11 2 3 THE INQUIRY INTO PEDIATRIC FORENSIC 4 PATHOLOGY IN ONTARIO 5 6 7 8 ******************** 9 10 11 BEFORE: THE HONOURABLE JUSTICE STEPHEN GOUDGE, 12 COMMISSIONER 13 14 15 16 Held at: 17 Offices of the Inquiry 18 180 Dundas Street West, 22nd Floor 19 Toronto, Ontario 20 21 22 ******************** 23 24 December 6th, 2007 25
21 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 ) Dr. Charles Smith 13 Niels Ortved ) 14 Erica Baron (np) ) 15 Grant Hoole (np) ) 16 17 William Carter (np) ) Hospital for Sick Children 18 Barbara Walker-Renshaw(np) ) 19 Kate Crawford (np) ) 20 21 Paul Cavalluzzo (np) ) Ontario Crown Attorneys' 22 Association 23 24 25
31 APPEARANCES (CONT'D) 2 3 Mara Greene ) Criminal Lawyers' 4 Breese Davies (np) ) Association 5 Joseph Di Luca (np) ) 6 Jeffery Manishen (np) ) 7 8 James Lockyer (np) ) William Mullins-Johnson, 9 Alison Craig (np) ) Sherry Sherret-Robinson and 10 Phil Campbell (np) ) seven unnamed persons 11 12 Peter Wardle ) Affected Families Group 13 Julie Kirkpatrick (np) ) 14 Daniel Bernstein (np) ) 15 16 Louis Sokolov ) Association in Defence of 17 Vanora Simpson (np) ) the Wrongly Convicted 18 Elizabeth Widner (np) ) 19 Paul Copeland (np) ) 20 21 Jackie Esmonde (np) ) Aboriginal Legal Services 22 Kimberly Murray ) of Toronto and Nishnawbe 23 Sheila Cuthbertson (np) ) Aski-Nation 24 Julian Falconer (np) ) 25
41 APPEARANCES (cont'd) 2 3 Suzan Fraser ) Defence for Children 4 ) International - Canada 5 6 William Manuel (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
51 TABLE OF CONTENTS Page No. 2 3 MICHAEL SVEN POLLANEN, Resumed 4 5 Cross-Examination by Ms. Luisa Ritacca 6 6 Cross-Examination by Ms. Jane Langford 40 7 Continued Cross-Examination by Mr. Peter Wardle 117 8 Continued Cross-Examination by Mr. Louis Sokolov 158 9 Continued Cross-Examination by Ms. Mara Greene 174 10 Continued Cross-Examination by Ms. Suzan Fraser 203 11 Re-direct Examination by Mr. Mark Sandler 226 12 13 14 Certificate of transcript 240 15 16 17 18 19 20 21 22 23 24 25
61 --- Upon commencing at 9:31 a.m. 2 3 THE REGISTRAR: All rise. Please be 4 seated. 5 COMMISSIONER STEPHEN GOUDGE: Good 6 morning. 7 MS. LUISA RITACCA: Good morning, 8 Commissioner, Dr. Pollanen. 9 DR. MICHAEL POLLANEN: Good morning. 10 11 MICHAEL SVEN POLLANEN, Resumed 12 13 CROSS-EXAMINATION BY MS. LUISA RITACCA: 14 MS. LUISA RITACCA: Dr. Pollanen, 15 yesterday in the context of discussing the issue of double 16 doctoring, the Commissioner spoke to you about how best to 17 ensure that pediatric cases are being performed by the 18 appropriate expert. And you spoke about cases that would 19 more appropriately dealt with by a pediatric pathologist 20 and cases that would be more appropriately dealt with my a 21 forensic pathologist. 22 But could you tell us, sir, how pediatric 23 cases are currently being distributed throughout the 24 Province? 25 DR. MICHAEL POLLANEN: Statistically, 50
71 percent -- approximately 50 percent of the pediatric 2 autopsies performed under coroner's warrant are performed 3 in the Ontario Pediatric Forensic Pathology Unit at the 4 Hospital for Sick Children. 5 The other 50 percent are distributed to the 6 regional forensic pathology units, with the except -- 7 exception in fact of my departments. We -- we don't have 8 a substantive role in pediatric forensic pathology. 9 Now there is a further layer of complexity 10 or subtlety there which is that in the 50 percent that go 11 to the units, the Kingston Unit traditionally does not 12 have high -- a high level of capacity in pediatric work, 13 so they would tend to go to Ottawa. 14 MS. LUISA RITACCA: Yes. 15 DR. MICHAEL POLLANEN: And in Ottawa, the 16 customary practice has been to perform the post-mortem 17 examinations at the Children's Hospital of Eastern 18 Ontario. So in fact, in -- in Ottawa the situation is 19 that the pediatric cases are actually being done in a 20 pediatric hospital, rather than the Regional Forensic 21 Pathology Unit, which then leaves London and Hamilton 22 where the pediatric cases are being performed within the 23 regional forensic pathology units. 24 So the situation is actually fairly 25 complicated and -- and is -- and how the cases are
81 distributed are determined by regional factors and also 2 customary practices within the region, and -- and I think 3 it would be fair to say the availability of a nearby 4 pediatric hospital. 5 MS. LUISA RITACCA: And so other than at 6 the Hospital for Sick Children and the Children's Hospital 7 of Eastern Ontario in Ottawa, are there full time 8 pediatric pathologists at any of the regional units? 9 DR. MICHAEL POLLANEN: Well, the subtlety 10 there, of course, is that the regional units are staffed 11 by hospital pathologists, so the forensic pathologists 12 that staff the units are in fact hospital employed 13 pathologists, and those people are employed in departments 14 which may also employ pediatric pathologists. So, for 15 example, in -- in Hamilton and McMaster University there 16 is a pediatric pathologist. 17 MS. LUISA RITACCA: On staff within the 18 unit or on staff at the hospital? 19 DR. MICHAEL POLLANEN: On staff in the 20 Department of Pathology which houses the pediatric -- the 21 -- the Hamilton Regional Forensic Pathology Unit. 22 MS. LUISA RITACCA: And, Dr. Pollanen, 23 short of double-doctoring -- 24 COMMISSIONER STEPHEN GOUDGE: Can I just 25 ask a --
91 MS. LUISA RITACCA: Sure. 2 COMMISSIONER STEPHEN GOUDGE: -- couple of 3 organizational questions, Mr. Ritacca? 4 So the regional unit at Hamilton is housed 5 in McMaster? 6 DR. MICHAEL POLLANEN: Yes. 7 COMMISSIONER STEPHEN GOUDGE: And in 8 London at Western? 9 DR. MICHAEL POLLANEN: Yes. 10 COMMISSIONER STEPHEN GOUDGE: And in 11 Ottawa? 12 DR. MICHAEL POLLANEN: In the Ottawa 13 Hospital. 14 COMMISSIONER STEPHEN GOUDGE: In the 15 Ottawa Hospital, with the Children's Hospital being used 16 for the pediatric autopsies? 17 DR. MICHAEL POLLANEN: Correct. 18 COMMISSIONER STEPHEN GOUDGE: Okay. Now, 19 is there any streaming of the pediatric cases under 20 warrant by criminally suspicious? 21 DR. MICHAEL POLLANEN: In what circ -- in 22 which circumstance? 23 COMMISSIONER STEPHEN GOUDGE: Well, do 24 criminally suspicious cases come to Toronto, to take a 25 hypothetical, rather than go to Ottawa, London, or
101 Hamilton? 2 DR. MICHAEL POLLANEN: There are -- 3 there's variable practice there. For example, one (1) of 4 the traditional mechanisms for bringing a case to the Sick 5 Children's Unit would be if the case is not within the 6 geography of a regional unit. So, for example, Northern 7 Ontario -- 8 COMMISSIONER STEPHEN GOUDGE: Right. 9 DR. MICHAEL POLLANEN: -- that case may be 10 brought down to the -- in fact would typically be brought 11 to the Hospital for Sick Children, unless it is in the -- 12 essentially Kenora region of the Province where we have a 13 -- an informal relationship where the autopsy is actually 14 performed in Winnipeg -- 15 COMMISSIONER STEPHEN GOUDGE: Right. 16 DR. MICHAEL POLLANEN: -- through the 17 Medical Examiner's office in -- in that province. 18 COMMISSIONER STEPHEN GOUDGE: Right. 19 DR. MICHAEL POLLANEN: So there -- there 20 are sort of what I would call referral networks. 21 COMMISSIONER STEPHEN GOUDGE: But they 22 aren't referred on the basis of criminally suspicious. 23 Criminally suspicious in Ottawa get done at the Children's 24 Hospital, criminally suspicious in Brampton get done in 25 Toronto.
111 DR. MICHAEL POLLANEN: It may not in fact 2 be quite that simple, either, because we -- we do have a 3 network of communication throughout our system. 4 COMMISSIONER STEPHEN GOUDGE: Mm-hm. 5 DR. MICHAEL POLLANEN: So, for example, if 6 there is an issue that is raised by a police force or by a 7 coroner, that would usually involve consultation with a 8 regional supervising coroner -- 9 COMMISSIONER STEPHEN GOUDGE: Mm-hm. 10 DR. MICHAEL POLLANEN: -- and they in 11 fact, in some circumstances, involve me -- 12 COMMISSIONER STEPHEN GOUDGE: Mm-hm. 13 DR. MICHAEL POLLANEN: -- at some point. 14 And there might be a discussion about where that case is 15 best to be performed. But I would say generally speaking 16 the -- the level of the sorting process is more by age, as 17 opposed to forensic relevance. 18 COMMISSIONER STEPHEN GOUDGE: Explain 19 that. 20 DR. MICHAEL POLLANEN: Well, the -- the 21 point being that the philosophy that has in -- informed 22 policy development in this area is that age was the 23 relevant factor. So pediatric forensic pathology in the 24 Province of Ontario had emphasis on the pediatric -- 25 COMMISSIONER STEPHEN GOUDGE: Okay, I
121 thought you meant within those pediatric cases, very young 2 ones go one place, the not so young ones go another. I 3 take it that's not what you mean. 4 DR. MICHAEL POLLANEN: Well, essentially 5 it's -- it is what I mean. What I'm saying is that the -- 6 if a regional coroner somewhere in Ontario is 7 contemplating where to send a case -- 8 COMMISSIONER STEPHEN GOUDGE: Yes. 9 DR. MICHAEL POLLANEN: -- and it's -- and 10 it's usually the -- the first level of the screening is 11 age, because we put the emphasis on the pediatric, on the 12 age part. But there will be cases, for example, if it's a 13 ten (10) year old that has been kill -- killed as a 14 pedestrian in a motor vehicle -- 15 COMMISSIONER STEPHEN GOUDGE: Right. 16 DR. MICHAEL POLLANEN: -- accident, that's 17 where the age might not be so relevant. 18 COMMISSIONER STEPHEN GOUDGE: It might be 19 done in the local hospital by the hospital pathologist? 20 DR. MICHAEL POLLANEN: Correct. 21 COMMISSIONER STEPHEN GOUDGE: I see, okay. 22 DR. MICHAEL POLLANEN: So it's -- so it's 23 a little bit more complicated than simply age, although 24 the major screening factor would be age. 25 COMMISSIONER STEPHEN GOUDGE: Okay. Now
131 do all the regional centres have pathologists who are 2 qualified forensic pathologists, or are some of them 3 forensic by experience only? 4 DR. MICHAEL POLLANEN: A mixture. 5 COMMISSIONER STEPHEN GOUDGE: Some of 6 each? 7 DR. MICHAEL POLLANEN: Yes. 8 COMMISSIONER STEPHEN GOUDGE: Okay. Now 9 what are the numbers? Give me the raw numbers, in terms 10 of done under warrant, pediatric cases? 11 The number I have in my head is -- is about 12 two fifty (250). Am I wrong? 13 DR. MICHAEL POLLANEN: That's about right, 14 yes. 15 COMMISSIONER STEPHEN GOUDGE: Okay. And 16 then you're going to do the breakdown that we talked 17 about -- 18 DR. MICHAEL POLLANEN: Yes. 19 COMMISSIONER STEPHEN GOUDGE: -- yesterday 20 of those that might come into some kind of catchment 21 definition? 22 DR. MICHAEL POLLANEN: Yes. 23 COMMISSIONER STEPHEN GOUDGE: Okay. 24 Thanks, Ms. Ritacca. 25 MS. LUISA RITACCA: Oh, no trouble.
141 2 CONTINUED BY MS. LUISA RITACCA: 3 MS. LUISA RITACCA: And my follow-up 4 question to that is -- is more about the pediatric nature 5 of -- of these type of case rather then the forensic. And 6 -- so short of double-doctoring a case, putting a forensic 7 pathologist and a pediatric pathologist on the case right 8 from the autopsy, how do the forensic pathologists in your 9 units, and those certified forensic pathologists and those 10 practising as forensic pathologists, address the uniquely 11 pediatric issues that arise in some of these cases? 12 DR. MICHAEL POLLANEN: Variably. For 13 example, it would -- it would relate in some circumstances 14 to capacity -- local capacity. But the -- the main 15 mechanism would be through referral. 16 So the -- the examples would be as follows: 17 In -- in the pediatric autopsy, one (1) thing that we have 18 not discussed up until this point, is tissue retention and 19 -- for example, the brain is routinely retained in 20 pediatric autopsies. 21 And part of the ability to provide good 22 pediatric pathology service is to have capacity in 23 neuropathology consultation. So if you have a child, for 24 example, with a seizure disorder that is being autopsied 25 in a pediatric environment, the relevant consultation
151 would be neuropathology. So there's -- local capacity 2 helps. 3 Same thing with congenital heart disease. 4 Forensic pathologist is in a very good position to make 5 the initial diagnosis of congenital heart disease, but may 6 not have the -- the time or the special knowledge to deal 7 with -- it's -- the -- the subtleties of its 8 classification. 9 So in some circumstances the -- what the 10 forensic pathology does -- or the forensic pathologist 11 does, is accepts those cases that are coming to them 12 through a forensic environment, through a forensic 13 process, and then identifies the cases that would benefit 14 from having other consultative opinions. 15 MS. LUISA RITACCA: And you -- you've 16 given us an example where the consultative opinion 17 necessary is from a neuropathologist. 18 Can you give us any examples of where the 19 consultation needs to happen with a pediatric pathologist? 20 DR. MICHAEL POLLANEN: Yes. One of the 21 best examples in my experience is with the placenta. So 22 if you have a neonatal death and one of the factors that's 23 in the investigation is, is there a problem with the 24 placenta that might explain death on maternal placental 25 factors, most forensic pathologists don't have great
161 facility with histology of the placenta, and we would 2 actively seed -- seek assistance in that circumstance. 3 The -- the other circumstance that I have 4 experienced recently was a sudden expected death of an 5 infant, a four (4) week old infant, that presented in a 6 forensic context. And I recognized that it was a case of 7 congenital nephrotic syndrome, an inherited disease of the 8 kidneys. 9 My level of expertise was to identify that 10 there was a problem with the kidney, and this was a -- you 11 know, I recognize it as being potentially part of an 12 inherited disorder. But then I asked a pediatric 13 nephropathologist, actually at the Hospital for Sick 14 Children to give further advice by doing some additional 15 testing. So that's -- those are the circumstances where 16 the pediatric pathologist can be very useful in sorting 17 out the issue. 18 And it underscores the point, and this is a 19 very important point, and that is that what we're engaged 20 in here is death investigation and death investigation has 21 to be for the entire spectrum. And any type of policy 22 development or change in our system or improvements, while 23 it must be -- we must be informed by the criminal justice 24 elements, we have to make sure that we are augmenting the 25 entire system.
171 And one of the most compelling reasons for 2 that is for example, the issues that are raised with Sally 3 Clark, because in Sally Clark the issue was serial infant 4 death; essentially three (3) dead babies in a family -- in 5 fact, two (2) dead babies in that case -- but in a family, 6 where the issue was is it serial killing, essentially 7 multiple murder or is this a genetic disorder that is 8 presenting in a forensic context? 9 And it's -- it's quite clear that because 10 those are the competing hypothesis, there's value in 11 having both perspectives. So while it might be easy at 12 the onset to look at the distribution of cases by number 13 and say, Oh well, the natural is so many, the criminally 14 suspic -- suspicious are so many, in reality there is an 15 overlap and a very significant overlap that may make the 16 natural element important to the criminal justice system. 17 COMMISSIONER STEPHEN GOUDGE: Yeah, you 18 have to be able, from the criminal justice perspective, to 19 ensure that once the case gets there it wasn't the natural 20 case to start with. That's not a very good way of saying 21 what I'm trying to say but the definitional problem is big 22 at the front end. 23 DR. MICHAEL POLLANEN: Exactly. And the 24 other way of saying it is that pediatric forensic 25 pathology, as forensic pathology in general, but that
181 specifically, is full of these pitfalls. And from a -- 2 from a systemic point of view, we have to provide 3 procedures and mechanisms that covers most of the 4 pitfalls, the best way that we can. 5 And -- and it's not going to be 6 systemically a solution that is heavily weighed on the 7 forensic end and heavily weighed on the pediatric end. 8 It's going to be a reasonable balancing of both 9 imperatives. 10 11 CONTINUED BY MS. LUISA RITACCA: 12 MS. LUISA RITACCA: My last question to 13 you on this topic, Dr. Pollanen, is do you have any 14 impression as to how accessible pediatric pathologists are 15 to your forensic pathologists in the units, other than of 16 course at the Hospital for Sick Children and the 17 Children's Hospital in Ottawa? 18 DR. MICHAEL POLLANEN: There is a supply 19 problem, a manpower problem, in pathology in general. And 20 then there is an acute shortage of various subspecialties 21 in pathology and they include both forensic pathology and 22 pediatric pathology. So I would say there is not an 23 abundance of pediatric pathologists in the Province. 24 I would say that, however, in my 25 experience, the pediatric pathologists are very responsive
191 to forensic pathological issues. What I mean by that is 2 that if we ask for assistance, we've not been told no. 3 It's -- it's a very productive relationship with the 4 pediatric pathologists. 5 MS. LUISA RITACCA: Dr. Pollanen, 6 yesterday you were asked a number of questions with regard 7 to the Chief Forensic Pathologist's role in quality 8 assurance at various stages of the death investigation and 9 the criminal justice process. I'd like to ask you about 10 the efforts you have already made to ensure quality 11 pathology services at the front end. 12 And for that I'd like you to turn to Tab 27 13 of your binder. And that's PFP139350 at page 11, Mr. 14 Registrar. These are your guidelines on autopsy practice 15 for forensic pathologists. 16 Dr. Pollanen, my first question is when did 17 you start developing these processes? 18 DR. MICHAEL POLLANEN: Well, the -- the 19 concept for quality processes has been across the entire 20 time spectrum in -- in our office. Essentially, the -- 21 the first guidelines regarding SIDS cases or related cases 22 occurred in the '90s. 23 But formal guidelines for autopsies in 24 general for homicide and pedi -- and criminally suspicious 25 cases came in -- in 2005 as part of a -- sort of a -- I
201 won't say strategic planning, because it wasn't that well 2 developed, but a process when -- when I came into the 3 office and was increasing my administrative role I 4 identified that the first step should be to create unifi - 5 - unified procedures within the Toronto Forensic Pathology 6 Unit; so sort out things like how are we dealing with 7 physical exhibits, what is -- what would be considered 8 reasonable constitu -- constitution of an autopsy, these 9 type of issues, and then put those in guidelines, and the 10 extend them to the rest of the Province. 11 And so the -- the first edition of the 12 guidelines in 2005 were actually initially just meant for 13 the Toronto Unit, as I was just the Director of the 14 Toronto Unit at the time, but then it seemed reasonable to 15 get engagement from the other units and therefore give the 16 guidelines provincially. 17 So, it's been sort of a steady progress 18 with the major activities occurring, I would say 2003 19 onward. 20 MS. LUISA RITACCA: Okay. And we look at 21 page 11; I understand from here that there are four (4) 22 components to your quality assurance system. And if you 23 could briefly take us through these components, and in 24 particular, if you could explain how this early quality 25 assurance, these efforts help ensure quality at later
211 stages of the process, so the judicial and the post- 2 conviction stages. 3 DR. MICHAEL POLLANEN: Well, it's -- it's 4 quite clear -- and that's a truism for all parts of the -- 5 of the investigation -- that quality processes closer to 6 the beginning of the investigation and -- and the key 7 events that occur at the investigation are the best 8 mechanisms to ensure quality later on in the process. 9 But, I mean, I think that's just almost an 10 axiom. So, it made sense to put our efforts on that part 11 of the spectrum. And on that basis we developed formal 12 and -- and more informal mechanisms for how the -- that 13 quality should be achieved. 14 The -- I would say the centre point of this 15 process is the peer review process, where the post-mortem 16 report is given to a peer. And this is in the context of 17 the units. The staff pathologists in the units will have 18 their work reviewed -- peer reviewed by one (1) of the 19 directors. The directors send their reports to me and I 20 review them or I redistribute them throughout our system 21 to have other people review them. 22 And then in -- in my unit, the Toronto 23 Unit, the -- we essentially review each other's work and 24 that, of course, includes review of my work, which is done 25 by the other pathologists in our unit. Or in some
221 circumstances I will send my reports to one of the other 2 directors in the regional units. 3 MS. LUISA RITACCA: And if I -- can I just 4 stop you for a moment. When you say the reports are peer 5 reviewed do -- is it simply the reports or is there 6 anything else that -- that the peer reviewer is looking 7 at? 8 DR. MICHAEL POLLANEN: Well, the -- this 9 goes to the issue of level of review and to what extent 10 does the peer review process include things like 11 photographs and histology. And there has been an 12 increased emphasis on reviewing photographs, and in some 13 cases the histology. 14 The point of the matter here is that the 15 review has to be relevant to its goals. So, if you're 16 going to make a review of the nature of wounds that forms 17 the basis of the -- of the opinion, examining the 18 photographs is a reasonable part of the quality assurance 19 process. 20 Now having said that, there -- in -- in 21 some circumstances, the -- the review may not be 22 particularly informed by that. 23 I'm thinking, for example, of a penetrating 24 gunshot wound to the head where -- and you read the 25 autopsy report, and a bullet has been recovered from the
231 brain. There is a single gunshot wound. There is no 2 issue about has the pathologist misinterpreted an entrance 3 or an exit wound. 4 In that circumstance, the -- the paper- 5 based review is in fact adequate, in -- in my view, 6 unless something has been missed on -- on the photographs. 7 So -- but having said that, there -- there is now a -- a 8 emphasis placed upon reviewing primary data in the peer 9 review. 10 But, for example, not in all cases would we 11 review the histology. For example, in gunshot wound of 12 head, there's very little added value to looking at the 13 histology. If however, it is a complex case that involves 14 -- where the medicolegal opinions are closely linked to 15 the histology, that's a different matter. 16 COMMISSIONER STEPHEN GOUDGE: Right. 17 18 CONTINUED BY MS. LUISA RITACCA: 19 MS. LUISA RITACCA: Like a pediatric case? 20 DR. MICHAEL POLLANEN: Pediatric case 21 would be a good example, yes. 22 COMMISSIONER STEPHEN GOUDGE: Who makes 23 the call about the level of review? Is it the reviewer? 24 DR. MICHAEL POLLANEN: Actually that's 25 something that we discussed extensively, and we came to a
241 view that this is how the -- the process should work. I 2 just have to digress and tell you how it worked before. 3 The way -- way it worked before is the 4 pathologist sent the report to the Regional Coroner. The 5 Regional Coroner sent the report to the reviewing 6 pathologist. This added an additional layer which was of 7 no benefit in my view. 8 So what we have done now is that the 9 pathologist directly sends the material to the reviewing 10 pathologist and makes the decision what they believe to be 11 relevant in the review. 12 COMMISSIONER STEPHEN GOUDGE: Tells the 13 reviewer what to look at? 14 DR. MICHAEL POLLANEN: No. We'll say, 15 this is a gunshot wound case; I'm not sending you the 16 histology. So I'm just going to send you the photographs 17 in my report. 18 COMMISSIONER STEPHEN GOUDGE: Right. 19 DR. MICHAEL POLLANEN: And -- and if the 20 reviewing pathologist says, Well, you know, I disagree, I 21 want to see the histology, then the histology is sent. 22 But -- so in this way it becomes -- it becomes 23 pathologist- to-pathologist, and so the communication -- 24 the relevant communication is pathologist-to-pathologist. 25 And this has a number of -- in my view,
251 benefits. The first is, it establishes this type of 2 professional relationship which, I think, enhances the 3 quality. It provides a hard-wired mechanism within our 4 system for consultation. 5 COMMISSIONER STEPHEN GOUDGE: Right. 6 DR. MICHAEL POLLANEN: So if there is -- 7 is there is a controversial area that -- you know, there 8 might be, in fact, a phone call or an email exchange or 9 perhaps even sitting at the microscope together to sort 10 our the issue. 11 So this is -- I think this is very healthy. 12 And in that process the Regional Coroner is kept in the 13 loop. 14 COMMISSIONER STEPHEN GOUDGE: Okay. 15 DR. MICHAEL POLLANEN: Because that's an 16 important element in the system, because Regional Coroner 17 may get requests for the report, or -- and needs to know 18 what's happening in terms of the peer review. 19 COMMISSIONER STEPHEN GOUDGE: Who picks 20 the reviewer? 21 DR. MICHAEL POLLANEN: The -- well, it's - 22 - it's essentially determined by region. 23 COMMISSIONER STEPHEN GOUDGE: By the 24 Regional Director of the pathology centre? 25 DR. MICHAEL POLLANEN: Well what happens
261 is the -- the directors review the pathologists in the -- 2 in the Regional Centre. 3 COMMISSIONER STEPHEN GOUDGE: In their 4 centre? 5 DR. MICHAEL POLLANEN: Correct. 6 COMMISSIONER STEPHEN GOUDGE: I see. 7 DR. MICHAEL POLLANEN: And then the 8 director -- but if the director does the case, then it 9 gets sent to me. 10 COMMISSIONER STEPHEN GOUDGE: I see. 11 DR. MICHAEL POLLANEN: And I may review it 12 or I may redistribute it to another director. 13 COMMISSIONER STEPHEN GOUDGE: Okay. When 14 did this peer review mechanism begin? Sorry, Ms. Ritacca. 15 MS. LUISA RITACCA: Oh, that's all right. 16 COMMISSIONER STEPHEN GOUDGE: You're 17 probably going to ask these questions. 18 MS. LUISA RITACCA: Well, now I don't have 19 to. 20 DR. MICHAEL POLLANEN: Well, the -- the 21 last amendment which was essentially pathologist-to- 22 pathologist -- 23 COMMISSIONER STEPHEN GOUDGE: Yes. 24 DR. MICHAEL POLLANEN: -- was at the time 25 of these guidelines.
271 COMMISSIONER STEPHEN GOUDGE: Oh, '07? 2 DR. MICHAEL POLLANEN: Yes. 3 COMMISSIONER STEPHEN GOUDGE: And did the 4 peer review concept begin in '05 with your first iteration 5 of these guidelines? 6 DR. MICHAEL POLLANEN: In the manner that 7 I have talked about, yes. 8 COMMISSIONER STEPHEN GOUDGE: Yes. So 9 there was no structure to peer review prior to that? 10 DR. MICHAEL POLLANEN: That might be to -- 11 saying too much. And I -- I think I would -- I would 12 leave the details to Dr. Chiasson. 13 COMMISSIONER STEPHEN GOUDGE: Okay. Okay. 14 I had another question, it slipped my mind. I'm sure 15 it'll come back. Thanks. 16 17 CONTINUED BY MS. LUISA RITACCA: 18 MS. LUISA RITACCA: And, Dr. Pollanen, 19 before you move off of peer review, there has been some 20 discussion about the benefit of conducting blind reviews. 21 Do you have any views as to the advantages 22 or disadvantages to that within your system? 23 DR. MICHAEL POLLANEN: Well, I -- I think 24 people would detect my reports, for example. And -- and I 25 think because we're such a small network, we would be able
281 to detect by style and length, in some circumstances, 2 whose report we were reviewing, so I wonder if a blind 3 review would be actually feasible. 4 The other -- and just to let you know, as 5 well, because I'm -- I'm on the Centre of Forensic Science 6 Advisory Committee where they all -- they try to do blind 7 testing, as well, as part of their proficiency, and 8 forensic scientists are very good at detecting deception 9 in that way. 10 So, in other words, the -- the blind -- 11 COMMISSIONER STEPHEN GOUDGE: They'd 12 probably do DNA testing on paper or something -- 13 DR. MICHAEL POLLANEN: It's possible. So 14 -- so blind reviews are actually very difficult to 15 construct in -- in forensic science, let alone forensic 16 pathology, so I think it would be very challenging to do 17 that. 18 19 CONTINUED BY MS. LUISA RITACCA: 20 MS. LUISA RITACCA: What about -- we've 21 heard here -- a external blind review? 22 DR. MICHAEL POLLANEN: Well, the -- the 23 problem there is, again, that the, as you've probably 24 realized by looking at the -- of the extended players in 25 this Inquiry, the forensic pathology community globally is
291 very small. 2 I'm not to -- not to say that we all know 3 one another, but there is -- there is a chance, for 4 example, that you would not be able to sufficiently blind 5 reports, even in that circumstance. 6 We'd have a -- you'd have a greater chance 7 of doing so, but this raises another very interesting 8 issue, and that is that, what is the goal of the review? 9 If the goal of the review is to assess the adequacy of a 10 narrative opinion and you send the report to many US 11 centres, they don't produce narrative opinions in the 12 first instance. 13 So the -- you're asking people to review a 14 level of practice or quality that is not in their own 15 system, so that introduces another problem. It -- it must 16 be said, as well, that -- so everybody has a very balanced 17 view of this, there is no system in Canada that has the 18 level of review that we currently enjoy. 19 And in fact, the -- the level of review 20 that was provided, for example, ten (10) years ago in the 21 Province of Ontario, that level of review is not in place 22 across the country. 23 So -- so, Ontario really is a standout in 24 terms of the level of review that, currently and 25 historically, has existed and the level of scrutiny on
301 that review is being increased. 2 COMMISSIONER STEPHEN GOUDGE: Right. 3 What's the -- what's the end product of the review; is it 4 I agree or disagree, or the report is within the bounds of 5 reason, or something all together different? 6 MS. LUISA RITACCA: It -- it may be 7 helpful -- 8 COMMISSIONER STEPHEN GOUDGE: Sorry. 9 10 CONTINUED BY MS. LUISA RITACCA: 11 MS. LUISA RITACCA: Oh, no, no, and I 12 don't -- I don't -- Commissioner, if Mr. Registrar turns 13 up page 52, am I right, Dr. Pollanen -- 14 DR. MICHAEL POLLANEN: Yes. 15 MS. LUISA RITACCA: -- of your guidelines? 16 That may help him answer your question. 17 COMMISSIONER STEPHEN GOUDGE: Okay. So 18 this is -- this is what is filled in by the reviewer? 19 DR. MICHAEL POLLANEN: Yes. I -- I should 20 say, however, this is what's filled in by the reviewer if 21 all of the columns are "yes", but if, for example, the -- 22 on, for example, the lower portion, "Review of Expert 23 Opinion", if the columns are ticked "no", then a separate 24 process has to be engaged. 25 COMMISSIONER STEPHEN GOUDGE: "Agree with"
311 means I think it's the right report, as opposed to I think 2 it's within the bounds of reason. 3 DR. MICHAEL POLLANEN: Yes. I think that 4 this feeds probably back into a lot of our conversation or 5 discussion that we had yesterday, and that is that the -- 6 what we hope to capture in this report is that there is a 7 sufficient level of agreement. 8 COMMISSIONER STEPHEN GOUDGE: It does feed 9 back into our discussion yesterday. Okay. I don't want 10 to take you off that. 11 12 CONTINUED BY MS. LUISA RITACCA: 13 MS. LUISA RITACCA: And, Dr. Pollanen, I'm 14 going to ask you one (1) more question on -- on this topic 15 and then move very quickly onto one (1) last one (1), I 16 hope, and that this, and I think I -- I set up my question 17 to you, if you could help us understand how this early 18 peer review process helps ensure quality at the later 19 stages of -- of the pathologist involvement in the 20 criminal justice process? If you could deal with that 21 very briefly. 22 DR. MICHAEL POLLANEN: The issue here, 23 essentially, is that we identified that peer review of 24 autopsy reports was a very good step, but it, in fact, 25 required an even earlier step.
321 And that was a step of -- of review, or, at 2 least, communication at the time or shortly after the 3 post-mortem. So right now what happens in -- in one (1) 4 of the regional forensic pathology units, in a homicide or 5 criminally suspicious case, we are given fax notification 6 of the post-mortem, a brief history and what the 7 preliminary conclusions were if the cause of death was 8 pending or if the cause of death was given. 9 And that is discussed in our morning round. 10 It represents an opportunity for me or other people in the 11 -- in our department to initiate contact with the 12 pathologist in the regional unit. 13 MS. LUISA RITACCA: And we won't go into 14 the other two (2) of the four (4) components to your 15 quality assurance system now. We'll leave that for the 16 next time you're here, and that's a more fulsome 17 discussion about the guidelines and your roles in 18 consultations. 19 I have another few questions in my time 20 remaining. Mr. Cavalluzzo, yesterday, asked you whether 21 you thought it would be a good idea to have a roster of 22 pathologists available to perform cases. 23 And you agreed that a roster like the Home 24 Office list, that we heard about from Drs. Crane and 25 Milroy, would be a good idea. I also understood Mr.
331 Cavalluzzo to say, however, that the Chief Forensic 2 Pathologist be the person to certify the pathologists who 3 are on the list and to effectively run the list. 4 Do you agree that the Chief Forensic 5 Pathologist, you in this case, should take on that role? 6 DR. MICHAEL POLLANEN: No. 7 MS. LUISA RITACCA: And who should manage 8 the list? 9 DR. MICHAEL POLLANEN: It should be a 10 Board. 11 MS. LUISA RITACCA: And who should make up 12 the Board? 13 DR. MICHAEL POLLANEN: Well, the 14 participants on the Board would include the Chief Forensic 15 Pathologist, the Chief Coroner; I would say players from 16 the criminal justice system in vari -- and in various 17 forms. But -- and -- and those people should actually 18 form the body that vets people's appointment or 19 reappointment to the list. 20 And would also form this -- a body to take 21 people off the list. The -- the Chief Forensic 22 Pathologist role would be in the management of the list. 23 So, for example, making sure that reappointment processes 24 were in place. 25 For example, if one (1) of the requirements
341 is going to be continuing medical education, the Chief 2 Forensic Pathologist should be provided the resources to 3 allow that continuing medical education to occur, and to 4 encourage it and to monitor it. 5 MS. LUISA RITACCA: Dr. Pollanen, we heard 6 from Drs. Milroy and Crane about the Royal College's Code 7 of Practice and Performance Standards for forensic 8 pathologists. And that's at Tab 26 of your binder; 9 PFP149750. 10 Is there such a code of practice in 11 Ontario? 12 DR. MICHAEL POLLANEN: No. 13 MS. LUISA RITACCA: Is there such a code 14 of practice anywhere in Canada? 15 DR. MICHAEL POLLANEN: No. 16 MS. LUISA RITACCA: If I can take you to 17 Tab 8 of your binder, that's PFP137590, Mr. Registrar. 18 This is a letter -- an open letter from you regarding the 19 Canadian Association of Pathologists, Forensic Pathology 20 section. 21 Can you explain what -- what this 22 association is, and in particular, what the forensic 23 pathology section is? 24 DR. MICHAEL POLLANEN: The Canadian 25 Association of Pathologists is simply the National
351 Professional Organization for Pathologists. And the 2 organization has multiple sections essentially correlating 3 to the major areas of laboratory medicine. 4 And traditionally there has not been a 5 forensic pathology section. So in -- in March of this 6 year, I -- I wrote to the membership suggesting that we 7 create a section, a forensic pathology section. I thought 8 that that would be a better approach than creating a 9 Canadian Association of Forensic Pathologists; essentially 10 start off with our parent organization as a section. 11 And I asked the members to nominate the 12 section; to vote in a section. And now that section has 13 been voted in, and I am constituting an executive 14 committee and that -- it is -- it's my hope that the 15 Canadian Association of Pathologists will then take a 16 leadership role in developing various platforms for 17 forensic pathology that are relevant across Canada. 18 MS. LUISA RITACCA: And what role do you 19 hope to see this organization in -- having development of 20 a code or standards of practice, much like the Royal 21 College's code? 22 DR. MICHAEL POLLANEN: I think there's a 23 direct analogy. I think that the -- that codes of 24 practice and standards of this type are best led by the 25 professional organizations.
361 MS. LUISA RITACCA: Why do you feel that? 2 DR. MICHAEL POLLANEN: Because they're -- 3 they represent issues or imperatives that are -- that go 4 across the country. It's not simply an Ontario or a 5 Toronto issue; it's a -- it's an issue that effects the 6 profession, in general, and we need to develop some 7 leadership envision on that level across Canada. 8 MS. LUISA RITACCA: Okay. And do you see 9 any role for the Office of the Chief Coroner to play in 10 the development of this code? 11 DR. MICHAEL POLLANEN: I do, insofar as I 12 would like to have some time to devote to it in -- in my 13 role, and I see our resources and experience in -- in 14 Ontario in forming the code. 15 MS. LUISA RITACCA: And finally, Dr. 16 Pollanen, we have heard you, only briefly, talk about your 17 success in securing a Fellow who will start, as I 18 understand, is training at your unit in July of 2008. 19 Could you please provide the Commissioner 20 with more information about your efforts, and in 21 particular, could you tell us how your plans for the 22 development of a fellowship program fit into your quality 23 assurance system? 24 DR. MICHAEL POLLANEN: Well, I -- I've had 25 a fellowship program for -- for -- it's in its third year
371 now. I've train -- I'm training my third Fellow, but 2 these are international Fellows, so we'd have an -- we 3 haven't trained any Canadian Fellows, or at least I 4 haven't. 5 And with the Royal College initiative, we 6 now have sub-specialty in forensic pathology, so we're now 7 training two (2) Fellow -- we will start training two (2) 8 Fellows next summer, and these are from Canadian residency 9 programs. 10 And I believe that's, as I've indicated at 11 the beginning of yesterday, the fundamental issue in 12 forensic pathology, in terms of the workforce. I mean, 13 the only way we're going to produce a domestic workforce 14 is by through -- is by education, and defining the funds 15 for that is quite difficult. 16 In the circumstance of my previous Fellows, 17 my international Fellows, I've essentially had to 18 creatively find people that would -- were willing to 19 support this initiative and the University has 20 contributed; the Office of the Chief Coroner has 21 contributed. 22 And I would hope, for example, that we 23 would have a budget for Fellows in the future. In other 24 words, I -- I would see my department training two (2) 25 Fellows each year, and therefore, we would need to have
381 salaries to support fellowship training, so I think that's 2 important. 3 And just very briefly, how I see that being 4 relevant to our quality processes, I see it as integral 5 because producing forensic -- high quality forensic 6 pathology, in my view, is greatly facilitated by 7 representing in a department, the entire training 8 spectrum; from people in very junior capacities, to people 9 in very senior capacities. 10 And that produces a healthy environment to 11 exchange ideas, and it provides reasonable skepticism 12 along the way. So I think it's an integral part of 13 developing a healthy approach is to have the entire 14 training spectrum represented in the department. 15 MS. LUISA RITACCA: Thank you, Dr. 16 Pollanen. 17 COMMISSIONER STEPHEN GOUDGE: Thanks -- 18 MS. LUISA RITACCA: Sure. 19 COMMISSIONER STEPHEN GOUDGE: -- Ms. 20 Ritacca. Just a couple of questions before Mr. Ortved, 21 Dr. Pollanen. 22 I take it you are confident if the places 23 were there, the Fellows will come? 24 DR. MICHAEL POLLANEN: I have no doubt 25 about that.
391 COMMISSIONER STEPHEN GOUDGE: Okay. What 2 role does the Royal College have, in your view, in the 3 future in preparing guidelines? I mean, why would you go 4 to the Professional Association rather than to the Royal 5 College? 6 DR. MICHAEL POLLANEN: Our Royal College 7 provides for certification. It sets standards for -- 8 COMMISSIONER STEPHEN GOUDGE: It doesn't 9 do guidelines? 10 DR. MICHAEL POLLANEN: No. 11 COMMISSIONER STEPHEN GOUDGE: Okay. Is 12 the Royal College in England; does it have the 13 certification power as well as setting guidelines? 14 DR. MICHAEL POLLANEN: Yes. 15 COMMISSIONER STEPHEN GOUDGE: So it does 16 both? 17 DR. MICHAEL POLLANEN: Yes. 18 COMMISSIONER STEPHEN GOUDGE: Okay. Third 19 question is what role does or should the Chief Forensic 20 Pathologist have in the selecting of a particular 21 pathologist for a difficult case? 22 DR. MICHAEL POLLANEN: A major role. 23 COMMISSIONER STEPHEN GOUDGE: And does 24 that happen now? 25 DR. MICHAEL POLLANEN: Variably.
401 COMMISSIONER STEPHEN GOUDGE: And it is a 2 consultative role with the Regional Pathologist? 3 DR. MICHAEL POLLANEN: With the Regional 4 Coroner. 5 COMMISSIONER STEPHEN GOUDGE: With the 6 Regional Coroner. Should it be the last -- should it be 7 the ultimate call? Should the Chief Forensic Pathologist, 8 in your view -- I mean, is that part of quality assurance? 9 DR. MICHAEL POLLANEN: Yes. 10 COMMISSIONER STEPHEN GOUDGE: And should 11 the Chief Forensic Pathologist have the final say? 12 DR. MICHAEL POLLANEN: Yes. 13 COMMISSIONER STEPHEN GOUDGE: Okay. How 14 would that be effected? How would that be put in place? 15 DR. MICHAEL POLLANEN: Communication. 16 COMMISSIONER STEPHEN GOUDGE: No, but is 17 it -- would you need a guideline? Would you need an 18 agreement with Regional Coroners? 19 DR. MICHAEL POLLANEN: I think it would be 20 encompassed by policy. 21 COMMISSIONER STEPHEN GOUDGE: Okay. 22 Thanks. Ms. Langford...? 23 24 CROSS-EXAMINATION BY MS. JANE LANGFORD: 25 MS. JANE LANGFORD: Thank you, Mr.
411 Commissioner. Good morning, Dr. Pollanen. 2 DR. MICHAEL POLLANEN: Good morning. 3 MS. JANE LANGFORD: Dr. Pollanen, you 4 have, very thoughtfully and articulately, described the 5 systemic issues that are revealed by the eighteen (18) 6 overview reports, and your insight is appreciated. 7 But notwithstanding your recent comment 8 that Ontario was a standout, your incisive analysis could 9 be characterized as an unequivocal indictment of the 10 institutional support offered to pathologists practising 11 in forensic medicine for the past four (4) decades. 12 Would you agree with that characterization? 13 DR. MICHAEL POLLANEN: I would say that 14 forensic pathology has lagged behind in -- in -- compared 15 to other branches of -- of medicine and in laboratory 16 medicine. And the -- that process has been facilitated by 17 the lack of resources. 18 There are certain administrative and policy 19 issues that are correlated with that. The fact that we 20 function in a diverse environment; Criminal Justice 21 System, hospital environ -- environments, medical 22 environments. I think there are -- there are many factors 23 which -- which influence that. Yes. 24 MS. JANE LANGFORD: Well -- and to explore 25 some of those factors that you have reported in your
421 review. There were no academic departments or research 2 programs, institutes or centres of forensic medicine in 3 Canada during the past four (4) decades? 4 DR. MICHAEL POLLANEN: Correct. 5 MS. JANE LANGFORD: And there were no 6 university-appointed academic forensic pathologists in any 7 Canadian University? 8 DR. MICHAEL POLLANEN: With research 9 programs, yes. 10 MS. JANE LANGFORD: And there were no 11 substantive post-graduate training programs? 12 DR. MICHAEL POLLANEN: Correct. 13 MS. JANE LANGFORD: There were no 14 substantive continuing education programs? 15 DR. MICHAEL POLLANEN: There were some, 16 but not widespread and well-supported. 17 MS. JANE LANGFORD: Or fully developed? 18 DR. MICHAEL POLLANEN: Correct. 19 MS. JANE LANGFORD: And there were no 20 developed or formal guidelines, standards or codes of 21 practice for forensic pathologists in Canada? 22 DR. MICHAEL POLLANEN: Correct. That's 23 correct, yes. 24 MS. JANE LANGFORD: And there was no 25 national attention to recruitment, workloads or
431 remuneration for pathologists doing forensic work? 2 DR. MICHAEL POLLANEN: Correct. 3 MS. JANE LANGFORD: And no internationally 4 or even nationally recognized mentors for pathologists to 5 go to for guidance and advice? 6 DR. MICHAEL POLLANEN: I think that's 7 true. I would have to say, in all fairness to my 8 colleagues though, that there have been individual 9 forensic pathologists in our history that have been very 10 influential in developing good practices and have, to some 11 extent, service -- had provided mentorship to others. 12 So, it's not a -- it's not a broad-scale 13 indictment of every forensic pathologist in the history of 14 Canada. I would say that in Ontario, and in Canada, in 15 general, but I can speak about Ontario specifically, one 16 of the -- one of the major strengths that we enjoy is very 17 committed forensic pathologists. 18 Despite the fact there may not be a lot of 19 resource commitment or educational commitment, forensic 20 pathologists -- people that undertake this work are 21 extremely committed to -- to it, and will often go beyond 22 the call of duty in performing their functions. 23 And I'm thinking about people like Dr. 24 Shkrum, Dr. Rao (phonetic), Dr. King, who have had a long 25 service. We mentioned Dr. Jaffe even. These people have
441 had a long history and long professional commitments to 2 forensic pathology. 3 MS. JANE LANGFORD: And despite the level 4 of commitment, which I take it you don't disagree that my 5 client has demonstrated a commitment to forensic work, 6 irrespective of your views of some of his work? 7 DR. MICHAEL POLLANEN: Clearly. 8 MS. JANE LANGFORD: And practising in the 9 vacuum, the institutional vacuum that -- that you've 10 described in your review, I take it you would agree with 11 me that even the most dedicated, committed, or talented 12 pathologists would struggle with the -- in the absence of 13 that institutional support? 14 DR. MICHAEL POLLANEN: I would agree with 15 that, yes. 16 MS. JANE LANGFORD: And the outcome in 17 these cases you've described as predictable, and I take it 18 that what you mean by that is that mistakes were virtually 19 inevitable in light of the institutional gaps? 20 DR. MICHAEL POLLANEN: Well, I think 21 because of many factors. I don't think it's a stretch to 22 say that if you are a self-taught sub-specialist, you have 23 a higher chance of getting into difficulties with 24 misdiagnosis compared to a sub-specialist who is trained 25 and certified.
451 And it often is helpful to remove this 2 issue from forensic pathology and put it into another 3 aspect, for example, lets look at pediatric neurosurgery. 4 I mean, it's -- it's quite clear that nobody would 5 advocate to have self-taught pediatric neurosurgeons or 6 self-taught cardiovascular surgeons. 7 These -- the appropriate institutional and 8 national response to developing a work force in -- in any 9 of those sub-specialties would be organized platforms, 10 training programs, standards. And we simply, for some 11 reason, and I'm not sure what all the factors are, for 12 some reason, it's just not happened in forensic pathology. 13 MS. JANE LANGFORD: Thank you. I'm going 14 to leave the institutional vacuum to others to canvas with 15 you. I want to focus -- 16 COMMISSIONER STEPHEN GOUDGE: Just let me 17 ask two (2) questions, Ms. Langford. I hear you saying, 18 Dr. Pollanen, that there were two (2) contextual things 19 among the others that you've recited. And one (1) is the 20 self-taught risk and the other is the lack of 21 institutional support? 22 DR. MICHAEL POLLANEN: Yes. 23 COMMISSIONER STEPHEN GOUDGE: And both of 24 those are major signals? 25 DR. MICHAEL POLLANEN: At least
461 potentially. 2 COMMISSIONER STEPHEN GOUDGE: Yes. 3 DR. MICHAEL POLLANEN: I mean, it's not 4 inevitable that every self-taught forensic pathologist is 5 -- is going to make mistakes. 6 COMMISSIONER STEPHEN GOUDGE: No, but the 7 risk is heightened? 8 DR. MICHAEL POLLANEN: Yes, absolutely. 9 COMMISSIONER STEPHEN GOUDGE: And the same 10 with the institutional -- the absence of the institutional 11 supports you've described? 12 DR. MICHAEL POLLANEN: I agree with that, 13 yes. 14 COMMISSIONER STEPHEN GOUDGE: Okay. 15 Thanks. Thanks, Ms. Langford. 16 17 CONTINUED BY MS. JANE LANGFORD: 18 MS. JANE LANGFORD: I want to turn to your 19 follow-up on some of your comments on the growth of 20 knowledge in forensic pathology and the issues of 21 certainty in diagnostic criteria. 22 Last time you were here testifying, you 23 spoke of the fundamental tension between medicine and the 24 law in that the legal system would prefer answers to 25 remain the same, and yet medical knowledge grows.
471 And so what might have been reasonable 2 yesterday, might not be deemed reasonable today or indeed, 3 tomorrow. Do you recall that evidence? 4 DR. MICHAEL POLLANEN: Yes. 5 MS. JANE LANGFORD: And I take it you 6 would agree with me that we have to be cautious when 7 reaching conclusions about mistakes, that we aren't 8 looking through the retrospective scope with the benefit 9 of our knowledge today, that didn't exist yesterday? 10 DR. MICHAEL POLLANEN: That's true, yes. 11 MS. JANE LANGFORD: And I take it you 12 would also agree with me that many of the pathologic 13 issues in the twenty (20) cases that are the grounding of 14 this Inquiry, are what you as a trained forensic 15 pathologist would describe as quite complex? 16 DR. MICHAEL POLLANEN: Yes. 17 MS. JANE LANGFORD: And one (1) of the 18 reasons for that complexity is simply the state of the 19 science of pathology at this time. 20 DR. MICHAEL POLLANEN: Clearly one (1) of 21 the factors, yes. 22 MS. JANE LANGFORD: And yesterday you 23 spoke, for example, of various controversies in the 24 science, and you used, as probably the best example, the 25 Shaken Baby Syndrome and the short distance falls; and
481 that's one (1) of the complexities of the science? 2 DR. MICHAEL POLLANEN: Yes. 3 MS. JANE LANGFORD: And you also described 4 different thresholds of diagnostic criteria as another 5 complexity in the area. 6 DR. MICHAEL POLLANEN: Yes. 7 MS. JANE LANGFORD: But I take it you 8 would also agree with me that there are plain and simple 9 knowledge gaps and unanswered questions in the science of 10 pathology. 11 DR. MICHAEL POLLANEN: Yes. 12 MS. JANE LANGFORD: And these unanswered 13 questions are often unfortunately linked with legal 14 issues. 15 DR. MICHAEL POLLANEN: That is one (1) of 16 the major issues that generates the tension between the 17 medicine -- medicine and the law, yes. 18 MS. JANE LANGFORD: And in your review of 19 the overview reports -- and -- and perhaps, Mr. Registrar, 20 we could call up Dr. Pollanen's review, and specifically 21 page 3, and down towards the bottom half of the page, Mr. 22 Registrar. 23 You have a list here of issues. Now, Dr. 24 Pollanen, I sort of describe this as the laundry list of 25 what you've coined controversies, challenges, or enigmas
491 in forensic pathology. 2 And there are sixteen (16) listed there, 3 and I take it that's not an exhaustive list. 4 DR. MICHAEL POLLANEN: No. 5 MS. JANE LANGFORD: And you smile in the 6 sense that there's probably many, many more controversies, 7 challenges, or enigmas in the science. 8 DR. MICHAEL POLLANEN: Yes. 9 MS. JANE LANGFORD: Mr. Sandler took you 10 to four (4) of these issues: he took you to number 3, the 11 -- the Shaken Baby Syndrome; he took you to number 4, the 12 mechanical asphyxia issues; number 6, the challenge of 13 post-mortem artifacts; and number 9, the enigma of SIDS. 14 But I take it, sir, you would agree with me 15 that in fact it's fair to say that the twenty (20) cases 16 that we are looking at in this Inquiry encompass most of 17 the issues on that list? 18 And if I can help you, why don't we go 19 through just to -- just to see if I'm correct. 20 The first issue, the pathology of different 21 forms of acute and chronic physical child abuse; we 22 certainly had cases like Paolo, like Jenna, like Tiffani 23 where there were issues raised of physical child abuse, 24 correct? 25 DR. MICHAEL POLLANEN: I -- I agree, yes.
501 MS. JANE LANGFORD: And number 2, the 2 pathology of neglect and starvation; we had the Tiffani 3 case which raised issues about the that? 4 DR. MICHAEL POLLANEN: Yes. 5 MS. JANE LANGFORD: And number 5, issues 6 related to the medicolegal interpretation of multiple 7 fractures; that we had -- we saw that in the Paolo case? 8 DR. MICHAEL POLLANEN: Correct. 9 MS. JANE LANGFORD: And number 7, the 10 scope and limits on the use of histology for dating 11 injuries; we saw that in Jenna's case. 12 DR. MICHAEL POLLANEN: Yes. 13 MS. JANE LANGFORD: Number 10, the 14 criteria for live birth and separate existence; we have 15 that in Baby M and Baby F. 16 DR. MICHAEL POLLANEN: Yes. 17 MS. JANE LANGFORD: Number 13, time of 18 death; we have that in Valin's case. 19 DR. MICHAEL POLLANEN: Yes. 20 MS. JANE LANGFORD: Number 14, order of 21 injury infliction; we have that potentially in Jenna's 22 case. 23 DR. MICHAEL POLLANEN: Yes. 24 MS. JANE LANGFORD: And 16, forensic 25 philosophy of causation and uncertainty; that's some of
511 the issues that you were describing yesterday when we were 2 talking about diagnostic criteria, correct? 3 DR. MICHAEL POLLANEN: Yes. 4 MS. JANE LANGFORD: And so by my count of 5 these sixteen (16) controversies, challenges, or enigmas, 6 these twenty (20) case raise at least twelve (12) of those 7 issues. 8 DR. MICHAEL POLLANEN: At least. 9 MS. JANE LANGFORD: And I take it you 10 would agree many of those patho -- pathology issues in 11 these cases were not then, by any fair characterisation, 12 issues for which forensic pathology had straightforward 13 answers supported by clear diagnostic criteria and a 14 consensus amongst forensic pathology. 15 DR. MICHAEL POLLANEN: That perhaps would 16 be exceeding my -- my reasoning for -- for providing the 17 list. I would say that each of these areas represent 18 items that would be discussed in your typical forensic 19 textbook, and the -- many of them will have associated 20 with them cautions. 21 In addition, some of them would be the 22 subject of ongoing research. Some of them would be the 23 subject of ongoing frustration for forensic pathologists. 24 For example, in the -- if you look at the issue of time of 25 death, despite our best, best efforts, there's been very
521 little scientific progress in the area. 2 So, contemporary textbooks would identify 3 it as an issue, canvass progress, and come to the 4 conclusion that very little progress had been made in the 5 area. So -- so that is definitely true. 6 However, to pick an example, you might have 7 a case, for example, Jenna, Number 7, dating of injuries 8 where you might have a very healthy discussion about the 9 significance of dating -- histological dating of an injury 10 and come to the conclusion that this, in fact, is an 11 example where the histology provides the ability to 12 separate out two (2) time points. And those two (2) time 13 points then correlate with circumstantial information. 14 So -- so there is some complexity in the 15 area. 16 MS. JANE LANGFORD: Fair enough. I take 17 it, though, you would agree with me simply because there 18 are discussions in textbooks and published papers does 19 not, by any stretch of the imagination, suggest there is 20 clear diagnostic criteria and a consensus in the -- in the 21 practice of -- of -- amongst pathologists. 22 DR. MICHAEL POLLANEN: Well, there are, 23 for example, some situations in forensic pathology where 24 we have criteria. There are some circumstances in 25 forensic pathology where we have criteria and the criteria
531 are debated, such as the triad. 2 We have other circumstances where -- and 3 I'm thinking now about compression of the neck -- 4 MS. JANE LANGFORD: I'm going to come to 5 that -- 6 DR. MICHAEL POLLANEN: -- where -- 7 MS. JANE LANGFORD: -- that exact point. 8 DR. MICHAEL POLLANEN: -- where you have 9 what we -- what -- what we've called, traditionally, as 10 "hallmarks" or "cardinal signs" because we don't really 11 know how those translate into diagnostic criteria. So 12 that's quite complex. 13 MS. JANE LANGFORD: So there's a range? 14 DR. MICHAEL POLLANEN: There is a range, 15 yes. 16 MS. JANE LANGFORD: So let's look at some 17 of the areas of growth in knowledge and -- and some of the 18 issues where, I believe, there is not necessarily 19 certainty in diagnostic criteria. Okay? 20 I want to start with hypostatic hemorrhages 21 or "pseudo-bruises" is the term I prefer. You've already 22 testified that in Valin's case, in your opinion, some of 23 the pathologists who were involved at the original trial 24 misinterpreted the gravitational pooling of blood after 25 death as evidence of perimortem trauma.
541 DR. MICHAEL POLLANEN: Correct, yes. 2 MS. JANE LANGFORD: And as I understand 3 it, when we're talking about post-mortem lividity, we have 4 a spectrum. We have on the one (1) hand, very small 5 petechial hemorrhages, or things that appear to be 6 petechial hemorrhages. We have in the middle what you've 7 described as tardieu spots. And then, on the other end of 8 the spectrum, we have hypostatic hemorrhages or pseudo- 9 bruises. 10 DR. MICHAEL POLLANEN: Yes. 11 MS. JANE LANGFORD: And hypostatic 12 hemorrhages is one of your areas of research? 13 DR. MICHAEL POLLANEN: It is, yes. 14 MS. JANE LANGFORD: We've heard some 15 evidence that most pathologists are familiar with post- 16 mortem hypostatis -- stasis and do not confuse discoloured 17 livid skin with bruising. 18 You would agree with that? 19 DR. MICHAEL POLLANEN: Yes. 20 MS. JANE LANGFORD: But I take it you 21 would also agree with me, Dr. Pollanen, that when intense 22 lividity develops in gravitationally dependent parts of 23 the body, the autopsy diagnosis may be quite difficult. 24 DR. MICHAEL POLLANEN: Yes. The issue 25 being if you have hypostasis with these artifacts, the
551 challenge is to interpret the findings. 2 MS. JANE LANGFORD: And even with 3 knowledge of the dangers of confusing discoloured livid 4 skin with bruising, it can be difficult to distinguish the 5 pseudo-bruises, particularly when they appear in, 6 forensically important, parts of the body, such as the 7 neck and the head. 8 DR. MICHAEL POLLANEN: And, in fact, the 9 perineum, yes. 10 MS. JANE LANGFORD: And the perineum as 11 well. And you would agree with me that virtually nothing 12 is known about hypostatic hemorrhages, and their existence 13 is even questioned by some pathologists? 14 DR. MICHAEL POLLANEN: I would say that 15 many of the textbooks would describe this phenomenon. But 16 it represents a very important area of research in 17 forensic pathology largely because we need to develop 18 models to show that hypostatic hemorrhages do, in fact, 19 occur. And we need to develop methods to differentiate 20 pseudo-bruises from real -- from real bruises, because of 21 the issues that you raise. Because you -- you may be in a 22 circumstance where the medicolegally relevant conclusion 23 goes to, Is it a bruise or not a bruise? 24 It's such a fundamental question. We need 25 to develop approaches to sort that out -- empirical
561 approaches. 2 MS. JANE LANGFORD: And to the best of 3 your knowledge, you're one (1) of the first -- in fact, 4 it's never really been studied prior to your approach into 5 the research area? 6 DR. MICHAEL POLLANEN: I'd say that 7 there's been isolated attempts at looking at the problem, 8 but it would be fair to say that my approach is the first 9 experimental approach. 10 MS. JANE LANGFORD: And so, to date, 11 really our information about hypostatic bruising is 12 limited to anecdotal reports? 13 DR. MICHAEL POLLANEN: Yes. 14 COMMISSIONER STEPHEN GOUDGE: How do you 15 do experiments on them? 16 DR. MICHAEL POLLANEN: With ethical 17 consent first -- with ethical approval first -- 18 COMMISSIONER STEPHEN GOUDGE: I mean the 19 whole area is very difficult to build research programs 20 for? 21 DR. MICHAEL POLLANEN: Very difficult, but 22 not impossible. That's the point. The point is that we 23 have to engage these issues with an open mind creative 24 processes, and we will find solutions to these problems. 25 And I want to digress just for a moment to
571 tell you -- 2 COMMISSIONER STEPHEN GOUDGE: Sorry I 3 raised this, but it was a question I wanted to ask before. 4 DR. MICHAEL POLLANEN: So the -- the 5 hypostatic hemorrhage issue is a perfect example of an 6 area which is highly amenable to experimental 7 investigation. 8 So in the paper that -- that is due to 9 appear shortly in the literature, what I did was develop a 10 model to -- to induce hypostatic hemorrhages in the neck. 11 So what I did was I obtained from the medical school, 12 cadavers of the -- these are people that have donated 13 their body to science, not coroner's autopsies. 14 These are -- these are experiments done at 15 the University so -- where I'm appointed as well. And -- 16 so these are people that have donated their body to 17 science, and I've created a research protocol where, 18 essentially, -- and I'll -- I'll just telegraph this very 19 quickly. 20 Essentially, what we're doing is we're 21 reconstructing Valin -- Valin's scene. And -- and what I 22 demonstrated in that circumstance, is that you can produce 23 the hallmarks of strangulation simply by gravity. 24 By -- by creating hypostasis in the neck, 25 you can create pseudo-bruising that, at least, on a
581 superficial examination, both by dissection and by 2 histologic examination, appears indistinguishable from 3 bruising that one might get with manual strangulation. 4 And now the challenge is to -- the 5 challenge for me is to now take that research into the 6 next step where we look at developing methods with this 7 model to differentiate real bruises from pseudo-bruises 8 that requires things like research funding and time and 9 graduate students and so on. 10 So that's the -- that's the issue with 11 hypostatic hemorrhage; experimental models. One (1) -- I 12 -- in my view, one (1) of the ways that we'll get out of 13 the shaken baby debate, which is a soluble debate in my 14 view, is through creative use of experimental approaches 15 as well as modelling approaches such as biomechanics, 16 animal models, perhaps, in vitro approaches. 17 There -- all of these questions are 18 ultimately soluble. That may perha -- may be, perhaps, an 19 overly optimistic view, but in my view there -- there's a 20 lot of work -- productive work to be done on the 21 investigative or experimental end. 22 COMMISSIONER STEPHEN GOUDGE: I can 23 understand the modelling. Experiments I have difficulty 24 understanding, if one means, by that, shaking babies? 25 DR. MICHAEL POLLANEN: Well, obviously,
591 you wouldn't shake babies. You might shake developing 2 animals, for example. 3 COMMISSIONER STEPHEN GOUDGE: I see. 4 Okay. Thanks, Ms. Langford. 5 MS. JANE LANGFORD: Thank you. 6 7 CONTINUED BY MS. JANE LANGFORD: 8 MS. JANE LANGFORD: Turning to another 9 issue that Mr. Sandler didn't ask you about, in terms of 10 growing knowledge, and that is in the Joshua case, the 11 issue of developing cranial sutures. 12 Now you and others have opined that Dr. 13 Smith was mistaken in his interpretation of the histologic 14 sections of the skull as being a healing skull fracture, 15 and you opined that microscopically what is demonstrated 16 is a developing cranial suture. 17 Do you recall that? 18 DR. MICHAEL POLLANEN: Yes. 19 MS. JANE LANGFORD: All right. And I take 20 it from your review of the overview reports and from your 21 post-conviction review in this case, you will recall that 22 in Dr. Smith's evidence he acknowledged that there was no 23 photographic evidence of the skull fracture. 24 DR. MICHAEL POLLANEN: Correct. 25 MS. JANE LANGFORD: And he acknowledged
601 that three was no radiographic evidence of the skull 2 fracture -- 3 DR. MICHAEL POLLANEN: Correct. 4 MS. JANE LANGFORD: -- and no 5 contemporaneous documentary evidence of the skull 6 fracture. 7 DR. MICHAEL POLLANEN: Correct. 8 MS. JANE LANGFORD: And I think your 9 understanding, as stated in your report, was that Dr. 10 Smith unexpectedly discovered the skull fracture while 11 looking at the histological slides prior to trial. 12 DR. MICHAEL POLLANEN: Correct. 13 MS. JANE LANGFORD: And, Mr. Registrar, if 14 we could just turn briefly to PFP143053. And I'm not 15 going to take you to the binder because it's just a brief 16 section from the overview report, Dr. Pollanen. Page 73. 17 And if I could just look at that large 18 paragraph in the middle -- this is an excerpt from Dr. 19 Smith's evidence in the Joshua case -- and you'll see, and 20 I'll just read it out, he's being asked about the skull 21 fracture at this stage in the proceeding. 22 And he says: 23 "The other things which I've struggled 24 with is why I missed the fracture, and 25 because I don't have any radiographic
611 evidence of its presence, why a 2 radiologist could have missed it. There 3 are variations in that pattern of 4 sutures of an infant's skull which 5 creates small bones called wormian 6 bones, and they can easily be and 7 they're not an infrequent finding and 8 it's easy to mistake a wormian bone for 9 a fracture or vice versa. And they tend 10 also to occur towards the back, towards 11 the lamboid suture. 12 So I'm wondering if I mean it could well 13 be that this simply looked like a 14 variation in the normal suture of an 15 infant, if there was anything, but my 16 problem is, because I don't know for 17 sure there was anything there, I didn't 18 -- I took a random sample." 19 Do you see that section? 20 DR. MICHAEL POLLANEN: I do, yes. 21 MS. JANE LANGFORD: Now, Dr. Pollanen, 22 leaving aside your issue of review ability in this case, 23 which I recognise is a concern that you've raised, you 24 would agree with me that Dr. Smith, in that excerpt, 25 appears to have acknowledged the possibility that what he
621 was seeing in -- in the slide was indeed a cranial -- 2 developing cranial suture. 3 DR. MICHAEL POLLANEN: He is almost there. 4 This is the -- this is the remarkable thing in this case, 5 is that what Dr. Smith is demonstrating is an engagement 6 with the issue. He's thinking about wormian bones, he's - 7 - he's thinking about sutures and fractures, but he 8 doesn't take it the next step, and this is our challenge 9 systemically. 10 I mean, I'm not interested in -- in 11 dissecting all of this; what I'm interested in are 12 systemic challenges. And what I would say is that when -- 13 when a pathologist is in this position we need to create 14 an environment where we show that slide to one another. 15 We -- we say, I have -- I wonder if this is 16 the edge of a wormian bone: should we get the x-rays 17 reviewed? what more can we do? are there any special 18 stains? can we review the literature?; that's the 19 important message here. 20 MS. JANE LANGFORD: And indeed, in your 21 review of the overview reports you've noted that there 22 appeared to be a lack of collaboration available to Dr. 23 Smith during many of these cases. 24 DR. MICHAEL POLLANEN: Well, I would say 25 that collaboration is a two (2) way street.
631 MS. JANE LANGFORD: Fair enough. 2 DR. MICHAEL POLLANEN: So, you have to 3 have collaborators, people to consult, and you have to be 4 willing to consult and take in other people's views. 5 MS. JANE LANGFORD: Fair enough, fair 6 enough. On the issue of developing cranial sutures, 7 though, you would agree with me that the development of 8 the human cranial sutures is not very well understood, and 9 in particular, there is little information about the 10 histologic stages of suture development? 11 DR. MICHAEL POLLANEN: Most of our -- most 12 of our information comes from rats, yes. 13 MS. JANE LANGFORD: Okay. And I think you 14 noted in your review report and -- that in your research 15 that you conducted for the post-conviction review, you 16 discovered some studies that were focussing on the 17 developing rat skull. 18 DR. MICHAEL POLLANEN: Correct, yes. 19 MS. JANE LANGFORD: And while we're 20 looking at -- talking about those studies, you indicated 21 that the majority of those studies were published in the 22 last ten (10) years? 23 DR. MICHAEL POLLANEN: I believe so, yes. 24 MS. JANE LANGFORD: And at least the ones 25 that I see in your review -- post-conviction consultation
641 report -- you would agree with me that these studies are 2 not published in high-impact forensic pathology journals. 3 DR. MICHAEL POLLANEN: There are no high- 4 impact forensic pathology journals. 5 MS. JANE LANGFORD: Fair enough. But even 6 amongst -- fair enough -- but even amongst pathology 7 journals, the Journal of Bone and Mineral Research would 8 not rank high on a forensic pathologist's reading list. 9 DR. MICHAEL POLLANEN: The editor of that 10 journal may beg to differ, but -- 11 MS. JANE LANGFORD: Okay. 12 DR. MICHAEL POLLANEN: -- but I would 13 agree, yes. 14 MS. JANE LANGFORD: All right. And -- 15 and, likewise, current topics in developmental biology? 16 DR. MICHAEL POLLANEN: Not on the reading 17 list of most forensic pathologists. 18 MS. JANE LANGFORD: Or, the one (1) which 19 -- the extended name, I'm not sure, but I think it's 20 Orthodental Cranial Facial Research. 21 DR. MICHAEL POLLANEN: Again, same 22 applies. 23 MS. JANE LANGFORD: Not on the reading 24 list of a -- of your average forensic pathologist? 25 DR. MICHAEL POLLANEN: But on the
651 searchable database of everyone. 2 MS. JANE LANGFORD: Absolutely. 3 Absolutely. And what you have indicated that those 4 studies reveal is that at some stages of cranial suture 5 development, the histologic appearance is strikingly 6 similar to a healing skull fracture. 7 DR. MICHAEL POLLANEN: It is, yes. 8 MS. JANE LANGFORD: And that's not 9 surprising, as you've indicated, because the biological 10 processes are identical. 11 DR. MICHAEL POLLANEN: Correct. 12 Essentially creating new bone. A healing fracture is -- 13 you're creating new bone across the gap and -- and 14 developing suture is the same process; you're laying down 15 bone at that site. 16 MS. JANE LANGFORD: Now I want to come 17 back to your comments about diagnostic criteria and neck 18 compression. 19 You will recall, Dr. Pollanen, that all of 20 Doctors Rasaiah, Smith, Ferris and Jaffe testified in 21 Valin's case that they could not exclude the possibility 22 that Valin died from manual strangulation. 23 DR. MICHAEL POLLANEN: I'm not sure ex -- 24 there was a spectrum of discussion on various forms of 25 asphyxia that included neck compression. I'm not sure
661 exactly how this all came in the record, but essentially, 2 I agree. 3 MS. JANE LANGFORD: I can -- I can take 4 you to, if you -- if you want the -- the I think the point 5 is that -- 6 DR. MICHAEL POLLANEN: I don't dispute 7 that. 8 MS. JANE LANGFORD: -- there's a range of 9 -- of opinions, fair enough, but that they all indicated 10 that they couldn't exclude the possibility of manual 11 strangulation. 12 DR. MICHAEL POLLANEN: I'm sure that's the 13 case, yes. 14 MS. JANE LANGFORD: Okay. And -- and you 15 may recall that Dr. Ferris went so far as to testify that 16 the external and internal bruisings to the neck sustained 17 at or around the time of death, taken in conjunction with 18 facial hemorrhages, could be, quote: 19 "...reasonably interpreted as evidence 20 of manual strangulation." 21 You recall that? 22 DR. MICHAEL POLLANEN: I -- I don't recall 23 it, but if it's from the transcript, I accept it. 24 MS. JANE LANGFORD: Okay. And whether or 25 not you agree with inter -- these interpretations, Dr.
671 Pollanen, I take it you would agree with me that there 2 were, in fact, a number of cases in the twenty (20) in 3 which the issue of a potential neck compression was, in 4 fact, a discussion point. 5 So, for example, in Tamara, one (1) of the 6 post-mortem findings was an area of hemorrhage in the left 7 sternoid mastal -- muscle which raised, at least, a 8 discussion of a possible neck compression. 9 Do you recall that? 10 DR. MICHAEL POLLANEN: I would say that 11 any case with a fin -- a positive finding in the neck -- 12 bruising, hemorrhage -- would raise that issue. 13 MS. JANE LANGFORD: Okay. And so if I 14 were to tell you that, in fact, one (1) of the findings in 15 Tamara was this left sternomastoid muscle -- a hemorrhage 16 in -- in that muscle, or at least a finding of that -- it 17 wouldn't surprise you that there had been a discussion 18 about possible neck compression. 19 DR. MICHAEL POLLANEN: I wouldn't be 20 surprised, no. 21 MS. JANE LANGFORD: And likewise, in the 22 Paolo case, there was a post-mortem finding of microscopic 23 hemorrhage in the muscle tissue adjacent to the thyroid 24 gland, and that gave rise to a discussion of possible neck 25 compression.
681 DR. MICHAEL POLLANEN: Yes. 2 MS. JANE LANGFORD: And Joshua; a post- 3 mortem finding of hemorrhage to the connective tissues of 4 the neck, seen microscopically, gave rise to the same 5 discussion, correct? 6 DR. MICHAEL POLLANEN: Yes. 7 MS. JANE LANGFORD: Now, you would agree 8 with me, sir, that in the 1990s, there were no universally 9 recognized diagnostic criteria for homicidal neck 10 compression? 11 DR. MICHAEL POLLANEN: And still do not 12 exist today. 13 MS. JANE LANGFORD: And I take it that one 14 (1) of the problems is that the signs of strangulation 15 form a spectrum of degree from minimal to marked. 16 DR. MICHAEL POLLANEN: I remember writing 17 that sentence, yes. 18 MS. JANE LANGFORD: Perfect. You're on to 19 me. It's always safe to give -- give the witness their 20 own words. 21 COMMISSIONER STEPHEN GOUDGE: Always quote 22 the witness, eh? 23 24 CONTINUED BY MS. JANE LANGFORD: 25 MS. JANE LANGFORD: And I take it then,
691 you would also agree with me that there's no consensus 2 amongst pathologists as to the minimal number and nature 3 of lesions that is required to make a diagnosis of 4 homicidal neck compression? 5 DR. MICHAEL POLLANEN: It represents one 6 of those pitfall areas in forensic pathology, yes. 7 MS. JANE LANGFORD: And little scientific 8 investigation has been published on this issue? 9 DR. MICHAEL POLLANEN: Yes. 10 MS. JANE LANGFORD: Apart from some of 11 your own articles? 12 DR. MICHAEL POLLANEN: Well, there are a 13 lot of people publishing in that area, but I agree. I 14 think that there is a -- it's one of the major pitfall 15 areas that is readily identifiable in forensic pathology 16 and would benefit from more research. 17 MS. JANE LANGFORD: And so a pathologist 18 is in a tough spot when faced with findings that might 19 represent elements of homicidal neck compression? 20 DR. MICHAEL POLLANEN: Yes. Or the 21 exclusion of that. 22 MS. JANE LANGFORD: Or the exclusion of 23 that. Fair enough. And this challenge is exacerbated by 24 the challenges presented to a pathologist in interpreting 25 post-mortem artifacts?
701 DR. MICHAEL POLLANEN: Yes. 2 MS. JANE LANGFORD: And the area of the 3 neck, I take it, is an area where the pitfalls of post- 4 mortem artifacts are particularly acute? 5 DR. MICHAEL POLLANEN: Yes. 6 MS. JANE LANGFORD: And I take it you 7 would agree with Dr. Cordner's paper, which is hot off the 8 press, for this inquiry that although familiarity with 9 post-mortem artifacts is part of the essential experience 10 of a forensic pathologist, there is relatively little 11 written on them in major texts and too little has been 12 done to explore them in detailed research. 13 DR. MICHAEL POLLANEN: I agree. 14 MS. JANE LANGFORD: And even the wary can 15 fall prey to a post-mortem artifact? 16 DR. MICHAEL POLLANEN: Oh, yes. 17 MS. JANE LANGFORD: I want to turn to 18 another area of evolving knowledge and uncertain 19 diagnostic criteria, and that is the anal-genital injuries 20 in potential sexual assault. You will recall that one of 21 the pathological issues in Valin's case was whether or not 22 there was evidence of penetrating anal trauma? 23 DR. MICHAEL POLLANEN: Yes. 24 MS. JANE LANGFORD: And as we've seen 25 already in this hearing and is clearly detailed in the
711 overview reports, three of the pathologists, Drs. Rasaiah, 2 Ferris and Smith all testified to various findings in the 3 anal-rectal area that could be interpreted as evidence of 4 anal penetration? 5 Do you recall that? 6 DR. MICHAEL POLLANEN: My recollection -- 7 MS. JANE LANGFORD: That they interpreted 8 it as potential evidence of anal penetration. 9 DR. MICHAEL POLLANEN: My recollection was 10 that Dr. Rasaiah did not so much opine in that area but 11 that it was more other experts that were in that area. 12 But -- 13 MS. JANE LANGFORD: I think Dr. Rasaiah 14 did include in his report the observations of the gaping 15 anus. 16 DR. MICHAEL POLLANEN: Certainly, yes. 17 Observations, yes. 18 MS. JANE LANGFORD: Fair enough. Now, Dr. 19 Pollanen, you would agree with me that whether there is 20 evidence of penetrating anal trauma is one of the most 21 difficult and controversial areas in forensic pathology? 22 DR. MICHAEL POLLANEN: Well, it certainly 23 does present problems for pathologists and they -- and 24 other doctors -- and that is a recurrent theme, yes. 25 MS. JANE LANGFORD: And you would also
721 agree, and I think your report indicates that there are no 2 universally-accepted diagnostic criteria upon which to 3 base a diagnosis of anal-genital injury from sexual 4 assault. 5 DR. MICHAEL POLLANEN: Again, the issue 6 here being, you can find nothing or find a lot. And 7 sometimes the diagnosis might rest on other evidence, such 8 as biological evidence. 9 MS. JANE LANGFORD: But there's no 10 diagnostic criteria that are provided with certainty for 11 pathologists? 12 DR. MICHAEL POLLANEN: Correct. There's - 13 - you can't say, This is the -- this is the list of things 14 that you must find to prove anal abuse. 15 MS. JANE LANGFORD: And you would agree 16 with me that without these clear diagnostic criteria, it 17 is difficult for a pathologist to determine what qualifies 18 as minimally sufficient evidence to make a diagnosis in 19 cases where there are not obvious devastating injuries? 20 DR. MICHAEL POLLANEN: Yes. 21 MS. JANE LANGFORD: And you would also 22 agree with me that at the lower end of the spectrum, there 23 might be some reasonable variation in diagnostic 24 interpretation? 25 DR. MICHAEL POLLANEN: Yes.
731 MS. JANE LANGFORD: And to compound the 2 challenge of this diagnostic uncertainty, you've testified 3 about the McCann article, "Postmort -- Postmortem Perianal 4 Findings in Children", and I believe you described that 5 article as the single best peer reviewed study that 6 provides important guidance on interpreting post-mortem 7 anal appearances in children? 8 DR. MICHAEL POLLANEN: Yes. 9 MS. JANE LANGFORD: That article was 10 published two (2) years after the Mullins-Johnson trial, 11 in 1996? 12 DR. MICHAEL POLLANEN: Yes. 13 MS. JANE LANGFORD: And you've already 14 testified that that article confirmed that anal dilation 15 was a common finding in deceased children? 16 DR. MICHAEL POLLANEN: Yes. 17 MS. JANE LANGFORD: Would you also agree 18 with me that that paper confirmed that there were the 19 presence of other common post-mortem findings that should 20 be included in the range of normal, not just the extent of 21 anal dilation? 22 DR. MICHAEL POLLANEN: Correct. 23 MS. JANE LANGFORD: So, for example, skin 24 folds and lividity congestion? 25 DR. MICHAEL POLLANEN: Among others.
741 MS. JANE LANGFORD: And that article 2 suggested that lividity congestion can mimic fissures, 3 tears and bruising in that area? 4 DR. MICHAEL POLLANEN: Yes. 5 MS. JANE LANGFORD: And one (1) of those - 6 - that -- one (1) of the conclusions of that article is 7 that the standards of normal are not yet firmly 8 established? 9 DR. MICHAEL POLLANEN: Correct. 10 MS. JANE LANGFORD: So you would agree 11 with me that the pathologists involved in 1994 would 12 certainly have benefited from the insight provided in the 13 McCann article? 14 DR. MICHAEL POLLANEN: Yes. 15 MS. JANE LANGFORD: And in fact, even 16 today, pathologists would benefit from some more certainty 17 in this area? 18 DR. MICHAEL POLLANEN: I would say that 19 there are -- there are techniques available to us that 20 provide more certainty already; for example, removing the 21 anus and examining it under the microscope. 22 MS. JANE LANGFORD: Fair enough. 23 24 (BRIEF PAUSE) 25
751 MS. JANE LANGFORD: I promised we'd come 2 back to timing, and I'm going to go there now. You've 3 included in your list of controversies as we've seen, the 4 scope and limits of the use of histology for dating 5 injuries? 6 DR. MICHAEL POLLANEN: Yes. 7 MS. JANE LANGFORD: And I think when you 8 were here several weeks ago you stated that the timing of 9 injuries is a problematic area, because histology is 10 neither foolproof or precise, do you recall that? 11 DR. MICHAEL POLLANEN: As -- as a clock, 12 yes. 13 MS. JANE LANGFORD: As a clock. 14 DR. MICHAEL POLLANEN: It's -- it's quite 15 a good method to examine tissues, et cetera, but -- but 16 the -- to use histological appearances as a clock for the 17 age of the bruise is -- is difficult. 18 MS. JANE LANGFORD: And if we look for a 19 moment at those particular challenges of using histology 20 for timing, you would agree with me that there are 21 technical limitations in that the pathologist is never 22 entirely sure that he has taken the oldest part of the 23 injury for -- in the representative section? 24 DR. MICHAEL POLLANEN: Yes. And that goes 25 to the point that a bruise is a three-dimensional
761 structure and histology requires sampling of some point in 2 that structure. So you -- you may have a fairly large 3 volume of tissue that's occu -- that has -- the bruise 4 occupies, but necessarily we just take a sample of it. 5 MS. JANE LANGFORD: And you're not sure 6 whether you have the oldest part of that sample? 7 DR. MICHAEL POLLANEN: Correct. 8 MS. JANE LANGFORD: And I take it you'd 9 agree with me that different tissues heal at different 10 rates and using different processes? 11 DR. MICHAEL POLLANEN: Yes. 12 MS. JANE LANGFORD: And what I call every 13 individual is unique, individuals vary in the time that 14 they heal? 15 DR. MICHAEL POLLANEN: Yes. 16 MS. JANE LANGFORD: And the tissue 17 reaction would demonstrate that? 18 DR. MICHAEL POLLANEN: There are 19 constitutional factors; level of nutrition, age, et 20 cetera, yes. 21 MS. JANE LANGFORD: And on age there is 22 some suggestion that children differ from adults in their 23 -- in terms of healing reactions? 24 DR. MICHAEL POLLANEN: Yes. 25 MS. JANE LANGFORD: And you referred to
771 constitutional factors. I take it that we can talk about 2 things like overall health and the presence of infection 3 as having an impact on the healing reaction in tissue? 4 DR. MICHAEL POLLANEN: Yes. 5 MS. JANE LANGFORD: And as well, the 6 presence of things like anti-inflammatories or intoxicants 7 might influence the healing reaction in tissue? 8 DR. MICHAEL POLLANEN: Yes. Or for 9 example, anti-coagulants. 10 MS. JANE LANGFORD: Anti-coagulants. And 11 it's for all of these reasons that pathologists can't be 12 precise, and typically offer ranges of time in giving an 13 opinion based on histology of time of injury? 14 DR. MICHAEL POLLANEN: Often you'd give a 15 range, yes. 16 MS. JANE LANGFORD: Now, would you agree 17 with Dr. Feldman who was one of the consulting pediatric 18 surgeons in Jenna's case, when he said that: 19 "There are no good standards for the 20 evolution of inter-abdominal 21 inflammatory changes after trauma in 22 children, and in result, time estimates 23 based on microscopy are likely to be 24 coloured more by opinion than 25 experimental data."
781 DR. MICHAEL POLLANEN: I would say that 2 the -- that histology, because we're getting down to the 3 cellular level, is probably better than, for example, 4 naked eye examination. 5 So if you -- if you were to say, Here is an 6 injury, and you examine it with your naked eye, you're 7 more likely to be fooled by something that you might not 8 be fooled by under the microscope. So I -- there are some 9 subtleties in -- in his wording there, but I would say 10 that the closer your analytical process gets to the 11 cellular level, probably the better it is, in terms of 12 providing information about dating of injury, but that 13 there are other ways of accessing that information. 14 For example, clinician's experiences or 15 database experience with regard to the evolution of 16 clinical symptoms after an abdominal injury might provide 17 some important information, as well. 18 MS. JANE LANGFORD: And indeed, in your 19 report in the Jenna case, you recommended that a clinician 20 be consulted to assist in that -- that process. 21 DR. MICHAEL POLLANEN: Yes, to provide a 22 different perspective on the issue. 23 MS. JANE LANGFORD: But nonetheless, Dr. 24 Feldman was speaking of the microsco -- microscope, which 25 I take to mean he was speaking of looking at the cells
791 under a microscope, and do you disagree with him that 2 there are no good standards for the evolution of intra- 3 abdominal inflammatory changes in children? 4 DR. MICHAEL POLLANEN: Certainly I'm 5 unaware of any authoritative text on the matter. 6 MS. JANE LANGFORD: All right. And 7 therefore, time estimates are, in fact, one (1) of those 8 areas where we've discussed, where there are judgment 9 calls based on opinion. 10 DR. MICHAEL POLLANEN: That characterizes 11 most of pathology. 12 MS. JANE LANGFORD: Fair enough. And as a 13 further problem complicating the timing of injuries using 14 histology, I take it you'd agree with me that sometimes a 15 pathologist is presented with more than one (1) possible 16 cause of death? 17 DR. MICHAEL POLLANEN: When the case is 18 presented in an undifferentiated way, there may be more 19 than one (1) possibility and the autopsy goes to, 20 essentially, reducing the list. 21 MS. JANE LANGFORD: All right, and it can 22 be particularly complicated if the multiple causes of 23 death arise from injury? 24 DR. MICHAEL POLLANEN: I don't quite 25 understand your question.
801 MS. JANE LANGFORD: Well, not unfrequently 2 -- or not infrequently, I'm sorry, in homicidal assault, 3 there may be several types of injuries that have varying 4 degrees of potential lethality. 5 DR. MICHAEL POLLANEN: Oh, certainly. You 6 may have chest injury, head injury, neck injury and the 7 pathologist may have to tease out which of the injuries 8 was lethal, if -- 9 MS. JANE LANGFORD: And -- 10 DR. MICHAEL POLLANEN: -- if they can. 11 MS. JANE LANGFORD: And some injuries may 12 have more immediately lethal -- may be more immediately 13 lethal as compared to other potentially lethal injuries? 14 DR. MICHAEL POLLANEN: Yes. And for 15 example, you -- bleeding would be a good example of that. 16 Some -- some injuries -- you may have an injury to two (2) 17 different parts of the body, and the size of the blood 18 vessel involved in one (1) part makes it an injury that 19 would bleed faster. 20 MS. JANE LANGFORD: And that would be a 21 more immediately lethal injury as compared to another. 22 DR. MICHAEL POLLANEN: Correct, yes. 23 MS. JANE LANGFORD: Even though they both 24 have resulted in bleeding. 25 DR. MICHAEL POLLANEN: Or in -- each
811 independently could result in death. 2 MS. JANE LANGFORD: They're both 3 potentially lethal injuries. 4 DR. MICHAEL POLLANEN: Correct, yes. 5 MS. JANE LANGFORD: Now, you agree with 6 me, Dr. Pollanen -- would you agree with me that in these 7 circumstances there are some pathologists, and I think you 8 would be one (1) of them, who would make a judgment call 9 on what constitutes the specific lethal injury amongst 10 many potential lethal injuries? 11 DR. MICHAEL POLLANEN: My practice on that 12 would be variable and case-specific, but whenever possible 13 I try to do that. 14 MS. JANE LANGFORD: But you would also 15 agree with me, sir, that there are some pathologists who 16 do not make that judgment, but rather list all of the 17 potentially lethal injuries as contributing to death as a 18 matter of principle. 19 DR. MICHAEL POLLANEN: Yes. 20 MS. JANE LANGFORD: And they do this on 21 the theory that all coexistent injuries are contributing 22 to death if there is evidence of tissue damage and/or 23 bleeding. 24 DR. MICHAEL POLLANEN: Yes. More as a 25 point of philosophy than evidence, but I agree. And --
821 and I would, in fact, use the same practice in the 2 following circumstance. 3 You are a driver in a motor vehicle 4 collision, and you have multiple lethal injuries. In that 5 circumstance, there seems little benefit to say, Well, the 6 brain stem injury is the cause of death, when the aorta or 7 the heart is also torn. 8 So, in that circumstance, I give the cause 9 of death as "multiple trauma" to describe just that; that 10 there are multiple injuries, and you may not be in a very 11 good position to tease them out, and it may not be 12 relevant, medicolegally, to tease them out. 13 But when you have multiple injuries, in 14 certain medicolegal context, you might be required to do 15 your best to tease them out. And I think Jenna was a -- 16 is a perfect example of that principle. 17 MS. JANE LANGFORD: Fair enough. And I 18 think what you're saying is that you would, as a 19 pathologist, have attempted to make that judgment call 20 because that issue was medically legally -- medicolegal 21 relevance. 22 DR. MICHAEL POLLANEN: Yes, and also 23 apparent by examination of the tissues. 24 MS. JANE LANGFORD: Well, we'll come to 25 the tissues in a -- in a moment. But you agree with me,
831 if you were of the school of thought that some 2 pathologists are, that as a matter of principle, if you 3 have multiple lethal injuries, that all should be listed 4 as contributing if there is evidence of tissue damage. 5 You might, indeed, include in your range of 6 timing of those multiple lethal injuries all of the tissue 7 reactions relating to those multiple causes. 8 DR. MICHAEL POLLANEN: Several 9 pathologists do that, yes. And I, myself, do it 10 occasionally. 11 MS. JANE LANGFORD: So, going to Jenna, as 12 you've -- as you've noted, this is a very good example of 13 this issue. Jenna was a homicidal assault in the presence 14 of multiple, potentially, lethal injuries. 15 DR. MICHAEL POLLANEN: In all fairness, 16 I'd have to go back to -- to look at the injury list 17 again. 18 MS. JANE LANGFORD: Fair enough. Well, 19 why don't -- why don't we take you to -- and what I -- 20 where I want to take you to is Dr. Smith's microscopic 21 findings in his post-mortem report. And why don't we put 22 them on the screen, and then you'll have the benefit of 23 that. 24 But before I go there, you would agree with 25 me, and I think you said this yesterday and I just want to
841 be clear, that in real time, this was a difficult case in 2 terms of timing of injuries. I think what you said is, in 3 retrospect, you had issues with the opinions, but in real 4 time, this was not a straightforward case. 5 DR. MICHAEL POLLANEN: Let -- let's be 6 clear about this. Cases with timing of injury, multiple 7 injuries, in the circumstances such as Jenna, are not easy 8 cases. They're -- those are among the most difficult 9 cases that we do. 10 The -- the issue is whether they're within 11 the scope of expertise of the person doing them. 12 MS. JANE LANGFORD: And -- 13 DR. MICHAEL POLLANEN: That -- that's 14 really the issue. 15 MS. JANE LANGFORD: -- and we've heard 16 your evidence about this, but this is really an issue 17 where the forensic pathology is better placed than a 18 pediatric anatomic pathologist. 19 DR. MICHAEL POLLANEN: I would agree, yes. 20 MS. JANE LANGFORD: So let's go to the 21 overview report, PFP011066, and start at page 9, I 22 believe. And if we -- Mr. Registrar, you could just 23 scroll down to the bottom of the page so that -- 24 COMMISSIONER STEPHEN GOUDGE: Have you got 25 it there, Dr. Pollanen? The overview -- it is in the
851 overview reports. 2 MS. JANE LANGFORD: It is in the overview 3 reports, and it's -- 4 COMMISSIONER STEPHEN GOUDGE: They're 5 white -- 6 MS. JANE LANGFORD: -- oh, no, sorry, it's 7 not -- I'm sorry. I apologize. This is not in the 8 overview reports. 9 COMMISSIONER STEPHEN GOUDGE: Oh, Okay. 10 MS. JANE LANGFORD: This is Dr. Smith's 11 post-mortem report. 12 COMMISSIONER STEPHEN GOUDGE: Okay. 13 MS. JANE LANGFORD: I apologize, Mr. 14 Commissioner. So you'll have to follow on the screen, if 15 -- if you can. 16 17 CONTINUED BY MS. JANE LANGFORD: 18 MS. JANE LANGFORD: So what we're looking 19 at is the microscopic findings of Jenna -- this is Dr. 20 Smith's post-mortem report. And, Dr. Pollanen, you'll see 21 towards the end of this page, Dr. Smith gets into the 22 abdominal injuries beginning with the small intestines. 23 DR. MICHAEL POLLANEN: Yes. 24 MS. JANE LANGFORD: All right. And just 25 as a starting point, and we'll just look at each of the
861 ones that follow. And what I'm wanting you to agree is 2 that Dr. Smith appears to have documented his findings of 3 tissue reaction in respect of various abdominal issues so 4 -- abdominal injuries. 5 So if you look first at the small 6 intestines, you'll see the last sentence there he says: 7 "Few foci of neutrophilic response was 8 apparent." 9 DR. MICHAEL POLLANEN: Yes. 10 MS. JANE LANGFORD: That's his 11 documentation of tissue reaction? 12 DR. MICHAEL POLLANEN: Yes. 13 MS. JANE LANGFORD: And then in the 14 mesentery he says: 15 "These hemorrhagic regions did not show 16 a vital reaction or any evidence of 17 erythrocyte breakdown." 18 That's also a recording of a tissue 19 reaction in the mesentery? 20 DR. MICHAEL POLLANEN: Yes. 21 MS. JANE LANGFORD: And that was one (1) 22 of the abdominal injuries in this case? 23 DR. MICHAEL POLLANEN: Yes. 24 MS. JANE LANGFORD: And then the liver, 25 going over to the next page, the very top, there's
871 reference to "brisk neutrophilic response". And the 2 second sentence: 3 "Scattered foci of acute hepatocyte 4 necrosis." 5 Those are statements relating to the tissue 6 reaction in the liver? 7 DR. MICHAEL POLLANEN: Yes. 8 MS. JANE LANGFORD: And the liver was one 9 (1) of the injuries -- abdominal injuries in this case? 10 DR. MICHAEL POLLANEN: Yes. 11 MS. JANE LANGFORD: Looking at the adrenal 12 -- oh sorry, the -- the pancreas, Dr. Smith says: 13 "Although some hemorrhage is apparent, 14 the autolytic process obscured the 15 architectural detail and thus no 16 evaluation of vital reaction was 17 possible." 18 So at least he's looking for vital reaction 19 in the pancreas. 20 DR. MICHAEL POLLANEN: Yes. 21 MS. JANE LANGFORD: And in the adrenal, he 22 indicates that this was associated with an early 23 neutrophil response; that's a finding related to the 24 tissue healing in the adrenals? 25 DR. MICHAEL POLLANEN: Yes.
881 MS. JANE LANGFORD: All right. And so I 2 take it you wouldn't disagree with me that Dr. Smith 3 appears to have acknowledged and recognized the importance 4 of documenting the tissue reaction in these abdominal 5 injuries? 6 DR. MICHAEL POLLANEN: He's clearly 7 described it, yes. 8 MS. JANE LANGFORD: All right. And from 9 what you have read in that description, you -- would you 10 also agree with me that he appears to have described 11 little or no tissue reaction in all but the liver and 12 perhaps the adrenals? 13 DR. MICHAEL POLLANEN: Yes. 14 MS. JANE LANGFORD: And so if we could go 15 to the overview report for a moment. At page 37, it's 16 PFP144684. 17 Do you have the -- the right overview 18 report, Dr. Pollanen? 19 DR. MICHAEL POLLANEN: Yes. 20 MS. JANE LANGFORD: And, Mr. Commissioner, 21 do you have -- 22 COMMISSIONER STEPHEN GOUDGE: Yes, I have 23 it, thanks. 24 MS. JANE LANGFORD: And page 37? 25 COMMISSIONER STEPHEN GOUDGE: Yes.
891 2 CONTINUED BY MS. JANE LANGFORD: 3 MS. JANE LANGFORD: And I'm looking sort 4 of in the middle of the page and -- and under the -- the 5 paragraph that starts, "a better approach"; do you see 6 that? This is page 37: "There's a better approach...". 7 This is Dr. Smith's testimony at the 8 preliminary inquiry, and he says, "A better" -- do have -- 9 do you have that, Mr. Commissioner? 10 COMMISSIONER STEPHEN GOUDGE: I don't yet, 11 I confess. 12 MS. JANE LANGFORD: Page 37, it's a long-- 13 COMMISSIONER STEPHEN GOUDGE: Yes. The 14 numbering on my report doesn't quite match. 15 MS. JANE LANGFORD: Okay. Let me see -- 16 COMMISSIONER STEPHEN GOUDGE: What 17 paragraph number? 18 MS. JANE LANGFORD: Page 35 on the actual 19 overview report, not the summation number, but -- 20 COMMISSIONER STEPHEN GOUDGE: Yes. 21 MS. JANE LANGFORD: -- the actual overview 22 report. 23 COMMISSIONER STEPHEN GOUDGE: Got it, 24 thanks. 25 MS. JANE LANGFORD: Page 35.
901 COMMISSIONER STEPHEN GOUDGE: Have you got 2 it now, Dr. Pollanen? 3 DR. MICHAEL POLLANEN: I do, yes. 4 COMMISSIONER STEPHEN GOUDGE: Thanks, Ms. 5 Langford. 6 7 CONTINUED BY MS. JANE LANGFORD: 8 MS. JANE LANGFORD: You'll see there he 9 says: 10 "A better approach is by means of a 11 microscopic evaluation of the effected 12 tissues in attempting to este -- assess 13 where in a timeline or in a timeframe 14 the injury may sit in terms of the 15 maturation or the events associated with 16 the healing reaction." 17 Do you see that? 18 DR. MICHAEL POLLANEN: Yes. 19 MS. JANE LANGFORD: It appears that Dr. 20 Smith was aware of the importance of looking at the 21 healing reaction of the tissue in order to help time the 22 injuries? 23 DR. MICHAEL POLLANEN: Yes. 24 MS. JANE LANGFORD: All right. And then 25 if you turn to page 50, which is page 48, sir, of the --
911 COMMISSIONER STEPHEN GOUDGE: Thank you. 2 MS. JANE LANGFORD: -- hard copy. 3 4 CONTINUED BY MS. JANE LANGFORD: 5 MS. JANE LANGFORD: And up at the top of 6 the page, Mr. Registrar, of page 50, there's a long -- 7 yeah, perfect. 8 This is -- Dr. Smith is being asked about 9 various injuries, and he says the following, and I'm 10 beginning sort of three (3) line -- four (4) lines down: 11 "And you understand my problem here? I 12 cannot, you know, I have evidence which 13 says injuries occurred because of their 14 concentration in the body. It seems 15 reasonable that they all occurred about 16 the same time, and yet, if I look at 17 each one individually, there is no 18 absolute concordance in that, and that's 19 the frustration here. 20 Some can be interpreted as being early. 21 Some can be interpreted as late. If 22 they all occurred at the same time, then 23 I have to go to the later observations. 24 But I cannot assure that they all 25 occurred at the same time. Could she
921 have been injured twenty-four (24) hours 2 prior to death, and then twelve hours 3 (12), then six (6) hours, then two (2) 4 hours, then an hour prior to death? 5 Sure, she could have been." 6 Do you see that? 7 DR. MICHAEL POLLANEN: And that is 8 precisely the point that I made in the table yesterday. 9 MS. JANE LANGFORD: Absolutely, sir. And 10 I take it you'd agree with me that Dr. Smith appears to 11 have acknowledged that he had injuries in the abdominal 12 cavity, adjacent to one another, that had some very early 13 or no signs of -- of reaction, so early in the healing 14 process, and injuries that were later on in the healing 15 process. 16 DR. MICHAEL POLLANEN: Correct. Yes. 17 MS. JANE LANGFORD: And he appears to have 18 recognized that this was a challenge, and that it raised 19 an issue of whether they all occurred together or 20 separately. 21 DR. MICHAEL POLLANEN: Exactly. 22 MS. JANE LANGFORD: Now, if we look at 23 your opinion, for a moment, on the liver injury. And 24 that's at Tab 30, I think, of your -- I'm not sure which 25 binder. I have Tab 30 of your binder, but I'm not sure --
931 I think it's the black binders. And it's PFP072613. 2 This is your consultation, sir, on the 3 Jenna case, correct? 4 DR. MICHAEL POLLANEN: Yes. 5 MS. JANE LANGFORD: All right. And if we 6 look at page 9, and looking down under the number 5, 7 there's a paragraph under Number 5 that begins, "There is 8 a separate injury...". 9 Do you see that? 10 COMMISSIONER STEPHEN GOUDGE: 11 Paragraph...? 12 MS. JANE LANGFORD: It's -- it's under -- 13 there's a list of 1 to 5 -- 14 COMMISSIONER STEPHEN GOUDGE: Yes. 15 MS. JANE LANGFORD: -- and then right 16 underneath that, there's a paragraph -- 17 COMMISSIONER STEPHEN GOUDGE: Yes. 18 MS. JANE LANGFORD: -- that begins -- 19 COMMISSIONER STEPHEN GOUDGE: Yes, thank 20 you. 21 22 CONTINUED BY MS. JANE LANGFORD: 23 MS. JANE LANGFORD: -- "There's a separate 24 injury..." 25 Do you have that, Dr. Pollanen?
941 DR. MICHAEL POLLANEN: Yes. 2 MS. JANE LANGFORD: All right. So this is 3 what you say about the liver injury: 4 "There is a separate injury to the liver 5 that antedates the fatal injuries. This 6 injury consists of lacerations of the 7 parenchyma and are clearly associated 8 with hepatocellular necrosis and a 9 neutrophilic inflammatory infiltrate. 10 The liver lacerations may have occurred 11 many hours or days prior to death, 12 although the precision of this estimate 13 cannot be held to a reasonable degree of 14 medical certainty. 15 In my view, the liver laceration is best 16 characterized as an injury in the early 17 feel -- healing phase, and is not 18 related to the traumatic episode that 19 caused death. The liver lacerations 20 were caused by blunt impact to the 21 abdomen." 22 Now, sir, I take it you are aware, from 23 your review of this case, that your opinion on the timing 24 of the liver injury was, in fact, consistent with Dr. 25 Smith's opinion on the timing of the liver injury.
951 DR. MICHAEL POLLANEN: Yes. 2 MS. JANE LANGFORD: And that was several 3 hours to several days. 4 DR. MICHAEL POLLANEN: Yes. 5 MS. JANE LANGFORD: And you opine, in this 6 paragraph, that the liver injury is not related to the 7 traumatic episode, but I assume you agree with Dr. Milroy 8 when he said, You can't exclude the possibility that the 9 liver injury causally contributed to Jenna's death. 10 DR. MICHAEL POLLANEN: We are going back 11 to this issue of a philosophy of being maximally inclusive 12 about potential lethal injuries. And so, basically, what 13 I would say is that, Is there sufficient evidence 14 available to conclude that this liver laceration was, in 15 fact, bleeding in the -- in the abdomen; in other words, 16 contributing to blood that resulted in death. 17 And it's not entirely clear to me that we 18 have enough evidence, in review, to determine that. 19 MS. JANE LANGFORD: But if you were being 20 maximally inclusive, you would include the liver injury 21 because there was evidence of laceration adjacent to 22 various veins that may have lead to blood loss. 23 DR. MICHAEL POLLANEN: The point here 24 being that we all have the experience of getting an 25 injury, and it doesn't drip blood for -- for days on end.
961 Vessels clot off, the healing reaction starts, you -- you 2 may not continue to have bleeding. So -- 3 MS. JANE LANGFORD: And in fact, I think 4 Dr. Feldman said that liver lacerations can cause 5 hemorrhagic shock at variety of rates. 6 DR. MICHAEL POLLANEN: The -- the liver 7 laceration is -- is one (1) of those injuries that you 8 have to be very delicate with because the -- the issue 9 with a liver laceration is that there is an issue of 10 timing and then there's the issue of this -- of symptom 11 development; that's the issue with a liver laceration. 12 MS. JANE LANGFORD: And so if you were 13 being maximally inclusive of the liver injury, and if you 14 were like Dr. Milroy, unable to exclude the liver injury 15 as a causally contributory factor, you would include that 16 in your time ranges. 17 DR. MICHAEL POLLANEN: What I'm -- what 18 I'm saying is that in review, in performing a 19 retrospective review, I'm not -- I'm not certain I can 20 point to any evidence to say that this laceration was 21 bleeding into the abdominal cavity, and on that basis, I 22 don't really know. 23 But I recognize that one could have a 24 philosophical stance, which is that this is a potentially 25 bleeding injury and they're grou -- then group it together
971 with other bleeding injuries; that's the best I can do in 2 -- in review. 3 MS. JANE LANGFORD: And that's very 4 helpful. Mr. Commissioner, I think this might be a good 5 time to take a break. 6 COMMISSIONER STEPHEN GOUDGE: Okay, how 7 are you doing, in terms -- 8 MS. JANE LANGFORD: I'm going to finish 9 well within my time. 10 COMMISSIONER STEPHEN GOUDGE: Okay. 11 MS. JANE LANGFORD: No, I've forgot now, 12 to be quite frank, when my time started, but... 13 COMMISSIONER STEPHEN GOUDGE: You've been 14 going an hour and five (5) minutes. 15 MS. JANE LANGFORD: I'm going to be -- I'm 16 going to be finished before my -- my time elapses. 17 COMMISSIONER STEPHEN GOUDGE: Do you have 18 any -- well, I won't pin you down because we've got lots 19 of time. Do you have any sense of how long you're going 20 to be? 21 MS. JANE LANGFORD: I think I might have a 22 half an hour more. 23 COMMISSIONER STEPHEN GOUDGE: Okay. 24 That's fine, thanks. We'll rise now then until twenty- 25 five (25) to 12:00.
981 2 --- Upon recessing at 11:20 a.m. 3 --- Upon resuming at 11:40 a.m. 4 5 THE REGISTRAR: All rise. Please be 6 seated. 7 COMMISSIONER STEPHEN GOUDGE: Ms. 8 Langford...? 9 10 CONTINUED BY MS. JANE LANGFORD: 11 MS. JANE LANGFORD: Dr. Pollanen, I want 12 to talk to you a bit about asphyxia and your evidence on 13 circumstantial diagnoses -- and that's my language -- but 14 following up on what you were talking about with Mr. 15 Sandler. 16 And I take it from what we've heard from a 17 number of witnesses and -- and you, as well, that the way 18 I can put it is that there are no universally recognized 19 pathopneumonic signs of asphyxia? 20 DR. MICHAEL POLLANEN: Correct. 21 MS. JANE LANGFORD: And the way I also 22 understand it is that although many pathologists do 23 recognize consistent or general post-mortem signs in 24 asphyxial deaths the lack of specificity of those signs 25 has basically precluded us from having a diagnostic
991 criteria? 2 DR. MICHAEL POLLANEN: Correct. 3 MS. JANE LANGFORD: And the general or 4 consistent signs, if you will, they include petechial 5 hemorrhages in the face? 6 DR. MICHAEL POLLANEN: No. 7 MS. JANE LANGFORD: Petechial hemorrhages 8 in the conjunctiva? 9 DR. MICHAEL POLLANEN: No. 10 MS. JANE LANGFORD: Well, let me take you 11 to Dr. Cordner's paper for a moment. Perhaps I misread 12 it. 13 DR. MICHAEL POLLANEN: Just -- just so we 14 can get to the issue here, petechial hemorrhages are a 15 result of compression of the neck or compression of the 16 chest which are causes of asphyxia but the asphyxia does 17 not cause the petechial hemorrhage. 18 There's a -- there's a subtlety there. 19 MS. JANE LANGFORD: There -- okay. And -- 20 DR. MICHAEL POLLANEN: So want -- 21 MS. JANE LANGFORD: -- that, in fact, is 22 exactly what I was getting at there are these signs -- 23 DR. MICHAEL POLLANEN: But you've used the 24 word, "asphyxia;" that's not the point. The -- the point 25 here is that you get conjunctival petechial hemorrhages
1001 associated with neck compression. The neck compression 2 causes the asphyxia. The neck compression compresses the 3 veins to produce the petechiae but it's not the asphyxia; 4 in other words, it's not the starvation of the -- of the 5 brain by oxygen that causes the petechiae. 6 MS. JANE LANGFORD: All right. But often 7 in deaths, for example, of neck compression -- 8 DR. MICHAEL POLLANEN: Yes? 9 MS. JANE LANGFORD: -- you will see what I 10 call general signs such as petechial hemorrhages in the 11 face, conjunctiva behind the ears, over the larynx on the 12 back of the throat, and on the inner aspects of the lips. 13 DR. MICHAEL POLLANEN: In neck 14 compression. 15 MS. JANE LANGFORD: In neck compression? 16 DR. MICHAEL POLLANEN: Correct. 17 MS. JANE LANGFORD: All right. But you 18 can't say that those signs that I've just listed are, in 19 fact, diagnostic criteria for neck compression? 20 DR. MICHAEL POLLANEN: Again, they form 21 these hallmarks; these cardinal signs as opposed to 22 criteria. The -- the subtlety of course there being that 23 among them petechial hemorrhages of the conjunctiva are 24 particularly helpful because in cases of neck compression, 25 there are -- they are very frequently apparent to the
1011 point that some people won't diagnose neck compression in 2 their absence and -- and that's a -- that's a view that I 3 hold. 4 You have to be very cautious to make the 5 diagnosis of neck compression in the absence of petechiae 6 of the conjunctiva. 7 MS. JANE LANGFORD: Fair enough. I'm just 8 going to read you because I don't think you have Dr. 9 Cordner's paper. 10 11 (BRIEF PAUSE) 12 13 MS. JANE LANGFORD: Do you have Dr. 14 Cordner's paper in front of you by any chance? No? 15 DR. MICHAEL POLLANEN: No. 16 MS. JANE LANGFORD: Why don't I just read 17 you one (1) thing because I want to make sure that you and 18 him are -- it's not just me confusing your evidence and 19 his. 20 21 (BRIEF PAUSE) 22 23 COMMISSIONER STEPHEN GOUDGE: This is his 24 research paper, Ms. Langford? 25 MS. JANE LANGFORD: This is the brand new,
1021 hot-off-the-press Dr. Cordner's paper and I'm looking at 2 page 68, and he is talking about the diagnosis of 3 different forms of mechanical asphyxia. 4 DR. MICHAEL POLLANEN: But you see? 5 You've changed it again. 6 MS. JANE LANGFORD: No, no. I have. 7 Absolutely. I understand that, but this is what he says. 8 He's speaking of mechanical asphyxia and he says: 9 "In relation to various forms of 10 mechanical asphyxia, some weight --" 11 DR. MICHAEL POLLANEN: Sorry, can you just 12 tell me where we are? 13 MS. JANE LANGFORD: Yes, page 68 at the 14 top. 15 DR. MICHAEL POLLANEN: 68. Right, so now 16 let's just -- another level of subtlety, we've talked 17 about asphyxia, but now, in fact, we're talking about 18 mechanical asphyxia. 19 MS. JANE LANGFORD: A particular kind of 20 asphyxia. 21 DR. MICHAEL POLLANEN: Right, so -- 22 MS. JANE LANGFORD: And I understood your 23 evidence yesterday that one (1) of the reasons asphyxia on 24 its own is unhelpful is it sometimes implies different 25 things and it implies often mechanical asphyxia, even when
1031 perhaps, that's not the usage that you might intend. 2 DR. MICHAEL POLLANEN: Correct, yes. 3 MS. JANE LANGFORD: All right. Thank you, 4 Mr. Registrar, that's very helpful. So, page 68, Dr. 5 Cordner says: 6 "In relation to the various forms of 7 mechanical asphyxia, some weight is 8 attached in some circumstances to its 9 general signs. These are petechial 10 hemorrhages." 11 And then there are the lists that I just 12 read out to you. And then he also adds: 13 "Facial congestion, especially if there 14 is a demarcation above and below the 15 level of compression." 16 So he's talking about general signs that 17 might be seen in instances of mechanical asphyxia. 18 DR. MICHAEL POLLANEN: Correct. 19 COMMISSIONER STEPHEN GOUDGE: Then let's 20 just -- 21 MR. NIELS ORTVED: It' page -- it's his 22 page 68; it's not your page 68. 23 MS. JANE LANGFORD: All right, thank you. 24 Well, let's -- let's just pause and -- 25 COMMISSIONER STEPHEN GOUDGE: Page -- is
1041 that page 68? 2 MR. NIELS ORTVED: It's page 68 in the 3 PFP, but not in the electronic -- 4 MS. JANE LANGFORD: Well, it's not -- it's 5 not in the PFP, so... it's actually just after table 18, 6 if that helps, so we're at table 11. That's 47, so you 7 need to go to 68. 8 COMMISSIONER STEPHEN GOUDGE: Go to 68. 9 MR. MICHAEL SHIME: 88. 10 MS. JANE LANGFORD: 88? 11 MR. MICHAEL SHIME: It's page 88. 12 COMMISSIONER STEPHEN GOUDGE: 88. 13 14 CONTINUED BY MS. JANE LANGFORD: 15 MS. JANE LANGFORD: Try page 88. Perfect, 16 thank you, Mr. Registrar. All right, so we were looking 17 at the -- how do you diagnose different forms of 18 mechanical asphyxia at autopsy, and we were noting that 19 Dr. Cordner says: 20 "Some weight is attached in some 21 circumstances to its general signs." 22 And he lists there various forms of 23 petechial hemorrhages and facial congestion as being what 24 he describes as general signs of mechanical asphyxia. Is 25 that -- is that your understanding, Dr. Pollanen?
1051 DR. MICHAEL POLLANEN: I -- I would say, 2 just to -- to make the point clear, we have asphyxia, 3 which is this very broad amorphous category. Then you 4 have a subset in that, mechanical asphyxia, and then as a 5 subset of that, we have those cases where you get 6 compression of the neck or compression of the chest or a 7 combination of the two (2). 8 And I would say that that is what Dr. 9 Cordner is communicating to us here, that in compression 10 of the face or in compression of the neck, as forms of 11 mechanical asphyxia, these are some of the general things 12 one sees. 13 MS. JANE LANGFORD: And we use the word 14 "general" because we even can't -- we can't be specific, 15 even of these findings, as being diagnostic for neck 16 compression; they're simply general signs that are often 17 seen associated with mechanical asphyxia. 18 DR. MICHAEL POLLANEN: There's a lot more 19 to say about it than simply that, but -- but, essentially, 20 you're correct. The -- the issue there being that the 21 presence of these findings exist on some spectrum of 22 utility for the diagnosis, and the presence of those 23 findings may be -- may be seen in other conditions which 24 may act as a confounder to the diagnosis of asphyxia. 25 MS. JANE LANGFORD: Which is why we don't
1061 call them specific findings. We call them nonspecific 2 findings. 3 DR. MICHAEL POLLANEN: Right, and that's 4 why they have never been elevated to diagnostic criteria. 5 MS. JANE LANGFORD: And for fear of 6 entering into that phrase "consistent with" though, it is 7 accurate to say that those general signs are consistent 8 with mechanical asphyxia. 9 I appreciate the issue of the unhelpfulness 10 of that phrase, but it's not wrong to say that those signs 11 are consistent with mechanical asphyxia. 12 DR. MICHAEL POLLANEN: It is logically 13 correct. 14 MS. JANE LANGFORD: Thank you. You're 15 much more articulate than I am. And your point that 16 you've just indicated is in fact exactly what Dr. Cordner 17 says down at -- at the beginning of the paragraph that 18 starts "Sometimes". He says: 19 "Sometimes these general signs are 20 ascribed significance when seen in 21 association with specific signs, for 22 example, compression of the neck by a 23 ligature." 24 And that's, I take it, what you were just 25 indicating now.
1071 DR. MICHAEL POLLANEN: Correct. 2 MS. JANE LANGFORD: And so what we -- what 3 we know from this paper and from, I think, what you've 4 been trying to explain to all of us is that what might be 5 regarded as general or non-specific signs of asphyxia do 6 acquire, or can acquire, some value when they're 7 associated with specific signs of a cause of asphyxia, for 8 example, neck compression. 9 DR. MICHAEL POLLANEN: Yes. And the point 10 there being that if you have petechiae in the conjunctiva 11 and you have marks on the neck, fracture of the hyoid 12 bone, other important findings, you're on very sure 13 footing to offer the diagnosis of strangulation, for 14 example. 15 MS. JANE LANGFORD: Fair enough. So 16 moving from that to a related point, and if I -- I think 17 for helpful purposes, we'll -- if we could turn to your 18 paper which is in Tab 40 of you binder, the paper "Subtle 19 Fatal Manual Neck Compression" which, Mr. Registrar, is at 20 PFP032700. I think it's the next document, and this, sir, 21 is a document that you published in the Medical Science 22 Law Journal in 2001. 23 DR. MICHAEL POLLANEN: Yes. 24 MS. JANE LANGFORD: And I'm interested in 25 your example that you have on the first page of that
1081 document and it's in the second column -- begins with the 2 second paragraph in the second column -- beginning with 3 "The nude body," do you see that? 4 DR. MICHAEL POLLANEN: Yes. 5 MS. JANE LANGFORD: So I'll just read out 6 this example: 7 "The nude body of a 20 year old woman is 8 found on a bed in a motel room. The 9 scene is not disturbed, but the door is 10 not secured. On inspection there are 11 multiple petechiae of the conjunctiva. 12 At autopsy, petechiae are also present 13 on the surfaces of the heart and lungs 14 and on the laryngeal mucosa. There is 15 persistent fluidity of the blood in the 16 cardiac chambers and great vessels, 17 congestion and edema of the lungs and 18 the urinary bladder is devoid of urine. 19 A separate layer by layer dissection of 20 the neck reveals no injuries to the 21 strap muscles, larynx or hyoid bone. No 22 natural diseases present and 23 toxicological studies reveal no 24 exogenous compounds. 25 The circumstances surrounding the death,
1091 post-mortem findings and the presence of 2 negative data concerning other potential 3 causes of death, e.g. drug intoxication 4 and sudden natural death, raises the 5 possibility of an asphyxial death. The 6 objective evidence listed in the case 7 synopsis is consistent with an asphyxial 8 death and perhaps more importantly does 9 not exclude this possibility. 10 Despite this, based on the 11 information available, many pathologists 12 would certify both the cause and manner 13 of death as undetermined. A minority of 14 pathologists would certify the manner of 15 death as homicide, based more on the 16 scene examination and circumstances of 17 the case than the relatively negative 18 autopsy findings." 19 Now, Dr. Pollanen, I take that example as 20 being a very good example of what you were telling us 21 yesterday which is that first of all there are 22 pathologists who have a comfort level relying on 23 circumstantial evidence in the presence of what I have 24 been calling "general signs" of mechanical asphyxia, for 25 example.
1101 DR. MICHAEL POLLANEN: Yes. 2 MS. JANE LANGFORD: And I think you 3 described it rather aptly as the sliding scale of 4 certainty in that some are more comfortable than others, 5 and everybody has a different spot on the spectrum as to 6 when they will make that call. 7 DR. MICHAEL POLLANEN: Yes. 8 MS. JANE LANGFORD: Is that fair? 9 DR. MICHAEL POLLANEN: That's fair, yes. 10 Hopefully, there's some -- some general consensus about 11 the general point where we all are on the sliding scale, 12 because clearly one would say that if -- if you populated 13 the sliding scale you -- you might separate off those 14 pathologists that were perhaps separated from the pack as 15 it were but, -- 16 MS. JANE LANGFORD: Fair enough. And at 17 both ends of the spectrum, there will be -- there will not 18 be a consensus. There will be -- nothing is present and 19 there's nothing that could make that call circumstantial 20 or otherwise. And the other end of the spectrum, this is 21 the easy call that almost everybody would make. 22 DR. MICHAEL POLLANEN: Correct. 23 MS. JANE LANGFORD: And I think what you 24 have -- the way you've described it is that the extent to 25 which a pathologist is prepared to give an opinion on
1111 cause of death based on circumstantial evidence is a 2 judgment call. 3 DR. MICHAEL POLLANEN: At least in part. 4 The -- here's the point, that if you read the next 5 paragraph to -- to my introduction to this paper, I use 6 this example as an anecdotal case, as a stimulus to say, 7 Okay, well this is the situation that we're in, now lets 8 explore what would you need from an evidence paced -- 9 based point of view to get you to the conclusion. 10 In other words what I'm saying is, in this 11 paper, lets not go on the circumstantial. Lets not weigh 12 the -- 13 MS. JANE LANGFORD: Absolutely. 14 DR. MICHAEL POLLANEN: -- circumstantial 15 so heavily. Lets explore this issue and see what 16 objective anatomical findings might help us. And then I 17 try to review what those might be. 18 MS. JANE LANGFORD: And -- and I think 19 what you've sort of indicated is that from your 20 perspective, you've expressed some reluctance if you will, 21 or reservations of making the -- the diagnosis on a 22 circumstantial basis, and you would fall under the 23 majority of pathologists that would have called that case 24 undetermined? 25 DR. MICHAEL POLLANEN: I would -- if I
1121 were to put myself in -- in my shoes again in writing 2 this, I -- I would say that -- this is one of those cases 3 that I would spend a very long time looking -- 4 MS. JANE LANGFORD: Fair enough. 5 DR. MICHAEL POLLANEN: -- seeing evidence, 6 doing lots of ancillary testing that might point me in one 7 way or the other, but ultimately I may be frustrated at 8 the end and give the cause of death as unascertained. But 9 I think that's quite likely. 10 MS. JANE LANGFORD: And what I think I'm 11 hearing you say, and why you were writing this article is 12 that with come hesitation or reservations about relying on 13 circumstantial evidence, you are interested in focussing 14 more on the evidence based side of things and researching 15 in order to remove the uncertainty that exists in these 16 kinds of circumstantial judgment calls? 17 DR. MICHAEL POLLANEN: That's precisely 18 it. And -- and the -- and the sort of proof as it were, 19 would be cases like Sally Clark, Angela Canning, other 20 cases -- a very interesting case in New York state a few 21 years back -- where you have to be very wary of putting 22 too much weight on circumstantial evidence. 23 But in my view it's -- it's not simply good 24 enough to say, Don't put weight on circumstantial 25 evidence. What we then have to do is find alternatives.
1131 And part of those alternatives come from looking at what 2 we can glean from further analysis of anatomical findings 3 or ancillary testing. 4 MS. JANE LANGFORD: And at least when 5 we're looking in the 1980's and 1990's, first of all you'd 6 agree with me that there were pathologists who were 7 calling these kinds of cases on a circumstantial basis? 8 DR. MICHAEL POLLANEN: Yes. 9 MS. JANE LANGFORD: And part of the reason 10 for that is the absence of that kind of certainty and 11 research that you are talking about. The alternative just 12 wasn't there in the '80's and '90's in many of these kinds 13 of cases. 14 DR. MICHAEL POLLANEN: And still isn't 15 there in many cases. 16 MS. JANE LANGFORD: And I think you fairly 17 pointed out in your review of these overview reports that 18 there were a number of cases of Dr. Smiths that, at least 19 on your read of them, he appears to have made the 20 diagnosis based on circumstantial evidence and some 21 general findings? 22 DR. MICHAEL POLLANEN: Yes. 23 24 (BRIEF PAUSE) 25
1141 MS. JANE LANGFORD: Finally, Dr. Pollanen, 2 I do not mean any disrespect to you analysis of -- on the 3 Shaken Baby Syndrome and the short distance falls, but I'm 4 going to -- or we're going to reserve our questions 5 largely for Dr. Whitwell -- but I didn't want to sit down 6 without asking you just a couple of questions. 7 And -- and that is, I take it when you and 8 the subcommittee were constructing the -- the review of 9 Dr. Smith's work, and determining which cases would go to 10 which reviewer, you were aware that Dr. Smith was, what I 11 will call a proponent of Shaken Baby Syndrome? 12 DR. MICHAEL POLLANEN: Yes. 13 MS. JANE LANGFORD: And I took from your 14 PowerPoint presentation yesterday, that you also were 15 aware that Dr. Whitwell was at least one (1) of the 16 pathologists who had expressed reservations that Shaken 17 Baby Syndrome was perhaps a flawed concept? 18 DR. MICHAEL POLLANEN: Yes. 19 MS. JANE LANGFORD: And in -- in fairness, 20 you had already looked at these cases when the division to 21 the reviewers occurred, and you had already concluded that 22 at least in some of Dr. Smith's Shaken Baby Cases, they 23 may have been, in your words, overcalled? 24 DR. MICHAEL POLLANEN: Well I recognize 25 the controversy. Essentially, as I've indicated, that the
1151 -- that our analysis, by virtue of how we selected the 2 cases, would necessarily include the Shaken Baby 3 controversy. 4 MS. JANE LANGFORD: All right. And so 5 when you sent to Dr. Whitwell, Dr. Smith's shaken baby 6 cases, I take it you'd agree with me that you knew that it 7 was more likelier than not that she would express some 8 reservations about -- or concerns about -- Dr. Smith's 9 conclusions in light of her own place on the spectrum, if 10 you will, in the very polarized debate on Shaken Baby 11 Syndromes and short distance falls. 12 DR. MICHAEL POLLANEN: Well, my experience 13 with Professor Whitwell, and -- and other consultants, is 14 that they use an objective approach to -- to examining the 15 issues and would look at the case for its merits, but -- 16 MS. JANE LANGFORD: Absolutely, and I 17 wasn't meaning to -- to -- 18 DR. MICHAEL POLLANEN: -- please let me 19 finish. 20 MS. JANE LANGFORD: Okay. 21 DR. MICHAEL POLLANEN: However, it's -- 22 it's clear that people do fall out on the spectrum on this 23 issue. And it is also clear that Professor Whitwell was, 24 for example, a co-author on what's been known as Geddes 1 25 and 2.
1161 So, I would -- I would say that Professor 2 Whitwell, as opposed to having a close mind on the shaken 3 baby issue, is engaging the discourse and contributing to 4 the published literature on the discourse, and is in a 5 very good position to give a balanced view on the matter. 6 MS. JANE LANGFORD: And I was not meaning 7 to in any way suggest that she would not have given her 8 objective analysis of the case, but simply confirming that 9 you were aware where she stood in the spectrum of cases, 10 and where Dr. Smith stood in the spectrum of cases, when 11 you sent her all of his Shaken Baby cases to review. 12 DR. MICHAEL POLLANEN: Yes, I did -- I was 13 aware of that, yes. 14 MS. JANE LANGFORD: Thank you, Dr. 15 Pollanen. You've been very patient. 16 Mr. Commissioner, those are my questions. 17 COMMISSIONER STEPHEN GOUDGE: Thanks, Ms. 18 Langford. 19 Dr. Pollanen, you said that just by 20 selecting the cases, you knew there'd be some shaken baby 21 cases. I take it that was because in the criminally 22 suspicious cases that Dr. Smith had done under warrant for 23 the Coroner's Office, you knew there had been shaken baby 24 cases. 25 DR. MICHAEL POLLANEN: Yes. And the -- we
1171 set this up as a -- as a timeline. 2 COMMISSIONER STEPHEN GOUDGE: Right. 3 DR. MICHAEL POLLANEN: And statistically, 4 you would -- you would know, without even looking at the 5 cases, that there would be such cases in there. And that 6 the issue that was going to emerge was a rediscovery, if 7 you will, of the Goldsmith issues. 8 COMMISSIONER STEPHEN GOUDGE: Right. 9 Okay, thanks. 10 DR. MICHAEL POLLANEN: It was inevitable 11 in a way. 12 COMMISSIONER STEPHEN GOUDGE: Right. 13 thanks. 14 Mr. Wardle...? 15 MR. PETER WARDLE: Good morning, Dr. 16 Pollanen. 17 DR. MICHAEL POLLANEN: Good morning. 18 MR. PETER WARDLE: Good morning, Mr. 19 Commissioner. 20 COMMISSIONER STEPHEN GOUDGE: Good 21 morning, Mr. Wardle. 22 23 CONTINUED CROSS-EXAMINATION BY MR. PETER WARDLE: 24 MR. PETER WARDLE: I'd like to start -- 25 and probably most, if not all, of my questioning for you,
1181 sir, will be about the Sharon case. And I ask you just to 2 pull up Volume II of the overview reports, Tab 13. 3 And I want to start with the issue you 4 raised yesterday about investigation of a scene and, first 5 of all, take you to the overview report, paragraph 28. 6 DR. MICHAEL POLLANEN: Yes. 7 MR. PETER WARDLE: My version is page 8. 8 COMMISSIONER STEPHEN GOUDGE: Paragraph 9 28. 10 11 CONTINUED BY MR. PETER WARDLE: 12 MR. PETER WARDLE: So just to orient you, 13 this is the -- this paragraph is based on the notes of the 14 officers when they first arrive at the scene the date of 15 Sharon's death, on that evening. All right? 16 DR. MICHAEL POLLANEN: Yes. 17 MR. PETER WARDLE: And then -- and you'll 18 see that the notes indicate that upon entering the 19 basement, one (1) of the officers has in his notes; he 20 quotes: 21 "Observed a strong smell of animal urine 22 and feces." 23 Do you see that? 24 DR. MICHAEL POLLANEN: Yes. 25 MR. PETER WARDLE: And then just going
1191 along a little further, to paragraph 33 on the next page, 2 you'll see that the coroner, Dr. McLlquham, arrives at the 3 residence at approximately 6:30 a.m. the following morning 4 and pronounces death. 5 I just want to start with this question for 6 you, which is a fairly general question: I take it the 7 role of the police at a crime scene is quite different 8 than the role of the coroner or the role of a pathologist 9 if the pathologist went to the scene? 10 DR. MICHAEL POLLANEN: Yes. 11 MR. PETER WARDLE: In other words the 12 observations the police are making are being made for a 13 different purpose potentially than the observations that 14 representatives of the coroner or a pathologist might 15 make? 16 DR. MICHAEL POLLANEN: Well, we might make 17 some of the same observations -- 18 MR. PETER WARDLE: Of course. 19 DR. MICHAEL POLLANEN: -- clearly, but we 20 all have our different point of view and our own different 21 expertise, and that would go to this concept of the death 22 investigation team which is populated by different people 23 with different strengths. 24 MR. PETER WARDLE: And would you agree 25 with me that if possible in a -- in a case like this one
1201 that would raise questions about the scene, that it would 2 be good practice for the pathologist not simply to rely 3 upon photographs, for example, taken at the scene by the 4 police? 5 DR. MICHAEL POLLANEN: I would -- I would 6 recognize that there are many scenes that would benefit 7 from a pathologist attending in the first instance. And 8 some of those cases are easily -- easy to predict, some 9 are not so easy to predict and there are certain barriers 10 to scene attendance. 11 And I would say that in the majority of 12 cases most of the information can be transmitted through 13 good digital photography of the scene but not all scenes 14 can be managed that way. 15 MR. PETER WARDLE: And -- and one (1) of 16 the systemic issues we have here is we have a large 17 province as -- you know, this constantly comes up in our 18 discussions, correct? 19 DR. MICHAEL POLLANEN: Yes. 20 MR. PETER WARDLE: And so we don't have a 21 pathologist in Kingston for example with the availability 22 to go to the -- to go to the scene immediately, correct? 23 DR. MICHAEL POLLANEN: Correct. 24 MR. PETER WARDLE: And one (1) potential 25 substitute obviously is the coroner, that the coroner have
1211 the ability to go and perhaps make some observations? 2 DR. MICHAEL POLLANEN: Not a substitute. 3 A coroner cannot substitute for a pathologist. The -- 4 the coroner has their duties at the scene and the coroners 5 can be very helpful in making observations that are 6 ultimately transmitted to the pathologist but there's -- 7 there's no replacement for the pathologist going to the 8 scene other than, as I say, augmenting information 9 transfer through digital photography. 10 MR. PETER WARDLE: All right. So just to 11 scroll forward a little in this case I think we know that 12 the investigating coroner made -- made fairly limited 13 observations about the scene, correct? 14 And I can -- I can ask you just to look 15 briefly at paragraph 67. 16 17 (BRIEF PAUSE) 18 19 MR. PETER WARDLE: Page 31. Now, you'll 20 see that -- if you have the correct paragraph, you'll see 21 that the coroner outlines here -- and this is sometime 22 later obviously, but he outlines here his initial 23 observations. 24 DR. MICHAEL POLLANEN: Yes. 25 MR. PETER WARDLE: But they're not very
1221 extensive, is that -- is that fair? 2 DR. MICHAEL POLLANEN: No. 3 MR. PETER WARDLE: And -- and we don't 4 know whether they were communicated to Dr. Smith, for 5 example? We just don't know that? 6 DR. MICHAEL POLLANEN: I don't know that. 7 MR. PETER WARDLE: All right. So there 8 may have been an opportunity here for the coroner to have 9 played some role in gathering information that may have 10 been of use when the autopsy was done. 11 Is that fair? 12 DR. MICHAEL POLLANEN: That applies to all 13 cases, yes. 14 MR. PETER WARDLE: All right. So one (1) 15 of the things we'll have to do, or the Commissioner will 16 have to think about systemically, is what kind of cases 17 would you identify where a scene examination may be 18 useful. 19 And it's obviously not going to be every 20 case for all sorts of reasons, correct? 21 DR. MICHAEL POLLANEN: Correct. 22 MR. PETER WARDLE: But in a case like this 23 one you would agree that this is a case that probably, had 24 it come to you at the outset, you would have identified 25 this as a case where a scene examination would have been
1231 useful? 2 DR. MICHAEL POLLANEN: Yes, either, for 3 example in the first instance or a retrospective scene 4 visit. 5 MR. PETER WARDLE: Now, I want to just 6 walk through a little bit what happens after the body is 7 discovered and just take you through step by step and see 8 if we can look at some systemic issues. 9 Sharon's body is then taken to Toronto for 10 the post-mortem in a body bag, and her body's accompanied 11 by a constable, and the constable is present when the 12 autopsy is done. And you'll see that in paragraph 48 of 13 the overview report. 14 You may recall that when Professor Milroy 15 gave evidence, he -- he talked about a practice in the 16 United Kingdom where he would have a briefing with a 17 senior officer -- senior police officer involved in the 18 investigation -- at the outset before he conducted his 19 post-mortem. 20 And that's obviously a different practice 21 than we have here in Ontario, correct? 22 DR. MICHAEL POLLANEN: Well, we would be 23 given a briefing by the police. If -- if the police were 24 involved in the case, and a case like this would obviously 25 have police involvement, the police officer -- police
1241 officers in attendance would brief the pathologist. 2 The information would be supplemented by 3 that provided in the coroner's warrant. And, in many 4 instances, a written police report; at least, the initial 5 occurrence, would be given to the pathologist. 6 MR. PETER WARDLE: And do you see any 7 benefit, Dr. Pollanen, in having a senior police officer 8 involved in the investigation meeting with the 9 pathologist, either before the post-mortem or in -- in the 10 period after the post-mortem, but before the report is 11 produced, or is that simply not practical? 12 DR. MICHAEL POLLANEN: I -- I think that 13 would -- would be the -- the usual practice now. 14 MR. PETER WARDLE: All right. 15 DR. MICHAEL POLLANEN: I guess it -- it 16 depends on how you define "senior", but -- but I would say 17 that typically it would be the case that -- and I'll use 18 my department as an example -- that if in a homicide and 19 criminally suspicious case, you would have homicide 20 detectives attending autopsies and IDENT officers. 21 And in the circumstance where it was 22 unclear if the homicide detectives would continue carrying 23 the case or divisional police officers, they will both 24 appear at the same time to get information transfer 25 between the two.
1251 MR. PETER WARDLE: And if there was a case 2 conference at an early stage, you would expect more senior 3 police to be involved at that stage, correct? 4 DR. MICHAEL POLLANEN: Again, it's sort of 5 going into how police department's deal with their 6 seniorities, et cetera, but in my experience, it's usually 7 Detective Sergeants, and -- and for example, with the 8 Ontario Provincial police, the Inspector level. 9 MR. PETER WARDLE: Now, we know that 10 before Dr. Smith commenced his autopsy proper on June the 11 15th, from notes -- and they're referred to as one (1) of 12 the footnotes to the -- to the chronology, that he looked 13 at some scene photographs and examined some scissors which 14 had been seized by the police, and that's referred to in 15 this Constable's notes. 16 What we don't know from the material we 17 have -- at least, I haven't been able to find it -- is we 18 don't know what Dr. Smith was told by the officer who 19 accompanied the body. 20 In other words, we don't know what kind of 21 information was communicated to him before he began his 22 autopsy and we don't know that for a couple of reasons; 23 one (1), because there's no history in the post-mortem 24 report, but secondly, because we have nothing from the 25 officer's notes which really deals with it.
1261 And would you agree that that raises an 2 issue that if there's going to be communication as there 3 has to be before the autopsy, it needs to be documented at 4 both ends? 5 DR. MICHAEL POLLANEN: Yes. 6 MR. PETER WARDLE: And that's particularly 7 important in a case like this one (1), which many, many 8 people have now looked at retrospectively, correct? 9 DR. MICHAEL POLLANEN: Correct. 10 MR. PETER WARDLE: And if we look at 11 paragraph 60, and this is a -- this is what a number of 12 witnesses have referred to as a -- it's a Sick Kids form; 13 it's not a Coroner's Office form, correct? 14 DR. MICHAEL POLLANEN: Yes. 15 MR. PETER WARDLE: And this is the only 16 place where we, occasionally, find short histories in Dr. 17 Smith's report? 18 DR. MICHAEL POLLANEN: Typically, yes. 19 MR. PETER WARDLE: And you'll see here 20 that we have a short history here, but we don't know when 21 this information was communicated to Dr. Smith or by whom. 22 We simply can't tell. 23 DR. MICHAEL POLLANEN: On the basis of 24 this, no. 25 MR. PETER WARDLE: And if the post-mortem
1271 form at the time had mandated a history, we would now know 2 a lot more about what Dr. Smith knew about the dog at the 3 time he conducted his post-mortem examination, correct? 4 DR. MICHAEL POLLANEN: Yes. 5 MR. PETER WARDLE: And that would be 6 important for a number of reasons. As you've told us, it 7 would be important for purposes of peer review and for 8 purposes of a evidence-based approach, and for purposes of 9 reviewability down the road, correct? 10 DR. MICHAEL POLLANEN: Yes. 11 MR. PETER WARDLE: Let me turn then, if I 12 can, to -- and I'm not going to take you through what you 13 and Professor Milroy have already given evidence about, 14 about the post-mortem itself. 15 But I want to deal, just briefly, with the 16 scalp, if I may. And am I right that you would agree that 17 it's -- it was an important indicator that should have led 18 the pathologist to consider possible explanations of the 19 cause of death other than multiple stab wounds? 20 Is that fair? 21 DR. MICHAEL POLLANEN: I -- I'd say it's 22 an unusual finding just on the face of it. The fact that 23 the scalp is off the body is an unusual finding. And on 24 that basis, you would inquire specifically about how the 25 scalp came to be detached from the head.
1281 And it would be unusual for that to occur 2 with sharp force injury. 3 MR. PETER WARDLE: In fact, I -- I think 4 this was put to Professor Milroy, but I'll just put it to 5 you. It -- it would be difficult for a person to cut that 6 scalp away with a pair of scissors -- high -- very 7 difficult, would it not be? 8 DR. MICHAEL POLLANEN: Yes. 9 MR. PETER WARDLE: All right. And you've 10 obviously, at some point, looked at the photographs. 11 Would you agree that the photographs of the scalp appear 12 to show abraded edges? 13 DR. MICHAEL POLLANEN: I -- I can't 14 recall. 15 MR. PETER WARDLE: All right. And Dr. 16 Milroy, I think, in his report and in his testimony, 17 indicated that the scalp would be an indication of 18 possible animal activity. Do you agree with that, or do 19 you think it's possible to go that far? 20 DR. MICHAEL POLLANEN: Well, certainly 21 there is support in the peer reviewed literature that 22 tissue avulsion or de-gloving or de-fleshing of the head 23 occurs with dog attack. 24 MR. PETER WARDLE: Now let me just flip it 25 around a little bit, 'cause you've -- you've spoken about
1291 this. 2 Is the scalp also illustrative of how an 3 important piece of evidence, if it's dealt with 4 inappropriately right at the beginning, can take the 5 police off in their investigation on a wrong track? 6 DR. MICHAEL POLLANEN: Certainly 7 misinterpretations of any type, but in this case, yes, the 8 scalp would be an example. 9 MR. PETER WARDLE: All right. And -- and 10 just to flesh that out, we know, and I think you know 11 where I'm going, that Dr. Smith noted that there were head 12 lice eggs present on the scalp. He sent the scalp out to 13 be analysed by an odontologist -- if I have that phrase 14 correct. 15 DR. MICHAEL POLLANEN: Yes. 16 MR. PETER WARDLE: And the police around 17 the same time discovered that the child had been away from 18 school because of a head lice problem, and that led the 19 police down the road to, eventually developing a theory, 20 which is in the police synopsis, that the mother had gone 21 into the basement to cut the daughter's hair and flown 22 into a rage and attacked her. 23 And -- and you know about that theory; it's 24 in all the material? 25 DR. MICHAEL POLLANEN: Yes.
1301 MR. PETER WARDLE: And that's a good 2 example of how the misuse of this one (1) piece of 3 evidence at the very beginning could cause the police to 4 go in a certain direction, which, in fact, in this case, 5 took them very far indeed, correct? 6 DR. MICHAEL POLLANEN: One (1) of the 7 factors, yes. 8 MR. PETER WARDLE: All right. Now let me 9 just deal quickly with the role of the odontologist. We 10 know at some point after the autopsy that Dr. Wood became 11 involved, correct? 12 DR. MICHAEL POLLANEN: Yes. 13 MR. PETER WARDLE: And it's not clear from 14 my reading who asked him to become involved. Is that your 15 reading as well? 16 DR. MICHAEL POLLANEN: Yes. 17 MR. PETER WARDLE: All right. And we do 18 know that he simply looked at photographs and then 19 developed an initial opinion based entirely, as I 20 understand it, on the photographs, correct? 21 DR. MICHAEL POLLANEN: Yes. I -- I should 22 tell you that I haven't reviewed the sequence of events 23 for the odontology consultation recently. So I don't have 24 specific knowledge about how that consultation unfolded. 25 MR. PETER WARDLE: You would agree with me
1311 though that it would have been highly advantageous had Dr. 2 Wood seen the body before autopsy? 3 DR. MICHAEL POLLANEN: Yes. 4 MR. PETER WARDLE: And would it have been 5 your practice, or is it your practice now, in a case like 6 this, to delay the autopsy until an odontologist has the 7 opportunity to view the body? 8 DR. MICHAEL POLLANEN: You might not delay 9 the autopsy if the wounds are on a part of the body, for 10 example, that you would not dissect. 11 So I have -- my recollection of calling Dr. 12 Wood on a bite mark case where if the bite mark, for 13 example, is on a part of the body that I'm going to 14 dissect, I won't -- I'll -- I'll wait for him to come, 15 because I might distort the bite mark by my dissection. 16 But, for example, if the bite mark is on a 17 forearm and I'm not going to dissect the forearm, I can 18 continue with the post-mortem elsewhere, then he wouldn't 19 -- his arrival wouldn't delay our dissection. 20 So you could -- you could have different 21 approaches to that. 22 MR. PETER WARDLE: And -- and is that a 23 practice -- the practice that you developed, is that set 24 out in writing anywhere at this point in time? 25 DR. MICHAEL POLLANEN: No.
1321 MR. PETER WARDLE: All right. And 2 similarly -- and I'm just very briefly referring to the 3 Jenna case, there was a bite-like mark in that case, and 4 again that might have been a case where it would have been 5 of assistance for your odontologist to view that mark at 6 autopsy? 7 DR. MICHAEL POLLANEN: Yes. 8 MR. PETER WARDLE: Okay. Let me now go to 9 after autopsy, and --as I'm just taking you through the 10 various stages. 11 And if we go to paragraph 59, Dr. Smith 12 signs an autopsy report. So in this case, there's 13 actually a written document right on the date of the 14 autopsy indicating the cause of death. 15 Do you see that? Hopefully, my fifty-nine 16 (59) is your fifty-nine (59). Yes, it is. 17 COMMISSIONER STEPHEN GOUDGE: On the top of 18 the page there. 19 DR. MICHAEL POLLANEN: Yes. 20 21 CONTINUED BY MR. PETER WARDLE: 22 MR. PETER WARDLE: And we know that 23 that's the opinion he communicated to the police, because 24 if you go back a couple of paragraphs, that's what he 25 appears to tell this constable; paragraph 57.
1331 DR. MICHAEL POLLANEN: Yes. 2 MR. PETER WARDLE: So at some point early 3 the next week, and it's likely the day after the autopsy, 4 Dr. Pollanen, the police begin to get more information 5 about the dog, and you'll see that in paragraph 70 -- 71 6 and 73. 7 DR. MICHAEL POLLANEN: Hat trick. 8 MR. PETER WARDLE: Correct. And you'll 9 see that paragraph 71 deals with a statement by a witness, 10 Gary, on June the 17th, which is two (2) days after the 11 autopsy. And paragraph 73 deals with a statement by 12 another witness, Gordon, on the 16th, which would have 13 been one (1) day after the autopsy. 14 Remember, the autopsy's concluded on the 15 15th. With me so far? 16 DR. MICHAEL POLLANEN: Yes. 17 MR. PETER WARDLE: And we don't know from 18 any documents -- because there don't appear to be any 19 contemporaneous documents -- the extent to which these 20 statements were communicated to Dr. Smith at the time, do 21 we? 22 DR. MICHAEL POLLANEN: Other than the 23 short history -- 24 MR. PETER WARDLE: Correct. 25 DR. MICHAEL POLLANEN: -- and the post-
1341 mortem report. 2 MR. PETER WARDLE: Correct. And it 3 raises, in my mind, a critical systemic issue, which is 4 that if the autopsy proceeds with a limited amount of 5 information being provided by way of history, and then 6 almost immediately as part of the police investigation 7 other information comes out, which may cast doubt on the 8 original version of events, it's critical that that 9 information be communicated and assimilated. Correct? 10 DR. MICHAEL POLLANEN: I would go further, 11 even. I would say that that mechanism -- it would be very 12 good practice to then recommunicate to the pathologist 13 pivotal developments, and the reason why it is so 14 important is that it creates a new opportunity to 15 reexamine your position, or to engage ancillary 16 investigations that might give you additional information. 17 This is exactly the issue with Valin's 18 negative swabs. 19 MR. PETER WARDLE: Correct. 20 DR. MICHAEL POLLANEN: And it's the same 21 issue that you've identified here. 22 And the additional opportunity that this 23 creates, in my mind, is the evidential value of hat trick, 24 because, essentially, what we know about dog attacks is 25 that sometimes pieces are present in the digestive tract
1351 of the animal. 2 MR. PETER WARDLE: So it would have been 3 critical to be able to capture that information if you 4 could early on? 5 DR. MICHAEL POLLANEN: Correct. 6 MR. PETER WARDLE: All right. 7 DR. MICHAEL POLLANEN: Creating 8 opportunities in the investigation is an extremely 9 important part of this. 10 MR. PETER WARDLE: So this is an issue 11 both from -- if I can look at it from two (2) sides -- 12 it's both an issue from your end -- from the pathologist's 13 end -- but it's also an issue from the police end. The 14 police have to know that when this kind of information 15 comes out, it needs to be communicated. 16 And I assume you would agree that it needs 17 to be communicated in writing? 18 DR. MICHAEL POLLANEN: It needs to be 19 communicated effectively and "effectively" often means in 20 writing. And -- and this goes to the whole concept of the 21 Death Investigation Team. We all have our part to play. 22 We all have specialized practices, but the sum is greater 23 than its component parts when we do things like 24 communicate that information. 25 MR. PETER WARDLE: And let me just move
1361 along slightly in the chronology. 2 COMMISSIONER STEPHEN GOUDGE: Can I just 3 stop there, Mr. Wardle? How do you institutionalize that? 4 DR. MICHAEL POLLANEN: Education is the 5 best way. Education is the best way through combined 6 educational programs between investigators and 7 pathologists and coroners. This is the -- this is really 8 the only way. 9 You cannot -- you cannot affect a cultural 10 change like this through memos, policies; it's not 11 possible. In my view, it's not possible. I think that's 12 an educational issue. 13 And -- and one (1) of the effective ways of 14 doing this is by looking at case studies; that's very 15 effective. And this -- this -- I'm not saying this 16 particular fact pattern but a similar fact pattern could 17 be very helpful in that regard. 18 And one (1) of the things that I've been 19 toying with recently is my department does a lot of 20 teaching at the Canadian Police College. And one (1) of 21 our traditional mechanisms of teaching there is the 22 classical 35 mm slide -- now PowerPoint presentation -- 23 where we just stand and show this is a stab wound; this is 24 a gunshot wound; this is a fire injury. 25 That type of education is -- there's a
1371 place for it, but it's really not where the forensic 2 pathologist is going to give the best educational value to 3 investigators; it's through this type of analysis. 4 Where -- the forensic pathologist needs to 5 engage the investigator in -- in educational circumstances 6 to say, How do we create opportunities to interface, to 7 collect -- and as a result of that interface make it 8 productive to collect new evidence, challenge prevailing 9 theories of the investigation or indeed, find evidence 10 that correctly corroborates the theory. 11 12 CONTINUED BY MR. PETER WARDLE: 13 MR. PETER WARDLE: Now, let me just take 14 it one (1) tiny step -- 15 COMMISSIONER STEPHEN GOUDGE: Sorry, I 16 just -- 17 MR. PETER WARDLE: Sorry. 18 COMMISSIONER STEPHEN GOUDGE: I mean 19 you've obviously identified an important issue, Mr. 20 Wardle, but from one (1) perspective, Dr. Pollanen, one 21 could imagine the mind-set of the pathologist turning onto 22 other things once he or she has signed off the post-mortem 23 report; that is the pathologist's participation, at least, 24 at the front end of the case until the Crown starts to 25 move towards trial -- it's kind of over.
1381 And so the pathologist turns away to the 2 next case and the police are then off on their 3 investigation. 4 So there's kind of momentum built into a 5 parting of ways as opposed to a continued communication. 6 That's a big gap for education to close. 7 DR. MICHAEL POLLANEN: It's huge. It's a 8 huge gap to close, but I don't know other than bringing 9 out the awareness of it as a pitfall. I'm not sure how 10 else we can do it. 11 MR. PETER WARDLE: I think my next 12 question, Commissioner, will actually -- 13 COMMISSIONER STEPHEN GOUDGE: Sorry. 14 MR. PETER WARDLE: -- address that a 15 little bit. 16 COMMISSIONER STEPHEN GOUDGE: Okay. 17 MR. PETER WARDLE: I wanted to just move 18 just a tiny bit ahead in the chronology and come to the 19 next series of events which are at paragraph 74 through 76 20 because the events I've been dealing with are before the 21 post-mortem examination report goes in; in other words 22 there's been this simple morgue report which -- 23 COMMISSIONER STEPHEN GOUDGE: Right. 24 MR. PETER WARDLE: -- we went to. We're 25 now the week following the autopsy. And I just wanted to
1391 move ahead just slightly. Now we have three (3) 2 paragraphs and I won't go through them with you in detail 3 but there's obviously a discussion about the animal, 4 correct? 5 COMMISSIONER STEPHEN GOUDGE: Which 6 paragraphs are you talking about? 7 MR. PETER WARDLE: 74 through 76. 8 DR. MICHAEL POLLANEN: Yes. 9 10 CONTINUED BY MR. PETER WARDLE: 11 MR. PETER WARDLE: And the notes reflect 12 that Dr. Smith has said with respect to some of them marks 13 on the upper back, "not domestic or wild animal in any 14 way" and that gets communicated to people up the food 15 chain, if I can put it that way, within the police, and 16 you'll see that from paragraph 75. 17 We've now got a detective sergeant who is 18 involved and is hearing about this information, correct? 19 DR. MICHAEL POLLANEN: That's what this 20 paragraph indicates. 21 MR. PETER WARDLE: So would I be right in 22 saying that that's a critical opportunity for both parties 23 to these communications. It's a critical opportunity for 24 the pathologist because he now has some information which 25 should cause him to explore other possibilities and ask
1401 questions, correct? 2 DR. MICHAEL POLLANEN: Yes. 3 MR. PETER WARDLE: And it's a critical 4 opportunity for the police to communicate what they're 5 learning through the investigation. 6 DR. MICHAEL POLLANEN: Yes. 7 MR. PETER WARDLE: And -- and in this case 8 it was an opportunity that was lost by both sides sadly, 9 correct? 10 DR. MICHAEL POLLANEN: Clearly, -- 11 MR. PETER WARDLE: Maybe you can't comment 12 on that. 13 DR. MICHAEL POLLANEN: -- I mean, I 14 haven't really looked at all the chronology here but -- 15 MR. PETER WARDLE: Right. 16 DR. MICHAEL POLLANEN: -- but I would -- I 17 would say based upon the -- how the case ultimately 18 unfolded there, no doubt, were those issues. 19 MR. PETER WARDLE: And would it also be 20 fair to say that once the pathologist has said something 21 this definitive, you know, I can rule out, you know, rule 22 out is -- it's pretty -- it's denoting some certainty, 23 correct? 24 DR. MICHAEL POLLANEN: Yes. 25 MR. PETER WARDLE: It's going to put a
1411 drag on the ability of the pathologist to turn around 2 later with the benefit of other information and change his 3 or her opinion, isn't it? 4 DR. MICHAEL POLLANEN: It can be 5 difficult, yes. 6 MR. PETER WARDLE: From -- from a 7 psychological viewpoint. 8 DR. MICHAEL POLLANEN: Yes. 9 MR. PETER WARDLE: Okay. Now let me go a 10 little further now to the -- there's a -- and we don't 11 have a lot of information about this in terms of timing 12 but we know from Dr. Cairns' evidence that there was a 13 case conference in this case and it -- it appeared to him 14 that it was weeks after the autopsy but he wasn't able to 15 be very clear about the timing, all right. So, and you 16 may not have heard this evidence. 17 But present at this case conference were 18 Dr. Smith, Dr. Wood, Barry Blenkinsop, Dr. Cairns, Dr. 19 Chiasson and a junior pathologist, Dr. Queen. And again, 20 there's no documentation about this conference and we 21 don't know how long it took, we don't know the context in 22 which the conference took place, but you agree now that it 23 would be helpful if we had some contemporaneous 24 documentation about this conference? 25 DR. MICHAEL POLLANEN: Yes.
1421 MR. PETER WARDLE: All right. And it 2 appears that those present may have viewed photographs and 3 possibly slides, although I don't think we have a lot of 4 evidence yet about what took place at this meeting. 5 Is it fair to say that if this conference 6 took place after charges had been laid and after these 7 communications we've just looked at, it would be from a, 8 you know, just a psychological point of view, it would be 9 difficult for Dr. Smith to re-engage and now think about 10 another possibility given what was going on in the police 11 investigation? 12 DR. MICHAEL POLLANEN: I -- I can't speak 13 for Dr. Smith. 14 MR. PETER WARDLE: Would you agree with me 15 that the people present at this meeting would be, to some 16 extend, dependent on Dr. Smith, and I suppose Barry 17 Blenkinsop, on what they had observed at autopsy, aside 18 from what was in the photographs? 19 DR. MICHAEL POLLANEN: Yes. 20 MR. PETER WARDLE: Okay. And would it be, 21 as a systemic matter, important that if we're going to 22 have these case conferences that there's some possibility 23 for critical thinking, you know, in other contexts I -- I 24 can give you a completely different context, business 25 valuation.
1431 Business valuators have what's called a 2 "beat up session" where the person who's doing the 3 valuation goes into a room and he gets critiqued by other 4 people, and you can see that kind of a mind set. 5 Would it be useful to have that kind of a 6 mind set if you're having a case conference in a case like 7 this one? 8 DR. MICHAEL POLLANEN: We tend to avoid 9 terminology like mind set these days, but what I would say 10 is that we need to create opportunities for effective 11 discourse; critical analysis being the important one in 12 this circumstance. 13 MR. PETER WARDLE: Now, am I fair -- and 14 I'm going to -- I'm going to -- because I'm running a 15 little short of time now -- if I run further forward in 16 time and I now get into Dr. Smith's evidence at the 17 preliminary inquiry. 18 And I suspect at some point in your career 19 you've looked at that evidence; maybe not recently, 20 correct? 21 DR. MICHAEL POLLANEN: Yes. 22 MR. PETER WARDLE: All right. Would it be 23 fair to say that by the time we get to the preliminary 24 inquiry, Dr. Smith is fairly well dug in and the dog 25 theory is being discounted out of hand.
1441 DR. MICHAEL POLLANEN: He clearly 2 testifies to sharp force injury rather than animal attack. 3 MR. PETER WARDLE: And it's a little -- 4 it's a little more than that. The dog theory is put to 5 him repeatedly, and he simply rules it out. 6 DR. MICHAEL POLLANEN: Correct. 7 MR. PETER WARDLE: And by this time, the 8 police are now involved in a search for other experts to 9 be able to deal with the dog theories. 10 So they're looking for a dog 11 behaviouralist, correct? 12 DR. MICHAEL POLLANEN: Yes. 13 MR. PETER WARDLE: And they hire a pattern 14 analyst to deal with some of the marks on the clothing, 15 correct? 16 DR. MICHAEL POLLANEN: I thought it was a 17 textile analyst. 18 MR. PETER WARDLE: Textile analyst, but -- 19 DR. MICHAEL POLLANEN: Yes. 20 MR. PETER WARDLE: Okay. And so the 21 critical issue that arises, I suggest, through this case, 22 as we go from the -- the period from the autopsy right 23 forward to the prelim and after, is this question about, 24 as information begins to develop, how do we build the 25 system so that the people who are giving the opinions can
1451 have the -- can have the mind-set - the way I describe it 2 - to consider new information and be prepared to change 3 and adapt and re-look at original opinions. 4 DR. MICHAEL POLLANEN: I agree, that is 5 the challenge. 6 MR. PETER WARDLE: And would I be right, 7 looking back, when Dr. Young and Dr. Cairns go out to this 8 international conference and they run into three (3) or 9 four (4) people -- two (2) or three (3) people, I'm sorry, 10 who say, you know, we're concerned there may be a 11 potential miscarriage of justice here. We think this 12 might be a dog bite case. You know, have a fresh look at 13 it. 14 It -- it -- it is very fortunate for the 15 accused person that that -- those communications took 16 place, correct? 17 DR. MICHAEL POLLANEN: Well, it's -- it's 18 fortunate that defence pathology was engaged, and then 19 that the defence pathology apparatus then effectively 20 communicated with our system. 21 MR. PETER WARDLE: Put it another way: if 22 Dr. Young and Dr. Cairns had been doing something else 23 that week and not gone to that conference, heaven knows 24 what might have happened and how long it would have taken 25 for the two (2) sides to get together on these critical
1461 questions. 2 DR. MICHAEL POLLANEN: Correct. 3 MR. PETER WARDLE: And that would suggest, 4 again, that this is a case that illustrates that it's 5 critical, from a systemic viewpoint, to have those kinds 6 of communications early on. 7 DR. MICHAEL POLLANEN: Yes. 8 MR. PETER WARDLE: I wanted to ask you 9 about two (2) last questions; one (1) is this. 10 After the second autopsy, there is a period 11 of time -- the second autopsy takes place in July of 1999. 12 Charges are withdrawn in January 2001. And there's a 13 period of time for about a year after the second autopsy 14 where the Crown continues to take the view that they have 15 a reasonable prospect of conviction. And you'll see that 16 in paragraphs 234 and following. 17 18 (BRIEF PAUSE) 19 20 MR. PETER WARDLE: You'll see, for 21 example, paragraph 234, a letter from Ms. Reynolds' 22 criminal counsel to the Crown, and then the response at 23 paragraph 236. 24 25 (BRIEF PAUSE)
1471 DR. MICHAEL POLLANEN: Yes. 2 MR. PETER WARDLE: So the sense I get from 3 -- from having heard Dr. Cairns' evidence - and Dr. Cairns 4 gets involved at one (1) point in time in this case - that 5 following the second autopsy, people at the Ontario 6 Coroners Office thought that it was only a matter of time 7 before the charges would be withdrawn. 8 But at the local level, at the Crown's 9 level, it took a lot longer for those wheels to begin to 10 turn. And I wondered if you had any comments on that. 11 Because, from the Crown's perspective, you can understand 12 the difficulty therein. 13 You know, they've -- they've gone down the 14 road with a case to a certain point. We've now had a 15 second autopsy. The second autopsy is conclusive about 16 certain things, but can't rule out completely that a 17 person may have caused a certain number of the wounds. 18 And, you know, what does the Crown do at 19 that point in time in this circumstance? Do you have any 20 thoughts about that? 21 DR. MICHAEL POLLANEN: It points out the - 22 - the challenges that Crown attorneys face when they have 23 conflicting or changing expert evidence. And it -- it 24 illustrates the -- the pressures that are put on the 25 system at different levels, and this is a good example of
1481 it. 2 I'm not certain I can comment on what 3 processes the Crown should engage to deal with these 4 issues. But I cer -- I certainly recognize that it is a 5 very big burden on the Crown. 6 MR. PETER WARDLE: And then, finally, on 7 this case, just going a little further, after the charges 8 are withdrawn in January of 2001 -- I'm going to skip 9 forward to paragraphs 330 and following. 10 We know that the Kingston Police Force was 11 not pleased -- is perhaps the best way of putting it. Do 12 you see that? And if you look at paragraphs 330, 13 paragraph 332 and especially paragraph 336 -- and if you 14 look at paragraph 336, you'll see in Chief Closs' letter 15 to Dr. Pollanen, which is quite recent, so this is now 16 after the 2004 review of Dr. Smith's -- sorry, 2005 review 17 announced by your office of Dr. Smith's cases. So, you 18 know, it's quite a recent letter. 19 And you'll see in this letter that Chief 20 Closs says this: 21 "Building a case is much like building a 22 wall brick by brick; evidence is 23 compiled until it can be ascertained 24 that the case will withstand battery by 25 defence counsel. Unfortunately, the
1491 Crown attorney in this case decided to 2 use Dr. Smith's opinion as the 3 cornerstone. When he, after 4 consultation with your office, opted to 5 remove it in January 2001, the other 6 solid bricks of evidence were allowed to 7 fall down and the charge was withdrawn." 8 And then the very last sentence: 9 "The investigating officers were not 10 included in the decision to withdraw the 11 charge and believed, at the time, that 12 the real purpose of the withdrawal was 13 to protect the Government." 14 Now, this case happens after Bernardo, 15 first of all, correct? 16 DR. MICHAEL POLLANEN: Yes. 17 MR. PETER WARDLE: After the Campbell 18 Inquiry, right? 19 DR. MICHAEL POLLANEN: Yes. 20 MR. PETER WARDLE: After Guy Paul Morin? 21 DR. MICHAEL POLLANEN: Yes. 22 MR. PETER WARDLE: After the Guy Paul 23 Morin Inquiry? 24 DR. MICHAEL POLLANEN: Correct. 25 MR. PETER WARDLE: The Kaufman Inquiry.
1501 And yet, would you agree with me that this letter 2 demonstrates a certain basic misunderstanding by the 3 police of the role played by experts like a forensic 4 pathologist in the system. 5 DR. MICHAEL POLLANEN: I'm not certain I 6 would read it that way. What I would say I get from -- 7 from what we've just looked at is that the police are 8 demonstrating a frustration between having certain expert 9 conclusions at one (1) point in time, and them -- then 10 having those conclusions withdrawn in the context of where 11 they -- they believe they have other corroborative 12 evidence. 13 So, I -- I see this more as a -- as a 14 frustration with a disconnection between expert evidence 15 and other evidence. 16 MR. PETER WARDLE: I'll -- I'll accept 17 your terminology for now. Would you agree that this sort 18 of set of correspondence demonstrates, perhaps, that if 19 there's going to be, you know, further training and 20 education the police need to be very much involved so that 21 they fully understand how the process works. 22 DR. MICHAEL POLLANEN: Yes, I -- I would 23 say that the training or education issue here is the scope 24 and limits of expert evidence. 25 MR. PETER WARDLE: Mr. Commissioner, I had
1511 about five (5) minutes of questions relating to the Jenna 2 case and I don't know whether I'm out of time or not, to 3 be quite frank. If I am out of time, that's fine. 4 COMMISSIONER STEPHEN GOUDGE: Let us just 5 see how we are doing. How are we doing, Mr. Sandler? 6 MR. MARK SANDLER: If it's of some 7 assistance I have been advised by the province of Ontario 8 that it's unlikely that it will be using its time, so. 9 COMMISSIONER STEPHEN GOUDGE: Okay. And 10 Mr. Sokolov, I have you down for fifteen (15) minutes, is 11 that right? 12 MR. LOUIS SOKOLOV: That's correct. 13 COMMISSIONER STEPHEN GOUDGE: And then the 14 rest of the batting order is Ms. Greene, thirty (30) 15 minutes? 16 MS. MARA GREENE: Yes, that's correct. 17 COMMISSIONER STEPHEN GOUDGE: And Ms. 18 Fraser, twenty (20) minutes? And what about the hospital, 19 Ms. Crawford? 20 MS. KATE CRAWFORD: We may not have any 21 questions, your Honour. 22 COMMISSIONER STEPHEN GOUDGE: Okay. Well, 23 with that -- 24 MR. PETER WARDLE: So I'll take the 25 afternoon?
1521 COMMISSIONER STEPHEN GOUDGE: It is not 2 that close to the season of giving to do that, Mr. Wardle. 3 We will come back at two o'clock and you can wrap up with 4 five (5) minutes of questions on the last case. 5 MR. PETER WARDLE: And it will be five (5) 6 minutes, thank you. 7 COMMISSIONER STEPHEN GOUDGE: Okay. So we 8 will rise now until two o'clock. 9 10 --- Upon recessing at 1:45 p.m. 11 --- Upon resuming at 2:02 p.m. 12 13 THE REGISTRAR: All rise. Please be 14 seated. 15 COMMISSIONER STEPHEN GOUDGE: Mr. 16 Wardle...? 17 18 CONTINUED BY MR. PETER WARDLE: 19 MR. PETER WARDLE: Dr. Pollanen, we should 20 both have in front of us the Jenna overview report, which 21 is Volume I, Tab 7. 22 And I just want to briefly ask you some 23 follow-up questions to some questions that were asked of 24 you by other counsel just before the break at lunch. 25 You will recall you were asked some
1531 questions about Dr. Smith's post-mortem report, and the 2 observations he made with respect to the healing, or lack 3 of healing, with respect to certain injuries. 4 Correct? 5 DR. MICHAEL POLLANEN: Yes. 6 MR. PETER WARDLE: And you were also asked 7 about his evidence at the preliminary, and I took it that 8 you were being asked those questions to indicate that he 9 was alive to the timing of certain injuries, because he 10 opined on it at the preliminary, correct? 11 DR. MICHAEL POLLANEN: Yes. 12 MR. PETER WARDLE: Okay. I want to just 13 take you back and just deal with Dr. Smith's opinions in 14 the context of the police investigation. And I want to 15 start at page 15; paragraph 39. 16 And obviously at the time of the autopsy -- 17 at the time of any discussions between Dr. Smith and the 18 police, he wouldn't yet have the results from histology. 19 Correct? 20 DR. MICHAEL POLLANEN: Where are we in the 21 overview report? 22 MR. PETER WARDLE: I'm sorry. I'm at page 23 15; paragraph 39. 24 COMMISSIONER STEPHEN GOUDGE: It would be 25 page 13 on the upper right-hand corner of the hard copy.
1541 DR. MICHAEL POLLANEN: Right -- thank you. 2 3 CONTINUED BY MR. PETER WARDLE: 4 MR. PETER WARDLE: So maybe -- well let me 5 -- let me try it this way, Dr. Pollanen. 6 If you look at the notes of the officer of 7 his attendance at the autopsy, you'll see, going over the 8 top of the next page: 9 "Dr. Smith concludes the victim suffered 10 a blow with a blunt object, could be 11 fist or foot, causing a rupture in the 12 duodenal, pancreas, and liver. There 13 was no evidence that this injury had 14 begun to heal. Occurred within a few 15 hours prior to death." 16 At the time that conversation took place, 17 presumably Dr. Smith didn't have any histology results. 18 Correct? 19 DR. MICHAEL POLLANEN: Correct. 20 MR. PETER WARDLE: All right. And then if 21 you go on to paragraph 45. This is on page 17. 22 DR. MICHAEL POLLANEN: Yes. 23 MR. PETER WARDLE: This is a conversation 24 one (1) of the officers has with the Regional Supervising 25 Coroner, who has apparently been advised certain
1551 information by Dr. Smith, and you'll see it says at the 2 beginning: 3 "On gross examination..." 4 I assume that means based on the autopsy 5 per se without the histology: 6 "...the exact time frame cannot be 7 determined pertaining to the injury that 8 caused Jenna's death." 9 Do you see that? 10 DR. MICHAEL POLLANEN: Yes. 11 MR. PETER WARDLE: And then a little 12 further on at page 19, paragraph 50. 13 This is now referring to a submission to 14 the CFS for testing, and the case submission form of 15 Detective Constable Lemay stated: 16 "It is the opinion of Dr. Smith that the 17 intra abdominal trauma was caused within 18 a twenty-four (24) hour period." 19 Do you see that? 20 DR. MICHAEL POLLANEN: Yes. 21 MR. PETER WARDLE: And then over now to 22 paragraph 56 on page 20; occurrence report of Detective 23 Constable Lemay referring to a meeting at the coroner's 24 office: 25 "The investigators were informed that no
1561 injuries could be dated past twenty-four 2 (24) hours." 3 Do you see that? 4 DR. MICHAEL POLLANEN: Yes. 5 MR. PETER WARDLE: And then of course, the 6 post-mortem report, which My Friend took you through this 7 morning, which starts a little further in this document at 8 paragraph 62. 9 It doesn't deal with the timing of the 10 injuries, does it? 11 DR. MICHAEL POLLANEN: It's a list of 12 diagnoses, as opposed to breaking them down to time 13 interval. 14 MR. PETER WARDLE: Correct. 15 So the first time Dr. Smith actually deals 16 with the timing of the injuries in -- in the kind of way 17 that, you know, you've been dealing with, and sort of 18 separating one (1) organ for another, the first time we 19 see that level of specificity is in fact at the 20 preliminary inquiry, correct? 21 DR. MICHAEL POLLANEN: Well, we see the 22 foundation of it in the histology descriptions but then an 23 analysis of the meaning of those observations, yes. 24 MR. PETER WARDLE: And the analysis of the 25 meaning of those observations, that's information the
1571 police would have wanted to know, correct? 2 DR. MICHAEL POLLANEN: Yes. 3 MR. PETER WARDLE: And they would have 4 wanted to know that information before they made a 5 decision as to whether to lay charges in this case, 6 correct? 7 DR. MICHAEL POLLANEN: Well there -- there 8 are many things that go into police determination of 9 charging. I'm not an expert in that, but I can tell you 10 that I am aware that timing is one of those things that 11 police are often very interested in, because their 12 investigation is situated on a time line. 13 MR. PETER WARDLE: So if, as you said to 14 us the other day, the timing difference between certain 15 abdominal injuries was fairly stark, that's information 16 the police would have wanted to know before they made a 17 decision to lay charges; fair? 18 DR. MICHAEL POLLANEN: Again, I mean, the 19 issue here for me is you've got two (2) time intervals. 20 If -- two (2) time points separated on a time -- time 21 course -- time line. And if there are things that are 22 happening in the police investigation at specific points 23 in the time line, you would want to correlate that 24 information with what is in the autopsy. I agree with 25 that, yes.
1581 MR. PETER WARDLE: Thank you, those are 2 all my questions. 3 COMMISSIONER STEPHEN GOUDGE: Thanks, Mr. 4 Wardle. 5 Mr. Sokolov...? 6 7 CONTINUED CROSS-EXAMINATION BY MR. LOUIS SOKOLOV: 8 MR. LOUIS SOKOLOV: Good afternoon, Dr. 9 Pollanen. 10 DR. MICHAEL POLLANEN: Good afternoon. 11 There are just a few issues I'd like to deal with briefly 12 this afternoon arising out of your report concerning the 13 ten (10) systemic issues. 14 And the first issue I'd like to deal with 15 is systemic issue number 10, and that's defence pathology. 16 And out of that, two (2) issues, two (2) sub-issues I'd 17 like to probe with you briefly are the issue of access to 18 experts by the defence and also the relationship between 19 Crown and defence experts, that collaborative approach 20 that was discussed yesterday, and what's also been 21 referred colloquially as the -- the hot tub approach. And 22 why don't we deal with that first. 23 The Commissioner raised with you yesterday 24 the concern, and if I can paraphrase it this way, that in 25 that approach that strength of personality might dominate
1591 in the process more so than the strength of the argument. 2 You'll recall that? 3 DR. MICHAEL POLLANEN: Yes. 4 MR. LOUIS SOKOLOV: And you were, with 5 respect, a little dismissive of that concern and I just 6 want to -- to go a little further with that -- with you. 7 COMMISSIONER STEPHEN GOUDGE: I wasn't 8 insulted, Dr. Pollanen. 9 10 CONTINUED BY MR. LOUIS SOKOLOV: 11 MR. LOUIS SOKOLOV: You also said 12 similarly that you weren't terribly concerned about this 13 issue of someone developing as an icon or a guru. 14 You'll recall that? 15 DR. MICHAEL POLLANEN: I think what I said 16 was that non-medical people might come to such 17 conclusions, but lets put it this way, that some people 18 may identify a person or persons as icons or gurus, and 19 other people may not agree with that position who are in 20 the same discipline as the icon or guru. 21 MR. LOUIS SOKOLOV: Now when we consider 22 the circumstances which have brought us here in this room, 23 you have the issue, and I'm thinking particularly of the - 24 - the Valin Case. And I appreciate it wasn't that kind of 25 hot tub earlier on, but if you turn your mind back to the
1601 -- the issue of Dr. Ferris. 2 And Dr. Ferris' explanation as to how his 3 opinion had initially come to be, and you'll recall that, 4 I take it? 5 DR. MICHAEL POLLANEN: I -- I vividly 6 recall the letter that he wrote after he reviewed the 7 materials and came to a different view. 8 MR. LOUIS SOKOLOV: And Dr. Ferris of 9 course is someone who wasn't a layperson, he was a 10 experienced pathologist in his own right? 11 DR. MICHAEL POLLANEN: Yes. 12 MR. LOUIS SOKOLOV: And he -- he was 13 someone who appeared to be quite swayed as it were by the 14 -- the stature of Dr. Smith in coming to the opinion that 15 he had, and you'll recall that? 16 DR. MICHAEL POLLANEN: Well, Dr. Ferris 17 actually identifies multiple points in his -- 18 MR. LOUIS SOKOLOV: Fair enough. 19 DR. MICHAEL POLLANEN: -- letter. And -- 20 MR. LOUIS SOKOLOV: And that's just one 21 (1) of them. 22 DR. MICHAEL POLLANEN: And that's one (1) 23 of them. And I did not take the letter to indicate that 24 that was a particularly strong variable. 25 But I agree, to be totally transparent on
1611 that issue, that Dr. Ferris does identify that as an 2 issue, saying that there was some type of -- I think it's 3 too strong to say a deference, but there was some type of 4 understanding that he could start later on in the process 5 of analysis, taking certain things as proven as opposed to 6 testing certain elements. 7 MR. LOUIS SOKOLOV: And Dr. Smith, I 8 expect you'd agree with me, was something of an icon in 9 Ontario pathological circles for many years. 10 DR. MICHAEL POLLANEN: I think we would 11 need to flesh that out slightly more. I would say that 12 that would not be as simple as that. 13 MR. LOUIS SOKOLOV: The point that I'd 14 like you to turn your mind to, though, is doesn't the 15 Valin case and the issue with Dr. Ferris precisely flag 16 the danger or the concern that the Commissioner raised 17 with you yesterday, and that is, force of personality or 18 force of stature or strength of stature outstripping 19 strength of argument? 20 DR. MICHAEL POLLANEN: I don't mean to be 21 difficult with your -- with your point of view, because I 22 can see your point of view. Having known Dr. Ferris 23 myself, and knowing his rather strong personality on some 24 of these issues, I'm less convinced that the iconic 25 magnitude of Dr. Smith in some say overshadowed Dr.
1621 Ferris' views on the matter. 2 I think it's more as if the -- Dr. Ferris 3 accepted certain observations and conclusions more readily 4 rather than vigorously testing them. 5 MR. LOUIS SOKOLOV: Because of who it was 6 who was the proponent of it? 7 DR. MICHAEL POLLANEN: I think that, and 8 also because there was other support for the view. 9 MR. LOUIS SOKOLOV: Right. Let me turn 10 then to the next issue regarding -- under systemic -- 11 COMMISSIONER STEPHEN GOUDGE: Before you 12 do that, Dr. Pollanen, you said in answer to Mr. Sokolov's 13 question about Dr. Smith being an icon, that it wasn't as 14 simple as that. Unpack that a little bit. 15 DR. MICHAEL POLLANEN: Well, there's -- 16 clearly, people have reputations and people get credit for 17 various accomplishments that they have, but in the 18 discipline such as forensic pathology, which is an 19 analytical discipline, where we're very used to testing 20 evidence, it's -- it's often not approximate, it probably 21 doesn't capture the reality that even if somebody enjoys 22 stature that their views are not immune to examination and 23 testing. 24 And part of -- part of being a forensic 25 pathologist, part of being a pathologist at all is daily
1631 testing of one's views. That doesn't mean that, for 2 example, very senior people might not have a view that is 3 considered by some to be more relevant or valuable, but I 4 don't think to say such a person has achieved a status and 5 we'll label them with the term icon or guru and that's a 6 satisfactory explanation for why there was not a 7 sufficient challenge or analysis of their view, I think 8 it's an oversimplification. 9 COMMISSIONER STEPHEN GOUDGE: Dr. Butt, 10 when he was here described, in effect, that the iconic 11 dimension of medical culture generally, forensic medicine, 12 typical, less typical? Or is Dr. Butt perhaps overstating 13 the culture generally? 14 DR. MICHAEL POLLANEN: Well, it reminds me 15 of probably the best example of this in the history of 16 forensic pathology in the 20th century, which was the feud 17 between Simpson and Camps (phonetic) in the Truscott case. 18 And in that circumstance you did, basically, have two 19 iconic personalities sort of battling it out, as it were, 20 over an issue of time of death. 21 And I think that scenario shows that people 22 do have iconic status, but it doesn't change the fact that 23 there is healthy debate amongst icons or amongst people 24 that can still challenge them. So, to say we have an 25 iconic culture and we don't like to topple people on
1641 pedestals, I don't think quite encapsulates that view. 2 COMMISSIONER STEPHEN GOUDGE: He began 3 with Sir Bernards Billsbury (phonetic) as the 4 personification of that. 5 DR. MICHAEL POLLANEN: Yes, and I think, 6 perhaps, we would say that as -- as we go further down the 7 track, that's probably becoming less a view, you know. 8 COMMISSIONER STEPHEN GOUDGE: Less respect 9 for elders? 10 DR. MICHAEL POLLANEN: No. 11 COMMISSIONER STEPHEN GOUDGE: I find that 12 disconcerting, Doctor. 13 DR. MICHAEL POLLANEN: There's a -- 14 there's an increased culture of healthy skepticism -- 15 COMMISSIONER STEPHEN GOUDGE: Okay. 16 DR. MICHAEL POLLANEN: -- and more -- and 17 more probing culture related to an evidence-based 18 approach. 19 COMMISSIONER STEPHEN GOUDGE: Thanks. I 20 mean, it's a serious issue. I didn't mean to be facetious 21 about it. 22 23 CONTINUED BY MR. LOUIS SOKOLOV: 24 MR. LOUIS SOKOLOV: I want to turn then to 25 the -- the issues regarding barriers to access to defence
1651 pathology, which is at page 12 of your report. And I'm -- 2 I'm not going to go through all of them. 3 COMMISSIONER STEPHEN GOUDGE: Just before 4 you leave -- sorry, Mr. Sokolov. 5 MR. LOUIS SOKOLOV: That's okay. 6 COMMISSIONER STEPHEN GOUDGE: I had 7 another question in my head about experts and then the 8 testimony in Court. You said, I think, yesterday, Dr. 9 Pollanen, that one (1) of the deficiencies about defence 10 experts is the paucity of funding from legal aid. 11 DR. MICHAEL POLLANEN: Yes. 12 COMMISSIONER STEPHEN GOUDGE: What's the 13 funding when the pathologist from your office is giving 14 evidence for the Crown? 15 DR. MICHAEL POLLANEN: Very interesting. 16 Currently, if a -- if I appear for the Crown I'm not paid 17 at all; that comes from part of my duties, part of my 18 salary duties for the Government of Ontario. 19 If, however, a fee-for-service pathologist 20 goes to Court for the Crown, there's a set witness fee and 21 for -- for one (1) day in Criminal Court, it's currently 22 six hundred and fifty dollars ($650) for the day, and 23 that's billed by -- paid for by the Ministry of the 24 Attorney General, so I -- 25 COMMISSIONER STEPHEN GOUDGE: So you'd get
1661 that on top of -- let's -- and that would be a fee-for- 2 service pathologist getting that? 3 DR. MICHAEL POLLANEN: Correct. 4 COMMISSIONER STEPHEN GOUDGE: And so the 5 six hundred and fifty dollars ($650) would be on top of 6 the fee that the pathologist got for doing the autopsy in 7 the first place. 8 DR. MICHAEL POLLANEN: Correct. 9 COMMISSIONER STEPHEN GOUDGE: What's the 10 legal aid fee? 11 DR. MICHAEL POLLANEN: The legal aid fee, 12 I believe, is ninety dollars ($90) per hour, and it's -- 13 it's typically capped to so many hours. 14 COMMISSIONER STEPHEN GOUDGE: Rough 15 number, do you know? 16 DR. MICHAEL POLLANEN: Not a large number 17 of hours. Certainly ten (10) -- 18 COMMISSIONER STEPHEN GOUDGE: I'm trying 19 to get a comparison here. 20 DR. MICHAEL POLLANEN: Approximately ten 21 (10). 22 COMMISSIONER STEPHEN GOUDGE: So that 23 would be nine hundred dollars ($900). 24 DR. MICHAEL POLLANEN: Yes. 25 COMMISSIONER STEPHEN GOUDGE: And the fee
1671 for an autopsy for a fee-for-service pathologist, a 2 thousand dollars ($1,000), is that what -- 3 DR. MICHAEL POLLANEN: No, that's for a 4 routine case. Thirteen fifty (1,350), I believe. 5 COMMISSIONER STEPHEN GOUDGE: Okay, so 6 it's that order of magnitude; (1,350) plus six hundred 7 (600) on one (1) hand and nine hundred (900) on the other. 8 DR. MICHAEL POLLANEN: Yes. 9 COMMISSIONER STEPHEN GOUDGE: Well, the 10 other isn't doing an autopsy, he's doing an opinion under 11 -- and giving evidence. 12 DR. MICHAEL POLLANEN: Usually not giving 13 evidence, in fact, in Ontario. 14 COMMISSIONER STEPHEN GOUDGE: Yes, okay. 15 Yes, you've reviewed that yesterday. Sorry, I just wanted 16 to get that -- 17 MR. LOUIS SOKOLOV: No, no, no, that's all 18 right. 19 COMMISSIONER STEPHEN GOUDGE: -- at least 20 roughly on the table. 21 MR. LOUIS SOKOLOV: Is that injury time, 22 Mr. Commissioner. 23 COMMISSIONER STEPHEN GOUDGE: That's 24 injury time, Mr. Sokolov. 25
1681 CONTINUED BY MR. LOUIS SOKOLOV: 2 MR. LOUIS SOKOLOV: Thank you very much. 3 The -- so -- some of the issues are -- are financial, and 4 I won't deal with those, and I believe My Friend, Ms. 5 Greene may have some questions for you about that, but... 6 And some of the issues that you -- you've 7 put out in your eleven (11) barriers are -- are manpower 8 type issues, but there's another group of issues which I 9 do want to ask you about, and that's, essentially, 10 cultural issues, in that -- in -- in order to -- I'm 11 trying to paraphrase what you say here, but in order to 12 improve access to defence for pathologists, or for -- for 13 defence to pathologists, you need to really change the 14 culture and make it a -- an acceptable or encourage 15 pathologists to work for the defence, is that fair? 16 DR. MICHAEL POLLANEN: Well, I'm not 17 entirely sure we need all that encouragement. 18 MR. LOUIS SOKOLOV: All right. 19 DR. MICHAEL POLLANEN: I think -- I think 20 many people are open to doing confent -- defence 21 consultation work, but I would agree that there's probably 22 area -- it's probably an area for improvement. 23 MR. LOUIS SOKOLOV: So, how do you do 24 that? How do you -- you change the culture or improve the 25 culture in your office and among fee-for-service
1691 pathologists to make it more excessive -- access -- 2 acceptable or desirable for these people to -- to work for 3 the defence? 4 DR. MICHAEL POLLANEN: Joint educational 5 events, and I would say one (1) of the best ways of doing 6 it is getting invitations to your meetings, to have us sit 7 on panels and give lectures or seminars or workshops. 8 I've actually tried to reach out to the 9 defence community to involve them in our continuing 10 medical education events surrounding expert witness 11 testimony and I've had very good response. And I have 12 taken part in some continuing legal education events 13 through York University, Osgoode Hall. 14 But there needs to be more of that and I'll 15 tell you in my view one of the ways, one of the most 16 effective ways of doing it, and that is the pathologists 17 in my department -- and -- and now we're involving 18 actually pathologists from the Regional Forensic 19 Pathologist units -- take part in the trial advocacy 20 course at the University of Toronto. It's a very good way 21 of seeing, sort of the next generation of -- of lawyers 22 early in their development to introduce them to 23 pathologists. 24 And in the last trial advocacy course that 25 we participated in I actually brought our trainees which I
1701 thought -- a very interesting dynamic, I can tell you, to 2 put trainee pathologists, residents and fellows who have 3 never been to Court before into a training exercise with 4 law students who have never been to Court before and them 5 working -- them working through the whole expert witness 6 situation. 7 I personally thought it was very effective 8 and that's the sort of thing I'd like to see. 9 Coming back to this point of cultural 10 changes, large scale changes in beliefs and way -- the way 11 we do things do not come from policies and memos, they 12 come from fundamental changes related to education and the 13 earlier in the curriculum the better. 14 MR. LOUIS SOKOLOV: I want to briefly then 15 have you turn your mind back to Systemic Issue number 2: 16 The growth of knowledge in forensic pathology. 17 And we know when you've testified that the 18 knowledge base obviously is not fixed, it evolves and 19 indeed it can shift radically at times. 20 And you -- you gave evidence and your paper 21 covers the -- the disconnect, as it were, between the -- 22 the scientific process and the legal process. And the -- 23 the question that I -- that I have for you that arises out 24 of that is that as, I believe you'll -- you'll agree with 25 me that scientific evidence in general and forensic
1711 pathology in particular have in the past and can 2 potentially give rise to -- to erroneous convictions? 3 DR. MICHAEL POLLANEN: Rather starkly put. 4 MR. LOUIS SOKOLOV: Yes. And that 5 sometimes despite the best efforts of -- of people in this 6 room or people in your profession, miscarriages of justice 7 will occur as a result of incorrect forensic pathology? 8 DR. MICHAEL POLLANEN: "Contribute to" 9 would probably be a less deflammatory way of saying it. 10 MR. LOUIS SOKOLOV: I -- I don't mean to 11 be inflammatory, but -- and if you accept the premise that 12 science may evolve in some of these cases, the -- the 13 question that I have for you is: 14 What do you see the role of your offices 15 and people within your office, obviously keeping abreast 16 of scientific developments, in bringing those developments 17 to the attention of, whether it's the Crown, whether it's 18 the defence community, whether it's AIDWYC, to proactively 19 get that information out there so -- so that those 20 miscarriages of justice can be corrected? 21 DR. MICHAEL POLLANEN: Or those issues 22 canvassed -- 23 MR. LOUIS SOKOLOV: Fair enough. 24 DR. MICHAEL POLLANEN: -- and perhaps 25 leading to, then, processes that result in identifying
1721 convictions that need to be reviewed -- 2 MR. LOUIS SOKOLOV: Okay. 3 DR. MICHAEL POLLANEN: -- and then through 4 legal mechanisms correct -- 5 MR. LOUIS SOKOLOV: So -- so let's just 6 focus then on the proactive provision of the new 7 scientific information that can get the ball rolling, as 8 it were. 9 DR. MICHAEL POLLANEN: Right. So I think 10 that to continue on the theme of education, I think that's 11 a -- a very good mechanism of doing it, and that is, for 12 example, bringing to the forefront the shaken baby issue 13 and combined -- combined educational programs. 14 I think that we also need to look at 15 mechanisms that are perhaps a little bit more firmly 16 developed on the side of the Government apparatus, which 17 includes, for example, in -- in the shaken baby issue 18 where I went to the Ministry of the Attorney General and 19 identified an issue that I thought they should consider. 20 So I think we need to create opportunities 21 for dialogue within the system, and some of those 22 opportunities will come as -- as being identified by 23 certain players, or -- or parties, but there needs to be 24 some mechanism that facilitates that interaction. 25 Now I think actually my interaction with
1731 the Crowns was facilitate -- facilitated by the formation 2 of a criminal convictions review group within the Ministry 3 of the Attorney General. 4 So there was, in fact, as it were, a 5 destination for me to go to. So I thought that was a very 6 positive step. It was -- within the institution a 7 mechanism to connect -- for our institution to connect 8 with the other institution. 9 MR. LOUIS SOKOLOV: Just one (1) question 10 arising out of that. 11 Do -- do you accept that your office has a 12 responsibility then, to pro-actively put that information 13 -- bring that information forward when it -- when -- when 14 you learn of it? 15 DR. MICHAEL POLLANEN: Well, I think 16 there's a -- again it goes to a shared responsibility for 17 all of us involved in the criminal justice process. 18 But when things are particularly medical, 19 and they may have great legal significance, the -- the -- 20 probably the main mechanism to disseminate that 21 information is through joint educational programs. 22 I'll give you an example. We have -- I, 23 and others, often teach at Crown's School in the 24 summertime, and it's uncommon to raise issues at that 25 point.
1741 These are the -- these are the emerging 2 issues in -- in forensic pathology, and, you know, 3 transfer that information. 4 The -- if you take this sort of further 5 down the path of logical inference, you do get into a 6 problem though. 7 And that problem, that I'm very wary of, is 8 that the pathologists cannot insert themselves into a pro 9 -- into any type of process which brings them too close to 10 advocacy. 11 And that is a -- that's a real danger in 12 what we do. And -- and so the pathologists as -- as it 13 were, needs to be -- maintain their role as a witness -- 14 as a consultant, and become insulated from getting 15 involved in advocacy. 16 MR. LOUIS SOKOLOV: Thank you. 17 COMMISSIONER STEPHEN GOUDGE:: Thanks, Mr. 18 Sokolov. 19 Ms. Greene...? 20 21 CONTINUED CROSS-EXAMINATION BY MS. MARA GREENE: 22 MS. MARA GREENE: Good afternoon, Doctor. 23 DR. MICHAEL POLLANEN: Good afternoon. 24 MS. MARA GREENE: I am mostly going to be 25 dealing with checks and balances in the system.
1751 And I want to start off with an issue that 2 was addressed with you late in the day yesterday, and that 3 is the process of implementing a form system. Something 4 similar to what the CFS does with their forms that go to 5 the lawyers to send back in. 6 And I understood from your evidence 7 yesterday that you preferred a peer review approach to 8 this type of form system. 9 Is that fair? 10 DR. MICHAEL POLLANEN: Yes. 11 MS. MARA GREENE: And I also understood 12 that the Commissioner did point out to you there were 13 certain benefits of the form system that weren't achieved 14 through peer review, which is determining how user 15 friendly the evidence was. 16 DR. MICHAEL POLLANEN: Yes. 17 MS. MARA GREENE: And I gather from your 18 evidence that you accepted that position, and that you 19 felt it was -- the judge was in the best position to, sort 20 of maybe, address some of those issues. 21 DR. MICHAEL POLLANEN: Yes. 22 MS. MARA GREENE: I'm going to suggest to 23 you that there are some issues that are best addressed 24 still by counsel, and that those issues are very relevant 25 to your office determining how the pathologist is doing.
1761 For example, the lawyer -- the defence 2 lawyer would be in the best position to let your office 3 know whether or not the pathologist made him or herself 4 available to counsel prior to trial, right? 5 DR. MICHAEL POLLANEN: Yes. 6 MS. MARA GREENE: That is not something 7 the judge could tell you? Right? 8 DR. MICHAEL POLLANEN: Cor -- correct. 9 MS. MARA GREENE: And that is not 10 something a peer review of the testimony could tell you? 11 DR. MICHAEL POLLANEN: Correct. 12 MS. MARA GREENE: And in your system, when 13 you talk about the objectivity of the pathologists; and 14 the neutrality of the pathologists; and the importance of 15 getting the science right, access to defence counsel is 16 important, right? 17 DR. MICHAEL POLLANEN: Certainly. As we've 18 indicated, communication of -- of an -- any expert witness 19 with counsel before trial is beneficial. 20 MS. MARA GREENE: And so that would be 21 something that you would want to be apprised of; if the 22 pathologist was not communicating with defence counsel? 23 DR. MICHAEL POLLANEN: I mean, certainly 24 if -- if there was an attempt by defence counsel to 25 communicate with the pathologist. And, for example, phone
1771 calls weren't answered or this type of thing happened, 2 yes, there would be an advantage in knowing that. 3 MS. MARA GREENE: Similarly, whether or 4 not the expert shifted his or her opinion from a meeting 5 with counsel to what he or she testified to, that again is 6 something only counsel would know, not the judge and not 7 from a peer review of the testimony, correct? 8 DR. MICHAEL POLLANEN: It very well might 9 be apparent in the peer review of the testimony. In the 10 model that I've suggested, the reviewing pathologists who 11 did the peer review, who looked at the post-mortem report, 12 would then review the testimony. So if there was a 13 discrepancy, you would ascertain it through that 14 mechanism. 15 MS. MARA GREENE: But at the present time, 16 the post-mortem reports don't always include all the 17 opinions of the pathologist, correct? 18 DR. MICHAEL POLLANEN: That's evolving, 19 yes. 20 MS. MARA GREENE: And so sometimes it's 21 quite conceivable that opinions would be provided at 22 meetings with counsel or at case conferences where counsel 23 are present, correct? 24 DR. MICHAEL POLLANEN: Or indeed specific 25 questions raised for the first time.
1781 MS. MARA GREENE: Right. 2 DR. MICHAEL POLLANEN: Yes. 3 MS. MARA GREENE: So -- so by just looking 4 at the report and the testimony, you might not get that, 5 correct? 6 DR. MICHAEL POLLANEN: Yes, that's true. 7 MS. MARA GREENE: Okay. Now you also 8 indicated that one (1) of the reasons why you preferred 9 the peer review system to that of the form system, was 10 that it put you in a difficult position about reporting to 11 the College or the governing body for the pathologist. 12 And the example you gave was the perjury example. 13 If an allegation was made of perjury, what 14 do you do with that? 15 DR. MICHAEL POLLANEN: Well I think -- I 16 think I indicated that that's prob -- perhaps a good 17 example of where we would know what to do with it. But if 18 it was a -- a less defined criticism that may go to some 19 borderline issue, we would have to have a procedure that 20 would give us advice on what to do. 21 So in other words what I'm saying is that 22 the difference between the court letter in the Centre of 23 Forensic Science and the -- the court letter for a 24 forensic pathologist would essentially relate to the fact 25 that we have a professional body that -- the College,
1791 which administers us -- licenses us as it were. 2 And -- and also that the -- the people who 3 get the court letter from the Centre are employees of the 4 Centre. And most pathologists that are working in the 5 Province are not our employees. 6 So I'm just -- I'm not certain, I have to 7 think about what those implications are for -- for the 8 court letter in the circumstance of the pathologist. 9 MS. MARA GREENE: Because I'm just trying 10 to sort of understand where you're coming from on that 11 point. Because the way I envision the system is that you 12 get a form letter that has a discreet number of questions 13 that are relevant to the lawyer's role and the 14 pathologist's role in the case, and that those issues are 15 relevant to your assessment of this pathologist and 16 wouldn't necessarily relate to issues that would go to the 17 College? 18 I mean, for example, Were you assessable to 19 defence counsel? Did their opinions shift? I mean, so it 20 was those basic questions. 21 DR. MICHAEL POLLANEN: So I -- I take it 22 from that you're suggesting that one could create a form 23 that might be perhaps more objective and identify in -- in 24 a specific way those things that we would like to know 25 about, rather than providing a more qualitative
1801 assessment. 2 Is that -- 3 MS. MARA GREENE: Yes. 4 DR. MICHAEL POLLANEN: That's a reasonable 5 approach. 6 MS. MARA GREENE: All right. I now want 7 to move into the defence pathologist for a bit and go 8 through your vision of it. And I want to start off with 9 this position: 10 Do you accept that a defence pathologist is 11 an effective checks and balance in the system? 12 DR. MICHAEL POLLANEN: I do, yes. 13 MS. MARA GREENE: Okay. And that it's one 14 (1) of the most effective checks and balances for the 15 system? 16 DR. MICHAEL POLLANEN: Can be 17 determinative, yes. 18 MS. MARA GREENE: All right. And, as 19 you've already testified, there are some difficulties in 20 the present system about defence retaining def -- defence 21 pathologists, correct? 22 DR. MICHAEL POLLANEN: Yes. 23 MS. MARA GREENE: And you've discussed 24 access; I'm not going to go through that again. And 25 you've also discussed funding, correct?
1811 DR. MICHAEL POLLANEN: Yes. 2 MS. MARA GREENE: All right. I just want 3 to address the funding for a few min -- for a few minutes 4 here, because one (1) of the issues you raised related to 5 the number of hours that legal aid will allow the 6 pathologist to be paid for. And you've estimated about 7 ten (10). 8 DR. MICHAEL POLLANEN: Yes. 9 MS. MARA GREENE: So -- and my question to 10 you first is: On a basic -- 11 DR. MICHAEL POLLANEN: If I can just 12 enlarge that. Or in some circumstances I've suggested a 13 certain course of action, which would inc -- require a 14 certain amount of funding, and I've been told no. 15 So in some -- I'm thinking of a particular 16 case, not in this province, where I indicated that I would 17 like to do certain things in my role as a defence 18 pathologist, and an application was made to the 19 organization and funding was not provided. 20 So there are circumstances where there is 21 insufficient funding and then there are circumstances 22 where there's no funding. 23 MS. MARA GREENE: Okay. And I want to 24 start off with disposition. For a regular sort of review 25 on a average case how many hours will a -- does a
1821 pathologist typically need? Are you not able to answer 2 that? 3 DR. MICHAEL POLLANEN: It's quite -- quite 4 difficult -- it may -- it may be one (1) hour, it -- it 5 may be several hours. It's -- it really depends because 6 sometimes what the defence counsel thinks is a routine 7 matter turns out not to be a routine matter, or there is 8 some additional issue that comes later in the day, so it's 9 quite difficult to -- to predict. 10 MS. MARA GREENE: All right, so the -- 11 sort of more ideal mechanism would be to let the 12 pathologist sort of give an opinion as to how many hours 13 he or she needs? 14 DR. MICHAEL POLLANEN: Yes, after -- and 15 that's often what I do, for example, pre-screen a case and 16 then identify how much work do you think it would require. 17 MS. MARA GREENE: So, in your model, going 18 back to now, defence pathologists, my understanding from 19 your evidence is that and sort of in an ideal world you 20 would want this defence pathologist sort of early on, 21 right, the earlier the better; is that fair? 22 DR. MICHAEL POLLANEN: Yes. 23 MS. MARA GREENE: And you had talked about 24 defence autopsies, right? 25 DR. MICHAEL POLLANEN: Yes.
1831 MS. MARA GREENE: And I gather from when - 2 - when you're saying defence autopsies, that is when the 3 defence pathologist comes in and either attends the 4 autopsy with the, let's say, Crown pathologist for lack of 5 better terminology, or else does an autopsy after the 6 Crown pathologist. 7 DR. MICHAEL POLLANEN: Correct, the -- the 8 point here being they're not yet the Crown pathologists, 9 they're still the coroner's pathologist. 10 MS. MARA GREENE: Right. Okay, so the 11 coroner's pathologist. But that's the system that you are 12 talking about when you say the defence autopsy. 13 DR. MICHAEL POLLANEN: Yes. 14 MS. MARA GREENE: And obviously that has 15 to be done within a limited number of days, right, of the 16 first autopsy? 17 DR. MICHAEL POLLANEN: Because of 18 decomposition, yes. 19 MS. MARA GREENE: Okay. And so just to 20 sort of understand the feasibility of that, because I 21 recognise that you've said that rarely happens, right? 22 DR. MICHAEL POLLANEN: Yes. 23 MS. MARA GREENE: And in fairness, in our 24 system, especially with infant cases, often times a 25 person's not even arrested until the autopsy's completed,
1841 correct? 2 DR. MICHAEL POLLANEN: Correct. 3 MS. MARA GREENE: And until an opinion has 4 been given to the police about the cause of death and 5 potentially the mechanism of death. 6 DR. MICHAEL POLLANEN: Correct. 7 MS. MARA GREENE: Right, and so this ideal 8 of having a defence pathologist doing the autopsy is 9 difficult to sort of incorporate into our present system, 10 given the delays in charging; correct? 11 DR. MICHAEL POLLANEN: Given the natural 12 evolution -- 13 MS. MARA GREENE: Yes. 14 DR. MICHAEL POLLANEN: -- of the police 15 investigation -- 16 MS. MARA GREENE: Yes. 17 DR. MICHAEL POLLANEN: -- as opposed to 18 the delay. 19 MS. MARA GREENE: I'm not talking about 20 delay in a judgmental sense, just that the way the system 21 is set up is that the autopsy occurs, an opinion is 22 formed, an opinion is given, and then at some point in 23 time thereafter a person is arrested. 24 DR. MICHAEL POLLANEN: Right. The issue 25 there being that the -- the autopsy may provide material
1851 evidence that goes to whether or not a charge is -- is 2 made, and certainly then -- that will occur later, yes. 3 MS. MARA GREENE: Now, I also understood 4 from your evidence that you -- your ideal, there would be 5 a consultation or collaboration between the coroner or the 6 Crown pathologist and the defence pathologist at some 7 point in time, correct? 8 DR. MICHAEL POLLANEN: Correct. 9 MS. MARA GREENE: And so you sort of 10 envision this reciprocal disclosure process where the 11 Crown pathologist is alerted to the defence pathologist's 12 opinion and there's a meeting and a collaboration. 13 DR. MICHAEL POLLANEN: Yes. 14 MS. MARA GREENE: All right. And I 15 understood from your evidence yesterday, as well, that the 16 benefit of this kind of meeting is that it can either help 17 change an opinion or recognise where the disagreement is; 18 correct? 19 DR. MICHAEL POLLANEN: Correct. 20 MS. MARA GREENE: And on the changing-the- 21 opinion scope, my understanding also from your evidence 22 yesterday is that the sort of further along you are with 23 your opinion, the more you solidify it, so the further you 24 are in the pro -- in the process, the more solidified your 25 opinion is; correct?
1861 DR. MICHAEL POLLANEN: I think there's a 2 tendency for that, yes. Not to say that people aren't 3 opened late in the game, but -- but I think 4 psychologically there is a tendency to do that. 5 MS. MARA GREENE: And so because of that 6 tendency the fruitfulness of these meetings sort of later 7 in the game isn't as great as the -- the fruit -- 8 fruitfulness would be if it happened earlier in the game. 9 DR. MICHAEL POLLANEN: I agree. 10 MS. MARA GREENE: Now, in relation to 11 these conferences, let's say they -- they can now exist, 12 and a defence pathologist contacts you or a Crown 13 pathologist and the meeting occurs. 14 I want to discuss how that then fits into 15 the judicial process by way of sort of a disclosure in 16 communication, because you're aware that there's an 17 obligation to disclose information to the defence, 18 correct? 19 DR. MICHAEL POLLANEN: Yes. 20 MS. MARA GREENE: Okay. So how do you 21 envision this consultation process or collaboration 22 process being recorded? 23 DR. MICHAEL POLLANEN: I haven't thought 24 of it. The range would be, for example, that the defence 25 pathologist discusses the -- the nature of the discussion
1871 or the scope of the discussion to the defence attorney. 2 That would be one (1) possibility. 3 You may produce minutes of that meeting. 4 In some circumstances, perhaps one (1) or both experts 5 would produce a supplementary report. You may get into a 6 circumstance where, essentially, you create almost an 7 agreed statement of pathological facts. 8 There are many different possibilities. 9 MS. MARA GREENE: And would you -- as the 10 Crown pathologist, would there be an obligation to report 11 the information received from the defence pathologist to 12 the Crown? 13 DR. MICHAEL POLLANEN: I don't know. 14 MS. MARA GREENE: All right. 15 COMMISSIONER STEPHEN GOUDGE: You mean a 16 legal obligation? 17 18 CONTINUED BY MS. MARA GREENE: 19 MS. MARA GREENE: No, just a -- would -- 20 would your office hold the opinion that the pathologist 21 was supposed to do that; contact the Crown and notify them 22 of the information they received? 23 DR. MICHAEL POLLANEN: I -- my own view is 24 that if we're all engaged in an open exercise in searching 25 for the truth, then I don't see what the -- what the
1881 inhibition would be to doing that; to have a free exchange 2 of -- of information. 3 MS. MARA GREENE: And similarly, where 4 defence counsel contacts the Crown pathologist to ask 5 questions, does your office have a position on whether or 6 not the pathologist contacts the Crown and notifies them 7 of the conversation? 8 DR. MICHAEL POLLANEN: There is certainly 9 no policy that the practice would be that we wouldn't do 10 that. The practice has been that if we get -- if we have 11 a conversation with defence -- with defence counsel, we 12 wouldn't necessarily call the Crown and describe in detail 13 all of our interactions with defence counsel. 14 In -- in fact, what -- what typically 15 happens in -- in my circumstance is that I will meet with 16 the Crown prior to the preliminary inquiry or trial at the 17 Crown's request. 18 Crowns are very good at initiating these 19 pre-trial meetings. And at the conclusion of my meeting 20 with the Crown, I will say, And the next time you're 21 speaking to defence counsel, remind them that I'm open to 22 meeting with them or having a telephone conversation, and 23 that's usually the way it goes. 24 The -- the Crown ends up being my emissary, 25 as it were, to say, Come and meet with me or at least
1891 communicate with me. 2 MS. MARA GREENE: Now dealing with the, 3 sort of, the defence pathologist and the collaborative -- 4 collaboration meeting, you had mentioned yesterday that 5 there were some -- like you gave the example, Dr. Jaffe -- 6 someone who was known to be a defence pathologist, and 7 putting Dr. Jaffe, sort of, aside, is there a hierarchy, 8 sort of, of views or opinions about the defence 9 pathologist? 10 Is sort of -- is there -- sometimes you 11 hear people talking, Oh, that person is sort of the 12 defence's expert, and they're viewed as being less than 13 the Crown witness because they're hired by the defence. 14 So when you talk about someone who's 15 typically always a defence pathologist, is that generally 16 seen as, sort of, someone who is more likely to be a -- a 17 hired hand, or whose opinion would have less weight or of 18 equal weight? 19 DR. MICHAEL POLLANEN: Well, again, this 20 is coming back to -- to how some non-medical versus 21 medical people might view the issue. I would say that 22 there is a -- there is a tendency that some pathologists, 23 when they're retired, would then do more defence work then 24 they would have normally done in the course of their 25 career as a -- for example, a government pathologist.
1901 And that may lead to some perception that 2 in the -- in the twilight years they're -- you know, 3 becoming more defence aligned. I think what, in fact, is 4 happening, is that these people have retired after long 5 careers, and they're still interested in doing the work. 6 And one (1) of the major mechanisms of 7 doing the work is through the Defence Bar. 8 So -- but sometimes that does lead to the 9 perception that, Oh, Dr. So and So is appearing again, and 10 you know, they're always appearing for the defence. So I 11 -- there may be some of that. 12 MS. MARA GREENE: And my concern about 13 that point is that you talk about this collaboration 14 meeting, where everyone can hold their own, and strength 15 to personality won't -- won't outweigh strength of 16 argument, and how does that idea play into that 17 collaboration process then? 18 DR. MICHAEL POLLANEN: Well, as I've -- as 19 I've indicated, I think that there can be a perception 20 among retired pathologists who become defence 21 pathologists, but I'm not entirely sure that those of us 22 who are actively involved in court work would form a very 23 fixed view on that. 24 So I don't that that would be much of an 25 inhibition to a collaboration process. But, you know,
1911 perhaps I'm speaking more from my own perspective than -- 2 than a general -- generally shared view. 3 I -- I certainly have done post-mortem 4 examinations with a defence representative -- a defence 5 pathologist, and I've met with defence pathologists. 6 I don't find it an intimidating point of 7 view -- poi -- process, or if the person is very senior 8 and retired, I don't find their iconic status to inhibit 9 my -- my analysis, but others might. 10 MS. MARA GREENE: And I'm also looking 11 from the other perspective; that because they're seen as 12 the defence pathologist when they come in for their 13 meeting, that the Crown pathologist is not going to be so 14 easily swayed, or consider the opinion, and have that, 15 sort of, melting pot of ideas. 16 DR. MICHAEL POLLANEN: You know, to be 17 frank, I can see your point. 18 I'm not sure how strong it is, though, 19 because I'm imagining a circumstance -- I'm -- I'm 20 imagining certain people that do defence work in -- in 21 Canada, and I'm imagining other pathologists that I know 22 that routinely testify for the Crown. 23 And I'm trying to imagine if they would 24 cast aside their opinions so readily, simply because they 25 are -- they more frequently work for the defence now.
1921 I'm not entirely sure it's a -- a complete 2 explanation, but I -- I recognize it could be a factor. 3 MS. MARA GREENE: Okay. Now I want to 4 move into the Home Office approach that you talked about. 5 COMMISSIONER STEPHEN GOUDGE: Can I just 6 ask a couple questions about the hot tub scenario, Ms. 7 Greene? 8 In the experiences you have had where 9 that's happened, Dr. Pollanen, how have you memorialized 10 the exchange with the defence pathologist, if at all? 11 Do you remember? Is -- I mean, do you have 12 any practice on that? Do you keep notes? Do you keep 13 minutes? Or is there any norm for that? 14 DR. MICHAEL POLLANEN: Well, the -- the 15 last time that I was in -- I was involved -- I'm thinking 16 about a case in another province, where I was consulted as 17 a second opinion for the Crown. 18 And I met in that province with the defence 19 pathologist who had come from another province. We went - 20 - both went to this province to examine a specimen. 21 And so the -- the Crown pathologist -- the 22 second Crown pathologist and the defence pathologist were 23 all in the autopsy room. And we examined the specimen. 24 And the Crown pathologist -- second Crown 25 pathologist and the defence pathologist then created
1931 supplementary reports based upon the examination. 2 And in that report, I said, I -- I attended 3 the morgue, and I -- in the company of Dr. XY ZED. I made 4 this examination, and this is my opinion. So -- so it was 5 recorded. 6 In the circumstance where a defence 7 pathologist is appointed in a post-mortem -- I'm thinking 8 now of the exhumation of Lynn Harper (phonetic). 9 In that circumstance, I simply listed the 10 defence pathologist as being present on the case -- on the 11 autopsy report. 12 COMMISSIONER STEPHEN GOUDGE: Right. 13 DR. MICHAEL POLLANEN: But I did not -- I 14 didn't talk in my autopsy report about what we discussed 15 at the grave site, or -- 16 COMMISSIONER STEPHEN GOUDGE: Yeah. 17 That's a little different though. That's not a one-to-one 18 meeting based on trying to narrow differences. 19 DR. MICHAEL POLLANEN: Correct, yes. 20 COMMISSIONER STEPHEN GOUDGE: It is a -- 21 DR. MICHAEL POLLANEN: I guess -- 22 COMMISSIONER STEPHEN GOUDGE: It is an 23 exhumation, and so you are going about a second autopsy as 24 best you can. 25 DR. MICHAEL POLLANEN: Yes. I think -- I
1941 think it was -- in the cases that I remember this 2 occurring, it is in a supplementary report. 3 COMMISSIONER STEPHEN GOUDGE: Okay. 4 5 CONTINUED BY MS. MARA GREENE: 6 MS. MARA GREENE: But you don't -- but do 7 you include in the report the debate that occurred between 8 the pathologists? 9 I mean, that's my concern. Is that you're 10 having a meeting where you're arguing both sides out, and 11 is that written down somewhere so that the Crown or the 12 defence can look at it and say, I understand what they're 13 debating about? 14 DR. MICHAEL POLLANEN: Oh, yes. That's 15 the whole point. 16 MS. MARA GREENE: Well, how is that 17 recorded, though? 18 DR. MICHAEL POLLANEN: It's -- it's 19 recorded in the -- in my sup -- in the case that I'm 20 thinking of, it's recorded in the supplementary report 21 which is, This is the issue, and this is what we decided 22 to do about the issue, and this is the view that emerged. 23 Part of the problem here is that this -- 24 this hasn't happened very frequently and so we're -- we're 25 -- we don't -- we're sort of groping through scenarios --
1951 COMMISSIONER STEPHEN GOUDGE: Right. 2 DR. MICHAEL POLLANEN: -- and -- and so we 3 have very little base upon which to base our experience. 4 COMMISSIONER STEPHEN GOUDGE: Yeah, no, I 5 appreciate that, Dr. Pollanen. That's absolutely right. 6 I mean, I don't know whether there are concerns on behalf 7 of the defence bar about this kind of thing early on pre- 8 trial. 9 So let me not raise any sort of legal 10 issues with you, but approaching it purely as a matter of 11 truth- seeking, okay, would it inhibit this exchange; 12 sitting down with the defence pathologist, if it were done 13 under some kind of confidence bubble; that is, if the 14 discussion was entirely immunized from being passed on to 15 either the Crown on one (1) side or the defence lawyer on 16 the other? 17 The only result might be if there was a 18 change in view on the part of either pathologist; a 19 supplementary report explaining the reasoning without 20 saying, And it was because I was in a discussion with 'X' 21 that I changed my view but setting out what the new view 22 was and why. 23 Is there any inhibition on the truth- 24 seeking part of this exercise to conduct it in some kind 25 bubble?
1961 DR. MICHAEL POLLANEN: I don't believe so. 2 COMMISSIONER STEPHEN GOUDGE: I mean, I 3 know that part of this is a reflection of the general 4 approach of your science to be transparent -- 5 DR. MICHAEL POLLANEN: Yes. 6 COMMISSIONER STEPHEN GOUDGE: I mean, I 7 understand that, but you can be transparent with each 8 other and still in some kind of bubble. 9 DR. MICHAEL POLLANEN: Yes, and I'm -- I'm 10 thinking specifically now about Jenna and Jenna's liver -- 11 COMMISSIONER STEPHEN GOUDGE: Mm-hm. 12 DR. MICHAEL POLLANEN: -- and the 13 pancreas. 14 COMMISSIONER STEPHEN GOUDGE: Right. 15 DR. MICHAEL POLLANEN: I could conceive of 16 a scenario where the defence pathologist and the Crown 17 pathologist are sitting at a double-headed microscope -- 18 COMMISSIONER STEPHEN GOUDGE: Right. 19 DR. MICHAEL POLLANEN: -- and -- and 20 arguing about the significance -- 21 COMMISSIONER STEPHEN GOUDGE: Right. 22 DR. MICHAEL POLLANEN: -- of this and 23 that. 24 COMMISSIONER: Looking at the slide? 25 DR. MICHAEL POLLANEN: Yeah, and maybe
1971 pulling papers out and having a very -- 2 COMMISSIONER STEPHEN GOUDGE: Right. 3 DR. MICHAEL POLLANEN: -- interesting 4 exchange on that issue. And -- 5 COMMISSIONER STEPHEN GOUDGE: And if it 6 resulted in a shift of one (1) opinion or the other then a 7 supplementary report with the reasons for the shift could 8 be done without any kind of breach of this bubble I 9 described? 10 DR. MICHAEL POLLANEN: Correct and I'm not 11 sure what would one -- what one -- would one actually 12 accomplish by saying, We sat at the microscope for two (2) 13 hours, and we discussed whether the neutrophils were in 14 the blood vessels or not in the blood vessels -- 15 COMMISSIONER STEPHEN GOUDGE: No, what 16 matters is the -- 17 DR. MICHAEL POLLANEN: Yeah. 18 COMMISSIONER STEPHEN GOUDGE: -- 19 supplementary report. 20 DR. MICHAEL POLLANEN: Exactly. Yes. 21 COMMISSIONER STEPHEN GOUDGE: Sorry, Ms. 22 Greene. 23 MS. MARA GREENE: No, thank you. 24 25 CONTINUED BY MS. MARA GREENE:
1981 MS. MARA GREENE: What about -- I'll come 2 back to that in a second. I'm going to go back to the 3 Home Offices and start there. 4 The Home Offices that you talked about 5 yesterday afternoon, late in the day, was put to you that 6 there would be sort of a list of -- of approved people, 7 and I think the process you recommended was having a -- a 8 body or a board that had stakeholders that would decide 9 who made it on the list, who got taken off the list, and 10 they would have, sort of, a term on the list and then you 11 would renew the term every so often, right? 12 Is that the process you sort of envisioned? 13 DR. MICHAEL POLLANEN: Yes. 14 MS. MARA GREEN: Now, that list would be 15 the list that would be used to do the autopsy and 16 ultimately testify in court if it went to trial; is that 17 right? 18 DR. MICHAEL POLLANEN: Well, it would be 19 the -- it would be, essentially, the list of pathologists 20 that would do autopsies under coroners' warrant. 21 MS. MARA GREENE: And they would become 22 the Crown pathologist? 23 DR. MICHAEL POLLANEN: And then, in the 24 usual state of affairs, what happens is that the person 25 who does the post-mortem gets subpoenaed by the Crown and
1991 therefore, becomes the Crown's pathologist. 2 MS. MARA GREENE: That list, as you 3 envision it, is it also a list of people that would do 4 defence pathologist opinions and be hired by the defence? 5 DR. MICHAEL POLLANEN: Could be. 6 MS. MARA GREENE: Well, because here is my 7 concern with your -- if it's only a Crown pathologist list 8 -- is you're creating a hierarchy of pathologists, those 9 who are seen as being accredited or joint improved and 10 those who aren't. And the problem is, is that that list, 11 if there's not some mandatory obligation of people on that 12 list to also do defence work, then you're creating a 13 hierarchy of what defence people can get for -- for the 14 trials. 15 Do you see that problem? 16 If, as a defence lawyer, I can't access 17 those on the accredited list and I've got to go elsewhere 18 then you're setting up a system where that Crown 19 pathologist is immediately viewed as being better than the 20 defence pathologist. 21 DR. MICHAEL POLLANEN: So, you would -- 22 you would suggest then to -- to create equity we would 23 just say that everybody on the list can work for the Crown 24 or the defence? 25 MS. MARA GREENE: Well the problem I have
2001 with that is that it has to be more just that they can, 2 but they -- there must be some obligation. I know that's 3 difficult to impose an obligation but saying they can 4 doesn't mean they have to, and it may end up, because they 5 get paid more from one (1) side that they only do one (1) 6 side, and so then they're not available to the defence. 7 DR. MICHAEL POLLANEN: With respect, I 8 think the more serious impediment would be people asking 9 for defence consultations in the first instance rather 10 than creating some type of artificial structure for -- of 11 more approved and less approved people. 12 MS. MARA GREENE: What do you mean, asking 13 for it in the first instance? 14 DR. MICHAEL POLLANEN: Well, right now in 15 -- in the Province on Ontario there's not a lot of request 16 for defence work to pathologists. So I -- I'm not 17 entirely sure that this -- this is going to be a barrier 18 because it's not something that is being utilized as it 19 were maximally in the first instance. 20 MS. MARA GREENE: Let's say arising from 21 this inquiry an education that there are more defence 22 lawyers asking for a defence pathologist in their homicide 23 cases, right? In that scenario, right? I mean, we're 24 sort of moving towards change here. In that scenario we 25 don't want to set up a process that's going to be biassed,
2011 right? 2 DR. MICHAEL POLLANEN: Well clearly we 3 don't want bias, I would agree with that. 4 MS. MARA GREENE: So -- so what I'm 5 suggesting is that we want to make sure that this 6 accredited list is equally available to the Crown and the 7 defence. 8 DR. MICHAEL POLLANEN: Yes. We would need 9 to ensure some mechanism of equal access to both the Crown 10 and the defence, I agree. 11 MS. MARA GREENE: And one (1) last very 12 quick area. I hope it's quick. 13 You were asked your opinion this morning 14 about blind reviews and you're not a huge fan, I gather? 15 DR. MICHAEL POLLANEN: Oh, I'm -- if there 16 was a mechanism to accomplish it I'm not opposed to it, 17 I'm just not sure there is. 18 MS. MARA GREENE: So, let's break that 19 down. So, first of all, would -- are you prepared to 20 accept that there might be some benefit to a blind review 21 if it was effective? 22 DR. MICHAEL POLLANEN: Certainly. 23 MS. MARA GREENE: Because you then can get 24 rid of personality, bias, I know this person, any of that 25 kind of stuff, right?
2021 DR. MICHAEL POLLANEN: Those factors could 2 -- could come to play in -- in a review process, not 3 necessarily -- and I don't think that the majority of 4 reviewing pathologists would fall prey to those issues, 5 again because this is the -- this is our daily work, so 6 we're -- we're in tune to these -- the issues of bias and 7 favouritism, et cetera. 8 MS. MARA GREENE: But at the end of the 9 day pathologists are still people. 10 DR. MICHAEL POLLANEN: That's very true. 11 MS. MARA GREENE: And they still fall prey 12 to -- and they still fall prey to very human traits, 13 right? And, you know, having some kind of bias of someone 14 you're -- you know better or someone you look up to, is a 15 very human trait. 16 DR. MICHAEL POLLANEN: I agree. 17 MS. MARA GREENE: Okay. And so if we 18 could sort of create a blind review process then there 19 will be some benefit to that? 20 DR. MICHAEL POLLANEN: I -- I could see 21 some benefit to it, yes. 22 MS. MARA GREENE: Okay. And we've heard 23 that sort of internally there's a problem with the blind 24 process because you can recognize who wrote the report by 25 their writing style, the words they use, that kind of
2031 thing, right? 2 DR. MICHAEL POLLANEN: Yes. 3 MS. MARA GREENE: And you expressed some 4 concern that if you go internationally or outside of the 5 Province that there might still be some recognition, but 6 the risk is a lot lower, correct? 7 DR. MICHAEL POLLANEN: Yes, the more 8 important problem is the variability of standards among 9 the reviewers. 10 MS. MARA GREENE: Right. But if we move 11 to a -- a system where there was more opinion in the 12 report there'd be -- there'd be lots of places that we 13 actually did have similar report -- report writing 14 processes too, correct? 15 So, like, in the UK they include more 16 narrative in their reports? 17 DR. MICHAEL POLLANEN: There are options, 18 yes. 19 MS. MARA GREENE: Okay. Thank you. I 20 have no further questions. 21 COMMISSIONER STEPHEN GOUDGE: Thanks, Ms. 22 Greene. 23 Ms. Fraser...? 24 25 CONTINUED CROSS-EXAMINATION BY MS. SUZAN FRASER:
2041 MS. SUZAN FRASER: Thank you, Mr. 2 Commissioner. 3 Dr. Pollanen, you'll recall I'm Sue Fraser 4 and I'm here on behalf of Defence for Children 5 International, which is a children's rights organization. 6 And I'm glad that Ms. Greene confirmed that 7 pathologists are people. Having heard your presentation 8 and your analysis, I was beginning to think that 9 pathologists were Vulcans. 10 Now, on the question I -- I think there's 11 just a delayed reaction to my attempted humour, so -- I 12 had raised when -- when Professor Milroy -- Milroy, Dr. 13 Crane, and Dr. Butt were here, the two (2) sort of ends of 14 the spectrum as I saw it as sudden un -- unexpected death 15 in infancy. 16 And on the one (1) side of that extreme 17 being the child dying in infancy where there are no 18 apparent signs of trauma and the question is whether this 19 is SIDS or whether some caregiver or other individual had 20 a hand in that death by smothering. That was sort of on 21 the one (1) extreme. 22 And on the other extreme I put where there 23 were obvious signs of child abuse, and the question for 24 the pathologist was whether the abuse had a role in 25 causing the death of the infant.
2051 And would you agree with me that the -- the 2 challenges facing the pathologist in those sort of two (2) 3 extremes are -- are both very different? 4 DR. MICHAEL POLLANEN: Yes. 5 MS. SUZAN FRASER: All right. And on the 6 case of the extreme where there is a clear indication of 7 abuse, what -- the expert panel seemed to agree with me 8 that -- that on the one (1) hand, the pathologist might 9 not be able to say that the injuries or the abuse apparent 10 on autopsy or examination caused the death, but the 11 question might be whether that the pathologist's opinion 12 could sustain another type of charge. 13 And you'll agree with me, I take it, that 14 while an autopsy might not allow you to form an opinion 15 about whether there's culpable homicide, there might be 16 room for the pathologist's evidence to sustain a lesser 17 charge. 18 Is that fair? 19 DR. MICHAEL POLLANEN: Yes. 20 MS. SUZAN FRASER: All right. And that 21 would be appropriate in your view? 22 DR. MICHAEL POLLANEN: Certainly that's -- 23 that's the way the Court sometimes use the medical 24 evidence. 25 MS. SUZAN FRASER: All right. And I take
2061 it in both of those extremes, both the SIDS or, you know, 2 that sudden unexpected death that's not easily explained, 3 or the case of the extremes, those are the kinds of cases 4 that pull our society to its emotional extremes, because 5 on the one (1) hand, we can't understand why there's no 6 explanation for a child's death, and in the case of abuse, 7 we can't understand while -- how this could have happened 8 to an innocent child? 9 Would you agree with me that there's an -- 10 an emotional pull attached to both of those scenarios? 11 DR. MICHAEL POLLANEN: Yes. 12 MS. SUZAN FRASER: And it would seem to me 13 that as a pathologist -- coming back to pathologists are 14 people, too -- that there is an emotional pull that must 15 come in those cases from the Courts, from the families, 16 from all players in the justice system. 17 Is that -- is that a pull that you've 18 experienced? 19 DR. MICHAEL POLLANEN: Well, as I said, we 20 are people, not Vulcans, and we also are doctors -- 21 MS. SUZAN FRASER: Yes. 22 DR. MICHAEL POLLANEN: -- and so we've 23 worked, we've had clinical training -- 24 MS. SUZAN FRASER: Yes. 25 DR. MICHAEL POLLANEN: -- we've cared for
2071 patients, patients have died while we've cared for them, 2 so yeah, we're in tune with those issues. 3 MS. SUZAN FRASER: All right. And you're 4 also in tune that in terms of the more high profile cases 5 there is a push, people look to the medical profession to 6 provide answers where they might not otherwise be found. 7 DR. MICHAEL POLLANEN: Yes. 8 MS. SUZAN FRASER: And that -- and that 9 sometimes as a profession you're not capable of giving 10 those answers? 11 DR. MICHAEL POLLANEN: Correct. 12 MS. SUZAN FRASER: And so in terms of on a 13 systemic level the issues that you have put forward in 14 terms of the cultural change, that training, is that part 15 of what you do is to -- how do you resist, as a 16 pathologist, the emotional pull? Is -- that come through 17 the cultural change that you've talked about? 18 19 (BRIEF PAUSE) 20 21 DR. MICHAEL POLLANEN: I think it's -- 22 it's part -- it's probably part of your evolution as a 23 doctor, I would think and it starts in the -- in the early 24 part of your medical training and evolves over time. And 25 it probably involves being sort of self reflective on
2081 issues. 2 It involves identifying people who are 3 trusted colleagues that you can discuss these issues with. 4 It involves having some facility with some of the ethical 5 issues that -- that emerge. It involves having some 6 sensitivity to being compassionate to others. For example 7 something that happens to forensic pathologists 8 occasionally is seeing the next of kin in court -- 9 MS. SUZAN FRASER: Yes. 10 DR. MICHAEL POLLANEN: -- as you're 11 testifying in a murder trial. You have to keep your mind 12 open to those -- those issues because we -- we exist in a 13 greater context -- 14 MS. SUZAN FRASER: Yes. 15 DR. MICHAEL POLLANEN: -- we're not -- 16 we're not -- we're just not in autopsy rooms. We -- we go 17 to court. We go out in the community. 18 So, yes, I think -- I think most forensic 19 pathologists reflect on those issues. 20 MS. SUZAN FRASER: All right. And is it 21 fair to say you've talked about the need to build a 22 culture and build colleagues? We've also heard the 23 importance of a multi-disciplinary approach to the review 24 of a child's death. You've talked about that both in 25 terms of the death investigation team and the death review
2091 process. 2 Those are -- that's important? 3 DR. MICHAEL POLLANEN: Yes. 4 MS. SUZAN FRASER: And I raised with Dr. 5 Cairns, although I don't think he necessarily agreed with 6 me that this wasn't already happening, but the need for 7 there to be also different perspectives; that it's 8 important not just to have sort of a prosecution-type 9 perspective, but it's important to have a range of 10 perspectives if we're to sort of stay on issue or on the 11 evidence-based model, to keep you sort of going back to 12 the real issues. 13 DR. MICHAEL POLLANEN: Well, I think 14 that's what we try to do in -- in for example the -- the 15 teamwork approach to death investigation and also in the 16 context of the multi-disciplinary committees; for example, 17 the Paediatric Death Review Committee. 18 I think that's -- that's the sort of issue 19 that -- that our organization is trying to get at there, 20 the type of values that we're trying to -- to put in the 21 system. 22 MS. SUZAN FRASER: All right. And I'm 23 going to leave -- I don't want to get into the Paediatric 24 Death Review Committee although it's very important from 25 my client's perspective.
2101 But in -- in terms of these difficult 2 deaths an issue was raised by -- in the Office of the 3 Chief Coroner's questioning of the expert panel about the 4 use of a sort of standard protocol in investigating sudden 5 unexpected deaths in infancy, and reference was made to 6 the Coroner's protocol. 7 And Dr. Milroy made reference to a protocol 8 that they sort of based their investigations on -- that's 9 what I understood it to be -- called "CESDI"? 10 DR. MICHAEL POLLANEN: Yes. 11 MS. SUZAN FRASER: Are you familiar with 12 that protocol? 13 DR. MICHAEL POLLANEN: I am, yes. 14 MS. SUZAN FRASER: All right. And he 15 reference it as a seventy (70) page protocol. I've 16 included it in your binder, Volume XIII. 17 COMMISSIONER STEPHEN GOUDGE: Tab 13? 18 MS. SUZAN FRASER: Tab -- Tab 13. No,, 19 Volume XIII, Tab 24, Mr. Commissioner. 20 COMMISSIONER STEPHEN GOUDGE: I don't -- 21 MS. SUZAN FRASER: Oh, okay. Well, then, 22 it -- I understood from the index that -- Ms. Hogan -- 23 that it was at Tab 24. Maybe it's -- 24 MR. MARK SANDLER: Tab 24 is -- just no 25 volume --
2111 MS. SUZAN FRASER: All right. I see, 2 okay. 3 4 (BRIEF PAUSE) 5 6 DR. MICHAEL POLLANEN: Yes, thank you. 7 8 CONTINUED BY MS. SUZAN FRASER: 9 MS. SUZAN FRASER: Now, this I -- I make 10 no promises about this because I've done my own research 11 about this, Mr. Commissioner, and I'm hoping that Dr. 12 Whitwell might help me fill in the gaps, but I wanted to 13 sort of take this to its conclusion. 14 And so in terms what -- Dr. Milroy said you 15 can get -- you can download it off the internet. This is 16 the only questionnaire that I could see and the -- the 17 name of it being the CESDI, which is the Confidential 18 Enquiry into Sudden Unexpected Deaths in Infancy. 19 And what I understand about -- are you 20 familiar with that process before I give you an 21 understanding of what I think it's to be and hope to 22 confirm that with the expert? 23 DR. MICHAEL POLLANEN: I'm generally 24 familiar with it, yes. 25 MS. SUZAN FRASER: Okay. So this is what
2121 I understand it to be -- and you can confirm if I'm right 2 -- that this was established in the early 1990s to improve 3 the understanding of risks and causes in death in late 4 fetal infancy in England, Wales, and Ireland. 5 And that there are two (2) elements of it: 6 that they survey all deaths of gestational age twenty-two 7 (22) weeks to one (1) year after their birth, whether 8 they're born dead or alive. 9 And the second that there's a confidential 10 inquiry into a subgroup of those, which is an assessment 11 of anonymized clinical records by multi-disciplinary 12 independent assessors. 13 And I'm hoping that Dr. Whitwell can 14 confirm my understanding of that, Mr. Commissioner, but is 15 that -- 16 COMMISSIONER STEPHEN GOUDGE: Do you know 17 enough about it to respond? 18 DR. MICHAEL POLLANEN: Not really, no. 19 20 CONTINUED BY MS. SUZAN FRASER: 21 MS. SUZAN FRASER: Okay. Did you have a 22 chance to look at the protocol? 23 DR. MICHAEL POLLANEN: Yes. 24 MS. SUZAN FRASER: All right. And my 25 question then for you is putting aside, Mr. Commissioner,
2131 that it's a very detailed questionnaire and -- and how 2 that would be -- that information would be taken is -- is 3 another issue. 4 Is this type of standardized detailed 5 protocol something that would first be of assistance in 6 the investigative stage? 7 DR. MICHAEL POLLANEN: Yes. 8 MS. SUZAN FRASER: Yes. And would there 9 be benefits to developing such a detailed protocol for 10 these types of death? 11 DR. MICHAEL POLLANEN: We have. 12 MS. SUZAN FRASER: All right. And the one 13 (1) that you have that we have seen, in terms of the 14 coroner's protocol, is a much shorter form? Do you agree 15 with me? 16 DR. MICHAEL POLLANEN: It's smaller font. 17 MS. SUZAN FRASER: All right. All right. 18 But in your view -- in your view, it encompasses the same 19 types of issues in this? All right. 20 DR. MICHAEL POLLANEN: Yes. 21 MS. SUZAN FRASER: Now, I understand the 22 second part of this is that -- that this type of 23 questionnaire is done in every case and represents almost 24 all of the births, and then is that information is then 25 used for research?
2141 DR. MICHAEL POLLANEN: Yes. 2 MS. SUZAN FRASER: Do we have that 3 component of it in Ontario? 4 DR. MICHAEL POLLANEN: No. 5 MS. SUZAN FRASER: All right. And would 6 that be useful? 7 DR. MICHAEL POLLANEN: Yes. 8 MS. SUZAN FRASER: All right. 9 DR. MICHAEL POLLANEN: If I could just say 10 what I know about the -- the CESDI study -- 11 MS. SUZAN FRASER: Yes. 12 DR. MICHAEL POLLANEN: -- is that it's a 13 multi-disciplinary epidemiological population based 14 analysis. 15 MS. SUZAN FRASER: Yes. 16 DR. MICHAEL POLLANEN: This is not meant 17 to be an investigative tool. What -- what we have is -- 18 COMMISSIONER STEPHEN GOUDGE: This is 19 epidemiology? 20 DR. MICHAEL POLLANEN: Yes. 21 COMMISSIONER STEPHEN GOUDGE: Under whose 22 auspices, do you know? 23 DR. MICHAEL POLLANEN: I don't. 24 COMMISSIONER STEPHEN GOUDGE: Okay. We'll 25 ask Professor Whitwell, I'm sure she'll know.
2151 DR. MICHAEL POLLANEN: And the point here 2 being that we have this -- this tool -- 3 MS. SUZAN FRASER: Yes. 4 DR. MICHAEL POLLANEN: -- similar to this 5 for investigations of deaths for -- that come under the 6 coroner's jurisdiction. 7 8 CONTINUED BY MS. SUZAN FRASER: 9 MS. SUZAN FRASER: Right. And just in 10 terms of that tool, is it your expectation as a 11 pathologist that the coroner uses that tool from the 12 outset in terms of forming his or her initial observations 13 at the scene, or is that something that takes place as the 14 investigation evolves? 15 DR. MICHAEL POLLANEN: It's -- it's meant 16 to start at the scene. 17 MS. SUZAN FRASER: All right. 18 DR. MICHAEL POLLANEN: And -- and that's, 19 in fact, what happens. 20 MS. SUZAN FRASER: All right. So your 21 experience is that as a pathologist doing a suddent -- 22 sudden unexpected death in infancy, that as part of the 23 materials you receive early on would be the coroner's 24 protocol for sudden and unexpected deaths? 25 DR. MICHAEL POLLANEN: Well, that's a
2161 separate issue. The -- the coroner may -- the coroner 2 usually does fill that document out as part of their 3 investigation. How -- whether the -- the information is 4 always transmitted to the pathologist at the time of the 5 post-mortem examination is a separate matter. 6 But at the time that the case comes to the 7 Death Under -- now -- Five Committee, that information 8 with the police report, the post-mortem report, radiology, 9 et cetera, all comes to the Committee and is analysed. 10 MS. SUZAN FRASER: All right. And I -- I 11 take it -- 12 COMMISSIONER STEPHEN GOUDGE: Sorry, does 13 it go to the pathologist? 14 DR. MICHAEL POLLANEN: Variably. 15 Sometimes it does, sometimes it doesn't. 16 COMMISSIONER STEPHEN GOUDGE: What does 17 that turn on? 18 DR. MICHAEL POLLANEN: Well, it turns on 19 if -- if it's actually sent, if the coroner sends it, and 20 whether or not it's done. But in my -- 21 COMMISSIONER STEPHEN GOUDGE: So it isn't 22 done in every -- 23 DR. MICHAEL POLLANEN: It's supposed to be 24 done in every case, yes. 25 COMMISSIONER STEPHEN GOUDGE: Right,
2171 that's what I thought. Okay. So where it's done and sent 2 to your office, then it would get to the pathologist doing 3 the autopsy? 4 DR. MICHAEL POLLANEN: Not necessarily my 5 office. 6 COMMISSIONER STEPHEN GOUDGE: Yes, but -- 7 DR. MICHAEL POLLANEN: The pathologists 8 wherever they are, right. 9 COMMISSIONER STEPHEN GOUDGE: Right. 10 Okay, thanks. 11 12 CONTINUED BY MS. SUZAN FRASER: 13 MS. SUZAN FRASER: So in terms of your 14 protocol, your guidelines to your pathologists, should you 15 be saying to your pathologists that, You should expect and 16 demand that this protocol be received prior to doing your 17 autopsy? 18 DR. MICHAEL POLLANEN: Well, the -- the 19 point here is effective communication. 20 MS. SUZAN FRASER: Right. 21 DR. MICHAEL POLLANEN: And this is 22 certainly one (1) of the ways to accomplish effective 23 communication. Sometimes the -- the better way of doing 24 it is through personal communication -- 25 MS. SUZAN FRASER: Yes.
2181 DR. MICHAEL POLLANEN: -- with the 2 coroner. 3 MS. SUZAN FRASER: All right. 4 DR. MICHAEL POLLANEN: So, in -- in the 5 ideal world, we would actually have both. So we would 6 have the coroner's warrant sent to us, we would have this 7 form sent to us, and we would talk to the coroner. 8 MS. SUZAN FRASER: All right. But is it 9 anywhere spelled out to your pathologists that this is 10 something that they should receive? Because I'm just -- 11 on the one (1) hand pathologists are familiar with their 12 procedures. They might not be familiar with the coroner's 13 procedures. 14 So is that something that should form part 15 of your instructions generally to your pathologists? 16 DR. MICHAEL POLLANEN: For example, when I 17 -- when I'm thinking now about our autopsy guidelines, I 18 do not believe we have that in the guidelines. 19 MS. SUZAN FRASER: All right. Would that 20 be a good idea? 21 DR. MICHAEL POLLANEN: Yes. 22 MS. SUZAN FRASER: Okay. 23 24 (BRIEF PAUSE) 25
2191 MS. SUZAN FRASER: And just then on the 2 research side of that. 3 We've talked about evidence-based medicine, 4 and I've heard you use that -- sort of having two (2) 5 components, that you draw your conclusions based on the 6 literature that -- that's based on evidence and study. 7 And that the second part of it, that you 8 draw from the evidence that's at the scene, and using 9 those sort of -- the research, and what's apparent to you 10 from the investigation, that's how you draw your 11 conclusions. Is that fair? 12 DR. MICHAEL POLLANEN: Yes. 13 MS. SUZAN FRASER: All right. So the 14 second part of that is, is that you -- and what I put to 15 the expert panel was that it's important to have the 16 actual evidence to -- to do the research. 17 That -- the CESDI the -- for -- for 18 instance, if we wanted to study sudden and -- Sudden 19 Unexpected Death in Infancy in England, we would be much 20 better off because we have years of this data being 21 collected. Is that fair? 22 DR. MICHAEL POLLANEN: Yes. 23 MS. SUZAN FRASER: All right. And that 24 our knowledge in this area can only grow as we standardize 25 the way that the data is collected.
2201 DR. MICHAEL POLLANEN: Correct, yes. 2 MS. SUZAN FRASER: Okay. Thank you, Mr. 3 Commissioner. Those are my questions. 4 COMMISSIONER STEPHEN GOUDGE: Thanks. 5 Before we leave this, there is a question 6 that I have been meaning to ask you. It is a general 7 question, Dr. Pollanen. 8 The evidence-based approach that you have 9 eloquently put forward really has, as its goal, think 10 truth, if I can put it that way, as opposed to "think 11 dirty". 12 Is that a fair juxtaposition? 13 DR. MICHAEL POLLANEN: Yes. 14 COMMISSIONER STEPHEN GOUDGE: Where does a 15 heightened index of suspicion fit into that, if at all? 16 Do you equate that with "think dirty", or 17 is it somewhere in between, or -- 18 19 (BRIEF PAUSE) 20 21 DR. MICHAEL POLLANEN: "Think dirty" is an 22 unfortunate turn of phrase. 23 COMMISSIONER STEPHEN GOUDGE: Yeah. Yeah. 24 DR. MICHAEL POLLANEN: I think -- my 25 understanding of "think dirty" is that it was intended to
2211 tell the members of the Death Investigation Team and the 2 pathologist to consider child abuse, and in other 3 circumstances, homicide. 4 I think it has grown to mean something more 5 than it was ever intended to mean. And I think the best 6 way to say this in -- now -- where we -- where we sit now 7 relative to "think dirty", is that if we think truth, if 8 we think objectively, then there is no need to give 9 specific advice about "thinking dirty", for example, or 10 having high -- a high index of suspicion. 11 Because if -- if you're -- if you're 12 allowing the facts to guide your thinking, they will guide 13 you in the correct direction. 14 There needs to be no a priori set up for 15 it. Because if you are engaging the issues in a 16 evidenced-based manner, you will get there. 17 But if it were so simple. The -- the other 18 competing variable is that we have, purely on an operation 19 basis, and out of necessity, have identified a group of 20 cases which are criminally suspicious and homicidal. 21 For the -- for the nature -- because we 22 need to do -- to develop protocols and procedures to deal 23 with those cases. Because it's a -- it's an 24 epidemiological situation that when you have 25 undifferentiated cases -- this large number of
2221 undifferentiated cases, at some point in time before the 2 pathologist gets involved, there has to be some type of 3 streaming. 4 So the streaming happens essentially by the 5 police, with some input by the coroner into this criminal 6 -- this sort of amorphous category of criminally 7 suspicious. 8 And that to some extent is "think dirty", 9 unless you are making that decision, or those decisions 10 are purely being made on the basis of evidence and fact. 11 So there's a lot of -- there's a lot of 12 corollaries that come out of this discussion, but I think 13 the best -- the best framework, or the best model to use 14 to understand the methodology or the desirable process is 15 the framework of an evidence based approach using as an a 16 priori principle: think truth, think objectively, search 17 for the truth. 18 I think that's the best platform because if 19 you do that you don't need to think benign or malignant, 20 the evidence will guide you. 21 COMMISSIONER STEPHEN GOUDGE: Okay. A 22 couple of implications, I am sure more than a couple, have 23 been read into the heightened index of suspicion notion. 24 One is the implication of presumption which you've spoken 25 about; the other is an implication of more thorough
2231 investigation than one would have in a simple case. 2 Is that a fair kind of assertion of two (2) 3 implications that might flow out of the notion of 4 heightened index of suspicion? 5 DR. MICHAEL POLLANEN: You could think of 6 it that way and I'll -- I'll give a concrete example. In 7 the -- if you look at the protocol that -- the analysis 8 that led to the '95 memo, six thirty-one (631) I think it 9 was -- 10 COMMISSIONER STEPHEN GOUDGE: Yes. 11 DR. MICHAEL POLLANEN: -- you'll notice 12 that there was an analysis of how frequently x-rays were 13 being done -- 14 COMMISSIONER STEPHEN GOUDGE: Right. 15 DR. MICHAEL POLLANEN: -- on infants. And 16 what this -- what they found when they did that analysis, 17 which was a very good analysis, was that x-rays were not 18 being done frequently, or as frequently as would be 19 desirable. 20 COMMISSIONER STEPHEN GOUDGE: Right. 21 DR. MICHAEL POLLANEN: And the reason 22 that's significant is that we -- we know that one of the 23 patterns of child abuse are, for example, multiple 24 fractures. 25 COMMISSIONER STEPHEN GOUDGE: Fractures,
2241 yes. 2 DR. MICHAEL POLLANEN: So the -- the 3 evidence base, to use that term, the -- the conclusion 4 that came from the analysis in the document was "do x- 5 rays". It did not support the conclusion "think dirty". 6 COMMISSIONER STEPHEN GOUDGE: So if 7 heightened index of suspicion means gather all the 8 evidence you possibly can and follow it wherever it leads, 9 you would say that's fine? 10 DR. MICHAEL POLLANEN: Correct. It -- it 11 can include -- it necessarily includes that. 12 COMMISSIONER STEPHEN GOUDGE: Okay. If it 13 was to mean start with an a priori presumption, you would 14 say that's not fine? 15 DR. MICHAEL POLLANEN: Correct. And let 16 me enlarge that one (1) other way and say, we've talked 17 about petechia; well, if we see petechia in someone's eyes 18 at autopsy then that is an indication that the neck will 19 need to be dissected in a special way to determine if they 20 have been strangled. 21 Well, are the petechia telling us to "think 22 dirty"? No. 23 The petechia have within their differential 24 diagnosis, manual strangulation, and because of that we 25 need to apply a technique to detect it if it's there.
2251 So in a way both are achieving the same 2 outcome, except one (1) has as its value a search for the 3 truth platform. 4 COMMISSIONER STEPHEN GOUDGE: Right. 5 Okay, that is a helpful exchange. Thank you. 6 Ms. Mackay...? 7 MR. WILLIAM CARTER: Mr. -- 8 COMMISSIONER STEPHEN GOUDGE: Oh, sorry, 9 are you next, Mr. Carter, I have you out of order here. 10 Do you have any questions, Mr. Carter? 11 MR. WILLIAM CARTER: I -- I don't, I just 12 wanted you to know that it might affect how you manage the 13 afternoon. 14 COMMISSIONER STEPHEN GOUDGE: Well, I 15 think we can probably get through this. 16 How about you, Ms. Mackay? 17 MS. HEATHER MACKAY: No... 18 COMMISSIONER STEPHEN GOUDGE: Mr. 19 Sandler...? 20 MR. MARK SANDLER: Yes, just very briefly. 21 COMMISSIONER STEPHEN GOUDGE: I think if 22 it is all right, we will just go right through -- 23 MR. MARK SANDLER: Sure. 24 COMMISSIONER STEPHEN GOUDGE: -- then, and 25 then we can release you, Dr. Pollanen, at least
2261 temporarily. 2 DR. MICHAEL POLLANEN: Thank you. 3 4 RE-DIRECT EXAMINATION BY MR. MARK SANDLER: 5 MR. MARK SANDLER: Dr. Pollanen, you were 6 asked a number of questions about reviews, whether blind 7 or -- or otherwise, of individual pathologists. I want to 8 ask you about reviews of units per se, whether it's your 9 unit at the morgue or the unit at the Hospital for Sick 10 Children, or in one of the Regional Centres. 11 Is there a process in place that reviews in 12 a collective sense the work of a unit? 13 DR. MICHAEL POLLANEN: No. 14 MR. MARK SANDLER: And, I asked Dr. Young 15 in examination-in-chief about accreditation of -- of units 16 and he had indicated, in part, that -- that he didn't see 17 that, at least at the time, as a realistic option, in 18 part, because of an inability to get toxicology rall -- 19 results in a way that was sufficiently timely to meet 20 international accreditation requirements. 21 Could you speak to the issue of 22 accreditation generally? Do you think it's something that 23 you or we should be looking at? 24 DR. MICHAEL POLLANEN: I've examined that 25 issue. I examined it actually first when I took over as
2271 Director of the Toronto Unit and there are, essentially, 2 two (2) pathways that became apparent; the first is the 3 accreditation of facilities by the National Association of 4 Medical Examiners, and they actually have a checklist that 5 sort of -- you can go through -- a perspective institution 6 can go through to determine if they would meet 7 accreditation, and not surprisingly, we would not, in my 8 view, be able to satisfy the criteria on the list. 9 That's partly because the -- the 10 requirements are those for a Medical Examiner's System, as 11 opposed to a Coroner's System, but also relate to specific 12 features of our physical plant and how we do things; the 13 fact that the Centre of Forensic Science does our 14 toxicology, as opposed to be it being done in house, so 15 there's certain items that would not allow us to be 16 accredited. 17 Now, in all fairness, I haven't looked at 18 that very recently, so if the -- if the list has changed, 19 there may be some movement for us to be accredited in that 20 way. I would point out, however, that would just apply 21 to, essentially, the Head Office, as opposed to the 22 Regional Forensic Pathology units, which are housed in 23 hospital departments, which would not be accredited in 24 that manner. 25 MR. MARK SANDLER: Apart from the issue of
2281 accreditation, do you see a role or need for some review 2 process to be in place, initiated by you or the coroner's 3 office, to evaluate a unit, per se; in other words, the 4 timeliness collectively of the reports that are emanating 5 from -- from a unit, the productivity of a unit, and -- 6 and the like? 7 DR. MICHAEL POLLANEN: Yes, and I -- we 8 didn't -- we missed one (1) point on accreditation. If I 9 could just tell you about that -- 10 MR. MARK SANDLER: Of course. 11 DR. MICHAEL POLLANEN: -- and the I'll 12 tell you what -- about what you've asked. The second 13 pathway to accreditation that I explored was, there is an 14 organization that accredits medical laboratories in the 15 Province, and I initially asked them if they would 16 consider accrediting our facility in much the same way 17 that a hospital laboratory would be accredited and they 18 basically said, There is no precedent; we're not very 19 interested in doing it, but perhaps if you created the 20 standards, we would administer them. 21 So that was an option that we didn't take 22 on, but that's -- that is a separate option for 23 accreditation. It wouldn't be forensic accreditation; it 24 would more along the hospital laboratory accreditation 25 mechanism.
2291 What you're talking about is, instead of 2 peer review of individual cases, essentially looking at 3 mechanisms for almost internal accreditation of the 4 Regional Forensic Pathology units, and there are two (2) 5 dimensions to that. 6 The first, and that -- that is actually -- 7 it was a planned activity for the new year, and that was 8 going to each of the units and looking at procedures; 9 things like how do the individual units deal with 10 continuity of evidence, storage of exhibits, transfer of 11 exhibits, those types of issues -- more procedural as 12 opposed to medical. 13 So that type of informal process where we 14 go to a unit and -- and essentially flow through the 15 system -- follow a body through the system -- that's one 16 (1) thing that we had thought might be very beneficial, 17 and that's the first issue. 18 The second is that each of the Regional 19 Forensic Pathology units are -- have a service agreement 20 with our office. And the service agreement is, perhaps, 21 not as well developed along some of these lines than -- in 22 comparison to what it should be. 23 And I'm thinking about things like putting 24 in a requirement for reporting timeliness benchmarks. In 25 other words, setting benchmarks for the timeliness of
2301 reports, or at least in the first instance, quantifying 2 backlogs; and then putting in other requirements, for 3 example, for continuing medical education. These types of 4 things, actually putting them into the service agreements. 5 And the -- the rationale for this is multi- 6 fold. But one (1) of them which relates to one (1) of the 7 systemic issues is the issue of backlog and timeliness. 8 And to be frank, one (1) of the -- one (1) 9 of the ways that we're going to deal with this in our 10 system is first by quantifying it. Once we've quantified 11 it, then we're -- we will be in a position to identify why 12 backlogs occur and where resources need to be put to 13 reduce the backlog. 14 And one (1) example that comes from this is 15 until recently, in the Hamilton Unit, they -- they had 16 extensive backlogs related to histology -- preparation of 17 slides -- which then backlogged autopsy reports. 18 But before we can quantify backlogs and 19 then identify factors which cause the backlogs, we can't 20 solve the problem. So I -- the one (1) major mechanism 21 for dealing with that is by creating specific language in 22 the service agreements to deal with problems like that. 23 MR. MARK SANDLER: And just talking about 24 untimeliness of reports for a moment, one (1) of the 25 implications, I would think, of -- of an approach that
2311 encourages more fulsome reports is that they're going to 2 take longer to prepare? 3 DR. MICHAEL POLLANEN: Yes. 4 MR. MARK SANDLER: In the judicial system 5 there's a notion of judges being allocated judgment 6 writing days to recognize the need to spend quality time 7 in -- in assimilating the evidence that has been heard in 8 a case and -- and producing a reasoned judgment. 9 Is that a notion that's foreign to -- to 10 the medical profession, or has consideration been given as 11 to how one can build in, structurally, days that permit 12 that kind of work to be done? 13 DR. MICHAEL POLLANEN: It's very difficult 14 to do in -- in the medical profession; particularly 15 difficult to do in forensic pathology because our work 16 load fluctuates on a daily basis. We have lots of 17 commitments, many of which are fixed, such as court, which 18 does not give a lot of leeway. 19 You know, when you have to appear to 20 testify, there's -- although the Crowns are -- try and 21 help us to schedule things, that it can be very hectic. 22 And when your engaged in some very difficult cases, you 23 often need just quiet time to sit in your office and 24 contemplate the case, examine the slides, consult other 25 pathologists, do literature reviews.
2321 And depending -- you may not have at any 2 one (1) instance a case like that, or you may have three 3 (3) or four (4) cases like that. So we really can't plan, 4 and there's no provision to plan for that -- those 5 eventualities. 6 Even more difficult to do when you do not 7 have a full time compliment of staff, such as in my 8 department. We do not have the ability to cover sometimes 9 all of the days of the week in terms of service coverage, 10 so we require to bring in part time fee-for-service 11 pathologists into our department. 12 There have been case -- times that we can 13 not -- we can indent -- can not identify pathologists for 14 the provision of basic service, let alone time off to 15 write reports. 16 MR. MARK SANDLER: Okay. Now on the topic 17 of review when, again, I was examining you in-chief, and 18 the Commissioner was asking you some questions as well. 19 You identified some of the features that promote a more 20 fulsome report. 21 And one (1) of them, of course, is 22 reviewability. And what I want to ask you is, that in the 23 -- in the current regime so to speak, there will be 24 occasions where either because the report is not terribly 25 fulsome at first instance, or because the consumers in the
2331 -- in the justice system require additional advice or 2 opinions from -- from the pathologists, additional work 3 will be done. 4 Is there a process that exists that 5 positions you or the Regional Directors to review that 6 supplementary work as it's provided in the criminal 7 justice system? 8 DR. MICHAEL POLLANEN: If it's identified 9 through the peer review process. So, for example, 10 sometimes in the peer review process -- I'm thinking about 11 a case recently. An issue was identified at the time of 12 the post-mortem report, and then subsequent analysis, or 13 ancillary testing is initiated, then that is communicated. 14 It's either -- either incorporated into the 15 post-mortem report before it's finalized, or a 16 supplementary report is given. 17 So if it's -- if it -- if it gen -- if it's 18 generated by the peer review process, yes. 19 If it's generated by other events 20 downstream, no. 21 MR. MARK SANDLER: So that, for example, 22 if we took the Jenna scenario in the current -- within the 23 current regime, and -- and the pathologist expressed an 24 opinion in the post-mortem report as to cause of death, 25 but said nothing about the timing of the infliction of
2341 fatal injuries, and that wasn't picked up by a peer review 2 process that said it should be addressed in the report of 3 post-mortem examination, but was subsequently addressed in 4 a supplementary report, as a result of inquiries from the 5 Crown or defence, that might not make its way in the 6 current regime into some sort of a review process. 7 Am I right? 8 DR. MICHAEL POLLANEN: Correct, yes. 9 MR. MARK SANDLER: And -- and am I right 10 that it would be desirable that the review process would - 11 - would accommodate looking at those supplementary reports 12 in some organized fashion? 13 DR. MICHAEL POLLANEN: Yes. 14 MR. MARK SANDLER: Okay. Now you were 15 asked some -- some questions about the form that currently 16 exists for peer review, and it was identified at 032545. 17 And if we could just scroll down to the 18 lower portion of the -- of the document. 19 As I understood your evidence, you 20 indicated that this is the form that would be used by the 21 reviewer at present, and you said this would not be the 22 end of the matter in the event that some no's were checked 23 off, or otherwise indicated in respect of some of the 24 substantive issues that are identified in -- in this 25 document.
2351 Am I right so far? 2 DR. MICHAEL POLLANEN: That's not the 3 correct form. 4 COMMISSIONER STEPHEN GOUDGE: Yes, it is 5 not the right form. 6 MR. MARK SANDLER: It's not the right form? 7 COMMISSIONER STEPHEN GOUDGE: No. The 8 right form has as the last three questions include: 9 "Do you agree or not." 10 DR. MICHAEL POLLANEN: Correct. 11 MR. MARK SANDLER: So we won't bring up 12 the -- the correct form right now, but you remember it all 13 too well. 14 DR. MICHAEL POLLANEN: Yes. 15 MR. MARK SANDLER: What I wanted to ask 16 you is this. In the event that there is a 'no' on a 17 significant question identified in the -- in the correct 18 form, where does it go from there? 19 DR. MICHAEL POLLANEN: We'd have to go to 20 the -- to our guidelines -- 21 COMMISSIONER STEPHEN GOUDGE: To the 22 protocol -- 23 DR. MICHAEL POLLANEN: -- and there is a 24 flow chart that's quite complicated that explains the 25 mechanism.
2361 MR. MARK SANDLER: All right. 2 MS. LUISA RITACCA: It's Tab 27. 3 COMMISSIONER STEPHEN GOUDGE: It is in the 4 2007 guideline. Yeah. 5 DR. MICHAEL POLLANEN: Yes. 6 7 (BRIEF PAUSE) 8 9 DR. MICHAEL POLLANEN: Page 15. 10 COMMISSIONER STEPHEN GOUDGE: 139350. 11 12 (BRIEF PAUSE) 13 14 COMMISSIONER STEPHEN GOUDGE: You're at 15 it. That's the flow chart, isn't it? 16 DR. MICHAEL POLLANEN: Very complicated 17 flow chart, yes. 18 This, just to let you know, was the product 19 of a -- of a consensus meeting among the Directors of the 20 Forensic Pathology Unit sent other pathologists. 21 22 CONTINUED BY MR. MARK SANDLER: 23 MR. MARK SANDLER: All right. Now, I 24 won't ask you to -- to go through the flow chart. The 25 Commissioner has it, and it has been identified.
2371 What I want to ask you is -- is this. In 2 the event that the peer review process has identified a -- 3 a concern here, this flow chart tells us how that 4 individual case will be addressed as a result of that peer 5 review process. 6 Are there any larger implications that 7 flow, either for the forensic pathologist who prepared the 8 initial report or for the larger category of cases in 9 which the forensic pathologist was involved? 10 And -- and I appreciate that not every one 11 (1) of these cases should generate something larger, but I 12 want to ask you that systemically. 13 DR. MICHAEL POLLANEN: Are you suggesting 14 that in -- in the -- in the review process you could 15 identify a case that was a red flag, that might 16 precipitate something more then this flowchart? 17 MR. MARK SANDLER: Exactly. 18 DR. MICHAEL POLLANEN: You might find 19 yourself in that scenario. And -- and there is currently 20 no specific mechanism -- there's no other flowchart as it 21 were, to how to deal with this issue. It would be based 22 upon essentially the judgment of, for example, the Chief 23 Forensic Pathologist and -- and others who were involved 24 in the case on senior management team to determine how to 25 proceed.
2381 One (1) of the advantages of the home 2 office list approach in Ontario would be that is something 3 we could bring to the Board of the -- of the list, as it 4 were. 5 MR. MARK SANDLER: Because it would seem 6 to me that this process could very well be an identifier 7 of red flags in the way in which we've discussed red flags 8 on the twenty (20) cases that are the subject of -- of 9 this Inquiry. 10 DR. MICHAEL POLLANEN: Certainly you could 11 see if the -- if a lower part -- portion of the diagram 12 were engaged frequently, in a particular instance, you 13 would -- that would be a red flag, yes. 14 MR. MARK SANDLER: The last area that I 15 wanted to ask you about has to do with the coverage in -- 16 in Northern Ontario. And you -- you indicated in response 17 to -- to an earlier question that -- that there's an 18 informal arrangement that exists where certain autopsies 19 that you said related generally to the Kenora area, are 20 performed in -- in Winnipeg. 21 Are -- are any of those homicides or 22 criminally suspicious cases? 23 DR. MICHAEL POLLANEN: Yes. 24 MR. MARK SANDLER: And -- and where does 25 it go from there in the sense that the autopsy is
2391 performed in autops -- in Winnipeg, a report of post- 2 mortem examination is prepared, I take it, by the forensic 3 pathologist engaged in Winnipeg. 4 And what engagement, if at all, does the 5 Chief Forensic Pathologist in Ontario or the Chief 6 Coroner's Office as you understand it, have with that 7 report thereafter? 8 DR. MICHAEL POLLANEN: It comes to my 9 department and I perform the peer review on it. 10 MR. MARK SANDLER: Okay. Thank you. 11 Those are all the questions I have. 12 COMMISSIONER STEPHEN GOUDGE: Just before 13 we let you go, Dr. Pollanen, in terms of the organization, 14 in any sense do the regional unit directors report to you? 15 DR. MICHAEL POLLANEN: No. 16 COMMISSIONER STEPHEN GOUDGE: They're 17 hospital employees and -- 18 DR. MICHAEL POLLANEN: They're -- they're 19 hospital employees who I engage through professional 20 collaboration. 21 COMMISSIONER STEPHEN GOUDGE: All right. 22 And are the units funded by grants from the OCCO as is the 23 OPFPU? 24 DR. MICHAEL POLLANEN: Yes. 25 COMMISSIONER STEPHEN GOUDGE: Okay. Would
2401 it be more desirable to have line authority? 2 DR. MICHAEL POLLANEN: Yes. 3 COMMISSIONER STEPHEN GOUDGE: And is that 4 just history? 5 DR. MICHAEL POLLANEN: Yes. 6 COMMISSIONER STEPHEN GOUDGE: Okay. 7 Thanks. 8 Well once again you've been very generous 9 with your time and your thoughts, and we appreciate it a 10 great deal. So thank you for the last two (2) days. 11 DR. MICHAEL POLLANEN: Thank you. 12 COMMISSIONER STEPHEN GOUDGE: We'll rise 13 now until 9:30 tomorrow morning. 14 15 (WITNESS STANDS DOWN) 16 17 --- Upon adjourning at 3:45 p.m. 18 19 Certified correct, 20 21 22 _____________________ 23 Rolanda Lokey, Ms. 24 25