 7 COMMISSIONER STEPHEN GOUDGE: But wouldn't 8 they say that to each other in a dialogue; one (1) would 9 say you're more ascertain of the conclusion than I am? 10 DR. MICHAEL POLLANEN: Well, I think 11 that's true, but -- but -- 12 COMMISSIONER STEPHEN GOUDGE: Then why 13 wouldn't they say it to the Court and try to explain it 14 and let the Court decide? 15 DR. MICHAEL POLLANEN: I think ultimately 16 that does happen. 17 COMMISSIONER STEPHEN GOUDGE: What's wrong 18 with that? 19 DR. MICHAEL POLLANEN: There's nothing 20 wrong with it. I would say that what we need to do is we 21 need to create mechanisms to facilitate that discussion 22 happening before a trial. 23 COMMISSIONER STEPHEN GOUDGE: Right. 24 DR. MICHAEL POLLANEN: I think that's the 25 issue, the systemic issue that emerges --


1 COMMISSIONER STEPHEN GOUDGE: Right. 2 DR. MICHAEL POLLANEN: -- from it, but it 3 doesn't -- it will not change the fundamental issue, which 4 is that pathologist A and B reasonably differ. 5 COMMISSIONER STEPHEN GOUDGE: I agree with 6 that. And that clearly is a scientific possibility and -- 7 DR. MICHAEL POLLANEN: Yes. 8 COMMISSIONER STEPHEN GOUDGE: -- one (1) 9 the we, in the Court system, have to be prepared to accept 10 and grapple with. But one (1) way that one might look at 11 this, Dr. Pollanen, is that there's sort of a two (2) part 12 problem here; one (1) is getting the scientist to 13 articulate expressly and with reasons the level of 14 certainty with which the view is held, and secondly, using 15 language that can communicate the scientist's level of 16 certainty in a way that the listener, the Court system, 17 can understand. 18 DR. MICHAEL POLLANEN: And I agree that is 19 the challenge and -- 20 COMMISSIONER STEPHEN GOUDGE: But isn't 21 that sort of the double-barrelled problem we've got here; 22 one (1), the scientist having a self-awareness of the 23 level of certainty and the other is a transparent 24 communication in a meaningful way so the listener will 25 understand?


1 DR. MICHAEL POLLANEN: I agree. 2 Essentially what you're saying is, there are -- the 3 discussion happens -- or -- or the relevant discussion has 4 two (2) players, the medical and the legal. 5 COMMISSIONER STEPHEN GOUDGE: Yes. 6 DR. MICHAEL POLLANEN: And the tension -- 7 what we need to do is we need to resolve the tension 8 between the two (2), and part of that resolution is -- is 9 going to be done through effective communication of the 10 issue of level of certainty between the experts -- 11 COMMISSIONER STEPHEN GOUDGE: Yes. 12 DR. MICHAEL POLLANEN: -- and then 13 communicate it sufficiently to the Criminal Justice 14 System. 15 COMMISSIONER STEPHEN GOUDGE: Thanks. 16 17 CONTINUED BY MR. MARK SANDLER: 18 MR. MARK SANDLER: So, just following up 19 on the Commissioner's question, let's assume that in the 20 scenario that the Commissioner discussed that -- that the 21 experts do a better job in, at least, communicating in a 22 transparent way where they believe they fall on the scale 23 of certainty. So one (1) says I'm confident to a 24 reasonable degree of medical certainty that -- that this 25 is the cause of death, the other says I'm less confident,


1 though -- though that's certainly a possibility, or a 2 probability, or what have you arising on the evidence. 3 It doesn't address the concern that you've 4 expressed, which is that they may have very different 5 notions internally of what it takes to be certain, or 6 probable, or what have you, right? Now -- 7 DR. MICHAEL POLLANEN: That is a huge 8 issue, yes. 9 MR. MARK SANDLER: That's the issue. 10 Well, the question that I ask, and it's a layperson's 11 question, is there any possibility of -- of forensic 12 pathologists meeting together to -- to put scenario -- say 13 to put fifty (50) scenarios to acquire a common 14 understanding of when it is that it will be said that this 15 should amount to certainty, when this should amount to 16 probability, or when this should amount to possibility? 17 DR. MICHAEL POLLANEN: Very interesting. 18 The -- there -- a study like that, I am -- I am unaware 19 that a study like that has been done, but it's -- but a 20 variant of that study has been done and the -- and the 21 results are very interesting. 22 I can't tell them to you off the top of my 23 head, but the -- but the -- 24 MR. MARK SANDLER: This is done in the 25 states, I bel -- wasn't it?


1 DR. MICHAEL POLLANEN: It was. The 2 National Association of Medical Examiners study on Manner 3 of Death. And the way, unfortunately -- or it's not 4 unfortunate, it's a -- it's a matter of fact. The way it 5 was couched was relative to the gold standard. 6 And that's a -- that's a very difficult 7 problem in forensic pathology, because one (1) of the 8 issues, if you compare us to the forensic sciences, is 9 that there are, for example, analytical gold standards. 10 And we talked -- the last time I was here, 11 we talked about how hair microscopy -- comparisons based 12 on hair microscopy -- have been essentially replaced by a 13 more definitive mechanism of -- of analysis which is 14 mitochondrial DNA analysis and all of the interesting 15 issues that flow out of that. 16 The -- the approach that some pathologists 17 have advocated, and for example, surveys, is to compare 18 the great unwashed to the gold standards by taking, you 19 know, sort of people that are well respected in the 20 discipline. 21 And does that actually encapsulate what we 22 want to -- it to encapsulate? I'm not certain. So these 23 -- these are the problems with these types of -- of 24 analysis. 25 MR. MARK SANDLER: Okay. Going on in --


1 in your -- your own work at -- at page 6. You've 2 reflected another issue, at item 3, and perhaps you could 3 explain what the third basic problem you've identified at 4 page 6 is? 5 DR. MICHAEL POLLANEN: Well, I'll give you 6 an example of this, because this is -- this is a key issue 7 related to where we set the bar of -- of cut-off. Let's 8 take the hypothetical example of somebody who is stabbed 9 in the heart. 10 And at autopsy, I -- I find a stab wound. 11 It's over the heart, there's a wound track into the heart, 12 and the chest is full of blood. We would all agree that 13 that is very good evidence for the cause of death. 14 In fact, we might say we're certain about 15 the cause of death in that circumstance. But let's change 16 the case diff -- to make it somewhat different. Let's now 17 say that we have a skeleton, and it's in -- in a forest. 18 And at autopsy, we have a -- a rib that is 19 cut right above the heart, and it's a sharp force injury. 20 So in other words, there is -- there is evidence that 21 there is a perforating wound track into, you know, through 22 the rib and then penetrating into the chest. 23 And there is reasonable evidence in that 24 circumstance to say the wound has gone into the heart. We 25 don't have the heart. We don't have any way of measuring


1 how much blood was in the chest. All we have is a 2 skeleton with this nick in the rib. 3 Now in forensic pathology, that's 4 sufficient. We give the cause of death as stab wound of 5 chest in that circumstance. But it's a very, very low 6 standard there. The -- the -- we're not -- we -- we don't 7 have an abundance of evidence to -- to support our 8 conclusion. 9 We're essentially using induction and 10 reasonable sort of inferences to say, Well the -- the stab 11 wound through the rib is a reasonable proxy for a fatal 12 injury to the heart. 13 And -- and that's -- that represents a 14 great difference. The bar is -- is put very much lower in 15 -- in the case of the -- of skeletal remains. Now that, 16 in some ways, could be viewed as a problem. 17 Because in certain circumstances where -- 18 depending now on the circumstance, the bar is -- is 19 changing. And that introduces a further level of 20 complexity. 21 COMMISSIONER STEPHEN GOUDGE: Take those 22 two (2) hypotheticals -- would it be possible for the 23 pathologist doing one after the other to articulate the 24 different levels of certainty of the cause of death is 25 stab wound?


1 That is, could you say as the pathologist 2 doing the autopsies in the two (2) cases, I am X much more 3 certain in the first case then the second that the cause 4 of death was stab wound? 5 DR. MICHAEL POLLANEN: You could. 6 COMMISSIONER STEPHEN GOUDGE: I mean, you 7 know the bar is at a different level. You know you are 8 less certain with the second then the first. 9 DR. MICHAEL POLLANEN: Yes, you do -- you 10 do know. But I -- I guess the point there I was trying to 11 make is that it would -- it would comfortably pass the 12 threshold for most -- 13 COMMISSIONER STEPHEN GOUDGE: Yes. And -- 14 DR. MICHAEL POLLANEN: -- forensic 15 pathologists. 16 COMMISSIONER STEPHEN GOUDGE: -- and the, 17 sort of, the supplementary question I was posing was, if 18 you were articulating the second case to the court, would 19 you be able to describe the level of certainty that you 20 attached to the cause of death you had determined in a way 21 that the court listening could know how it compared to 22 another hypothetical here first? 23 DR. MICHAEL POLLANEN: I would probably 24 just give the example that I've just given. 25 COMMISSIONER STEPHEN GOUDGE: But could


1 you quant -- 2 DR. MICHAEL POLLANEN: But I might -- 3 COMMISSIONER STEPHEN GOUDGE: -- could you 4 quantify the difference? Could you articulate the 5 different level of certainty, because there clearly is 6 one? 7 DR. MICHAEL POLLANEN: Yeah. The 8 percentage, no. I -- I sort of view it as a threshold. 9 That type of case, by its very nature, has a lower 10 threshold of evidence that is re -- that I am -- I am 11 willing to accept to give the cause of death. 12 I don't think the pathologist is providing 13 a meaningful expert opinion to say, I don't have a heart; 14 the cause of death is unascertained. 15 COMMISSIONER STEPHEN GOUDGE: What I am 16 getting at is part of the consumer's interest -- the 17 consumer being the court -- is to put the pathologist's 18 view of the cause of the death together with other 19 evidence to answer the ultimate question. And it may be 20 important in a particular case for the court, the 21 consumer, to know the level of certainty that the 22 pathologist is attaching to the opinion; cause of death is 23 stab wound. 24 How does that get articulated in a 25 meaningful way to the court, if at all?


1 DR. MICHAEL POLLANEN: Well, in the case 2 of the skeleton, essentially what you would say is that 3 the autopsy has demonstrated a potential cause of death. 4 And given the framework that forensic pathology works in, 5 with regard to skeletal remains, that potentiality rises 6 to being the cause of death. 7 And -- and I'm not so sure it -- it 8 correlates directly with a certainty. It's basically that 9 our methodology provides for this conclusion in this 10 circumstance. 11 COMMISSIONER STEPHEN GOUDGE: It is a 12 conundrum because the court will want to know how much 13 more certain you are in the stab wound case with the heart 14 and the blood than you are in skeletal case. 15 DR. MICHAEL POLLANEN: Well, I mean, I 16 think you'd have to say less certain if you were comparing 17 the two (2) -- 18 COMMISSIONER STEPHEN GOUDGE: Yes. 19 DR. MICHAEL POLLANEN: -- because you have 20 less evidence. I mean, that's the whole evidence-based 21 approach. But are you -- are you sufficiently less 22 certain that you would give the cause of death as 23 unascertained? 24 COMMISSIONER STEPHEN GOUDGE: Answer, no. 25 DR. MICHAEL POLLANEN: Answer is no.


1 COMMISSIONER STEPHEN GOUDGE: Yes. 2 DR. MICHAEL POLLANEN: So what I'm saying 3 is I can't tell you the percentage diff -- distance 4 between the two (2). 5 COMMISSIONER STEPHEN GOUDGE: But as part 6 of a legitimate opinion, the expression of some level of 7 certainty once the bar is exceeded? That is, surely the 8 two (2) cases should not result in the court thinking that 9 the pathologist has the same level of certainty in each? 10 That would be a miscommunication. 11 DR. MICHAEL POLLANEN: I'm not -- I'm not 12 so sure that, for example, that would readily be apparent 13 from my testimony on the an -- on the issue. 14 COMMISSIONER STEPHEN GOUDGE: How do we 15 get at that, Dr. Pollanen? 'Cause isn't that sort of an 16 important communication gap? 17 DR. MICHAEL POLLANEN: I -- I think the 18 best way you could do it is through exploring this analogy 19 between the two (2) cases. 20 COMMISSIONER STEPHEN GOUDGE: Okay. 21 Thanks. 22 23 CONTINUED BY MR. MARK SANDLER: 24 MR. MARK SANDLER: And -- and final 25 conundrum under this systemic issue that I -- I want to


1 talk to about and then, perhaps, we'll -- we'll give some 2 flesh -- this may be the best expression -- give some 3 flesh to these issues by discussing the individual cases. 4 And that is the debate over the extent to 5 which circumstantial evidence, apart from the pathology, 6 can figure into the opinion that's expressed by the 7 pathologist. 8 So could you identify, for the 9 Commissioner, what the issue is and then -- and then I 10 want to give you an example and -- and ask you to comment 11 on it? 12 DR. MICHAEL POLLANEN: This is debated and 13 written about in the forensic literature. And essentially 14 the question is, how much circumstantial information is 15 the pathologist -- how much circumstantial information 16 should the pathologist use in determining the cause of 17 death. 18 And this -- this spectr -- the -- sort of 19 the polar opposites are easy to identify. We should not 20 use confessions because confessions need to be tested in 21 court and they may not be admissible. There are a whole 22 bunch of additional considerations that come with 23 confessions. 24 It would not be reasonable for a 25 pathologist to say, The autopsy is negative, the police


1 have told me that the mother said that she smothered the 2 baby, therefore, I give the cause of death as smothering. 3 That would be incorrect. 4 MR. MARK SANDLER: Just to stop there for 5 a moment. 6 There are forensic pathologists that -- 7 that do exist, that take the circumstantial evidence to 8 that degree, do they not? 9 DR. MICHAEL POLLANEN: There are. They 10 are -- there are, yes. 11 MR. MARK SANDLER: All right. 12 DR. MICHAEL POLLANEN: And I would 13 disagree with that. 14 MR. MARK SANDLER: Okay. I interrupted 15 you. So then you were going to talk about the other end 16 of the spectrum. 17 DR. MICHAEL POLLANEN: And then there's 18 the other end of the spectrum where the pathological 19 findings are essentially so determinative on their own 20 that you don't really need to know anything about the 21 circumstances. 22 For example, a -- a person who has been 23 shot in the back twelve (12) times, clearly, the medical 24 conclusions will be stand alone. If -- if the police give 25 a history that he was stabbed in the chest, I mean,


1 clearly, this is irrelevant information and the pathology 2 would essentially trump that history. 3 Now, you laugh, but that does actually 4 sometimes happen. It's not in the domestic circumstance 5 but in the war crime circumstance where -- where the oral 6 history of what's happened may not truly reflect what you 7 find on exhumation of the body. 8 So -- so the issue -- the issue there is 9 how much circumstantial information is the pathologist 10 able to incorporate. Where's the cutoff in inclusion of 11 circumstantial information? 12 And as these other issues are, there is no 13 bright line test. There is no strict cutoff. 14 In the polar extremes, it's easy to 15 identify, but in other circumstances it may not be. And 16 there are many examples of -- of that in forensic 17 pathology and I'll give you one (1) of the most common 18 examples and it has nothing to do with homicide, and that 19 is sudden cardiac death. 20 The vast majority of people in Ontario will 21 die naturally of heart disease. That's an epidemiological 22 truism. 23 And at autopsy, if you die suddenly and 24 unexpectedly and you come to my department, in the vast 25 majority of cases what we will demonstrate is stable,


1 severe hardening of the arteries but no acute lesion. In 2 other words, no specific change in the heart or the 3 arteries of the heart, which will explain why you have 4 died then; specifically, then. 5 So in other words, what you have -- what 6 you have demonstrated at autopsy is a potential cause of 7 death. 8 Because if the history is the person is 9 also a drug addict and you run a toxicology test and they 10 have a high level of cocaine, then the laboratory result 11 of cocaine essentially trumps the heart disease because 12 the heart disease is only a potential cause of death. 13 That cause of death -- the toxicologic cause of death 14 provides more certain evidence that the death is related 15 to drug intoxication. 16 But the quan -- that scenario is very 17 infrequently toxicology. The scenario that we use to 18 determine the lethality of heart disease is circumstances. 19 The fact that you're found dead in bed in 20 sort of a non-violent condition, that provides the 21 additional information which allows the pathologist to say 22 that your potential cause of death at autopsy is your 23 cause of death. 24 So in other words, if we set the bar -- if 25 we use the bar analogy. If we set the bar too -- too high


1 and say pathologists cannot consider circumstantial 2 information, then virtually everyone who dies of sudden 3 natural death in their bed would have to be certified as 4 "unascertained," which is an undesirable approach. 5 So on this basis, we clearly have to use 6 circumstantial information. The question is, how much and 7 to what effect. 8 MR. MARK SANDLER: All right. Well, 9 against that background, we're going to look at the 10 individual cases or a number of them to see how some of 11 the issues that you've identified play out in those cases. 12 And at page 7 of your materials, you've 13 identified five (5), what you describe as forces, that 14 should inform our consideration of -- of these cases. And 15 could you simply outline for the Commissioner what you've 16 identified as -- as those forces and -- and then we'll see 17 how you've applied them? 18 DR. MICHAEL POLLANEN: Well, just as -- as 19 a preamble here, I have to say that what -- what I -- I've 20 identified these five (5) forces, but you have understand 21 that I'm looking at this in the context of medical 22 diagnosis. So we're not talking about other for -- forces 23 that exist in the greater system. I'm looking now at the 24 medical diagnosis. 25 And I have to say that this is -- the


1 process leading up to the identification of the issues 2 really started as soon as I analysed the Valin case. 3 Because what -- what became apparent to me upon viewing 4 the Valin case is that any type of constructive approach 5 to an analysis of these cases, like Valin, would 6 necessarily include sort of a deconstruction of the 7 diagnosis and how it unfolded and -- and so on. 8 Now, again, there's a whole bunch of 9 variables which -- which impinge on that, but the lessons 10 for the pathologists looking at these cases essentially 11 derive from the type of analysis that I've done here. 12 And so with considerable reflection, I've 13 essentially sort of identified five (5) variable or forces 14 that I think are relevant in understanding the mistakes, 15 as it were, in these cases. And the -- 16 MR. MARK SANDLER: And just stopping there 17 for a moment. And when we're describing the diagnostic 18 mistakes, you're not dealing either here or in the chart, 19 which I'm going to take you to in a moment, with the 20 testimonial difficulties that -- that we'll separately 21 deal with? 22 DR. MICHAEL POLLANEN: Or, for example, 23 issues surrounding continuity of evidence and other -- 24 sort of other procedural or technical aspects. These are 25 more cognitive.


1 MR. MARK SANDLER: Okay. 2 DR. MICHAEL POLLANEN: So -- so the first 3 one is in many of these case -- well, in fact, in all of 4 the cases other -- other then, you know, a subset that 5 we'll talk about, the autopsy findings were 6 misinterpreted. And essentially that is what the panel 7 produced for us. They -- they basically identified the 8 misinterpretations from the autopsy that resulted in 9 ultimately a problem with the medical evidence. But -- 10 but there are other dimensions or other factors that -- 11 that also come to bear there. 12 And the second one -- and -- and this is 13 present in many of the cases -- is that the 14 misinterpretation -- that the actual medical 15 interpretation was often reinforced by the presence of 16 circumstantial information or autopsy findings that 17 indirectly supported or failed to negate the 18 misinterpretation. 19 So in other words, in some cases it wasn't 20 simply some misinterpretation occurred, but that there 21 were other aspects of the case that really facilitated 22 that. So in other words, there were -- there were 23 positive elements in -- in the case that encouraged that 24 conclusion, reinforced the conclusion. 25 The -- the third issue is that some of


1 these misinterpretations occurred within the context of a 2 knowledge controversy or a well recognized pitfall within 3 forensic pathology. So in other words, the 4 misinterpretation was -- was linked with an area that had 5 -- that we all recognized as forensic pathologists as 6 being problematic. 7 You might even say that similar 8 pathologists might fall into, you know, a -- a trap that 9 is laid by some of these pitfalls. That one (1) of the 10 principles that we use in diagnosis is -- and this comes 11 straight from the internists -- is Ockham's Razor. Sir 12 William of Ockham was a medieval philosopher and he 13 basically said to us seek single simple explanations 14 rather then two (2) improbable explanations. 15 And so in -- in medical diagnosis when 16 confronted with, for example, a patient with -- with two 17 (2) symptoms, we seek to unify them with one (1) 18 diagnosis. And that's a -- that's a fund -- that's a 19 fundamental principle of medicine. Unfortunately if you 20 misapply Occam's Razor, you will unify two (2) things that 21 should be separated and -- and that's a pitfall of medical 22 reasoning. 23 And -- and the fifth issue is that in many 24 of the cases that are in the -- in the twenty (20), the 25 opinion -- the expert opinion offered was supported or


1 reenforced by others, other medical experts and in -- in 2 so doing, provided weight to the -- to the opinion. And - 3 - and that is consultation with other experts and other 4 pathologists is a healthy, good practice that should be 5 encouraged. 6 But in the end, if many people have made 7 the same mistake or fallen into the same pitfall, you will 8 just basically get an echo chamber where people are 9 repeating the same error. 10 So I -- was I've done, is I've said after 11 analysing the cases in these -- in these five (5) 12 categories, in my view forensic pathologists are best 13 informed by that type of analysis of the issues. 14 MR. MARK SANDLER: These are many of the 15 lessons to be learned by forensic pathologists in viewing 16 the cases under consideration, simply put? 17 DR. MICHAEL POLLANEN: In my view, yes. 18 MR. MARK SANDLER: So if you go to page 19 13, which is your chart, and what we're going to do is -- 20 is go through the cases if we may, and you can identify 21 how these forces in your view came to inform the mistakes 22 that were made. 23 The first case is Amber. And you've listed 24 the main problem as: 25 "Mis-diagnosis of an accidental head


1 injury as shaken injury." 2 So explain to the Commissioner, if you 3 would, what you mean. 4 DR. MICHAEL POLLANEN: Well in the case of 5 Amber, Amber's died of a fall, she's not died of a shaking 6 injury. And it was a mistake to come to the conclusion 7 that she had been shaken to death. 8 And that is, I think, very eloquently 9 examined in Justice Dunn's ruling on the case. 10 MR. MARK SANDLER: We've anticipated a 11 question that I was going to ask you a little later, but 12 this is as good a time as any. The Commissioner has heard 13 quite a bit about Justice Dunn's judgment and had an 14 opportunity to read it. 15 From a forensic pathologist perspective, 16 did Justice Dunn correctly articulate what the issues, the 17 forensic pathology issues were, both in the way in which 18 the death investigation was conducted and in where the 19 pathology should lead you? 20 DR. MICHAEL POLLANEN: I think it was a 21 masterful analysis of the case frankly. And I -- and I 22 think that in a way it was an analysis that was perhaps 23 slightly before it's time, because I think that the -- the 24 growth of knowledge in the area has really evolved further 25 in the direction that was elucidated in -- in that ruling.


1 It's a very lucid analysis of the -- of the issues. 2 MR. MARK SANDLER: Okay. So if you -- and 3 I -- and I guess the question that flows from that, before 4 we proceed through the chart is that assuming a scenario 5 where -- where, at the material time in 1991, and 1992, 6 you were the Chief Forensic Pathologist of the Province, 7 and -- and those reasons came to your attention in 8 connection with the work that had been performed by one 9 (1) of the forensic pathologists doing coronial work, what 10 do you do with the judgment? 11 DR. MICHAEL POLLANEN: Well, I mean, I 12 think the -- the response that I would generate from that 13 would be discussion. I mean, I think -- I think once you 14 -- once you have an issue like that brought in a case, 15 then -- that the appropriate sort of reaction would be to 16 get the relevant people involved to sit down and discuss 17 the case; for example, like you could sort of view it as a 18 -- as a post-trial conferencing situation to analyse the - 19 - the case, to analyse what should flow from -- from the 20 judgment. 21 So you would -- would include, for example, 22 forensic pathologists, senior management, the -- the 23 pathologists or medical experts involved. 24 MR. MARK SANDLER: Okay. So, if you take 25 the Commissioner through the -- the balance of the chart


1 on the Amber case. 2 DR. MICHAEL POLLANEN: So the -- so the 3 misinterpretation at autopsy essentially is related to the 4 neuropathology and the scalp -- 5 COMMISSIONER STEPHEN GOUDGE: If you want 6 to pack that in a sentence or two, but -- because I don't 7 have the judgment back in my head fully. 8 DR. MICHAEL POLLANEN: So, essentially 9 this goes to, how does the -- how do the individual 10 physical findings in the brain and around the brain, how - 11 - how should they be interpreted? 12 COMMISSIONER STEPHEN GOUDGE: They were 13 nonspecific -- 14 DR. MICHAEL POLLANEN: Well -- 15 COMMISSIONER STEPHEN GOUDGE: -- whereas 16 they were interpreted as -- 17 DR. MICHAEL POLLANEN: They were 18 interpreted as indicative of shaking injury. The issue 19 there being that the -- the pattern or distribution of 20 bleeding, for example, in -- you know, on the surface of 21 the brain and the fact that there -- the bleeding was 22 unilateral and space occupying is a -- is a feature that 23 is more frequently seen with impact. 24 COMMISSIONER STEPHEN GOUDGE: And 25 contracoup and --


1 DR. MICHAEL POLLANEN: These are the 2 issues, brain -- if there was an issue of whether or not 3 there was brain contusion present and there was bruising, 4 indicating an impact, and this, sort of, in the -- in the 5 cons -- in the context of the circumstantial information, 6 you know, provides fairly good evidence for a fall; that's 7 why circumstantial information column is a -- there's a 8 dash there, because, in fact, the circumstantial 9 information, in this case, actually puts the balance onto 10 accident, as opposed to -- as opposed to the shaking side. 11 And in the controversy -- the related 12 controversy -- there is the whole Shaken Baby issue -- 13 COMMISSIONER STEPHEN GOUDGE: Yes. 14 DR. MICHAEL POLLANEN: -- and the short 15 fall issue. 16 17 CONTINUED BY MR. MARK SANDLER: 18 MR. MARK SANDLER: But -- but just 19 stopping there for a moment, and the Commissioner is going 20 to hear this afternoon what your thoughts are on the 21 controversy and the indicia of Shaken Baby Syndrome and -- 22 and where that takes you, but, in your view, was this a 23 triad case? 24 DR. MICHAEL POLLANEN: No. 25 MR. MARK SANDLER: And why not? Again,


1 just basically if you could provide -- foreshadow what 2 you're going to be saying this afternoon so that the 3 Commissioner understands how it applies to the Amber case. 4 DR. MICHAEL POLLANEN: Well, there's clear 5 pathological evidence of blunt impact head injury. 6 COMMISSIONER STEPHEN GOUDGE: It's the 7 neuropathology. 8 DR. MICHAEL POLLANEN: Yeah, and the -- 9 and the distribution of bleeding -- 10 COMMISSIONER STEPHEN GOUDGE: Right. 11 DR. MICHAEL POLLANEN: -- is not that of 12 shaking. 13 COMMISSIONER STEPHEN GOUDGE: Right. 14 15 CONTINUED BY MR. MARK SANDLER: 16 MR. MARK SANDLER: Okay. And then you've 17 reflected support by other forensic or medical experts or 18 officials, direct or -- or partial, and the Commissioner 19 has already heard that -- that there were others, 20 including clinicians at the Hospital for Sick Children, 21 and neuropathological evidence that purported to support 22 Dr. Smith's opinion. 23 DR. MICHAEL POLLANEN: Yes. 24 MR. MARK SANDLER: All right. 25 Commissioner, that would be a convenient time to take the


1 morning break before we continue on. 2 COMMISSIONER STEPHEN GOUDGE: By all 3 means. Fifteen (15) minutes. 4 5 --- Upon recessing at 11:16 a.m. 6 --- Upon resuming at 11:35 a.m. 7 8 THE REGISTRAR: All rise. Please be 9 seated. 10 COMMISSIONER STEPHEN GOUDGE: Mr. 11 Sandler...? 12 13 CONTINUED BY MR. MARK SANDLER: 14 MR. MARK SANDLER: Thank you, 15 Commissioner. Dr. Pollanen, before we turn to item 2 in 16 the chart, which introduces for the first time on your 17 chart the notion of asphyxia, I thought we should deal 18 with yet another simple issue for the Commissioner. 19 And that is the -- the use of asphyxia by 20 the forensic pathology community. We heard from three (3) 21 of the forensic pathologists who were retained by the 22 Chief Coroner, about the use of the term "asphyxia" by Dr. 23 Smith in various of the cases that are under 24 consideration. 25 And they levelled three (3) criticisms, or


1 identified three (3) concerns about the use of the term 2 asphyxia. And I want to ask you about each one (1) of 3 them if I may. 4 The first was that they said that asphyxia 5 is unhelpful as a cause of death. And its use as a cause 6 of death without more should be discouraged. 7 What's your view on that issue? 8 DR. MICHAEL POLLANEN: Asphyxia is not a 9 cause of death. It's a mechanism of death. And if you 10 are going to propose a cause of death, to replace it with 11 a mechanism of death is not ultimately very helpful. I 12 just will stop to say that a mechanism of death and a mode 13 of death are the same. 14 The mechanism of death is the means by 15 which the cause of death has ultimately resulted in a 16 fatality. So it's really the biochemical or the 17 physiological events that occur to result in death. 18 So asphyxia, essentially, means lack of 19 oxygen. That's -- that's, ultimately, what it is meant to 20 communicate. And the imprecision of the term in the 21 medicolegal environment results in confusion, and is 22 confusion at multiple levels. 23 The first is confusion about how the 24 asphyxia occurred. Because if the -- the lack of oxygen 25 going to the brain, which is asphyxia, occurs because


1 you've been strangled, that is quite different from, for 2 example, asphyxia occurring because you have a non- 3 homicidal means occurring. For example, you're -- 4 COMMISSIONER STEPHEN GOUDGE: You choked 5 on vomit or something? 6 DR. MICHAEL POLLANEN: Yeah, you choked on 7 your sandwich or something. This is a circumstance where, 8 you know, the mechanism of death is asphyxia, but the 9 cause of death is manual strangulation versus choking on - 10 - on food. So it's not informative. The -- that's the 11 first problem with it because it doesn't really specify 12 any medicolegal contents. 13 The second issue is the way we diagnosis or 14 the way we realize that -- that asphyxia has occurred, as 15 pathologists, is essentially through determining how the 16 asphyxiation came to be; the fact that there's a sandwich 17 in your windpipe, or a fact that you've got all the 18 findings of manual strangulation. 19 And in those circumstances it's immaterial 20 to say asphyxia. You simply say choked on food or manual 21 strangulation. So the -- the error there is that if you 22 don't have those two (2) easy circumstances, you may be 23 lulled into using non-specific features to make the 24 diagnosis. 25 And this is what one (1) of the great


1 American forensic pathologists, Lester Adelson, calls "the 2 Obsolete Quintet" which is basically certain findings such 3 as petechial hemorrhages, flu -- persistent fluidity of 4 the blood, cyanosis of the nail beds. 5 All of these features, that in bygone era, 6 we used to think represent an asphyxial death. But we no 7 longer view that as being true because we recognize that 8 all of those things occur in other circumstances. That -- 9 so, in other words, the -- there is no sure sign of 10 asphyxia at autopsy, and if the pathologist wants to 11 advance the person has died of asphyxia, you basically 12 need to find a cause for the asphyxia. 13 The third dimension is that often when a 14 pathologist is in a circumstance, and it's usually in a 15 relatively negative autopsy -- so, in other words, you 16 don't have really good self-evident findings that result 17 in a -- in a firm conclusion on the basis of anatomical 18 information -- you may be tempted -- and indeed, that has 19 sometimes happened historically -- to use circumstantial 20 information more than anatomical information to arrive at 21 the diagnosis. 22 And this then feeds back into a problem 23 that we talked about before which how much -- how much 24 information is a pathologist allowed to use from the 25 circumstances to inform a diagnosis.


1 So in the circumstantial diagnosis of 2 asphyxia, you have all these problems embedded with it. 3 The non-specificity of anatomical findings, the use of 4 circumstantial information and the failure to appreciate 5 that the word "asphyxia" is essentially -- doesn't 6 communicate anything relevant from a medicolegal point of 7 view. 8 MR. MARK SANDLER: All right. 9 Now the second criticism or concern 10 expressed by three (3) of the forensic pathologists in 11 looking at the use of asphyxia in these cases was their 12 view that its particular use by Dr. Smith in a number of 13 the cases seem -- contextually, seem to identify asphyxia 14 in the context of non-accidental death when the pathology 15 didn't support that conclusion. And did you see examples 16 of that in the cases as you reviewed them? 17 DR. MICHAEL POLLANEN: Yes. Essentially, 18 basically, in those -- in those circumstances is what I -- 19 is what I would say as asphyxia being supported more from 20 circumstantial rather than anatomical evidence. 21 MR. MARK SANDLER: Okay. 22 And the third criticism or concern that was 23 expressed by the three (3) pathologists was that apart 24 from the -- the technical meaning of asphyxia, its 25 conventional use leads to the impression on the part of


1 the listener that asphyxia is being used in the malevolent 2 sense and not in the broader sense that you described 3 earlier in your testimony. 4 And -- and do you see evidence of that as 5 well? 6 DR. MICHAEL POLLANEN: Yes. And that -- 7 that certainly would be the usage in Ontario, 8 historically. That if the -- if the cause of death was 9 given as asphyxia, it was essentially meant to imply 10 mechanical asphyxia. In other words, interference with 11 oxygen transfer to the brain through some mechanical 12 process. 13 Now, having said that, it really is an 14 inference based upon looking at the term and in the 15 context of the case. So some pathologists may have used 16 it in that sense; meaning short-form for mechanical 17 asphyxia and some pathologists may have used it in a 18 broader sense, meaning to, you know, to include not only 19 mechanical asphyxia but other mechanisms or processes that 20 might result in -- in ultimately diminution of oxygen flow 21 to the brain. 22 MR. MARK SANDLER: So we have to look at 23 each of these cases in order to evaluate its usage, of 24 course? 25 DR. MICHAEL POLLANEN: Yes. And -- and


1 understand that the diff -- part of the difficulty with it 2 is the imprecision of the term and using a mechanism of 3 death as opposed to a cause of death. 4 MR. MARK SANDLER: Okay. 5 Now, it's implicit, if not explicit, in 6 what you've just said but -- but leaving aside your view 7 on individual cases as to whether or not Dr. Smith 8 correctly opined that asphyxia was the cause of death, and 9 leaving aside any concerns about whether Dr. Smith, if he 10 used it in the sense of mechanical asphyxia, again 11 correctly opined as to cause of death, the -- the 12 difficulties in the use of "asphyxia" historically in 13 Ontario, were not confined to Dr. Smith. 14 Is that a fair comment? 15 DR. MICHAEL POLLANEN: Oh, and more 16 broadly, yes. But certainly Ontario too, yes. 17 MR. MARK SANDLER: Okay. 18 DR. MICHAEL POLLANEN: Now, if we can go 19 to item 2 on the -- on the chart and that is Baby F and 20 Baby M and, perhaps, we could -- and -- and we'll have to 21 deal with the various cases fairly quickly. 22 Can you indicate what it is that you 23 determined in connection with those two (2) cases? 24 DR. MICHAEL POLLANEN: Well, from my point 25 of view, although the -- the cases are quite different, in


1 the framework of this analysis, they're essentially the 2 same. And, essentially, what you have here are newborns 3 that are found in circumstances which would not be typical 4 for newborns; one (1) in a toilet, one (1) in a closet; 5 that both have pathological evidence of having brought air 6 into their lungs. 7 And then there are some nonspecific 8 findings at autopsy. These sort of obsolete asphyxial 9 changes that we've talked about. And wha -- the main 10 problem that seems to have arisen there is this, 11 essentially, a circumstantial diagnosis of asphyxia. 12 And that is that the -- there's evidence 13 that the -- the babies were born alive because of the 14 aeration of the lungs and there -- you're then confronted 15 with negative autopsies, and on that basis -- on the basis 16 of the circumstances and the negative findings and perhaps 17 some obsolete signs of asphyxia, you sort of give a 18 diagnosis of asphyxia that -- that's essentially not 19 firmly founded in anatomical findings. 20 For example, evidence of a ligature about 21 the neck or other features of neck compression. So this 22 is the issue here, and you can enlarge this by saying, 23 Well, perhaps the -- the cause is not asphyxia per se, but 24 perhaps, it's hypothermia; the child has been left after 25 live birth not -- no ability to keep warm and has


1 basically died of exposure. 2 So these are all other possibilities which 3 were -- which are included in the -- in the broader 4 differential diagnosis of the cause of death. 5 MR. MARK SANDLER: All right. So in baby 6 F and baby M, Dr. Smith's cause of death articulated 7 asphyxia and in [brackets infanticide], closed brackets. 8 So I want to ask you two (2) questions arising out of 9 that. First of all, the use of parenthesis -- and there 10 was some evidence that -- that at least in -- in one (1) 11 transcript, Dr. Smith made reference to the use of 12 parenthesis as -- as indicating a matter upon which one 13 could not confidently opine but which one suspected. 14 And is that and -- and identified that as a 15 standard usage in forensic pathology. a) Do you agree 16 with that, and b) do you think that is an appropriate 17 usage apart from whether it's standard or not? 18 DR. MICHAEL POLLANEN: No and no. But I 19 will say this that in the -- in the residency training 20 program at the University of Toronto, part of the training 21 when you learn how to do hospital autopsies is that in 22 your diagnosis list you sometimes use items in parenthesis 23 to indicate information that has been communicated to you 24 historically or, for example, in the hospital chart, but 25 that you cannot independently verify at autopsy.


1 So there -- there is actually a customary 2 practice in -- in the University of Toronto teaching 3 system of autopsies where, you know, we're taught to do 4 that. I think that the point to be made here is it 5 doesn't readily translate into the medicolegal 6 environment. 7 That when you're doing a clinical autopsy 8 and you put in brackets, you know, history of some 9 illness, it -- it usually doesn't create any difficulties 10 in the clinical autopsy report. But if you use that as a 11 customary practice in a forensic autopsy report and you 12 include things like infanticide, you can readily see how 13 that would result in problems. 14 MR. MARK SANDLER: All right. Did the 15 pathology in this case -- leaving aside the -- the use of 16 parenthesis systemically -- permit a conclusion by a 17 conclusion that this was a case of infanticide. 18 DR. MICHAEL POLLANEN: Well, that feeds 19 into the -- to the issue of, does the forensic pathologist 20 determine the manner of death, because infanticide 21 literally mean -- literally means the homicidal death of 22 an infant. 23 So, in -- and the -- the answer of this is 24 very gray, unfortunately, because in the -- in the 25 coroner's system of death investigation, it is the coroner


1 that determines the manner of death, but in the Criminal 2 Justice System, it's essentially the only thing that the 3 Criminal Justice System is interested in from know -- in 4 knowing from a pathologist in a case of putative 5 infanticide. 6 So, is the word "infanticide" proper usage 7 in pathology -- in forensic pathology? No, because it 8 doesn't -- it doesn't form a stand-alone medical 9 diagnostic term or forensic diagnostic term, but it is, 10 ultimately, the issue that the trier of fact will want us 11 to address in some form. 12 MR. MARK SANDLER: All right. And in 13 connection with Baby F and Baby M, leave aside the -- the 14 legal content of the term "infanticide", did the available 15 pathological evidence permit the reasonable conclusion 16 that either of these children died as a result of 17 mechanical asphyxiation at the hands of their mother? 18 DR. MICHAEL POLLANEN: No. 19 MR. MARK SANDLER: If you'd go to the -- 20 the -- and I'm sorry, and there was one (1) other question 21 that I wanted to ask you in connection with Baby F and -- 22 and Baby M. 23 Dr. Butt articulated the two (2) issues in 24 each of those cases, for him, as to whether the pathology 25 supported a conclusion that these were live birth cases;


1 and second of all, whether there was support for cause of 2 death articulated as asphyxia, and you've addressed the 3 second point. 4 What I hear in what you're saying, and you 5 correct me if I'm wrong, is that you might be at a 6 different point than Dr. Butt as to whether the evidence 7 supported live births in these cases, did I hear you 8 right? 9 DR. MICHAEL POLLANEN: Well, the way I 10 would say it is -- is as follows; that you have -- one (1) 11 of the issues is the cause of death, as you've identified; 12 the other issue is live birth, and then the live birth 13 issue is correlated with what anatomical parameters are 14 sufficient to determine live birth, and one (1) of the 15 anatomical parameters that we use is aeration of the lung. 16 So, in other words, is the lung expanded by 17 air, and in these cases the lungs are expanded by air, so 18 then you have to, as a pathologist, say, is that 19 sufficient evidence for live birth because there are other 20 considerations about how air can get into lungs, so that's 21 the issue. 22 In -- in my view, based upon my review of 23 the cases, I would say there is sufficient evidence to 24 make that conclusion. 25 MR. MARK SANDLER: All right.


1 COMMISSIONER STEPHEN GOUDGE: Dr. Butt was 2 focussed on resuscitation efforts and that not having been 3 explored. 4 DR. MICHAEL POLLANEN: Yes, and -- and 5 clearly if that -- if there were possibilities along those 6 lines, then that would provide an alternate explanation 7 for aeration of lung. 8 COMMISSIONER STEPHEN GOUDGE: Right. 9 DR. MICHAEL POLLANEN: That's what I'm 10 saying is that how you view sufficiency of lung aeration, 11 relative to live birth, would impinge on factors like 12 that. Like you -- for example, you may come to the 13 conclusion that aeration of lungs provides good evidence 14 for live birth, but then say, with the following provisos, 15 you know, resuscitation, this type of thing. 16 COMMISSIONER STEPHEN GOUDGE: Right. 17 18 CONTINUED BY MR. MARK SANDLER: 19 MR. MARK SANDLER: Okay. The next case on 20 the table is the Delaney case. And the Delaney case 21 probably is -- is the best illustration of this dilemma in 22 the extent to which circumstantial evidence can figure 23 into the -- the cause of death as articulated by the 24 pathologist, am I right as to that? 25 DR. MICHAEL POLLANEN: Yes.


1 MR. MARK SANDLER: To remind the 2 Commissioner, the Delaney case is -- is one (1) that -- in 3 -- in which there was a very significant circumstantial 4 non-pathological evidence about the mental state of the -- 5 of the mother and the circumstances of the scene when -- 6 when family members and homicide officers attend it, so -- 7 so how do you see the Delaney case within the context of 8 the forces that you've identified in this chart? 9 DR. MICHAEL POLLANEN: Well, it -- it 10 actually points out another issue with asphyxia, and that 11 is that, where asphyxia results in a problem in the 12 criminal justice system is when it is not fairly supported 13 by circumstantial and historical evidence. So in other 14 words, the pathologist creates -- may create an error by 15 giving asphyxia as the cause of death. 16 But in this case, it doesn't matter, in 17 fact, if the pathologist says asphyxia or unascertained 18 and then gives a discussion for the reason it's 19 unascertained is because of the negative findings can be 20 seen in asphyxial deaths, because the -- the sure 21 information comes from the -- the scene and the 22 circumstances. 23 Now, that's not -- that's not to say that 24 the pathologist should in that circumstance give asphyxia 25 as the cause of death, but doing so does not create a


1 fatal error in the process. In, for example -- 2 MR. MARK SANDLER: Lawyers would call that 3 harmless error. 4 DR. MICHAEL POLLANEN: Essentially, you 5 could contrast it to Valin where giving asphyxia as the 6 cause of death in Valin does produce a major problem. But 7 in this case it doesn't and -- and I would say underscores 8 the value of giving the cause of death as unascertained 9 and then describing what that means. 10 MR. MARK SANDLER: All right. And -- and 11 the message that I hear communicating to the Commissioner, 12 in effect, is that -- is that the impact on the criminal 13 justice system may not vary one (1) width if one were to 14 describe this as an asphyxial case as opposed to 15 describing it as an unascertained case, but -- but 16 fleshing out those circumstances that would inform the 17 discussion at court? 18 DR. MICHAEL POLLANEN: Yes. And -- and 19 the other way of sort of looking at it from a word point 20 of view, from a language point of view, is that in -- 21 sometimes on the spectrum of the asphyxia problem the 22 difference is simply related to nomenclature and how -- 23 how language is used. 24 MR. MARK SANDLER: Okay. Let's go to the 25 Dustin case. And -- and the Commissioner's going to hear


1 much more about some of these cases including Dustin next 2 week, so could you provide the Commissioner with a -- with 3 a little bit of information that explains how you 4 characterized Dustin? 5 DR. MICHAEL POLLANEN: Well, Dustin, 6 essentially, in the analysis that I've given is one (1) of 7 these cases where the specificity of the findings, the 8 anatomical findings, relate to the shaken baby issue. In 9 other words, how do we -- how do we interpret the 10 anatomical findings and their significance relative to a - 11 - to a head injury. 12 The added dimension in -- in Dustin, 13 unfortunately, is that there's an evidence management 14 issue regarding the brain. And the brain essentially was 15 inadvertently destroyed. 16 MR. MARK SANDLER: Right. 17 DR. MICHAEL POLLANEN: And so -- so that 18 deals with -- in addition to the shaken baby issues then 19 you have the issues of how to you deal with essentially 20 giving expert opinions in the absence on an adequate 21 substrate. But -- but for the purposes of this analysis, 22 the issue is Shaken Baby. 23 MR. MARK SANDLER: All right. And you've 24 noted the controversy in the second last column, and in 25 the final column you've noted that there was some support


1 for Dr. Smith's opinion found in radiological evidence? 2 DR. MICHAEL POLLANEN: Yes, which -- 3 which, in fact, took greater significance in the -- in the 4 medical evidence because there was no brain to look at, 5 essentially, through the pathology. 6 MR. MARK SANDLER: All right. And do you 7 characterize that case as a -- as a misdiagnosis or -- or 8 does your opinion -- ultimately, as to what could have 9 been said about cause of death differ from Dr. Smith? 10 Can you help the Commissioner out on that. 11 DR. MICHAEL POLLANEN: Well, I -- I would 12 say in this case that the -- the issues relate to how you 13 interpret the anatomical findings. So it is the shaken 14 baby debate. But the -- the other series of issues relate 15 to what role does a pathologist have when giving a 16 pathological opinion where you have -- when you don't -- 17 where you don't essentially have the brain. 18 So you don't have the -- the evidence 19 through which pathologists usually use to make opinions. 20 MR. MARK SANDLER: And -- and what would 21 that lead you to conclude in that particular case? 22 DR. MICHAEL POLLANEN: Well, it would 23 weaken the conclusions. You would -- it wou -- or at 24 least would put more -- the trier of fact would have to 25 seek other evidence such as radiological evidence to know


1 about the anatomical findings of the brain. 2 MR. MARK SANDLER: Okay. 3 COMMISSIONER STEPHEN GOUDGE: There was no 4 histology of the brain at all in this case -- it was never 5 in -- because it was put in water instead of 6 formaldehyde? 7 DR. MICHAEL POLLANEN: Yes. 8 COMMISSIONER STEPHEN GOUDGE: So I -- in 9 my jargon, Dr. Pollanen, would that be it would lower the 10 level of certainty with which one could articulate cause 11 of death as Shaken Baby? 12 DR. MICHAEL POLLANEN: On -- on anatomical 13 evidence, yes. 14 COMMISSIONER STEPHEN GOUDGE: Yes. 15 16 CONTINUED BY MR. MARK SANDLER: 17 MR. MARK SANDLER: All right. Turning to 18 page 14, what can you tell us about the Gaurov case? 19 DR. MICHAEL POLLANEN: The -- the Gaurov 20 case is -- is probably one (1) of the most difficult cases 21 in the -- in the series, and essentially, that involves 22 the shaken baby issue, but --- but within the shaken baby 23 controversy, essentially two (2) embedded issues: the 24 specificity of the triad and the whole issue of whether or 25 not subdural -- old subdural hemorrhages can re-bleed;


1 particularly in this case there was evidence that there 2 was a previous birth injury, so how that factors into the 3 mix is -- is quite controversial. 4 MR. MARK SANDLER: All right. And you've 5 identified the controversy again in -- in the second last 6 column, and you've also reflected the fact that there was 7 support for Dr. Smith's opinion from a neoropathologist 8 and from a forensic pediatrician. 9 DR. MICHAEL POLLANEN: Yes. 10 MR. MARK SANDLER: All right. The Jenna 11 case. The Commissioner had hear much about the Jenna 12 case, including some evidence from -- from you when you 13 testified last time around; can you -- can you 14 contextualize it within the chart? 15 DR. MICHAEL POLLANEN: The Jenna case, and 16 I -- and I'm going to sketch this out in a -- in a very 17 retrospective fashion. 18 And the -- the issue in the Jenna case is 19 that the cause of death is an abdominal injury and the 20 histology of the abdominal injury clearly demonstrates 21 that this is a recent injury, and the -- the mis-diagnosis 22 was a mis-diagnosis relating to timing; in other words, 23 the time material was given too broadly, as opposed to too 24 -- as opposed to appropriately narrowly. 25 MR. MARK SANDLER: Just -- just stopping


1 there for a moment. We heard from Dr. Young the other day 2 that -- that he didn't necessarily see that as -- as a 3 wrong opinion on the part of Dr. Smith because Dr. Smith 4 was opining that the timing of fatal injuries could have 5 fallen within a wide period, and that ultimately the -- 6 the expert opinions that were later obtained narrowed the 7 time frame within which the fatal influ -- injuries could 8 have been inflicted. 9 In your view, is that a correct analysis as 10 to whether Dr. Smith's pathological opinion was right or 11 wrong? 12 DR. MICHAEL POLLANEN: No. 13 MR. MARK SANDLER: And -- and why not? 14 DR. MICHAEL POLLANEN: Well, I think it -- 15 it -- I think -- I mean I'm -- I'm trying to reconstruct - 16 - but I suspect the -- the issue there is, the usual form 17 of the timing question is time of death; where the -- we 18 know from various pitfalls, including Canadian pitfalls, 19 that it's often desirable to give a broader window of time 20 of death based upon imprecision of our ability to -- to 21 find post-mortem clocks, as it were. 22 So, in -- in this -- in the usual context 23 of timing relative to time of death, it's making a broader 24 window, but that's not so for the timing of injury. 25 MR. MARK SANDLER: Okay. And similarly


1 there was -- there's -- 2 COMMISSIONER STEPHEN GOUDGE: Could one 3 put it this way, Dr. Pollanen, that the pathological 4 evidence properly interpreted excluded, absolutely 5 excluded, part of a period of time within which Dr. Smith 6 says the injury could have taken place, as being too far 7 before the death? 8 DR. MICHAEL POLLANEN: I think that's 9 ultimately the conclusion that -- that one has to come to 10 in this case, yes. But the -- the point here being that 11 when you -- when you look and you make an analysis, you -- 12 there is a reason -- there are -- there are reasons why 13 that might have occurred in the way it did. 14 15 CONTINUED BY MR. MARK SANDLER: 16 MR. MARK SANDLER: Okay. 17 DR. MICHAEL POLLANEN: In other words, if 18 you -- if you break down the diagnostic reasoning there is 19 a -- there isn't anoth -- there's another pitfall that one 20 sees in this case. 21 MR. MARK SANDLER: All right. And -- 22 DR. MICHAEL POLLANEN: That doesn't make 23 it simply a matter of the injury histologically was recent 24 and the matter is finished. 25 MR. MARK SANDLER: All right. Could you


1 identify what the other factors were that, in your view, 2 informed that mistake? 3 DR. MICHAEL POLLANEN: There is very 4 straightforward evidence that Jenna has two (2) abdominal 5 injuries. And one (1) of those injuries is -- has 6 occurred before the fatal injury. There's no question 7 about that; that there is a -- there is a liver laceration 8 which indicates that there was a blunt impact to the 9 abdomen before the -- the fatal blow, as it were. 10 And we -- we know in relation to the 11 greater -- our greater understanding of the case now, that 12 that liver injury did not occur at the fatal episode; that 13 that antedated the fatal episode. 14 At the time of pathological examination, 15 the -- the quandary that the pathologist finds himself in 16 is that you have evidence of two (2) different ages. 17 You've got this -- this liver rupture which 18 shows an inflammatory reaction, and then you've got the 19 lethal injury which shows no evidence of inflammation. 20 They're clearly occurring at two (2) different times so 21 there must be two (2) different violent acts. 22 So then you're -- the pathologist is then 23 put into a scenario, Well, how do you reconcile the two 24 (2)? And there are three possibilities. 25 COMMISSIONER STEPHEN GOUDGE: They both,


1 one (1) or the other? 2 DR. MICHAEL POLLANEN: That's right. 3 Right. Exactly right. 4 And -- and in -- and in medical reasoning, 5 one (1) of the possibilities is actually supported by 6 Occam's Razor, where Occam says to us, When you have two 7 (2) things, make them one. 8 COMMISSIONER STEPHEN GOUDGE: So they both 9 caused it? 10 DR. MICHAEL POLLANEN: So you -- you 11 basically say -- yeah, you either -- you either say, The 12 fatal injury is as old as the liver injury or vice versa 13 or you come to the conclusion, Did you have two (2) 14 separate injuries? 15 And I can -- I can tell you that it's quite 16 obvious to me, when I look at the slides that you have two 17 (2) fatal -- two (2) different injuries. One (1) is 18 recent; one (1) is older. But -- but when the case is 19 evolving in real time, that is a very difficult issue. 20 COMMISSIONER STEPHEN GOUDGE: Why? 21 DR. MICHAEL POLLANEN: Well, because -- 22 because of Occam's Razor and because you -- 23 COMMISSIONER STEPHEN GOUDGE: Doesn't the 24 pathology indicate inflammation with one, no inflammation 25 with the other and therefore two (2) different times?


1 DR. MICHAEL POLLANEN: You're absolutely 2 correct, and that is the conclusion that you ultimately 3 come to. But what I'm saying is that it's -- it's correct 4 and it is the proper conclusion but it's not entirely 5 self-evident. You do need to engage this type of analysis 6 that I'm going through right now. 7 So, I mean, I -- 8 COMMISSIONER STEPHEN GOUDGE: It sounded 9 relatively straightforward now, but that is because I 10 don't know the details. But one examines the histology to 11 see if there is inflammation. 12 DR. MICHAEL POLLANEN: Yes. 13 COMMISSIONER STEPHEN GOUDGE: "Yes" one, 14 "No" the other. 15 DR. MICHAEL POLLANEN: And you know what, 16 in this circumstance, the timing difference is actually 17 fairly stark. But in -- when you're -- when you are 18 constantly confronted with this issue and you have this 19 spectrum issue, sometimes it's not so straightforward. 20 And then when you're confronted with this issue, you start 21 asking yourself, Well, you know, is this one (1) of those 22 straightforward examples or not? 23 So, what I'm saying is, simply, that, in my 24 view -- if you read my report on the matter, I mean, I 25 clearly separate the two (2) and I believe that -- that


1 the pathology allows you to do so. But this is a well- 2 recognized pitfall in forensic pathology. 3 And -- and it goes to the point that this 4 is an issue in this case because there was a previous 5 abdominal injury. If there were no previous abdominal 6 injury, this would not be an issue. 7 In Dr. Smith's autopsy report in this, 8 there is some evidence that he did group the injuries 9 together. Because in his final diagnosis section, he 10 describes abdominal trauma and then incorporates all of 11 the individual abdominal injuries together, essentially 12 implying, in my reading, one (1) time frame, essentially 13 backdating it to the liver injury as opposed to separating 14 it into two (2) different time frames. 15 MR. MARK SANDLER: Okay. Let's go to 16 Joshua, if we may. What did you find in the Joshua case? 17 DR. MICHAEL POLLANEN: Well, there are 18 multi -- again, there are multiple issues in Joshua. I 19 mean, the one (1) is a familiar one (1), which is the -- 20 the issue of asphyxia. And then we have what is, 21 ultimately, a misdiagnosis of -- of a skull fracture, 22 based upon the histology. 23 MR. MARK SANDLER: And just stopping there 24 for a moment. We -- we heard from Dr. Crane about the -- 25 about the skul -- the misdiagnosis of the skull fracture


1 and indeed, he adopted the report, the more fulsome 2 report, that you had given on that issue. 3 Do you have anything else to add on that 4 particular issue then what we've already heard from Dr. 5 Crane and in your own consultation report? 6 DR. MICHAEL POLLANEN: No. 7 MR. MARK SANDLER: Okay. 8 DR. MICHAEL POLLANEN: So -- so the other 9 issue, of course, is in -- in Joshua we have additional 10 findings and there is an old metaphyseal fracture in the 11 ankle. So in addition to the -- essentially, what is -- 12 what is -- should be viewed now as a negative autopsy, you 13 do have an isolated skeletal injury and focal bruising on 14 the scalp. 15 So the issue there is, Well, you have a 16 negative autopsy, but you have at least one (1) skeletal 17 injury. How does a pathologist deal with that? And 18 that's a very difficult issue. And this is the issue that 19 arises in Paolo, in -- in my view, in a -- in a more 20 serious form because you have what in Paolo is 21 incontrovertible evidence of chronic child abuse, but 22 essentially then uncertainty about the cause of death. 23 MR. MARK SANDLER: Okay. And then you've 24 reflected in the Joshua that -- that there was some 25 support to be found for Dr. Smith's opinion from forensic


1 pathologists? 2 DR. MICHAEL POLLANEN: Yes. 3 MR. MARK SANDLER: All right. 4 Katharina...? 5 DR. MICHAEL POLLANEN: Well, from our -- 6 from our discussion, Katharina's essentially equivalent to 7 Delaney. 8 MR. MARK SANDLER: All right. Kenneth...? 9 DR. MICHAEL POLLANEN: And Kenneth, it's 10 the -- again, this is a -- a child who is in hospital with 11 an anoxic brain injury, so at some point in time, there's 12 been a interruption of oxygen flow to the brain. And 13 there's evidence of an old fracture and quite an unusual 14 circumstantial history. 15 And essentially, that's resulted in a 16 circumstantial diagnosis of -- of asphyxia. I'm not 17 actually sure -- we'd have to go back to the report -- Dr. 18 Smith may have, in fact, certified that as undetermined, 19 but the -- the more fulsome sort of presentation of that 20 in court was -- is along the asphyxial lines. 21 And the -- the issue basically here is what 22 is the specificity of hypoxic brain damage in a scenario 23 which includes unnatural causes? And it's a very 24 difficult issue, and it's essentially one (1) of those -- 25 those issues that will be decided more by testing of


1 circumstantial and non-medical information by the trier of 2 fact. 3 MR. MARK SANDLER: All right. And you've 4 reflected that there was forensic pediatric support for 5 Dr. Smith's opinion in that case? 6 DR. MICHAEL POLLANEN: Yes. 7 MR. MARK SANDLER: Which again raises the 8 systemic issue that you've identified a little bit earlier 9 on? 10 DR. MICHAEL POLLANEN: Yes. 11 MR. MARK SANDLER: Now, if we go to the 12 next page, please? All right. The -- the Nicholas 13 case...? 14 DR. MICHAEL POLLANEN: The Nicholas case 15 is an example -- a straightforward example of 16 misdiagnosis. 17 MR. MARK SANDLER: All right. 18 DR. MICHAEL POLLANEN: Essentially, in 19 this -- in this circumstance, it's misdiagnosis of burial 20 artifacts present in the skull and an overinterpretation 21 of brain weight. This is in the context, though, of a -- 22 of a rather strange history, which is a -- essentially a 23 bump on the head, which may, in fact, be a red herring to 24 the entire case. 25 In other words, it just may simply have


1 been a correlation fallacy that that happened to occur 2 before death. There's no evidence to support that that in 3 any way is material to death. 4 MR. MARK SANDLER: All right. And in the 5 Nicholas case, Dr. Young in response to a complaint that 6 had been lodged by the grandfather, indicated that in his 7 view, based upon the competing opinions that had been 8 obtained from the various forensic pathologists, that Dr. 9 Smith's opinion fell within a reasonable range of medical 10 opinions. 11 Do you agree? 12 DR. MICHAEL POLLANEN: No. 13 MR. MARK SANDLER: And why not? 14 DR. MICHAEL POLLANEN: Because it -- well, 15 it would require a very detailed analysis of the case. 16 But -- but essentially the -- giving an opinion about a 17 head injury on simply the evidence that was given is just 18 not proper. 19 MR. MARK SANDLER: Okay. 20 DR. MICHAEL POLLANEN: It just does not 21 form a sufficient evidence base to come to that 22 conclusion. And then it's supported by an over- 23 interpretation of burial artifacts. It's incorrect under 24 any interpretation. 25 MR. MARK SANDLER: Okay. How about the


1 Sharon Case? 2 DR. MICHAEL POLLANEN: The Sharon Case is 3 a straight forward mis-diagnosis. 4 MR. MARK SANDLER: All right. Now the 5 Commissioner has heard much about the -- the Sharon Case. 6 You've reflected under Ockham's Razor: 7 "Scalping viewed as supportive evidence 8 for sharp force injury." 9 And just stopping there for a moment. 10 Recognizing that you have said that it's a straight 11 forward case, and -- and a simple mis-diagnosis of dog 12 bites as -- as stab wounds, could you see how the scalping 13 component of the pathology could have contributed to where 14 this case headed? 15 DR. MICHAEL POLLANEN: Yes. 16 MR. MARK SANDLER: And could you explain 17 that to the Commissioner? 18 DR. MICHAEL POLLANEN: The scalping became 19 very important in my reading of the case, in terms of the 20 scalp being cut off the head. And admittedly, that's an 21 extremely unusual finding in -- in a homicidal stabbing 22 circumstance. It's an unusual finding in general frankly, 23 to have the scalp separated from the body. And -- and I 24 think that the -- that in some way it was viewed as being 25 supportive of this sharp force injury attack.


1 What we -- what we now know, and this is -- 2 this is in fact just recently published in the medical 3 literature, is that in -- there is a -- essentially a 4 difference between the forensic pathology of dog attack in 5 the adult versus the pediatric population. 6 And in the pediatric population, or the 7 child, you know, population, you get this -- you often get 8 the attack more centred around the head and neck with de- 9 fleshing or de-gloving injuries of the scalp. There are 10 in fact very interesting examples in the literature where 11 the entire face may be removed by the animal. 12 So -- so the issue here is that the 13 scalping in my view, erroneously fed into an 14 interpretation about the sharp force injury. But -- but 15 now, based upon the information that we have, there's very 16 clear -- a very clear evidence base which would say 17 scalping is very good evidence for a dog attack. 18 MR. MARK SANDLER: Okay. So what -- 19 COMMISSIONER STEPHEN GOUDGE: So it's 20 really -- it is Ockham's Razor in this scenario as used, 21 because it was forced into effect as support for the stab 22 wound, where it ought to have been, had one been starting 23 with the stab would premise, separately caused? 24 DR. MICHAEL POLLANEN: Precisely. 25


1 CONTINUED BY MR. MARK SANDLER: 2 MR. MARK SANDLER: All right. And you've 3 also identified this as well, as a case that gives rise to 4 systemic concerns about confirmation bias when the police 5 come in and they bring the scissors and there's a dialogue 6 along those -- those lines, haven't you? 7 DR. MICHAEL POLLANEN: Yes. 8 MR. MARK SANDLER: Now you've reflected 9 that under support by other forensic or medical experts, 10 or officials, that there was support for Dr. Smith's 11 initial view from a forensic odontologist, a textile 12 analyst and an animal behaviourist. 13 Is that right? 14 DR. MICHAEL POLLANEN: Correct. 15 MR. MARK SANDLER: One (1) of the things 16 that -- that forensic pathologists have been wrestling 17 with in connection with this case -- and I -- and I'm 18 going to suggest to you that the pathologists may be at 19 different places in the spectrum on this is -- leave aside 20 the dog bite issue for a moment -- how subtle was the 21 issue as to whether these were stab wounds or not? 22 DR. MICHAEL POLLANEN: In comparison to 23 dog bites, as it were? 24 MR. MARK SANDLER: In comparison to dog 25 bites or even -- or even standing -- standing alone, if


1 there was no history of -- of a dog that presented. 2 And the reason I ask you that question is 3 because I expect we're going to hear from Dr. Chiasson, 4 who -- who looked this case. And we've already heard 5 from Dr. Milroy and Dr. Milroy couldn't have been more 6 unequivocal to say a forensic pathologist, having a look 7 at this presentation, would say this is not a stab wound 8 case, simply put. 9 DR. MICHAEL POLLANEN: It's not a stab 10 wound case, period. I mean, the pathological findings 11 clearly demonstrate this is not stabbing. 12 The only issue that I would say confounds 13 interpretation based upon looking at the photographs of 14 the wounds, is that the hypothesis that was presented was 15 stabbing with scissors. And if you -- if you accept, for 16 example, that you have a stabbing with scissors, you might 17 expect some greater degree of atypicality to the wound. 18 So, for example, one (1) of the features of 19 dog bites is that you may get the canine teeth giving 20 paired wounds, which would be sort of roughly analogous to 21 the paired wounds that you might get with scissors. 22 With the tooth going through, penetrating 23 into the skin, you get a round defect -- irregular if 24 there's tangential movement and so on -- but you have an 25 abrasion around the penetration. If you have blunt


1 scissors, you may get a little bit of abrasion around the 2 penetration. 3 So you can manufacture contingencies within 4 the stab wound hypothesis that might create circumstances 5 that would make them look more like bites. But when you - 6 - putting aside that type of argument, the distribution, 7 the nature, the fact that you have additional contusions 8 and abrasions, the whole constellation, the distribution, 9 favours dog bites. 10 MR. MARK SANDLER: Okay. The Tamara case, 11 tell us about that, if you would. 12 DR. MICHAEL POLLANEN: Well, the Tamara 13 case mixes, again, several of these concepts, where you 14 have evidence of -- of a chronically abused child -- who, 15 in fact, at the time of autopsy has their leg in a cast -- 16 and you have what essentially comes down to weak 17 anatomical evidence of injury to the face in the form of a 18 torn frenulum, which is the fleshy part that links your 19 upper lip to your jaw. 20 And so the question then becomes: To what 21 is -- to what extent does the pathologist interpret weak 22 evidence of facial injury as evidence of upper airway 23 obstruction. That's the quandary. 24 MR. MARK SANDLER: All right. And we 25 heard from Dr. Milroy, and at the risk of paraphrasing


1 what he had to say, it -- it certainly sounded like his 2 opinion was that this was the case that represented the 3 least departure of his views from the views of Dr. Smith. 4 It sounded, at least to this listener, as - 5 - as raising the issue of that continuum at which an 6 opinion is expressed. 7 And is that the way you see this case as 8 well? 9 DR. MICHAEL POLLANEN: Yes. 10 MR. MARK SANDLER: Okay. The Taylor case. 11 Oh, I'm sorry. And I should have said that -- that there 12 was also -- and we've heard this from -- from the evidence 13 earlier as well -- other forensic pathological support for 14 the opinion that was expressed by Dr. Smith. And you've 15 reflected that in your chart. 16 DR. MICHAEL POLLANEN: Yes, yes. 17 MR. MARK SANDLER: All right. I'm sorry. 18 Taylor? 19 DR. MICHAEL POLLANEN: In the case of 20 Taylor, this was a case where there was circumstantial 21 evidence of head injury, but no good anatomical evidence 22 of head injury. And there was a misinterpretation, of, 23 essentially, artifacts in the brain histology. 24 MR. MARK SANDLER: All right. And we see 25 here that -- that you've identified circumstantial


1 information that could reinforce the misinterpretation 2 being the history of head injury? 3 DR. MICHAEL POLLANEN: Yes. 4 MR. MARK SANDLER: And some support from 5 neuropathology -- no, from a neuropathologist? 6 DR. MICHAEL POLLANEN: From a defence 7 neuropathologist, in fact. 8 MR. MARK SANDLER: Right. And we're going 9 to talk about that defence role as one of your systemic 10 issues a little bit later on. Tiffani...? 11 DR. MICHAEL POLLANEN: Tiffani again, is a 12 child that's chronically abused. And in this 13 circumstance, the -- there was a second post-mortem done 14 by Dr. Smith. And the -- the issue, essentially, is 15 making the diagnosis of the cause of death in a 16 chronically abused child in this case, who also showed 17 evidence of nutritional neglect in the form of 18 malnutrition. 19 And the -- on review, the evidence would 20 seem to support that the cause of death was malnutrition 21 rather than asphyxia. But the relative -- the relative 22 lack of anatomical evidence of injury seems to have made 23 the diagnosis of asphyxia more on a -- sort of an 24 exclusionary or circumstantial basis. 25 MR. MARK SANDLER: All right. And


1 Tyrell...? 2 DR. MICHAEL POLLANEN: Tyrell is just a 3 straightforward misdiagnosis of the mechanism of head 4 injury in the same way, essentially, as Amber. 5 MR. MARK SANDLER: So this is a 6 misdiagnosis of an accidental head injury as shaking? 7 DR. MICHAEL POLLANEN: Correct. 8 MR. MARK SANDLER: And -- and when you say 9 that, in relation to Tyrell -- and again, we've heard from 10 Dr. Crane on this, who -- who thought there was strong 11 evidence of accidental head injury as opposed to a 12 situation where -- where one wouldn't simply say that 13 there's an absence of pathology that would support one (1) 14 view or the other. 15 Do you share his opinion in that regard? 16 DR. MICHAEL POLLANEN: Yes. 17 MR. MARK SANDLER: You have noted that -- 18 that the controversy or pitfall that's raised, in -- 19 systemically, in connection with Tyrell again is the short 20 fall issue, and that there was support from a 21 neuropathologist for the opinion expressed by Dr. Smith in 22 Tyrell. 23 DR. MICHAEL POLLANEN: Yes. 24 MR. MARK SANDLER: Now, we haven't dealt 25 with two (2) cases out of the twenty (20) in your chart.


1 One (1) of them is a case that Ms. Rothstein indicated 2 earlier on we would not be dealing with given its ongoing 3 character. And -- and the other is the Kassandra case. 4 And -- and I understand it, you haven't 5 examined all of the histology or background pathological 6 material on -- on Kassandra in the way that you have for 7 the others, am I right as to that? 8 DR. MICHAEL POLLANEN: Correct. 9 MR. MARK SANDLER: You did identify what 10 you saw as an issue in Kassandra in a memorandum that you 11 did to the then Chief Coroner, Dr. McLellan, in January 12 2007. And perhaps I -- that's a convenient segue to take 13 you to that memorandum, if I may? 14 It's at Tab 6 of your volume of materials, 15 and it's PFP032588. And at page 13 of -- of this 16 document, you identify what you see as the issues or 17 concerns surrounding the Kassandra case. And you've 18 reflected the history of Kassandra at paragraph 67. 19 You note that this was a three (3) year old 20 girl who died with a status epilepticus after a history of 21 chronic vomiting. The case is complex with subject to an 22 inquest in which several physicians testified. The police 23 report identified the cause of death as extended 24 convulsions causing oxygen starvation to the brain caused 25 by a blow to the head.


1 You indicate further history and then say: 2 "Dr. Smith gave the cause of death as 3 craniocerebral trauma in the autopsy 4 report. The mother was convicted of 5 second degree murder. At the 6 preliminary inquiry, Dr. Smith 7 essentially testified that an impact 8 from a lady's wristwatch was the cause 9 of the fatal head injury. This 10 statement was based on a pseudo- 11 scientific wound weapon-matching 12 analysis. This evidence was unreliable 13 and outside the mainstream of forensic 14 pathology. It's unclear if Kassandra 15 had a fatal head injury at all. Many of 16 the findings that are recorded in the 17 autopsy report are difficult to support. 18 Upon review of the autopsy photographs, 19 it's clear there are scalp bruises, but 20 unclear if these injuries are related to 21 death. There's evidence to suggest that 22 Kassandra may have died from status 23 epilepticus caused by a natural disease 24 and that her death was not related to 25 acute head injury. A second opinion


1 review of this case is required to 2 determine if this death is unnatural or 3 natural." 4 And does that represent your opinion, based 5 only on the material that you have examined to date? 6 DR. MICHAEL POLLANEN: Yes, and the issue 7 being here that the -- the record in this case is 8 voluminous and it was my way of communicating to the Chief 9 Coroner that I thought that there were sufficient concerns 10 that another review should take place. 11 MR. MARK SANDLER: I just want to focus on 12 one (1) aspect, and that is can -- can you explain what it 13 is that you opined about the lady's wristwatch; what Dr. 14 Smith had said about it and why you had characterized it 15 in the way that you had in -- in your own memorandum? 16 DR. MICHAEL POLLANEN: Well, sometimes, 17 and it's -- and it's becoming increasingly rare that we 18 can and do do this, but -- but sometimes when an 19 instrument is -- is applied to the skin to form a bruise, 20 it may imprint a pattern of the instrument on the person, 21 and you may undertake a wound weapon-match under those 22 circumstances. 23 And there -- there are some difficulties 24 associated with that, but in this particular case the -- 25 the wound weapon-matching occurred by looking at the


1 undersurface of the scalp, as opposed to the surface, 2 which by any interpretation is just not proper. 3 And the -- the other issue is that the -- 4 the watch had a continuously flat surface, whereas the -- 5 the scalp injury was -- had an appearance of a doughnut or 6 round sort of area with a central sparing. 7 It's unclear how you can clearly relate a 8 flat surface -- a flat round surface -- coming in contact 9 producing a bruise of that manner. Although, we recognize 10 in forensic pathology that some bruises heal in that 11 manner. It's called annular healing; where essentially 12 the bruise loses the bruise component in the middle first, 13 so it appears as a doughnut. 14 COMMISSIONER STEPHEN GOUDGE: Why? I mean 15 I'm just curious. 16 DR. MICHAEL POLLANEN: It's unknown, but 17 it's one (1) of the features of bruising. So, on that 18 basis, what -- the other issue that becomes so relevant is 19 how old is that bruise? 20 COMMISSIONER STEPHEN GOUDGE: Right. 21 22 CONTINUED BY MR. MARK SANDLER: 23 MR. MARK SANDLER: All right. And if I 24 can take you back to page 4 of your memorandum to the 25 Chief Coroner, what -- what one sees in the memorandum is


1 a combination of your summary of what it was that the 2 panel generally found on the cases, as well as some 3 opinions that -- that are being expressed by you, and I'd 4 like to just tease them out and -- and ask you about -- 5 about them; basically as a -- as a more expeditious way to 6 see the extent to which you agree with the overall 7 findings that were made by the panel. 8 Paragraph 15 of your memorandum to the 9 Chief Coroner says that: 10 "Many of Dr. Smith's views on Shaken 11 Baby Syndrome were similar to a 12 prevailing view in this controversial 13 area of forensic pathology at the time 14 he gave testimony on the issue." 15 And -- and does that accord with -- with 16 your own personal belief? 17 DR. MICHAEL POLLANEN: Yes. 18 MR. MARK SANDLER: And then it says: 19 "There were recurrent issues that 20 emerged across cases. The issues 21 involved technical aspects of forensic 22 pathology derived from an absence of 23 forensic pathology training or 24 education, problems with testimony and 25 administrative issues."


1 And again, are you reflecting what the 2 panel found or -- or your own determination from a review 3 of -- of these cases or some combination? 4 DR. MICHAEL POLLANEN: Combination. 5 MR. MARK SANDLER: 6 "The panel noted that it appeared that 7 Dr. Smith had no training in forensic 8 pathology. There were significant or 9 recurrent problems with the diagnosis of 10 asphyxia, for example, basing the 11 diagnosis on non-specific findings such 12 as intra-thoracic petechia. 13 The diagnosis of head injury: For 14 example, basing the diagnosis on non- 15 specific findings such as cerebral 16 swelling or increased brain weight. 17 Misinterpreting wounds: For example, 18 confusing dog bites and stab wounds or 19 over-interpreting post-mortem changes as 20 injuries; for example, post-mortem anal 21 dilation. 22 And inappropriate opinions on the timing 23 of injuries: For example, in the Jenna 24 case." 25 And we've heard much or all of that from


1 three (3) of the forensic pathologists who have already 2 testified at this Inquiry. And do you share those 3 identified significant or recurrent problems with Dr. 4 Smith's opinions? 5 DR. MICHAEL POLLANEN: Yes. Yes, I do. 6 MR. MARK SANDLER: And then paragraph 18, 7 the Panel noted that Dr. Smith's testimony was sometimes 8 unbalanced and misleading. There were two (2) major areas 9 of concern: 10 "18.1 Developing misleading comparisons 11 in testimony that invited an unbalanced 12 conclusion on the evidence: For 13 example, the Sharon case, the 14 possibility of dog-bite injury was said 15 to be as likely as a polar bear bite 16 injury." 17 And: 18 "18.2 Introducing new facts or novel 19 concepts that were not previously 20 reported in the autopsy report: For 21 example, the [quote] "skull fracture" 22 [closed quote], in the Joshua case." 23 And, again, does that accord with -- with 24 your opinions upon the review of the testimony of Dr. 25 Smith?


1 DR. MICHAEL POLLANEN: Yes. 2 MR. MARK SANDLER: All right. 3 And then finally, I'll take you to 4 paragraph 20. It says: 5 "Overall, it is clear that there were 6 deficiencies in Dr. Smith's forensic 7 pathology knowledge that led to mis- 8 diagnosis by over-interpretation and 9 unbalanced testimony. But whatever 10 specific inferences can or should be 11 made about Dr. Smith's general 12 competence are beyond the scope of the 13 review." 14 And, again, do you share those opinions as 15 expressed by the Panel? 16 DR. MICHAEL POLLANEN: I think actually 17 we're getting into my opinions. 18 MR. MARK SANDLER: All right. So that 19 represents your opinion? 20 DR. MICHAEL POLLANEN: Yes. 21 MR. MARK SANDLER: Okay. Now, I noted, 22 and I apologize for this, Commissioner, that -- that as I 23 look at the chart, I neglected to flip the page and just 24 deal with the two (2) final items on it. So -- 25 COMMISSIONER STEPHEN GOUDGE: Well, he has


1 spoken about Valin and Paolo -- 2 MR. MARK SANDLER: And he has spoken to 3 both -- 4 COMMISSIONER STEPHEN GOUDGE: -- on the 5 way by. 6 MR. MARK SANDLER: -- Valin and Paolo. I 7 don't know that -- that he need add anything to what he's 8 already said about them, Commissioner -- 9 COMMISSIONER STEPHEN GOUDGE: I -- 10 MR. MARK SANDLER: -- other than -- 11 COMMISSIONER STEPHEN GOUDGE: I read the 12 page, Mr. -- 13 MR. MARK SANDLER: Good. 14 COMMISSIONER STEPHEN GOUDGE: -- Sandler, 15 so... 16 17 CONTINUED BY MR. MARK SANDLER: 18 MR. MARK SANDLER: And simply, I should 19 indicate for the record that the chart reflects that 20 insofar as Valin is concerned, there was support by other 21 forensic or medical experts or officials, including 22 gynecologists, forensic pathologists and forensic 23 pediatrician. 24 And that accords with -- with your 25 understanding, having reviewed the case extensively?


1 DR. MICHAEL POLLANEN: Yes. 2 MR. MARK SANDLER: Now, if we can move 3 then from the chart back to your document that summarizes 4 the systemic issues that are thrown up by the cases. 5 And I'm going to take you to the next 6 systemic issue, if I may, and that's listed at page 7; 7 Professional Consultations and Interaction. 8 And some of these I suspect we can deal 9 with in a fairly expeditious way. 10 You've reflected under "Professional 11 Consultations and Interaction" that: 12 "We need to enhance the quality of 13 forensic pathology by creating 14 mechanisms for real-time consultation, 15 including harnessing modern technologies 16 such as telepathology." 17 And could you briefly outline for the 18 Commissioner, what approaches you see feeding into this 19 issue? 20 DR. MICHAEL POLLANEN: Well, the first is 21 telepathology. And telepathology is using digital 22 technology to link different forensic pathology units such 23 as the Regional Forensic Pathology Units; where it might 24 be possible on that basis, to essentially engage in some 25 type of real-time discussion about a case that's on the


1 table. 2 So the example that I use here is -- is the 3 Valin case. So if we have a case in Toronto of a child 4 and we're uncertain about its anus -- the post-mortem 5 appearance of the anus -- we could then transmit that 6 image to the rest of the forensic pathologists in -- in 7 Ontario that function in the units and ask for -- 8 essentially, a consultation on the matter. Or does it 9 have to be such a dramatic example? 10 It might be a case where there is an 11 interesting finding, a particularly peculiar or -- or a 12 good educational example of something, and we might choose 13 to send that out across the network. 14 And that would be a way of digitally 15 linking the professional community, which is 16 geographically separated. So that's -- 17 COMMISSIONER STEPHEN GOUDGE: If there was 18 to be a peer review in each of these difficult cases, 19 could it be done that way? 20 DR. MICHAEL POLLANEN: No. 21 COMMISSIONER STEPHEN GOUDGE: Why not? 22 DR. MICHAEL POLLANEN: Because the -- the 23 ability to capture all elements of the autopsy will 24 probably not be facilitated by telepathology. You could 25 probably --


1 COMMISSIONER STEPHEN GOUDGE: It gets you 2 part of the way home -- 3 DR. MICHAEL POLLANEN: It does. 4 COMMISSIONER STEPHEN GOUDGE: -- because 5 pictures, slides, those sorts of things can be dealt with 6 this way, but it does not give you the full organ or a 7 look at the body, et cetera? 8 DR. MICHAEL POLLANEN: Correct. 9 COMMISSIONER STEPHEN GOUDGE: So it is a 10 second best? 11 DR. MICHAEL POLLANEN: Well, for example, 12 in -- in the State of Maryland and in the State of 13 Victoria, it's a centralized model because of that issue, 14 where you bring all the bodies to one (1) facility. 15 And that's the only way of dealing with the 16 fact that the body is, you know, not going to be changed 17 by technology through transmitting images or images will 18 be selected through digital photography or histology in 19 the -- in the later review process. 20 But if you have a geographically 21 distributed regionalized system of service, like we do, 22 the -- you -- you then have to engage sort of thinking 23 outside the box processes to -- to link people in a 24 meaningful way at the time of the post-mortem examination. 25 COMMISSIONER STEPHEN GOUDGE: Right.


1 Right. 2 MR. MARK SANDLER: Okay. 3 COMMISSIONER STEPHEN GOUDGE: Are there 4 any limits in a province as big as Ontario about body 5 transportation and effective autopsy? 6 DR. MICHAEL POLLANEN: Yes. The -- the -- 7 there are many impediments to that. To name a few, cost 8 in terms of transporting bodies -- 9 COMMISSIONER STEPHEN GOUDGE: Right. I 10 was thinking of scientific rather than resource. I mean, 11 resource obviously. Is it expensive to transport a body? 12 DR. MICHAEL POLLANEN: It is very 13 expensive, yes. The other -- the other issue -- 14 COMMISSIONER STEPHEN GOUDGE: Do you have 15 any idea -- I mean, I am completely at sea at this. How 16 much would it cost to transport an infant body from a 17 community in northern Ontario to, let us say, Ottawa? 18 DR. MICHAEL POLLANEN: More than the 19 professional fees of the autopsy; probably in excess of a 20 thousand dollars ($1,000). 21 COMMISSIONER STEPHEN GOUDGE: I see. 22 Okay. DR. MICHAEL POLLANEN: The -- the other 23 issue and -- and particularly with the pediatric cases and 24 the northern community is taking the body out of the com - 25 - community, --


1 COMMISSIONER STEPHEN GOUDGE: Right. 2 DR. MICHAEL POLLANEN: -- which is -- 3 which comes with its certain issues, -- 4 COMMISSIONER STEPHEN GOUDGE: Right. 5 DR. MICHAEL POLLANEN: -- cultural issues. 6 The oth -- the other thing is mobilizing police. It's a 7 very -- it's a severe resource issue for police services-- 8 COMMISSIONER STEPHEN GOUDGE: To accompany 9 the body? 10 DR. MICHAEL POLLANEN: -- to accompany the 11 body and to send a team of forensic identification 12 officers that essentially get removed from the current 13 inves -- police investigation, which will be in a remote 14 ar -- in a different area. 15 COMMISSIONER STEPHEN GOUDGE: Right. 16 DR. MICHAEL POLLANEN: So it has very 17 important resource implications for the police. And those 18 ha -- those are actually one (1) of the major impediments 19 to -- 20 COMMISSIONER STEPHEN GOUDGE: Right. 21 DR. MICHAEL POLLANEN: -- transporting 22 bodies. 23 COMMISSIONER STEPHEN GOUDGE: Right. 24 Sorry, Mr. Sandler. 25


1 CONTINUED BY MR. MARK SANDLER: 2 MR. MARK SANDLER: Morning rounds; morning 3 rounds are fairly self explanatory. I take it now, in 4 your unit, the cases are discussed prior to autopsy at the 5 morning conferences? 6 DR. MICHAEL POLLANEN: Yes. 7 MR. MARK SANDLER: And you say that in 8 your view, the autopsy of Sharon would have unfolded 9 differently after a morning round, what do you mean by 10 that? 11 DR. MICHAEL POLLANEN: Well, simply if -- 12 if Sharon would have been put out on -- onto the autopsy 13 table, and the -- the staff were examining the body and 14 hearing the history, you would have the benefit of some 15 discussion from multiple individuals on how best to 16 proceed with the case; and quite possibly some discussion 17 or -- or dis -- discord when issues relating to stabbing 18 with scissors was brought up. 19 COMMISSIONER STEPHEN GOUDGE: Although, 20 ironically, Sharon's case is one (1) in which there were a 21 number of other actors -- professional actors -- 22 supporting the diagnosis. 23 DR. MICHAEL POLLANEN: That is true. 24 DR. MICHAEL POLLANEN: I guess the issue 25 here is -- what we're talking about is evolution of the


1 case in real time, as the autopsy -- before the autopsy is 2 commenced, in the morning round where the issues are: 3 What information do we have? What information do we need? 4 How do we approach this case? What are the appropriate 5 experts to be involved, or not involved, for that matter? 6 Who's best equipped to do the autopsy? Is it going to be 7 done by a trainee? Is it going to be done by a staff 8 pathologist. 9 These are the issues that sort of come. 10 In -- in the evolution of the Sharon case 11 it was different; it sort of -- 12 COMMISSIONER STEPHEN GOUDGE: Can I just 13 probe that a little bit? I don't want to disrupt your 14 proposed lunch break, Mr. Sandler. 15 But to unpack that, is that really saying, 16 Dr. Pollanen, that you want the group think before 17 opinions are locked in? 18 DR. MICHAEL POLLANEN: Well, that's -- 19 that's a very important element and the other important 20 element is the fact that in the morning round you would 21 actually have forensic pathologists there. 22 COMMISSIONER STEPHEN GOUDGE: As opposed 23 to a forensic pathologist, a forensic odontologist and so 24 on? 25 DR. MICHAEL POLLANEN: Well, there was no


1 forensic pathologist there -- 2 COMMISSIONER STEPHEN GOUDGE: Right, 3 right. 4 DR. MICHAEL POLLANEN: -- in Sharon. 5 COMMISSIONER STEPHEN GOUDGE: Okay. Okay. 6 I mean the the early consultation in a team setting, 7 you're describing to be of significant importance. 8 Is that fair? 9 DR. MICHAEL POLLANEN: Yes. 10 COMMISSIONER STEPHEN GOUDGE: Okay. 11 Sorry. 12 MR. MARK SANDLER: Commissioner, we're 13 about to move to a very important area; double-doctoring 14 in forensic triage. Perhaps we can do that after the 15 break. 16 COMMISSIONER STEPHEN GOUDGE: Thanks. Two 17 o'clock then. 18 19 --- Upon recessing at 12:46 p.m. 20 --- Upon resuming at 2:01 p.m. 21 22 THE REGISTRAR: All rise. Please be 23 seated. 24 COMMISSIONER STEPHEN GOUDGE: Mr. 25 Sandler...?


1 MR. MARK SANDLER: Commissioner, just 2 before we continue on, as you know, Mr. Cavalluzzo has 3 requested that -- that he be permitted to cross- 4 examination this afternoon. 5 COMMISSIONER STEPHEN GOUDGE: Right. 6 MR. MARK SANDLER: We can accommodate 7 that. And as well, Mr. Lockyer has indicated he's going 8 to be at trial for the entire day tomorrow and can't get 9 away and he's requesting ten (10) minutes at the end of 10 the day today. 11 If you're content to sit a little longer, I 12 think we could accommodate both requests. 13 COMMISSIONER STEPHEN GOUDGE: Sure. 14 MR. MARK SANDLER: Subject to what you do 15 with the times during the afternoons breaks. And I have 16 assembled estimates, and we can -- you can have a look at 17 that during the afternoon break. 18 COMMISSIONER STEPHEN GOUDGE: Okay. Why 19 don't we try to do that and then we'll see if we can accom 20 -- I'm sure we can. 21 MR. MARK SANDLER: All right. 22 COMMISSIONER STEPHEN GOUDGE: It may mean 23 we all have to stay a little later, but that's okay by me, 24 so. 25


1 CONTINUED BY MR. MARK SANDLER: 2 MR. MARK SANDLER: All right. Good 3 afternoon, Dr. Pollanen. 4 DR. MICHAEL POLLANEN: Good afternoon. 5 MR. MARK SANDLER: You're -- you're very 6 popular, everyone not only wants to cross-examine you, but 7 do it today. 8 So we were looking at page 7 of -- of your 9 materials, and -- and I was about to ask you about several 10 more approaches to encourage professional consultations 11 and interaction. And you make reference both to double- 12 doctoring and professional -- and forensic triage. 13 Can you explain your thoughts in that 14 regard to the Commissioner, please. 15 DR. MICHAEL POLLANEN: Well I think the 16 double-doctoring has been discussed in -- in detail. 17 MR. MARK SANDLER: Right. 18 DR. MICHAEL POLLANEN: The -- the issue 19 about forensic triage is essentially dealing with the 20 concept of how do we match the case with the best expert 21 in the first instance, at the front end. And any 22 procedure for that will be necessarily imperfect if you 23 use the cleavage between forensic pathology and pediatric 24 pathology as being the sort of goal. 25 But I think what we -- we can come very


1 close to designing a system where we can do -- meet all 2 goals. And -- and what I mean by all goals is that we've 3 already recognized that -- and I -- I believe it's an 4 accepted proposition -- that in the sudden natural death 5 circumstance with infants and children, the pediatric 6 pathologist has great input. And there's very -- there 7 are studies to -- to show that in fact, they do a better 8 job at finding natural disease processes compared to 9 forensic pathologists. 10 On the flipside, there is value in having a 11 forensic pathologist involved in cases, such as many of 12 the cases that we've talked about prior to the break. So 13 that -- the challenge is matching up the cases to the 14 appropriate experts, and recognizing that in some cases a 15 hybrid approach might be relevant. And that hybrid -- 16 COMMISSIONER STEPHEN GOUDGE: If we were 17 matching at the end of the process it would be a lot 18 easier then matching at the front door. 19 DR. MICHAEL POLLANEN: Yes, definitely. 20 And -- and the -- the issue there is, based upon 21 information, the best information at the front end, you 22 have to make a decision. And the way I would see the best 23 approach to that is if you have cases that are essentially 24 adult-type forensic pathology presenting in the pediatric 25 age spectrum, then --


1 2 CONTINUED BY MR. MARK SANDLER: 3 MR. MARK SANDLER: Like Sharon? 4 DR. MICHAEL POLLANEN: Like Sharon. Or 5 cases that, you know, fall into other categories like 6 markedly decomposed bodies where you get into this whole 7 issue of post-mortem artifacts or skeletons, this type of 8 thing. 9 Be they pediatric or adult, the forensic 10 pathologist is really best suited to examine those cases. 11 COMMISSIONER STEPHEN GOUDGE: SIDS? 12 DR. MICHAEL POLLANEN: SIDS I think we'd 13 have to say -- you know, SIDS of course being a negative 14 conclusion at the end of everything -- 15 COMMISSIONER STEPHEN GOUDGE: Yes. 16 DR. MICHAEL POLLANEN: -- but on the front 17 end I think we'd have to say that the best approach on a 18 statistical basis would be in a pediatric environment -- 19 pediatric pathology environment with effective partnership 20 to the forensic pathology environments. 21 COMMISSIONER STEPHEN GOUDGE: Does that 22 mean double-doctoring? 23 DR. MICHAEL POLLANEN: It could mean 24 double-doctoring, or it could mean a very effective 25 communication at the prior -- prior to the examination or


1 if events arise during. 2 It might also mean, for example, that there 3 is enhanced communication later on in the process. So, 4 for example, at the histological time. 5 Let's say, for example, we're getting into 6 the Jenna issue. Let's say that that case was done by a 7 pediatric pathologist. There might in fact be some value 8 in showing the histology to a forensic pathologist. 9 COMMISSIONER STEPHEN GOUDGE: You 10 described when you first gave evidence though, the 11 importance on the forensic autopsy in a case that was 12 going to court as distinct from the pediatric autopsy in a 13 hospital. 14 DR. MICHAEL POLLANEN: Correct. And what 15 I'm saying -- 16 COMMISSIONER STEPHEN GOUDGE: How do you 17 ensure that for the cases going to court -- that will 18 eventually go to court, you provide the necessary 19 pathology resources from the beginning? 20 I guess what I'm getting at, Dr. Pollanen, 21 is this: One (1) way to envisage the task we're all 22 engaged in is what kind of system can best be recommended 23 for those cases that are going to engage the criminal 24 justice system eventually? 25 And you don't know that is so until the


1 investigation is well along, so what do you do? Or you 2 may not know. 3 DR. MICHAEL POLLANEN: The -- 4 COMMISSIONER STEPHEN GOUDGE: In many 5 cases it will be obvious. 6 DR. MICHAEL POLLANEN: The safest 7 alternative is a double-doctor approach, essentially. 8 COMMISSIONER STEPHEN GOUDGE: That is very 9 resource intensive. 10 DR. MICHAEL POLLANEN: It is, very much 11 so. Other than that -- 12 COMMISSIONER STEPHEN GOUDGE: I mean, you 13 could have catchment definitions like: We will exclude 14 only those cases that we can tell from the entry point 15 will never go to court. That is a cautious approach. 16 You could have, you know, sequentially 17 narrowing definitions for a catchment. 18 What would your optimal be? 19 DR. MICHAEL POLLANEN: Well, you see we're 20 -- we're anchoring it relative to the criminal justice 21 system -- 22 COMMISSIONER STEPHEN GOUDGE: That is 23 because of the task I have been given. 24 DR. MICHAEL POLLANEN: Right. But the 25 thing is, that -- that realistically, we also have to


1 balance the congenital heart cases, the metabolic 2 disorders, because these, importantly, may subsequently 3 present with other deaths that enter the criminal justice 4 system. 5 You know, for example, I had a case 6 recently where it was a sudden, unexpected death in 7 infancy and I diagnosed an inherited condition. Now that 8 case, if that were missed, that sibling might present 9 again in a criminal justice environment because it's being 10 -- it's a second death in the family. 11 COMMISSIONER STEPHEN GOUDGE: Right. 12 DR. MICHAEL POLLANEN: So what I'm saying 13 is that the -- the distinction that we're making here is 14 slightly artificial in that we can't really tease out the 15 disease element as well, in terms of service provision. 16 The best we can do, I think, is balance the 17 two (2) objectives. And the best way to balance the two 18 (2) objectives is to have some type of rational approach 19 at the front end that says: This one (1) is more on the 20 forensic side, this one (1) is more on the pediatric side. 21 Send them to the appropriate locations and have faith in 22 the experts to then engage the appropriate processes to 23 deal with the issues that arise. 24 COMMISSIONER STEPHEN GOUDGE: And if we 25 guess wrong, if we stream -- I mean, not use "guess". If


1 we stream wrong at the beginning we'll do our best to make 2 it up with consultation with the other sub-specialty? 3 DR. MICHAEL POLLANEN: Correct. 4 COMMISSIONER STEPHEN GOUDGE: Okay. How 5 would you articulate the definition of the catchment group 6 that will go to a forensic stream? In that paradigm you 7 enunciated. 8 DR. MICHAEL POLLANEN: So I think -- this, 9 I think, is the -- is the part -- is essentially the 10 easiest part. There -- there are cases which are clearly 11 forensic at the onset -- 12 COMMISSIONER STEPHEN GOUDGE: Yeah. 13 DR. MICHAEL POLLANEN: -- and so that 14 group, it will be essentially a clerical exercise. 15 COMMISSIONER STEPHEN GOUDGE: Yeah. But 16 like every definitional exercise, it is the gray areas 17 that cause the problem. 18 DR. MICHAEL POLLANEN: Right. 19 COMMISSIONER STEPHEN GOUDGE: I guess 20 where I am going with this, Dr. Pollanen, is to try to get 21 some fix on what are the numbers we are going to be 22 talking about for any set of recommendations that come out 23 of this Commission, as being the numbers of cases per 24 year, cases per period of time, that are going to require 25 whatever recommendations I make.


1 DR. MICHAEL POLLANEN: Mm-hm. Well, you 2 see the problem is that there will always be those cases 3 like Gaurov, that essentially present as -- Gaurov's 4 slightly different because he went to hospital -- 5 COMMISSIONER STEPHEN GOUDGE: Right, 6 right. 7 DR. MICHAEL POLLANEN: -- but let's say 8 Gaurov was found dead in bed at home. 9 COMMISSIONER STEPHEN GOUDGE: Right. 10 DR. MICHAEL POLLANEN: For all intents and 11 purposes, the autopsy will stream that case one way or the 12 other. It is impossible to stream it beforehand. And it 13 goes to the very nature of why we do autopsies. 14 So it will not be possible to demo -- to 15 develop a technique at the front end to stream them, so 16 the only thing that we can do is identify that there will 17 be a large subset of our cases, probably in the -- perhaps 18 in the -- almost a hundred (100), sort of -- 19 COMMISSIONER STEPHEN GOUDGE: Range. 20 DR. MICHAEL POLLANEN: -- many tens (10s) 21 to a hundred (100) of cases where the autopsy findings 22 could reasonably produce an unnatural death, an 23 unexpected, unnatural death. 24 COMMISSIONER STEPHEN GOUDGE: A case that 25 may end up in the criminal justice system?


1 DR. MICHAEL POLLANEN: Correct. 2 COMMISSIONER STEPHEN GOUDGE: Yes. 3 DR. MICHAEL POLLANEN: And we just have to 4 accept that as being -- 5 COMMISSIONER STEPHEN GOUDGE: A risk of 6 doing business? 7 DR. MICHAEL POLLANEN: Exactly. And then 8 when we identify that case that we mobilize the 9 appropriate mechanisms and the -- the appropriate supports 10 to be of assistance in managing that case. 11 COMMISSIONER STEPHEN GOUDGE: But to take 12 a case -- I do not want to take Gaurov particular -- but 13 to take a case that presents as simply as sudden death, 14 unnatural, we do not know it is unnatural, undetermined, 15 okay? And it could be a SIDS case, it could be something 16 more sinister. 17 Where does that go for autopsy in order 18 that the autopsy can then stream it more precisely? 19 Does it go to a pediatric setting because 20 of the potential disease component or does it go to the 21 forensic setting as one that could after autopsy obviously 22 require gathering of information suitable for the criminal 23 justice system? 24 DR. MICHAEL POLLANEN: Currently, they go 25 to regional forensic pathology units --


1 COMMISSIONER STEPHEN GOUDGE: Right. 2 DR. MICHAEL POLLANEN: -- or to the 3 Ontario Pediatric Forensic Pathology Unit -- 4 COMMISSIONER STEPHEN GOUDGE: Right. 5 DR. MICHAEL POLLANEN: -- if they're 6 essentially not in -- in a geographical catchment -- 7 COMMISSIONER STEPHEN GOUDGE: Right. 8 DR. MICHAEL POLLANEN: -- for the regional 9 units. I think that system forms a reasonable base to 10 work with. 11 COMMISSIONER STEPHEN GOUDGE: Okay. 12 DR. MICHAEL POLLANEN: We then have to 13 identify opportunities to augment it, in the -- in the 14 circumstances where the autopsy reveals essentially 15 positive findings or gray zone findings. And to some 16 extent we those mechanisms in place already, with the 17 early case notification process, et cetera, but -- but 18 ultimately short of an entirely centralized service with 19 both a pediatric pathologist and a forensic pathologist 20 involved in each case -- 21 COMMISSIONER STEPHEN GOUDGE: Yes, and 22 that's Utopia. 23 DR. MICHAEL POLLANEN: That's Utopia. 24 COMMISSIONER STEPHEN GOUDGE: Okay. But 25 suppose you said for sure if we knew it was going to


1 court, the best of all possible worlds would be double- 2 doctoring at the autopsy, okay? 3 DR. MICHAEL POLLANEN: I agree with that, 4 yes. 5 COMMISSIONER STEPHEN GOUDGE: All right. 6 That is very resource intensive. 7 DR. MICHAEL POLLANEN: With -- with the 8 proviso that if you bring a decomposed, stabbed child, 9 there's no reason to double-doctor -- 10 COMMISSIONER STEPHEN GOUDGE: To have the 11 -- yes, absolutely, absolutely. 12 But the case that is obviously going to 13 court that requires -- that is anything other than the 14 kind of skeletal remains you talk about, the perfect world 15 is double- doctoring? 16 DR. MICHAEL POLLANEN: Yes. 17 COMMISSIONER STEPHEN GOUDGE: Okay. Since 18 that is resource intensive, how many case beyond the 19 absolutely certain cases do we apply that resource 20 intensive process to? 21 DR. MICHAEL POLLANEN: Well, I'll say -- a 22 point that you raised before that I think is important, as 23 well -- at what level does the double-doctoring occur? It 24 might occur in many of those of cases in the post-mortem 25 room --


1 COMMISSIONER STEPHEN GOUDGE: Right. 2 DR. MICHAEL POLLANEN: -- very 3 effectively. 4 COMMISSIONER STEPHEN GOUDGE: Right. 5 DR. MICHAEL POLLANEN: It might occur at 6 the level of microscopy, for example, -- 7 COMMISSIONER STEPHEN GOUDGE: Right. 8 DR. MICHAEL POLLANEN: -- but the -- 9 COMMISSIONER STEPHEN GOUDGE: But your 10 optimal is in the morgue? 11 DR. MICHAEL POLLANEN: Yes. That -- I 12 think that's true. What percentage of the cases? It's 13 very difficult to -- to come to a -- to a -- a view on 14 that. 15 COMMISSIONER STEPHEN GOUDGE: If you were 16 a government looking at costing of how to proceed, this is 17 a pretty important point, is it not? 18 DR. MICHAEL POLLANEN: Yes. 19 COMMISSIONER STEPHEN GOUDGE: How do we 20 get information about it? 21 DR. MICHAEL POLLANEN: Well, I'll -- I'll 22 just give you another issues and that is that the other 23 thing the double-doctoring assumes is that the hospital 24 has a pediatric pathologist like the -- and the Regional 25 Forensic Pathology Unit --


1 COMMISSIONER STEPHEN GOUDGE: Right. 2 DR. MICHAEL POLLANEN: -- had a pediatric 3 pathologist that is able and willing to work in the 4 medicolegal environment -- 5 COMMISSIONER STEPHEN GOUDGE: Right. 6 DR. MICHAEL POLLANEN: -- in the man -- in 7 that manner -- 8 COMMISSIONER STEPHEN GOUDGE: Right. 9 DR. MICHAEL POLLANEN: -- and -- and take 10 them away from their clinical duties. 11 COMMISSIONER STEPHEN GOUDGE: Right. 12 DR. MICHAEL POLLANEN: So it's a -- it's 13 huge -- it's a huge issue. 14 COMMISSIONER STEPHEN GOUDGE: It's a 15 complicated issue, certainly. 16 DR. MICHAEL POLLANEN: Yes. 17 COMMISSIONER STEPHEN GOUDGE: Yes. Okay. 18 DR. MICHAEL POLLANEN: I guess what I'm 19 saying is that it's not simply resource intensive on the 20 forensic pathological side. 21 COMMISSIONER STEPHEN GOUDGE: Right. 22 DR. MICHAEL POLLANEN: It also comes 23 necessarily with resource implications on the Ministry of 24 Health, Pediatric Pathology Service side because you're 25 essentially tapping -- you're essentially taking some


1 equivalent of FTE -- 2 COMMISSIONER STEPHEN GOUDGE: Yes, so it's 3 a zero sum game. 4 DR. MICHAEL POLLANEN: Exactly, yeah. 5 COMMISSIONER STEPHEN GOUDGE: I guess what 6 I'm getting at is that, I mean, I don't know where I'm 7 going yet, but this is certainly something that the 8 double-doctoring issue was one that others have spoken 9 about, and certainly you have, and to get a handle on how 10 viable that is, one would need to know the range of 11 application that it would be turned to. And that's a hard 12 issue. 13 DR. MICHAEL POLLANEN: It's a very hard 14 issue. 15 COMMISSIONER STEPHEN GOUDGE: Well, I'd be 16 grateful if you'd reflect on it because I certainly -- 17 DR. MICHAEL POLLANEN: The -- the -- 18 COMMISSIONER STEPHEN GOUDGE: -- would 19 like all the advice I could get about that. 20 DR. MICHAEL POLLANEN: I think the way to 21 approach it might be simply to do an actuarial analysis 22 on, you know, a year's worth of pediatric cases. 23 COMMISSIONER STEPHEN GOUDGE: I mean you 24 start with the raw numbers, five (5) to fifteen (15) 25 homicides or murders, child murders, per year rough


1 number, that's sort of what your baseline data is? 2 DR. MICHAEL POLLANEN: Yes. 3 COMMISSIONER STEPHEN GOUDGE: Okay, out of 4 two hundred and fifty (250) infant deaths -- 5 DR. MICHAEL POLLANEN: Yes. 6 COMMISSIONER STEPHEN GOUDGE: -- that you 7 would autopsy? 8 DR. MICHAEL POLLANEN: Yes. 9 COMMISSIONER STEPHEN GOUDGE: Okay. 10 What's the gray area around that? 11 DR. MICHAEL POLLANEN: Well, that -- 12 COMMISSIONER STEPHEN GOUDGE: I mean are 13 we talking a hundred (100) of the two fifty (250), are we 14 talking twenty-five (25) of the two fifty (250), that's a 15 big spread? 16 DR. MICHAEL POLLANEN: Well, that's 17 something that we could actually ascertain. I mean it 18 would have to -- it would be a slightly artificial 19 exercise. 20 COMMISSIONER STEPHEN GOUDGE: Yes, and 21 it's clearly going to be arbitrary in some fashion; it's 22 going to be approximate. 23 DR. MICHAEL POLLANEN: Yes. 24 COMMISSIONER STEPHEN GOUDGE: But it would 25 be helpful at least to consider the range of alternative


1 recommendations one might make to know just what demands 2 on the system each set of recommendations might provide. 3 DR. MICHAEL POLLANEN: The -- the other -- 4 the other caution is a caution that we live in forensic 5 pathology every day of the week, and that is that forensic 6 pathology is about rare events. You know we're in the 7 business of detecting rare events. 8 COMMISSIONER STEPHEN GOUDGE: Right. 9 DR. MICHAEL POLLANEN: And -- and their 10 systems -- any -- any system that you devise is actually 11 not very good -- 12 COMMISSIONER STEPHEN GOUDGE: Right. 13 DR. MICHAEL POLLANEN: -- at detecting 14 rare events, so -- so there will always be quite a margin 15 of -- of things that cannot be accounted for. 16 COMMISSIONER STEPHEN GOUDGE: Right. 17 Okay. Well, if you'd continue to think about my catchment 18 challenge -- 19 DR. MICHAEL POLLANEN: Yes. 20 COMMISSIONER STEPHEN GOUDGE: -- then I'd 21 be grateful. 22 Sorry, Mr. Sandler. 23 24 CONTINUED BY MR. MARK SANDLER: 25 MR. MARK SANDLER: Just a last question in


1 -- in this area, because I -- we've probably exhausted 2 what we can say about it at this point in time. But just 3 so -- so that I'm clear on -- on one (1) aspect of what 4 you've had to say, there are obvious cases, as you've 5 said, where the information that's obtained, pre-autopsy, 6 enables you to determine that a forensic pathologist 7 acting alone is best suited to conduct the autopsy. 8 And -- and the Sharon situation, right? 9 DR. MICHAEL POLLANEN: Yes, yes. 10 MR. MARK SANDLER: And it would appear 11 that there are some sudden and unexpected deaths where, 12 based upon the pre-autopsy information, at first instance, 13 at least, it would appear that the best person to be 14 designated to conduct the autopsy, subject to later 15 consultation or revision of the approach depending upon 16 what's discovered, would be a pediatric pathologist. 17 Am I right? 18 DR. MICHAEL POLLANEN: Correct, yes. 19 MR. MARK SANDLER: And that might be the - 20 - the sudden and unexpected death that from the pre- 21 autopsy information might be characteristic of a SIDS, 22 right? 23 DR. MICHAEL POLLANEN: We're getting into 24 difficulties with terminology again, but certainly the -- 25 that the investigations would -- would be compatible with


1 a natural death. 2 MR. MARK SANDLER: Okay. 3 DR. MICHAEL POLLANEN: Also, I would add 4 into that, cases that come into medical -- into the 5 medicolegal environment that may be children or infants 6 with known diseases, or complications of therapy, or 7 admitted to hospitals, dying in hospital. I mean, those 8 types of cases would be best served in a clinical 9 environment. 10 MR. MARK SANDLER: All right. And the -- 11 so the question that I have for you is: Which cases would 12 present themselves based upon the pre-autopsy information 13 as those for which double-doctoring should obtain at the 14 outset? 15 DR. MICHAEL POLLANEN: Well, I think 16 that's the question that we've been contemplating. 17 COMMISSIONER STEPHEN GOUDGE: Yeah. 18 DR. MICHAEL POLLANEN: And that's -- and 19 that -- what I -- the best I can do with you for that 20 issue is to go back and do a retrospective look at two 21 hundred (200) cases. 22 COMMISSIONER STEPHEN GOUDGE: Yeah, take a 23 sample year or a sample two (2) years and see what it 24 would run at. 25 MR. MARK SANDLER: Okay.


1 DR. MICHAEL POLLANEN: Yes. 2 COMMISSIONER STEPHEN GOUDGE: Is that a 3 huge job? I do not want to task you with a huge job. 4 DR. MICHAEL POLLANEN: No, it's not a huge 5 job. 6 COMMISSIONER STEPHEN GOUDGE: Okay. 7 8 --- UNDERTAKING NO. 1: Dr. Pollanen, taking a sample 9 year or two (2), to determine 10 which cases would present 11 themselves, based upon the 12 pre-autopsy information, as 13 those for which double- 14 doctoring should be done at 15 the outset 16 17 CONTINUED BY MR. MARK SANDLER: 18 MR. MARK SANDLER: All right. So we'll 19 defer that. 20 Systemic issue number 6, which is also 21 reflected at page 8, has to do with forensic pathology 22 quality processes. And you've said that: 23 "Forensic pathologists are involved at 24 different stages in the criminal justice 25 system and the quality processes need to


1 be designed for each step." 2 And -- and can you very briefly articulate 3 what it is that -- that you'd like consideration to be 4 given to in this regard? 5 DR. MICHAEL POLLANEN: Well, I think when 6 you look at the overview reports it's pretty clear. I 7 mean, I think this clear a priori that the pathologist has 8 different roles in these cases at different points in 9 time. 10 In the investigative phase, we do autopsies 11 and we meet in case conferences, meet with lawyers. In 12 the judicial phase we give evidence, oral testimony. And 13 then occasionally, and has been my practice for the last 14 little while, to be involved in post-conviction pathology 15 reviews. 16 So there are essentially three (3) -- three 17 (3) ways the pathologist gets engaged in the criminal 18 justice system. And -- so I've called it "Investigative 19 Judicial and Post-Conviction." 20 And just simply looking at it like that, 21 you can see that there are -- there are associated quality 22 processes for forensic pathology that could be present in 23 all three (3) phases. 24 We've concentrated, in terms of our policy 25 development, in the first phase -- in other words, the


1 pre-trial phase, the investigative phase -- trying to put 2 in various checks and balances and guidelines that we've 3 talk -- very briefly discussed. 4 And that's essentially -- we've identified 5 that as -- as our territory, the Office of the Chief Coro 6 -- it's within our scope. 7 But then as medical processes give way to 8 legal processes, medical reasoning is -- is replaced by 9 legal tests of admissibility in cross-examination, then 10 more players enter the environment, essentially the Crown, 11 the defence and the judge, trier of fact; then we really 12 don't have any quality processes for that stage. We -- we 13 essentially then leave it up to the criminal justice 14 system to use the tools that they've developed to deal 15 with issues of quality. 16 And the challenge for us then is to say: 17 Well, do we actually have a role at that phase? 18 And this is -- the issue that arises from 19 this essentially is monitoring of testimony. Do we have a 20 role -- in other words, the forensic pathology service, 21 have a role in monitoring testimony or producing some type 22 of review mechanism, which we currently don't have and -- 23 COMMISSIONER STEPHEN GOUDGE: Can I just 24 stop you there, Dr. Pollanen, because one (1) thing we 25 have heard in several cases that have been discussed here,


1 is that that phase may arise a little earlier than the 2 actual giving of testimony. It may arise during the 3 preparation for trial stage, for example, with 4 communication between pathologist and Crown about -- to 5 take an example that has arisen -- a shifting opinion; 6 that is, the post-mortem report said one thing and the 7 opinion then shifts on the way to the courtroom. 8 So there is that part of the time line, so 9 to speak, that is not really, I sense, part of what you 10 see as your realm but part of the court involvement realm, 11 because it's the pathologist interfacing with police, 12 Crown on the way to the courtroom door. 13 DR. MICHAEL POLLANEN: Except the issue 14 there is if there is a -- if there is a change then we're 15 of -- we're of -- knowledgeable about the Crown's 16 obligation to disclose -- to disclose that change. So 17 there has to be a process where we ensure that the change 18 is somehow is recorded in our -- in a record, like in a 19 supplementary report. 20 COMMISSIONER STEPHEN GOUDGE: Okay. So 21 you would consider that part of your monitoring realm; 22 that is, the part leading up to the courtroom? 23 DR. MICHAEL POLLANEN: Well, not 24 monitoring, but more it's in our guidelines -- 25 COMMISSIONER STEPHEN GOUDGE: Okay.


1 DR. MICHAEL POLLANEN: -- that if you do - 2 - if you do make a change like that then it should be 3 recorded and -- 4 COMMISSIONER STEPHEN GOUDGE: All right. 5 DR. MICHAEL POLLANEN: -- disclosed. 6 7 CONTINUED BY MR. MARK SANDLER: 8 MR. MARK SANDLER: And we haven't dealt 9 with the post-conviction phase, which probably speaks for 10 itself, at this point because you've reflected that -- 11 that there's no formal mechanism that currently exists to 12 obtain a post-conviction pathology review by a pathologist 13 employed by the State. 14 And you've analogized that to post- 15 conviction scientific testing? 16 DR. MICHAEL POLLANEN: Yes. 17 MR. MARK SANDLER: And I'm sure we're 18 going to revisit that issue in the context of some of the 19 recommendations that -- that might be made. So if we can 20 move from -- from the issues which you've identified 21 concerning quality processes to page 9, continuity of 22 evidence. 23 And you've said: 24 "We need to emphasize the importance of 25 the continuity of evidence or the chain


1 of custody in the institutional 2 accessioning of consultation cases and 3 specimens." 4 And -- and you've outlined what -- what the 5 concerns are and what principles could contribute to 6 improving the chain of custody. And I don't intend to 7 take you through, in examination-in-chief, those -- those 8 points, which speak for themselves, in the document. 9 Similarly, at systemic issue 8, which, in 10 your view, arises from your review of these cases, you've 11 identified the importance of the scene. And you've 12 actually been instrumental in a -- in guidelines that have 13 been distributed to the forensic pathologist that 14 addresses the -- the need for more frequent attendance by 15 forensic pathologist at the scene. 16 Is that right? 17 DR. MICHAEL POLLANEN: Yes. 18 MR. MARK SANDLER: And -- and we actually 19 see that at Tab 2 of your materials, at PFP -- and I -- I 20 won't go to it -- but PFP032567, a memorandum from you and 21 the Chief Coroner dated June the 1st, 2005. 22 Is that right? 23 DR. MICHAEL POLLANEN: Yes, I think that 24 actually was for Toronto. Recognizing that giving advice, 25 on-scene attendants, across the Province is -- is a


1 separate issue. 2 MR. MARK SANDLER: And was there a 3 particular case that you would look to in -- in the twenty 4 (20) to -- to illustrate the importance of going to the 5 scene? 6 DR. MICHAEL POLLANEN: Well, I think the 7 Sharon case is -- is the probably best example of that. 8 MR. MARK SANDLER: Okay. If you go 9 systemic issue 9, the timeliness of autopsy reports. And 10 again, as one (1) of the issues that you've identified as 11 being thrown up by the cases under consideration, you've 12 said: 13 "We need develop a system to track 14 uncompleted autopsy reports, identify 15 the steps that delay the preparation of 16 reports, and provide resources to reduce 17 backlogs." 18 And -- and I won't take you through your 19 discussion of -- of how the -- the cases throw up the 20 issue of untimely reports because the Commissioner has 21 heard much about it. I do want to ask you about the 22 related issue, and -- and that is the content of reports, 23 if I may. 24 And three (3) of the forensic pathologists 25 who formed part of the Chief Coroner's review have already


1 testified here concerning the preferred content of post- 2 mortem reports. 3 And one (1) of the things that they've had 4 to say is that -- is that ideally, the post-mortem 5 examination report should articulate not only the cause of 6 death, but also the explanations for the opinion being 7 expressed as to cause of death, a discussion of 8 differential diagnosis, and also a discussion of the kinds 9 of issues that are known to be of concern to the consumer 10 of the report. 11 So for example, in Jenna a discussion of 12 timing of the infliction of fatal injuries rather than 13 simply an articulation of cause of death. And -- and as a 14 principle, do you agree with that approach? 15 DR. MICHAEL POLLANEN: Yes. 16 MR. MARK SANDLER: And could you advise 17 the Commissioner briefly, what the history is as to the 18 content and format of -- of reports in this Province? 19 DR. MICHAEL POLLANEN: Well this Province 20 historically is actually quite typical of North America in 21 -- in general and that is that there is -- probably the 22 most common approach to reporting medicolegal autopsies, 23 is to not have any opinions in -- in the reports. 24 And that was -- 25 COMMISSIONER STEPHEN GOUDGE: Just a


1 diagnosis? 2 DR. MICHAEL POLLANEN: Just a diagnosis 3 and a cause of death. So for example, in most medical 4 examiner jurisdictions there would be no fulsome 5 discussion of opinion. Now there are exceptions to that, 6 but -- but generally speaking, that's what was -- that is 7 a common practice currently today in North America. 8 It was -- and it's more so evident in our 9 history, where the evolution of both the reporting form 10 and the general customary practice has been not to produce 11 large discussions in the autopsy report. 12 Again, there have been notable exceptions. 13 For example, the Hamilton Group traditionally has always 14 produced long narratives. But -- but it gener -- not 15 generally that way in -- in Toro -- in Ontario has not 16 historically been that way. There is a tendency right now 17 to increase the amount of opinion in reports. 18 COMMISSIONER STEPHEN GOUDGE: Was there 19 any reason for the original stance? 20 DR. MICHAEL POLLANEN: I'm not certain. I 21 think it -- I think it was just -- 22 COMMISSIONER STEPHEN GOUDGE: Was it just 23 cultural? 24 DR. MICHAEL POLLANEN: I think it was just 25 cultural. I don't think there was any specific reason to


1 inhibit production of an opinion. I think it was just 2 that was the way things were done. And the -- the autopsy 3 report form that was used for many years had a section 4 called "Summary of Abnormal Findings", which was an 5 encouragement to -- to list the sort of deviations from 6 normal, but not really an encouragement to talk about the 7 medicolegal opinion. And the -- this sort of major 8 tendency was to give those opinions in court. That was 9 the -- that was the sort of -- 10 COMMISSIONER STEPHEN GOUDGE: All right. 11 DR. MICHAEL POLLANEN: -- view. That's -- 12 you know, that's been progressively changing over time. 13 And in the course of the -- of the last two (2) or three 14 (3) years, I would say changing even more and so now you 15 will see more opinion in reports in general. 16 But -- but even then, as you I'm sure will 17 speak to other pathologists in Province of Ontario, there 18 is still quite a spectrum in -- in how much individual 19 pathologists feel comfortable in writing in an opinion 20 section. 21 22 CONTINUED BY MR. MARK SANDLER: 23 MR. MARK SANDLER: And to what extent is 24 consideration being given to the use of a -- of a template 25 for a more fulsome opinion or report at the present time?


1 DR. MICHAEL POLLANEN: Well, we currently 2 have a template that's based essentially -- derives from 3 the template that's in the regulation -- regulations to 4 the Act. But the whole point of an opinion is there is no 5 template. 6 The -- the whole point of an opinion is 7 that you -- you write a discussion of what the issues are. 8 So essentially it would not -- it wouldn't appear in a 9 template other than an area to fill in an opinion. 10 MR. MARK SANDLER: All right. 11 COMMISSIONER STEPHEN GOUDGE: Well, you 12 could, for example, explicitly require not just the 13 pathological findings, but an articulation of the 14 reasoning process from those findings to the conclusion? 15 DR. MICHAEL POLLANEN: And -- and the way 16 if you wanted to do that systemically, you would modify 17 the coroner's warrant. 18 COMMISSIONER STEPHEN GOUDGE: The 19 coroners...? 20 DR. MICHAEL POLLANEN: Warrant for post- 21 mortem examination. 22 COMMISSIONER STEPHEN GOUDGE: To do what? 23 DR. MICHAEL POLLANEN: To say -- it 24 currently says, Give an opinion on the cause of death. 25 You would have to -- if you wanted to systemically provide


1 for a -- 2 COMMISSIONER STEPHEN GOUDGE: A more 3 fulsome report. 4 DR. MICHAEL POLLANEN: -- then you would 5 have to include that -- 6 COMMISSIONER STEPHEN GOUDGE: Okay. 7 DR. MICHAEL POLLANEN: -- as a direction 8 within the coroner's warrant. 9 COMMISSIONER STEPHEN GOUDGE: Okay. Why 10 is the fulsome report better than the conclusion report? 11 DR. MICHAEL POLLANEN: Well in some cases 12 it may actually not be. If you've been shot in the head, 13 stabbed in the heart, die of a heart attack, hit by a bus, 14 the more fulsome report may in fact add no information. 15 It's really in those cases where there's 16 some type of controversy or there -- there is an issue 17 that requires discussion that you would create -- create 18 that discussion. 19 20 CONTINUED BY MR. MARK SANDLER: 21 MR. MARK SANDLER: The reason I raise the 22 issue of a template is because it would seem to me -- and 23 you correct me if I'm wrong -- that there are features of 24 a post-mortem report that do lend themselves to a sort of 25 checklist -- and filling in certain pre-determined


1 sections. But, on the other hand, with -- with some 2 recognition to give sufficient flexibility to the forensic 3 pathologist to -- to articulate in a more fulsome way the 4 basis for the bottom line, in effect. 5 DR. MICHAEL POLLANEN: Essentially, the 6 autopsy report in its current form, that is -- that is in 7 general usage in Ontario, is a system-by-system report; 8 explain what the body looks like on the outside, describe 9 the internal features, describe your ancillary tests; the 10 steps that I've talked about before. 11 And then there is variability in how much 12 opinion is written. You would not encapsulate that in a 13 template. 14 MR. MARK SANDLER: Right. 15 DR. MICHAEL POLLANEN: You -- you would 16 simply have to encourage people or require them, through 17 the warrant, to provide an opinion. 18 COMMISSIONER STEPHEN GOUDGE: Could you 19 justify the preference for a more fulsome reasoned report, 20 Dr. Pollanen, on the basis of it provides for, if you 21 like, more reviewability of the conclusion by others? 22 And to some degree, provides a greater 23 accountability in the broad sense, be it to the public, to 24 the court system, for the conclusion that is drawn 25 ultimately?


1 DR. MICHAEL POLLANEN: Yes. 2 COMMISSIONER STEPHEN GOUDGE: We, in the 3 just -- in the judging business, have been urged by the 4 Supreme Court of Canada to write Reasons with exactly 5 those two (2) objectives in mind. 6 DR. MICHAEL POLLANEN: Yes. And I think 7 they would apply to the autopsy report; the medicolegal 8 autopsy report. 9 10 CONTINUED BY MR. MARK SANDLER: 11 MR. MARK SANDLER: And I take it as well, 12 as we've heard in the evidence up to this point, that -- 13 that in the absence of the more fulsome explanation, there 14 may be a disconnect between what is communicated or 15 disclosed to the parties in the administration of criminal 16 justice and what ultimately is said when the case proceeds 17 to preliminary hearing or trial and the pathologist speaks 18 for the first time about his or her opinions? 19 DR. MICHAEL POLLANEN: Yes. 20 MR. MARK SANDLER: Another issue that has 21 arisen in the context of the content of the report has to 22 do with history. And we've heard countervailing views as 23 to why or to what extent history should make its way into 24 the post-mortem report. 25 And first of all, to sweep aside one (1)


1 issue. We saw that in Dr. Smith's post-mortem reports, 2 there was no history produced in -- in many or all 3 instances. And again, that was conventional practice when 4 those reports were being prepared, am I right? 5 DR. MICHAEL POLLANEN: Actually, there's a 6 subtlety there and that is that there were often two (2) 7 reports prepared. There was a report that was prepared 8 for the coroner which -- which typically did not have 9 history, and then there was an internal document prepared 10 for The Hospital for Sick Children where actually the 11 history appeared. 12 MR. MARK SANDLER: Right. 13 DR. MICHAEL POLLANEN: And -- and that, I 14 presume was institutional, I'm not certain but... 15 The -- so there -- in fact, the history was 16 produced in many of these cases, just not in the report 17 that went to the Criminal Justice System. 18 MR. MARK SANDLER: Right. And you're 19 exactly right. And we have -- we have discussed that. 20 But what I was asking you is in the context 21 of the report that made its way to the coroner or to the 22 parties in the administration of criminal justice, was it 23 conventional practice for many or all of the forensic 24 pathologists, at that point in time, not to include a 25 history in that kind of a report?


1 DR. MICHAEL POLLANEN: It typically would 2 -- would not include the history. 3 MR. MARK SANDLER: Now, one (1) of the 4 issues that has been raised here is -- is the need for 5 some transparency in the kind of information that has been 6 communicated to the forensic pathologist before the 7 opinion has been reached or expressed. 8 And do you see the need for transparency in 9 that process and how does that impact upon your views as 10 to whether a history should make its way into the kinds of 11 report that we're discussing? 12 And I'm leaving aside whatever internal 13 documentation might have been prepared, for example, to 14 The Hospital for Sick Children in these cases. 15 DR. MICHAEL POLLANEN: Well, I would say 16 that there has been a evol -- evolution in that practice 17 as well, but that evolution would be more recent even than 18 providing opinions. So you will see now more information 19 about the history and circumstances of the case in -- in 20 the post-mortem report and that -- I see that as being 21 beneficial. 22 There are two (2) points to make about 23 that, however. The first is recording that information 24 becomes a challenge. So in the -- in the past few months, 25 where I've paid great attention to this, I have actually


1 added a section called pre-autopsy information into my 2 report, which appears before the external examination. 3 And this I use, particularly, in cases 4 where information is coming to me from the police or, for 5 example, in a -- in custodial death from the SIU. And 6 I'll provide that information, essentially, verbatim in 7 the post-mortem report. That -- that I admit -- I admit 8 is a -- is a relatively new practice, even for me. 9 And that comes from my awareness of the 10 Home Office Code of Practice, where essentially they give 11 very specific direction to record historical information 12 transmitted from the police or other investigative agency 13 to the pathologist. 14 MR. MARK SANDLER: And where do you stand 15 on the related issue, namely whether or not there should 16 be some filtering of the kinds of information that police 17 provide to the forensic pathologist in advance of the 18 autopsy? 19 DR. MICHAEL POLLANEN: Well, there must be 20 filtering because the -- the forensic pathologist -- 21 COMMISSIONER STEPHEN GOUDGE: I think the 22 question is filtering by who, by the pathologist or 23 police? 24 DR. MICHAEL POLLANEN: I think the -- it 25 was -- it would depend on the issue, but for the most part


1 the pathologist should be the filter rather than the 2 police. 3 4 CONTINUED BY MR. MARK SANDLER: 5 MR. MARK SANDLER: The argument has been 6 made by some, if not here, than elsewhere, that there's a 7 danger when the police provide too much information to the 8 forensic pathologist that it'll colour the forensic 9 pathologist's ultimate opinions and contribute to what's 10 been described as tunnel vision or what you might describe 11 as confirmation bias. What do you say about that? 12 DR. MICHAEL POLLANEN: And -- and I can 13 tell you I've actually studied that issue. I've actually 14 made an actuarial type analysis, and what I found is -- it 15 -- precisely the opposite. You are -- the history 16 provided by the investigators, is more likely in 17 conjunction with the autopsy findings, to take a -- a case 18 out of a suspicious category and put it into a non- 19 suspicious category. 20 So, in fact, the information, purely on a 21 statistical basis, favours the opposite conclusion. So in 22 other words, the -- based upon my analysis of how cases 23 sort of fractionate out with history, the history favours 24 the opposite conclusion to confirmation bias. 25 That's not to say that there would be


1 individual cases where -- would actually feed into a 2 confirmation bias, but generally speaking, in terms of all 3 cases, it actually tends to do otherwise. I'll give you a 4 concrete example. 5 If we don't get the history of certain 6 specific aspects of the case, we may not choose to run 7 ancillary testing on certain issues; toxicology being the 8 most important one. So if we don't -- if you don't give 9 us proper history, we -- we may not do toxicology. 10 Here's -- here's the classic example that 11 appears actually in -- in various publications, and it 12 appears in our daily practice sometimes. A person is 13 found dead in a motel room, having just checked in, and 14 the body is brought to the -- to the morgue for autopsy, 15 and it's a middle-aged man. 16 And post-mortem examination is performed. 17 Heart disease is present. And the forensic pathologist is 18 given the history sudden cardiac death; gives the cause of 19 death as heart disease. Later, somebody says to the 20 pathologist, Oh, I forgot to tell you, we took the plastic 21 bag that was over the man's head off at the scene. 22 And is it -- it is, in fact, a case of 23 suicidal plastic bag asphyxia. But you have heart disease 24 at autopsy. You haven't been given the appropriate 25 information from the history. You will make a mistake.


1 And -- and the point there is that who's the filter? 2 Who's the best filter? 3 The pathologist is the best filter. 4 COMMISSIONER STEPHEN GOUDGE: Take a case 5 where there is an apparent or possible head trauma, okay - 6 - could be SIDS, could be something else. Should the 7 police tell the pathologist of CAS involvement, prior 8 abuse, et cetera, or does that steer the autopsy? 9 DR. MICHAEL POLLANEN: I -- I can't -- my 10 own view is, I don't think that steers the autopsy. If 11 you are functioning in an evidence based approach, the 12 evidence is going to steer you. If you are not familiar 13 with the fundamentally proper approaches to forensic 14 pathology and you get steered by that information, you 15 know, that's -- that's the problem. 16 It goes back to the whole education 17 certification buying into evidence based framework. It's 18 not because people are telling you information; it's 19 because you're not utilising the information correctly. 20 21 CONTINUED BY MR. MARK SANDLER: 22 MR. MARK SANDLER: Well, how do you -- how 23 do you reconcile that with the fact that in the chart that 24 you provided you identified a column, circumstantial 25 information or autopsy findings that reinforce


1 misinterpretation, and in an number of instances you 2 listed chronic child abuse? 3 So kind of taking the Commissioner's 4 question and rotating it a little bit, if the concern that 5 you've expressed from a review of the cases, is it that 6 circumstantial evidence information may have contributed 7 to a misinterpretation of the autopsy findings that exist, 8 how do you we meet your goal of ensuring that you've got 9 the information you need to run the appropriate test and 10 make the appropriate diagnosis and prevent the misuse of 11 that information to steer you in the wrong direction? 12 DR. MICHAEL POLLANEN: You've looked a 13 table with twenty (20) cases, but let's populate the table 14 with a thousand (1,000) and see if the same conclusion 15 comes. The same conclusion will not come. What you will 16 find and when you populate the -- the table with a 17 thousand (1,000) cases is that circumstantial information 18 was highly relevant to the conclusion. 19 It's not the fact that we have the 20 circumstantial information, it's how we utilise the 21 circumstantial information, because much of the time, as 22 in the plastic bag, as in the person with stable heart 23 disease, the circumstantial information will be the 24 additional bit of information that's going to steer us in 25 the right direction.


1 MR. MARK SANDLER: So you'd say that 2 recognising the danger, one addresses it not through 3 filtering, but through educating forensic pathologists, 4 for example, as to the appropriate limitations upon their 5 findings. 6 DR. MICHAEL POLLANEN: You -- you create 7 educational programs, frameworks, environments that allow 8 the pathologist to be the filter. 9 MR. MARK SANDLER: Let's look very briefly 10 at the tenth systemic issue that you might -- 11 COMMISSIONER STEPHEN GOUDGE: Before you 12 go to that -- sorry, Mr. Sandler, just a couple of 13 questions. One (1) on -- it's going to follow up the 14 question about steering investigations. 15 And I asked whether in the thinking at your 16 office there has been any discussion of or protocols about 17 the kind of information given orally by the pathologist at 18 the autopsy to the investigating officers reflecting a 19 possible concern about steering the police investigation? 20 Is that a subject that is reflected on by 21 your office? 22 DR. MICHAEL POLLANEN: Yes. 23 COMMISSIONER STEPHEN GOUDGE: Are there 24 guidelines? 25 DR. MICHAEL POLLANEN: Yes, in a sense.


1 I'll explain. When we introduced -- introduced the early 2 central notification process, and that is when we have 3 homicide or criminally suspicious cases being autopsied in 4 the Regional Forensic Pathology Units, currently it's our 5 practice -- and that's a recent practice -- that a form is 6 sent to our office -- it's faxed to our office -- with 7 information about the case. And that -- that information 8 from the regional forensic pathology units is then 9 discussed in our morning conference. 10 So the -- so there is the -- this is what 11 we call early central notification because those cases 12 will ultimately go through the peer review system, but 13 it's essentially putting our office on initial notice that 14 there is a homicide case in Hamilton, or Kingston, and 15 these are the issues that have been generated. 16 COMMISSIONER STEPHEN GOUDGE: Really what 17 I was taking about, Dr. Pollanen, was steering the police 18 investigation. Let me put it in a -- 19 DR. MICHAEL POLLANEN: But I -- I'm coming 20 to this. 21 COMMISSIONER STEPHEN GOUDGE: Okay. 22 DR. MICHAEL POLLANEN: So, what that -- 23 what that step -- when we introduce the early central 24 notification -- 25 COMMISSIONER STEPHEN GOUDGE: Right.


1 DR. MICHAEL POLLANEN: -- what that step 2 allowed us to realise is that in many of the units there 3 was no written record at the end of the post-mortem 4 examination about the result. 5 So by putting the intro -- early central 6 notification, each of the units then created a document 7 which allowed the pathologist to contemplate these issues 8 at the end of the post-mortem, put the information on the 9 document, and that document then formed the basis of 10 telling the police exactly what -- what was happening; 11 what testing was being done, what is the -- the initial 12 cause of death, is it pending or is it you have -- do you 13 have a definitive cause of death. So that -- that has 14 become the record. 15 Now, in some of the units the police 16 actually get a copy of that -- 17 COMMISSIONER STEPHEN GOUDGE: Right. 18 DR. MICHAEL POLLANEN: -- which give them 19 direction. And that is not our practice in the Toronto 20 unit. We -- we give the cause of death to the police 21 officer directly at the time of the post-mortem, if we -- 22 if we are able, and the police officer writes it in the 23 notebook and I watch or, you know, we -- we -- 24 COMMISSIONER STEPHEN GOUDGE: Right. 25 DR. MICHAEL POLLANEN: -- you entertain a


1 process that ensures that we're correc -- giving the 2 correct information -- 3 COMMISSIONER STEPHEN GOUDGE: Okay. 4 DR. MICHAEL POLLANEN: -- or it's being 5 recorded correctly. 6 COMMISSIONER STEPHEN GOUDGE: Okay. 7 8 CONTINUED BY MR. MARK SANDLER: 9 MR. MARK SANDLER: You -- you certainly 10 agree that there should be a process, whether it's the one 11 that Professor Milroy described in his jurisdiction or 12 that one, that ensures the police have accurately taken 13 down the opinion and any limitations upon it. 14 DR. MICHAEL POLLANEN: Yes. 15 COMMISSIONER STEPHEN GOUDGE: Let me just 16 modify the facts of Jenna a little bit, but assume that 17 out of the autopsy came a pathologist with a view that 18 these were likely stab wounds, but wasn't certain and 19 would want to run some histology and some toxicology and 20 that was communicated to the police; the pathologist's, if 21 you like, interim view was stab wounds, not dog bites. 22 Would you be concerned that that would 23 steer the police investigation thereafter? 24 DR. MICHAEL POLLANEN: If the cause of 25 death is between stab wounds and dog bites --


1 COMMISSIONER STEPHEN GOUDGE: Yes. 2 DR. MICHAEL POLLANEN: -- the cause of 3 death given at the time of autopsy is "pending"; that's 4 the language that we use. 5 COMMISSIONER STEPHEN GOUDGE: So you would 6 not -- 7 DR. MICHAEL POLLANEN: Pending further 8 studies -- 9 COMMISSIONER STEPHEN GOUDGE: So you would 10 not communicate that kind of tilt in the early view of the 11 pathologist to the police? 12 DR. MICHAEL POLLANEN: Well, you might 13 inadvertently, for example, in the course of the -- 14 COMMISSIONER STEPHEN GOUDGE: But you 15 ought -- 16 DR. MICHAEL POLLANEN: -- people in 17 discussion. 18 COMMISSIONER STEPHEN GOUDGE: But you 19 ought not to? 20 DR. MICHAEL POLLANEN: Correct. If -- if 21 you are -- if you cannot come to a view at the end of the 22 post-mortem examination, the cause of death is given as 23 pending and -- and -- 24 COMMISSIONER STEPHEN GOUDGE: You wouldn't 25 give them the information and allow them to filter it?


1 DR. MICHAEL POLLANEN: No. No, that -- 2 that is something that -- 3 COMMISSIONER STEPHEN GOUDGE: I just 4 wonder why the contrast between the police and the 5 pathologist about taking in information. 6 DR. MICHAEL POLLANEN: I think the issue - 7 - well, I mean the police actually will have to identify 8 what they want to do because they're attending the post- 9 mortem, they're seeing things, they're discussing -- 10 COMMISSIONER STEPHEN GOUDGE: Right. 11 DR. MICHAEL POLLANEN: -- discussing 12 things with a pathologist, but the final word from the 13 pathologist in that circumstance should be pending. The 14 bottom line is if you don't know, you give the cause of 15 death as pending. 16 COMMISSIONER STEPHEN GOUDGE: Okay. The 17 second think I wanted to ask you about the report writing 18 is, is it feasible to think of some form of a lexicon in 19 which report writing should be conducted to at least avoid 20 some phraseologies that may be ambiguous, and misleading, 21 and so on? 22 I think of the phrase "consistent with"; 23 that's in the Morin report. 24 DR. MICHAEL POLLANEN: It's very 25 interesting because "consistent with" is in the Morin


1 report, but it's actually justified in the text of the 2 Morin report as being all right to use in pathology. It's 3 actually discussed as a -- 4 COMMISSIONER STEPHEN GOUDGE: What do you 5 think of it as a phrase for post-mortem reports? 6 DR. MICHAEL POLLANEN: Well, I -- I tend 7 to avoid it. However, we actually then just replace it 8 with a euphemism. We just basically say "compatible --" 9 COMMISSIONER STEPHEN GOUDGE: Well, let me 10 get back to the generic problem. Sorry, what was that, I 11 didn't get it? 12 DR. MICHAEL POLLANEN: "Compatible with." 13 But -- but the other -- but the -- but the better -- 14 COMMISSIONER STEPHEN GOUDGE: That's no 15 better. 16 DR. MICHAEL POLLANEN: No, I realise that. 17 But the -- but the issue that comes from -- from the Morin 18 report that I think is quite valuable there is that 19 sometimes rephrasing it into the language of exclusion can 20 be helpful because it changes the emphasis slightly and 21 can -- it better communicates the nuance that you want to 22 communicate. 23 The problem with it is, and this happens to 24 me in Court occasionally, when I am very careful to use 25 the language of exclusion, on advice from Morin they say,


1 Don't you just mean consistent with. 2 And sometimes that comes from Judges: Dr. 3 Pollanen, you're confusing me, don't you just mean 4 consistent with? 5 COMMISSIONER STEPHEN GOUDGE: Well, Judges 6 are no better at this than anybody else. But isn't it a 7 problem worth some attention, Dr. Pollanen, 'cause it does 8 seem to me that some of these phrases can be heard by 9 triers in a way that may not be intended? 10 DR. MICHAEL POLLANEN: The "consistent 11 with" problem you learn on the first day of your training 12 as a pathologist. It is a pervasive terminological 13 difficulty in surgical pathology, forensic pathology. 14 It's -- it's -- there has been and many people have 15 thought about it, and there is -- there is no way that I 16 know of to encapsulate what "consistent with" says other 17 than finding euphemisms or providing a more detailed 18 exposition of your thinking. It's -- it's a problem. 19 The -- the Morin approach was, develop a 20 language; use the language of exclusion. The other 21 approach, as I said, is develop euphemisms. The other 22 approach -- 23 COMMISSIONER STEPHEN GOUDGE: Yes, but 24 that is not satisfactory? 25 DR. MICHAEL POLLANEN: It's not


1 satisfactory, but what I'm saying is that it's a fund -- 2 it's a -- it's a problem that's very close to the bedrock 3 of the issues of certainty, decision making judgment, and 4 it's not something that is very easily teased away from 5 those concepts. 6 COMMISSIONER STEPHEN GOUDGE: It is also 7 close to the concept you and I have spent a lot of time 8 discussing and that is full exposition of reasoning? 9 DR. MICHAEL POLLANEN: Yes. 10 COMMISSIONER STEPHEN GOUDGE: Okay. Last 11 point I want to make is or ask you about is, in the 12 timelines; before we leave the timelines. This goes back 13 to the beginning of the systemic issue. And you say a 14 system for tracking to avoid lightness is a good idea. 15 What kind of tools are available now to ensure compliance 16 with timeliness, particularly with fee-for-service 17 pathologists? 18 That is, what levers does anyone at your 19 office have? 20 DR. MICHAEL POLLANEN: Well, currently 21 there are none. 22 COMMISSIONER STEPHEN GOUDGE: What could 23 you have? 24 DR. MICHAEL POLLANEN: For -- so now, 25 you're asking about fee-for-service pathologists


1 practising in the unit or the community hospitals? 2 COMMISSIONER STEPHEN GOUDGE: Either. I 3 mean, presumably a salaried pathologist working out of 4 your office is a little more subject to what I would call 5 leverage. But take somebody at HSC. You know, take 6 somebody who is a fee-for-service pathologist in Thunder 7 Bay. 8 DR. MICHAEL POLLANEN: The -- the on -- 9 there -- there is no effective lever other than -- 10 COMMISSIONER STEPHEN GOUDGE: What could 11 you have? 12 DR. MICHAEL POLLANEN: -- collaboration 13 and encouragement. That would be the -- essentially, the 14 only mechanism. Because if you -- if you then say -- if 15 you then entered into a punitive process saying that 16 unless you produce your reports, you're not to get paid or 17 we're not going to give you any more cases, then you just 18 create a supply problem. 19 COMMISSIONER STEPHEN GOUDGE: I mean, that 20 is, according to a letter we have seen, that is what may 21 have happened at Sick Kids with Dr. Smith with his 22 hospital reporting. It was not timely, so they take him 23 off. 24 DR. MICHAEL POLLANEN: Well, that will 25 just create another problem in the system.


1 COMMISSIONER STEPHEN GOUDGE: Okay. 2 Thanks. 3 4 CONTINUED BY MR. MARK SANDLER: 5 MR. MARK SANDLER: All right. If we can 6 turn to defence pathology, systemic issue Number 10. And 7 you've reflected the need to encourage a constructive and 8 collaborative approach to medical expert witnesses for the 9 Crown and defence. 10 And you've said that there was -- were 11 examples in the overview reports of effective defence 12 pathology, and you've provided Sharon as an example. 13 However, there were examples of ineffective or suboptinal 14 -- optimal defence pathology. 15 And -- and could you provide, briefly, some 16 illustrations for the Commissioner in that regard? 17 DR. MICHAEL POLLANEN: Well, the best 18 example of ineffective or a defence pathology is no 19 defence pathology. I mean, sometimes cases do benefit 20 from having that -- a defence pathologist, but if the 21 defence attorney doesn't access defence pathology then 22 it's a missed opportunity. 23 There -- probably the -- the most difficult 24 example of defence pathology not contributing to a good 25 outcome would be the Valin case. And the issue there


1 being several, and I -- perhaps it's not appropriate to go 2 through all of them, but -- but the issue there is -- was 3 a very senior forensic pathologist basically -- 4 COMMISSIONER STEPHEN GOUDGE: Agreeing 5 with. 6 DR. MICHAEL POLLANEN: -- agree -- 7 agreeing and making mistakes. 8 COMMISSIONER STEPHEN GOUDGE: Making the 9 same mistake. 10 DR. MICHAEL POLLANEN: Making the same 11 mistakes and arguably, other mistakes in fact. And the 12 other mistakes being essentially becoming too closely 13 identified with the party in -- in the process. 14 And this is a criticism that is sometimes 15 given to -- to forensic pathologists that frequently are 16 called by the Crown. And there are some various 17 disparaging terms that are said about such pathologists, 18 but there's a criticism that pathologists may become too 19 Crown-oriented or prosecution-oriented. 20 Well, the same is true on the other side. 21 And it's a challenge for all pathologists to walk that 22 fine line and not be drawn into advocacy, essentially; 23 maintain a fine line between the parties. 24 25 CONTINUED BY MR. MARK SANDLER:


1 MR. MARK SANDLER: Well, there's a couple 2 of issues arising out of that. The first is we've heard 3 from a number of witnesses that, as you have indicated at 4 the bottom of this page, that you'd favour a collaborative 5 rather than a confrontational approach between prosecution 6 and defence experts reducing the likelihood that they 7 become identified as Crown or defence-oriented. 8 And again, that plays into the -- the 9 approach that we heard a lot about. The hot tub approach, 10 in effect, where pathologists should be encouraged to get 11 together, narrow their differences and articulate what 12 remains at issue between them. And you'd support that 13 approach, I'd take it? 14 DR. MICHAEL POLLANEN: I think that's a 15 very healthy approach. And the reason for that is that 16 the -- the medical issues are not well dealt with in the 17 adversarial system. They're better dealt with by medical 18 mechanisms which are collaborative analytical mechanisms. 19 So I think there's a lot of value in 20 bringing the experts together beforehand. 21 COMMISSIONER STEPHEN GOUDGE: Can I ask, 22 Dr. Pollanen, is there any risk in doing that that rather 23 than truth dominating, personality will dominate? The 24 icon problem? 25 DR. MICHAEL POLLANEN: Personally, I think


1 the icon problem is less prominent than others. 2 COMMISSIONER STEPHEN GOUDGE: Mm. Now or 3 historically? 4 DR. MICHAEL POLLANEN: The -- the fact 5 that a pathologist might be viewed as an icon or a guru, 6 may, in fact, relate to non-medical people making that 7 assessment. But -- but forensic pathologists making that 8 assessment, I mean, we're essentially always working in an 9 environment where we're testing other people's opinions 10 and having our opinions tested. 11 It's -- it's unlikely, I mean, -- I don't 12 exclude it -- but it's unlikely that you're -- you're 13 going to get a chorus of agreement simply because somebody 14 has been in the business longer or, you know, has a better 15 track record in some other capacity. I -- I'm really not 16 convinced that that is as important as other people 17 consider it. 18 COMMISSIONER STEPHEN GOUDGE: The other 19 question -- not the only -- it is not the only other 20 question but one (1) of the questions I have in my head 21 about this collaborative approach after opinions are 22 basically formed, although perhaps not at this point 23 exchanged, is whether the mere forming of opinions makes 24 this approach less fruitful than when it is done early on 25 in the process before opinions are, in some form, cast in


1 concrete, albeit not dried concrete. 2 DR. MICHAEL POLLANEN: I think that's the 3 more relevant problem and that is that -- and this is the 4 case. As you get further down the track your -- your 5 opinions become more and more solidified as -- as the case 6 evolves. 7 Well, not -- perhaps "solidified" is not 8 the correct term, but there is a -- there may be a 9 reluctance on the part of an expert to be as open to other 10 possibilities compared to being -- compared to early on in 11 the process. And so if you were to engage a collaborative 12 mechanism to -- in sort of a truth-seeking collaborative 13 mechanism, it is -- would be more effectively applied in 14 the investigative phase than in the judicial phase. 15 In other words, you're unlikely to get as 16 much consensus or really a good engagement between the 17 defence pathologist and the Crown pathologist meeting 18 outside the courtroom. 19 COMMISSIONER STEPHEN GOUDGE: The perfect 20 hot tub would be the autopsy room at the time of the 21 autopsy? 22 DR. MICHAEL POLLANEN: And hence the whole 23 double-doctoring philosophy. 24 COMMISSIONER STEPHEN GOUDGE: Right. 25


1 CONTINUED BY MR. MARK SANDLER: 2 MR. MARK SANDLER: Well, that actually 3 takes us to -- to an issue that has been raised here, and 4 I'd be interested in your views on. In England, as you 5 know, in effect, the defence autopsy has virtually been 6 institutionalized. What is your view about the defence 7 autopsy? 8 DR. MICHAEL POLLANEN: Just a comment on 9 the UK scenario. Part of the reason that I believe that 10 the defence autopsy has -- has become so popular in the UK 11 is that they don't have as many high quality processes 12 offered in the investigative phase. 13 And -- and what I mean by that is that the 14 -- in Ontario compared to the UK, we actually have an 15 organized, regionalized, and somewhat formalized service 16 which provides quality assurance -- codified quality 17 assurance. 18 That doesn't exist in the United Kingdom. 19 So as a result, there -- there -- the slack, if for better 20 term, is being use -- is being picked up by defence 21 autopsies. So the real -- the real front-end investment 22 is to increase the quality of the initial post-mortem 23 examination rather than to provide opportunities to -- in 24 the defence post-mortem. 25 But having said that, there are clear


1 examples where the defence post-mortem is very useful. 2 And some of those examples include -- we always go back to 3 Sharon, but Sharon would be a very good example where a 4 defence post-mortem would have been very good in -- in the 5 long ter -- in the short term. 6 Because eventually that's what happened -- 7 MR. MARK SANDLER: At the exhumation? 8 DR. MICHAEL POLLANEN: Exhumation. 9 Because the defence pathologist attended the exhumation. 10 The -- the other reasons for defence autopsies go beyond 11 simply evidential concerns. They go to, for example, 12 transparency issues. And where that sometimes occurs is 13 in death in custody. 14 Where somebody has died in police custody, 15 the family may elect to have an autopsy to increase 16 transparency. Because the -- the person died in the -- in 17 the custody of the state, and the state has performed 18 post-mortem examination. 19 So -- so there are -- there are reasons 20 beyond the strictly evidential reasons. But I actually do 21 see a role for -- for defence autopsies. But the defen -- 22 the role for the defence autopsy is reduced by having 23 quality processes up front that might, for example, engage 24 defence pathologists, for example, in those processes like 25 attending the post-mortem examination in the first


1 instance. 2 Now that's usually not practical because 3 somebody may not be in a position to ask for a defence 4 pathologist because their autopsy occurs very early on in 5 a criminal justice process; somebody may not be arrested, 6 et cetera. 7 So there -- there are other impediments. 8 MR. MARK SANDLER: What about the video 9 taping or audio taping of autopsies? 10 DR. MICHAEL POLLANEN: You have to look at 11 what objective is -- is trying to be met there. Is the 12 objective to create a reviewable record, and if that's -- 13 if that is the objective, then digital photography and 14 histology is usually adequate. 15 If the objective is to make a permanent 16 record of what was going on in the room, then the 17 motivation for the video taping is very different from a 18 medical motivation. In other words, creating a reviewable 19 record. 20 And the -- and if -- but if you decide to 21 go down the video taping route, then you basically -- it 22 basically results in two (2) -- two (2) issues. The first 23 is do you make a continuous video tape where you mount a 24 camera and everybody -- you -- you essentially watch 25 people come and go and do the procedure?


1 Or do you -- do -- or do you use 2 discontinuous video taping where essentially key parts of 3 the autopsy are videoed? 4 And I've -- I'm not in favour of the first 5 variant, which is the continuous video taping. 6 And I -- the main reason for that is that 7 that is -- it is very inhibiting to staff. It's a very 8 uncomfortable way of doing your work to be videotaped. 9 And the second option which is 10 discontinuous videotaping; I've actually done on a few 11 occasions and I've reviewed at least one (1) case where it 12 was actually quite useful. 13 I could -- I could see some advantage to 14 that, but again, I'm not so sure those advantages aren't 15 captured by digital photography in making a reviewable 16 record. 17 MR. MARK SANDLER: Could you briefly 18 outline, as reflected in paragraph -- sorry, page 10 of 19 your materials, what you see as the existing barriers to 20 access for defence pathology, and I'm going to ask you 21 about a little -- in a little bit more detail about 22 several of them? 23 COMMISSIONER STEPHEN GOUDGE: It's page 24 12. Is that where you want? 25 MR. MARK SANDLER: Yes.


1 COMMISSIONER STEPHEN GOUDGE: Yes. 2 DR. MICHAEL POLLANEN: Well, the first one 3 (1) is requests; that -- that is in fact the first -- 4 first issue. We rarely get requests for -- for defence 5 autopsies and that's a barrier. 6 I mean, if people aren't asking for it, 7 there's very little incentive to do it. There -- the 8 other barrier is the fact that we have small numbers of 9 forensic pathologists in Ontario who are already very 10 busy, and this is an additional burden on their 11 professional time; doing defence post-mortems. 12 In other words, people are already 13 backlogged with their autopsy reports and if you do 14 defence work, for example, outside of business hours, then 15 that's an additional pressure that you take on. 16 The -- there is no schedule for 17 remuneration for defence post-mortem examinations. There 18 is a fee schedule from the Coroner's Office where the 19 autopsy -- and notice the subtlety here -- the autopsy is 20 being performed for the coroner, not the Crown -- the 21 coroner, as opposed to the prosecution -- but there is no 22 provision, for example, in legal aid, that I know of, that 23 sets a fee for a post-mortem. 24 And on that basis, when -- when a defence 25 pathologist actually does an autopsy, because there's


1 really no financial incentive to do it, they're really 2 more to broadening their professional experience than -- 3 than doing it because they -- they're going to get money 4 from it, for example, or supplement their income. 5 6 CONTINUED BY MR. MARK SANDLER: 7 MR. MARK SANDLER: Apart from the -- the 8 defence autopsy, what about the remuneration generally for 9 doing defence pathology consultation? 10 DR. MICHAEL POLLANEN: Well, it's very 11 poor and -- and the -- the bottom line there is that those 12 of us who do defence pathology, the -- the money that you 13 get for the amount of time that you spend doing it, is 14 essentially a token amount. I believe it's approximately 15 ninety dollars ($90) per hour, which -- 16 COMMISSIONER STEPHEN GOUDGE: That's legal 17 aid. 18 DR. MICHAEL POLLANEN: That's legal aid. 19 COMMISSIONER STEPHEN GOUDGE: Right. 20 DR. MICHAEL POLLANEN: And so on that 21 basis you -- and then, usually in my experience, what 22 happens is that the legal aid then sets a limit as to the 23 number of hours that doesn't approximate the amount of 24 time that you spend on a defence case. 25


1 CONTINUED BY MR. MARK SANDLER: 2 MR. MARK SANDLER: All right. Number 6 is 3 self-evident. 4 COMMISSIONER STEPHEN GOUDGE: Does the 5 staff pathologist keep that or does that go to the 6 institution? 7 DR. MICHAEL POLLANEN: If you're doing it 8 outside of working hours, which is when -- 9 COMMISSIONER STEPHEN GOUDGE: Then you 10 keep it. 11 DR. MICHAEL POLLANEN: That's -- that's 12 correct, yes. 13 COMMISSIONER STEPHEN GOUDGE: All right. 14 And that's when you would do it. 15 DR. MICHAEL POLLANEN: Yes. And then the 16 other variant that is very interesting in this issue is 17 that you will find pathologists that will do defence aut - 18 - defence work on the condition that they don't testify. 19 And that's an interesting one (1) where the 20 -- where the defence pathologist essentially is happy to 21 provide a review of the papers, provide questions for 22 cross-examination, maybe take on an educational role, but 23 they're unwilling to appear as a witness, and that's 24 probably the most common use of defence pathology in the 25 Province.


1 And the -- part of the reason for that is 2 that we're such a small community that appearing against, 3 as it were, one (1) another is not -- not particular 4 collegial; it's not viewed as being collegial in our 5 environment. 6 The -- the British forensic pathologists 7 have no such inhibition. 8 COMMISSIONER STEPHEN GOUDGE: Yes, they 9 seem to enjoy it. 10 DR. MICHAEL POLLANEN: Yes. 11 COMMISSIONER STEPHEN GOUDGE: They're more 12 like lawyers. 13 DR. MICHAEL POLLANEN: And then the other 14 issue is that -- and that's -- that's related to this 15 small community of experts -- we have a fairly robust peer 16 review system, and as a result, if people have been 17 engaged in the peer review then they essentially become 18 disqualified. So some -- some pool of available experts 19 in the Province will be taken out of the availability 20 because of that. 21 COMMISSIONER STEPHEN GOUDGE: All right. 22 DR. MICHAEL POLLANEN: The -- the other 23 issue and that is more applicable to -- well, it's -- it's 24 applicable to exactly three (3) people in the Province of 25 Ontario: myself, Dr. Perrin, and Dr. Rose (phonetic). We


1 -- we're essentially, from a policy or customary practice 2 point of view, prohibited from doing defence work in the 3 Province of Ontario, criminal defence work. And that -- 4 that's because of our situation and the fact that, for 5 exam -- for example, I administer the quality assurance 6 process, so my -- my defence work, as it were, is outside 7 of the Province. 8 COMMISSIONER STEPHEN GOUDGE: Is that 9 self-imposed or is that an institutional provision? 10 DR. MICHAEL POLLANEN: It's not a written 11 policy, but it -- but it essentially is our customary 12 practice. 13 COMMISSIONER STEPHEN GOUDGE: Okay. 14 15 CONTINUED BY MR. MARK SANDLER: 16 MR. MARK SANDLER: All right. And the 17 last two (2) items: a lack of a well developed tradition 18 of defence pathology in the forensic pathology community, 19 and the lack of a well developed tradition of defence 20 pathology in the defence community, probably speak for 21 themselves and to some extent have been addressed? 22 DR. MICHAEL POLLANEN: Yes. Essentially, 23 for many, many years defence pathology was Dr. Jaffe, who 24 was well known to many people. And -- and took on his 25 role with gusto. But there are many -- there are few heir


1 apparents for Dr. Jaffe. 2 MR. MARK SANDLER: All right. Well, 3 that's very helpful, Dr. Pollanen. We're going to turn, 4 after the break, from this document to examine in more 5 detail the Shaken Baby Syndrome and the controversies 6 spawned as a result. So if that would be a convenient 7 time? 8 COMMISSIONER STEPHEN GOUDGE: That is 9 fine. We will break now until twenty (20) to 4:00. 10 11 --- Upon recessing at 3:16 p.m 12 --- Upon resuming at 3:40 p.m. 13 14 THE REGISTRAR: All rise. Please be 15 seated. 16 COMMISSIONER STEPHEN GOUDGE: Mr. Sandler, 17 before we begin, let me just say that Mr. Sandler tells me 18 he will complete by 4:30, and then we will move to you Mr. 19 Cavalluzzo for half an hour and then to Mr. Lockyer for 20 ten (10) minutes or so. 21 So we will be out of here by 5:15 today. 22 Tomorrow, I think I have been able to accommodate all your 23 requests as you seek them, in keeping with the season. 24 And so we may have to sit a little longer tomorrow, okay? 25 But we will start with you, Mr. Ortved at 9:30 tomorrow


1 morning, okay. 2 Mr. Sandler...? 3 4 CONTINUED BY MR. MARK SANDLER: 5 MR. MARK SANDLER: Thank you. Dr. 6 Pollanen, I'm -- I'm going to change topics, if I may. 7 You remember I took you some time ago this morning to a 8 memorandum that you prepared for the Chief Coroner, as he 9 then was, Dr. McLellan, about methods, results, and 10 discussion following the Chief Coroner's review of Dr. 11 Smith's cases. 12 And in the course of that memorandum -- and 13 I won't take you there now because I only intend to refer 14 to one (1) line. At paragraph 73, you reflected as one 15 (1) of the issues arising from that review that there's a 16 reasonable basis to believe that problems might exist with 17 Dr. Smith's cases prior to '91, and then you said: 18 "In addition, apropos of the results of 19 the Smith and the Goldsmith reviews, 20 there is a reasonable basis to believe 21 that problems could exist with other 22 fatal infant head injury cases including 23 cases certified as Shaken Baby 24 Syndrome." 25 And -- and was that a larger issue that you


1 saw arising out of the results in the Smith review? 2 DR. MICHAEL POLLANEN: Yes. 3 MR. MARK SANDLER: And you prepared a 4 presentation that originally was given to Crowns and which 5 has been modified for -- for the Commissioner to -- to 6 outline the -- the parameters of -- of the problem and 7 possible remedies for it? 8 DR. MICHAEL POLLANEN: Yes. 9 MR. MARK SANDLER: And if we could go to 10 that, which is in the form of a PowerPoint presentation. 11 And this at 301205 and it's on the screen. And -- and if 12 I can take you to the next item, Item 2, in the outline, 13 you've divided your presentation into glossary, 14 definitions, the debate, the United Kingdom response and 15 Shaken Baby Syndrome in Ontario. 16 So if we could turn to -- to the glossary. 17 The Commissioner is familiar with the terms, so perhaps 18 briefly you could outline the glossary that you intend to 19 use in the discussion that will follows. 20 DR. MICHAEL POLLANEN: Well, essentially, 21 the starting point for understanding the Shaken Baby -- 22 Shaken Baby issue is just to understand some of the 23 terminology, which I'm sure everybody is already very 24 familiar with. 25 Subdural hemorrhage is bleeding on the


1 surface of the brain and that is specifically between two 2 (2) membranes: one (1) called the dura and the other is 3 the arachnoid. There's another variant of bleeding on the 4 surface of the brain called subarachnoid hemorrhage but 5 that's a separate issue. 6 Then we have retinal hemorrhages which are 7 hemorrhages in the back of the eyes and the layer inside 8 the eye where vision essentially is -- visual signals are 9 transmitted to the brain. 10 And hypoxic encephalopathy is essentially 11 brain damage sometimes associated with considerable 12 swelling that occurs when the brain is starved of oxygen. 13 MR. MARK SANDLER: All right. Why don't 14 you go ahead and -- and describe what the triad is and how 15 it informs the discussion. 16 DR. MICHAEL POLLANEN: So, through the 17 evolution of understanding of infant head injury -- and I 18 won't go through the history -- but there -- there's an 19 entity now that's -- that's denoted as the "triad". And 20 the triad is a combination of three (3) observations that 21 form a syndromic constellation. 22 So that it's sort of like a syndrome which 23 essentially contains three components that in and of 24 themselves are not specific, but when they come together 25 in that combination we call it the triad, and is the


1 subdural hemorrhage, retinal hemorrhage and hypoxic- 2 encephalopathy or hypoxic-ischemic encephalopathy. And 3 that's sometime enlarged in the traditional definition as 4 "brain swelling". 5 MR. MARK SANDLER: Or cerebral edema? 6 DR. MICHAEL POLLANEN: Correct, yes. 7 And the issue then that's arisen is that 8 the -- there's a view, it's a widely received view, that 9 the tri -- the presence of the triad is a good marker for 10 the so-called Shaken Baby Syndrome. 11 And the Shaken Baby Syndrome is a head 12 injury that's due to violent shaking of a baby. And 13 essentially, where the baby is grasped through the torso 14 and then through a series of whiplash motions, either sort 15 of front to back or, to some extent, side to side, you 16 essentially get this shaking process set up and it causes 17 these points of bleeding and these brain changes. 18 And as the concept has involved in the 19 literature, another issue has arisen and that is that 20 there may be damage to some of the internal brain 21 structures such as the internal wiring of the brain 22 through -- which is -- which is accomplished through 23 structures known as axons. And that the -- so it goes, 24 that the -- when the head is shaken, that in addition to 25 these -- the points of bleeding that occur in the eye and


1 on the surface of the brain, due to the rotation of the -- 2 of the brain relative to the skull and the formation of 3 shearing forces, that these shearing forces may damage 4 axons and this produces another constellation which is 5 difusaxonal injury. 6 And because of this, the hypoxic-ischemic 7 encephalopathy component of the triad has been enlarged by 8 some to include difusaxonal injury or indeed, replaced by 9 some with difusaxonal injury. 10 Now, the difficulty with that is that 11 hypoxic-ischemic encephalopathy in and of itself can 12 produce axonal lesions, but that's a separate issue. 13 So the -- this is -- these are relevant 14 definitions. 15 MR. MARK SANDLER: All right. What is the 16 debate? 17 DR. MICHAEL POLLANEN: So the debate 18 simply is, in the classical view, which represents the 19 central dogma of thinking within infant head injury and 20 that's essentially, when you have the triad, you have 21 Shaken Baby Syndrome. And because the mechanism of injury 22 is essentially provided by the triad, which is this 23 shaking, violent shaking, that essentially you have a 24 homicide. 25 So you -- you get into this scenario where


1 entirely based upon the medical findings, let alone 2 circumstantial or historical findings, the -- the 3 individual observations provide you with a manner of 4 death, and you transit through the step of having the 5 triad and Shaken Baby Syndrome. 6 So this is the -- the received view, and 7 there has emerged over time a contrary or sceptical view 8 of the issue, and that is that some people have now 9 demonstrated by counter-example -- and this comes back to 10 the importance of anecdotal evidence -- that the triad may 11 not as -- may not be as specific as we thought 12 historically, and that it may occur in other conditions, 13 and most specifically, may occur with impact injuries to 14 the head. 15 MR. MARK SANDLER: Okay. 16 DR. MICHAEL POLLANEN: So, this has -- 17 this scientific controversy between the specificity of the 18 findings for Shaken Baby Syndrome has created what I think 19 could be termed a heated debate. 20 And the -- the heat in the debate started 21 essentially in 1987 with a paper from -- from -- very 22 interesting paper by Duhaime in the New England Journal of 23 Medicine where the -- for the first time in the debate a 24 new concept was -- was brought forward, and this was the 25 concept of how biomechanical analysis may be helpful in


1 determining whether or not the forces are sufficient to 2 cause the types of things that we're talking about: 3 subdural hemorrhage, retinal hemorrhage, shearing injury. 4 And in that paper in '87 they provided some 5 evidence to suggest that the forces required to produce 6 the triad were not reproducible in experimental models of 7 shaking. 8 MR. MARK SANDLER: For shaking alone? 9 DR. MICHAEL POLLANEN: Correct, yes. And 10 -- so that produced some scepticism. And I notice, for 11 example, that the Amber case is shortly after the Duhaime 12 article, and in fact Duhaime was one (1) of the expert 13 witnesses called at the trial. 14 The debate sort of continued over a period 15 of time and then resurfaced in a maximal form in 2001 with 16 a publi -- with a publication of three (3) papers -- well, 17 initially two (2) papers and then a followup. And what 18 has become colloquially known in the -- in the forensic 19 pathology literature as Geddes 1 and 2, which were 20 beautifully done papers looking at the descriptive 21 neuropathology of head injuries in infants and children. 22 And this enlarged the debate about Shaken 23 Baby Syndrome. And essentially they indicated -- they -- 24 among the various things that they found in that paper 25 included the relative and frequency of difusaxonal injury,


1 which had been touted to be part of the triad. 2 The -- I should mention, of course, that 3 other papers were generated at the time -- or in this time 4 period. Probably one (1) of the most important additional 5 papers in this area was produced by a pathologist called 6 Plunkett, and where the issue related to shortfalls was 7 brought into -- into the mix as a -- as a viable option; 8 essentially, impact head injury consequent to short falls 9 is -- as being a viable alternative explanation for what 10 we would otherwise call Shaken Baby Syndrome. 11 This -- these events in the medical 12 literature and as they were playing out in -- in 13 scientific meetings and in -- in conversations among 14 pathologists and -- and other medical experts, 15 neuroradiologists, forensic pediatricians, resulted in 16 essentially division into two (2) camps. Those camps were 17 those that were strong proponents of the Shaken Baby 18 Syndrome and holding the view in some instances that even 19 the presence of retinal hemorrhages in the absence of a 20 fully developed triad would be sufficient for the 21 diagnosis of Shaken Baby Syndrome. 22 Two (2) other experts which were strong 23 opponents of Shaken Baby Syndrome, for example, Dr. 24 Plunket, who -- who fundamentally brought forward the 25 position that Shaken Baby Syndrome is a flawed concept.


1 That there is no certain inference that can be made from 2 the triad leading to a shaking diagnosis. 3 COMMISSIONER STEPHEN GOUDGE: Okay. Is 4 there any easy answer to the question, Dr. Pollanen, how 5 the received wisdom became received? That is, I presume 6 there was no epidemiology; was it a combination of the 7 existence of the triad and confessed shaking by parents, 8 that sort of thing? 9 DR. MICHAEL POLLANEN: Yes. Basically 10 antidotal and circumstantial support and also the presence 11 of the triad in cases where there is incontrovertible 12 evidence of abuse. In the original publications on Shaken 13 Baby Syndrome there were other indicators such as 14 fractures -- 15 COMMISSIONER STEPHEN GOUDGE: Right. 16 DR. MICHAEL POLLANEN: -- that clearly 17 indicate child abuse -- 18 COMMISSIONER STEPHEN GOUDGE: Right. 19 DR. MICHAEL POLLANEN: -- in this context. 20 So the -- where the difficulties have arisen historically 21 is -- is really when you have isolated triad. 22 COMMISSIONER STEPHEN GOUDGE: Without some 23 form of circumstantial evidence, be it prior child abuse 24 or confessed shaking or -- 25 DR. MICHAEL POLLANEN: Essentially.


1 COMMISSIONER STEPHEN GOUDGE: -- observed 2 shaking or something? 3 DR. MICHAEL POLLANEN: Correct. That -- 4 that's where -- it's in this subset of the cases where 5 things started becoming very debated and polarised. But 6 also -- and this is -- this is probably one (1) of the key 7 issues when it comes to understanding the legal aspect of 8 the debate, and that is that the -- often the alternative 9 provided by caregivers or the investigation is a fall. 10 And this is precisely the issue that a -- comes in Amber 11 and in Tyrell. 12 Because the -- because there's -- in that 13 circumstance you have a competition between hypothesise: a 14 shaking hypothesis and a fall hypothesis. And so in 15 addition to having the -- the triad problem, you have to 16 then say, Well, if -- if this -- if the triad is so 17 specific, is it specific enough simply to exclude any 18 history of a fall as being essentially unreliable 19 information. So this is the -- 20 COMMISSIONER STEPHEN GOUDGE: Or 21 inconsequential as the cause of death? 22 DR. MICHAEL POLLANEN: A correlation 23 fallacy, yes, exactly. So -- so the -- from my point of 24 view, looking at this debate, what this debate actually 25 did, as debates in knowledge creation do, is it created


1 some very important ideas; very important ideas that 2 challenged the way we think. 3 And -- and so what came out of these -- 4 this debate was, for example, the recognition that in some 5 cases, independent of whether you get involved in the 6 Shaken Baby debate and the triad, there are some cases 7 where the triad was simply misdiagnosed. So in other 8 words, the debate about the triad unleashed or unveiled a 9 group of cases which were just sort of -- 10 COMMISSIONER STEPHEN GOUDGE: Bad 11 pathology. 12 DR. MICHAEL POLLANEN: Exactly. Just put 13 into the Shaken Baby category where there are other 14 explanations. And there are some -- there are some very 15 important counter-examples where natural conditions have 16 been essentially -- been put into the triad and therefore 17 into the shaken baby head trauma category. 18 Then we have the whole issue of whether or 19 not short falls can be lethal. Because if you have a 20 triad and you have an impact sight in the form of a scalp 21 bruise, or a skull fracture, then -- and -- and you -- you 22 claim -- or you accept the proposition that the triad is 23 indicator of head injury, but not necessarily shaking, 24 then when you have a blunt impact trauma, then you -- you 25 enter into whether or not a fall is a reasonable


1 explanation. And that's where the short fall issue came 2 into -- into the -- into play. 3 MR. MARK SANDLER: And that's the issue, 4 for example, in Tyrell? That's -- 5 DR. MICHAEL POLLANEN: Precisely the issue, 6 yes. And -- and then the other thing that came out was -- 7 was essentially a rediscovery of one (1) of our old 8 problems in forensic pathology which was timing. 9 Because the -- one (1) of the sort of 10 embedded hypothesis with the triad was that if diffuse 11 axonal injury was an important component of the triad then 12 that meant that there was a diffuse shearing force going 13 through the brain, which would essentially produce 14 immediate neurological effects; either immediate 15 unconsciousness or a rapidly deteriorating level of 16 consciousness, and -- and, therefore, this gave birth to 17 the -- the hypothesis or the view that if you had shaking 18 injury, there was no lucid interval. 19 In other words, there was no period of time 20 after the shaking where the child would be normal. And 21 that, essentially, then provides for legal conclusions 22 about exclusive opportunity. Essentially, if -- if you 23 have shaking and immediate unconsciousness then 24 essentially the last person with the -- with the baby is 25 the shaker, as it were.


1 MR. MARK SANDLER: So when the Geddes and 2 Whitwell studies cast some doubt on the prevalence of 3 diffuse axonal injury, how did that impact upon this 4 aspect of the debate? 5 DR. MICHAEL POLLANEN: Adversely, for -- 6 for the view that -- that shaking was associated with 7 diffuse axonal injury and, therefore, no lucid interval. 8 MR. MARK SANDLER: Okay. 9 DR. MICHAEL POLLANEN: Then there were 10 some rare cases where disease mimics were found, and these 11 are, admittedly, very rare circumstances, but there are 12 sort of counter-examples where the triad is produced by 13 disease or, at least, significant components of the triad 14 are. 15 And then an issue that is currently 16 unresolved and is hotly debated is whether the subdural 17 hemorrhage that is older. So, in other words, established 18 bleeding on the dura that's been incorporated into the 19 dura -- whether or not that can spontaneously bleed again; 20 bleed again after minor trauma or whether or not that's 21 just a incoherent concept. 22 It's been called by some as a courtroom 23 diagnosis as opposed to a robust true diagnosis. And so-- 24 COMMISSIONER STEPHEN GOUDGE: Bleed again 25 after a minor trauma; would that be bleed again after


1 shaking? Is that -- 2 DR. MICHAEL POLLANEN: Could be after 3 shaking, yes. 4 COMMISSIONER STEPHEN GOUDGE: Okay. 5 DR. MICHAEL POLLANEN: And so that has 6 lead to two (2) issues. The first is this view that -- 7 that some people the believe the suggestion of chronic 8 rebleeding -- or rebleeding of a chronic subdural is just 9 a ridiculous proposal and rejected without sort of 10 analysing it for its -- 11 COMMISSIONER STEPHEN GOUDGE: On its 12 merits. 13 DR. MICHAEL POLLANEN: -- on its merits 14 through certain types of testing, example -- for example. 15 And then -- and then disparaging it as a courtroom 16 diagnosis just to create -- put a fox in on the pigeons, 17 as it were. So the -- so thes -- these -- all these 18 issues then came out of this debate. 19 And to some extent, they represent un -- 20 unresolved issues. And just to bring back the -- the 21 rebleeding issue, the -- where this becomes very important 22 is, for example, when the initial chronic subdural may be 23 due to, for example, birth trauma. 24 And are -- is the rebleeding of the 25 subdural hemorrhage simply a reflection of the natural


1 history of the subdural afterbirth trauma. Now, -- 2 3 CONTINUED BY MR. MARK SANDLER: 4 MR. MARK SANDLER: And -- and we actually 5 have one (1) of the twenty (20) cases in which the 6 rebleeding is -- is truly an issue, is it not? 7 DR. MICHAEL POLLANEN: Yes. And -- and 8 that's Gaurov. And -- and so -- I -- but I -- to properly 9 situate this in -- in the current debate, there -- I can 10 tell you right now that there will be a spectrum of 11 experts running from neuroradiologists to forensic 12 pathologists to neuropathologists, et cetera, which will 13 have very strong views on what I have just indicated, for 14 example, polarization to the point of saying it is 15 impossible that rebleeding can occur in a chronic 16 subdural; to people who have a sceptical view of it; to 17 people who are actually testing the hypothesis by 18 examining subdural neomembranes. 19 So -- so this really is sort of -- is in 20 flux. 21 But probably the one (1) that has come up 22 front from all of these is the short fall issue. Because 23 while we recognize that short falls are rarely lethal in 24 infancy and childhood, there are very good examples where 25 that does occur.


1 And there are certain pathological findings 2 which allow that as -- as a reasonable inference. And the 3 challenge then is, when you are confronted with a triad 4 plus evidence of a skull fracture or a bruise on the 5 scalp, plus evidence of a fall, to what extent can the 6 medical evidence actually adjudicate the issue of shaking 7 versus a fall. 8 MR. MARK SANDLER: Just before we go on -- 9 DR. MICHAEL POLLANEN: Or an impact from 10 other reasons, like slamming the head against a fixed 11 object. 12 MR. MARK SANDLER: Right. Just before we 13 go on to the next aspect of this controversy. 14 You've made reference to subdural 15 hemorrhages as -- as one (1) of the features of the triad. 16 Can you explain to the Commissioner where unilateral as 17 opposed to bilateral subdural hemorrhages figures in that 18 discussion? 19 DR. MICHAEL POLLANEN: The classical view 20 of the subdural hemorrhage in the triad is bilateral; thin 21 film subdural. So, in other words, that in shaking you 22 get this smear of blood over the -- 23 COMMISSIONER STEPHEN GOUDGE: A relatively 24 equal distribution? 25 DR. MICHAEL POLLANEN: Correct, yes.


1 And in a more frequent pattern in impact 2 head injury is a symmetry of the subdural where -- where 3 you have -- it's on one (1) side more than the other or 4 one (1) side only, and it's not simply a smear or a small 5 volume; it's a large volume. 6 COMMISSIONER STEPHEN GOUDGE: One (1) of 7 the pieces of information that the panel of experts 8 referred to when they were here in the second week of the 9 hearing, Dr. Pollanen, was the obvious assertion -- I 10 suspect by those who continued to believe that the triad 11 rather than short falls remained the likely explanation -- 12 is; if short falls could actually cause death, kids would 13 be dying all the time because kids fall all the time. 14 DR. MICHAEL POLLANEN: Right. 15 COMMISSIONER STEPHEN GOUDGE: How do the - 16 - how do the sceptics about the triad answer that? 17 DR. MICHAEL POLLANEN: Well, two (2) -- 18 there are two (2) sort of classical responses to that. 19 The first is a bio-mechanical response, 20 which is essentially saying all short falls are created 21 equally is a gross over-simplification of the bio- 22 mechanics of the matter. It may be that -- and I'm just 23 going to use this as an example -- 24 COMMISSIONER STEPHEN GOUDGE: Right. 25 DR. MICHAEL POLLANEN: -- an illustrative


1 example; it may be that you can classify short falls on 2 some bio-mechanical basis and then isolate those falls 3 which are bio-mechanically relevant and produce fatal head 4 injuries that don't. That's clearly not going to ever 5 occur but -- 6 COMMISSIONER STEPHEN GOUDGE: Right. 7 DR. MICHAEL POLLANEN: -- it illustrates 8 the -- 9 COMMISSIONER STEPHEN GOUDGE: It's one -- 10 DR. MICHAEL POLLANEN: -- possibility. 11 COMMISSIONER STEPHEN GOUDGE: -- 12 explanation? 13 DR. MICHAEL POLLANEN: Yes. So that's -- 14 that's probably the most compelling sort of argument is 15 basically there's a knowledge gap in understanding why 16 some short falls are lethal and some short falls are not 17 lethal; or rather, why most short falls are not lethal. 18 COMMISSIONER STEPHEN GOUDGE: Right. 19 DR. MICHAEL POLLANEN: And so it's related 20 to a subtlety of bio-mechanics. 21 The other one (1) is essentially saying a 22 proof-in-principle-type argument basically saying that 23 there is -- there's so much doubt about the specificity of 24 the triad in the context of the short fall debate, that 25 how is it responsible for the medical expert to give that


1 diagnosis of -- to the, you know, exclusion of other 2 possibilities; this must be shaking with just an 3 incidental impact or a homicidal impact. 4 Even though the alternative is rare with a 5 short fall, is it -- is it sufficiently rare that it 6 should not be considered very strongly. In other words, 7 would it -- would it be unsafe not to consider it, 8 recognizing that in any one (1) instance it's unlikely to 9 have occurred. 10 COMMISSIONER STEPHEN GOUDGE: Thanks. 11 12 CONTINUED BY MR. MARK SANDLER: 13 MR. MARK SANDLER: Okay. If we could turn 14 to how the United Kingdom has responded to the debate 15 which you've identified. 16 DR. MICHAEL POLLANEN: So, there -- there 17 have been two (2) large scale reviews of infant deaths in 18 the United Kingdom initiated by the Attorney General. And 19 in the -- in the first review, that was essentially in the 20 wake of the Sally Clark case, where they went back and 21 they looked at cases of Sudden Infant Death that could 22 have eclipsed the SIDS enigma, and they made a review of 23 cases. 24 The -- the second Goldsmith review was 25 looking at the whole issue of Shaken Baby Syndrome, and


1 this resulted in certain cases going back as test cases to 2 the Court of Appeal. 3 Now, you'll hear details about that from 4 Professor Whitwell who was a witness in -- in the Court of 5 Appeal. But, suffice it to say that, the UK Court of 6 Appeal attempted to, through hearing expert evidence, 7 distill this controversy. 8 And I would actually point out, tread 9 ground that was already well exclored -- explored in the 10 Dunn judgment, but in any event, the -- the issues that 11 come out of this judgment, which are very -- it's a very 12 interesting read, is that -- and I think it comes out of 13 the discussion that we've already had -- is that they 14 viewed the triad as a strong pointer; this is the language 15 that they used, "a strong pointer" to -- to Shaken Baby 16 Syndrome to -- but not, in itself, definitive and needs to 17 be balanced against other evidence. 18 And the other issue was that the short fall 19 hypothesis or explanation, needs to be considered if there 20 is evidence of a contact injury on the head, and that, 21 essentially one (1) of the ways of viewing the medical 22 controversy is that the medical evidence will take you so 23 far. 24 And then after that, the trier of fact has 25 to, then, factor in other variables to determine if you


1 have a shaking injury or an impact head injury. 2 MR. MARK SANDLER: Okay. 3 COMMISSIONER STEPHEN GOUDGE: Don't they 4 also say that in the face of responsible pathology on both 5 sides, it's unsafe to proceed? 6 DR. MICHAEL POLLANEN: I'm not sure if 7 it's in that judgment or ano -- 8 COMMISSIONER STEPHEN GOUDGE: It may be 9 another judgment. 10 DR. MICHAEL POLLANEN: I think it's Angela 11 Canning where that becomes... 12 COMMISSIONER STEPHEN GOUDGE: That's 13 right. 14 DR. MICHAEL POLLANEN: That was in -- in 15 Canning -- 16 COMMISSIONER STEPHEN GOUDGE: Right, okay, 17 yes. 18 DR. MICHAEL POLLANEN: -- and later 19 modified by the Court of Appeal. 20 COMMISSIONER STEPHEN GOUDGE: Right. 21 22 CONTINUED BY MR. MARK SANDLER: 23 MR. MARK SANDLER: So, in your mind, what 24 are the implications for what you've described to the 25 Commissioner here?


1 DR. MICHAEL POLLANEN: Well, what -- it 2 became very apparent, during the construction of what we 3 have called the Chief Coroner's Review, that we were going 4 to rediscover this issue. 5 That is, that in the course of selecting 6 cases of Dr. Smith that were on -- in the first instance, 7 controversial, or, at least, homicidal, that this issue 8 would be rediscovered in our -- in our set of cases. 9 And the -- and that's something that I 10 brought to our committee's attention because that became 11 very apparent early on, and ultimately, at the end of our 12 review, we did find cases where this is an issue. 13 And so when considering that and when you 14 consider the fact that we have just taken, you know, a 15 pretty remarkable systemic step to -- to review cases, to 16 identify issues, and then we read -- we actually have good 17 evidence that we've rediscovered a controversy that has 18 been essentially dealt with by a very strong systemic 19 response in the UK, I felt it was necessary to communicate 20 that information to our -- to the Ministry of the Attorney 21 General, so that's what I did, and then that -- this 22 presentation is a version of that presentation. 23 And so what I wanted to demonstrate to the 24 -- the Attorney General's Department was, or at least look 25 at the issue of, what would a Goldsmith-like shaken baby


1 review look like in Ontario. 2 Like if we -- if we decided to -- to go 3 down that path, what -- what would it entail? And not the 4 least of which is in the question, which is who would do 5 such a review? 6 But -- but I'm not talking about that now. 7 I'm talking about the -- sort of the high level view of 8 what could this mean, what does it mean -- 9 COMMISSIONER STEPHEN GOUDGE: How big a 10 job is it? 11 DR. MICHAEL POLLANEN: -- how big of a 12 job, et cetera. And so -- so I screened our database 13 which is the coroner's database, which from '86 to 2006 14 looked at age range, one (1) month to twelve (12) months, 15 coded as Shaken Baby. But I -- but frankly, I included a 16 very wide definition. 17 So these would -- cases would not just be 18 coded as homicide. There might be some undetermined head 19 injuries in there as well, that might have been dealt with 20 through police investigation differently although they 21 were coded as undetermined in our database. And I found 22 over that period of time you could -- there were a hundred 23 and forty-two (142) such cases. 24 Now if you then -- 25 COMMISSIONER STEPHEN GOUDGE: I take it


1 you have no idea how many of those are cases in which 2 there was a trial and a conviction? 3 DR. MICHAEL POLLANEN: I don't. 4 5 CONTINUED BY MR. MARK SANDLER: 6 MR. MARK SANDLER: And I -- and I take it 7 as well, it's somewhat self evident, but just -- but just 8 to raise the issue, you also don't know how many of those 9 cases also incidently could have involved child protection 10 proceedings? 11 DR. MICHAEL POLLANEN: Correct. So -- so 12 I then said, How would this look? How -- how would this - 13 - how would this group be predicted to sub-classify if 14 we're to engage this? So I basically said, Well you could 15 take a review with methodology like this, where you -- you 16 screen the autopsy report using medical criteria, 17 essentially presence of triad, presence of impact site. 18 You could determine those cases with conviction and then 19 review the pre-screened cases with conviction. 20 But the first sort -- the first sorting 21 parameter would be essentially whether there was a medical 22 -- where -- what medical group they would fall into, 23 relative to the controversy. 24 MR. MARK SANDLER: Now just stopping there 25 for a moment, the -- in the English experience, the


1 results of the reviews conducted there looked both at 2 cases which had resulted in convictions and also cases 3 which had impacted upon child protection proceedings. 4 Am I right as to that? 5 DR. MICHAEL POLLANEN: I'm not certain. 6 MR. MARK SANDLER: Okay. 7 DR. MICHAEL POLLANEN: But -- but 8 certainly the other element here is that these are dead 9 children, where you have both possibilities, child 10 protection possibilities and criminal justice 11 possibilities. But then there is another population of 12 live children which have either gone to one (1) or the 13 other or both mechanisms, that are simply not dead, so you 14 don't access them through this. 15 But they still may have been medical -- 16 medically adjudicated as Shaken Babies on the base of the 17 triad for example. 18 MR. MARK SANDLER: So for example -- 19 COMMISSIONER STEPHEN GOUDGE: But that 20 wouldn't be in your database? 21 DR. MICHAEL POLLANEN: No, that's what I'm 22 saying; those are live babies -- 23 COMMISSIONER STEPHEN GOUDGE: Yes, right. 24 DR. MICHAEL POLLANEN: -- that survived. 25


1 CONTINUED BY MR. MARK SANDLER: 2 MR. MARK SANDLER: So that would be, for 3 example, a charge of aggravated assault arising out of a 4 shaking that did not result in death? 5 DR. MICHAEL POLLANEN: Correct. 6 MR. MARK SANDLER: Okay. 7 DR. MICHAEL POLLANEN: So -- so basically 8 in my view, this is how the -- the medical screening would 9 come out. And that is that you would have -- in fact if 10 we go to the next slide it's actually better, because I've 11 broken it out better. 12 So what you would have, the very -- the 13 smallest group of cases would be cases where there was an 14 error or a mis-diagnosis. And what I'm thinking about 15 here would be a mimic. Where something has been called 16 Shaken Baby Syndrome, but essentially it's not, by 17 definition, because it lacks, for example, the triad. 18 Or that it woul -- the findings could be 19 explained on the basis of some other finding. 20 MR. MARK SANDLER: All right. 21 DR. MICHAEL POLLANEN: And then you would 22 have cases where you have -- I'm just going to skip down 23 to the bottom, triad scalp bruising and -- and other 24 evidence of a contact injury such as a fracture -- skull 25 fracture, where the issue then becomes, you know, did the


1 impact occur under a homicidal circumstance or did it 2 occur under an accidental circumstance such as a short 3 fall. 4 And there may or may not be additional 5 autopsy evidence that would put it in one (1) direction or 6 another. And essentially we would need to -- further 7 examination of the case to determine which of those 8 possibilities were likely. 9 The -- the point here being that some of 10 those cases may have been presented in the court in -- in 11 the same way that the -- the Amber case or the Tyrell case 12 would have been -- 13 COMMISSIONER STEPHEN GOUDGE: Right. 14 DR. MICHAEL POLLANEN: -- presented. And 15 then, unfortunately, for -- for all of us that are 16 challenged by these cases, there would be those cases 17 where we had the pure triad, and the triad was used to 18 establish a diagnosis of Shaken Baby Syndrome. And these 19 cases, if you accept the debate as it is, are essentially 20 in the gray zone, where the -- and again, you -- I'll just 21 tell you to be stra -- very transparent about this, this 22 would generate a lot of controversy in the medical 23 community because there's polarisation about this issue, 24 about how to interpret pure triad. 25 But I think that, in -- certainly a


1 conservative view would be that in the -- these are -- 2 these are the gray zone cases where it's not entirely 3 clear that in a -- in a review circumstance that we have 4 anything additional to offer medically, other than saying 5 there's more uncertainty. 6 In other words, the -- the evolution of 7 thinking has not progressed to the point where we can say, 8 in this group of pure triad cases we have no found an 9 additional test which will exclude a certain percentage of 10 them as being not injuries. 11 Having said that, there are those people 12 who would say that that -- those cases of pure triad 13 simply -- that's -- those observations simply do not 14 provide or -- a satisfactory foundation to conclude that a 15 shaking injury occurred, and those people that would say 16 it was entirely reasonable conclusion to come to. 17 18 CONTINUED BY MR. MARK SANDLER: 19 MR. MARK SANDLER: Now, just to be clear, 20 based upon what -- what you've said earlier, there may be 21 cases that -- within the hundred and forty-two (142) where 22 some of the features of the triad, but not all of them, 23 exist; for example, retinal hemorrhages, alone. 24 And where would you anticipate that -- that 25 those would fit into the -- the categories that you've


1 described here, if at all? 2 DR. MICHAEL POLLANEN: Error. It would be 3 an error to conclude that if you had a dead baby 4 essentially only with retinal hemorrhages and -- and that 5 was certified as Shaken Baby Syndrome, that would be an 6 error. 7 MR. MARK SANDLER: But there is a school 8 of thought out there or advocates for the school of 9 thought that retinal hemorrhages can be diagnostic without 10 more of Shaken Baby. 11 DR. MICHAEL POLLANEN: It's pra -- perhaps 12 a little bit more than just simply retinal hemorrhages, 13 but retinal hemorrhages with an encephalopathic baby, et 14 cetera. And this is usually in the living context. 15 There are some people that would -- would 16 accept things less than the triad in that circumstance, 17 yes; most -- most importantly would be pediatric 18 opthomologists. Some pediatric opthomologists would -- 19 would very much put more weight on the presence of retinal 20 hemorrhages. 21 MR. MARK SANDLER: All right. Your 22 conclusions arising out of all of this? 23 DR. MICHAEL POLLANEN: Well, I -- the 24 first one is perhaps not very controversial; that some 25 Shaken Baby cases can be per -- can be problematic. That


1 is true. And I think we demonstrated that repeatedly with 2 the controversy in the literature, the outcome of the 3 Goldsmith review, the outcome of the -- of the test cases 4 in the UK Court of Appeal -- and I think our review 5 demonstrates that, as well -- and that in the UK some of 6 these convictions have been quashed on the basis of fresh 7 evidence; and that the scope of the -- of the problem, the 8 Shaken Baby problem, in terms of its growth of knowledge - 9 - the growth of knowledge issue and the increased 10 uncertainty surrounding the area, the scope of the problem 11 is not clear in Ontario, but we certainly do have cases 12 where, you know, the issues might arise. 13 And on this basis, there needed to be -- 14 needs to be some consideration of whether we would 15 undertake something like a Goldsmith review in the 16 Province of Ontario in the context of -- of the findings 17 of essentially the Chief Coroner's review and debate that 18 we've engaged. 19 MR. MARK SANDLER: All right. 20 COMMISSIONER STEPHEN GOUDGE: Just a 21 couple of questions about the detail of this, Dr. 22 Pollanen, and maybe Professor Whitwell will know this in a 23 way that you perhaps can't be expected to know. But in 24 those cases in which convictions have been set aside, 25 consequent upon the Goldsmith Review.


1 Do you know whether they were cases of 2 error or mis-diagnosis in your terms? 3 DR. MICHAEL POLLANEN: I'd have to review 4 them again, frankly, to know that. I -- I believe -- 5 COMMISSIONER STEPHEN GOUDGE: Because 6 that's the easiest category -- 7 DR. MICHAEL POLLANEN: Yes. 8 COMMISSIONER STEPHEN GOUDGE: -- to get 9 at, isn't it? 10 DR. MICHAEL POLLANEN: The easiest and 11 rarest. 12 COMMISSIONER STEPHEN GOUDGE: That's 13 always the case. 14 DR. MICHAEL POLLANEN: Yes. 15 COMMISSIONER STEPHEN GOUDGE: Really what 16 I was getting at; were there any set aside on the basis of 17 they're -- they're in the gray zone? 18 DR. MICHAEL POLLANEN: I believe there was 19 one. I -- 20 COMMISSIONER STEPHEN GOUDGE: I would -- 21 DR. MICHAEL POLLANEN: -- I think in the 22 Judgment, it's Harris, which is a triad-only case. 23 COMMISSIONER STEPHEN GOUDGE: Okay. And 24 that was on the basis that it was a strong pointer; there 25 was not enough to push it over the line?


1 DR. MICHAEL POLLANEN: That's my 2 understanding, yes. 3 COMMISSIONER STEPHEN GOUDGE: Okay. 4 I have forgotten my second question, but I 5 will think of it. Sorry, Mr. Sandler. 6 MR. MARK SANDLER: Oh, not at all. 7 Commissioner, what I had anticipated doing 8 at this stage is exploring with Dr. Pollanen some of the 9 issues which he identified as a result of the Morin 10 Inquiry and how they applied to forensic pathology. 11 What I'd prefer to do -- we covered some of 12 them just incidently as -- as Dr. Pollanen was being 13 questioned today. 14 I think I'd prefer to defer those and deal 15 with them as part of Dr. Pollanen's return when he'll be 16 dealing again with some of the systemic issues, such as 17 the Office of the Chief Forensic Pathologist and where 18 it's positioned within the coronial system; oversight and 19 supervision with the coronial system; and as well, 20 providing you some views as to recommendations that he'd 21 like you to make to address the systemic issues that he's 22 spoken about today and some of the other systemic issues-- 23 COMMISSIONER STEPHEN GOUDGE: Right. 24 MR. MARK SANDLER: -- that will be raised. 25 So -- so if that makes sense to you,


1 Commissioner, I think I would -- 2 COMMISSIONER STEPHEN GOUDGE: Sure. 3 MR. MARK SANDLER: -- conclude my 4 examination-in-chief at this point. 5 Thank you. 6 COMMISSIONER STEPHEN GOUDGE: Okay. 7 Thanks, Mr. Sandler. The question I had forgotten but has 8 reappeared for me is; obviously, the SBS controversy is a 9 worldwide controversy? 10 DR. MICHAEL POLLANEN: Yes. 11 COMMISSIONER STEPHEN GOUDGE: Has a review 12 like Goldsmith been done, for example, in Australia or any 13 other country? 14 DR. MICHAEL POLLANEN: No. 15 COMMISSIONER STEPHEN GOUDGE: In the 16 United States? 17 DR. MICHAEL POLLANEN: No. 18 COMMISSIONER STEPHEN GOUDGE: Thanks. 19 20 CONTINUED BY MR. MARK SANDLER: 21 MR. MARK SANDLER: Commissioner, you 22 probably should know that the -- you heard a little 23 chortle from Dr. Pollanen about the United States. In the 24 United States, the polarization is very, very significant, 25 is it not, on this issue?


1 DR. MICHAEL POLLANEN: Well, I can tell 2 you, if I'm permitted just to take two (2) minutes on 3 that point -- that I have -- I have attended actually a 4 meeting recently, as part of my own continuing medical 5 education on this -- on this issue, and the debate in the 6 US is remarkable because there are several post-conviction 7 review cases that are before various courts in the United 8 States. 9 And one (1) of the -- one (1) of the issues 10 that's fuelled the debate there, or put gas on the fire as 11 it were, is that traditionally the sentences in the United 12 States are robust in this area, that -- and also include 13 death penalty cases; life imprisonment. 14 And that has -- has crea -- I believe that 15 has created some of the, perhaps, advocacy or very close 16 identification of certain experts with the contrary side 17 to the shaken baby issue. 18 And this is sort of a variant of becoming 19 too closely identified with the outcomes of -- of a case. 20 But in the face of what people believe to be remarkable 21 miscarriages of justice on the basis of some of these 22 issues, it really has polarized a group of -- of experts 23 because of the very severe consequences and penalties in 24 the US system. 25 MR. MARK SANDLER: The other question --


1 I'm sorry -- that just arose, just as we're talking about 2 this issue in the United States, is you made reference to 3 Dr. Plunkett and some of his work in the area. 4 There's some reference both in the 5 literature and on the part of forensic pathologists who 6 are engaged on the issue of shaken baby to -- to --for 7 want of a better word, what's described as the "Plunkett 8 Video." 9 We made a determination, Commissioner, that 10 due to the graphic nature of the video we would not be 11 showing it at the Inquiry. Plus there were certain 12 privacy issues associated with -- with the family that was 13 involved that -- that figured prominently in that 14 decision. 15 But could you explain to the Commissioner 16 what the Plunkett video was all about and how that's 17 factored into this debate? 18 DR. MICHAEL POLLANEN: Well, I'm not sure 19 if it's -- if it's just one (1) video. I -- I've 20 certainly seen a video and Dr. Plunkett showed it of a 21 head injury on a child that's clearly accidental where -- 22 where the child is climbing on sort of a monkey bars type 23 scenario -- 24 COMMISSIONER STEPHEN GOUDGE: The video 25 shows the child being injured?


1 DR. MICHAEL POLLANEN: It shows the child 2 falling -- 3 COMMISSIONER STEPHEN GOUDGE: Right. 4 DR. MICHAEL POLLANEN: -- and striking its 5 head. 6 COMMISSIONER STEPHEN GOUDGE: Right. 7 DR. MICHAEL POLLANEN: And then there is, 8 essentially, followup with regard to the autopsy 9 information. And it's -- and it goes -- it goes 10 essentially to the -- to the issue of anecdotal evidence 11 challenging dogma because this is a clearly an example of 12 a lethal fall, -- 13 COMMISSIONER STEPHEN GOUDGE: Right. 14 DR. MICHAEL POLLANEN: -- a lethal 15 accidental fall. And the -- clearly, the video has some 16 emotive value because it -- it demonstrates an absolutely 17 tragic event -- killing a child -- but it also has 18 scientific value as a counter-example to the dogma of how, 19 you know, shaken -- how -- how fal -- short falls are not 20 lethal. 21 It clearly demonstrates that short falls 22 are lethal. 23 24 CONTINUED BY MR. MARK SANDLER: 25 MR. MARK SANDLER: All right. Thank you


1 very much. 2 COMMISSIONER STEPHEN GOUDGE: Thanks, Mr. 3 Sandler. Mr. Cavalluzzo...? 4 MR. PAUL CAVALLUZZO: My Friend, Mr. 5 Lockyer would like to go first. 6 COMMISSIONER STEPHEN GOUDGE: You cede to 7 the great state of Lockyer, as we say at conventions? You 8 have ten (10) minutes, Mr. -- is that -- by all means, 9 okay. 10 MR. JAMES LOCKYER: And I do hate to 11 drop in and out, Mr. Commissioner, like this. I've been 12 elsewhere. 13 COMMISSIONER STEPHEN GOUDGE: Well, it has 14 been an interesting day. 15 16 CONTINUED CROSS-EXAMINATION BY MR. JAMES LOCKYER: 17 MR. JAMES LOCKYER: I've been compelled to 18 be elsewhere. I would have been here if I could possibly 19 have been here. And the same goes to you, Dr. Pollanen. 20 But, sir, there's just a -- a couple of areas, if I have 21 time, I'd like to ask you about. 22 First of all, looking at the Goldsmith 23 Review, sir, it's -- am I right that there was some 24 criticism of the Goldsmith Review in the UK because it was 25 run exclusively by members of the Crown Prosecution


1 Service? 2 DR. MICHAEL POLLANEN: I'm aware of that, 3 yes. 4 MR. JAMES LOCKYER: The subcommittee that 5 worked in reviewing or arranging to be reviewed, the Smith 6 cases, had individuals from different stakeholders, is 7 that right? 8 DR. MICHAEL POLLANEN: A spectrum, yes. 9 MR. JAMES LOCKYER: And are you familiar, 10 sir, I think you are, that there was another somewhat 11 similar committee, albeit for a slightly different 12 purpose, a scientific purpose, set up in Manitoba four (4) 13 years ago, which took on the task of examining homicide 14 cases where the -- the accused in those cases have been 15 convicted and hair microscopy had played a role in their 16 conviction. You're aware of that committee set up in 17 Manitoba, sir? 18 DR. MICHAEL POLLANEN: Yes. 19 MR. JAMES LOCKYER: And that committee, 20 not unlike the subcommittee, that looked at Dr. Smith's 21 cases, are you aware also contained stakeholders from 22 various interests? 23 DR. MICHAEL POLLANEN: Yes. 24 MR. JAMES LOCKYER: In fact, to be more 25 precise, from the Manitoba Justice? In other words, the


1 Crown's office from the Winnipeg Police Service, the RCMP, 2 AIDWYC, and also from the non-governmental forensic 3 community; did you know that? 4 DR. MICHAEL POLLANEN: I don't dispute 5 that. I believe that represents the range, yes. 6 MR. JAMES LOCKYER: All right. And -- and 7 would you favour -- do you favour that kind of review over 8 the Goldsmith kind of review, sir or do you not have an 9 opinion on it? 10 DR. MICHAEL POLLANEN: If you -- you have 11 to sort of expand on this. If you -- if we were to do a 12 Goldsmith type review, -- 13 MR. JAMES LOCKYER: Yes. 14 DR. MICHAEL POLLANEN: -- do I -- 15 MR. JAMES LOCKYER: Would you pre -- do -- 16 do you think it would be better to do it on the -- on a -- 17 not unlike the Dr. Smith subcommittee review basis where 18 stakeholders from -- or different stakeholders are 19 represented? 20 DR. MICHAEL POLLANEN: Well, I -- I 21 believe that's a good model. 22 COMMISSIONER STEPHEN GOUDGE: Which? 23 DR. MICHAEL POLLANEN: The having 24 different stakeholders involved in some level of the 25 process. That's the model that we used.


1 MR. JAMES LOCKYER: Mm-hm. 2 DR. MICHAEL POLLANEN: I -- I think that's 3 a very good model. But, you know, how that would apply in 4 a particular circumstance and what level of involvement 5 the different stakeholders would have -- would have, was a 6 separate issue. 7 You'd have to determine that based upon the 8 -- the goals and the methodology of the review. 9 MR. JAMES LOCKYER: All right. One (1) of 10 the things that I know you've given thought to, sir, but I 11 -- I understand you have not addressed today, is what you 12 call forensic pathology quality processes in the context 13 of the post-conviction phase of proceedings. 14 Is that right? 15 DR. MICHAEL POLLANEN: Yes, we've 16 discussed that briefly. 17 MR. JAMES LOCKYER: Presumably, sir, all 18 things being equal, and leaving aside funding issues -- 19 and this does go back a bit to questions I was asking you 20 a few weeks ago -- you would have no difficulty with your 21 office being involved and being available for post- 22 conviction reviews? 23 DR. MICHAEL POLLANEN: Well I -- we are 24 getting back to the first week of testimony. 25 MR. JAMES LOCKYER: Yes.


1 DR. MICHAEL POLLANEN: I -- my view is 2 that forensic pathologists would be required for such 3 reviews; that there is no impediment for government 4 forensic pathologists to do those reviews as long as there 5 -- there is an administrative structure in place to engage 6 them and that process is sufficiently resourced. 7 So, for example, we didn't shortchange the 8 criminal justice system in the current instance. And the 9 -- the alternative would be to engage independent experts, 10 for example, from another jurisdiction. 11 COMMISSIONER STEPHEN GOUDGE: In other 12 words, as long as you don't move resources from ongoing 13 work coming in the front door? 14 DR. MICHAEL POLLANEN: Yes. 15 16 CONTINUED BY MR. JAMES LOCKYER: 17 MR. JAMES LOCKYER: We could engage, 18 meaning your office could engage? 19 DR. MICHAEL POLLANEN: The -- the -- no. 20 The administrative body or process that decided to do the 21 review. This is what I'm sort of envisaging, that if the 22 -- if a process were set up to do such a review, they may 23 ask forensic pathologists to be -- to participate in that 24 review. 25 One (1) source of forensic pathologists


1 could be our office. 2 MR. JAMES LOCKYER: Yes. 3 DR. MICHAEL POLLANEN: It need not be, but 4 it could be our office. So for example in the language of 5 governments and so on, that may involve secondments, it 6 may involve memoranda of understanding, it may involve 7 other processes. But it would necessarily maintain the -- 8 the healthy distance that pathologists enjoy from 9 advocacy. That would be my main concern. 10 MR. JAMES LOCKYER: So you would welcome a 11 system whereby a post-conviction review process of review 12 -- post-conviction process per review, could be set up so 13 that an individual concerned would not just have to go to 14 his or her own pathologist, but could go to some kind of 15 board or some kind of process set up and acquire a 16 pathologist through that process? 17 DR. MICHAEL POLLANEN: I -- I would not 18 want any process to be developed that would replace 19 defence attorneys autonomy to seek whoever they wish to 20 review the case. 21 MR. JAMES LOCKYER: And I'm setting it up 22 as an -- as an alternative, not as a -- not as a 23 substitute. I'm saying that the person would have a 24 choice of either going to his or her own pathologist of 25 choice or alternatively going to some kind -- through some


1 kind of process where a pathologist is made available to 2 him or her. 3 You would favour that? 4 DR. MICHAEL POLLANEN: What -- what I 5 would favour would be, as I said in the first week, 6 harmonization between policies in post-conviction DNA 7 testing circumstances and post-conviction policy testing-- 8 MR. JAMES LOCKYER: Okay. 9 DR. MICHAEL POLLANEN: -- as it were; 10 pathology reviews. 11 So, for example, I'm aware that the Centre 12 of Forensic Science has certain processes that they engage 13 to ultimately accept a post-conviction DNA matter. I 14 think that to maintain symmetry and harmony among the 15 agencies involved, that -- that the same process be used 16 for forensic pathology. 17 MR. JAMES LOCKYER: And ultimately the 18 Centre of Forensic Science, absent really quite 19 extraordinary circumstances will always accept a request 20 to conduct post-conviction DNA testing? 21 DR. MICHAEL POLLANEN: I -- I don't know, 22 but my understanding is that they do. 23 MR. JAMES LOCKYER: Mm-hm. Okay. I 24 raised with you last time, as well, Jeff's case, and -- 25 and to put it in context where Valin's case was concerned,


1 when it appreciated by the Chief Coroner that there may be 2 concerns about the case he assigned it to you and it was 3 decided, I guess, by the Chief Coroner and yourself in 4 collaboration, really, that the resources were there for 5 you to be able to review that case. 6 DR. MICHAEL POLLANEN: Correct, yes. 7 MR. JAMES LOCKYER: The same decision was 8 made by the Chief Coroner, no doubt, in collaboration with 9 you where Joshua's case was concerned. 10 DR. MICHAEL POLLANEN: Yes. 11 MR. JAMES LOCKYER: And where Jeff's case 12 was concerned, the same decision was not come to, is that 13 right? 14 DR. MICHAEL POLLANEN: Correct. 15 MR. JAMES LOCKYER: And that was a case 16 interestingly enough that's been -- I don't know -- I 17 think you know this as being looked at by Dr. Plunket, who 18 you were just talking about. 19 DR. MICHAEL POLLANEN: I -- I did not know 20 that. 21 MR. JAMES LOCKYER: You didn't, okay. 22 Leaving that aside, would I be right in saying, sir, that 23 the reason the Chief Coroner, and really yourself, were 24 unable to do Jeff's case was for a resource reason, it was 25 resources?


1 DR. MICHAEL POLLANEN: Yes, that's part of 2 the rationale, yes. 3 MR. JAMES LOCKYER: So if a system -- but 4 because it was -- it is -- it still is a particularly 5 significant case in terms or size, am I right, it would 6 take a long time to do, in other words. 7 DR. MICHAEL POLLANEN: Yes. 8 MR. JAMES LOCKYER: It's a lot of work. 9 DR. MICHAEL POLLANEN: That -- that 10 particular case would be very resource intensive. 11 MR. JAMES LOCKYER: Very, all right. And 12 would I be right, sir, that if the system was to be 13 created that you have been advocating to bring yourselves 14 in line with the Centre of Forensic Science and post- 15 conviction DNA testing, that that system would have 16 enabled Jeff Smith to get a positive answer, rather than a 17 negative answer, for a review within your office? 18 DR. MICHAEL POLLANEN: It would not 19 necessarily be the case. I mean you would -- you would 20 have to identify criteria to select cases that you would 21 review. 22 MR. JAMES LOCKYER: But his case wasn't 23 rejected on the grounds of complete absence of merit, for 24 example. 25 DR. MICHAEL POLLANEN: That -- that's


1 true. I don't -- I do not believe -- we're sort of 2 skirting around the issues of the case. 3 MR. JAMES LOCKYER: Yes, I'm not -- I'm 4 not -- I don't want to get into it directly, I'm just 5 trying to use it so to speak. 6 DR. MICHAEL POLLANEN: I -- I recog -- I 7 do recognise that if we would put a parallel to the Centre 8 of Forensic Science and post-conviction DNA testing that - 9 - that you could make an argument that that case would be 10 similar. 11 MR. JAMES LOCKYER: And as a final point, 12 sir, and again, using that case, I think you're aware that 13 Crown law have not welcomed a review of that case; is that 14 your understanding? 15 DR. MICHAEL POLLANEN: I mean, I'd have to 16 review documents to know that for a fact. 17 MR. JAMES LOCKYER: Mm-hm. Would there -- 18 assuming for a moment that they did have opposition to a 19 review of that case, for example, opposition to release of 20 exhibits, which I can tell you has been the case, would 21 that prevent you, at least at present, from conducting a 22 review of the case on request of Jeff or his 23 representatives? 24 It's a difficult question. 25 DR. MICHAEL POLLANEN: We're -- I'm sorry,


1 we're getting very much into the -- to the nature of the 2 case. 3 MR. JAMES LOCKYER: No, I'm -- it's really 4 a more general question. If the Crown law said to you, we 5 don't want a particular case reviewed because we don't 6 think it has merit, but you thought it might have merit, 7 would that nevertheless, at present, prevent you from 8 reviewing the case? 9 DR. MICHAEL POLLANEN: Are you suggesting 10 that we -- could we be in a position where the Crown 11 prohibits us from reviewing a case in a post-conviction 12 scenario? 13 MR. JAMES LOCKYER: Yes. 14 DR. MICHAEL POLLANEN: I'm unaware of that 15 happening. 16 MR. JAMES LOCKYER: All right. Would 17 their position have likely an influence on your decision 18 as to whether or not you would conduct a review of the 19 case, at present? 20 DR. MICHAEL POLLANEN: What -- what I 21 would say there is that this discussion highlights the 22 need for a mechanism that removes the forensic pathologist 23 from that type of decision making. 24 MR. JAMES LOCKYER: And that's sort of 25 what I was hoping you might say, one way or another. So


1 thank you, sir, those are my questions. 2 COMMISSIONER STEPHEN GOUDGE: Thanks, Mr. 3 Lockyer. 4 Okay. Mr. Cavalluzzo...? 5 6 (BRIEF PAUSE) 7 8 CROSS-EXAMINATION BY MR. PAUL CAVALLUZZO: 9 MR. PAUL CAVALLUZZO: Dr. Pollanen, I 10 represent the Ontario Crown Attorneys Association which 11 represents all of the Crown attorneys in Ontario. 12 And this afternoon, I'd like to focus on 13 what you refer in your memorandum as the interaction of 14 the pathologist with the criminal justice system. And as 15 we saw recently in your -- in your direct examination, you 16 refer to the second phase as the judicial phase and, 17 indeed, refer to the pathologist there testifying as 18 usually the Crown -- the Crown pathologist. Okay. 19 And there were three (3) areas I want to 20 deal with.; first is, who is ultimately responsible for 21 the conduct of the Crown pathologist? 22 Secondly, I'm going to ask you about 23 suggested mechanisms to ensure the quality of forensic 24 evidence in pediatric homicide cases. 25 And the third area, I won't deal with


1 today, is accountability within the Coroner's Office, and 2 I will deal with that when you -- you do return. 3 So first of all, dealing with who is 4 ultimately responsible for the -- as you refer the Crown 5 pathologist. Because in his evidence on November 29th, 6 Dr. Young -- and this is at pages 161 through 166 of the 7 transcript for counsel. Dr. Young stated that there was 8 no tracking of -- of cases once they left the -- the 9 Coroner's Office and there was no review, systemic review, 10 of how satisfactory the evidence was in respect of the 11 evidence given by the pathologist at -- at the trial. 12 And he implied at that point in time that 13 the work was between the Crown attorney and others and the 14 pathologist and implied that at that time the coroner -- 15 the Coroner's Office has no further responsibility. 16 And the question that I have initially is: 17 Do you agree with Dr. Young's analysis? 18 DR. MICHAEL POLLANEN: Well, I would say 19 that -- that all of us have a shared responsibility for 20 quality in the system. I think -- I think everybody would 21 accept that as being a reasonable proposition. 22 I would also say that the -- the way the 23 pathologist becomes engaged is through a coroner's warrant 24 and we give our report to the coroner at the end of our 25 post-mortem examination.


1 And then we become involved typically in 2 the criminal justice process through subpoena, as a 3 witness, typically by the prosecution and, therefore, we 4 become the Crown's pathologist as it were. 5 And so the question that you've asked is: 6 Has the pathologist's role in connection to the Coroner's 7 Office sufficiently changed by that switch, as it were, 8 going into the criminal justice system. And -- and I say 9 that I think that's an open question. 10 MR. PAUL CAVALLUZZO: Okay. 11 DR. MICHAEL POLLANEN: And the reason I 12 say it's an open question is that the -- it's clear that 13 in the context of the Centre of Forensic Science through 14 accreditation mechanisms, they believe their duties do 15 extend to -- 16 MR. PAUL CAVALLUZZO: Right. 17 DR. MICHAEL POLLANEN: -- the judicial 18 phase. And, I mean, I actually think there's a lot of 19 merit to that. The challenge is how do we provide it. 20 And there are different mechanisms that one can use for 21 that. The Centre of Forensic Science uses a court letter 22 where -- 23 MR. PAUL CAVALLUZZO: We'll come to that, 24 yes. 25 DR. MICHAEL POLLANEN: -- where they


1 invite, I presume -- presumably, constructive criticism. 2 COMMISSIONER STEPHEN GOUDGE: They invite 3 lawyer responses -- 4 DR. MICHAEL POLLANEN: Yes. 5 COMMISSIONER STEPHEN GOUDGE: -- as we 6 were told. 7 DR. MICHAEL POLLANEN: Yes. And the -- 8 that approach is certainly one (1) approach. 9 The other approach that I think is highly 10 valuable is the approach where we use -- we build upon our 11 strengths and, that is, that we -- we have a fairly robust 12 peer review system right now in the investigative phase of 13 the case. And harnessing that peer review system in the 14 judicial phase might be quite applicable. And one (1) way 15 you could do that, for example, would be to have -- after 16 the trial -- have the transcript from the trial be sent 17 back to the pathologist who did the original peer review. 18 And that would extend our peer review 19 process -- 20 MR. PAUL CAVALLUZZO: Mm-hm. 21 DR. MICHAEL POLLANEN: -- to the judicial 22 phase rather than -- in -- in other words, we're -- we're 23 continuing our theme of quality, which is pathologist-to- 24 pathologist peer review as opposed to inviting the Crown 25 or the defence. Nothing, of course, prohibits --


1 MR. PAUL CAVALLUZZO: Right. 2 DR. MICHAEL POLLANEN: -- the Crown or the 3 defence from giving a view, but -- but we're extending on 4 our -- on our system that pre-exists. 5 MR. PAUL CAVALLUZZO: Okay. I'm going to 6 come to some suggestion -- mechanism some related to that, 7 but I just want to throw a couple of questions to you. 8 And that is, first of all, were you aware 9 that the Crown attorney prosecuting the case is, in 10 effect, assigned the pathologist who originally was 11 assigned by the coroner? 12 DR. MICHAEL POLLANEN: Yes. 13 MR. PAUL CAVALLUZZO: And are you aware 14 that in order to get a second pathologist involved in the 15 case that there are a number of bureaucratic hurdles that 16 a Crown attorney has such as getting the approval of his 17 or her Crown attorney, the approval of the Regional 18 Director, and so on. 19 Are you aware of these? 20 DR. MICHAEL POLLANEN: Yes, I am. 21 MR. PAUL CAVALLUZZO: Okay. Are you -- 22 would you also agree with me that a Crown attorney is 23 really not competent to assess the scientific confidence 24 or skills of a forensic pathologist? 25 DR. MICHAEL POLLANEN: I'm not -- I'm not


1 so sure I would go that far. 2 MR. PAUL CAVALLUZZO: Okay. 3 DR. MICHAEL POLLANEN: I mean, the -- the 4 Crowns -- certainly the Crowns that I work with 5 frequently, I find are quite able to assess tho -- some of 6 those issues. But I -- I would clearly agree that they're 7 not in a position to have the same level of assessment, 8 for example, another -- 9 MR. PAUL CAVALLUZZO: Yes. 10 DR. MICHAEL POLLANEN: -- pathologist 11 might have. 12 MR. PAUL CAVALLUZZO: Right. And 13 certainly the Crown attorney could be of assistance in 14 respect of the performance of the pathologist as -- as a 15 witness or whether they were timely in their reports and 16 so on and so forth, you'd agree with that? 17 DR. MICHAEL POLLANEN: Yes. I -- I think 18 that the legal process would -- would emphasize their non- 19 medical merits or demerits -- 20 MR. PAUL CAVALLUZZO: All right. 21 DR. MICHAEL POLLANEN: -- than their 22 medical merits. 23 MR. PAUL CAVALLUZZO: Okay. That's fine. 24 And in the case of Dr. Smith, were you aware that both the 25 Chief Coroner, Dr. Young, and Dr. Cairns introduced Dr.


1 Young at a number of conferences to Crown attorneys as the 2 leading authority in the country or in the -- I think in 3 the continent. I forget what the wording was. 4 MR. MARK SANDLER: Dr. Smith. 5 MR. PAUL CAVALLUZZO: Or Dr. Smith, excuse 6 me. 7 DR. MICHAEL POLLANEN: Dr. -- sorry, 8 you'll have to repeat that. 9 10 CONTINUED BY MR. PAUL CAVALLUZZO: 11 MR. PAUL CAVALLUZZO: Dr. Young and Dr. 12 Cairns introduced Dr. Smith at their conferences as being 13 the leading authority either in the country or in the 14 continent. I forget what the wording was. 15 DR. MICHAEL POLLANEN: I mean, I'm aware 16 of that general concept, yes. 17 MR. PAUL CAVALLUZZO: Okay. And you would 18 agree with me that it would be reasonable for Crown 19 attorneys to rely upon that representation by Dr. Cairns 20 and Dr. Young? 21 DR. MICHAEL POLLANEN: Yes. 22 MR. PAUL CAVALLUZZO: Now, I just -- 23 finally, in this area, I'd like to refer to the -- what's 24 being referred to as the Institutional Report. This is PF 25 document 149431. It's -- you have it in -- in that pro


1 (phonetic) volume. And if you would refer to page 13, Dr. 2 Pollanen. 3 This refers to the duties and 4 responsibilities of the Chief Forensic Pathologist. And 5 there are -- there are two (2) duties there that I'd just 6 like to refer to now. First of all, in paragraph C: 7 "It's your responsibility and duty to 8 provide a consultative and advisory 9 service to police, Crown attorneys, 10 lawyers, pathologists, coroners, et 11 cetera..." 12 COMMISSIONER STEPHEN GOUDGE: Sorry, what 13 page are you on, Mr...? 14 MR. PAUL CAVALLUZZO: This is page 13. 15 COMMISSIONER STEPHEN GOUDGE: What 16 paragraph number? 17 MR. PAUL CAVALLUZZO: Paragraph 40, 18 subparagraph C. 19 COMMISSIONER STEPHEN GOUDGE: There we go. 20 MR. MARK SANDLER: It's page 17. 21 DR. MICHAEL POLLANEN: I only have page 22 13. 23 MR. MARK SANDLER: We use -- 24 COMMISSIONER STEPHEN GOUDGE: We have 25 weird numbers here, Mr. Cavalluzzo.


1 CONTINUED BY MR. PAUL CAVALLUZZO: 2 MR. PAUL CAVALLUZZO: I'm not -- not very 3 electronic, Mr. Commissioner. I use the old pagination. 4 But in any event, you -- it's paragraph 40, subparagraph 5 C, where it provides that: 6 "One (1) of your duties and 7 responsibilities is to provide a 8 consultative and advisory service to 9 police, Crown attorneys, lawyers, 10 pathologist, and so on and so forth." 11 DR. MICHAEL POLLANEN: Yes. 12 MR. PAUL CAVALLUZZO: And then paragraph 13 D: 14 "Provides overall responsibility for all 15 ato -- autopsies and assuming direct 16 responsibilities for the most complex 17 cases requiring in-depth and extensive 18 professional expertise performing 19 autopsies, et cetera, and presenting 20 expert opinion evidence." 21 And the question that I have for you, it's 22 not clear to me as to whether that means that you provide 23 overall responsibility for autopsies and the presentation 24 of expert opinions in Court or whether you, yourself, have 25 the responsibility of pre -- presenting expert opinion


1 evidence. 2 DR. MICHAEL POLLANEN: Well -- well, I 3 certainly give expert evidence -- 4 MR. PAUL CAVALLUZZO: Right. 5 DR. MICHAEL POLLANEN: -- in Court. I'm 6 not responsible for all autopsies -- 7 MR. PAUL CAVALLUZZO: Okay. 8 DR. MICHAEL POLLANEN: -- and giving 9 expert evidence in all of them, no. 10 MR. PAUL CAVALLUZZO: Okay, so that 11 answers the question. It just wasn't clear to me as to 12 whether that was -- 13 COMMISSIONER STEPHEN GOUDGE: Can I ask, 14 are you going to move to your suggestions? 15 MR. PAUL CAVALLUZZO: Yes. 16 COMMISSIONER STEPHEN GOUDGE: Can I just 17 ask a couple of questions before you do that? I take it 18 in your role, Dr. Pollanen, you think you've got an 19 oversight role or a quality assurance role for the 20 performance of pathologists from start to finish in a 21 case, is that fair? 22 DR. MICHAEL POLLANEN: It's -- 23 COMMISSIONER STEPHEN GOUDGE: Certainly up 24 to the -- 25 DR. MICHAEL POLLANEN: It's fair that --


1 that I'm responsible for creating an environment that 2 facilitates quality work. 3 COMMISSIONER STEPHEN GOUDGE: Right. 4 DR. MICHAEL POLLANEN: And part of that is 5 the quality processes, such as the peer review system. 6 COMMISSIONER STEPHEN GOUDGE: Right. 7 DR. MICHAEL POLLANEN: But being 8 ultimately responsible for a person's professional 9 activities in an autopsy; it's not something any one (1) 10 person can be responsible for. 11 COMMISSIONER STEPHEN GOUDGE: Right, 12 right. Dr. Young painted this kind of picture for us and 13 Mr. Cavalluzzo's referred to it; he described a world in 14 which there were very few mechanisms for the Chief 15 Forensic Pathologist, as the representative of the Office 16 of the Chief Coroner's Office, to monitor or exercise 17 quality assurance of the work of a pathologist who had 18 performed an autopsy under warrant; essentially once the 19 criminal process began and by -- once the criminal process 20 began, I mean, from the time trial preparation began, and 21 that included quality assurance for timely delivery of 22 supplementary information to the Crown attorney, preparing 23 for a trial and giving evidence at trial. 24 In fact, he painted a picture that the 25 Office of the Chief Coroner and the Chief Forensic


1 Pathology -- Pathologist might not even know that this was 2 going on. 3 DR. MICHAEL POLLANEN: Correct, yes. 4 COMMISSIONER STEPHEN GOUDGE: How does one 5 exercise, in your position, quality assurance for events 6 that you don't know aren't taking place, if as a matter of 7 theory, as I took your answers to Mr. Cavalluzzo, you 8 should be engaged in that exercise, at least to some 9 degree, albeit with others? 10 DR. MICHAEL POLLANEN: Two (2) mechanisms; 11 guidelines, number one (1), because you -- you give -- you 12 give people advice on how -- 13 COMMISSIONER STEPHEN GOUDGE: On how to do 14 it when the time comes. 15 DR. MICHAEL POLLANEN: -- on how to do it, 16 correct. So that's one (1) very important -- 17 COMMISSIONER STEPHEN GOUDGE: Right. 18 Guidelines about timeliness, about what to do if one is 19 asked for a supplementary opinion on top of the post- 20 mortem report, guidelines about how to give evidence in 21 Court, and so on. 22 DR. MICHAEL POLLANEN: Correct. 23 COMMISSIONER STEPHEN GOUDGE: Okay. 24 DR. MICHAEL POLLANEN: Continuing medical 25 education activities.


1 COMMISSIONER STEPHEN GOUDGE: Yes. 2 DR. MICHAEL POLLANEN: Along those same 3 lines. 4 COMMISSIONER STEPHEN GOUDGE: Yes. 5 DR. MICHAEL POLLANEN: The -- I guess the 6 third is, and -- and I spend some percentage of my time 7 doing that, when -- and this does not happen frequently, 8 but it does happen. When a case has progressed into the 9 Criminal Justice System, perhaps to the level of 10 preliminary inquiry, and new issues arise with regard to 11 the medical evidence -- sometimes this happens at trial -- 12 then I might become involved in providing a second opinion 13 or testifying, or engaging with the pathologist, an 14 alternate line of investigation. 15 So, in other words, there are -- there are 16 individual cases over the course of the year where 17 essentially quality issues become apparent, perhaps more 18 into the judicial phase, than into the investigative 19 phase, and then there are -- there are different 20 mechanisms to get the Chief Forensic Pathologist involved. 21 It may be at the request of a -- of an Assistant Crown 22 Attorney. It may be at the request of the pathologist. 23 It may be at the request of the Regional Supervising 24 Coroner, maybe at the request of the police. 25 COMMISSIONER STEPHEN GOUDGE: 'Cause there


1 are at least two (2) areas of problem that we have heard 2 about so far based on the cases that are forming the 3 information base for our look forward. One is (1) post 4 post- mortem report; problems can arise about the 5 timeliness of delivery of further information on the part 6 of the pathologist to the Crown attorney, second opinion, 7 supplementary opinions, things of that sort. 8 Secondly, shifting opinions post post- 9 mortem report that in a couple of cases Crown attorneys 10 found very difficult to live with. Should there be some 11 mechanism to track that as it's going along so the Chief 12 Forensic Pathologist, at least, knows it is happening, so 13 the guidelines can be supplemented with some form of 14 continuing oversight that does not require a Crown 15 complaining to the higher authority than the pathologist 16 who is going to give evidence? 17 DR. MICHAEL POLLANEN: Would it be 18 desirable? It would be desirable. The -- the question is 19 how you would actually do it -- 20 COMMISSIONER STEPHEN GOUDGE: Yes. 21 DR. MICHAEL POLLANEN: -- is the -- is the 22 issue. For example, right now we don't track autopsy 23 reports at all in terms of timeliness or backlog 24 calculation or -- 25 COMMISSIONER STEPHEN GOUDGE: That's in


1 the investigative part of the process? 2 DR. MICHAEL POLLANEN: Correct. Let own - 3 - let alone -- 4 COMMISSIONER STEPHEN GOUDGE: Let alone 5 the post -- 6 DR. MICHAEL POLLANEN: Precisely. 7 COMMISSIONER STEPHEN GOUDGE: Okay. 8 DR. MICHAEL POLLANEN: And -- and there 9 are many -- 10 COMMISSIONER STEPHEN GOUDGE: And then you 11 have got the whole problem of consultations that happen, 12 in effect, offline as happened in Valin's case. 13 DR. MICHAEL POLLANEN: Essentially. And 14 then -- so the issue then becomes to what extent does the 15 -- does the infrastructure provided by the Office of the 16 Chief Coroner and the Chief Forensic Pathologist insert 17 itself into what essentially is a professional 18 relationship between a individual pathologist and the case 19 as it's evolving in the Criminal Justice System. 20 COMMISSIONER STEPHEN GOUDGE: Albeit, a 21 quality assurance problem about the delivery of pathology 22 broadly defined to include participation in the Justice 23 System? 24 DR. MICHAEL POLLANEN: Correct, yes. I 25 mean, there -- there are clearly two (2) elements. There


1 -- the element is an institutional systemic element, and 2 then there's the element that the pathologist who's 3 actually a witness has certain responsibilities that are 4 generated by their own professional commitment, code of 5 ethics, and -- 6 COMMISSIONER STEPHEN GOUDGE: Right. 7 DR. MICHAEL POLLANEN: -- other desirable 8 features to provide supplementary reports -- 9 COMMISSIONER STEPHEN GOUDGE: Right. 10 DR. MICHAEL POLLANEN: -- and do so in a 11 timely manner. 12 MR. PAUL CAVALLUZZO: Okay. 13 COMMISSIONER STEPHEN GOUDGE: Anyway, I 14 don't know if I have trod on your ground at all, Mr 15 CAVALLUZZO? 16 MR. PAUL CAVALLUZZO: Oh, no, Mr. 17 Commissioner. 18 COMMISSIONER STEPHEN GOUDGE: Away you go. 19 MR. PAUL CAVALLUZZO: Was that part of my 20 time? 21 COMMISSIONER STEPHEN GOUDGE: No. We call 22 that injury time. 23 MR. PAUL CAVALLUZZO: I -- I still 24 think I'll finish in the -- in the thirty (30) minutes. 25 COMMISSIONER STEPHEN GOUDGE: Yes.


1 2 CONTINUED BY MR. PAUL CAVALLUZZO: 3 MR. PAUL CAVALLUZZO: I'd like to move on 4 now to the second area, that is, I'm going to throw out 5 five (5) suggested changes to the present procedure in the 6 judicial phase, which I would like you to comment on. And 7 I'm operating under basically four (4) assumptions that 8 are yours coming from your memorandum on the systemic 9 issues. 10 The first is the obvious one that there is 11 a -- a paucity of qualified forensic pathologists in the 12 province for numerous reasons. We need not get into that. 13 However, our suggestions only go to the five (5) to 14 fifteen (15) cases of pediatric homicides that we 15 presently have in the province annually. 16 The second assumption is we understand this 17 tension between a Criminal Justice System and pathology 18 because of the need for certainty that lawyers have, et 19 cetera, et cetera. 20 The third point is that we agree with you 21 that there is a need for collaborative and -- and 22 constructive relationship between the prosecution and 23 defence. 24 And the fourth proposition is ours, and I 25 assume that you would agree with that, and that is that


1 all stakeholders in the Criminal Justice System from 2 Crowns through to defence attorneys, police, and judges 3 want accurate, reliable, and timely forensic evidence, 4 okay? 5 Now, taking those four (4) assumptions into 6 account, let me make some suggestions. First of all, we 7 would recommend a roster. This is in the transitional 8 phase before we come to an accredit -- accredited system. 9 You talked about an accreditation system 10 this morning and no matter how that flows out, before that 11 time we're going to need some kind of transitional system. 12 And what we would recommend is a roster of qualified 13 forensic pathologists certified by you as the Chief 14 Forensic Pathologist with input from all of the 15 stakeholders in the -- in the system; and that there would 16 be this roster and that persons appointed to do autopsies 17 would be from this roster and certainly, in terms of the 18 roster-person chosen to do the post-mortem report, the 19 defence counsel would have full access to that rostered 20 individual. 21 And I'm wondering if that makes practical 22 sense in the interim before we have an accreditation 23 system? 24 DR. MICHAEL POLLANEN: Well, you and I are 25 thinking along the same lines because that's precisely


1 what I have been thinking about in the last few days. 2 MR. PAUL CAVALLUZZO: Mm-hm. 3 DR. MICHAEL POLLANEN: And essentially, I 4 can -- I've had some time to think and explore about what 5 the corollaries of that would be, and I'll tell you them. 6 This is essentially analogous to a Home 7 Office list -- the Home Office list in the UK -- and it 8 forms an analogy with hospital appointments that doctors 9 renew annually when they are detached to a hospital. 10 And -- and if you created such a list, 11 which we tacitly have already -- 12 MR. PAUL CAVALLUZZO: Right. 13 DR. MICHAEL POLLANEN: -- in fact -- and 14 there is some history with that created by the previous 15 Chief Forensic Pathologist who attempted to produce such a 16 list. But the -- the requirements of the list go further. 17 I would say you have to have three (3) additional 18 mechanisms. 19 Number one (1), you have to have a way of 20 putting people on the list. So you have -- you have to 21 have a selection criteria for putting people on the list. 22 You have to -- you have to define a 23 mechanism to regular -- at regular intervals reappoint 24 people to the list. And I contemplate having the 25 following features of reappointment:


1 Continuing medical education. 2 Participation in some type of peer review 3 system like the one (1) that we have of autopsy reports. 4 And then participation in some type of 5 court quality-based process. And the one (1) that I've 6 suggested is a transcript review on certain percentage of 7 cases -- 8 COMMISSIONER STEPHEN GOUDGE: Spot audited 9 transcript reviews or something? 10 DR. MICHAEL POLLANEN: Yes. Done by the 11 same pathologist that has done the peer review. They're 12 familiar with the case and the issues. 13 And then the third component -- so we have 14 a mechanism of appointing; we have a mechanism of 15 reappointing. 16 The third component, which is the most 17 challenging component is a mechanism to take people off 18 the list. And that, essentially, would be some type of -- 19 the Home Office has a tribunal, a disciplinary tribunal -- 20 COMMISSIONER STEPHEN GOUDGE: Right. 21 DR. MICHAEL POLLANEN: -- to put -- take 22 people off the list and that would, essentially, correlate 23 with a complaints mechanism. 24 Now, that is, in fact, more difficult to 25 contemplate and put into practice for a number of


1 different reasons, including overlap -- overlapping 2 jurisdiction with the College of Physicians and Surgeons. 3 So that's -- that's an issue that needs to 4 be thought about. We need to think about who would 5 actually make the decision to take people off the list. 6 COMMISSIONER STEPHEN GOUDGE: Right. 7 DR. MICHAEL POLLANEN: For example, who 8 are the relevant people on such a board? 9 COMMISSIONER STEPHEN GOUDGE: And what 10 independence does it require? 11 DR. MICHAEL POLLANEN: Exactly. So, you 12 know, I would say that one (1) of the important members of 13 somebody on the list would be a jurist, for example; to 14 give the -- to give the tribunal or board gravitas, you 15 know. 16 That -- that would be my view. That if you 17 were to create such a list, essentially the Ontario 18 version of the Home Office list, it is not simply 19 creating, you know, saying, Who's doing autopsies right 20 now and then type the names on a list. It's a matter of 21 you have to put in all of these processes. 22 COMMISSIONER STEPHEN GOUDGE: Right. 23 Dr. Young cautioned against this, Dr. 24 Pollanen, because he says we've got such a small pool that 25 we can't risk that sort of exercise that would either turn


1 people away from doing the work or remove the only people 2 who were able to do it. 3 DR. MICHAEL POLLANEN: You're on the list. 4 You are -- you are the -- the subset of pathologists in 5 the Province of Ontario who's on the Home Office list. 6 This -- this comes with it some import as 7 well. So, I mean, I -- I don't -- I agree that it 8 produces an additional level of scrutiny onto the forensic 9 pathologists. I would also say that at this juncture, 10 that scrutiny is going to come in any event. 11 MR. PAUL CAVALLUZZO: Okay. 12 DR. MICHAEL POLLANEN: And -- and I -- and 13 I think that formalizing some mechanism would go a long 14 way to alleviating concerns, for example, in the Crown and 15 the defence. 16 MR. PAUL CAVALLUZZO: Right. 17 DR. MICHAEL POLLANEN: Now, I just caution 18 you on one (1) thing. 19 MR. PAUL CAVALLUZZO: Mm-hm. 20 DR. MICHAEL POLLANEN: What I've presented 21 to you, I think, is a sketch. 22 MR. PAUL CAVALLUZZO: Right. 23 DR. MICHAEL POLLANEN: It's an outline 24 that -- that bears further analysis. But it is a 25 mechanism that has been successfully used through the Home


1 Office. 2 MR. PAUL CAVALLUZZO: And it is a -- a 3 mechanism which could draw the meaningful participation of 4 the stakeholders in the system. And that is -- and if the 5 stakeholders play a legitimate role, then this process 6 will gain legitimacy; not only with the Crowns, but also 7 with the Defence Bar? 8 DR. MICHAEL POLLANEN: I agree. 9 MR. PAUL CAVALLUZZO: Okay. Now the 10 second suggestion that we have may be a little more 11 controversial from your perspective, and that is that in 12 every pediatric homicide or a suspicious case, that there 13 should be two (2) autopsies done at the front end, and 14 obviously, independent autopsies done by two (2) separate 15 pathologists. 16 Now I know you, presently, have early 17 notification; you have peer review. But we're suggesting 18 that maybe a more effective mechanism for quality 19 assurance would be two (2) autopsies done at the 20 beginning. Would you comment on that? 21 DR. MICHAEL POLLANEN: I think that would 22 be a -- a poor approach. 23 MR. PAUL CAVALLUZZO: Okay. Could you 24 tell us why? 25 DR. MICHAEL POLLANEN: I think that the --


1 the process of doing a post-mortem examination is a -- is 2 a destructive process. And I think if you take as your 3 goals; independent reviewability, adequate documentation, 4 having expertise, that you embed within your processes 5 adequate ways of dealing with that -- with the issue -- 6 MR. PAUL CAVALLUZZO: Mm-hm. 7 DR. MICHAEL POLLANEN: -- rather then 8 going through the process a second time. So I think -- I 9 think it's -- it probably doesn't really address the issue 10 as much as creating quality processes in the first 11 instance. 12 Now what you -- what you could do, which is 13 a -- is a close variant to that -- 14 MR. PAUL CAVALLUZZO: Mm-hm. 15 DR. MICHAEL POLLANEN: -- is go back to 16 this double-doctoring approach. 17 MR. PAUL CAVALLUZZO: Right. 18 DR. MICHAEL POLLANEN: And that -- if we 19 were to engage in sort of a two (2) autopsy or sequential 20 autopsy mechanism, I think that would be the preferred 21 approach. 22 MR. PAUL CAVALLUZZO: Would -- would that 23 be referred to as double-doctoring? Sequential autopsies? 24 DR. MICHAEL POLLANEN: No. Double- 25 doctoring would be both pathologists at the same time.


1 MR. PAUL CAVALLUZZO: At the same time. 2 Right. Okay. Okay, the third suggestion is we've 3 discussed this earlier, and that is the tracking of -- of 4 evidence given by a pathologist in these -- initially I 5 guess we would start with the pediatric homicide cases, 6 and then if it was working we would -- we would move on. 7 And what I'm referring to is -- is document 8 PFP140213. And this is the letter from the Centre that we 9 talked about before, going to both Crown attorneys and 10 defence counsel, and do you have that in front of you, Dr. 11 Pollanen? 12 COMMISSIONER STEPHEN GOUDGE: Could you do 13 the number again, Mr. Cavalluzzo? It won't come up on the 14 screen? 15 MR. PAUL CAVALLUZZO: 140213. 16 DR. MICHAEL POLLANEN: Yes, this is the 17 Centre of Forensic Science court letter. 18 19 CONTINUED BY MR. PAUL CAVALLUZZO: 20 MR. PAUL CAVALLUZZO: Yes, here it is 21 here. And there are -- obviously this, once again I would 22 -- we would recommend that this would be a letter that all 23 of the stakeholders would participate in composing, 24 because the -- the present letter from the Centre of 25 Forensic Sciences is somewhat limited.


1 For example, based on the evidence we have 2 heard in this Public Inquiry, we would add three (3) other 3 questions. One (1) would be: Had -- Were the reports 4 timely? 5 Secondly: Was the evidence of the expert 6 consistent throughout the whole process? 7 And thirdly -- a third additional question 8 would be: Was the pathologist responsive to inquires and 9 questions that was put to him or her? 10 So that there are a myriad of questions 11 that could be put so that you as the -- the CFP could 12 track this evidence over a period of time. Would you 13 agree that that might be a useful alteration to the 14 present system? 15 DR. MICHAEL POLLANEN: It's an option. 16 I'm -- I think a better approach is the peer review 17 approach, as opposed to the -- the Court letter approach. 18 And I -- I -- there are several reasons for that, but the 19 -- the main reason I think is that -- is the difference 20 between forensic scientists and forensic pathologists. 21 Forensic scientists do not -- are not 22 governed by a professional body, whereas the College is 23 our professional body; it has a complaints process. So, I 24 envisage this -- the following problem, that we get a 25 Court letter about a pathologist that, for example, we'll


1 use an outlandish -- 2 MR. PAUL CAVALLUZZO: Mm-hm. 3 DR. MICHAEL POLLANEN: -- suggestion, 4 alleges purgery. What position does that then place the - 5 - the Office of the Chief Coroner in? Do -- do then we 6 need to go to the College and -- and report that as a -- 7 as an issue to the College? 8 I -- I don't know what our obligations 9 would be in that regard. So I -- I wonder if this is 10 because of the fact that we have physicians, doctors, who 11 are governed by a professional organisation, whether there 12 is some type of overlap there that we would have to 13 consider about whether or not we would institute something 14 -- institute something like this. 15 MR. PAUL CAVALLUZZO: But in terms of the 16 overlapping jurisdiction, there are different competencies 17 in respect of both review mechanisms. In other words, a 18 situation of purgery is the kind of professional 19 misconduct that should go to the College, whereas if it 20 was a question of scientific competence as a pathologist, 21 that should go to you as the Chief Forensic Pathologist. 22 DR. MICHAEL POLLANEN: Well, you -- I -- 23 I've talked about sort of a polar scale where, of course, 24 we would need to report that to the College -- 25 MR. PAUL CAVALLUZZO: Right.


1 DR. MICHAEL POLLANEN: -- but I think we'd 2 all recognise that there is no bright line here. 3 MR. PAUL CAVALLUZZO: Mm-hm. 4 DR. MICHAEL POLLANEN: And so would that - 5 - would that entail, for example, that we would 6 automatically forward all letters to the College and have 7 them also provide another level of review. 8 And I think we're rapidly becoming a system 9 where we have lots of -- lots of review at multiple 10 levels, and that might be good, it might also be 11 redundant. 12 MR. PAUL CAVALLUZZO: And I want to -- 13 actually, when you return I want to explore that with you 14 in terms of the reviewer oversight mechanisms within the 15 office itself because the overlapping jurisdiction of the 16 College is very important in that regard and I'll come 17 back to that. 18 COMMISSIONER STEPHEN GOUDGE: Before you 19 to go to your fourth suggestion, Mr. Cavalluzzo, let me 20 just ask one (1) question about the, in effect, the 21 consumer review by people who are in the courtroom. 22 Would peer review adequately capture how 23 consumer friendly the evidence was? I mean, one (1) of 24 the tricks of scientific expertise, Dr. Pollanen, seems at 25 least arguably to be, how effectively is the communication


1 made to those who are going to use the information and who 2 better to ask than the consumer -- 3 DR. MICHAEL POLLANEN: I agree. 4 COMMISSIONER STEPHEN GOUDGE: -- who are 5 the lawyers and -- given that you probably can't ask the 6 Judge. I suppose you could ask the Judge, but... 7 DR. MICHAEL POLLANEN: Well, I would 8 prefer to ask the Judge, actually. 9 COMMISSIONER STEPHEN GOUDGE: Yes. Yes. 10 DR. MICHAEL POLLANEN: Because -- 11 COMMISSIONER STEPHEN GOUDGE: But would 12 peer review catch that? I think a peer review in your 13 terms as a review of the testimony to see that it was 14 scientifically acceptable -- 15 DR. MICHAEL POLLANEN: Yes. I -- 16 COMMISSIONER STEPHEN GOUDGE: -- as 17 opposed to understandable to the recipient. 18 DR. MICHAEL POLLANEN: There would be 19 certain elements that are captured by the Court letter 20 that are not captured by a transcript review, that's 21 clear. 22 COMMISSIONER STEPHEN GOUDGE: Right. 23 DR. MICHAEL POLLANEN: And there are 24 certain things that you could only ascertain by examining 25 the demeanor of the witness on the stand and how


1 responsive they were; that's clearly the case. 2 I personally would -- would view the best 3 judge of that to be the Judge. So I -- I would think if 4 we went down the Court letter route, that it would be the 5 Judge would be in the best position to -- to make that 6 assessment, or at least be included in that -- 7 COMMISSIONER STEPHEN GOUDGE: Right. 8 DR. MICHAEL POLLANEN: -- assessment. 9 10 CONTINUED BY MR. PAUL CAVALLUZZO: 11 MR. PAUL CAVALLUZZO: And if the -- if the 12 Judge couldn't or wouldn't, then obviously the Crown 13 attorney -- the def -- defence counsel could comment on 14 that in terms of their observations in Court. 15 DR. MICHAEL POLLANEN: Well, frankly, I 16 have a difficulty with that because that in -- that 17 induces or includes a selection bias and because what are 18 we trying to measure. 19 And I think that one (1) of the things that 20 I would be interested in measuring, or -- or 21 understanding, is what the Judge thought, frankly, and I - 22 - I would think that that might be, in fact, weighed more 23 heavily in some circumstances than the other view -- the 24 other views. 25 It comes back to the shared vision, the


1 shared responsibility, than if we're all going to share in 2 this oversight and accountability -- 3 MR. PAUL CAVALLUZZO: Right. 4 DR. MICHAEL POLLANEN: -- then let's all 5 share it. 6 MR. PAUL CAVALLUZZO: Okay. Just -- Mr. 7 Commissioner, I'll just be about two (2) more minutes. 8 COMMISSIONER STEPHEN GOUDGE: That is 9 fine. 10 11 CONTINUED BY MR. PAUL CAVALLUZZO: 12 MR. PAUL CAVALLUZZO: I'm beyond my point, 13 fifteen (15) -- or at thirty (30) minutes. 14 But the forth point I -- actually I'm -- 15 I'm adopting from your systemic memo and that is the point 16 you make about mutual disclosure of expert evidence at the 17 appropriate time, which would save a lot of grief and 18 trouble. 19 I know it may be controversial in some 20 corners, but certainly we are recommending that and 21 obviously you'll agree with that. 22 DR. MICHAEL POLLANEN: No, I -- I fully 23 support that. 24 MR. PAUL CAVALLUZZO: Okay. 25 DR. MICHAEL POLLANEN: There are very,


1 very good examples where reciprocal disclosure will solve 2 problems very near the front end. 3 MR. PAUL CAVALLUZZO: Okay. And the final 4 recommendation or change that we would suggest would be 5 joint education programs with Crown attorneys and the 6 Defence Bar in the use of this kind of evi -- pathological 7 evidence in pediatric death cases, and particularly, under 8 the leadership of your office, because as you know, in 9 paragraph E, of that paragraph we looked at, in terms of 10 your duties and responsibilities -- it's at, I think, page 11 17 of your -- of your book. 12 And the reference I make is -- as I say 13 paragraph E, which gives you the responsibility: 14 "To develop and participate in 15 instructional programs to upgrade the 16 professional and technical knowledge of 17 pathologists in training, police 18 officers, coroners, members of the legal 19 profession." 20 And -- and we would certainly recommend 21 that. And I think you would probably agree with that. 22 DR. MICHAEL POLLANEN: I'm -- I full hear 23 -- you know, my view is that education is one (1) of the 24 major issues in this Inquiry and -- and I think -- and I 25 think that that is something that we need to resource very


1 appropriately. 2 MR. PAUL CAVALLUZZO: Thank you, Dr. 3 Pollanen. I have no further questions. 4 COMMISSIONER STEPHEN GOUDGE: Thanks, Mr. 5 Cavalluzzo. That concludes today. 6 MR. MARK SANDLER: Commissioner, just -- 7 just one (1) comment before we break, and that is that I 8 think you'd indicated that -- that counsel for Dr. Smith 9 would be proceeding first thing in the morning. Actually, 10 the OCCO requests for forty-five (45) minutes had to do 11 with the rule 36. 12 COMMISSIONER STEPHEN GOUDGE: Oh, okay. 13 MR. MARK SANDLER: So she'd be going -- 14 she'd be going first, and to the extent which -- 15 COMMISSIONER STEPHEN GOUDGE: Fair enough. 16 MR. MARK SANDLER: -- she -- she doesn't 17 use all that time, she may reserve some time, as I 18 understand, at the end of the -- at the end of the -- 19 COMMISSIONER STEPHEN GOUDGE: Yes. Yeah. 20 MR. MARK SANDLER: -- so. 21 COMMISSIONER STEPHEN GOUDGE: Thanks. Ms. 22 Ritacca, what I did was to allocate you for the time you 23 asked. You can break it up between the two (2) 24 components. 25 MS. LUISA RITACCA: Great, thank you.


1 COMMISSIONER STEPHEN GOUDGE: Okay. So we 2 will start with you tomorrow morning at 9:30. Thank you 3 for the long day. Thanks, Dr. Pollanen. We will see you 4 all at 9:30 tomorrow morning. 5 6 (WITNESS RETIRES) 7 8 --- Upon adjourning at 5:20 p.m. 9 10 11 Certified correct, 12 13 14 15 _________________ 16 Rolanda Lokey, Ms. 17 18 19 20 21 22 23 24 25