1
  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  

2
  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  

3
  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  

4
  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  

5
  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  
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 11  Certificate of transcript                                 290
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  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
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7
  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 --

8
  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?

9
  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

10
  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

11
  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

12
  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

13
  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

14
  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

15
  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 --

16
  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.  

17
  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

18
  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

19
  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,

20
  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.

21
  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

22
  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

23
  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.

24
  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

25
  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 --

26
  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

27
  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?

28
  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.

29
  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

30
  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 --

31
  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

32
  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

33
  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

34
  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

35
  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

36
  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

37
  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 -

38
  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

39
  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

40
  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?

41
  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

42
  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

43
  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

44
  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

45
  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

46
  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

47
  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

48
  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.

49
  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,

50
  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

51
  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

52
  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

53
  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

54
  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

55
  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.

56
  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.

57
  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

58
  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

59
  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

60
  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.

61
  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.

62
  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

63
  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

64
  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

65
  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

66
  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 --

67
  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?

68
  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,

69
  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?

70
  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 --

71
  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

72
  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?  

73
  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

74
  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?

75
  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. 

76
  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

77
  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

78
  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,

79
  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,

80
  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

81
  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

82
  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.

83
  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

84
  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

85
  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

86
  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. 

87
  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

88
  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 --

89
  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,

90
  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

91
  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

92
  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

93
  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

94
  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.

95
  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

96
  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

97
  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

98
  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

99
  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.  

100
  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

101
  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;

102
  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.

103
  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.

104
  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

105
  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

106
  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

107
  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

108
  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;

109
  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

110
  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

111
  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

112
  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,

113
  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?

114
  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

115
  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

116
  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

117
  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

118
  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

119
  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

120
  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.

121
  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  

122
  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

123
  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

124
  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

125
  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

126
  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

127
  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. 

128
  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.  

129
  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

130
  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

131
  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

132
  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."

133
  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

134
  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?

135
  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

136
  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?

137
  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

138
  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 --

139
  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. 

140
  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, --

141
  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  

142
  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

143
  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

144
  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...?

145
  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  

146
  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

147
  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 --

148
  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

149
  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

150
  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

151
  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

152
  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.

153
  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?

154
  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 --

155
  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

156
  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 --

157
  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 --

158
  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

159
  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

160
  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

161
  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

162
  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

163
  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.

164
  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

165
  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

166
  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,

167
  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.  

168
  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

169
  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

170
  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

171
  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

172
  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

173
  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?

174
  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

175
  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

176
  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?

177
  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)

178
  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?

179
  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

180
  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

181
  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

182
  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. 

183
  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

184
  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.

185
  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. 

186
  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.

187
  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

188
  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 -- 

189
  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?

190
  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

191
  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,

192
  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

193
  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

194
  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.  

195
  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

196
  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:   

197
  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

198
  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

199
  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  

200
  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

201
  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

202
  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?

203
  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.

204
  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

205
  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  

206
  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.

207
  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

208
  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

209
  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

210
  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

211
  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

212
  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

213
  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

214
  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

215
  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

216
  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,

217
  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. 

218
  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.

219
  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

220
  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

221
  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.

222
  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

223
  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

224
  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.  

225
  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.

226
  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

227
  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

228
  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

229
  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

230
  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?

231
  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

232
  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

233
  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

234
  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  

235
  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

236
  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

237
  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

238
  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

239
  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.  

240
  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?

241
  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,

242
  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?

243
  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 --

244
  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?

245
  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

246
  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

247
  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

248
  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.

249
  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.

250
  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

251
  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

252
  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,

253
  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?

254
  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

255
  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,

256
  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

257
  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

258
  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.

259
  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

260
  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 --

261
  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

262
  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.

263
  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

264
  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.

265
  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

266
  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 --

267
  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

268
  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.

269
  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

270
  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

271
  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

272
  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.

273
  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

274
  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

275
  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:  

276
  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

277
  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

278
  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

279
  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 --

280
  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.

281
  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.  

282
  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

283
  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.

284
  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

285
  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

286
  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

287
  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,

288
  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

289
  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.

290
  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.
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