1 2 3 THE INQUIRY INTO PEDIATRIC FORENSIC 4 PATHOLOGY IN ONTARIO 5 6 7 8 ******************** 9 10 11 BEFORE: THE HONOURABLE JUSTICE STEPHEN GOUDGE, 12 COMMISSIONER 13 14 15 16 Held at: 17 Offices of the Inquiry 18 180 Dundas Street West, 22nd Floor 19 Toronto, Ontario 20 21 22 ******************** 23 24 December 13th, 2007 25

2
  1                        Appearances
  2  Linda Rothstein      (np) )     Commission Counsel
  3  Mark Sandler              )
  4  Robert Centa              )
  5  Jennifer McAleer     (np) )
  6  Johnathan Shime       (np) )
  7  Ava Arbuck           (np) )
  8  
  9  Brian Gover          (np) )     Office of the Chief Coroner
 10  Luisa Ritacca              )     for Ontario
 11  Teja Rachamalla      (np) )
 12  
 13  Jane Langford        (np) )     Dr. Charles Smith
 14  Niels Ortved              )
 15  Erica Baron               )
 16  Grant Hoole          (np) )
 17   
 18  William Carter       (np) )     Hospital for Sick Children
 19  Barbara Walker-Renshaw(np) )
 20  Kate Crawford             )
 21  
 22  Paul Cavalluzzo      (np) )     Ontario Crown Attorneys'
 23                                   Association
 24  
 25

3
  1                   APPEARANCES (CONT'D)
  2  Mara Greene          (np) )     Criminal Lawyers'
  3  Breese Davies        (np) )     Association
  4  Joseph Di Luca       (np) )
  5  Jeffery Manishen      (np) )
  6  
  7  James Lockyer             )     William Mullins-Johnson, 
  8  Alison Craig              )     Sherry Sherret-Robinson and
  9  Phil Campbell        (np) )     seven unnamed persons
 10  Peter Wardle         (np) )     Affected Families Group
 11  Julie Kirkpatrick          )
 12  Daniel Bernstein     (np) )
 13  
 14  Louis Sokolov              )     Association in Defence of
 15  Vanora Simpson       (np) )     the Wrongly Convicted
 16  Elizabeth Widner      (np) )
 17  Paul Copeland         (np) )
 18  
 19  Jackie Esmonde        (np) )     Aboriginal Legal Services 
 20  Kimberly Murray      (np) )     of Toronto and Nishnawbe
 21  Sheila Cuthbertson    (np) )      Aski-Nation
 22  Julian Falconer      (np) )
 23  
 24  
 25

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

1 TABLE OF CONTENTS Page No. 2 3 HELEN LAURA WHITWELL, Resumed 4 PEKKA SAUKKO, Resumed 5 6 Continued Examination-In-Chief by Mr. Mark Sandler 6 7 Cross-Examination by Mr. Niels Ortved 127 8 9 10 Certificate of transcript 265 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

1 --- Upon commencing at 9:30 a.m. 2 3 THE REGISTRAR: All rise. Please be 4 seated. 5 COMMISSIONER STEPHEN GOUDGE: Good 6 morning. 7 Mr. Sandler...? 8 9 HELEN LAURA WHITWELL, Resumed 10 PEKKA SAUKKO, Resumed 11 12 CONTINUED EXAMINATION-IN-CHIEF BY MR. MARK SANDLER: 13 MR. MARK SANDLER: Good morning, 14 Commissioner. Professor Saukko, we were dealing with the 15 Kenneth case before we broke last day, and if I can take 16 you to Tab 11 of your volume, PFP135439. And if you'd go 17 to page 8, 135439. And page 8, please. 18 And you'll recall, Professor, that we were 19 about to go to the testimony that Dr. Smith gave at the 20 preliminary inquiry and at the trial. But before doing 21 that, I'm wondering if we can have a look at the 22 pathology concerning the neck in a little more detail, to 23 understand some of the testimony that follows. 24 So if you would look with me at page 8 25 under your opinion on the case, we actually see, three

1 (3) lines down, and you made reference to this yesterday, 2 but just to refresh everyone's memory, you've said: 3 "The microscopic hemorrhage in the 4 sample taken from the neck cannot be 5 given any significance whatsoever due 6 to its minimal size and the unavoidable 7 manipulation of the neck region that 8 must have taken place during 9 resuscitation at the scene, during the 10 transportation to and at the hospital, 11 as well as during more then three (3) 12 days on life support." 13 And I want to ask you, can you give the 14 Commissioner some sense of what it is you mean when you 15 refer to the minimal size of the microscopic hemorrhage 16 in the sample taken? 17 DR. PEKKA SAUKKO: Well it was -- you 18 couldn't see it -- it by the naked eye examination, so it 19 -- the diameter would have been perhaps 1 millimetre or 20 even less, depending on what lengths you look at it. So 21 you see minute hemorrhage, which could be caused by 22 anything. 23 MR. MARK SANDLER: All right. And if 24 you'd go to the overview report at paragraph 111, page 36 25 and we're at 144159.

1 DR. PEKKA SAUKKO: Tab -- which Tab? 2 MR. MARK SANDLER: This is at Tab 13, 3 page 36 -- 4 DR. PEKKA SAUKKO: Yes. 5 MR. MARK SANDLER: -- paragraph 111. And 6 we see that in Dr. Smith's summary of abnormal findings, 7 there is no reference to this microscopic hemorrhage in 8 the neck area. 9 Am I right? 10 DR. PEKKA SAUKKO: That's correct. 11 MR. MARK SANDLER: And again, that would 12 be in keeping with your evidence, that no significance 13 was to be given to that neck hemorrhage having regard to 14 it's size, and having regard to the events that occurred 15 that -- that you've described in your report. 16 Am I right? 17 DR. PEKKA SAUKKO: That's correct. 18 MR. MARK SANDLER: But lets see, because 19 -- because this neck hemorrhage or this hemorrhage in the 20 area of the neck comes up again during the testimony. 21 Lets just see what was said about it in the post-mortem 22 report. 23 We know that it wasn't included in the 24 summary of abnormal findings. Lets look at the report if 25 we may, which is at Tab 15, PFP005902. And if you'd go

1 to page 3 of the document, we see first of all that Dr. 2 Smith is addressing the internal examination -- and this 3 is a macroscopic examination, I take it? 4 DR. PEKKA SAUKKO: That's correct. 5 MR. MARK SANDLER: And you see under 6 "face and neck," Item 2, that he says: 7 "There was no evidence of soft tissue 8 hemorrhage in the upper regions of the 9 neck. The soft tissues of the lower 10 regions showed some dark red 11 discolouration from medical and 12 surgical interventions." 13 So again, stopping there, that would 14 appear to conform to your opinion that on the internal 15 examination, whatever was seen there was explained by 16 medical and surgical interventions. 17 Is that right? 18 DR. PEKKA SAUKKO: That's correct. 19 MR. MARK SANDLER: And then we look at 20 what he has to say about the microscopic and laboratory 21 findings at page 4 of the same report. And if you'd look 22 at paragraph 5, and you'll see that the Crown attorney 23 takes him to this very same paragraph in his testimony, 24 to foreshadow what we'll be doing together. And then if 25 you go down about five (5) paragraphs, within paragraph

1 5, it says: 2 "Random sections revealed small foci of 3 acute hemorrhage in the interstitial 4 tissues adjacent to the skeletal muscle 5 in the neck. The thyroid, parathyroid, 6 larynx and trachea were unremarkable. 7 Small foci of acute epithelial 8 ulceration were seen in the epiglottis. 9 There was no evidence of soft tissue 10 hemorrhage in the connective tissues of 11 this region of the neck." And so on. 12 So again, he's made some observations of - 13 - of hemorrhage, but again those haven't made their way 14 into the summary of abnormal findings. 15 Is that right? 16 DR. PEKKA SAUKKO: That's correct. 17 MR. MARK SANDLER: So against that 18 background, lets go to the testimony that Dr. Smith gave 19 at the preliminary inquiry and at the trial. 20 And if I can take you back to Tab 17, 21 PFP109459. And this is the preliminary inquiry 22 transcript, Commissioner. And I should say, the overview 23 report doesn't capture all of the passages that -- that 24 Dr. Saukko refers to in his report or the ones that I'll 25 refer to, so we'll go to actual transcript.

1 And if you go to page 18 -- and this in is 2 direct examination by a Crown attorney -- and you'll see 3 the line references on the left side of the page, Doctor, 4 and if you'd go down to about line 16 and: 5 "Q: Now I take it then your 6 examination proceeded to the face and 7 neck area, is that correct." 8 "That's right. That's fine." 9 And here we're dealing with the internal 10 examination, I can tell you. 11 "And what were you discoveries on that 12 examination? 13 Again, this is a negative type of a 14 statement as opposed to a positive 15 statement. I searched for evidence of 16 hemorrhage or iss -- or injury or any 17 kind, contusion or bruising in the 18 various layers of the tissues of the 19 neck. There was some hemorrhage in the 20 lower most portions of the neck, but 21 that would be easily explained by the 22 medical intervention or the surgical 23 intervention that had gone on as part 24 of the life support and subsequent 25 organ harvesting, so I discounted that

1 finding. 2 In the upper regions of the neck, which 3 are the regions of the neck more 4 commonly injured or more commonly 5 involved in a physical asphyxial type 6 of situation, I found, to the naked 7 eye, no evidence of injury or no 8 evidence of hemorrhage." 9 So again, stopping there for a moment, up 10 until this point in the testimony, Dr. Smith's evidence 11 would conform to your opinion as to the lack of 12 significance of what was observed internally. 13 Am I right? 14 DR. PEKKA SAUKKO: Exact -- exactly, 15 that's correct. 16 MR. MARK SANDLER: So if we can move from 17 there to page 26 of the transcript. And it's at this 18 portion of the transcript that Dr. Smith is being asked 19 by the Crown attorney about the microscopic of 20 histological findings. And you'll see at line 11, going 21 down to the fifth paragraph -- and you'll recall we 22 looked at these in the fifth paragraph of his report of 23 post-mortem examination, just a minute ago, where it 24 indicates: 25 "...small foci of acute hemorrhage in

1 the skeletal muscle of the neck; could 2 you please indicate what that..." 3 "A: Yes. This is really the third 4 general statement. First is that 5 there's no pre-existing disease. 6 Second is that there are changes which 7 are attendant upon existence on life 8 support systems. But the third one was 9 that there was evidence, albeit 10 microscopic evidence, of hemorrhage 11 into his neck. 12 And you'll recall that I said that I 13 did the examination and grossly I 14 didn't see evidence of hemorrhage of 15 the upper parts of the neck. What I 16 did was I took samples, tissues 17 samples, from the region of the 18 trachea, which is a common sight of 19 hemorrhage in the neck in an asphyxial 20 mode of death, in which there had been 21 some form of neck injury. 22 And when generally is the trachea 23 located? 24 Well, here in my report, the part of 25 the trachea which was of most

1 importance is not the part which is in 2 the chest, but rather the part in the 3 neck. 4 And you're motioning to the middle part 5 of your neck? 6 Yes, the Adam's apple. We probably all 7 understand that. That's the region of 8 the thyroid cartilage. So that is the 9 upper most portion of the trachea where 10 it joins the larynx. And so sections 11 in that area, looking for evidence 12 alongside the airway, the upper airway, 13 were taken and those were negative. 14 But the other area in which one may see 15 hemorrhage in the neck in as -- an -- 16 an asphyxia associated with some sort 17 of neck injury is in the skeletal 18 muscles that make up the neck. And 19 there are quite a number of them that 20 allow our neck to flex and extend, turn 21 left and right, and that sort of thing, 22 and to tilt to the left and right, as 23 well as to rotate to the left and 24 right. I didn't see any evidence of 25 hemorrhage in those areas to the naked

1 eye. I did take some samples from that 2 region just to affirm my gross 3 observation. And there, in fact, as 4 you've indicated, there was some 5 microscopic areas of acute hemorrhage 6 into these tissues. And so the third 7 statement is that we do have 8 microscopic evidence of hemorrhage or 9 bruising or contusion, whatever term 10 you might want to use, into his neck 11 tissues. 12 Q: All right. Now, you've indicated 13 in your report these are random 14 sections, are you able to be more 15 specific as to where they are? 16 No, unfortunately, I'm not. I simply 17 took some random samples." 18 And then if you go to page 30. 19 20 (BRIEF PAUSE) 21 22 MR. MARK SANDLER: Line 10: 23 "Q: All right. Now then if we can 24 just relate your findings to the 25 general diagnosis that you made of

1 death as a result of asphyxia, which of 2 these findings led you to conclude that 3 death was by asphyxia? And if we could 4 focus not just on findings that you 5 made of the presence of certain 6 phenomenon, but also the absence of any 7 phenomenon. 8 Okay. As you look down over the last 9 page in Section 7, 'The Summary of 10 Abnormal Findings' I've tried to 11 classify or organise what seemed to be 12 a series of almost random observations 13 into something which might make a 14 little bit of sense. So they're 15 clumped into to major categories: those 16 of asphyxia, those of life on life 17 support, and then the other two (2) 18 observations. 19 In an asphyxial mode of death, if we 20 discard the concept of chemical 21 asphyxia and deal with asphyxia from 22 impaired oxygenation, ie. airway 23 obstruction or perhaps drowning, it's 24 typical to have an autopsy which is 25 essentially negative, which is devoid

1 of positive findings, apart from the 2 presence of these pinpoint hemorrhages 3 that are seen on the surfaces of the 4 organ. 5 And there's a simple mechanistic 6 explanation for those that I don't 7 think I need to go into here for you 8 right now, but that's typical. 9 Now, the finding of those pinpoint 10 hemorrhages, the pinpoint hemorrhages, 11 I should say, does not necessarily tell 12 you how the asphyxia occurred. It 13 doesn't tell you what the nature of the 14 asphyxia is and so it's necessary to 15 look for other evidence of asphyxia or 16 the manner or the mechanism of 17 asphyxia. And in this case, apart from 18 the microscopic focus of hemorrhage in 19 the neck, which may be a pointer to his 20 mechanism of injury, and I say 'may' 21 because I can't state with absolute 22 certainty that it is, it may be a 23 pointer to his mechanism of injury or 24 it may not be, but the only positive 25 autopsy findings we have are those."

1 Now, just stopping there for a moment. 2 What appears to be suggested in that passage is that 3 although Dr. Smith could not say, to use his phrase, 4 "with absolute certainty" that the microscopic focus of 5 hemorrhage in the neck pointed to the mechanism of 6 asphyxia here, it was possibly a pointer to that 7 mechanism. 8 And do you agree with that? 9 DR. PEKKA SAUKKO: No, I don't. 10 MR. MARK SANDLER: And for the reasons 11 that you -- you've already indicated, this -- these 12 microscopic foci in the neck were of no significance. 13 DR. PEKKA SAUKKO: Yes, they were so 14 small, and secondly, they -- we can't rule out that they 15 were caused by squeezing the samp by -- sample by -- when 16 -- when he took the sample, tissue sample -- it might be 17 artifactual. 18 MR. MARK SANDLER: And do you have any 19 concern about -- about the language that's used here that 20 would suggest that -- that those microscopic focus of 21 hemorrhage in the neck may point to a mechanism of 22 injury, though it could not be stated with absolute 23 certainty? 24 DR. PEKKA SAUKKO: I think it's very 25 confusing because in his autopsy report he doesn't give

1 them any significance, and then in this testimony he 2 implies that they might be of some significance. 3 MR. MARK SANDLER: And then we go in the 4 -- on the page, page 31: 5 "Now, you can have in asphyxial modes 6 of death other autopsy findings. And 7 this is getting back to the point that 8 we made very early on where you drew 9 attention to the fact that his eye 10 examination was normal. If you have 11 neck compression as an asphyxial mode 12 of death, it's uncommon [and I suggest, 13 that should probably say 'common' 14 instead] -- it's common to see these 15 small petechial hemorrhages in the skin 16 around the eye or in the cells, the 17 conjunctive of the line, the eyelids. 18 And again, I need not go into a 19 mechanistic explanation for that. 20 If they had been present, that would 21 increase my confidence in stating that 22 Kenneth had suffered some form of neck 23 compression. The fact that they're 24 absent does not mean that he did or did 25 not have neck compression and part of

1 the problem is that the autopsy is 2 performed some four (4) days, four (4) 3 days after the injury, and it's 4 possible for petechial hemorrhages to 5 clear. And so the fact that I see none 6 in the region of his eyes doesn't allow 7 me to be conclusive as to whether or 8 not neck compression was a significant 9 component of his asphyxia or not." 10 So just stopping there for a moment. It 11 would be -- in here Dr. Smith appears to be saying that 12 had there been hemorrhages in the area of the -- in or 13 around the eye or in the cells that would increase his 14 confidence in saying that Kenneth had suffered a neck 15 compression, but the fact that he saw none did not allow 16 him to be conclusive as to whether neck compression was a 17 significant component. 18 What do you say about that? 19 DR. PEKKA SAUKKO: Well, I understood 20 that he had had access to the hospital files and I think 21 there were notes that -- on admittance, Kenneth didn't 22 have any petechia. 23 MR. MARK SANDLER: All right. So -- so 24 we know that he didn't have petechia in the area of the 25 eye. What about the -- the message that's being

1 communicated in -- in this transcript that -- that if 2 he'd -- if he'd had the hemorrhages in the eye that would 3 increase his confidence that there's neck compression. 4 So the fact that he sees none doesn't 5 allow him to be conclusive as to whether neck compression 6 was a significant component? 7 DR. PEKKA SAUKKO: Well, it is -- also in 8 -- in disagreement with his autopsy report. 9 MR. MARK SANDLER: All right. For the 10 same reasons that you've already described? 11 DR. PEKKA SAUKKO: Yeah. 12 MR. MARK SANDLER: And then you go on on 13 the next page, page 32, and he's continuing to answer the 14 -- the question that had been asked of him several pages 15 ago. 16 "You may have other observations from 17 people who examined him early on in his 18 arrival in hospital that may differ 19 from my observations. And if you have 20 an earlier observation made by a 21 reliable observer under good lighting 22 circumstances that's the observation 23 you need use and ignore what I've said. 24 But I don't have evidence of that, so I 25 cannot be firm in my suggestion that

1 there was a component of neck 2 compression in his asphyxia" 3 And then he says: 4 "I think I've just detoured down the 5 wrong road here. I don't even know if 6 I've answered your question." 7 Now, again he saying at this portion of 8 the transcript that -- that he can't be firm in his 9 suggestion that there was a component of neck compression 10 in his asphyxia. 11 Any concern about the use of language 12 there and what impression that might leave? 13 DR. PEKKA SAUKKO: Well, it's misleading. 14 MR. MARK SANDLER: All right. And in 15 what way? 16 DR. PEKKA SAUKKO: 'Cause he's all the 17 time implying that it -- it might be neck compression, 18 although he has not definite proof of it. 19 MR. MARK SANDLER: Okay. Now, he goes on 20 to say -- and this is the last passage in this sequence 21 that I was going to read. 22 "Q: I don't know if I've answered your 23 question. 24 Well, no, you're actually on a path to 25 answering and you've already referred

1 to the petechia in his lungs, sinus, 2 and heart region as being a significant 3 finding. 4 A: Yes." 5 And stopping there for a moment. You've 6 already expressed the opinion to the Commissioner that in 7 your view those are not significant findings. 8 Is that right? 9 DR. PEKKA SAUKKO: That's correct. 10 MR. MARK SANDLER: Then he goes on: 11 "Q: Now, were there any other factors 12 that you'd expect to find in an 13 asphyxial death which you did not find 14 in your post-mortem examination of 15 Kenneth? 16 No, no. There are findings, as I said, 17 which may help understand the asphyxia. 18 If there were fingernail marks on his 19 neck or fingernail marks around his 20 nose and mouth that would help explain 21 it, but these findings are sufficient 22 to make a diagnosis of asphyxia." 23 And again, you've expressed the opinion to 24 the Commissioner, they're insufficient to make a 25 diagnosis of asphyxia?

1 DR. PEKKA SAUKKO: That -- that's 2 correct. 3 MR. MARK SANDLER: Now, if we can go from 4 that passage -- excuse me for a moment -- to the 5 following page, page 33. And he says in response to the 6 question -- this is line 9: 7 "What do you mean then that it may 8 assist you in determining how the 9 asphyxial mode of death occurred?" 10 And he goes on: 11 "There are a variety of ways that a 12 young person can asphyxiate." 13 And then he sets out a series -- and -- 14 and we've seen similar language in other transcripts, so 15 I won't read it all -- but he talks about: climbing into 16 an old refrigerator, putting a plastic bag, being caught 17 between two (2) objects, eating a hotdog and the hotdog 18 obstructing their airway. Violent causes of asphyxia: 19 smothering, putting plastic bags over the head, pinching 20 the nose and mouth, and so on, or strangling, manually or 21 with a ligature. 22 And then he says at line 28: 23 "Those are all possibilities, and so 24 part of the purpose of an forensic 25 examination is to consider what the

1 various possibilities are and to see if 2 there's any evidence that would help us 3 understand what the mechanism of 4 asphyxia is. 5 And so that's a significant part of the 6 examination here. And obviously, the 7 fact that I've come with negative 8 observations says to us two (2) things: 9 Number 1) is I don't have concrete 10 evidence of asphyxia or of the type as 11 -- of asphyxia. 12 But number 2), it's the type of 13 asphyxia, however it occurred, that was 14 presumably one that was not 15 sufficiently physical that it caused 16 major injury." 17 And skipping down to line 16: 18 "So then to summarise, do I take it 19 from your examination you're not able 20 to determine the mode of the asphyxial 21 death? That's correct. That's 22 correct." 23 And you commented in your report about -- 24 about the passage that I just read to his earlier 25 testimony that the findings that were available were

1 sufficient to make a diagnosis of asphyxia, and -- and 2 what conclusion did you reach about -- about his 3 testimony in that regard? 4 DR. PEKKA SAUKKO: Well, it's actually 5 confusing and illogical. 6 MR. MARK SANDLER: All right. Now, if we 7 can move from there to page 36 of the transcript. And 8 the prosecutor, at line 22, questions him about the 9 history that he had received prior to the autopsy 10 examination and Dr. Smith says: 11 "I had some information both verbally 12 as it was given to me in a telephone 13 conversation, as well as some recorded 14 in the hospital chart." 15 And then -- and then he notes at the top 16 of page 37 that: 17 "He hasn't investigated the matter 18 himself, so I have no idea whether I'm 19 telling you the truth or a fairytale, 20 but I'll quickly read in the statements 21 which I recorded for myself and it's up 22 to you to prove or disprove them." 23 And then after he reads out a history, 24 which -- which we dealt with yesterday in similar terms 25 when you read out the history in your medicolegal report.

1 He says at line 29 at page 37: 2 "Now, can you tell me then the 3 information that you've read out, is 4 that particular accounting consistent 5 with the physical findings which you 6 discovered upon the examination of 7 Kenneth? 8 A: I do not believe that it is an 9 accurate explanation for his death. 10 Q: Can you explain why not? 11 And then he says: 12 "I'll just make a couple of general 13 observations." 14 And I -- and he says: 15 "First of all, the concept of asphyxia 16 occurring in such a way that a person 17 is able to phonate, that is to speak, 18 or scream, or make any kind of 19 vocalisation, is inconsistent with an 20 asphyxia wherein there is an 21 obstruction to air passage." 22 And then he goes on to explain that in 23 whatever form of asphyxia takes place he discounts the 24 notion that one could phonate, the child could phonate. 25 And then he reflects at line 30:

1 "The second thing is that in an 2 asphyxial mode of death associated with 3 chest compression I would have expected 4 to see some evidence of it on autopsy, 5 either injury to his lungs, or in chest 6 compression it's very common to see 7 these pinpoint hemorrhages around his 8 eyes." 9 And the he goes on to say: 10 "If they were there in hospital my 11 statement is -- is wrong. So I 12 discount the concept that he was so 13 wrapped up or entangled in his bed 14 clothes that he is asphyxiated, but 15 he's still able to phonate and he 16 didn't have the typical autopsy 17 findings." 18 And then the Crown asks him at line 16: 19 "Hypothetically, would a plain cotton 20 shirt provide sufficient obstruction 21 that you're referring to over the 22 airways for such an occurrence to 23 happen? 24 And he says: 25 "No, no, no, there are things that can

1 happen. There have been tests that 2 have been performed using sheets and 3 quilts and that sort of thing, and even 4 some of these examinations have gone on 5 -- some experiments in Toronto. You 6 may impede the carbon dioxide exchange 7 a little bit, but you certainly don't 8 create a situation where a child would 9 die if it was simply those kind of 10 normal bed clothes. 11 If it was a plastic sheet -- if he was 12 a bed wetter, if there was a plastic 13 sheet and he managed to get that over 14 his head and neck, then I could accept 15 that as a cause of death, but I'd have 16 to discount perhaps the screaming. But 17 in terms of the airway obstruction from 18 a sheet, I cannot say it's not possible 19 because I haven't seen the sheets. I 20 don't know what his bedding was like. 21 From you suggest of the bedding, I have 22 no reason whatsoever to believe there's 23 a credible explanation. 24 Is there anything else in the 25 explanation which would trouble you in

1 terms of its credibility? 2 Well, I have trouble with the length of 3 time of the untangling. I don't know 4 what Ken was like -- and let me speak 5 not as a pathologist, perhaps, but as a 6 parent. I mean, I don't know how many 7 times I've untangled my own children 8 from bed clothes and playing in bed 9 clothes, and I can't believe for a 10 minute that it's a twenty (20) minute 11 process. I find it perhaps surprising, 12 even if the story about being in the 13 bathroom and hearing screaming or 14 calling out for ten (10) minutes and 15 did not generate a response, but there, 16 I'm not making a statement as a 17 forensic pathologist. I just find the 18 story unbelievable in its various 19 aspects, some of which are unbelievable 20 based on my understanding of forensic 21 pathology and some are just my own 22 experience as a parent." 23 Stopping there at that point. Any comment 24 upon the way in which Dr. Smith has addressed the 25 credibility of the history as provided in the case?

1 DR. PEKKA SAUKKO: Well, as the history 2 of the case often is necessary and it assists us when we 3 -- if we have to deal with a manner of death, but in this 4 case where there's no pathology, I think it's 5 inappropriate to speculate on the -- 6 MR. MARK SANDLER: All right. And -- 7 DR. PEKKA SAUKKO: -- history. 8 MR. MARK SANDLER: And -- and leave aside 9 the inappropriateness as you've characterized it of 10 speculating on -- on the history in the absence of any 11 pathology, in your view, do the opinions expressed, 12 whether you agree or disagree with it being speculation, 13 fall within the scope of the work of a forensic 14 pathologist? 15 DR. PEKKA SAUKKO: No, I don't think so. 16 MR. MARK SANDLER: And -- and what 17 aspects of that are you referring to in -- in particular? 18 19 (BRIEF PAUSE) 20 21 DR. PEKKA SAUKKO: Well, it's all 22 together very speculative. 23 MR. MARK SANDLER: All right. We see 24 references here to the fact that he has trouble with the 25 length of time of the untangling.

1 "I don't know how many times I've 2 untangled my own children from bed 3 clothes...I can't believe [that would 4 take -- in effect, that would take 5 twenty (20) minutes]." 6 And again, is -- is that, in your view, 7 within the expertise of the forensic pathologist? 8 DR. PEKKA SAUKKO: No, I -- I think it's 9 just commonsense. 10 MR. MARK SANDLER: Okay. Now, if you'd 11 return to the overview report, which is at Tab 13, and if 12 you'd go to page 58. This is 144159. 13 I should ask you -- sorry, just going back 14 to the history for a moment, there's one (1) feature that 15 you said or features that -- that would be more matters 16 of commonsense that the role of the forensic pathologist 17 -- what about the issue of whether a child could be 18 expected to phonate in -- in extremis, whether suffering 19 from a -- from a seizure or -- or other difficulties. 20 Is that an appropriate consideration for a 21 forensic pathologist? 22 DR. PEKKA SAUKKO: Well, I think it's 23 logical if -- if one has a seizure that usually the 24 person is not able to phonate. 25 MR. MARK SANDLER: Okay. And then if you

1 go to page 58 of the overview report, paragraph 164, Dr. 2 Smith was asked if the findings that he made were 3 consistent with a manual or a ligature strangulation and 4 he replied: 5 "Well, they're consistent with it, but 6 the lack or the relative lack of 7 hemorrhage or injury in the neck makes 8 me believe that it's not a likely 9 explanation, but it's consistent with 10 it. 11 Do you understand what I'm saying? On 12 balance of probability, I don't think 13 that's a great explanation, but I can't 14 rule it out. It's consistent with it, 15 but it's not the explanation I would 16 prefer." 17 So then he testifies that his findings are 18 consistent with suffocation. And that: 19 "If we used a pillow or a plastic bag 20 or something or even pinch off the nose 21 and mouth, it may leave no marks 22 whatsoever externally, but will still 23 result in these asphyxial findings. 24 And so I would say to you that if in 25 fact, if I were a betting man, or on a

1 balance of probability, I think that's 2 a better explanation for Kenneth's 3 death than an actual neck compression 4 type of explanation." 5 And any comment upon that kind of 6 testimony? 7 DR. PEKKA SAUKKO: I think it's 8 inappropriate for -- for an expert witness. 9 MR. MARK SANDLER: All right. Now, he's 10 then asked in cross-examination about the preparation of 11 his report and -- and if I can take you to page 59, he's 12 -- he's summarising how it is that his report comes to be 13 formulated. 14 And you'll see under the first question in 15 the middle of page 59: 16 "And do you formulate your conclusions 17 soon after the data is gotten, or does 18 that -- 19 A: Well, the answer is yes and no. 20 Let me explain that. On cases like 21 this when the police attend an autopsy 22 and it's only in a minority of 23 instances that they do, they want to 24 walk out with some information. 25 Q: Yes.

1 Sometimes I can say to the police, this 2 is natural death, write the matter off. 3 You know, for example, a child who may 4 die under suspicious circumstances. 5 But it turns out to be SIDS or 6 something and they will attend the 7 autopsy and I'll say, Fine, natural 8 death, and they walk out of the autopsy 9 room at the end of that." 10 Now, just stopping there for a moment. 11 Any comment upon that? 12 DR. PEKKA SAUKKO: Well, that's incorrect 13 because SIDS is a diagnosis by exclusion. You cannot 14 tell that after the post-mortem; you have to have 15 performed all ancillary investigation, histology, 16 toxicology, maybe bacteriology. After that you may -- 17 might be able to say that it's a SIDS, but not at the -- 18 after -- immediately after the autopsy. 19 MR. MARK SANDLER: All right. 20 "There are other times when I can do an 21 examination and say, This is head 22 injury and it's very suspicious. I 23 think it's a non-accidental injury, you 24 need to investigate it, you need to do 25 whatever. And I've had times when I've

1 said to the police, This is homicide, 2 you act accordingly. And then there 3 are times when I have said, Well, this 4 is what I think it is, but I'm not 100 5 percent certain. 6 I don't remember what I told the police 7 on this case and if the police officers 8 who were there had written down what I 9 said, then that's the information which 10 you're seeking. But believe me, 11 there's times when I've struggled for 12 days, if not weeks, with trying to come 13 to a reasonable integration of all the 14 information and a conclusion which is a 15 reasonable and a correct conclusion." 16 And when Dr. Smith said that he didn't 17 remember what he told the police on the case and that the 18 questioner would have to look to what the police wrote 19 down to seek out what he might have said. 20 Can you help us out systemically on -- on 21 how you would deal with the communication of information 22 at the end of the autopsy, but before a final post-mortem 23 report is prepared. 24 DR. PEKKA SAUKKO: Well, we 25 systematically in every case give a preliminary report,

1 but in -- in writing and we tell what we can say -- say 2 at the -- at that moment and tell what kind of ancillary 3 investigation we're going to perform, and that's given in 4 writing to avoid misunderstandings. 5 MR. MARK SANDLER: Okay. And is there 6 and actual form that -- that -- 7 DR. PEKKA SAUKKO: No, it's freely -- 8 MR. MARK SANDLER: It's freely done, 9 but -- 10 DR. PEKKA SAUKKO: -- freely done. 11 MR. MARK SANDLER: -- but as a matter of 12 practice it's done -- 13 DR. PEKKA SAUKKO: Yeah. 14 MR. MARK SANDLER: -- in all cases? 15 DR. PEKKA SAUKKO: In all cases, yes. 16 MR. MARK SANDLER: And when you say it's 17 all -- done in all cases, do you mean a preliminary 18 report is given in all cases? 19 DR. PEKKA SAUKKO: Yes. 20 MR. MARK SANDLER: Okay. 21 DR. PEKKA SAUKKO: Correct. 22 MR. MARK SANDLER: All right. Now, if we 23 could go to the trial testimony that Dr. Smith gave and - 24 - and I'm going to take you to paragraph -- I'm sorry, 25 I'm going to take you to Tab 18. Again, we'll look at

1 the actual transcript for convenience, as 063601. 2 063601. 3 4 (BRIEF PAUSE) 5 6 MR. MARK SANDLER: And if you'd go to 7 page 64 of this document, and it's at Tab 18 of your 8 materials, Doctor. 9 10 (BRIEF PAUSE) 11 12 MR. MARK SANDLER: Now, at page 64 at 13 line 21, the Crown attorney, in examination-in-chief, 14 asks Dr. Smith: 15 "Was there any finding on Kenneth's 16 body to help you explain how the 17 asphyxia occurred? In other words, 18 you've explained what asphyxia is, but 19 is there anything that you can tell us 20 about how this might have occurred?" 21 And then he says: 22 "It's probably easier for me to tell 23 you how it did not happen; that'll 24 answer your question, if I can do 25 that."

1 And then his answer goes on, and I -- and 2 I don't intend to read it out in its entirety -- at page 3 64, 65, 66, 67 and into 68. 4 And perhaps you just take a moment and 5 refresh your memory and have a look at it. I don't 6 intend to read it out all, but I'm going to ask you about 7 it in a -- in a global sense in a moment. 8 9 (BRIEF PAUSE) 10 11 MR. MARK SANDLER: And if just read up to 12 the top of page 68. 13 14 (BRIEF PAUSE) 15 16 MR. MARK SANDLER: So if you -- if you go 17 to the top of page 68, the answer culminates with these 18 two (2) paragraphs. 19 "So what I'm left with in Kenneth is 20 this, he has evidence of asphyxia, I've 21 got no natural disease that explains 22 the asphyxia. I have some microscopic 23 evidence of hemorrhage in his neck that 24 would be consistent with neck injury, 25 but I can't say whether that neck

1 injury was accidental or non- 2 accidental. It would be appear to be 3 not a severe or prolonged neck injury 4 if it was real, such that we see the 5 petechial changes in or around his eye 6 or in the region of his face. 7 So what I'm saying is that he died of 8 asphyxia. The asphyxia could be 9 environmental, it could be 10 environmental lack of oxygen, could be 11 something like a plastic bag or a 12 gentle suffocation, it could be a neck 13 compression. I can't rule that out, 14 though I don't have incontrovertible 15 evidence of that. 16 I have no evidence that he died of 17 things like hotdogs, but then I wasn't 18 there, so I can't make that statement. 19 I think I've rambled. Have I answered 20 your question?" 21 Now, could you speak to -- because one (1) 22 of the topics that the Commissioner has to wrestle with 23 is -- is how the science can be communicated to the 24 courts in an effective way. What, in your view, was the 25 answer to the question that the -- that the Crown

1 attorney asked? 2 "Was there any finding on Kenneth's 3 body to help you explain how the 4 asphyxia occurred? You've explained 5 asphyxia. Is there anything you can 6 tell us about how it might have 7 happened?" 8 DR. PEKKA SAUKKO: Well, he had -- should 9 have said that no, there was no -- because he didn't have 10 a cause of death. He's just rambling and confusing. 11 MR. MARK SANDLER: All right. And then-- 12 COMMISSIONER STEPHEN GOUDGE: So the 13 answer was simply "no"? 14 DR. PEKKA SAUKKO: Yeah. 15 16 CONTINUED BY MR. MARK SANDLER: 17 MR. MARK SANDLER: If we can go from 18 there, at the top of page 69, the Crown attorney at the 19 trial, in the same way as was done at the preliminary 20 inquiry, asked Dr. Smith about the history that had been 21 provided. And -- and it's at the bottom of 68 that he 22 asks about the history, and at the top of 69 the Crown 23 says: 24 "And if I tell you we've heard some 25 evidence that during this period of

1 time when he was wrapped in the bed 2 clothes that his mother was able to fit 3 her fingers between the sheet and 4 Kenneth's neck, does that assist you in 5 whether or not there would be some kind 6 of strangulation that cutoff the 7 airflow from his neck? 8 It certainly makes it a lot less 9 likely. You need to understand, people 10 can hang from a ligature that's not 11 tightly wrapped around their neck, so a 12 person who hangs in a face down can 13 have ligatures such that there's loose 14 space at the back. But, of course, one 15 would expect to see other petechial 16 changes in the eye region associated 17 with that, so if the statement's true 18 that the wrapping of the bed clothes 19 around his neck was loose, I certainly 20 would be sceptical in believing that 21 neck compression on the basis of bed 22 clothes was responsible for asphyxia." 23 And I simply suggest to you that in 24 responding to this question, unlike the Preliminary 25 Inquiry, whether one agrees or disagrees with the

1 statement that Dr. Smith has made, he hasn't imported the 2 notions that you criticized at the Preliminary Inquiry 3 about -- about personal information, about his own -- his 4 own experience and what he would expect about the time to 5 untangle the sheets and all of that, am I right? 6 DR. PEKKA SAUKKO: That's correct. 7 MR. MARK SANDLER: And this is the Trial 8 as opposed to the Preliminary Inquiry? So then if we go 9 -- and you'll be delighted to hear we're almost completed 10 our review of the transcript. If you'd go to page 80 of 11 the Trial transcript. Excuse me for a moment. 12 And then at page 80, the court asks a 13 question at the end of examination-in-chief and before 14 defence counsel cross-examines. And the Court says: 15 "Well, while you're doing that, one (1) 16 question that I have is -- is that -- I 17 was going to wait until the end of your 18 testimony, but perhaps it's appropriate 19 now. You've indicated that you 20 observed the petechial hemorrhage on 21 the organs and some microscopic 22 evidence of those in the neck tissues. 23 What is the process that causes these 24 petechiae or these pinpoint red marks? 25 A: Okay. The petechiae in the neck

1 tissues need be separated out because 2 that's presumably a direct force, a 3 blunt force, phenomenon." 4 What do you say about that? 5 DR. PEKKA SAUKKO: Excuse me. Well, 6 whether it's a blunt force or sharp force, I don't know 7 because you -- they can be artifactual, as I mentioned 8 earlier, due to sampling, depending how he takes his 9 tissue samples. So you -- you really -- based on those 10 minute -- that minute hemorrhage, you really can't tell 11 anything about its origin. 12 MR. MARK SANDLER: But we seem, in this 13 answer, to have gone from -- from the absence of -- of 14 referring to the hemorrhages in the neck area as abnormal 15 findings in the report of post-mortem examination, to a 16 position that was taken earlier in the transcript that -- 17 that they may be a pointer of the mechanism of asphyxia, 18 but one can't be conclusive about it to -- to this 19 reference here. 20 And -- and that's why I ask you about your 21 comment as to whether or not this comment is supported by 22 the pathology, as you understand it. 23 24 (BRIEF PAUSE) 25

1 DR. PEKKA SAUKKO: Well, it's -- the 2 finding is really so non-significant it shouldn't be 3 discussed at all. 4 MR. MARK SANDLER: Okay. And should it 5 be discussed as presumably a direct force, a blunt force 6 phenomenon? 7 DR. PEKKA SAUKKO: Yeah. Yeah. 8 MR. MARK SANDLER: Okay. All right. If 9 we can go to the -- page 96 and the -- pages 96 to 97. 10 I'm just going to read you two (2) different passages and 11 then take you to your report and you comment upon them. 12 The first passage is at the bottom of page 13 96 where in cross-examination this question is asked: 14 "When we consider the resuscitation 15 attempt that someone would experience 16 and this type of a situation, is it not 17 also the case that those attempts which 18 can quite traumatic for the body could 19 also cause petechial hemorrhages? 20 A: They can. More classically they 21 are associated with petechia in the 22 neck and -- in the head and neck 23 region, as opposed to in the chest. 24 Though, if you have significant chest 25 compression you're back to the model of

1 the pressurised container or the garden 2 hose where the blood can't get back. 3 So, with prolonged chest compression or 4 vigorous chest compressions petechia 5 may occur, but they're more likely to 6 be seen in the form of hemorrhages in 7 the retina and the tissues around the 8 eye or the neck and the neck region, as 9 opposed to the chest." 10 And then we go to page 113. 11 12 (BRIEF PAUSE) 13 14 MR. MARK SANDLER: And at page 113, line 15 12 -- and this is the Crown attorney reexamining Dr. 16 Smith after the cross-examination has been completed -- 17 this question: 18 "All right. You were also asked a 19 number of questions about petechia and 20 other conditions that have potentially 21 caused petechia in some of the areas 22 where you observed them on Kenneth. 23 After having listened to those 24 questions, have you changed your 25 opinion about all the petechia that you

1 observed being indicative of asphyxia? 2 A: No, I'm still confident of that 3 opinion. 4 Q: And when you made a finding of 5 asphyxia are you just looking at 6 petechia to support that finding or do 7 you look at other factors? 8 A: No, no, petechia don't make the 9 diagnosis. What they do is they point 10 to the diagnosis. But the other causes 11 of asphyxia, of petechia, have to be 12 considered, so one looks for evidence 13 of systemic disease or other phenomenon 14 that may have resulted in the 15 appearance of those hemorrhages." 16 Now, you comment upon those passages in 17 your medicolegal report and I'll take you there, if I -- 18 if I may. And we're back at Tab 11, page 8. 19 20 (BRIEF PAUSE) 21 22 MR. MARK SANDLER: And you've reflected 23 at page 8, five (5) lines down: 24 "In the examination-in-chief Dr. Smith 25 agrees that the surgery during the

1 organ harvesting could have caused the 2 petechia in the epicardium. 3 And later after having been asked 4 whether petechia indicative of 5 asphyxia: No, no, petechia don't make 6 the diagnosis. What they do is they 7 point to the diagnosis, but the other 8 causes of asphyxia, of petechia, have 9 to be considered, and so one looks for 10 evidence of systemic disease or other 11 phenomenon that may have resulted in 12 the appearance of the hemorrhages. 13 It is illogical and completely against 14 scientific evidence based reasoning to 15 give any cause of death if there's one 16 (1) or several causes that cannot be 17 reasonably ruled out, and in such a 18 case, the death has to be classified 19 accordingly as un-ascertained." 20 Do you have any additional comments about 21 -- about this aspect of his testimony? 22 DR. PEKKA SAUKKO: Well, they're 23 incoherent; he's changing his opinions all the time. 24 MR. MARK SANDLER: Okay. Those are all 25 the questions that -- that I'm going to ask you, Dr.

1 Saukko, about the Kenneth case. 2 And, Commissioner, what I intend now to do 3 is to turn back to Professor Whitwell and deal with the 4 remaining two (2) cases. 5 COMMISSIONER STEPHEN GOUDGE: Okay. Can 6 I just ask Dr. Saukko a couple of questions? 7 Mr. Sandler has usefully pointed you to a 8 lot of the evidence that was given by Dr. Smith. In 9 Finland, do forensic pathologists get any training about 10 how to give evidence? 11 DR. PEKKA SAUKKO: Actually, no. 12 COMMISSIONER STEPHEN GOUDGE: How do they 13 learn? 14 DR. PEKKA SAUKKO: Some don't learn it 15 ever. 16 COMMISSIONER STEPHEN GOUDGE: That -- 17 DR. PEKKA SAUKKO: Some of them -- 18 COMMISSIONER STEPHEN GOUDGE: -- I mean, 19 what about England, Dr. Whitwell? I mean, -- 20 DR. HELEN WHITWELL: When I started in 21 forensic pathology, the answer was no. One went to court 22 and there was a -- a hope that one would pick things up 23 from watching other people or as one went along. With 24 the current trainees, they are -- they not only follow 25 other people around, but they also --

1 COMMISSIONER STEPHEN GOUDGE: Other 2 pathologists? 3 DR. HELEN WHITWELL: Yes, other 4 pathologists -- but they also have a specific -- I think 5 it's about a week -- perhaps less than a week -- training 6 with lawyers and other experts. 7 MR. MARK SANDLER: This is -- Professor 8 Crane made reference to that in -- 9 DR. HELEN WHITWELL: With case -- 10 MR. MARK SANDLER: -- his -- 11 DR. HELEN WHITWELL: -- with -- with case 12 presentation and -- 13 COMMISSIONER STEPHEN GOUDGE: Right. 14 DR. HELEN WHITWELL: -- and -- so mock 15 trials, in effect. So they give evidence and then -- 16 MR. MARK SANDLER: Yeah. 17 DR. HELEN WHITWELL: -- are commented on 18 that. 19 COMMISSIONER STEPHEN GOUDGE: Apart from 20 what you've just described, do either of you have any 21 thoughts about how forensic pathology training can 22 address this issue? That is, it is obviously a 23 significant part of a forensic pathologist's job to try 24 to assist the court in court. 25 How do you learn how to do that? Either

1 of you? 2 DR. HELEN WHITWELL: That's an -- that's 3 an interesting question. One, I think, supposedly learns 4 by experience, but perhaps some people don't learn by 5 experience. I -- I think, and I perhaps referred to it 6 yesterday, in -- in England and Wales anyway, there seems 7 to be much tighter control in terms of what an expert is 8 allowed to say in court, and a barrister may stop what he 9 feels inappropriate comments. 10 COMMISSIONER STEPHEN GOUDGE: So one 11 relies on the court system to give discipline to the 12 giving of evidence? 13 DR. HELEN WHITWELL: To some extent, yes. 14 COMMISSIONER STEPHEN GOUDGE: Would it 15 not be useful for there to be some formalized training, 16 though, of the scientist about how to do it? 17 DR. PEKKA SAUKKO: I agree with you 18 completely. It should be -- there should be training. 19 I've been trying to -- I've been involved once in 20 training -- Appeal Court judges how to -- 21 COMMISSIONER STEPHEN GOUDGE: Well, now, 22 let us not go too far. That is -- sorry, carry on. 23 DR. PEKKA SAUKKO: -- how to be able to 24 distinguish an expert -- who is an expert. I think 25 that's a -- one (1) of the key issues when you have

1 people giving testimony. How -- how should you know that 2 someone is an expert. 3 COMMISSIONER STEPHEN GOUDGE: And how 4 should you know what of what they are telling you is 5 appropriately expert opinion evidence? 6 DR. PEKKA SAUKKO: Exactly. 7 COMMISSIONER STEPHEN GOUDGE: But is it 8 not appropriate as well for the professional to get some 9 schooling before appearing in court about just how to 10 articulate the professional view in a way that is going 11 to be helpful and stick to professional expertise? 12 DR. HELEN WHITWELL: Yes, it is. 13 DR. PEKKA SAUKKO: Yes. 14 COMMISSIONER STEPHEN GOUDGE: Why is it 15 not done? 16 DR. HELEN WHITWELL: Well, I think the -- 17 the current training of the forensic pathologist in 18 England and Wales has, perhaps, tried to address it. 19 COMMISSIONER STEPHEN GOUDGE: Mm-hm. 20 DR. HELEN WHITWELL: Whether or not it's 21 addressed it sufficiently, I think it's difficult to say. 22 It probably hasn't. 23 COMMISSIONER STEPHEN GOUDGE: Dr. Saukko, 24 what about Finland? 25 DR. PEKKA SAUKKO: I -- I teach in the

1 medical school -- the undergraduates -- and we have a two 2 (2) hour lecture about writing -- writing testimony and 3 giving testimony in court to the undergraduates. 4 COMMISSIONER STEPHEN GOUDGE: Right. 5 DR. PEKKA SAUKKO: So the basic -- 6 COMMISSIONER STEPHEN GOUDGE: So there is 7 something? 8 DR. PEKKA SAUKKO: There is something, 9 yeah. But not -- not for the trainees in -- no -- no 10 systematic training for the coming for as pathologists. 11 COMMISSIONER STEPHEN GOUDGE: Okay. 12 Thanks. Sorry, Mr. Sandler. 13 14 CONTINUED BY MR. MARK SANDLER: 15 MR. MARK SANDLER: Oh, that's fine. 16 Professor Whitwell, we're back to you, if we may. And 17 we're going to look together at the Kassandra case. And 18 if I can take you Tab 41 of Volume IV of your materials, 19 PFP143173. And if we could go to page 3 of the overview 20 report we see that: 21 "Kassandra was born in Massasauga, 22 Ontario on December the 15th of 1987. 23 Her parents lived together in a common- 24 law relationship at the time of the 25 birth, but subsequently separated when

1 she was six (6) months old. She died 2 on April the 11th of 1991, at the 3 Hospital for Sick Children in Toronto. 4 She was then three and a half (3 1/2) 5 years old, and at that time, was living 6 with her father and stepmother in 7 Brampton, Ontario at the time of death. 8 Criminal proceedings were initiated 9 against Kassandra's stepmother. The 10 criminal proceedings concluded in 11 October of 1992 when she pleaded guilty 12 to manslaughter and was sentenced to 13 two (2) years less a day. 14 The Peel Children's Aid Society became 15 involved with Kassandra several years 16 prior to her death, in July of 1989. A 17 coroner's inquest was held into 18 Kassandra's death in 1997." 19 And as I understand it, as part of the 20 Chief Coroner's review, you were assigned to be the 21 primary reviewer for this case. 22 DR. HELEN WHITWELL: I was, yes. 23 MR. MARK SANDLER: And if I can take you 24 -- this will be a familiar routine for you -- to the 25 medicolegal report that you prepared, 136020. And you

1 set out at pages 3 and 4, some of the history and 2 circumstances of the case as you understood them and can 3 you advise the Commissioner briefly what those hist -- 4 what that history and what those circumstances were? 5 DR. HELEN WHITWELL: Yes, Kassandra was 6 born on the 15th of December, 1987. According to the 7 coroner's investigation, she -- she was living with her 8 step -- father and stepmother. 9 Her natural mother was divorced from her 10 father. 11 MR. MARK SANDLER: I'm sorry, with her 12 father and stepmother. 13 DR. HELEN WHITWELL: Yes. 14 MR. MARK SANDLER: You just said 15 stepfather, right? 16 DR. HELEN WHITWELL: Sorry. Her natural 17 mother was divorced from her father. And she was 18 admitted to Peel Memorial Hospital on the evening of 19 April 9th, 1991 at around 2130 hours. 20 She was subsequently transferred to the 21 Hospital for Sick Children in Toronto and during the 22 early hours of April the 10th, 1991 underwent a CT Scan. 23 Previous medical history indicated she had been admitted 24 to Peel Memorial Hospital in February 1991 and had 25 undergone a CT scan at that time. This was reported as

1 showing cerebral edema. 2 She was subsequently -- started on March 3 the 8th. She had been noted to have a number of bruises 4 on admission in February; she was also noted to be 5 dehydrated and was vomiting. 6 At the time, the suspicion of child abuse 7 was raised by the various hospital personnel. She 8 improved and following discharge a repeat C ton -- CT 9 Scan was organized. On admission to the Hospital for 10 Sick Children, the original Peel Memorial Hospital scan 11 was reviewed and subdural hematomas were identified. 12 Kassandra died on the 10th of April, 1991 13 and following the police investigation Kassandra's step - 14 - stepmother was charged with manslaughter. She 15 subsequently stood trial and pleaded guilty. 16 A coroner's inquest subsequently took 17 place with an extensive narrative verdict in 1997. This 18 was followed by various recommendations regarding the 19 management of possible child abuse cases. 20 MR. MARK SANDLER: Thank you. We know 21 that the autopsy was performed by Dr. Charles Smith on 22 April the 12th of 1991. If I can take you to Tab 41 -- 23 the overview report again -- 143173, and if we could go 24 together to page 35 -- 34 of the overview report. 25 And -- and I don't intend to read out loud

1 paragraphs 104 to -- and following, that extends into 2 about 111 of the overview report. 3 But you'll recall, I suggest, that an 4 issue that arose in the Kassandra case had to do with 5 whether or not the CT scan that had been performed at the 6 Peel Memorial Hospital showed a chronic subdural injury 7 which had been missed by Peel Memorial, and was 8 subsequently observed on a review of that CT scan by the 9 Hospital for Sick Children. 10 Do you -- do you remember that -- 11 DR. HELEN WHITWELL: Yes, I -- 12 MR. MARK SANDLER: -- debate arising? 13 And the Hospital for Sick Children felt that it had been 14 missed and there were statements documented from the Peel 15 Memorial Hospital suggesting that -- that indeed it had 16 not been missed, and what was seen was the Hospital for 17 Sick Children was misreading a shadow as an old injury, 18 not bring familiar with the equipment at Peel Memorial. 19 What I want ask you is -- is this: Can 20 you assist the Commissioner as to whether indeed there 21 was a chronic subdural injury here? 22 DR. HELEN WHITWELL: Well, I can assist 23 from the post-mortem aspect and there was evidence of 24 chronic subdural bleeding, yes. 25 MR. MARK SANDLER: So --

1 DR. HELEN WHITWELL: I can't assist in 2 the terms of radiology. That's up to the radiologist to 3 give a -- give their views on the relevant films. 4 MR. MARK SANDLER: So simply put, rather 5 than weighing in on the radiological debate, in your 6 view, the pathology demonstrated the existence of a -- of 7 chronic subdural injury. 8 Is that right? 9 DR. HELEN WHITWELL: Yes, there was 10 evidence of old bleeding of the dura. Yes, that's quite 11 correct. 12 MR. MARK SANDLER: All right. And if 13 you'd go to page 41. 14 DR. HELEN WHITWELL: Yes. 15 MR. MARK SANDLER: We see that -- that 16 the autopsy report of Dr. Smith reflected at paragraph 2 17 -- 125: 18 "Post-mortem exam demonstrated evidence 19 of cranial cerebral trauma with a 20 recent scalp hematoma forming a ring 21 shape 3 centimetres in diameter, in the 22 right occipital region. This was 23 spatially related to a subdural 24 hematoma in the right occipital region. 25 As well, a small hematoma was seen in

1 the left frontal region on the floor of 2 the anterior cranial fossa. This may 3 represent a contrecoup injury." 4 Then there's reference to: 5 "Yellow staining in the soft tissues of 6 the right temporal region, as well as 7 the subdural space over the cerebral 8 convexities. The brain was swollen, 9 but atrophic." 10 Now, the reference there, at first 11 instance, to -- to the recent scalp hematoma forming a -- 12 a ring shape in the right occipital region, spatially 13 related to a subdural hematoma in that same region, did 14 you independently review and determine that -- that that 15 pathology existed? 16 DR. HELEN WHITWELL: Yes, I did. 17 MR. MARK SANDLER: All right. And -- and 18 he reflects that: 19 "As well, a small hematoma was seen in 20 the left frontal region that may 21 represent a contrecoup injury." 22 Did you form any opinion about that? 23 DR. HELEN WHITWELL: That -- that was 24 more difficult and there was -- partly because the -- it 25 was a little unclear as to where the blocks were taken

1 from. There was certainly evidence of old subdural 2 bleeding I've described, as well as some recent subdural 3 hemorrhage. 4 MR. MARK SANDLER: Okay. And then we see 5 under paragraph 126 that the anatomical diagnosis in the 6 report are listed as follows. And -- and perhaps you 7 could just briefly take us through what's contained in 8 the report and -- and any comments that you have on it? 9 DR. HELEN WHITWELL: Yes, Dr. Smith lift 10 -- lists the anatomical diagnosis. 11 And under (1) he has indicated, "Cranial 12 cerebral trauma." 13 And 1.1: "Status epilepticus [which is 14 brackets]." 15 And then 1.2: "Hematoma of the scalp, 16 right occipital, recent." 17 1.3: "Subdural hemorrhage, recent, 18 involving right occipital and left frontal region." 19 He then continues to comment: 20 "There's focal subarachnoid hemorrhage 21 in the right occipital lobe on the 22 brain stem. In addition, the cerebral 23 edema with herniation of the cerebellar 24 tonsils and herniation of the 25 hippocampal unci. There's optic nerve

1 hemorrhage, retinal hemorrhage, and 2 retinal detachment. 3 MR. MARK SANDLER: Now, just stopping 4 there for a moment. When reference is made to the 5 cranial cerebral trauma, is that -- is that synonymous 6 with a head injury? 7 DR. HELEN WHITWELL: Yes. 8 MR. MARK SANDLER: Okay. And -- and we 9 see here two (2) items in parentheses: status 10 epilepticus and also retinal detachment bilateral. 11 And -- and just to fill you in on -- on 12 some of the evidence we've heard; you heard yesterday 13 that -- that in -- that in some instance, Dr. Smith 14 reflected that matters were put in parenthesis to reflect 15 matters that were suspected, but could not be verified as 16 a convention. 17 But we also heard from Dr. Pollanen and is 18 also reflected by Dr. Smith in testimony given in -- in 19 this case, that -- that sometimes parenthesis are used to 20 reflect that a history that's not personally observed by 21 the pathologist, but -- but reflected in the findings. 22 And -- and in the latter sense, is -- is 23 that a usage that you're familiar with? 24 DR. HELEN WHITWELL: No. 25 MR. MARK SANDLER: All right. Take it

1 from me, let's assume for the purposes of our discussion, 2 would status -- that that may well be the explanation for 3 the parenthesis -- would status epilepticus be something 4 that the forensic pathologist conducting the autopsy 5 could personally observe, or would that be compatible 6 with -- with the -- the second sense of these parenthesis 7 that I described? 8 DR. HELEN WHITWELL: It would be from -- 9 from the clinical perspective. 10 MR. MARK SANDLER: Okay. And what is 11 status epilepticus? 12 DR. HELEN WHITWELL: It's epileptic 13 seizures which are virtually continuous. 14 MR. MARK SANDLER: All right. And then 15 similarly on -- on page 42, as reflected here under 1.8, 16 retinal detachment bilateral, is placed in -- in 17 parenthesis. 18 And again, can you assist us as to whether 19 the forensic pathologist would be -- would necessarily 20 expect to see the retinal detachment? 21 DR. HELEN WHITWELL: Well, he may or may 22 not, but I'm presuming from this that this is a 23 description of what was seen in hospital. 24 MR. MARK SANDLER: All right. And 25 similarly, the cerebral atrophy; what is cerebral

1 atrophy? 2 DR. HELEN WHITWELL: It is essentially 3 shrinkage of the brain. 4 MR. MARK SANDLER: All right. And that's 5 under Item 2, which you were about to go to. And perhaps 6 you could just briefly describe what it is that -- that 7 Dr. Smith is articulating in Item 2 of -- of his -- of 8 his diagnostic -- diagnosis. 9 DR. HELEN WHITWELL: Well, he's 10 indicating that there's old subdural hemorrhage, there's 11 old subarachnoid hemorrhage and in fact, all these areas 12 of hemorrhage are -- are old, including the optic nerve 13 hemorrhage, retinal hemorrhage, and an old scalp bruise, 14 which is what he means under 2.5. 15 He has in fact described the brain 16 microscopically as atrophic, so I'm not quite certain why 17 that's in the brackets. 18 MR. MARK SANDLER: Okay. And any 19 comments on -- on whether or not the -- the pathology as 20 -- as reviewed by you corresponds to what he's described 21 as -- as his anatomical diagnosis in this report? 22 DR. HELEN WHITWELL: Yes. As far as I 23 could ascertain -- although I've commented on the 24 blocking -- there was evidence of both recent areas of 25 hemorrhage and old hemorrhage.

1 MR. MARK SANDLER: Okay. Now, I want to 2 focus, if I may, upon -- rather than perhaps deal in the 3 same way we've dealt with all of the other cases, but try 4 to telescope this a little bit and -- and focus on two 5 (2) particular issues that arose in this case. 6 And -- and I'm going to ask you about the 7 overlaying issue. You know what I mean by that, I take 8 it? 9 DR. HELEN WHITWELL: Yes. 10 MR. MARK SANDLER: And I'm going to ask 11 you about the issue concerning epileptic seizures, okay? 12 DR. HELEN WHITWELL: Yes. 13 MR. MARK SANDLER: So, if we can deal 14 with -- with the first, point two (.2) -- the first 15 point, and that is the overlaying point, if I can take 16 you to two (2) references in the overview report and then 17 take you to a report and ask you to comment upon them. 18 The first is at page 45 of the overview 19 report and we see at paragraph 142 of this page -- 20 paragraph 142, it says: 21 "Handwritten police notes dated May the 22 1st, 1991 recorded a conversation with 23 Dr. Smith, stated that the watch 24 measurements..." 25 And the word may be "aligned":

1 "...with the marks [and then there's an 2 illeg -- an illegible portion] on the 3 victim's head. No question. Totally 4 reasonable that a backhand blow could 5 cause this injury. Had photos of watch 6 taken to have head and watch 7 superimposed on each other." 8 And then if one goes to page 65 of the 9 overview report, we actually see at paragraph -- 10 paragraph 192 that Dr. Smith, when testifying at the 11 preliminary inquiry, said this: 12 "Dr. Smith testified that it was 13 unusual to find in a post-mortem 14 examination of a child the sort of 15 doughnut shaped hemorrhage observed 16 here. After finding this shape of 17 injury, Dr. Smith told the police to 18 search the home for structures that 19 were generally rounded, such as a knob 20 on a cupboard, something with a 21 distinctive geometric shape that could 22 have had a flat surface or an empty 23 surface or ring shaped structure. The 24 police came back to Dr. Smith with a 25 woman's wristwatch. Dr. Smith

1 testified as follows: 2 Q: Sir, I'm going to show you a 3 woman's wristwatch and I wonder if you 4 could indicate whether that is the 5 watch that you were shown by a member 6 of the Peel Regional Police Force or 7 consistent with the watch? 8 Yeah, well, I mean, if one checked the 9 serial number -- I didn't write the 10 serial number down -- but if it wasn't 11 this watch it's one that's certainly 12 very similar to it. And if you take 13 this watch, and I haven't done this, 14 but if you take this watch and lay it 15 over the diagram you'll see, in fact, 16 that it's a very nice fit. 17 And then on the next page, page 66, after 18 the lady's wristwatch is marked as Exhibit 5. 19 "And by saying it's a nice fit, what do 20 you mean by that? 21 Oh, the watch is -- the configuration 22 of the watch is consistent with the 23 configuration of this area of 24 hemorrhage, so it's quite reasonable to 25 conclude that the watch could have been

1 responsible for this injury. 2 I can't say for sure, that's not 3 possible, but an object of that shape 4 or that configuration -- and certainly 5 the watch is a good fit. 6 What can you say, though -- as I 7 understand it, sir, is that the shape 8 of the watch is consistent with the 9 shape of the injury you saw on 10 Kassandra's head? 11 That's correct. That's correct. 12 It's consistent with a conclusion that 13 the watch caused that or was part of 14 the injury? 15 That's a reasonable conclusion, yes." 16 Now, did you address this aspect of Dr. 17 Smith's approach to this case in your own medicolegal 18 report? 19 DR. HELEN WHITWELL: Yes, I did. 20 MR. MARK SANDLER: And if I can take you 21 back to your medicolegal report at Tab 39. We see at 22 page 6 and at page 8, you had -- top of the page 6 and 23 also at the top of page 8, you address this issue. 24 Could you provide the Commissioner with 25 your opinion as to the practice that -- that occurred in

1 this case in connection with the overlay of the watch 2 with the bruise? 3 DR. HELEN WHITWELL: Well, in my opinion, 4 it was inappropriate. The bruise noted was in the deep 5 tissues of the scalp. Overlays of objects, such as 6 footwear, can be useful in correlating where it's -- 7 external injuries, where -- where you have a patterned 8 object. 9 But in this case, all one can say here is 10 that there has been an impact of some sort and you cannot 11 use an overlay in this situation because of the location 12 of the bruise. There is hair, and then the scalp, and 13 then the bruise is deep, so it's an inappropriate method. 14 COMMISSIONER STEPHEN GOUDGE: Because the 15 bruise is deep. 16 DR. HELEN WHITWELL: Because the bruise 17 is deep. They -- an overlay -- if -- if you see 18 something externally, which is a patterned injury, for 19 example a shoe print or something, then in those 20 circumstances that would be appropriate because you'd 21 have a direct -- almost direct contact. 22 But where you've got separation by the 23 hair, the scalp tissues, it -- it's simply not 24 appropriate. 25 COMMISSIONER STEPHEN GOUDGE: It does not

1 tell you anything? 2 DR. HELEN WHITWELL: It doesn't tell you 3 -- it doesn't tell you anything. And in -- in fact, to 4 suggest an object has caused that deep bruise is 5 misleading; a particular object. 6 COMMISSIONER STEPHEN GOUDGE: Is that the 7 way you hear the phrase: it is consistent with the blow 8 being struck by the watch? 9 The old puzzle about the use of the phrase 10 "consistent with". 11 DR. HELEN WHITWELL: Consistent. Yes. I 12 mean all one can say is that is -- is a bruise and 13 inference -- the term -- the word "consistent", again, 14 can be misleading. It is often misleading, actually. 15 COMMISSIONER STEPHEN GOUDGE: Because I 16 take it from what you said just a minute ago, you take it 17 as a suggestion that a blow by the wristwatch caused the 18 bruise. 19 DR. HELEN WHITWELL: That's correct. 20 21 CONTINUED BY MR. MARK SANDLER: 22 MR. MARK SANDLER: All right. And just 23 while we're dealing with that topic, bear with me for a 24 moment. 25

1 (BRIEF PAUSE) 2 3 MR. MARK SANDLER: The Commissioner quite 4 rightly focussed on that part of the testimony where Dr. 5 Smith said "consistent with the shape of the injury" that 6 he saw on Kassandra's head. 7 What about the expression "the watch is a 8 good fit"? 9 DR. HELEN WHITWELL: That -- that is an 10 incorrect and misleading statement. You just can't make 11 that deduction. 12 MR. MARK SANDLER: Let me ask you this 13 because you can see, intuitively, how this would be 14 appealing to a layperson listening to testimony to see -- 15 to see a -- 16 DR. HELEN WHITWELL: Yes. 17 MR. MARK SANDLER: -- a watch that would 18 be perhaps, the same size or roughly the same size as -- 19 as the bruise on the interior of the scalp and is there - 20 - is this an area where the forensic literature admits of 21 some controversy? 22 In other words, are -- are there people 23 that think you can -- you can engage in this exercise, as 24 far as you know? 25 DR. HELEN WHITWELL: As I've said, an

1 overlay technique can be useful in external marks. 2 MR. MARK SANDLER: Yes, I'm leaving aside 3 external marks for a moment. Do -- do you know of any 4 literature, or studies, or reports that -- that have -- 5 DR. HELEN WHITWELL: No. 6 MR. MARK SANDLER: -- used an overlay in 7 this kind of a setting? 8 DR. HELEN WHITWELL: No, and I don't know 9 anybody who has, actually -- 10 MR. MARK SANDLER: All right. 11 DR. HELEN WHITWELL: -- in England. 12 MR. MARK SANDLER: Perhaps I'm -- I'm 13 just going to turn to Professor Saukko. Do you agree, or 14 disagree, or have any opinions on the overlay technique 15 that was used here and its usefulness. 16 DR. PEKKA SAUKKO: I fully agree with Dr. 17 Whitwell. 18 MR. MARK SANDLER: Okay. Now, Dr. 19 Whitwell, I -- I also said that I would deal with another 20 issue, and I was probably misleading because there's a 21 few issues that I'm going to deal with, but the other -- 22 another major issue that arises in connection with this 23 case is -- is whether or not there is a potential for 24 underlying disease, name -- namely epilepsy, to explain 25 the death here, so I'm interested in your comments on

1 that issue. 2 DR. HELEN WHITWELL: Well, I think this - 3 - this is quite a difficult issue, and again, one -- to a 4 great extent is -- is dependent -- may be dependent on 5 the history, as the pathology may on its own be -- be 6 less specific. 7 My understanding from the -- the history 8 was that prior to admission, she appeared to have a 9 number of fits, and this raises the question as to 10 whether or not her condition on admission was related to 11 fits as a primary pathology. 12 MR. MARK SANDLER: And -- and just to be 13 clear, what we're talking about here is the distinction 14 between seizures or fits that follow, for example, an 15 impact injury or abuse, as opposed to seizures or fits 16 that -- that precede -- that precede the child going into 17 extremis and independent of -- of any impact injury -- 18 DR. HELEN WHITWELL: That's -- 19 MR. MARK SANDLER: -- do I have the issue 20 right? 21 DR. HELEN WHITWELL: Yes, that's correct. 22 MR. MARK SANDLER: And -- and when one 23 looks at the issue, you've said that one would look to 24 the clinical history to see whether or not it can assist 25 in resolving the issue.

1 Can the pathology alone in this case tell 2 us whether or not this was a case that -- where this -- 3 where the child died as a result of a -- an inflicted 4 head injury or died as a result of an epileptic fit? 5 DR. HELEN WHITWELL: No, the pathology of 6 the epilepsy -- brain damage -- can't tell you if it was 7 primary or secondary. 8 MR. MARK SANDLER: Okay. Now, of course, 9 the issue arises, would epilepsy or an epileptic fit 10 explain the bruise that -- that you've describe in the 11 evidence that was subject of the overlay? 12 DR. HELEN WHITWELL: That can rarely 13 happen during the course of a fit. But the head would 14 need to -- you -- you would need an impact and I would 15 find that unusual. One couldn't exclude it, but 16 essentially you have an impact, so that could have arisen 17 in a number of ways. 18 MR. MARK SANDLER: All right. Can you 19 tell whether this is an impact injury as a result of -- 20 of a child being struck by an object as opposed to the 21 child's head striking an object? 22 DR. HELEN WHITWELL: No, I can't. 23 MR. MARK SANDLER: All right. And so 24 let's assume that -- that -- and I know you welcome these 25 questions -- let's assume that the police officers come

1 attend your office, you having conducted the autopsy in 2 this case, and they ask you a series of questions. 3 And they say, Professor Whitwell, based on 4 the pathology, what do we do with this case? What -- 5 what can you tell us based upon some of the historical 6 pathology that exists, based upon some of the more recent 7 pathology that exists, and based upon this issue of -- of 8 epilepsy that -- that has been raised? 9 What would you say to them? 10 DR. HELEN WHITWELL: Well, again, that's 11 -- that's difficult. I would summarize the findings as 12 evidence of recent impact to the head. I would indicate 13 that there's evidence of old brain damage or brain 14 injury, brain hemorrhages and then discuss the issue of 15 the -- the epilepsy. And possibly -- from the pathology, 16 that's -- that's as far as you can take it. 17 MR. MARK SANDLER: If you were asked to 18 opine in a post-mortem report as to the cause of death in 19 this case, what would you say? 20 DR. HELEN WHITWELL: Well, again, that -- 21 that is difficult. In fairness, it could relate to an 22 acute head injury. It could relate to status 23 epilepticus. There are two (2) options, you can either 24 give an unascertained or you can't come to a conclusion, 25 or you can go through a list of possibilities and then

1 attempt to come to a conclusion. 2 MR. MARK SANDLER: All right. And -- 3 COMMISSIONER STEPHEN GOUDGE: If you did 4 that, how -- just unpack it a little bit. How would you 5 do it, if you used that option as opposed to the 6 unascertained option? 7 DR. HELEN WHITWELL: What one would do 8 would be to comment on all the features of the case. 9 COMMISSIONER STEPHEN GOUDGE: Right. 10 DR. HELEN WHITWELL: And then, for 11 example, if it was the opinion that it was the acute head 12 injury or there was sufficient evidence of an acute head 13 injury to cause death then at the end say, This, in my 14 opinion, is the most likely cause of death. And likewise 15 with the -- with the epilepsy. 16 COMMISSIONER STEPHEN GOUDGE: Okay. What 17 is your view? 18 DR. HELEN WHITWELL: My view is that this 19 is a difficult case and I think there are potentially two 20 (2) -- there's a number of options. That firstly, 21 there's evidence of old -- old brain damage, that in 22 itself can give rise to epilepsy. You've also got 23 evidence of a recent head injury. Whether or not that 24 has had a major contribution to death, I think, is 25 unclear.

1 COMMISSIONER STEPHEN GOUDGE: So there 2 are the two (2) possible causes, in your view -- 3 DR. HELEN WHITWELL: Yes. 4 COMMISSIONER STEPHEN GOUDGE: -- that the 5 pathology reveals? Would you provide a differential 6 diagnosis as between them? 7 DR. HELEN WHITWELL: Yes. One could -- 8 one could do that in a summary. 9 COMMISSIONER STEPHEN GOUDGE: Would you, 10 would you do that? 11 DR. HELEN WHITWELL: I think I'd do it as 12 outlined. I'd go into the evidence of the old brain 13 injury, the potential of the epilepsy possibly arising as 14 that -- arising as that. Though again, you would need 15 more detail, clinical background for that. 16 Is there -- then one would question is 17 there another reason for the fits to occur at the time or 18 prior to admission. And then you'd have to -- you'd have 19 to clearly discuss the -- the recent bruise and how much 20 any recent hemorrhage contributed to death. 21 COMMISSIONER STEPHEN GOUDGE: Okay. You 22 know, I want to see if it -- I mean, this is a difficult 23 case you say, and it certainly seems that way. 24 DR. HELEN WHITWELL: I think this is an 25 extremely difficult case.

1 COMMISSIONER STEVEN GOUDGE: But, could 2 you put probabilities on the two (2) possible causes? 3 Would you say they are both possible, although the 4 pathology doesn't allow you to conclude that either is 5 the cause of death? 6 How would you do it? How do you set this 7 up in a way that the Court system is going to be able to 8 understand? 9 DR. HELEN WHITWELL: Well -- yes. I -- 10 that -- that's difficult to say, how possible or probable 11 anything is. That's the difficulty that I -- that I 12 have. 13 I mean, one could say well, you know, a 14 number of scenarios, or two (2) scenarios are possible. 15 It's rather, then different from the issue of what 16 happens in the Court scenario, because in -- in England 17 and Wales, would this actually have got to Court in the 18 first place. 19 Do you see what I mean? 20 COMMISSIONER STEVEN GOUDGE: And the 21 answer would be no because of an insufficient certainty 22 about cause of death, is that what you imply? 23 DR. HELEN WHITWELL: Prob -- probably it 24 wouldn't. 25 COMMISSIONER STEVEN GOUDGE: Okay.

1 DR. HELEN WHITWELL: In -- in the 2 criminal. 3 COMMISSIONER STEVEN GOUDGE: And for the 4 that reason that I suggest; that it is an insufficient 5 certainty from the pathology about the cause of death? 6 DR. HELEN WHITWELL: That's correct. 7 COMMISSIONER STEVEN GOUDGE: Okay. So 8 that's -- 9 DR. HELEN WHITWELL: Now that's not to 10 say that at the time this happened, if this had happened 11 in England and Wales, the sar -- the scenario that we 12 just discussed now would apply. 13 COMMISSIONER STEVEN GOUDGE: Why not? 14 DR. HELEN WHITWELL: Because in the past, 15 potentially this case probably would have been more 16 likely to go to Court than I think now. 17 COMMISSIONER STEVEN GOUDGE: But why not? 18 Why? 19 DR. HELEN WHITWELL: Because it's -- my 20 general view is that cases such as this went to Court 21 easier then; that -- just, you know, more of these cases 22 ended up in the criminal scenario. 23 COMMISSIONER STEVEN GOUDGE: But implicit 24 in that is -- am I hearing you suggest that it would 25 probably have more likely gone to Court ten (10) years

1 ago, or fifteen (15) years ago, on the premise that the 2 more likely cause of death from the pathology was the 3 blow? 4 DR. HELEN WHITWELL: Yes. But that's -- 5 that's a view, that's an opinion. 6 COMMISSIONER STEVEN GOUDGE: That's your 7 opinion? 8 DR. HELEN WHITWELL: Yes. 9 COMMISSIONER STEVEN GOUDGE: That's just 10 based on your -- 11 DR. HELEN WHITWELL: Yes. 12 COMMISSIONER STEVEN GOUDGE: -- history 13 over the time? 14 DR. HELEN WHITWELL: Yeah. 15 COMMISSIONER STEVEN GOUDGE: But you say, 16 I take it, viewing it in today's context, the better way 17 to view the pathology is that there are two (2) possible 18 causes, both of them possible; neither of them 19 sufficiently probable to give you a diagnosis of cause of 20 death. 21 DR. HELEN WHITWELL: That's corr -- 22 COMMISSIONER STEVEN GOUDGE: Is that a 23 fair summation of your professional view today? 24 DR. HELEN WHITWELL: That is, yes. 25 COMMISSIONER STEVEN GOUDGE: Okay.

1 Thanks. 2 Thanks, Mr. Sandler. 3 4 CONTINUED BY MR. MARK SANDLER: 5 MR. MARK SANDLER: Just a couple of 6 questions arising out of that. I -- I noted that you put 7 the emphasis on the fact that -- that this case might not 8 go to criminal Court. And -- and I take it the choice of 9 the phrase "criminal Court" was -- was deliberate on -- 10 on your part. 11 What did you mean by that? 12 DR. HELEN WHITWELL: Criminal as -- as 13 opposed -- as opposed to the Family Courts. 14 MR. MARK SANDLER: All right. So -- so 15 there are scenarios that exist in England and Wales where 16 the prosecution exercises its discretion not to proceed 17 on these difficult cases, but the matter is still dealt 18 with in the child protection or family law proceedings. 19 Is that right? 20 DR. HELEN WHITWELL: Yes. 21 MR. MARK SANDLER: The second question 22 arising out of this is that I took it as implicit, and 23 maybe it wasn't, so I wanted to clarify in what you said 24 to the Commissioner, that -- that this kind of case might 25 not, or -- or would likely not, how -- however one

1 characterizes it, go to criminal Court. 2 I take it that's also on the assumption 3 that the police did not have available to them 4 circumstantial non-pathology evidence that would tip the 5 scale in one direction or the other. 6 Is that right? Do you understand what I 7 mean by that question? 8 DR. HELEN WHITWELL: Yes. Could you just 9 repeat that? Sorry. 10 MR. MARK SANDLER: What I'm asking you is 11 that when you say that the case would not or -- or might 12 not -- 13 DR. HELEN WHITWELL: May. 14 MR. MARK SANDLER: -- may not go to 15 criminal Court, you're assuming that -- that it's the 16 pathology in that case that bears the burden of 17 demonstrating the case. 18 DR. HELEN WHITWELL: Yes. I say -- I say 19 exactly what -- yeah. Yes. 20 I -- I'm really looking at the pathology 21 alone. I mean, as our evidence, you know, clearly would 22 form potentially part of a -- a case. 23 MR. MARK SANDLER: And -- and the third 24 issue, just to clarify, is that we're talking about a 25 criminal case which is rooted in proof of cause of death,

1 as opposed to cases that might involve an allegation of, 2 for example, of child abuse short of causing death. 3 Am I right? 4 DR. HELEN WHITWELL: Ah, yes. 5 MR. MARK SANDLER: All right. So there 6 are -- there are cases where the authorities may be of 7 the view that cause of death is so problematic that -- 8 that the Crown cannot proceed on an allegation of murder 9 or manslaughter -- 10 DR. HELEN WHITWELL: Mm-hm. 11 MR. MARK SANDLER: -- or criminal 12 negligence causing death, but might have available to it, 13 sufficient pathology to proceed on a charge that would 14 involve an allegation of abuse short of death? 15 DR. HELEN WHITWELL: Yes, that's -- 16 that's correct. And in fairness, some cases do proceed 17 even when from the pathology point of view, there isn't a 18 cause of death depending on the other evidence. 19 MR. MARK SANDLER: Right. Right. 20 DR. HELEN WHITWELL: So giving -- and 21 this -- this also applies to now, giving unascertained as 22 -- as a cause of death does not preclude from a criminal 23 proceeding. 24 COMMISSIONER STEPHEN GOUDGE: Yes, I must 25 say I understood the conversation you and I had as

1 premised exclusively on what does the pathology tell you? 2 DR. HELEN WHITWELL: Yes. 3 COMMISSIONER STEPHEN GOUDGE: In terms of 4 the discussion you and I had, Dr. Whitwell, the change in 5 likelihood as between ten (10) or fifteen (15) years ago 6 and today, do you attribute that to a better 7 understanding today of pathology than existed ten (10) or 8 fifteen (15) years ago? That is, is it as a result of 9 the increased understanding sophistication of pathology, 10 or is it, in your view, something else? 11 DR. HELEN WHITWELL: I think it's -- yes, 12 I think it's an increasing understanding of pathology and 13 perhaps, increasing understanding by the Judicial System 14 as the difficulties that can be accounted in forensic 15 pathology. And the increasing recognition that things 16 are often shades of grey rather than twenty/thirty 17 (20/30) years ago presented as, you know, this is it. 18 COMMISSIONER STEPHEN GOUDGE: Right. 19 Thank you. 20 DR. HELEN WHITWELL: So that's probably a 21 change intrinsic in forensic pathology from 22 twenty/thirty/forty (20/30/40) years ago maybe. 23 COMMISSIONER STEPHEN GOUDGE: Perhaps -- 24 DR. HELEN WHITWELL: In a number of 25 fields.

1 COMMISSIONER STEPHEN GOUDGE: -- a 2 somewhat improved understanding of the Judicial System 3 about the degree to which pathology can be an inexact 4 science? 5 DR. HELEN WHITWELL: Yes, and in 6 fairness, when I started in forensic pathology, there did 7 appear to be, to me anyways, be an assumption from many 8 lawyers and barristers and is that the pathology is, you 9 know, fixed and firm, and it was less often challenged 10 then -- then now. 11 12 CONTINUED BY MR. MARK SANDLER: 13 MR. MARK SANDLER: Okay. I'm going to 14 ask you just about several passages in the overview 15 report before completing my examination on -- on this 16 case. And if you'd go to the overview report again at 17 Tab 41 and paragraph 136 at page 44. 18 DR. HELEN WHITWELL: I'm sorry -- yes, 19 yes, I'm seeing that. 20 MR. MARK SANDLER: Yes. And it reflects 21 paragraph 135; the Crown brief case history gave the 22 following information regarding the cause of death: 23 "The death blow was determined to have 24 taken place three (3) to five (5) hours 25 prior to police arrival on April the

1 9th of 1991, being three (3) to five 2 (5) hours before 9:00 p.m. Further 3 that a flat cylindrical object was 4 used." 5 Now I just want to ask, from the pathology 6 perspective as opposed to what other information might 7 have informed the Crown brief case history here. To what 8 extent could one pinpoint when the impact injury that 9 you've described to Kassandra took place? 10 DR. HELEN WHITWELL: One can't. All -- 11 all one can say is that on the appearances, the impact to 12 the back of the head appeared recent, which in 13 pathological terms is anytime up to twenty-four/forty- 14 eight (24/48) hours. 15 MR. MARK SANDLER: Okay. 16 DR. HELEN WHITWELL: You couldn't pin it 17 down to three (3) to five (5) hours. 18 MR. MARK SANDLER: And similarly, there's 19 reference here to the fact that a flat cylindrical object 20 was used. Could the pathology tell you that? 21 DR. HELEN WHITWELL: I couldn't say 22 whether it was an object or the head striking an object 23 or the ground. I -- I just don't think one can comment. 24 MR. MARK SANDLER: All right. If we can 25 go from -- from there to several additional features of

1 Dr. Smith's testimony, and I'm going to take you to page 2 63. 3 4 (BRIEF PAUSE) 5 6 MR. MARK SANDLER: And at paragraph 187, 7 it reflects that Dr. Smith, when testifying at the 8 Preliminary Inquiry, said that the autopsy indicated that 9 there was at least one (1) previous head injury. 10 He said that the older injury was 11 associated with optic nerve hemorrhage and retinal 12 hemorrhage. He testified about children injured by 13 shaking and said this sort of injury could occur if a 14 child was shaken in a violent manner. 15 And then he goes on to describe the 16 shaking phenomenon, though he says quite clearly, near 17 the bottom of the page: 18 "If it was shaking, and I underscore 19 "if it was", it's not the kind of 20 shaking that occurs when you're playing 21 with a child, tossing it in the air, 22 catching, that sort of thing. Let me 23 just sort of pretend that if I was 24 holding Kassandra and I shook her in a 25 very violent manner like that, that's

1 to create a very rapid whiplash in the 2 motion of the head, as it would go into 3 hyper-flection or a hyper-extension 4 position, so it's a very violent 5 shaking that causes the head to rapidly 6 accelerate and decelerate. So that's 7 the kind of shaking I'm talking about, 8 and I present this to you only as a 9 possibility. I don't know what the 10 mechanism of injury was or the 11 mechanism -- sorry, or the mechanism of 12 injuries were in this remote time, but 13 it's just something for you to think 14 about." 15 I'm not going to ask you about shaking. I 16 think you've -- you've fully developed your ideas on -- 17 your opinions on shaking with the Commissioner 18 previously. 19 Do you agree with him that -- that the 20 pathologist would be unable to know what the mechanism of 21 injury was for -- for the more historic injuries that 22 we're seeing in the pathology here? 23 DR. HELEN WHITWELL: Well, in fairness, 24 Dr. Smith correctly says there's evidence of old bruising 25 --

1 MR. MARK SANDLER: Right. 2 DR. HELEN WHITWELL: -- an old bruise 3 suggests -- well, a bruise is indicative of previous old 4 impact, so in terms of mechanism, that -- that should be 5 considered a possibility. 6 MR. MARK SANDLER: Okay, which would be 7 an impact injury? 8 DR. HELEN WHITWELL: Impact, yeah. 9 MR. MARK SANDLER: Okay. And then if you 10 would go with me to page 65, paragraph 191. And at this 11 paragraph, it reads: 12 "Dr. Smith testified that the head 13 injury consisted of injury at several 14 levels. There was hematoma or a bruise 15 of the scalp in the back at the right. 16 There was hemorrhage in the subdural 17 spaces which are between the layers of 18 tissue between the skull and the brain. 19 Dr. Smith testified that these two (2) 20 observations pointed to some impact or 21 application of force in that area. 22 And -- and you had some comment on -- on 23 that testimony in your medicolegal report. Can you help 24 us out as to that? 25 DR. HELEN WHITWELL: Yes, I don't think

1 that you can link the location of the subdural hemorrhage 2 with an impact point. It generally takes place over any 3 area of the brain and so the location of the impact 4 doesn't necessarily have any bearing on it. 5 MR. MARK SANDLER: And -- and we -- 6 DR. HELEN WHITWELL: If there were -- if 7 there was actual bruising of the brain tissue beneath the 8 impact site, that would be -- give you much better 9 evidence, or potentially better evidence, but the -- with 10 a subdural, you -- you -- the bleeding doesn't correlate 11 with the impact site. 12 MR. MARK SANDLER: Thank you. And then 13 if you go to page 68, paragraph 200: 14 "Dr. Smith stated that there are some 15 extraordinary accidents that could 16 happen that would be an exception to 17 the rule [And this is back -- and 18 again, I'm not going to ask you about 19 the falls from significant heights] 20 such as a fall from a second story in 21 the home to a first story. Dr. Smith 22 also testified that the point of impact 23 on Kassandra's head almost certainly 24 precluded an accidental fall without 25 some other injury, because there's

1 essentially no other evidence of 2 injury." 3 Any comment on that? 4 DR. HELEN WHITWELL: I don't think one 5 can come to that conclusion. It -- it's an impact. It 6 could have occurred in a number of ways. 7 MR. MARK SANDLER: Okay. Those are all 8 the questions, Commissioner, that I have in connection 9 with the Kassandra matter, and perhaps that would be a 10 convenient time to break. 11 COMMISSIONER STEPHEN GOUDGE: Sure. 12 We'll break now, then, until 11:30. 13 14 --- Upon recessing at 11:12 a.m. 15 --- Upon resuming at 11:30 a.m. 16 17 THE REGISTRAR: All rise. Please be 18 seated. 19 COMMISSIONER STEPHEN GOUDGE: Mr. 20 Sandler...? 21 22 CONTINUED BY MR. MARK SANDLER: 23 MR. MARK SANDLER: Thank you, 24 Commissioner. Professor Whitwell, if we can deal with 25 the last of the seven (7) cases that I -- that I intended

1 to review in-chief. And take you to Volume IV of your 2 materials at Tab 51. And this is PFP144275. 3 And this is the overview report for the 4 Taylor case. The report reflects that, at page 3, that 5 Taylor was born on April the 16th of 1996 in Thunder Bay, 6 Ontario; that Taylor was found dead in his cradle on July 7 the 31st of 1996. Taylor was three and a half (3-1/2) 8 months old at the time of his death. 9 He lived with his mother and father in 10 Thunder Bay. Also living in the home was his mother's 11 son from a prior relationship, who was twenty (20) months 12 old at the time of death. The Children's Aid Society was 13 involved with respect to Taylor's brother following 14 Taylor's death. 15 The parents were charged with second 16 degree murder in relation to Taylor's death in 1996. 17 They were also charged with criminal negligence causing 18 death and failure to provide the necessaries of life. On 19 June the 30th of 1997, the parents were discharged on all 20 counts following their preliminary inquiry. 21 And the Crowns's application to quash the 22 discharges was dismissed in 1999. As I understand it, as 23 part of the Chief Coroner's review, Dr. Whitwell, you 24 were assigned to be the primary reviewer for this case, 25 am I right?

1 DR. HELEN WHITWELL: Yes, that's correct. 2 MR. MARK SANDLER: If I can take you Tab 3 49 of your volume, PFP136030. This is your medicolegal 4 report relating to the death of Taylor. And we see at 5 page 5 of the materials, you've outlined the history and 6 circumstances as made available to you as a result of 7 your review of the materials? 8 Could you outline, for the Commissioner, 9 your understanding of the history and circumstances, 10 please? 11 DR. HELEN WHITWELL: Yes. 12 "Taylor, date of birth, 16th of April 13 1996. Was age three and a half (3 1/2) 14 months at the time of his death. 15 Police were called to the apartment of 16 Larry and Laura on the evening of the 17 31st of July 1996 following a 911 call 18 from Laura saying that he was not 19 breathing. Police attended, and the 20 infant was taken to Thunder Bay 21 Regional Hospital. Resuscitation was 22 unsuccessful and Taylor was confirmed 23 dead. Dr. Perales, the coroner, 24 attended the hospital following the 25 death and describes the baby as cold

1 with rigidity of the limbs and post- 2 mortem lividity of the back with vomit 3 around the nose. Further information 4 obtained during the police 5 investigation indicated that witnesses 6 heard shouting and breaking glass 7 during the latter part of the 8 afternoon/early evening following 9 Larry's arrival at home. During this 10 time, a loud bang followed by crying of 11 the baby was heard. 12 A post-mortem examination was performed 13 by Dr. Mark Rieckenberg on the 1st of 14 August of 1996. He identified a number 15 of healing rib fractures, cerebral 16 edema with tearing of the corpus 17 callosum and a temporal lobe contusion. 18 He confirmed the cause of death on the 19 23rd of August, 1996 as acute head 20 injury. 21 He referred the case to Dr. Smith for 22 consultation. On November 30th, 1996, 23 Larry and Laura were arrested and 24 charged with second degree murder, but 25 subsequently discharged."

1 MR. MARK SANDLER: All right. We know 2 that the autopsy in this matter was done on August the 3 1st of 1996 by Dr. Rieckenberg. 4 Is that right? 5 DR. HELEN WHITWELL: Yes. 6 MR. MARK SANDLER: And if I can take you 7 back to the overview report at Tab 51. And I'm going to 8 take you first, if I may, to page 7. 9 DR. HELEN WHITWELL: Yes. 10 MR. MARK SANDLER: And at paragraph 16 at 11 page 7, we see that following the autopsy which Dr. 12 Rieckenberg performed on August the 1st, Dr. Rieckenberg 13 spoke with Dr. Chiasson, the Chief Forensic Pathologist 14 at the time for the province of Ontario, and Dr. Smith. 15 He spoke to Dr. Smith again on August the 16 2nd, and a hand written notation found beneath the 17 references to those conversations recorded the following 18 information: 19 "The presence of petechiae in the 20 thoracic viscera and gastric contents 21 within airways are non-specific 22 findings which may represent an element 23 of terminal asphyxia." 24 And -- and do you agree with that? 25 DR. HELEN WHITWELL: In my opinion, the

1 petechiae are completely non-specific, and one finds them 2 in a number of infant deaths of all types. 3 MR. MARK SANDLER: Okay. And then if we 4 can go to Dr. Rieckenberg's report of post-mortem 5 examination, and we see it addressed at page 8, paragraph 6 19. 7 DR. HELEN WHITWELL: Yes. 8 MR. MARK SANDLER: The cause of death was 9 recorded as acute head injury. Dr. Rieckenberg observed: 10 "Some reddish petechiae on the visceral 11 pulmonary pleura. There were gastric 12 contents in the larynx and trachea. 13 And there was dark reddish congestion, 14 bi-laterally in the lungs, right 15 greater than left." 16 He noted multiple old healed rib 17 fractures. With respect to the nervous system, he 18 observed partial tearing of the corpus collosum. Can you 19 remind us what the corpus collosum is? 20 DR. HELEN WHITWELL: The corpus collosum 21 is, in simple terms, a bridge of tissue approximately a 22 centimetre -- or possibly slightly less -- in width that 23 goes between the two (2) halves of the brain, the two (2) 24 cerebral hemispheres. 25 MR. MARK SANDLER: All right. And he

1 says: 2 "No other remarkable abnormalities were 3 noted." 4 And he summarizes of normal findings at 5 paragraph 21: 6 "Cerebral edema with recent partial 7 tearing of the corpus collosum and 8 recent right temporal lobe contusion. 9 Rib fractures, old, healing, multiple." 10 And then he describes them. 11 "Gastric contents present in airways 12 and pulmonary air spaces to the level 13 of distal alveoli, bilateral pulmonary 14 congestion with occasional small plural 15 enthymic petechia, and consultants 16 report pending." 17 Now in your medicolegal report, you 18 commented upon the post-mortem report of Dr. Rieckenberg, 19 and perhaps, I'll ask you to go back to your report then 20 and provide your opinion to the Commissioner on that 21 aspect of it? 22 And again, your medicolegal report is at 23 Tab 49. 24 DR. HELEN WHITWELL: Well, Dr. 25 Reichenberg did the initial post-mortem examination, and

1 Dr. Smith was reliant on -- on the findings. The -- it 2 was unclear to me at the time -- 3 MR. MARK SANDLER: I'm sorry, I'll just 4 interrupt you -- 5 DR. HELEN WHITWELL: Sorry. 6 MR. MARK SANDLER: -- just for the 7 purposes of the -- of the screen. If we go to page 9, 8 under Issues Raised by the Case Pathologist Initial Post- 9 Mortem Examination. I'm sorry to interrupt you; you go 10 ahead. 11 DR. HELEN WHITWELL: Well firstly, I've 12 commented that Dr. Smith was reliant on the post-mortem 13 findings of Dr. Reichenberg. And both should have 14 considered the -- the appearances of the -- the brain as, 15 potentially, being caused by artifact. And I can come 16 back to that point later. 17 The initial examination as I've mentioned 18 was carried out by Dr. Reichenberg. It was unclear to me 19 of his background and experience with regards to either 20 forensic or pediatric autopsies. 21 It -- even in 1996, it should have been 22 standard practice to take additional investigations -- 23 COMMISSIONER STEPHEN GOUDGE: What are 24 you thinking of there, Dr. Whitwell? 25 DR. HELEN WHITWELL: Well, certainly at

1 that time in the UK, there were protocols for pediatric 2 sudden deaths, so microbiology, toxicology and extensive 3 histology. 4 And also in 1996, depending on his 5 experience, which I say I was unclear about, it pro -- 6 this probably would have been done by a pediatric 7 pathologist, or a pediatric -- or forensic pathologist. 8 MR. MARK SANDLER: All right. Now you -- 9 you made reference to the histology; to what extent was 10 histology performed by Dr. Rieckenberg, or at the 11 direction of Dr. Rieckenberg? 12 In other words, what were the 13 deficiencies, if any, in the histology? 14 DR. HELEN WHITWELL: He -- there was a 15 number of histology slides perform -- taken, and in 16 addition, he sent the ribs to Dr. Smith. What was 17 unclear to me was whether or not the brain was removed at 18 a post-mortem examination and then sliced at that time, 19 or whether or not it was fixed for a period of time. 20 A good practice would have been to fix it 21 for a period of time. 22 MR. MARK SANDLER: Is there any 23 reflection in his report of post-mortem examination that 24 the brain was fixed, and later examined? 25 DR. HELEN WHITWELL: Well, I -- I

1 couldn't see it, but... 2 MR. MARK SANDLER: Okay. Now if we can 3 move ahead from his report of post-mortem examination -- 4 and I'll come back to the conclusion that is expressed as 5 to cause of death by Dr. Rieckenberg in -- in a moment. 6 If one goes to page 10 of the overview 7 report -- 8 DR. HELEN WHITWELL: Yes. 9 MR. MARK SANDLER: -- we see at paragraph 10 26 that on September the 23rd of 1996, Dr. Smith sent a 11 fax to the Deputy Chief Coroner saying: 12 "Here's another case of a murder 13 investigation which has been hindered a 14 bit by a radiologist who doesn't know 15 how to read post-mortem films on an 16 infant. The radiologist saw two (2) 17 and a possible third fracture and the 18 pathologist therefore took out less 19 than the whole rib cage, but at least 20 he took some ribs out. It looks like 21 there are likely many more than ten 22 (10) fractures. The male figure in the 23 home previously injured another child 24 from a former liaison. I'm working on 25 the rest of Mark's..."

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1 That's -- that's Dr. Rieckenberg. 2 "...autopsy. It's a tough case. In 3 your absence, I advised the coroner how 4 to testify in family Court for a CAS 5 hearing. You may want to give him a 6 call." 7 And then at paragraph 27, on the same date 8 Dr. Smith sent a memorandum to Dr. Rieckenberg telling 9 him that he'd reviewed the radiology with Dr. Babyn, who 10 was the radiologist of last resort when the Chief 11 Coroner's Office has a tough pediatric case. 12 He noted that the radiographs of the 13 resected specimen did not adequately display the 14 posterior parts of the ribs where there was often a high 15 likelihood of fracturing. Dr. Babyn suspected there 16 maybe numerous other fractures in addition to the ten 17 (10) apparent on the films, and Dr. Babyn wanted to look 18 at the previous films. 19 Dr. Smith suggested further studies on 20 Taylor's rib cage and asked Dr. Rieckenberg if he still 21 had parts of the rib cage on which Dr. Smith could 22 perform high resolution radiography and histologic 23 sampling of the bones. 24 And he said: 25 "This is not an easy case, but it's a

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1 good one for you start with as they can 2 only get easier from here." 3 Any comment on the practice -- the 4 concerns expressed by -- by Dr. Smith and -- and the 5 process that he followed in -- in obtaining further 6 radiology? 7 DR. HELEN WHITWELL: Well, Dr. Smith 8 quite correctly consulted with a -- a radiologist who was 9 used to looking at -- at pediatric films. And then he 10 again correctly suggested further studies on the rib 11 cage. 12 MR. MARK SANDLER: All right. And then 13 if we go to the consultation report of Dr. Smith, which 14 is summarized, commencing at page 11 of -- of the 15 overview report, and we see that he produced the 16 consultation report as reflected in paragraph 30 on April 17 the 19th of 1997. 18 And at paragraph 31, he first reviews the 19 findings relating to the rib fractures. He noted the 20 original radiologist observed two (2), possibly three 21 (3). 22 "A review of all of the radiographic 23 and histologic evidence, including the 24 rib tissues received from Thunder Bay 25 Hospital indicated there were at least

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1 six (6) right-sided and eight (8) left 2 sided, and possibly other injuries to 3 the ribs and soft tissues. He also 4 considered the mild heomosiderosis, 5 abnormal amounts of iron in lungs due 6 to bleeding. He acknowledged there 7 could be a number of explanations for 8 this finding, but considered in 9 conjunction with the numerous healing 10 rib fractures, the preferred 11 explanation was that it represented 12 residual evidence of pulmonary 13 contusion which occurred at the time of 14 the chest injury." 15 Just stopping there, can -- can you 16 explain to the Commissioner what mild heomosiderosis is 17 and -- and what Dr. Smith has said in that regard? 18 DR. HELEN WHITWELL: So, heomosiderosis. 19 MR. MARK SANDLER: Thank you. 20 DR. HELEN WHITWELL: Basically, in the 21 tissues of the lung there was areas of iron, which is a 22 breakdown product from blood, and when you look down the 23 microscope you can see iron, both -- it stains blue on a 24 particular stain, so you can see blue iron, both in cells 25 and outside cells, and it -- and it represents all

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1 bleeding. 2 MR. MARK SANDLER: All right. So you 3 would agree with his characterisation then? 4 DR. HELEN WHITWELL: Yes. 5 MR. MARK SANDLER: All right. And the -- 6 COMMISSIONER STEPHEN GOUDGE: Is that 7 what's left over in the area with old bleeding that's 8 healed? You get the -- 9 DR. HELEN WHITWELL: Yes. Yes, you do. 10 COMMISSIONER STEPHEN GOUDGE: -- iron 11 residue in effect from the blood? 12 DR. HELEN WHITWELL: Yes. So if you look 13 at an old bruise or the same with the old subdural 14 hematomas, you see iron. 15 COMMISSIONER STEPHEN GOUDGE: Does it 16 disappear over time? This has nothing to do with -- 17 DR. HELEN WHITWELL: That's -- that's a 18 difficult question. It seems -- well, certainly in the 19 dura to persist -- I think it -- it just sits there and 20 tends not to disappear. 21 COMMISSIONER STEPHEN GOUDGE: Okay, 22 thanks. 23 24 CONTINUED BY MR. MARK SANDLER: 25 MR. MARK SANDLER: All right. And we see

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1 in the next paragraph, paragraph 32, that: 2 "Dr. Smith concluded that Taylor's 3 death was attributed to head injury. 4 He sites the presence of numerous sites 5 of hemorrhage and the increased brain 6 weight. He states the presence of 7 petechial hemorrhages of the thymus and 8 of the pulmonary visceral pleura would 9 suggest that there may have been some 10 asphyxial component of Taylor's death, 11 but that the head injury was more 12 significant and likely lethal. The 13 thymus was normal; it did not show 14 evidence of acute stress effect, 15 although some petechial hemorrhages 16 were seen. 17 Thus, he concluded that there was no 18 reason to believe Taylor suffered a 19 significant inter-current illness prior 20 to the head injury. He said the 21 absence of ocular involvement mitigated 22 against a pure shaking injury, but was 23 consistent with blunt trauma." 24 And then you see at paragraph 34, and -- 25 and I won't read all of that out, he summarises his

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1 findings in that paragraph. And you may just take one 2 (1) moment to refresh your memory as to what it was that 3 he said by way of summary. 4 DR. HELEN WHITWELL: Yes. 5 MR. MARK SANDLER: All right. What 6 opinion did you form as to Dr. Smith's -- the 7 reasonableness of Dr. Smith's conclusion as to cause of 8 death here? 9 DR. HELEN WHITWELL: I did not think that 10 this was substantiated by the findings. 11 MR. MARK SANDLER: All right. And could 12 you take the time now, and you may want to -- you may 13 want to go back to you medicolegal report. 14 DR. HELEN WHITWELL: Sure. 15 MR. MARK SANDLER: We can put it up on 16 the screen and explain to the Commissioner the basis of - 17 - of that determination on your part. And I'll -- I'll 18 put up on the screen, for the benefit of others, page 9 19 of your medicolegal report. 20 21 (BRIEF PAUSE) 22 23 DR. HELEN WHITWELL: Well, firstly, if we 24 look at the damaged corpus callosum, and to refer back to 25 the initial examination, it's unclear whether the brain

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1 was cut fresh or not. You can damage that area of the 2 brain by removal of the brain, and also sectioning the 3 brain when it's fresh. 4 So with that background -- and there were 5 no photographs of it. With that background one would be 6 worried that in fact it wasn't a genuine injury. 7 MR. MARK SANDLER: So just stopping there 8 for a moment, because here's Dr. Rieckenberg who -- who 9 opines as one of the findings, a torn corpus callosum, 10 and -- and you've said that if you didn't fix the brain 11 you'd have that concern that -- that maybe this -- this 12 didn't truly represent a pathological finding. 13 Would you have expected anything else in 14 the event that the corpus callosum was truly torn? 15 DR. HELEN WHITWELL: Yes. 16 MR. MARK SANDLER: Could you explain that 17 to the Commissioner, please? 18 DR. HELEN WHITWELL: Tearing of the 19 corpus callosum as a result of trauma is very unusual in 20 infant head injury. It -- it reflects severe head 21 injuries, such as you see in road traffic colli -- 22 collisions. So -- and it indicates that there's been 23 significant forces applied to the brain. 24 Now, in terms of other evidence of that, 25 there's no evidence of scalp bruising, there's no

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1 evidence of skull fracture, and there's no evidence of 2 significant bruising to the brain itself. 3 So there's evidence that there has been a 4 significant impact. 5 COMMISSIONER STEPHEN GOUDGE: So that 6 suggests artifact to you? 7 DR. HELEN WHITWELL: Correct. 8 9 CONTINUED BY MR. MARK SANDLER: 10 MR. MARK SANDLER: All right. And did -- 11 did either Dr. Rieckenberg or Dr. Smith appear to 12 consider that concern that you've raised? 13 DR. HELEN WHITWELL: No. 14 MR. MARK SANDLER: All right. All right. 15 COMMISSIONER STEPHEN GOUDGE: It would be 16 quite unusual to take a specimen of the brain without 17 fixing it, though, would it not? I mean, that is pretty 18 basic pathology, is it not? 19 DR. HELEN WHITWELL: It is bas -- it is 20 basic pathology, but I'm afraid I couldn't work out 21 precisely what had happened. 22 COMMISSIONER STEPHEN GOUDGE: Right. 23 DR. HELEN WHITWELL: And -- 24 COMMISSIONER STEPHEN GOUDGE: I just 25 thought it was difficult to take a slide of --

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1 DR. HELEN WHITWELL: It is. 2 COMMISSIONER STEPHEN GOUDGE: -- a brain 3 that is unfixed. 4 DR. HELEN WHITWELL: Yes. No, that's -- 5 it is, but, you know, some pathologists have sliced 6 brains unfixed. 7 8 CONTINUED BY MR. MARK SANDLER: 9 MR. MARK SANDLER: All right. And -- and 10 we've actually seen this on other reports of post-mortem 11 examination. In the event that the brain is fixed and 12 later examined, for example, by a neuropathologist, would 13 you expect to see references to that? 14 DR. HELEN WHITWELL: You would expect to 15 see reference, yes. 16 MR. MARK SANDLER: Okay. All right. So 17 go on, I interrupted you, and -- 18 DR. HELEN WHITWELL: The other thing I 19 should have said, apart from the scalp bruising/skull 20 fracture, there are no subdural hemorrhages in this case. 21 So there's no evidence of other trauma. The fact that 22 the -- the brain was increased in weight may occur for a 23 number of reasons. 24 And in my view, that's not a specific 25 feature of trauma. There were some small tiny

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1 hemorrhages identified on the microscope, but again there 2 was no extensive brain injury. So, in my view, the 3 findings are nonspecific, and, in my view, non-diagnostic 4 of a head injury. 5 MR. MARK SANDLER: All right. And in the 6 middle of page 9, you've reflected, first of all, that 7 Dr. Deck, who was an expert retained by the defence also 8 concluded the death was due to a head injury. 9 So this is one of those cases where there 10 was some support from another expert for the opinion 11 expressed by Dr. Smith and Dr. Rieckenberg, am I right? 12 DR. HELEN WHITWELL: That's correct. 13 MR. MARK SANDLER: And second of all, 14 you've reflected that findings that: 15 "Dr. Smith attributes to asphyxia, 16 petechial hemorrhages noted at post- 17 mortem examination, and the histology 18 of the lungs are in themselves 19 nonspecific and do not indicate a 20 diagnosis of asphyxia. They are common 21 finding in infants who die from a 22 variety of causes. The term asphyxia 23 is itself open to interpretation, 24 depending on the context of the case." 25 And again, that -- that theme has been

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1 well developed in the evidence that's already been heard. 2 You heard what Dr. Saukko said about asphyxia and his 3 concerns about it as a cause of death yesterday, and do 4 you agree with that? 5 DR. HELEN WHITWELL: Yes. 6 MR. MARK SANDLER: All right. Now, we 7 know that Dr. Smith was actually called as a -- a witness 8 for the defence at the preliminary inquiry. And as I 9 understand it, when you prepared your medicolegal report, 10 you did not have the benefit of his testimony at the 11 preliminary inquiry. 12 Am I right as to that? 13 DR. HELEN WHITWELL: Can I just check 14 my... 15 MR. MARK SANDLER: Yes. If you look at 16 page 8, the last line. 17 DR. HELEN WHITWELL: No, that -- that's 18 correct. And I've also checked the list of materials 19 reviewed. 20 MR. MARK SANDLER: All right. 21 DR. HELEN WHITWELL: No, I didn't. 22 MR. MARK SANDLER: And if I can just take 23 you briefly -- recognizing that -- that it wasn't part of 24 the exercise that you engaged in at the time -- to his 25 testimony and it's at Tab 57 of your materials.

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1 COMMISSIONER STEPHEN GOUDGE: Do you know 2 what volume that is in, Mr. Sandler? 3 MR. MARK SANDLER: It's Volume IV, as 4 well. And it's PFP104608. 5 6 CONTINUED BY MR. MARK SANDLER: 7 MR. MARK SANDLER: And I can advise you, 8 Professor Whitwell, that for reasons of procedure that I 9 won't describe in detail, this was a situation where the 10 defence chose, as part of the preliminary inquiry 11 process, to call Dr. Smith even though he had been 12 retained, in the way that we've already described, to 13 give his consultation report. 14 And you'll see at page 101 -- 15 DR. HELEN WHITWELL: Yes. 16 MR. MARK SANDLER: -- line 11, the 17 defence counsel, Mr. Levine, is asking him questions and 18 says: 19 "Okay, now Doctor, we have a case here 20 of a three and a half (3 1/2) month old 21 baby whose cause of death is not 22 disputed. It appears to be an acute 23 head injury which you've classified as 24 being, from all the observable facts 25 and examination of all the records that

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1 you, at least, were privy to, as a 2 result of blunt trauma to the head? 3 A: Yes, it's a blunt force injury; a 4 blunt impact type of injury is the best 5 explanation, in my opinion." 6 And -- and stopping there for a moment, 7 you've already given your opinion that -- that that cause 8 of death could not be determined on the pathology as you 9 understood it? 10 DR. HELEN WHITWELL: Correct. 11 MR. MARK SANDLER: But, in fairness to 12 Dr. Smith, it appears that not only is he not being 13 challenged on that, but the defence is conceding that no 14 issue is taken with that as a cause of death. Right? 15 You see that there? 16 DR. HELEN WHITWELL: Yes. 17 MR. MARK SANDLER: And then the next 18 question is: 19 "And there's no question, Doctor, that 20 the prior broken ribs that have healed 21 and the older injuries has no part to 22 play in the actual cause of death on 23 this particular event? 24 A: They're not directly related to his 25 head injury, no."

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1 And, again, you'd agree with that? 2 DR. HELEN WHITWELL: Yes, that's correct. 3 4 MR. MARK SANDLER: All right, and -- and 5 then, in effect, what the defence puts to Dr. Smith is 6 the explanation that was given by the accused at the 7 Preliminary Inquiry which, I can tell you, is very 8 unusual here in Ontario. 9 MR. NIELS ORTVED: Southern Ontario. 10 MR. MARK SANDLER: Very unusual in 11 southern Ontario, I'm corrected by Mr. Ortved. Must 12 happen every day in -- in that jurisdiction. 13 So -- so we see under question at line 25, 14 page 101: 15 "Can you tell us from your observations 16 of the injury -- and as you've now 17 received the explanation the accused, 18 Mr. XXXX -- whether or not you feel 19 that the information you've been given 20 as to what possibly could have caused 21 the injury is consistent with the 22 reports and information that you 23 received and everything you've been 24 able to observe about this case?" 25 And then -- and then he goes on to -- to

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1 say -- to give his answer. And his answer is at -- goes 2 on for some length, and just before I ask you about this, 3 because it may make all of this unnecessary, are you 4 aware of the explanation that was given by the accused as 5 to what happened in this case? 6 DR. HELEN WHITWELL: Yes, I have -- have 7 read it, yes. 8 MR. MARK SANDLER: All right. And the 9 bottom line to -- to what Dr. Smith has to say is -- he 10 says, at line 15 at page 102: 11 "The issue for me that I struggle with, 12 and struggled with as I was listening 13 to the accused, is the issue of what 14 was the degree of force that was 15 represented in his description of the 16 event that occurred at the doorway." 17 And then -- and then he goes on to talk 18 about degree of force and the like. And then on the next 19 page, he says in the middle of page 102, line 14: 20 "So that would be my first statement is 21 we can't accept or I can't accept 22 Taylor's death as being the fall. The 23 issue, then, is what sort of an act was 24 it by which his head struck something 25 or something struck his head."

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1 And then if you go 105 where this answer 2 is continuing, at line 6: 3 "So the best explanation as I look at 4 Dr. Rieckenberg's observations, and I 5 look at his report and the materials 6 that were provided for review, as I 7 think Taylor's head struck something or 8 something struck Taylor's head. But 9 the object was one which had 10 significant mass to it, but at least 11 some surface protection, either padding 12 on the surface or some deformation or 13 malleability of the surface." 14 And then skipping down to line 21: 15 "If it was an extremely forceful 16 violent act of the knee coming up and 17 hitting Taylor's head, could that do 18 it? 19 That's a possibility. If it's a very 20 gentle act which is more like a 21 tumbling and not a force filled 22 interaction between the knee and the 23 super patella region, and Taylor's 24 head." 25 And you'll recall that part of the

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1 explanation given by the accused had to do with child 2 dropping and coming into contact with -- with the knee? 3 DR. HELEN WHITWELL: Yes. 4 MR. MARK SANDLER: All right. And then 5 at page 107, he says: 6 "So are you saying though, that the 7 force of the knee --? 8 It's quite possible. 9 It could have caused the head injury, 10 but it depends on the force of the knee 11 impacting against the head? 12 "A: Against the head, that's correct." 13 And then at the bottom of the page, page - 14 - line 26: 15 "Is there any significance, Doctor, 16 that the right side of Taylor's 17 temporal lobe had a contusion? Can you 18 make any conclusions based on the fact 19 it was on the right-side as opposed to 20 the left-side? 21 Left side, it's difficult. I mean, if 22 you want to play a betting game, one 23 could be that the impact was more 24 likely right-sided than left-sided, but 25 I wouldn't bet and if I was going to

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1 bet, I would chose surer things to bet 2 on. It's certainly consistent with a 3 right-sided impact but it doesn't rule 4 out an impact elsewhere on his head. 5 The very nature of the infant's brain 6 is a little bit different than the 7 adult brain. It's a little unusual, in 8 lethal head injury in infants, to see 9 contusions anytime, because the actual 10 mechanism injury of the concept of the 11 contrecoup injury that we see in 12 adults, we don't see in kids. So we 13 have to throw out all the standard -- 14 the standard approaches to 15 interpretation that we deal with in 16 adult when we're considering someone 17 like Taylor." 18 And then the last reference that I'll take 19 you to is -- is right at the end at page 121, where the 20 Court asks this question, at line 25: 21 "I'm not sure I'm phrasing this 22 question properly, Doctor, but it would 23 be fair to say that the explanation 24 given by the accused and given the 25 nature of the injury sustained is

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1 equally consistent as it is 2 inconsistent with the medical evidence? 3 A: Well, let me ask you this back. 4 Are you saying to me on the balance of 5 probabilities, or you know, 51 percent 6 in favour of the head injury occurring 7 that way, or 49 percent against? I'm 8 struggling here with what you mean by 9 consistent and inconsistent -- equally 10 consistent and inconsistent." 11 COMMISSIONER STEPHEN GOUDGE: Everybody's 12 having trouble hearing. 13 MR. MARK SANDLER: Foreshadowed the 14 trouble -- 15 COMMISSIONER STEPHEN GOUDGE: It's easier 16 to say. It's hard to understand. 17 18 CONTINUED BY R. MARK SANDLER: 19 MR. MARK SANDLER: Well, I just thought 20 it was fair, Commissioner, that -- that this portion be - 21 - be read as well, because he's struggling with the same 22 issue here. 23 "Q: Bearing in mind the explanation 24 given in the medical evidence, is the 25 explanation consistent with the kind of

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1 injury which was caused, as it is 2 equally inconsistent? 3 A: I do understand your question. I 4 think that's a reasonable statement. I 5 would agree with it." 6 I'm -- I'm interested, first of all, it 7 has to be said that -- that what obviously transpired at 8 the Preliminary Inquiry, in part, is that Dr. Smith was 9 asked to opine on the history that was put by the accused 10 as an explanation -- as an innocent explanation for the 11 events. 12 And he appears to have adopted the 13 language that it was certainly consistent with or equally 14 consistent as an explanation with others as part of his 15 testimony at the Preliminary Inquiry. 16 I'm just interested in whether you -- 17 you'd like to comment on Dr. Smith's testimony that was 18 given at the Preliminary Inquiry in that regard? 19 DR. HELEN WHITWELL: Well, I'm afraid I 20 found it rather confusing. And particularly, the terms 21 "consistent" and "inconsistent", and the issues of 22 betting, which are not really appropriate. 23 MR. MARK SANDLER: All right. And -- and 24 leaving aside, and again, we've -- we've heard the use of 25 that -- that language and -- and the concerns that have

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1 been raised about it elsewhere, but perhaps, I'll ask you 2 the question in another way then. 3 And that is, you were aware of the history 4 that the accused gave for how this event occurred. And 5 if you'd been asked that same question, namely, what can 6 you say -- I'll leave aside the consistent and 7 inconsistent with -- if you'd been asked by the court 8 whether or not that history could explain the injuries 9 that were seen here, what would you have said? 10 DR. HELEN WHITWELL: Well, if I can take 11 one (1) step back. 12 MR. MARK SANDLER: Of course. 13 DR. HELEN WHITWELL: I'm not -- not 14 convinced -- there's no evidence of injuries that I can 15 see, therefore, you actually haven't got an explanation 16 for death. 17 MR. MARK SANDLER: All right. So you'd 18 go back and say, We're not even dealing with the cause of 19 death of head injury, -- 20 DR. HELEN WHITWELL: Correct. 21 MR. MARK SANDLER: -- so one doesn't even 22 have to go here? 23 DR. HELEN WHITWELL: Correct. 24 MR. MARK SANDLER: All right. But 25 assuming that -- assuming that, indeed, there was head

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1 injury. Let's assume that and that the tear to the 2 corpus callosum was not artifactual, but -- but real? 3 And you'd been asked this very same question, namely 4 could the history explain the injuries observed? 5 What would you have said? 6 DR. HELEN WHITWELL: Well, the -- to go 7 back to the corpus callosum; I've already indicated that 8 that suggests a -- a severe head injury, and it's not a 9 feature that you see in infant head injuries or child 10 head injuries, generally. 11 If that was genuine then that would have - 12 - indicate significant forces probably out with what is 13 described. 14 MR. MARK SANDLER: Okay. So then we're 15 back to whether the corpus callosum existed? 16 DR. HELEN WHITWELL: But then we haven't 17 -- but then we haven't found any other indications of a 18 significant head injury. 19 MR. MARK SANDLER: All right. And 20 assuming it's -- it's undoubtedly implicit, if not 21 explicit in what you've said -- assuming there was no 22 torn corpus callosum, and you're asked the question, 23 could this child have been the subject of the history as 24 described by the accused. 25 You would have said since there's no

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1 pathology then anything's possible? 2 DR. HELEN WHITWELL: Well, -- 3 MR. MARK SANDLER: That's what I hear you 4 saying? 5 DR. HELEN WHITWELL: -- I -- I mean, the 6 -- you know, that may -- may or may not have happened, 7 but from the pathology, there's no pathology to 8 substantiate a diagnosis of head injury. 9 MR. MARK SANDLER: The last question -- I 10 -- I know I'm kind of making a -- posing a hypothetical 11 within a hypothetical, and I appreciate your patience in 12 -- in trying to respond to it. Dr. Smith made reference 13 to the fact that we don't see contrecoup in -- in 14 infants, and we -- in child or in infant. 15 And we heard from Dr. Crane; he was 16 talking about evidence of contrecoup in the Nicholas 17 case. Could -- could you explain the -- the 18 understanding about contrecoup in the pediatric setting 19 and it's relationship to age? 20 DR. HELEN WHITWELL: Sure. Coup and 21 contrecoup injury refer to, in simple terms, bruising of 22 -- of the brain; the surface of the brain. And the 23 classic example of contrecoup bruising is -- which one 24 frequently sees is in the adult, who -- this typical 25 scenario is outside a Pub and somebody falls over

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1 backwards and then they -- a head strikes the ground and 2 they get contrecoup injury at the front part of the 3 brain. 4 So that's a contrecoup injury. What we 5 know is that in infants, probably because the brain is -- 6 is soft, that you don't tend to see those features of 7 contusional injury to the surface of the brain. That's a 8 feature that you see in -- in older infants and children. 9 MR. MARK SANDLER: All right. 10 COMMISSIONER STEPHEN GOUDGE: Do you see 11 it at the point of impact as opposed to at the point 12 opposite the point of impact? 13 DR. HELEN WHITWELL: If -- 14 COMMISSIONER STEPHEN GOUDGE: Or do you 15 see neither? 16 DR. HELEN WHITWELL: You -- it's -- it's 17 generally not a feature of the young infant. Where you 18 may see it is if you've got significant skull fractures, 19 which have actually impinged directly on the brain. 20 COMMISSIONER STEPHEN GOUDGE: But the 21 blow itself tends not to produce bruising on the 22 surface -- 23 DR. HELEN WHITWELL: It tends not to. 24 COMMISSIONER STEPHEN GOUDGE: -- of the 25 brain, either where the blow is or opposite where the

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1 blow was? 2 DR. HELEN WHITWELL: That -- that's 3 correct. 4 COMMISSIONER STEPHEN GOUDGE: And when 5 you say that tends to be the case in infants, what is the 6 upper limit that is -- are you talking children under one 7 (1) or two (2) or something? 8 DR. HELEN WHITWELL: Well, generally the 9 brain matures as -- the older the infant gets. So 10 probably by about nine (9) months to a year, it may 11 represent more of the adult pattern. It's difficult to 12 be specific. 13 COMMISSIONER STEPHEN GOUDGE: But when 14 you were talking about not seeing it, you were talking 15 about children under -- 16 DR. HELEN WHITWELL: Infants, yeah. 17 COMMISSIONER STEPHEN GOUDGE: -- nine (9) 18 months, basically? 19 DR. HELEN WHITWELL: Yeah. This -- this 20 sort of age group. 21 COMMISSIONER STEPHEN GOUDGE: Okay. That 22 is helpful. Thank you. 23 24 CONTINUED BY MR. MARK SANDLER: 25 MR. MARK SANDLER: I asked for two (2)

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1 reasons. So first of all, insofar as the age group that 2 Dr. Smith was dealing with in this case, you'd agree with 3 his observation? 4 DR. HELEN WHITWELL: Sorry, could you 5 just -- I'm getting a little confused -- 6 MR. MARK SANDLER: That's fine. 7 DR. HELEN WHITWELL: -- with the lawyer 8 speak. 9 MR. MARK SANDLER: I had -- I had read 10 you -- I had read you a portion during his testimony 11 where -- where he -- 12 COMMISSIONER STEPHEN GOUDGE: Back on 13 page 108, Dr. Whitwell. 14 DR. HELEN WHITWELL: Okay. 15 16 CONTINUED BY MR. MARK SANDLER: 17 MR. MARK SANDLER: -- where he's -- where 18 he had said that you don't see contrecoup -- 19 COMMISSIONER STEPHEN GOUDGE: Around line 20 10. Do you see it around line 10? 21 DR. HELEN WHITWELL: Sorry -- 22 COMMISSIONER STEPHEN GOUDGE: 108, around 23 line 10, he says: 24 "The concept of contrecoup injury that 25 we see in adults, we don't see in

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1 kids." 2 DR. HELEN WHITWELL: Yes, I would agree 3 with that. 4 COMMISSIONER STEPHEN GOUDGE: Provided 5 you're talking about kids under nine (9) months? 6 DR. HELEN WHITWELL: Yeah, in the -- in 7 the infant -- this age group. 8 COMMISSIONER STEPHEN GOUDGE: Yeah, 9 right. 10 11 CONTINUED BY MR. MARK SANDLER: 12 MR. MARK SANDLER: And that's why I 13 asked, because in the Nicholas case, when Professor Crane 14 talked about contrecoup, Nicholas was nine (9) months old 15 at the time, so. 16 DR. HELEN WHITWELL: Right. 17 MR. MARK SANDLER: Okay. Thank you. 18 Those are all the questions that I have about the Taylor 19 case. 20 And, Commissioner, those are all the 21 questions I have of both of our panellists. 22 COMMISSIONER STEPHEN GOUDGE: Okay. So, 23 we're on, I guess, to you, Mr. Ortved. 24 MR. NIELS ORTVED: Thank you, Mr. 25 Commissioner.

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1 2 CROSS-EXAMINATION BY MR. MR. NIELS ORTVED: 3 MR. NIELS ORTVED: So now, Dr. Whitwell, 4 Dr. Saukko, my name is Niels Ortved. I act for Dr. 5 Smith. 6 Mr. Commissioner, I have a few things to 7 set up, but -- 8 COMMISSIONER STEPHEN GOUDGE: Do you want 9 to break for lunch now? I mean would that be easier? 10 MR. NIELS ORTVED: No, I'm happy to 11 start. 12 COMMISSIONER STEPHEN GOUDGE: Whatever 13 you like. We can break for lunch and come back earlier, 14 if that is helpful to you. Come back at 1:30 if we break 15 now. 16 MR. NIELS ORTVED: What -- what would 17 typically be the time you'd break? 18 COMMISSIONER STEPHEN GOUDGE: Half an 19 hour from now, but that's just habit. I mean, if it 20 makes it easier for you, we can break now and come back 21 at 1:30. 22 MR. NIELS ORTVED: No, I think -- why 23 don't I start -- 24 COMMISSIONER STEPHEN GOUDGE: Okay. 25 MR. NIELS ORTVED: -- and then, if I get

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1 to a point where I have to set up, then -- then maybe we 2 could break at that point. 3 COMMISSIONER STEPHEN GOUDGE: Sure. 4 5 CONTINUED BY MR. NIELS ORTVED: 6 MR. NIELS ORTVED: So then, Dr. Whitwell, 7 let me just deal with some introductory matters first. I 8 think that what you will agree with us, as -- as a number 9 of your colleagues have, is that forensic pathology -- 10 forensic pathology, as a science, is complex? 11 DR. HELEN WHITWELL: Correct. 12 MR. NIELS ORTVED: And pediatric forensic 13 pathology effectively adds another layer of complexity to 14 that? 15 DR. HELEN WHITWELL: It does, yes. 16 MR. NIELS ORTVED: And what you told us 17 in your evidence is that it's an interpretive science. 18 DR. HELEN WHITWELL: Interpretation based 19 on facts. But, yes, there is a significant amount of 20 interpretation. 21 MR. NIELS ORTVED: What you've told us is 22 that having canvassed the facts of the relative cases, 23 what you do is you come up with opinions. 24 DR. HELEN WHITWELL: Correct. 25 MR. NIELS ORTVED: And that's why I put

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1 it to you that it's interpretive, correct? 2 DR. HELEN WHITWELL: Correct. 3 MR. NIELS ORTVED: And -- and what you, I 4 think, will also acknowledge to us is that many of those 5 opinions will, of nece -- of necessity, be uncertain. 6 DR. HELEN WHITWELL: Some may be 7 uncertain and some may be more certain than others. 8 MR. NIELS ORTVED: Correct. There's a 9 sliding scale depending on the circumstances. 10 DR. HELEN WHITWELL: Depending on the 11 issues, yes. 12 MR. NIELS ORTVED: And -- and that -- 13 that sliding scale of certainty, depending on the issues, 14 will vary from one (1) pathologist to another. 15 DR. HELEN WHITWELL: Yes, it may do, but 16 again, depending on the -- the circumstances. 17 MR. NIELS ORTVED: Correct. And there -- 18 as a corollary to that, I think that you'll also agree 19 with me that from time to time pathologists will differ 20 in their conclusions. 21 DR. HELEN WHITWELL: They will, yes. 22 MR. NIELS ORTVED: And -- and that's -- 23 that's the case, even assuming those respective 24 pathologists are informed, correct? 25 DR. HELEN WHITWELL: Yes.

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1 MR. NIELS ORTVED: Themselves expert? 2 DR. HELEN WHITWELL: Yes. 3 MR. NIELS ORTVED: And -- and reasonable. 4 DR. HELEN WHITWELL: Yes. 5 MR. NIELS ORTVED: And when you have 6 those areas of disagreement, it's not to say one (1) is 7 necessarily right, and one (1) is necessarily wrong. 8 DR. HELEN WHITWELL: Correct. 9 MR. NIELS ORTVED: And -- and what we 10 know, and have heard actually through your evidence in 11 particular, is that over time opinions can change. 12 DR. HELEN WHITWELL: If you're referring 13 to the issue of head injuries, yes. In other areas of 14 forensic pathology, then things may not change; for 15 example, gun shot wounds. 16 MR. NIELS ORTVED: No. I -- I accept 17 that. No. Lets stay -- I'm content to -- to relate it to 18 the issue of -- of head injury, because that's really 19 what we've discussed in great measure with -- 20 DR. HELEN WHITWELL: Sure. Yes. 21 MR. NIELS ORTVED: -- you, correct? And 22 again, having regard to the -- the change in opinion over 23 time, it doesn't make necessarily the -- the earlier 24 opinion wrong? 25 DR. HELEN WHITWELL: Probably as science

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1 or medicine evolves, things which were thought to be 2 essentially correct were then maybe not shown to be 3 substantiated later on. So it's really -- it's an 4 evolution, as with many branches of medicine. 5 MR. NIELS ORTVED: Right. And I think 6 we're saying the same thing really, that the opinions 7 have to be contextualized in terms of time, the time 8 they're given. 9 DR. HELEN WHITWELL: Yes, they do. Well, 10 it would be difficult to do it in advance, because you -- 11 MR. NIELS ORTVED: Well, I -- 12 DR. HELEN WHITWELL: -- you wouldn't know 13 what was going to happen in the future. 14 MR. NIELS ORTVED: No, no. I'm -- I'm 15 talking about looking back. 16 DR. HELEN WHITWELL: Oh, yes. Yes. I -- 17 I follow what you mean, yes. Yes. 18 MR. NIELS ORTVED: No. Fortunately here, 19 we don't have to look forward. 20 Now an issue that has come up in the 21 course of -- of these proceedings is -- is the whole 22 issue of certainty having regard to circumstantial 23 evidence. 24 And that's an issue with which you're 25 familiar?

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1 DR. HELEN WHITWELL: Yes. 2 MR. NIELS ORTVED: And frequently there 3 will be instances where pathologists will rely on 4 circumstantial evidence, in addition to pathological 5 evidence. 6 DR. HELEN WHITWELL: Well, we may need to 7 take that into account, but I -- I think my view would be 8 that one relies predominantly on the pathological 9 evidence. 10 MR. NIELS ORTVED: I don't -- I don't 11 dispute that with you, but in your own evidence here, 12 what you've made very clear is that circumstances are 13 important. 14 DR. HELEN WHITWELL: Correct. 15 MR. NIELS ORTVED: So for instance, the 16 history of the deceased is something that is a vital part 17 of the investigation. 18 DR. HELEN WHITWELL: Correct. 19 MR. NIELS ORTVED: You actually made that 20 point in relation to the Kassandra case. You talked 21 about the fact that her history of fits was something to 22 be taken into consideration. 23 DR. HELEN WHITWELL: Yes. 24 MR. NIELS ORTVED: And the -- the 25 consultations provided by treating physicians are

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1 something to be taken into account. 2 DR. HELEN WHITWELL: Correct. 3 MR. NIELS ORTVED: Especially in the 4 circumstances where the deceased has been hospitalized 5 before death. 6 DR. HELEN WHITWELL: Yes, that's correct. 7 MR. NIELS ORTVED: And -- and again in 8 your own evidence, you acknowledged that fact in relation 9 to the Amber case, correct? 10 DR. HELEN WHITWELL: Correct. 11 MR. NIELS ORTVED: And -- and I've listed 12 two (2) examples, but there may be other instances of 13 circumstances which should be taken into account in a 14 diagnosis, correct? 15 DR. HELEN WHITWELL: Correct. 16 MR. NIELS ORTVED: And then a third 17 introductory issue I'd like to canvas with you is the 18 issues that we have had to address -- well you 19 specifically have had to address in this proceeding -- 20 are diagnostically complex. 21 DR. HELEN WHITWELL: That's correct. 22 MR. NIELS ORTVED: And -- and what you 23 are in the position of doing is actually looking back at 24 these retrospectively, correct? 25 DR. HELEN WHITWELL: Yes.

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1 MR. NIELS ORTVED: And one of the things 2 that you'll acknowledge to me, I think, is that you have 3 to be careful when you do that to avoid oversimplifying, 4 with the benefit of hindsight. 5 DR. HELEN WHITWELL: Yes, I would agree. 6 MR. NIELS ORTVED: And that's -- that's 7 really, I think, in -- in fairness, of concern here, 8 having regard to the nature of the review in which you 9 were engaged, do you agree? 10 DR. HELEN WHITWELL: Yes. 11 MR. NIELS ORTVED: Because the cases that 12 were presented to you were presented to you as 13 problematic. 14 DR. HELEN WHITWELL: Yes. 15 MR. NIELS ORTVED: And this -- this was 16 not some blind random sample, you knew that? 17 DR. HELEN WHITWELL: Yes, that's -- yes, 18 I did. 19 MR. NIELS ORTVED: And when you were 20 asked to review the cases, you -- you were aware that you 21 had much more information concerning those cases than did 22 Dr. Smith when he was doing his post-mortem in relation 23 to those cases. 24 DR. HELEN WHITWELL: Yes. Yes, because I 25 not only had that, but what happened to the case

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1 afterwards -- 2 MR. NIELS ORTVED: Exactly. 3 DR. HELEN WHITWELL: -- which he didn't 4 have. 5 MR. NIELS ORTVED: No, I mean there's 6 really no hesitation about this. Take the Amber case; 7 you -- you had the benefit in -- in your review of -- of 8 all of the opinions and testimony of all of the defence 9 witnesses and -- and plus twenty (20) years of literature 10 on the subject. 11 DR. HELEN WHITWELL: At the time I did my 12 report I hadn't seen the defence expert's reports, but I 13 had -- in that particular case, but I had a Judge's 14 document. I'm sorry, I've forgotten the technical word 15 for it. 16 MR. NIELS ORTVED: You had the -- 17 COMMISSIONER STEPHEN GOUDGE: The reasons 18 of Justice -- 19 20 CONTINUED BY MR. NIELS ORTVED: 21 MR. NIELS ORTVED: -- reasons of Justice 22 Dunn. 23 DR. HELEN WHITWELL: Yes. 24 MR. NIELS ORTVED: You had the reasons of 25 Justice Dunn.

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1 DR. HELEN WHITWELL: Yeah. 2 MR. NIELS ORTVED: And -- and those 3 reasons summarised the evidence on behalf of the defence. 4 DR. HELEN WHITWELL: It did, that's 5 correct. 6 MR. NIELS ORTVED: So you knew what Dr. 7 Duhaime said -- 8 DR. HELEN WHITWELL: Yes. 9 MR. NIELS ORTVED: -- as an example? 10 DR. HELEN WHITWELL: Yes, that's correct. 11 MR. NIELS ORTVED: And -- and in 12 addition, as I've already said, you -- you in looking at 13 it in 2006 had the benefit of, what, eighteen (18) years 14 of literature on short distance falls and -- and Shaken 15 Baby Syndrome, correct? 16 DR. HELEN WHITWELL: You mean from the 17 time of the judgment? 18 MR. NIELS ORTVED: From the time that Dr. 19 Smith did the autopsy. 20 DR. HELEN WHITWELL: Yes. Could you 21 remind me when that was, I'm sorry, I -- 22 MR. NIELS ORTVED: 1988. 23 DR. HELEN WHITWELL: '88, yes, I've -- 24 nineteen (19) years. 25 MR. NIELS ORTVED: Right, okay. So now

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1 what I want to do is -- is turn to the Shaken Baby 2 Syndrome issue. 3 And now, Mr. Commissioner, I do have to 4 set up. 5 COMMISSIONER STEPHEN GOUDGE: Okay. Do 6 you want to break for lunch now? 7 MR. NIELS ORTVED: If -- if that -- 8 COMMISSIONER STEPHEN GOUDGE: Sure. 9 MR. NIELS ORTVED: -- works for you. 10 COMMISSIONER STEPHEN GOUDGE: Sure. Why 11 don't we then come back at quarter to 2:00, okay. 12 MR. NIELS ORTVED: Thank you very much. 13 COMMISSIONER STEPHEN GOUDGE: So we'll 14 rise now until quarter to 2:00. 15 16 --- Upon recessing at 1:12 p.m. 17 --- Upon resuming at 1:46 p.m. 18 19 THE REGISTRAR: All rise. Please be 20 seated. 21 COMMISSIONER STEPHEN GOUDGE: Mr. Ortved, 22 before you begin, I've worked out a timetable for 23 everybody for today and tomorrow; essentially allocating 24 to all of you the time you've requested. 25 To do that, we butt up against 4:30

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1 tomorrow a little bit, Mr. Ortved, but if it's okay with 2 you, you would have to go to 4:50 today to finish. I'd 3 like to finish you today; that will allow us to be sure 4 to be finished by 4:30 tomorrow. 5 MR. NIELS ORTVED: All depends what you 6 mean by finishing me? 7 COMMISSIONER STEPHEN GOUDGE: Come to a 8 successful conclusion, how's that? 9 MR. NIELS ORTVED: No, that's -- that -- 10 that should be adequate, Mr. Commissioner. 11 COMMISSIONER STEPHEN GOUDGE: Okay. 12 13 CONTINUED BY MR. NIELS ORTVED: 14 MR. NIELS ORTVED: Thank you very much. 15 So, Dr. Whitwell, I'm going to continue with my questions 16 of you, if I might. And we know, looking at systemic 17 issues here that one of these -- one of those issues is 18 the growth of knowledge in forensic pathology. 19 And clearly, it's apparent to all of us 20 who have been here for the past few weeks, that this is a 21 discipline that is dynamic as opposed to static, agreed? 22 DR. HELEN WHITWELL: Correct. 23 MR. NIELS ORTVED: And it's stating a 24 truism that one (1) of the controversies is the evolving 25 nature of forensic pathol -- pathology of infantile head

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1 injury, including so-called Shaken Baby Syndrome? 2 DR. HELEN WHITWELL: Correct. 3 MR. NIELS ORTVED: And what we heard from 4 Dr. Pollanen last week, was that this debate: 5 Quote: "Continues to rage." Closed quote. 6 Do you agree? 7 DR. HELEN WHITWELL: I'm not sure about 8 the word "rage." 9 MR. NIELS ORTVED: It's continuing? 10 DR. HELEN WHITWELL: It's continuing. 11 MR. NIELS ORTVED: And just to put -- put 12 this in perspective, I'm gonna ask you to take a look at 13 this publication that's been commissioned by this 14 Commission, the Cordner Report, and it's found in your 15 new Volume I, Tab 35. 16 Do you have that? And it's 60 -- it's 17 301639, Mr. Registrar. You don't have it? 18 DR. HELEN WHITWELL: Well I -- 19 COMMISSIONER STEPHEN GOUDGE: Which 20 volume, Mr. Ortved? 21 MR. MARK SANDLER: It's in Additional 22 Materials, Volume I, Tab 35. 23 COMMISSIONER STEPHEN GOUDGE: Okay. 24 Thanks. 25

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1 CONTINUED BY MR. NIELS ORTVED: 2 MR. NIELS ORTVED: So it's PFP301639, and 3 I'm at page 32. Are you with me, Dr. Whitwell? 4 DR. HELEN WHITWELL: Yes, I am. 5 MR. NIELS ORTVED: And this is a -- this 6 is a report done by the Victorian Institute of Forensic 7 Medicine, and I think it's headed up by Dr. Cordner. 8 I think maybe Dr. Cordner's someone known 9 to you? 10 DR. HELEN WHITWELL: He is, yes. 11 MR. NIELS ORTVED: And -- and what Dr. 12 Cordner, or in -- in this report, what is set out at the 13 last sentence of that first full paragraph there on page 14 32, is as follows. 15 "Issues around Shaken Baby Syndrome, 16 whether short falls can cause fatal 17 head injury, and many others are not 18 settled, and it will be many years 19 before there is a completely uniform 20 approach to them." 21 And that's a statement with which, I 22 think, you agree. 23 DR. HELEN WHITWELL: Yes, that's correct. 24 MR. NIELS ORTVED: Now, this whole issue 25 was discussed with us last week by Dr. Pollanen and

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1 featured a PowerPoint presentation which I think you have 2 probably seen. 3 DR. HELEN WHITWELL: I have, yes. 4 MR. NIELS ORTVED: And that is found at 5 new Volume I -- additional Volumes I, Tab 18, Mr. 6 Commissioner. 7 COMMISSIONER STEPHEN GOUDGE: Thank you. 8 9 CONTINUED BY MR. NIELS ORTVED: 10 MR. NIELS ORTVED: And specifically, Dr. 11 Whitwell, I'm looking at page number 5 of that 12 PowerPoint. 13 DR. HELEN WHITWELL: Headed what? 14 MR. NIELS ORTVED: It's headed "The 15 Scientific Debate." 16 DR. HELEN WHITWELL: All right. Okay. 17 MR. NIELS ORTVED: And so what Dr. 18 Pollanen has done for us is really summarize things very 19 succinctly, setting out that there's a classical view, 20 which he interprets as "dogma" and sets out there that 21 the triad in the classical view equals Shaken Baby 22 Syndrome, correct? 23 DR. HELEN WHITWELL: Yes. 24 MR. NIELS ORTVED: And that, at least, in 25 the classical view, Shaken Baby Syndrome was equivalent

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1 to homicide. 2 DR. HELEN WHITWELL: Yes, that's correct. 3 MR. NIELS ORTVED: And then what he does 4 -- and -- and that really dates back to -- well, it goes 5 back, probably further than that, but it specifically was 6 written about and described by Caffey et al in his 7 article, in 1974, entitled "The Whiplash Shaken Infant 8 Syndrome," correct? 9 DR. HELEN WHITWELL: Correct, but 10 probably before that as you quite rightly say. 11 MR. NIELS ORTVED: Sure. Yeah. But then 12 Dr. Pollanen contrasts the classical view with the 13 contrary view -- he characterizes it as "sceptical" -- 14 specifically: 15 "The triad is not specific; may occur 16 in other conditions such as an impact 17 injury to the head." 18 I've read that correctly? 19 DR. HELEN WHITWELL: Yes. 20 MR. NIELS ORTVED: You agree? 21 DR. HELEN WHITWELL: Yes. 22 MR. NIELS ORTVED: And -- and I think 23 that you would, in your evidence, go further and say 24 actually it may occur in other than specific impact 25 injury to the head as well, correct? That's your thesis?

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1 2 DR. HELEN WHITWELL: Well, that is where 3 the debate on a small number of cases potentially arises. 4 MR. NIELS ORTVED: Correct. 5 DR. HELEN WHITWELL: In my experience, 6 the vast majority of these cases are related to impact. 7 MR. NIELS ORTVED: Right. 8 DR. HELEN WHITWELL: And -- and that of 9 other forensic pathologists concurs with that. I think 10 what -- what essentially is confusing, generally, is that 11 the term "SBS" implies a manner or mode which includes 12 "shaken" in the -- in the title. 13 Whereas, from a morphological point of 14 view, if you have an impact head injury, you may have 15 bruise, skull fracture, whatever; essentially, you have a 16 head injury. 17 MR. NIELS ORTVED: Correct. 18 DR. HELEN WHITWELL: So, in fact, the 19 term -- it's difficult at times to equal a diagnosis of 20 SBS when you have an impact head injury. 21 MR. NIELS ORTVED: I get -- I understand 22 it, and -- and, really, I think part of the -- part of 23 the debate that you're identifying is -- is to what 24 extent is there Shaken Baby Syndrome in 2007 that doesn't 25 include impact?

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1 DR. HELEN WHITWELL: That's correct. 2 MR. NIELS ORTVED: Right. And so if 3 you'd turn over the page to page number 6, what we see 4 Dr. Pollanen has set out there underneath your name is: 5 "Some experts are strong proponents of 6 Shaken Baby Syndrome and even accepting 7 retinal hemorrhages as evidence for 8 Shaken Baby Syndrome in the absence of 9 the triad." 10 I've read that correctly? 11 DR. HELEN WHITWELL: Yes. 12 MR. NIELS ORTVED: And -- and what he -- 13 he says underneath that is: 14 "Some experts are strong opponents of 15 Shaken Baby Syndrome and take the 16 position, Shaken Baby Syndrome is a 17 flawed concept." 18 And to the extent that that's an 19 oversimplification, but a characterization of the debate, 20 I think from your evidence you would probably fall in -- 21 more into the latter camp. 22 DR. HELEN WHITWELL: Yes. I -- I think 23 I've tried to explain. 24 I think it's the terminology that -- that 25 is in itself confusing, and I -- what has happened under

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1 a variety of names -- whether it's Shaken Infant 2 Syndrome; Shaken Baby Syndrome; Shaken Impact Syndrome -- 3 is that all -- the majority of the cases of -- whether 4 they're young infants or older children, have all been 5 put in this group of Shaken Baby Syndrome, or Shaken 6 Impact Syndrome, when pathologically, a significant 7 proportion show evidence of impact. 8 MR. NIELS ORTVED: Fair enough. But to 9 the extent we're talking about Shaken Baby Syndrome, I 10 think you would -- fairly stated -- agree with me that 11 you think there's -- there's less of it than may have 12 been thought in prior years. 13 DR. HELEN WHITWELL: If you're talking 14 about shaking -- 15 MR. NIELS ORTVED: Pure shaking. 16 DR. HELEN WHITWELL: -- okay. Pure 17 shaking -- less. From a pathological point of view, the 18 vast majority are impact injuries; whatever causes that 19 impact. 20 MR. NIELS ORTVED: That's your opinion? 21 DR. HELEN WHITWELL: Yes. I think it's 22 also the opinion of -- of other forensic pathologists. 23 MR. NIELS ORTVED: Well, I'll -- we'll 24 deal with them -- 25 DR. HELEN WHITWELL: Sure.

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1 MR. NIELS ORTVED: -- at another time, 2 but we're talking about you today. 3 That's your opinion? 4 DR. HELEN WHITWELL: It is, yes. 5 MR. NIELS ORTVED: And at the top of that 6 page, what Dr. Pollanen identifies for us as a landmark 7 event is -- is 2001, Geddes and Whitwell, and I think 8 that you understand him to be talking about the papers 9 that you authored with Dr. Geddes, and told the 10 Commissioner about in your evidence in-chief, correct? 11 DR. HELEN WHITWELL: Correct, yeah. 12 MR. NIELS ORTVED: And your -- your 13 series of papers -- they were three (3) in number. 14 Am I correct? 15 DR. HELEN WHITWELL: No. The 2001 were 16 two (2). 17 MR. NIELS ORTVED: 2001 were two (2), and 18 then they were followed up by a third in 2002? 19 DR. HELEN WHITWELL: I think there's 20 2003. That -- that was a separate paper. 21 The 2001 papers which appeared in Brain -- 22 one (1) and two (2) were -- were the major study that I 23 referred to yesterday. 24 MR. NIELS ORTVED: All right. So your -- 25 your paper, "Dural Haemorrhage in Non-Traumatic Infant

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1 Deaths", does it explain the bleeding in Shaken Baby 2 Syndrome that -- you refer to that as what, your 2003 3 paper? 4 DR. HELEN WHITWELL: It was 2003, yes. 5 MR. NIELS ORTVED: Okay. And that's been 6 referred to as containing the unified hypothesis? 7 DR. HELEN WHITWELL: That's correct. 8 MR. NIELS ORTVED: And -- and I'm going 9 to oversimplify here, so please correct me if I'm wrong. 10 But -- but, in essence, on my reading, 11 your contention, or your's and Dr. Geddes' contention, 12 because you were a co-author of those papers. Correct? 13 DR. HELEN WHITWELL: Correct, yes. 14 MR. NIELS ORTVED: Is that the triad 15 could result without the application of considerable 16 force or impact. 17 DR. HELEN WHITWELL: It was a hypothesis, 18 yes. That's correct. 19 MR. NIELS ORTVED: Correct. And I've 20 stated it correctly? 21 It could result without considerable force 22 or impact. 23 DR. HELEN WHITWELL: Yes. 24 MR. NIELS ORTVED: And -- and the -- that 25 would be in -- be contrary to the conventional theory,

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1 which is that the triad is indicative of having been, 2 unlawfully, mistreated by excessive shaking, sometimes 3 accompanied by impact as well. 4 DR. HELEN WHITWELL: What that hypothesis 5 was an attempt to do was to see if there was an 6 alternative explanation for those small number of young 7 infants who present without objective evidence of trauma 8 in -- in the sense of scalp bruising or skull fracture 9 which were identified in the brain series. 10 MR. NIELS ORTVED: And -- and I've -- 11 I've stated it correctly that -- that those -- the triad 12 could come about without the application of excessive 13 force. 14 DR. HELEN WHITWELL: That was -- that's 15 the hypothesis, yes. 16 MR. NIELS ORTVED: Right. And your 17 hypothesis was then subjected to extensive analysis in 18 the United Kingdom Court of Appeal. 19 DR. HELEN WHITWELL: Correct. 20 MR. NIELS ORTVED: And that was -- and 21 specifically, in the context of the decision in the 22 Harris -- well, it's entitled Harris case, but it's four 23 (4) cases. 24 DR. HELEN WHITWELL: Yes. No, no, that's 25 absolutely correct because the other three (3) cases were

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1 issues of degree of force in low level falls. 2 MR. NIELS ORTVED: Correct. And -- and 3 what happened was that following the release of the 4 decision of the Court of Appeal in the Harris case, the 5 Attorney General, the right Honourable Lord Goldsmith, 6 came down with his addendum to his earlier report on 7 infant deaths, correct? 8 DR. HELEN WHITWELL: That's correct. 9 MR. NIELS ORTVED: And that addendum, Mr. 10 Commissioner, is found at your new Volume I, Tab 20, and 11 it's PFP03302 -- 033302. 12 DR. HELEN WHITWELL: Yes, I've got that. 13 MR. NIELS ORTVED: So, I'm looking at 14 paragraph 6 of that, so it's on page 5, Dr. Whitwell, are 15 you with me? 16 DR. HELEN WHITWELL: Yes. 17 MR. NIELS ORTVED: And what the Attorney 18 General tells us in his addendum is that: 19 "A feature of the cases with the 20 presence of one (1) or more of three 21 (3) distinct features which have 22 together become known as "the triad". 23 These three (3) injuries are subdural 24 hemorrhaging, retinal hemorrhaging, and 25 encephalopathy, a form of brain damage.

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1 2 According to conventional theory, which 3 the Court of Appeal termed the accepted 4 hypothesis, the presence of these 5 injuries is considered indicative of 6 the child having been unlawfully 7 mistreated by violent and obviously 8 excessive, and therefore, unlawful 9 shaking, sometimes accompanied by 10 impact injuries, as well. It is these 11 circumstances which have been called 12 Shaken Baby Syndrome or similar 13 expressions. In the appeal, the Court 14 used the term "Non-accidental head 15 injury". As I detailed in my report, 16 there is another school of thought -- 17 school of medical thought, of which Dr. 18 Geddes and -- and I say, Dr. Whitwell, 19 has been a principle component that the 20 trial of -- that the triad of injuries 21 can be caused in other ways than by the 22 application of unlawful force." 23 So that's -- 24 DR. HELEN WHITWELL: Correct. 25 MR. NIELS ORTVED: You agree with that.

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1 And what the Attorney General went on to note in 2 paragraph 8 is that the Court of Appeal in the Harris 3 case examined -- heard from a large number of experts, 4 correct? 5 DR. HELEN WHITWELL: It did, yes. 6 MR. NIELS ORTVED: Twenty-five (25) by my 7 count. 8 DR. HELEN WHITWELL: There was an awful 9 lot. 10 MR. NIELS ORTVED: We -- we have a rule 11 here where you only get to call three (3), but -- but in 12 any event, there was -- there were eleven (11) experts 13 called by the defence and fourteen (14) experts called by 14 the prosecution. 15 DR. HELEN WHITWELL: It -- it was around 16 that number, yeah. 17 MR. NIELS ORTVED: That's what they 18 report -- that's what he reports in paragraph 8. And 19 those experts included Dr. Geddes and it include -- and 20 they included you. 21 DR. HELEN WHITWELL: Correct. 22 MR. NIELS ORTVED: And -- 23 DR. HELEN WHITWELL: There were four (4) 24 cases, so some of the experts were in all of them and 25 some were only in one (1) or two (2).

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1 MR. NIELS ORTVED: Right. 2 DR. HELEN WHITWELL: So there was a -- a, 3 sort of, a combination. 4 MR. NIELS ORTVED: Right. And so then 5 the Attorney General goes on to say that the Court 6 reached a number of significant conclusions, and those 7 commence at paragraph 10 as follows: 8 "The first was to note that a theory 9 which had been apparently put forward 10 by Dr. Geddes..." 11 And I'm going to -- when I say Dr. Geddes, 12 I'm going to include Dr. Whitwell. 13 DR. HELEN WHITWELL: Okay. 14 MR. NIELS ORTVED: That's fair, isn't it? 15 DR. HELEN WHITWELL: Oh, yes, absolutely. 16 MR. NIELS ORTVED: 17 "...that the triad of injuries could be 18 the result of no application of force 19 at all was rejected. This theory had 20 been put forward by Dr. Geddes in her 21 third paper, but had been hotly 22 disputed in her evidence to the Court. 23 However, Dr. Geddes conceded that her 24 third paper could not be put forward as 25 a proven theory, but was no more than a

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1 discussion document." 2 DR. HELEN WHITWELL: It was a hypothesis. 3 MR. NIELS ORTVED: Hypothesis. 4 "The Court of Appeal rejected this 5 theory [or read hypothesis] as a 6 credible or alternative cause of the 7 triad of injuries." 8 That's what the Court did, correct? 9 DR. HELEN WHITWELL: That's what the 10 Court did, yes. 11 MR. NIELS ORTVED: And that refers to a 12 footnote. And the footnote reads: 13 "In our judgment it follows that the 14 unified hypothesis can no longer be 15 regarded as a credible or alternative 16 cause of the triad of injuries." 17 And it quotes paragraph 69 of the judgment 18 in Regina and Harris, correct? 19 DR. HELEN WHITWELL: Correct. 20 MR. NIELS ORTVED: Then it goes on at 21 paragraph 11: 22 "Despite rejecting the theory of the 23 Court -- despite rejecting that theory 24 the Court was nonetheless faced with 25 considering what degree of force could

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1 be taken to produce the triad of 2 injuries. The Court considered the 3 evidence from the different experts on 4 the key issue of the amount of force 5 necessary to produce the triad of 6 injuries. There was not unanimity of 7 view. Some continued to say that 8 significant force was necessary, some 9 that such injuries could be caused by 10 even a short fall. 11 In approaching this question the Court 12 started from some basic, though 13 important, general propositions. 14 12.1. That the more severe the 15 injuries, the more probable it is that 16 to cause them would require greater 17 force than mere rough handling." 18 That's a proposition with which I think 19 you agree. 20 DR. HELEN WHITWELL: Yes. And leaving 21 aside that very small -- the very small group, the 22 majority of cases fall into that group, yes. 23 MR. NIELS ORTVED: That's certainly what 24 the Court found. 25 DR. HELEN WHITWELL: Yes, that's correct.

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1 MR. NIELS ORTVED: 2 "12.2. That if infants could be caused 3 injuries which could be fatal by mere 4 rough or less than rough handling, then 5 hospitals would be full of injured 6 children. The common experience is 7 that this is not what is in fact 8 happens. This is all the more a 9 statement of good sense when one looks 10 at the nature of the injuries that make 11 up the triad." 12 And the injuries that make up the triad 13 are serious injuries, right? 14 DR. HELEN WHITWELL: Yes, correct. 15 MR. NIELS ORTVED: 16 "12.3. The very serious or even fatal 17 injuries could sometimes be caused by 18 either little force or by an infant 19 crawling a short distance. However, it 20 went on to add significantly that such 21 cases would be, [quote] 'very rare' 22 [closed quote]." 23 And that's -- 24 DR. HELEN WHITWELL: That will be rare, 25 yes.

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1 MR. NIELS ORTVED: You don't dispute 2 that. And that: 3 "12.4. That due to psychological -- 4 due to physiological make up, the 5 younger an infant or child is, the more 6 vulnerable to injury it will be, but 7 age is not necessarily a factor in 8 deciding the degree of force used." 9 The Court said that. 10 DR. HELEN WHITWELL: Correct. 11 MR. NIELS ORTVED: And then turning over 12 to paragraph 14, Dr. Whitwell, the -- the addendum 13 effectively concludes in -- with a -- with regard to the 14 Court of Appeal -- in summary, the Court of Appeal 15 concluded: 16 "14.1. The presence of the triad of 17 injuries is consistent with unlawful 18 application of force, ie. Shaken Baby 19 Syndrome." 20 And this is 2005 the Court said that, 21 correct? 22 DR. HELEN WHITWELL: Correct. 23 MR. NIELS ORTVED: 24 "The question for the Court, however, 25 was whether it was not just consistent,

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1 but actually diagnostic in all cases of 2 Shaken Baby Syndrome. 3 14.2. In cases where the triad alone 4 is present, that is, in the absence of 5 any other supporting evidence, such as 6 bruising, broken ribs, or history of 7 abuse, the triad alone cannot 8 automatically or necessarily lead to a 9 conclusion that the infant has been 10 shaken." 11 Correct? 12 DR. HELEN WHITWELL: Correct. 13 MR. NIELS ORTVED: And: 14 "14.3. However, the triad remains a 15 strong pointer to Shaken Baby 16 Syndrome." 17 We've heard that referred to previously, 18 correct? 19 DR. HELEN WHITWELL: Correct. 20 MR. NIELS ORTVED: 21 "As to the -- 14.4. As to the degree 22 of force necessary to inflict the 23 triad, the triad requires the 24 application of some trauma, and in the 25 vast majority of cases, more than rough

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1 handling will be needed. However, in 2 rare or very cases such injuries could 3 be caused by little force." 4 I've read that correctly? And: 5 "14.5. In its conclusions it's 6 stressed that the appeals it had 7 considered demonstrate the cases of 8 alleged non-accidental head injury are 9 fact specific and will be determined on 10 their individual facts, correct? 11 DR. HELEN WHITWELL: Mm. 12 MR. NIELS ORTVED: So -- so that -- just 13 to -- to complete this section, the Attorney General, in 14 light of that decision then went on to consider, if I'm 15 accurate, about eighty-five (85) cases of convictions 16 that had resulted from shaken -- alleged sake -- Shaken 17 Baby Syndrome in the UK in prior years, correct? 18 DR. HELEN WHITWELL: Yes. 19 MR. NIELS ORTVED: Of which they 20 ultimately elected that three (3) deserved 21 reconsideration, correct? 22 DR. HELEN WHITWELL: Ah, yes, that's 23 correct. 24 MR. NIELS ORTVED: Which is to say eight- 25 five (85) of those convictions did not give cause for

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1 concern. 2 DR. HELEN WHITWELL: Well, they didn't to 3 the review team, no. 4 MR. NIELS ORTVED: Right. So now with 5 that background, I'd like to turn to the Dustin case. 6 And -- and I want to go through this and - 7 - and the other cases in considerably less detail than My 8 Friend did. 9 Now -- now, what I'm going to do, I'm 10 going to ask you to turn to Volume IV of your documents, 11 Dr. Whitwell. It's your -- it's your main volume. 12 COMMISSIONER STEVEN GOUDGE: Are you 13 going to use the overview report? 14 MR. NIELS ORTVED: Yes. 15 COMMISSIONER STEVEN GOUDGE: Is that -- 16 MR. NIELS ORTVED: I'm going to be using 17 the overview report, and her reports. 18 COMMISSIONER STEVEN GOUDGE: Right. 19 20 (BRIEF PAUSE) 21 22 CONTINUED BY MR. NIELS ORTVED: 23 MR. NIELS ORTVED: So you've been over 24 these facts within the past two (2) days, so you've kind 25 of had them more or less at the top of your head.

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1 DR. HELEN WHITWELL: You may have to 2 refer me to paragraphs. 3 MR. NIELS ORTVED: I'll -- I'll -- if -- 4 if there's any issue -- 5 DR. HELEN WHITWELL: You will have to, 6 yes. 7 MR. NIELS ORTVED: -- if there's any 8 doubt, then by all means, I will, but -- and I'm looking 9 here at -- at your report. It's at your Tab 26. 10 DR. HELEN WHITWELL: Yep. 11 MR. NIELS ORTVED: PFP136005, and it's 12 page number 3. 13 So this is -- Dustin is the case where the 14 father took the two (2) year old boy -- two (2) month old 15 child for -- for a walk in the stroller. 16 Recall that? 17 DR. HELEN WHITWELL: Yes. 18 MR. NIELS ORTVED: And then noticed the 19 baby blue and frothing at the mouth. 20 DR. HELEN WHITWELL: Correct. 21 MR. NIELS ORTVED: On admission to 22 Belleville General Hospital, this baby was in very poor 23 condition. 24 DR. HELEN WHITWELL: Yes. 25 MR. NIELS ORTVED: And on admission to

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1 hospital, a CT scan showed generalized cerebral edema and 2 subdural hemorrhage, correct? 3 DR. HELEN WHITWELL: Yes. 4 MR. NIELS ORTVED: And what you've told 5 us at page 5 of your report is that there was sufficient 6 information here to indicate that this was a possible 7 child abuse case, correct? 8 DR. HELEN WHITWELL: Yes. 9 MR. NIELS ORTVED: And coming to the 10 issue of the treating doctors, which you've told us is 11 something that should be taken into account, that -- that 12 was certainly their view, was it not? 13 DR. HELEN WHITWELL: Yes. I commented 14 here about Dr. Padfield. 15 MR. NIELS ORTVED: Right. So let's just 16 look at -- at them. They -- this is the overview report. 17 142940; paragraph 39; it's at -- it's -- it's your Tab 18 28. 19 DR. HELEN WHITWELL: Yes. 20 MR. NIELS ORTVED: Page 15. 21 So do you see at paragraph 39 a reference 22 there to Dr. Pat -- Dr. Portt cornered Dr. Patel? 23 DR. HELEN WHITWELL: Yes. 24 MR. NIELS ORTVED: And Dr. -- Dr. Patel 25 was an emergency doctor at Belleville General Hospital.

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1 Do you recall that? 2 DR. HELEN WHITWELL: I don't recall 3 precisely who he was, but I'll have to accept that. 4 MR. NIELS ORTVED: And Dr. Patel advised 5 Dr. Portt that he had contacted the Children's Aid 6 Society about a possible investigation according to Dr. - 7 - to -- to -- oh, sorry, not Dr. Portt -- Detective Portt 8 -- according to Detective Portt, Dr. Patel said I'm 9 calling CAS too. 10 There is a -- there's retinal hemorrhaging 11 present behind both eyes, agreed? 12 DR. HELEN WHITWELL: Yes. 13 MR. NIELS ORTVED: And then Dr. Padfield, 14 to whom you've made reference -- that's at page number 17 15 and paragraph 44, specifically. And in the middle of 16 that single-spaced paragraph in 44, you see Dr. Padfield 17 having made reference to the child demonstrating: 18 "Bilateral papilledema and retinal 19 hemorrhage" 20 Correct? 21 DR. HELEN WHITWELL: Yes. 22 MR. NIELS ORTVED: And then if you turn 23 over to page number 20, Dr. Whit -- Whitfeel -- 24 DR. HELEN WHITWELL: Whitwell. 25 MR. NIELS ORTVED: Whitwell, sorry.

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1 Paragraph 48. 2 DR. HELEN WHITWELL: Sorry, which page 3 are we on? 4 MR. NIELS ORTVED: Page 20. 5 DR. HELEN WHITWELL: 20, yes, okay. 6 MR. NIELS ORTVED: Top of the page, -- 7 DR. HELEN WHITWELL: Yeah. 8 MR. NIELS ORTVED: -- paragraph 48. 9 According to the case summary of Dr. Padfield, Dr. Patel, 10 the pediatrician at Belleville General Hospital, 11 apparently spoke with the police and the Children's Aid 12 Society as he thought this was a case of the Shaken Baby 13 Syndrome. Dr. Padfield stated in the case summary: 14 "I concur with Dr. Patel's clinical 15 diagnosis of Shaken Baby Syndrome." 16 This is a clinician, correct? 17 DR. HELEN WHITWELL: Correct. 18 MR. NIELS ORTVED: And then Dr. Pearse -- 19 that's at paragraph 46, prior page -- so actually if you 20 go back to page 18, it's the begin -- beginning of 21 paragraph 48. 22 DR. HELEN WHITWELL: Yeah. 23 MR. NIELS ORTVED: Dr. -- Dr. Pearse is a 24 radiologist, do you see that? 25 DR. HELEN WHITWELL: Yes.

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1 MR. NIELS ORTVED: And going to the top 2 of the next page, page 19: 3 "There is evidence of generalized 4 cerebral edema in both cerebral 5 hemispheres." 6 DR. HELEN WHITWELL: Yes. 7 MR. NIELS ORTVED: 8 "In addition, there's evidence of a 9 subdural hematoma in the right parietal 10 area, which is -- is extending along 11 the phalax (phonetic)." 12 Correct? 13 DR. HELEN WHITWELL: Yes. 14 MR. NIELS ORTVED: And in paragraph 47 at 15 the -- towards the bottom of that page, Dr. Pearse goes 16 on to say: 17 "In a case such as this..." 18 I'm going to the last two (2) paragraphs. 19 "...if there is no other history of 20 external head trauma and particularly, 21 in view of the lack of evidence of 22 external head trauma, one would have to 23 consider strongly the diagnosis of 24 shaken baby. Other possibili -- other 25 possible ideologies would be an

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1 ischemic episode for some reason, but 2 this would not give a subdural 3 hematoma." 4 Over the page. 5 "In summary, I think this is strongly 6 suggestive of a shaken baby." 7 So I've read the accounts of the 8 clinicians accurately, correct? 9 DR. HELEN WHITWELL: Yes. 10 MR. NIELS ORTVED: And -- and you've told 11 us actually the -- the concerns of clinicians are to be 12 factored into the analysis done by the pathologist? 13 DR. HELEN WHITWELL: Correct. 14 MR. NIELS ORTVED: So Dr. Smith then 15 provide -- performs his examination. And -- and his 16 report is found at tab Number 30. And this is a 17 consultation issue, we'll call, correct? 18 DR. HELEN WHITWELL: Yes. 19 MR. NIELS ORTVED: And what -- what he 20 concludes -- and I'm looking at -- at page 3. So it's 21 Tab 30, 02249, page 3. In his summary of Abnormal 22 Findings, he notes subdural hemorrhage, correct? 23 DR. HELEN WHITWELL: Yes. 24 MR. NIELS ORTVED: Cerebral edema? 25 DR. HELEN WHITWELL: Yes.

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1 MR. NIELS ORTVED: And stopping at the 2 cerebral hemorrhage -- sorry, stopping at the subdural 3 hemorrhage. What you told us in your evidence yesterday, 4 quite fairly, was that you actually thought that this was 5 subdural hemorrhage on both sides, correct? 6 DR. HELEN WHITWELL: I did, yes. 7 MR. NIELS ORTVED: So there's subdural 8 hemorrhage, cerebral edema, optic nerve hemorrhage, and 9 retinal hemorrhage, correct? 10 DR. HELEN WHITWELL: Yes. 11 MR. NIELS ORTVED: In effect, what we 12 have here in Dustin is the triad? 13 DR. HELEN WHITWELL: We do, yes. 14 COMMISSIONER STEPHEN GOUDGE: What 15 paragraph is that, Mr. Ortved? 16 MR. NIELS ORTVED: That's -- sorry, that 17 is Dr. Smith's consultation report, it's Tab 30. 18 COMMISSIONER STEPHEN GOUDGE: Oh, okay. 19 MR. NIELS ORTVED: And it's 02 -- 02249. 20 COMMISSIONER STEPHEN GOUDGE: One (1) 21 more number. 22 MR. NIELS ORTVED: 022 -- 23 COMMISSIONER STEPHEN GOUDGE: -- 022149. 24 MR. ROBERT CENTA: 249. 25 MR. NIELS ORTVED: 002249.

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1 MR. NIELS ORTVED: Page 3. So it's items 2 1, 2, 3, and 4 under 1. 3 COMMISSIONER STEPHEN GOUDGE: All right. 4 5 CONTINUED BY MR. NIELS ORTVED: 6 MR. NIELS ORTVED: And what Dr. Smith 7 goes on to say there is that these findings are 8 pathognomic of Shaken Baby Syndrome, correct? 9 DR. HELEN WHITWELL: Yes. 10 MR. NIELS ORTVED: And I think what you 11 indicated to us yesterday is that this is a defenceable 12 conclusion in 1992. 13 DR. HELEN WHITWELL: Yes, that's correct. 14 MR. NIELS ORTVED: And pathognomic; I had 15 to look it up in the dictionary, it's specifically 16 characteristic of a particular disease. Do you agree 17 with the definition? 18 DR. HELEN WHITWELL: I haven't looked it 19 up, but it sounds -- it sounds correct. 20 MR. NIELS ORTVED: So, it actually, in 21 medical terminology, sounds very much like the Court of 22 Appeal's terminology -- a strong pointer, doesn't it? 23 DR. HELEN WHITWELL: Well, pathognomic to 24 me is -- is diagnostic. The Court of Appeal is saying a 25 strong -- a strong pointer. I mean, I think, as I said

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1 yesterday, in 1992 clinicians and pathologists would -- 2 most would have come up with -- with this sort of 3 statement. 4 I think this is the group that Dr. 5 Pollanen has referred to now where you have a young 6 infant with the triad and no objective evidence of 7 trauma, that is now the -- the difficult case. 8 MR. NIELS ORTVED: It's -- it's -- put it 9 this way, Dr. Whitwell, it's difficult for you, but it 10 actually is not so difficult for the Court of Appeal. 11 DR. HELEN WHITWELL: Well, yes, but no, I 12 accept that. Whether or not the Court of Appeal is the 13 correct place to judge scientific literature, I'm -- I'm 14 not clear about. 15 MR. NIELS ORTVED: Well -- we'll leave 16 that for another day, but -- but what the Court of Appeal 17 told us to look for are -- is in terms of, number one 18 (1), the severity of the injuries, and this little boy's 19 injuries were very severe. 20 DR. HELEN WHITWELL: Yes, whether or not 21 -- yes -- no, no, he had those findings. 22 MR. NIELS ORTVED: And they also told us 23 to look at the age of the child and here we have this two 24 (2) month old child with these very, very serious 25 injuries, correct?

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1 DR. HELEN WHITWELL: Correct. 2 MR. NIELS ORTVED: And -- and you -- you 3 adverted yesterday in your evidence to pneumonia and 4 chronic pneumonia. Dustin's problems went way beyond 5 pneumonia, didn't they? 6 DR. HELEN WHITWELL: Well, yes, he had 7 these inter-cranial findings, correct. 8 MR. NIELS ORTVED: Right. Thank you. 9 Can I turn to Gaurov? That is -- your report in Gaurov 10 is at Tab 32. 11 12 (BRIEF PAUSE) 13 14 MR. NIELS ORTVED: So again, if -- if I 15 could, it's 136013. 16 DR. HELEN WHITWELL: Sorry, is this -- 17 are you looking at my report? 18 MR. NIELS ORTVED: I'm looking at your 19 report -- 20 DR. HELEN WHITWELL: All right. 21 MR. NIELS ORTVED: -- Tab 32. You and I 22 were on the right page, but some others weren't. 136013. 23 There were are. So, turning to page 3 of -- of your 24 report, just to -- just to review some of the background 25 to this particular case, Dr. Whitwell, and you refer to

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1 these as background history and circumstances. 2 Again, this is also a 1992 case, like the 3 Dustin case, correct? 4 DR. HELEN WHITWELL: Yes. 5 MR. NIELS ORTVED: And looking to your 6 synopsis, what we have here is -- is a child who was five 7 (5) weeks of age, correct? 8 DR. HELEN WHITWELL: Yes. 9 MR. NIELS ORTVED: And the child 10 apparently was awake and fed at about 12:30 a.m. 11 DR. HELEN WHITWELL: Yes. 12 MR. NIELS ORTVED: Then went back to 13 sleep. 14 DR. HELEN WHITWELL: Yes. 15 MR. NIELS ORTVED: Shortly thereafter 16 started crying. 17 DR. HELEN WHITWELL: Yes. 18 MR. NIELS ORTVED: Father went to check 19 on him. 20 DR. HELEN WHITWELL: Yes. 21 MR. NIELS ORTVED: At which time he 22 purportedly went limp and turned blue, correct? 23 DR. HELEN WHITWELL: Correct. 24 MR. NIELS ORTVED: And on admission to 25 Scarborough Centenary Hospital, again his condition is

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1 very poor, correct? 2 DR. HELEN WHITWELL: Yes. 3 MR. NIELS ORTVED: He was transferred to 4 the Hospital for Sick Children. 5 DR. HELEN WHITWELL: Yes. 6 MR. NIELS ORTVED: And a -- a CT scan was 7 done on admission at -- at Sick Kids. 8 DR. HELEN WHITWELL: Yes. 9 MR. NIELS ORTVED: And what that scan 10 showed was bilateral subdural effusions, which you 11 described for us yesterday. 12 DR. HELEN WHITWELL: Yes. 13 MR. NIELS ORTVED: A right subdural 14 hematoma. 15 DR. HELEN WHITWELL: Yes. 16 MR. NIELS ORTVED: Brain edema. 17 DR. HELEN WHITWELL: Yes. 18 MR. NIELS ORTVED: And bilateral retinal 19 hemorrhages, correct? 20 DR. HELEN WHITWELL: Yes. 21 MR. NIELS ORTVED: Now again, you've been 22 fair in your report at page number 5, numbered paragraph 23 1: 24 "There was sufficient information to 25 raise the issue of the death being

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1 suspicious." 2 DR. HELEN WHITWELL: Correct. 3 MR. NIELS ORTVED: And you stand by that? 4 DR. HELEN WHITWELL: Yes. 5 MR. NIELS ORTVED: Even before we go 6 further, just on the basis of what you've told us all 7 ready was noted on admission. What we have here are the 8 constellation of injuries that the Court of Appeal has 9 associated with non-accidental head injury, correct? 10 DR. HELEN WHITWELL: Uses as a point or 11 two (2). 12 MR. NIELS ORTVED: Uses as a point or two 13 (2). So then coming to the clinical findings. If I 14 could take you to the -- to the overview report, that's 15 at Tab number 34. And that's 143828, Mr. Registrar, page 16 number 8. DR. HELEN WHITWELL: Yes. 17 MR. NIELS ORTVED: Sorry, paragraph 17. 18 DR. HELEN WHITWELL: Yes. 19 MR. NIELS ORTVED: Sorry. What am I 20 doing here? 21 22 (BRIEF PAUSE) 23 24 MR. NIELS ORTVED: So what paragraph 17 25 confirms is that fundoscopic examination on admission

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1 showed bilateral retinal hemorrhages, correct? 2 DR. HELEN WHITWELL: Correct. 3 MR. NIELS ORTVED: And then at paragraph 4 34, there's reference to Dr. Bohn. 5 Dr. Bohn -- you -- have you encountered 6 his name before? He's the Assistant Director of the 7 clinical -- of the Critical Care Unit at Sick Children's 8 Hospital. 9 DR. HELEN WHITWELL: I'm afraid -- 10 MR. NIELS ORTVED: You may have. 11 DR. HELEN WHITWELL: -- I'm afraid I'm 12 not sure if I have or not, this being a lot of names. 13 MR. NIELS ORTVED: As the -- as the 14 responsible physician, he was obliged to complete the -- 15 the morgue death report as reported in paragraph 34, and 16 he certified the death as head injury consistent with 17 Shaken Baby Syndrome. 18 I've read that correctly? 19 DR. HELEN WHITWELL: You have. 20 MR. NIELS ORTVED: If you turn back to 21 page number 10, you have a reference there to a note by 22 Dr. McGreal, who I'll tell you was a neurologist at the 23 Hospital for Sick Children, and what he notes at 24 paragraph 22, Dr. Whitwell is: 25 "Opthomal -- opthal [I guess he's

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1 referring to the opthamology report] 2 bilateral retinal hemorrhages, causes, 3 query shaken baby." 4 Correct? 5 DR. HELEN WHITWELL: Yes. He also says, 6 "query near-miss SIDS". 7 MR. NIELS ORTVED: Quer -- query near- 8 miss SIDS. And -- and you know enough about clinicians 9 that in their differential diagnosis they put what they 10 think is the most likely first and -- followed by those 11 to which -- which should always be factored in? 12 DR. HELEN WHITWELL: Yes, I mean, it's 13 diffi -- difficult to say, but often there's a list of 14 what's called differential diagnosis. How strongly or 15 otherwise it was in this case, I can't say. 16 MR. NIELS ORTVED: Right. And then 17 paragraph 24 on the next page, there's reference to Dr. 18 Huyer, a pediatrician, who makes a note as follows: 19 "Clinical picture and -- and laboratory 20 data suggests Shaken Baby Syndrome. 21 Nothing to explain provided tonight." 22 Correct? 23 DR. HELEN WHITWELL: Yes. 24 MR. NIELS ORTVED: And these -- these 25 clinicians views are to be taken into account. These are

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1 physicians, Dr. Bohn, Dr. McGreal, Dr. Huyer at -- at 2 Toronto's principal children's hospital, who see a ton of 3 injured children, correct? 4 DR. HELEN WHITWELL: Correct. 5 MR. NIELS ORTVED: So Dr. Smith does the 6 post-mortem -- and that's to be found at Tab number 35, 7 001479, and I'm looking at page number 4. 8 DR. HELEN WHITWELL: Yes. 9 MR. NIELS ORTVED: And in the summary of 10 abnormal findings, what we see there -- leaving aside the 11 -- the epidermal hemorrhage, acute, at the spinal cord, 12 but there's: 13 "Central nervous system trauma, acute, 14 consisting of [in 1.2] subdural 15 hemorrhage, acute." 16 Correct? 17 DR. HELEN WHITWELL: Yes. 18 MR. NIELS ORTVED: 19 "1.3. Subarachnoid hemorrhage, acute." 20 Correct? 21 DR. HELEN WHITWELL: Yes. 22 MR. NIELS ORTVED: 23 "1.4. Retinal hemorrhages, acute, 24 right and left." 25 Correct?

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1 DR. HELEN WHITWELL: Yes. 2 MR. NIELS ORTVED: And: 3 "1.5. Cerebral edema." 4 Correct? 5 DR. HELEN WHITWELL: Correct. 6 MR. NIELS ORTVED: So based on that 7 constellation of findings, Dr. Smith concludes, on the 8 next page under cause of death, "head injury," correct? 9 DR. HELEN WHITWELL: Correct. 10 MR. NIELS ORTVED: And again, in all 11 fairness, this was completely defensible in 1992? 12 DR. HELEN WHITWELL: Yes. And I think 13 I've enlarged on that. 14 MR. NIELS ORTVED: And these -- these 15 injuries again are -- are of a particularly serious 16 nature -- 17 DR. HELEN WHITWELL: Yes. 18 MR. NIELS ORTVED: -- in a five (5) week 19 old baby -- 20 DR. HELEN WHITWELL: Yes, yes. 21 MR. NIELS ORTVED: -- correct? And -- 22 and you've -- you've adverted in the course of your 23 evidence to -- to the possibility of re-bleeding. Do -- 24 DR. HELEN WHITWELL: Correct. 25 MR. NIELS ORTVED: -- you recall that

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1 evidence? And that was something that you dealt with in 2 your -- your very -- summary review form, which is to be 3 found at your Tab 33 -- 4 DR. HELEN WHITWELL: Yes. 5 MR. NIELS ORTVED: -- 001491. And what 6 you say in your review form is -- is this re-bleeding 7 theory would almost certainly have been dismissed by both 8 pathologist and particularly clin -- clinicians, correct? 9 DR. HELEN WHITWELL: In 1992, yes. 10 MR. NIELS ORTVED: Right. And you stand 11 by that? 12 DR. HELEN WHITWELL: For 1992, yes? 13 MR. NIELS ORTVED: Sure. That's when -- 14 DR. HELEN WHITWELL: Yes. 15 MR. NIELS ORTVED: -- that's when Dr. 16 Smith -- 17 DR. HELEN WHITWELL: Yes. No, no -- 18 MR. NIELS ORTVED: -- was looking at it. 19 DR. HELEN WHITWELL: -- yes. 20 MR. NIELS ORTVED: And you've told us, 21 based on your report, that you consider Dr. Smith's 22 conclusion in this case reasonable at the time? 23 DR. HELEN WHITWELL: At the time. 24 MR. NIELS ORTVED: In that same review 25 form, to which I've just referred, 001491 -- 001491, page

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1 number 2, what you do is you indicate that it would be 2 the norm for most pathologists in certainly -- 3 conditions, that this would be a non-accidentally head in 4 -- non-accidental injury with a Shaken Baby Syndrome -- 5 DR. HELEN WHITWELL: Correct. 6 MR. NIELS ORTVED: -- referencing the 7 triad, correct? 8 DR. HELEN WHITWELL: Correct. 9 MR. NIELS ORTVED: You go on to make the 10 note, in Note C of that form: 11 "If I was reviewing this case per the 12 Goldsmith review, it is highly likely 13 this case would have been referred to 14 the Court of Appeal." 15 But that's not to say that this would be 16 one (1) of the three (3) out of eighty-eight (88) cases 17 that might get referred on by the Court of Appeal? 18 DR. HELEN WHITWELL: No, I mean, I'm not 19 -- I'm not familiar -- I'm fam -- familiar with a number 20 of the cases, and other cases have been referred to the 21 Court of Appeal by other routes, aside from the Goldsmith 22 report. 23 MR. NIELS ORTVED: Oh, I see. 24 So it's not to suggest that -- that if it 25 were -- if they were applying the Goldsmith criteria, it

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1 would get referred. 2 DR. HELEN WHITWELL: The -- the 3 subsequent Goldsmith review of the -- the so-called SPS 4 cases identi -- as you correctly say, identified a 5 number, but there are other cases which are going on 6 other routes back to the Appeal Court by the CCRC. 7 MR. NIELS ORTVED: I see. Okay. 8 COMMISSIONER STEVEN GOUDGE: But by that 9 last sentence, do you mean that if this had been reviewed 10 by the Goldsmith review, it would have been one (1) of -- 11 there were three (3) others -- referred to the Court of 12 Appeal? 13 DR. HELEN WHITWELL: I don't know, 14 because the -- the review on the Goldsmith's case, I -- I 15 haven't got which cases that were -- he -- he referred 16 back, and in fact no pathologist was identified in 17 reviewing those cases. 18 COMMISSIONER STEVEN GOUDGE: What do you 19 mean by that last sentence? That's what I'm getting at. 20 The last sentence on your screen there. 21 DR. HELEN WHITWELL: I'm sorry. You mean 22 here? 23 COMMISSIONER STEVEN GOUDGE: You say: 24 "If I was reviewing this case as per 25 Goldsmith review, it is highly likely

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1 this case would have been referred to 2 the CCRC." 3 DR. HELEN WHITWELL: Yes. It appears 4 I've -- it -- it may well have been referred to the CCRC, 5 and potentially onwards, because of the -- the issues of 6 A) the triad and the pointer issue, and also B) the issue 7 of potential re-bleeding. 8 COMMISSIONER STEVEN GOUDGE: Yeah. But-- 9 DR. HELEN WHITWELL: It's -- 10 COMMISSIONER STEVEN GOUDGE: -- my 11 question wasn't quite that -- 12 DR. HELEN WHITWELL: I'm sorry. 13 COMMISSIONER STEVEN GOUDGE: -- that 14 penetrating, I'm afraid, Dr. Whitwell. 15 I understood the Goldsmith Review to 16 review eighty-eight (88) cases, of which three (3) then 17 get referred to the Court of Appeal? 18 MR. NIELS ORTVED: I might be able to 19 help you -- 20 COMMISSIONER STEVEN GOUDGE: Am I getting 21 that wrong? 22 23 CONTINUED BY MR. NIELS ORTVED: 24 MR. NIELS ORTVED: You're getting it a 25 bit wrong.

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1 So -- so as a result of the Goldsmith 2 review, he referred eighty-eight (88) cases back to the 3 Criminal Cases Review Commission? That's your CCRC. 4 DR. HELEN WHITWELL: No, no, no. He -- 5 COMMISSIONER STEVEN GOUDGE: I don't 6 think that's right. 7 DR. HELEN WHITWELL: -- and I'm -- I'm 8 sorry. I've only -- I've only -- 9 10 CONTINUED BY MR. NIELS ORTVED: 11 MR. NIELS ORTVED: So that's PFP033302, 12 and... 13 14 (BRIEF PAUSE) 15 16 MR. NIELS ORTVED: it's found at -- 17 DR. HELEN WHITWELL: So -- so where 18 aboutS are we? 19 MR. NIELS ORTVED: -- it's found at new 20 Volume I, Tab 20. 21 DR. HELEN WHITWELL: Oh, right. Okay. 22 MR. NIELS ORTVED: Paragraph 21. 23 DR. HELEN WHITWELL: Sorry, Tab...? 24 MR. NIELS ORTVED: Tab 20. 25 DR. HELEN WHITWELL: Yes, okay.

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1 MR. NIELS ORTVED: Paragraph 21. 2 DR. HELEN WHITWELL: Yes. 3 MR. NIELS ORTVED: You with me? 4 DR. HELEN WHITWELL: Yes. 5 MR. NIELS ORTVED: So as I understand it, 6 there were eighty-five (85) cases that were considered by 7 the Criminal Cases Review Commission of which three (3) 8 were referred to the -- referred on. 9 Am I correct? 10 DR. HELEN WHITWELL: Eighty-eight (88)? 11 COMMISSIONER STEVEN GOUDGE: I don't 12 think that's right. 13 MR. MARK SANDLER: No, that's not right. 14 DR. HELEN WHITWELL: No, I don't -- 15 MR. MARK SANDLER: If you read the 16 paragraph it makes it quite clear it's the Goldsmith 17 reviewing those cases -- 18 19 CONTINUED BY MR. NIELS ORTVED: 20 MR. NIELS ORTVED: Well, let's read it 21 then. Paragraph 21: 22 "The conclusion of this review is that 23 of the outstanding Shaken Baby Syndrome 24 cases the vast majority, eighty-five 25 (85) out of eighty-eight(88), do not

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1 give cause for concern. In the 2 remaining three (3) -- in the main -- 3 in the remaining three (3) steps have 4 been taken so that the defendants know 5 their cases have been identified by the 6 Review as giving rise to concern. And 7 I've invited the defendants to consider 8 themselves either appealing to the 9 Court of Appeal directly or with the 10 assistance of the Criminal Cases Review 11 Commission." 12 COMMISSIONER STEPHEN GOUDGE: Yes. 13 MR. NIELS ORTVED: So that makes it 14 clear. 15 COMMISSIONER STEPHEN GOUDGE: Yes. The 16 eighty-eight (88) cases are reviewed by Dr. Goldsmith's 17 people? 18 MR. NIELS ORTVED: Correct. 19 DR. HELEN WHITWELL: Correct. But -- 20 but, in fact, in then goes on to say that another nine 21 (9) had already been identified. 22 COMMISSIONER STEPHEN GOUDGE: Right. 23 DR. HELEN WHITWELL: I think they were 24 identified in the earlier... 25 MR. NIELS ORTVED: Right.

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1 COMMISSIONER STEPHEN GOUDGE: And back to 2 my mundane question, Dr. Whitwell, when you say in that 3 last sentence, if this case had been reviewed -- if I had 4 been reviewing it according to the Goldsmith criteria, it 5 would have been referred, you say, to the Court of 6 Appeal. 7 And I take it had you been -- 8 DR. HELEN WHITWELL: Well, that's -- that 9 would be a -- a professional view. 10 COMMISSIONER STEPHEN GOUDGE: Yes. I 11 take it what you meant by that is had I been sitting on 12 what is called -- 13 DR. HELEN WHITWELL: Yes, that's correct. 14 COMMISSIONER STEPHEN GOUDGE: -- by Lord 15 Goldsmith the -- 16 DR. HELEN WHITWELL: Yes. 17 COMMISSIONER STEPHEN GOUDGE: -- Central 18 Review Team, you would have referred it back -- 19 DR. HELEN WHITWELL: I would have -- 20 COMMISSIONER STEPHEN GOUDGE: -- the way 21 three (3) others were? 22 DR. HELEN WHITWELL: -- suggested to be 23 referred back. 24 COMMISSIONER STEPHEN GOUDGE: Yes. 25 DR. HELEN WHITWELL: In fact, there was

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1 another nine (9) who had already been referred. 2 COMMISSIONER STEPHEN GOUDGE: Okay. So I 3 understand now. 4 5 CONTINUED BY MR. NIELS ORTVED: 6 MR. NIELS ORTVED: Okay. Thank you for 7 clearing that up. 8 Can we turn to Kassandra. So that's 9 your -- 10 COMMISSIONER STEPHEN GOUDGE: Sorry, Mr. 11 Ortved, and, you know, if we have to run a little longer 12 to do this, but can we go back, Christopher, to Dr. 13 Whitwell's form because there was a sentence in the 14 second paragraph that I did not understand. It is purely 15 mu fault, I am sure. 16 MR. NIELS ORTVED: So that -- Tab -- Tab 17 33, and it's 001491. 18 COMMISSIONER STEPHEN GOUDGE: Yes, yes. 19 No, it is on the screen now, Dr. Whitwell. Just look at 20 the screen. It is the last sentence of Note B. 21 "This would not be the usual view of UK 22 --" 23 DR. HELEN WHITWELL: Yeah, it should be-- 24 COMMISSIONER STEPHEN GOUDGE: "--forensic 25 pathologists --"

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1 DR. HELEN WHITWELL: -- although -- 2 COMMISSIONER STEPHEN GOUDGE: "-- now all 3 together may well still --" 4 DR. HELEN WHITWELL: It should -- 5 although. 6 COMMISSIONER STEPHEN GOUDGE: Okay. 7 DR. HELEN WHITWELL: Yeah. 8 COMMISSIONER STEPHEN GOUDGE: So that 9 should read: 10 "although may well still prevail --" 11 DR. HELEN WHITWELL: Yeah. 12 COMMISSIONER STEPHEN GOUDGE: "-- with 13 the pediatricians"? 14 DR. HELEN WHITWELL: Correct. 15 COMMISSIONER STEPHEN GOUDGE: Okay. 16 Thank you. 17 COMMISSIONER STEPHEN GOUDGE: Sorry, Mr. 18 Ortved. 19 DR. HELEN WHITWELL: I'm sorry, that's -- 20 COMMISSIONER STEPHEN GOUDGE: No, I just 21 -- for once it was not me. 22 23 CONTINUED BY MR. NIELS ORTVED: 24 MR. NIELS ORTVED: So then moving on to 25 Kassandra.

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1 DR. HELEN WHITWELL: Sorry, where do you 2 want me to go now? 3 MR. NIELS ORTVED: Yeah, good question. 4 Tab 41. Tab 41 of your binder. 5 DR. HELEN WHITWELL: Yeah. 6 MR. NIELS ORTVED: And for the Registrar, 7 it's the overview report, 143173. 8 9 (BRIEF PAUSE) 10 11 MR. NIELS ORTVED: I'm looking at page 12 number 6, paragraph 12; the third paragraph of that 13 paragraph, Dr. Whitwell. 14 And as you know, what this case stemmed 15 from was a long and unfortunate custody battle among the 16 family, correct? 17 DR. HELEN WHITWELL: I was aware in -- in 18 general terms. 19 MR. NIELS ORTVED: And -- and this 20 paragraph synopsizes some of it, so "from that point on", 21 which is -- is from the point in time that custody to 22 assigned to dad and his new wife. 23 "From that point on numerous reports of 24 alleged child abuse as concerning 25 Kassandra were received by police with

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1 Kassandra's mother as the complainant. 2 On each incident, there were -- there 3 was facial bruising, and on one (1) 4 occasion an alleged cigarette burn. 5 Each report was investigated by police 6 and the Children's Aid Society and were 7 filed as unsolved. The victim would 8 explain away the injuries stating that 9 either she fell or a sibling pushed her 10 causing the bruises. These complaints 11 stem over a time period from May 1989 12 until the last report on the 14th of 13 February, 1991." 14 All right. And -- and I know from your 15 own report, you're -- you -- you're aware that there was 16 an unfortunate background to this case? 17 DR. HELEN WHITWELL: Yes. 18 MR. NIELS ORTVED: And then if -- if we 19 can turn to your report, it's in -- at the prior tab, or 20 two (2) -- two (2) tabs prior, Tab 39, 136020, page 21 number 4. 22 DR. HELEN WHITWELL: Yes. 23 MR. NIELS ORTVED: And you related this 24 history to us earlier today. In effect, you know that 25 Kassandra was admitted to Peel Memorial Hospital in

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1 February of 1991, correct? 2 DR. HELEN WHITWELL: Yes. 3 MR. NIELS ORTVED: And then she was 4 readmitted to Peel Memorial Hospital and then transferred 5 to Sick Children's Hospital in April of 1991? 6 DR. HELEN WHITWELL: Yes. 7 MR. NIELS ORTVED: And when she was 8 admitted, both to Peel Hospital and to Sick Children's 9 Hospital, again she was in very dire straits, correct? 10 DR. HELEN WHITWELL: Yes. 11 MR. NIELS ORTVED: And what we know is 12 that the CT Scan showed bilateral cerebral edema, 13 ophthalmic exam demonstrated bilateral retinal 14 hemorrhages and detachment, correct? 15 DR. HELEN WHITWELL: Yes. 16 17 (BRIEF PAUSE) 18 19 DR. HELEN WHITWELL: Where are we looking 20 now, I'm sorry? 21 MR. NIELS ORTVED: So, that's to be found 22 in the overview report, page number 30, paragraph 91. 23 DR. HELEN WHITWELL: Yes. 24 MR. NIELS ORTVED: 143173. 25 COMMISSIONER STEPHEN GOUDGE: Page 30.

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1 MR. NIELS ORTVED: Page 30? Sorry, did I 2 say something else? 3 COMMISSIONER STEPHEN GOUDGE: No, I was 4 just helping you. 5 6 CONTINUED BY MR. NIELS ORTVED: 7 MR. NIELS ORTVED: You're with me. So 8 I'm looking at paragraph 91: 9 "Kassandra was transported to the 10 Hospital for Sick Children and was 11 admitted to the Pediatric Intensive 12 Care Unit. Her pupils were fixed and 13 dilated, but she moved spontaneously; 14 she did not respond to pain. A CT Scan 15 at Sick Children's Hospital showed 16 bilateral cerebral edema and an 17 ophthalmic exam demonstrated bilateral 18 retinal hemorrhage and detachment." 19 Correct? 20 DR. HELEN WHITWELL: Yes. 21 MR. NIELS ORTVED: Back to your report, 22 136020. What you say in the first full paragra -- or the 23 -- the second paragraph there is that -- 24 DR. HELEN WHITWELL: I'm sorry, which 25 page are we at?

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1 MR. NIELS ORTVED: Sorry, your report. 2 DR. HELEN WHITWELL: Yes. 3 MR. NIELS ORTVED: Page number 4. 4 DR. HELEN WHITWELL: Page number 4, thank 5 you. 6 7 (BRIEF PAUSE) 8 9 MR. NIELS ORTVED: You say -- and I'm 10 looking at the second paragraph: 11 "Previous medical history indicated 12 that Kassandra had been admitted to 13 Peel Memorial Hospital in February 1991 14 and had undergone a CT Scan at that 15 time. This was reported as showing as 16 cerebral edema. She was discharged on 17 March 8th. She had been noted to have 18 a number of bruises on admission in 19 February. She was also noted to be 20 dehydrated and was vomiting. At that 21 time, the suspicion of child abuse was 22 raised by the various hospital 23 personnel. She improved and following 24 discharge, a repeat CT Scan was 25 organized."

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1 And then you refer to her admission to the 2 Hospital for Sick Children. 3 "The original Peel Memorial Scan was 4 reviewed and subdural hematomas were 5 identified." 6 And then you make reference to her having 7 died on the 10th of April. And I won't go on to the 8 rest. So, what we have in this history, and I'm 9 summarizing, obviously, is -- is a very clear indication 10 of potential prior child abuse, correct? 11 DR. HELEN WHITWELL: Yes. 12 MR. NIELS ORTVED: And if we go to the 13 overview report, 143173, Tab 41 of your document, page 14 number 30, again looking at the reaction of some of these 15 clinicians, you have first at paragraph number 92, you 16 see a reference there to Dr. Terry Smith. 17 DR. HELEN WHITWELL: Yes. 18 MR. NIELS ORTVED: Dr. Smith was the 19 receiving doctor at the emergency department at Toronto - 20 - at the Hospital for Sick Children, and in the first 21 full paragraph there -- single spaced paragraph, Dr. 22 Smith indicates that it appeared to him a possible case 23 of child abuse, correct? 24 Do you see that reference in the bottom of 25 the --

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1 DR. HELEN WHITWELL: I'm sorry. Which -- 2 I'm sorry. Which paragraph? 3 MR. NIELS ORTVED: Paragraph 92. 4 DR. HELEN WHITWELL: Oh, yes. Okay. 5 Yep. 6 MR. NIELS ORTVED: Okay? 7 DR. HELEN WHITWELL: Yep. 8 MR. NIELS ORTVED: And then if you go 9 forward to page 32. 10 DR. HELEN WHITWELL: Page 32. 11 MR. NIELS ORTVED: Yes; paragraph 96. 12 DR. HELEN WHITWELL: Yes. 13 MR. NIELS ORTVED: You see a reference to 14 Dr. Dr. Kobayashi, who's a neurologist at the Hospital 15 for Sick Children. 16 DR. HELEN WHITWELL: Yes. 17 MR. NIELS ORTVED: And he indicates he 18 found no brain activity; characterizes it as a typical 19 abuse injury, correct? 20 DR. HELEN WHITWELL: Yes. 21 MR. NIELS ORTVED: Next paragraph, Dr. 22 Micowitz, also a neurologist at the hospital, felt high 23 probability of abuse, correct? 24 DR. HELEN WHITWELL: Correct. 25 MR. NIELS ORTVED: Page number 33 -- it

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1 starts at the bottom of -- of 32, but Dr. Bunic, who's an 2 opthamologist, refers at the top of page 33 to swelling 3 of both optic nerves, and hemorrhages in the retina which 4 were widespread, correct? 5 DR. HELEN WHITWELL: Yes. 6 MR. NIELS ORTVED: And the last sentence 7 of that single spaced paragraph: 8 "It was my impression that the findings 9 were compatible with head trauma and 10 child abuse. I saw this child only the 11 once." 12 Correct? 13 DR. HELEN WHITWELL: Yes. 14 MR. NIELS ORTVED: And Dr. Chow, who's 15 also an opthamologist, in the next paragraph states: 16 "There was bilateral detachment in the 17 retina. These findings were consistent 18 with traumatic injuries." 19 Correct? 20 DR. HELEN WHITWELL: Yes. 21 MR. NIELS ORTVED: And -- and then 22 finally at -- at para -- at page 34; paragraph 105; Dr. 23 Bohn, whom I've identified to you as the Director of the 24 Unit, notes there -- 25 DR. HELEN WHITWELL: I'm sorry. Which

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1 page are we on now? 2 MR. NIELS ORTVED: Sorry. Page 34. 3 DR. HELEN WHITWELL: Oh, thirty-four 4 (34). Sorry. 5 MR. NIELS ORTVED: Paragraph 105. 6 DR. HELEN WHITWELL: Okay. Yep. 7 MR. NIELS ORTVED: There's reference 8 there to Dr. Bohn, and Dr. Bohn, in the second single 9 spaced paragraph, says: 10 "I have quite a bit of experience with 11 cases of acute child abuse as a result 12 of my work on the Unit. Based on that 13 experience, I can say that based on the 14 medical evidence I observed, 15 Kassandra's injury was consistent with 16 a non-accidental injury to the brain." 17 So certainly as far as the clinicians were 18 concerned, this was a highly suspicious case? 19 DR. HELEN WHITWELL: Correct. 20 MR. NIELS ORTVED: And they were correct 21 in associating these particular injuries that Kassandra 22 demonstrated as being associate with non-accidental head 23 injury? 24 DR. HELEN WHITWELL: At the time, that -- 25 it -- it's very difficult for me to comment on I --

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1 isolated cases of evidence, and -- and just simply agree. 2 I mean -- I'm afraid, because you're 3 reading out what they -- they've said. 4 I -- I've reviewed the case now, from a 5 pathological aspect, so this is all factual, which I 6 can't challenge one way or the other. I wouldn't be able 7 to. 8 MR. NIELS ORTVED: Well, what I'm saying 9 to you is that they were reflecting on injuries that they 10 saw while this child was still alive. 11 DR. HELEN WHITWELL: Correct. 12 MR. NIELS ORTVED: Which included 13 subdural hemorrhage, -- 14 DR. HELEN WHITWELL: Yes. 15 MR. NIELS ORTVED: -- cerebral edema, -- 16 DR. HELEN WHITWELL: Yes. 17 MR. NIELS ORTVED: -- retinal 18 hemorrhages, 19 DR. HELEN WHITWELL: Yes. 20 MR. NIELS ORTVED: -- detachment of the 21 retina -- 22 DR. HELEN WHITWELL: Yes. 23 MR. NIELS ORTVED: -- which have an 24 association with non-accidental head injury, correct? 25 DR. HELEN WHITWELL: Correct.

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1 MR. NIELS ORTVED: Coming to your area of 2 speciality, Dr. Smith does the autopsy, and that's found 3 at Tab 42 -- 4 DR. HELEN WHITWELL: Yes. 5 MR. NIELS ORTVED: -- of your binder. 6 And it's 001399. And I'm looking at page number 7, Mr. 7 Registrar. 8 DR. HELEN WHITWELL: Yes. 9 MR. NIELS ORTVED: Under the summary of 10 abnormal findings, Dr. Smith notes in sub 12: 11 "Hematoma of scalp, right occipital, 12 recent..." 13 DR. HELEN WHITWELL: Yes. 14 MR. NIELS ORTVED: 15 "...i.e., bruise on the back of the 16 scalp." 17 Correct? 18 DR. HELEN WHITWELL: Yes, that's the one 19 that I covered this morning with -- 20 MR. NIELS ORTVED: Correct. 21 DR. HELEN WHITWELL: -- your colleague. 22 MR. NIELS ORTVED: Indicating an impact? 23 DR. HELEN WHITWELL: Impact, yes. 24 MR. NIELS ORTVED: 25 "1.3. Subdural hemorrhage, recent."

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1 Correct? 2 DR. HELEN WHITWELL: Yes. 3 MR. NIELS ORTVED: 4 "1.4. Subarachnoid hemorrhage, focal." 5 Correct? 6 DR. HELEN WHITWELL: Yes. 7 MR. NIELS ORTVED: "1.5. Cerebral 8 edema." Correct? 9 DR. HELEN WHITWELL: Yes 10 MR. NIELS ORTVED: "1.6. Optic nerve 11 hemorrhage, bilateral." Correct? 12 DR. HELEN WHITWELL: Yes. 13 MR. NIELS ORTVED: "1.7. Retinal 14 hemorrhage, bilateral." Correct? 15 DR. HELEN WHITWELL: Correct. 16 MR. NIELS ORTVED: "...and retinal 17 detachment, bilateral." Correct? 18 DR. HELEN WHITWELL: Yes. 19 MR. NIELS ORTVED: In the conclusion, on 20 Dr. Smith's part, is this supports a diagnosis of 21 craniocerebral trauma -- 22 DR. HELEN WHITWELL: Yes. 23 MR. NIELS ORTVED: -- correct? 24 DR. HELEN WHITWELL: Yes. 25 MR. NIELS ORTVED: And those injuries do?

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1 DR. HELEN WHITWELL: Yes. 2 MR. NIELS ORTVED: And so what we have, 3 again, here are -- are the findings that we see and are 4 characterized as the triad, correct? 5 DR. HELEN WHITWELL: Yes, that's correct. 6 MR. NIELS ORTVED: Don't forget, this is 7 a -- 8 DR. HELEN WHITWELL: Yes. 9 MR. NIELS ORTVED: -- 1991 -- 10 DR. HELEN WHITWELL: Yes. 11 MR. NIELS ORTVED: -- case. 12 DR. HELEN WHITWELL: Yes. 13 MR. NIELS ORTVED: And -- and in addition 14 to the injuries pointing to the tri -- well, I don't want 15 to get this terminology mixed up. In addition to the 16 injuries characterized as the triad, what you have is 17 evidence in addition of impact, correct? 18 DR. HELEN WHITWELL: Yes. 19 MR. NIELS ORTVED: So then turning to 20 your opinion. If we look at your review form, and it's 21 the short document. It's to be found at your Tab 40. 22 DR. HELEN WHITWELL: Yes. 23 MR. NIELS ORTVED: It's document 001397. 24 DR. HELEN WHITWELL: Yes. 25 MR. NIELS ORTVED: And I'm looking at

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1 page number 2, Mr. Commissioner. 2 COMMISSIONER STEPHEN GOUDGE: Mm-hm. 3 4 CONTINUED BY MR. NIELS ORTVED: 5 MR. NIELS ORTVED: What you say there is 6 the cause of death reasonable based on available 7 information, what you say is: 8 "Probably would have been given by 9 clinicians, pathologists in 1991, but 10 alternative non-traumatic mechanisms 11 not completed explored." 12 Correct? 13 DR. HELEN WHITWELL: Correct. 14 MR. NIELS ORTVED: So just dealing with 15 the non-traumatic mechanisms that -- you've discussed 16 that with us this morning, and that's in relation to the 17 possible fits, correct? 18 DR. HELEN WHITWELL: Correct, yes. 19 MR. NIELS ORTVED: And I'm suggesting to 20 you simply, Dr. Whitwell, that epilepsy might -- might 21 result in brain swelling, but -- but it would be unlikely 22 to result in the retinal hemorrhages and the -- and the 23 retinal detachment? 24 DR. HELEN WHITWELL: Well, there -- there 25 is a debate in the ophthalmic literature in terms of

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1 whether retinal hemorrhages on detachment can occur in 2 the presence of brain swelling. I'm not an expert, 3 ocular pathologist or opthamologist, but I feel, you 4 know, I should raise that. 5 MR. NIELS ORTVED: Well -- well, you 6 raised that as part of your hypothesis. 7 DR. HELEN WHITWELL: Correct. 8 MR. NIELS ORTVED: As part of your 9 hypothesis, you said that the brain swelling can produce 10 retinal hemorrhages. 11 DR. HELEN WHITWELL: The hy -- it's a 12 hypothesis, so that was a postulate, yes. 13 MR. NIELS ORTVED: And it was rejected by 14 the Court of Appeal. 15 DR. HELEN WHITWELL: That -- the 16 hypothesis, in that sense, was rejected, but I think the 17 issue retinal hemorrhages and brain swelling per se, in 18 relation to raised inter-cranial pressure, I -- I think 19 the debate on that still goes on. 20 MR. NIELS ORTVED: Okay, but going back 21 to 1991, you've already conceded to the Commissioner this 22 morning that head injury or death due to craniocerebral 23 trauma was reasonable in 1991. 24 DR. HELEN WHITWELL: Yes, that's correct. 25 MR. NIELS ORTVED: And -- and I'm

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1 suggesting to you, having regard to even what we know 2 today, there are -- there is a community of pathologists 3 and clinicians who would still take the view that the 4 injuries demonstrated by Kassandra indicates head injury 5 in 2007. 6 DR. HELEN WHITWELL: Yes, that's correct. 7 What you had was my opinion this morning. 8 MR. NIELS ORTVED: Right. Thank you. 9 Now, Mr. Commissioner, I don't know when you plan to take 10 your -- 11 COMMISSIONER STEPHEN GOUDGE: Whenever 12 suits you. How are you getting along? 13 MR. NIELS ORTVED: I'm well within my 14 time. 15 COMMISSIONER STEPHEN GOUDGE: Okay, why 16 don't we break -- do you want to break now for fifteen 17 (15) minutes -- take our afternoon break now, would that 18 help you? 19 MR. NIELS ORTVED: Yes, it would -- this 20 would be a convenient time. 21 COMMISSIONER STEPHEN GOUDGE: Okay, so 22 why don't we break now until 3:15 and just to let people 23 work out the rest of their days. We'll go until you're 24 finished -- 25 MR. NIELS ORTVED: Correct.

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1 COMMISSIONER STEPHEN GOUDGE: -- today. 2 And can you do it in an hour and a quarter when we come 3 back, if we come back at 3:15, do you think? We're not 4 holding you to it. Should we go after 4:30, that's 5 really the question? 6 MR. NIELS ORTVED: I -- I can't promise 7 three (3) -- I can't promise an hour and fifteen (15) 8 minutes, but I would ex -- I would think an hour and a 9 half. 10 COMMISSIONER STEPHEN GOUDGE: Okay, well, 11 we'll shoot for an hour and fifteen (15), and if we have 12 to take an extra five (5) or ten (10), we'll take it. 13 MR. NIELS ORTVED: Thank you. 14 COMMISSIONER STEPHEN GOUDGE: We'll break 15 now until 3:15. 16 17 --- Upon recessing at 3:00 p.m. 18 --- Upon resuming at 3:17 p.m. 19 20 THE REGISTRAR: All rise. Please be 21 seated. 22 COMMISSIONER STEPHEN GOUDGE: Mr. 23 Ortved...? 24 25 CONTINUED BY MR. NIELS ORTVED:

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1 MR. NIELS ORTVED: Thank you, Mr. 2 Commissioner. So now I want to move on, Dr. Whitwell, 3 and consistent with this thesis about systemic issues and 4 -- and growth of knowledge, and I want to turn to the 5 issue of short falls. 6 And you'll recall the -- the statement in 7 the -- 8 DR. HELEN WHITWELL: I'm sorry. 9 MR. NIELS ORTVED: That's all right. 10 COMMISSIONER STEPHEN GOUDGE: That's 11 usually me, Dr. Whitwell, so I'm glad to be joined. 12 DR. HELEN WHITWELL: I think I've got -- 13 there's an awful lot of files and I'm getting a bit 14 confused by them all. 15 16 CONTINUED BY MR. NIELS ORTVED: 17 MR. NIELS ORTVED: This is the computer 18 era. We're the paperless society, Dr. Whitwell. 19 DR. HELEN WHITWELL: Yes, I thought that 20 before, actually. There seem to be a lot of trees in 21 here. 22 MR. NIELS ORTVED: I took you to the 23 Cordner report previously, Dr. Whitwell, and that's found 24 at your new Volume I -- additional Volume I, Tab number 25 35.

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1 DR. HELEN WHITWELL: Yes. 2 MR. NIELS ORTVED: And I'm looking at 3 page number 32, so it's 301639, page 32. 4 DR. HELEN WHITWELL: Yes. 5 MR. NIELS ORTVED: And I'll have you keep 6 that open because I'll refer back to it, but this -- this 7 document, but -- but this is the document that was 8 commissioned by the Inquiry and it's investigated a 9 number of subjects and -- and one (1) of the subjects 10 that -- that Dr. Cordner's group has investigated is the 11 whole issue of short falls, you're -- you're aware of 12 that. 13 DR. HELEN WHITWELL: Correct. 14 MR. NIELS ORTVED: And short falls is -- 15 is a subset of head injury cases of which you're well 16 familiar, you know. 17 DR. HELEN WHITWELL: Correct. 18 MR. NIELS ORTVED: And so what Dr. 19 Cordner tells us as we referred to previously, page 32: 20 "Issues around Shaken Baby Syndrome, 21 whether -- issues around Shaken Baby 22 Syndrome, whether short falls can cause 23 fatal head injury and many others are 24 not settled, and it will be many years 25 until there is a completely uniform

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1 approach to that." 2 We've been through that, you agree, 3 correct? 4 DR. HELEN WHITWELL: I agree with what's 5 written down there, yes. 6 MR. NIELS ORTVED: Right. And tha -- 7 that's, of course, a statement made in 2007, correct? 8 DR. HELEN WHITWELL: Yes. 9 MR. NIELS ORTVED: And -- and it's 10 another one of these debates and one which --- you 11 actually -- I think I may have acknowledged this morning 12 -- has picked up steam in recent years? 13 DR. HELEN WHITWELL: Yes. 14 MR. NIELS ORTVED: And just to put this 15 whole debate in perspective, there -- there have been a 16 number of studies which tell us that -- that they've doc 17 -- various authors have documented series of children 18 sustaining minor household falls with no fatalities, 19 correct? 20 DR. HELEN WHITWELL: That's correct. 21 MR. NIELS ORTVED: And looking at the 22 Cordner document at -- at page number 54. On my research 23 -- are you with me? 24 DR. HELEN WHITWELL: I'm sorry, I'm not 25 yet. Yeah, okay.

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1 MR. NIELS ORTVED: Page 54. So in my 2 research, it kind of starts with this -- this article by 3 Helfer, which is reported in Dr. Cordner's study at page 4 54: 5 "Helfer et al studied hospital incident 6 reports over a six (6) year period..." 7 This is in 1977, correct? 8 DR. HELEN WHITWELL: Mm-hm. 9 MR. NIELS ORTVED: 10 "...where a fall was reported in 11 children age five (5) years and 12 younger. They found a total of eighty- 13 five (85) children who had fallen 14 approximately .9 metres. In fifty- 15 seven (57) incidents, there was no 16 apparent injury. Seventeen (17) had 17 small cuts, twenty (20) had a bump or 18 bruise, and one (1) child sustained a 19 skull fracture with no serious or 20 apparent sequelae." 21 And they conclude: 22 "Their study found a low incidence of 23 fracture and no serious head injuries. 24 The authors conclude that physicians 25 should be suspicious of child abuse if

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1 they examine a child with a serious 2 head injury when the case is -- when 3 the cause is reported to be a fall from 4 a bed or sofa." 5 Correct? 6 DR. HELEN WHITWELL: That's what -- that 7 was the results of that paper, yes. 8 MR. NIELS ORTVED: That's -- that is the 9 result of that paper as of 1977, correct? 10 DR. HELEN WHITWELL: Correct. 11 MR. NIELS ORTVED: And so then moving 12 forward on my research, there was an article by Barlow, 13 which I've included in the materials, entitled, "Ten (10) 14 Years of Experience of Falls From a Height in Children". 15 And that was in 1983. 16 You're familiar with that article? 17 DR. HELEN WHITWELL: Yes. 18 MR. NIELS ORTVED: And Dr. Barlow 19 examined sixty-one (61) children during a ten (10) year 20 period admitted to hospital after falling from a height 21 of one (1) or more stories, correct? 22 DR. HELEN WHITWELL: Sorry, do you want 23 me to refer -- 24 MR. NIELS ORTVED: Do you want me to take 25 you to it? Yes, it's Tab 23. You with me?

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1 DR. HELEN WHITWELL: Yes. 2 MR. NIELS ORTVED: So -- 3 COMMISSIONER STEPHEN GOUDGE: Do you have 4 a PFP-- 5 MR. NIELS ORTVED: Tab 23. 6 COMMISSIONER STEPHEN GOUDGE: -- number 7 for it? 8 9 (BRIEF PAUSE) 10 11 CONTINUED BY MR. NIELS ORTVED: 12 MR. NIELS ORTVED: "Ten (10) Years of 13 Experience with Hall -- Falls From a 14 Height in Children". 15 And my note concerning that is that it 16 referred to sixty-one (61) children during a ten (10) 17 year period admitted to hospital after falling from a 18 height of one (1) or more stories, fair enough? 19 DR. HELEN WHITWELL: That's what they 20 say, yes. 21 MR. NIELS ORTVED: And of those children 22 who fell three (3) stories or less, 100 percent survived? 23 DR. HELEN WHITWELL: Yes. 24 MR. NIELS ORTVED: Moving forward at Tab 25 number 30 of the new documents, we have a 1988 article by

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1 Joffe and Ludwig, do you have that one? 2 DR. HELEN WHITWELL: Yes. 3 MR. NIELS ORTVED: And Joffe and Ludwig 4 just looking at the abstract in 1988, say as follows: 5 "Children frequently injure themselves 6 falling down stairways." 7 And this entitled "Stairway Injuries in 8 Children" and if you -- just if you look at the bottom of 9 the first full paragraph there, what they say is: 10 "No study concerning stairway injuries 11 in children, however, has been 12 reported." 13 So they're telling us that this is the 14 first, correct? 15 DR. HELEN WHITWELL: Yes. 16 MR. NIELS ORTVED: Agreed? And so their 17 conclusion is, as -- as set out in the abstract, is: 18 "Cheek -- children frequently injure 19 themselves falling down stairways, but 20 the characteristics of these injuries 21 are not well described. A total of 22 three hundred and sixty-three (363) 23 consecutive patients seen in a 24 Pediatric Emergency Department were 25 studied. The majority of patients had

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1 minor..." 2 And this is the Emergency Department at 3 the Children's Hospital of Philadelphia, which you know 4 is -- is a principle centre, correct? 5 DR. HELEN WHITWELL: Correct. 6 MR. NIELS ORTVED: 7 "The majority of patients had minor 8 superficial injuries; boney injuries 9 occurred in 7 percent of patients, head 10 and neck injuries occurred in 73 11 percent of patients, ex -- extremity 12 injuries which were predominantly 13 distal in 28 percent, and truncal 14 injuries in 2 percent. 15 Children younger than four (4) years of 16 age were more likely to sustain head 17 trauma than children older than four 18 (4) years of age. 19 Injury to more than one (1) body part 20 occurred in only 2.7 percent of 21 patients. Children who fell down more 22 than four (4) steps had no greater 23 number or severity of injury than those 24 who fell down less than four (4) steps. 25

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1 Patients were admitted to hospitals in 2 3 percent of cases. No patient had life 3 threatening injuries and no patients 4 required ex -- intensive care. When 5 multiple severe truncal or proximal injury 6 -- extremity injuries are noted in a 7 patient who reportedly fell down stairs, a 8 different mechanism of injury should be 9 suspected." 10 So I've read that correctly? 11 DR. HELEN WHITWELL: Yes. 12 MR. NIELS ORTVED: And then just moving 13 forward in time, going back to Cordner, which is at Tab 14 35, page 54, he reports on Chadwick's study -- 15 DR. HELEN WHITWELL: Mm-hm. 16 MR. NIELS ORTVED: That's 1991, correct? 17 DR. HELEN WHITWELL: Yes. 18 MR. NIELS ORTVED: 19 "Chadwick's 1991 medical record review 20 of children whose mechanism of injury 21 was recorded as a fall found less than 22 seven (7) deaths occurred in one 23 hundred (100) children who fell 4 feet 24 or less and one (1) death occurred in a 25 hundred and seventeen (117) children

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1 who fell 10 feet to 45 feet. 2 The seven (7) children who died in 3 short falls all had other factors in 4 their cases which suggested false 5 histories. Based on this finding, they 6 argue that when children incur fatal 7 injuries in falls less than 4 feet, the 8 history is incorrect." 9 So I've read that correctly? 10 DR. HELEN WHITWELL: Yes. 11 MR. NIELS ORTVED: And then if you turn 12 to page 40 of that document, what Dr. Cordner reflects is 13 exactly what you've indicated -- is the discussion of and 14 research into the issue of short distance falls -- I'm at 15 the bottom of the first full paragraph there. 16 DR. HELEN WHITWELL: Sorry, page 40? 17 MR. NIELS ORTVED: Page 40. 18 DR. HELEN WHITWELL: Yeah. 19 MR. NIELS ORTVED: Short distance falls, 20 background, and at the last sentence of the first full 21 paragraph -- or second last sentence: 22 "Discussion of and research into the 23 issue has gathered some pay since about 24 1990." 25 Correct?

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1 DR. HELEN WHITWELL: Yes. 2 MR. NIELS ORTVED: And that's a statement 3 with which you agree; that it's gathered pay since 1990. 4 DR. HELEN WHITWELL: Yes, that's correct. 5 Yes. 6 7 (BRIEF PAUSE) 8 9 MR. NIELS ORTVED: So, then, with that 10 background, what I'd like to do is turn to the Amber case 11 and you will recall the history of this, I think, fairly 12 clearly. 13 DR. HELEN WHITWELL: Sorry, can I just 14 find my -- 15 MR. NIELS ORTVED: So it's your Volume I. 16 So I'm looking at -- at your -- your report which is at 17 Tab 5 of your Volume I, Dr. Whitwell? 18 DR. HELEN WHITWELL: Yes. 19 MR. NIELS ORTVED: And this is PFP300000, 20 page 3. So in this case -- as you recall, it's a 1988 21 case, correct? 22 DR. HELEN WHITWELL: Yes. 23 MR. NIELS ORTVED: The child is sixteen 24 (16) months of age. 25 DR. HELEN WHITWELL: Yes.

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1 MR. NIELS ORTVED: It's in the care of 2 the babysitter? 3 DR. HELEN WHITWELL: Yes. 4 MR. NIELS ORTVED: And apparently fell 5 down a set of five (5) carpeted stairs onto the floor? 6 DR. HELEN WHITWELL: Correct. 7 MR. NIELS ORTVED: You indicate in your 8 document that your -- that it was uncertain whether her 9 head hit the stairs, correct? 10 DR. HELEN WHITWELL: Yes, that's correct. 11 MR. NIELS ORTVED: But the head did hit 12 the floor a couple of times? 13 DR. HELEN WHITWELL: That was the 14 information I had, yes. 15 MR. NIELS ORTVED: And what we have at 16 your -- at PFP000196 is a diagram of the stairway, and 17 that's found in you New Volume I, Tab 21. So it's 18 000196/28, page 28. 19 DR. HELEN WHITWELL: I'm sorry, which...? 20 MR. NIELS ORTVED: And it's -- it's your 21 New Volume I, Tab 21. 22 COMMISSIONER STEPHEN GOUDGE: Do we know 23 whose -- 24 MR. NIELS ORTVED: And it's page -- 25 COMMISSIONER STEPHEN GOUDGE: Do you know

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1 whose diagram this is? 2 MR. NIELS ORTVED: Yeah. This was drawn 3 by the babysitter as part of an interview by the police 4 in Timmins. 5 COMMISSIONER STEPHEN GOUDGE: Thank you. 6 DR. HELEN WHITWELL: Sorry, which page 7 are you at? I'm not sure I've got the right document? 8 MR. NIELS ORTVED: So -- 9 DR. HELEN WHITWELL: I got the -- one of 10 -- got it -- my twenty-one (21) -- 11 MR. NIELS ORTVED: So this is a -- 12 DR. HELEN WHITWELL: I've got the Timmins 13 Police Service. 14 COMMISSIONER STEPHEN GOUDGE: Page 28. 15 MR. NIELS ORTVED: Page 28. 16 DR. HELEN WHITWELL: Page 28, thank you. 17 Okay. 18 COMMISSIONER STEPHEN GOUDGE: There 19 should be a diagram on it. 20 DR. HELEN WHITWELL: Now, I'm -- 21 MR. NIELS ORTVED: So it's -- 22 COMMISSIONER STEPHEN GOUDGE: Are you -- 23 DR. HELEN WHITWELL: Sorry -- 24 MR. NIELS ORTVED: Have you got Tab 21? 25 DR. HELEN WHITWELL: Well, I have, but --

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1 COMMISSIONER STEPHEN GOUDGE: You may 2 just want to stick with the screen, Dr. Whitwell. 3 DR. HELEN WHITWELL: Yes, that's fine. 4 5 CONTINUED BY MR. NIELS ORTVED: 6 MR. NIELS ORTVED: Yeah, and I -- 7 DR. HELEN WHITWELL: Thank you. 8 MR. NIELS ORTVED: Actually it comes up 9 well on the screen, -- 10 DR. HELEN WHITWELL: Yes, that's fine. 11 MR. NIELS ORTVED: -- Dr. Whitwell. 12 And so what we have here is diagram of the 13 stairway and what we see is it apparently, the five (5) 14 steps are identified, the -- the district -- the distance 15 of the stairway is -- is measured at a hundred and fifty- 16 five (155) centimetres, do you see that? 17 DR. HELEN WHITWELL: Yes. 18 MR. NIELS ORTVED: And then the height of 19 the stairs is also indicated as twenty-one (21) 20 centimetres, so that what we know then if we multiply it 21 by five (5) is that apparently the total distance in 22 height fallen was -- was one -- one (1) metre, five (5) 23 centimetres, correct? 24 DR. HELEN WHITWELL: Yes. 25 MR. NIELS ORTVED: And then you see at

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1 the bottom you have a cushioned floor, correct? You have 2 to say yes or no for the -- 3 DR. HELEN WHITWELL: Yes. 4 MR. NIELS ORTVED: -- transcript. 5 So this -- this little girl was then taken 6 to St. Mary's Hospital in Timmins and -- and you've 7 described her -- her course from that point forward. 8 And looking at the -- the treating 9 doctors, as you know I want to do because I think their 10 opinions are significant. If you go to the OR -- the 11 overview report, it's tab number 7 of your main document, 12 main volume. 13 DR. HELEN WHITWELL: Yes, got it. 14 MR. NIELS ORTVED: And -- and go to page 15 number 16. 16 DR. HELEN WHITWELL: Yes. 17 MR. NIELS ORTVED: Paragraph 40. 18 DR. HELEN WHITWELL: Yes. 19 MR. NIELS ORTVED: You see a reference to 20 Dr. Stephen Keeley. He's a pediatrician at Hospital for 21 Sick Children, and he notes that Amber's injuries were 22 disproportionate to the relatively minor fall described, 23 correct? 24 DR. HELEN WHITWELL: Yes. 25 MR. NIELS ORTVED: At paragraph 41

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1 there's reference to Dr. Driver who's a pediatrician at 2 Sick Kids. 3 DR. HELEN WHITWELL: Yes. 4 MR. NIELS ORTVED: She also concludes 5 that the injury is out of proportion to the fall, 6 correct? 7 DR. HELEN WHITWELL: Correct. 8 MR. NIELS ORTVED: Dr. Barker -- that's 9 over at page 54. 10 DR. HELEN WHITWELL: Yes. 11 MR. NIELS ORTVED: Dr. Barker's the 12 Director of the Critical Care Unit at the time, and he 13 indicates that he had had no experience with a relatively 14 short fall like that described by the babysitter causing 15 the magnitude of injuries suffered by Amber, correct? 16 DR. HELEN WHITWELL: Correct. 17 MR. NIELS ORTVED: And at paragraph 140, 18 he indicates that he was a -- was suspected that Amber 19 had died as a result of shaking because, in the absence 20 of an otherwise satisfactory explanation, together with 21 the rapid -- rapidity of onset of loss of consciousness, 22 together with the brain swelling, together with the 23 evidence of hemorrhages within the retina, together with 24 the presence of the collection of blood in an abnormal 25 place -- in this case the subdural region -- is very

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1 suspicious in our minds that there's been a shaking 2 incident, correct? 3 DR. HELEN WHITWELL: That's what he says, 4 yes. 5 MR. NIELS ORTVED: Right. And then Dr. 6 Chuang to whom you made reference, I think, in your 7 evidence- in-chief' he can be found at page 56. Dr. 8 Chuang is a pediatric neuroradiologist at the Sick Kids. 9 Neuroradiologists are -- are radi -- are radiologists 10 whose expertise is specific to reading radiographs of the 11 head. 12 DR. HELEN WHITWELL: Yeah, CT scans -- 13 MR. NIELS ORTVED: Yeah. 14 DR. HELEN WHITWELL: -- and MRI scans, 15 and. 16 MR. NIELS ORTVED: Right. 17 DR. HELEN WHITWELL: Yeah. 18 MR. NIELS ORTVED: And what Dr. Chuang 19 indicates at paragraph 149/150 is that he -- he'd seen 20 unilateral edema in Shaken Baby Syndrome, but stressed 21 that bilateral was the more common presentation. 22 Similarly Dr. test -- Dr. Chuang testified 23 that bilateral subdural haematomas are more common in 24 children who are shaken. He agreed that Amber had 25 unilateral subdural haematoma which apparently he has

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1 seen in Shaken Baby Syndrome according to his evidence, 2 correct? 3 DR. HELEN WHITWELL: I -- I couldn't 4 comment on that. I can't remember that bit of the 5 evidence. 6 MR. NIELS ORTVED: Well, that's what they 7 say in paragraph 149. You don't dispute that. He said-- 8 DR. HELEN WHITWELL: Yes, no, no. I can 9 see that. I'm -- I'm sorry, I was -- 10 MR. NIELS ORTVED: Right. 11 DR. HELEN WHITWELL: -- yeah. 12 MR. NIELS ORTVED: And he goes on to say 13 that the injuries Amber suffered were consistent in Dr. 14 Chuang's opinion with Shaken Baby Syndrome, motor vehicle 15 accident, or a fall from a great height. Dr. Chuang 16 characterized a great height as a fall from a second 17 story window. 18 Dr. Chuang testified that he knew that 19 Amber had not been in a car accident, so he concluded 20 that her injuries were caused either by shaking or a fall 21 from a great height. Dr. Chuang testified that he would 22 of been surprised if Amber's injuries were caused by a 23 fall down five (5) ordinary household steps. 24 He acknowledged that fracture or subdural 25 haematoma could have resulted from a short domestic fall,

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1 however, he would not have sus -- expected the severity 2 of Amber's cerebral edema to have resulted from a short 3 fall, correct? 4 DR. HELEN WHITWELL: Yes. 5 MR. NIELS ORTVED: And Dr. Smith, as 6 we've already canvassed, did an autopsy here following 7 exhumation, and that's reported at the next -- well, at 8 Tab number 9 of your document, and it's 000309/4. And 9 what Dr. Smith reported was head injury with 1.1 -- are 10 you with me? Tab number 9? 11 DR. HELEN WHITWELL: I've got Tab number 12 9, yes. 13 MR. NIELS ORTVED: Page number 4. 14 DR. HELEN WHITWELL: Yes. 15 MR. NIELS ORTVED: So head injury with 16 subdural hemorrhage, retinal hemorrhages, bilateral, 17 optic nerve hemorrhage, and cerebral edema, correct? 18 DR. HELEN WHITWELL: Correct. 19 MR. NIELS ORTVED: And his conclusion 20 was, as far as the cause of death was concerned, head 21 injury, but you know very well that his conclusion as to 22 manner of death, on which he was asked to testify, was 23 Shaken Baby Syndrome, correct? 24 DR. HELEN WHITWELL: Yes. 25 MR. NIELS ORTVED: And as of 1988, Dr.

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1 Smith had ample support for that conclusion, did he not? 2 DR. HELEN WHITWELL: Well, he did from 3 the doctors that you've quoted. 4 MR. NIELS ORTVED: Well, he also did from 5 his -- from his pathological findings? 6 DR. HELEN WHITWELL: That -- that was not 7 my view of this case. 8 MR. NIELS ORTVED: Well, what he had, Dr. 9 Whitwell, were findings consistent with the triad? 10 DR. HELEN WHITWELL: Yes, that's correct. 11 MR. NIELS ORTVED: And what the Court of 12 Appeal has told us in 2005 is that even seventeen (17) 13 years later that is a strong pointer to Shaken Baby 14 Syndrome? 15 DR. HELEN WHITWELL: I'm afraid that this 16 is a case of impact injury. Now, what the Court of 17 Appeal, to some extent, has done is put -- as I've said 18 before, put all these cases together. This is an impact 19 head injury. And the issue is -- is the issue of the 20 fall. 21 MR. NIELS ORTVED: Well, put it -- 22 putting it bluntly, Dr. Whitwell, if you believe the 23 account? 24 DR. HELEN WHITWELL: That's correct, yes. 25 MR. NIELS ORTVED: Thank you.

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1 DR. HELEN WHITWELL: Yes. 2 MR. NIELS ORTVED: And bear in mind, Dr. 3 Whitwell, that this event takes place in the same year 4 that Dr. Jaffe and Dr. Ludwig produce their article, 5 correct? 6 DR. HELEN WHITWELL: Yes, that's correct. 7 MR. NIELS ORTVED: And -- and that's the 8 article which reported on a series of three hundred and 9 sixty-three (363) cases of stairway falls -- the only 10 study of stairway falls, so they say, at the time -- And 11 what they say was there wasn't a single fatality among 12 them, correct? 13 DR. HELEN WHITWELL: Correct. 14 MR. NIELS ORTVED: And what they say is 15 that: 16 "If there are serious fatal injuries 17 resulting from such a fall, an 18 alternate mechanism is to be 19 suspected." 20 I'm just quoting them -- correct? 21 DR. HELEN WHITWELL: Yes. 22 MR. NIELS ORTVED: Now, you're aware that 23 yours has not been the only review of this particular 24 case, correct? 25 DR. HELEN WHITWELL: I'm sorry. Can you

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1 just enlighten me to what you mean? 2 MR. NIELS ORTVED: Well, this case 3 happened to have been the subject of a review by -- at 4 the instance of the College of Physicians and Surgeons of 5 Ontario, you're aware of that? 6 DR. HELEN WHITWELL: Yes, that's correct. 7 MR. NIELS ORTVED: And that's reported in 8 the overview report at page number 99. 9 DR. HELEN WHITWELL: Yes. 10 MR. NIELS ORTVED: And I'm looking at 11 page 248 -- paragraph 248, and it reports there that the 12 -- the Committee of the College sought an independent 13 medical opinion from a three (3) member panel of experts 14 of whom two (2) were forensic pathologists and one (1) 15 was a pediatric pathologist, correct? 16 DR. HELEN WHITWELL: Yes. 17 MR. NIELS ORTVED: And if you turn over 18 to page 101. Sorry, I should say 98, sorry, 100. 19 DR. HELEN WHITWELL: Sorry. I'm sorry, 20 the page numbers sometimes are -- 21 MR. NIELS ORTVED: Well, -- 22 DR. HELEN WHITWELL: -- a bit confusing. 23 MR. NIELS ORTVED: Not just to you, 24 either. 25 DR. HELEN WHITWELL: Oh.

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1 MR. NIELS ORTVED: So I'm at page 100. 2 DR. HELEN WHITWELL: Page 100, okay. 3 MR. NIELS ORTVED: And it's -- I'm 4 looking at sub H, -- 5 DR. HELEN WHITWELL: Yes. 6 MR. NIELS ORTVED: -- you see it at the 7 bottom of the page? 8 DR. HELEN WHITWELL: Yes. 9 MR. NIELS ORTVED: And a rep -- the -- 10 the report of that review panel, two (2) forensic 11 pathologists, one (1) pediatric pathologist was: 12 "According to the standards of the time 13 of the decision, Dr. Smith was overly 14 dogmatic in his testimony that shaking 15 was the only cause for the head 16 injuries." 17 I think you'd probably agree with that 18 part? 19 DR. HELEN WHITWELL: Yes, I would. 20 MR. NIELS ORTVED: 21 "However, by the standards of the later 22 1980s and early 1990s, Dr. Smith's 23 conclusion that the head injuries were 24 brought about by shaking was generally 25 acceptable."

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1 DR. HELEN WHITWELL: Well, I wouldn't 2 agree with that statement as a forensic pathologist 3 practising at that time. I don't know -- 4 MR. NIELS ORTVED: And it's just -- and 5 it's your opinion? 6 DR. HELEN WHITWELL: That's correct. 7 MR. NIELS ORTVED: All right. And -- and 8 apparently we have two (2) other forensic pathologists 9 who disagree with you? 10 DR. HELEN WHITWELL: From what -- from 11 what you've read here. 12 MR. NIELS ORTVED: Yes. 13 DR. HELEN WHITWELL: And they disagree 14 with a number of other experts in that case. 15 MR. NIELS ORTVED: It's -- it's an area 16 of debate, correct? 17 DR. HELEN WHITWELL: I don't think it's 18 an area -- I don't think now it's an area of debate or 19 then an area of debate that an impact head injury could 20 cause the findings in this case. 21 22 (BRIEF PAUSE) 23 24 MR. NIELS ORTVED: Dr. Whitwell, I'm 25 interested because this -- you -- you had kind of a

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1 parallel experience to this case yourself, did you not, 2 in the Cherry case? 3 DR. HELEN WHITWELL: Cherry, yes. 4 MR. NIELS ORTVED: And Cherry's -- Cherry 5 is one (1) of those cases that was decided by the Court 6 of Appeal in the decision we've been referring here as 7 Harris? 8 DR. HELEN WHITWELL: Yes, it -- that's 9 correct. 10 MR. NIELS ORTVED: And -- and in the 11 Cherry -- the Cherry case was a case where you, as 12 forensic pathologist, had done a post-mortem? 13 DR. HELEN WHITWELL: That's correct. 14 MR. NIELS ORTVED: On a -- a little girl 15 twenty-one (21) months of age, correct? 16 DR. HELEN WHITWELL: That's correct. 17 MR. NIELS ORTVED: And -- and this little 18 girl was -- was reported by her father or step -- carer-- 19 DR. HELEN WHITWELL: That's correct, yes. 20 MR. NIELS ORTVED: -- to have fallen off 21 a chair and hit her head and died, correct? 22 DR. HELEN WHITWELL: A stool, yes, that's 23 correct. 24 MR. NIELS ORTVED: And as you note -- as 25 was noted in the case, she fell onto a carpeted floor?

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1 DR. HELEN WHITWELL: Correct. 2 MR. NIELS ORTVED: And she sustained a 3 hematoma and cerebral swelling, correct? 4 DR. HELEN WHITWELL: She did, yes. 5 MR. NIELS ORTVED: You charac -- you -- 6 you did the post-mortem and -- and characterized this as 7 death due to blunt trauma? 8 DR. HELEN WHITWELL: I -- I think I said 9 the cause of death was head injury. I can't remember. 10 MR. NIELS ORTVED: Okay. Well, the 11 report tells us blunt trauma, but. 12 DR. HELEN WHITWELL: Blunt trauma, yes. 13 MR. NIELS ORTVED: And -- and in that 14 case at trial in 1994, you testified for the prosecution? 15 DR. HELEN WHITWELL: That's correct. 16 MR. NIELS ORTVED: As -- and -- and as a 17 result of that trial, which included your evidence, Mr. 18 Cherry was convicted? 19 DR. HELEN WHITWELL: Correct. 20 MR. NIELS ORTVED: And that case was then 21 referred to the Court of Appeal and was one of those 22 cases considered in the -- in the Harris decision, 23 correct? 24 DR. HELEN WHITWELL: Yes, that's correct. 25 MR. NIELS ORTVED: And interestingly, at

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1 this point in time, I was curious to see that you 2 testified at that Court of Appeal hearing on behalf of 3 Mr. Cherry, correct? 4 DR. HELEN WHITWELL: That's correct. 5 MR. NIELS ORTVED: So you now had test -- 6 you are now testifying for the defence in 2004 or '05, 7 correct? 8 DR. HELEN WHITWELL: Correct. 9 MR. NIELS ORTVED: And -- and what you 10 told the English Court of Appeal was that the literature 11 since you'd given your evidence in 1994 had caused you to 12 change your opinion. 13 DR. HELEN WHITWELL: In that case. 14 MR. NIELS ORTVED: Yes. 15 DR. HELEN WHITWELL: Because quite 16 correctly, each case is on the facts of the case, and 17 there were other issues with that case. 18 MR. NIELS ORTVED: Well, in all fairness, 19 the facts hadn't changed; your opinion had changed. 20 DR. HELEN WHITWELL: That's correct. 21 Yes. 22 MR. NIELS ORTVED: And -- and what -- 23 what you were reporting to the Court of Appeal was that 24 it was the more recent literature in relation to short 25 falls that caused you to reconsider your opinion.

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1 DR. HELEN WHITWELL: In that case, yes. 2 MR. NIELS ORTVED: Right. Now, back to 3 my questions of earlier. 4 The fact that you changed your opinion in 5 2004 didn't make your opinion in 1994 wrong necessarily. 6 DR. HELEN WHITWELL: No, that's correct. 7 MR. NIELS ORTVED: The Court of Appeal 8 listened to your evidence, and rejected it, fair enough? 9 DR. HELEN WHITWELL: They did reject it, 10 yes. 11 MR. NIELS ORTVED: Right. And they 12 upheld Mr. Cherry's conviction, correct? 13 DR. HELEN WHITWELL: They did, yes. 14 MR. NIELS ORTVED: Doesn't make your 15 opinion in 2004 necessarily wrong. 16 DR. HELEN WHITWELL: No, that's correct, 17 but in -- in 1994, I said it was blunt trauma, not 18 shaking. 19 MR. NIELS ORTVED: No, no, no. I -- no-- 20 DR. HELEN WHITWELL: Okay. 21 MR. NIELS ORTVED: -- listen. I'm not 22 suggesting you said it was shaking; you said it was blunt 23 trauma, but -- 24 DR. HELEN WHITWELL: Correct. 25 MR. NIELS ORTVED: -- but one (1) was

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1 non-accidental, and -- and the other was accidental. 2 DR. HELEN WHITWELL: Yes. There were -- 3 it is difficult comparing cases usually. There were 4 other issues in that case. 5 MR. NIELS ORTVED: I'm not -- I'm not 6 actually comparing the facts. I'm just comparing the 7 facts -- 8 DR. HELEN WHITWELL: Sure. 9 MR. NIELS ORTVED: -- I'm just putting to 10 you the fact that you changed your mind. 11 DR. HELEN WHITWELL: Yes, exactly, which 12 is what a medical expert should do -- 13 MR. NIELS ORTVED: Right. 14 DR. HELEN WHITWELL: -- when presented 15 with more evidence, or more facts. 16 MR. NIELS ORTVED: Dr. Smith wasn't given 17 a chance to reconsider his opinion in relation to XXXX 18 case, correct? 19 MR. MARK SANDLER: Don't -- don't use 20 XXXX. 21 MR. NIELS ORTVED: Oh, in relation to 22 the -- 23 MR. MARK SANDLER: Amber. 24 MR. NIELS ORTVED: -- Amber case. 25 MR. MARK SANDLER: And how would she know

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1 that? 2 DR. HELEN WHITWELL: I don't know. I 3 mean I -- you know -- 4 5 CONTINUED BY MR. NIELS ORTVED: 6 MR. NIELS ORTVED: Well, did you get 7 anything as part of your package and material showing 8 that Dr. Smith had been given an opportunity to 9 reconsider his opinion? 10 DR. HELEN WHITWELL: To be perfectly 11 honest, when I arrived here I was given so much material, 12 including on that case -- 13 MR. NIELS ORTVED: The answer is no. You 14 haven't been given anything from Dr. Smith. 15 DR. HELEN WHITWELL: No. 16 MR. NIELS ORTVED: No. And really -- you 17 know, I think that what -- what the Amber case stands for 18 is the fact that pediatric forensic pathology is far from 19 an exact science. 20 DR. HELEN WHITWELL: Correct. 21 MR. NIELS ORTVED: We agree on that. 22 DR. HELEN WHITWELL: Yes. 23 MR. NIELS ORTVED: Now I just want to 24 deal quickly with a subsidiary issue flowing out of the 25 Amber case. And it has to do with the investigation, and

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1 -- and it's a systemic issue because we've discussed here 2 what -- what aspects should the coroner be responsible 3 for, and what aspects should the pathologist be 4 responsible for, and -- and on the Commission's list of 5 potential issues is -- is a -- a specific issue 6 addressing what are the -- what are the appropriate roles 7 for each, all right? 8 DR. HELEN WHITWELL: Mm-hm. 9 MR. NIELS ORTVED: And -- and insofar as 10 the Amber case is concerned, you -- well, you understand 11 I -- I don't know what happens in England, but in -- in 12 Canada, typically, the coroner will undertake an 13 investigation, and -- and then report some findings he or 14 she considers important to the pathologist. 15 Do you understand that? 16 DR. HELEN WHITWELL: Yes, I do. I mean, 17 I ha -- I have to say it is a different system in England 18 to -- to what it is here. 19 That's my understanding, so I don't quite 20 understand the practicalities of how it actually works in 21 here, or doesn't work. 22 MR. NIELS ORTVED: Okay. Well -- or 23 doesn't work. 24 You see, here -- here you un -- you know 25 from your review of the case that the coroner was a Dr.

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1 Ouchterlony, correct? 2 DR. HELEN WHITWELL: That's correct. 3 MR. NIELS ORTVED: And you knew that -- 4 that -- well, maybe you don't know this. 5 Dr. -- did you know Dr. Ouchterlony 6 practices in Toronto? 7 DR. HELEN WHITWELL: No. 8 MR. NIELS ORTVED: No. 9 DR. HELEN WHITWELL: I don't -- I don't 10 think I did. I -- I mean I'm afraid my geography of 11 Ontario is not great. I know where Toronto is, but -- 12 COMMISSIONER STEPHEN GOUDGE: That's true 13 of most people in Toronto. 14 DR. HELEN WHITWELL: Oh. But in -- in 15 terms of all the areas and the -- the -- you know, the -- 16 17 CONTINUED BY MR. NIELS ORTVED: 18 MR. NIELS ORTVED: Well, I'm not -- don't 19 -- don't worry, I'm not going to cross-examine you on 20 your knowledge of geography of Ontario, but just take it 21 from me, Dr. Ouchterlony is a -- is a coroner, he 22 practices in Toronto. 23 Timmins is a town hundreds of kilometres 24 north of Toronto. 25 DR. HELEN WHITWELL: Right.

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1 MR. NIELS ORTVED: Okay. And what -- 2 what you know from -- from your review of the case is 3 that Dr. Ouchterlony actually didn't have really any 4 significant level of suspicion about any -- about this 5 case. 6 DR. HELEN WHITWELL: That's correct. 7 MR. NIELS ORTVED: As a result of which 8 he didn't an -- he didn't order an autopsy. 9 DR. HELEN WHITWELL: Correct. 10 MR. NIELS ORTVED: And as a result of 11 which, not only was there no autopsy at the outset, but - 12 - but in addition, there was no investigation from the 13 outset, fair enough? 14 DR. HELEN WHITWELL: Yes, I mean I don't 15 know when the police or whoever became involved, but, you 16 know, I'm quite -- I take that as correct. 17 MR. NIELS ORTVED: So that -- so if you 18 look at the overview report, it's your Tab -- hold on a 19 sec. 20 21 (BRIEF PAUSE) 22 23 MR. NIELS ORTVED: Tab se -- Tab 7, your 24 Volume I. 25 DR. HELEN WHITWELL: Yes.

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1 MR. NIELS ORTVED: Paragraph 37. 2 COMMISSIONER STEPHEN GOUDGE: 143827. 3 4 CONTINUED BY MR. NIELS ORTVED: 5 MR. NIELS ORTVED: Oh, sorry, I have to 6 give you a page, 14. 7 DR. HELEN WHITWELL: I'm sorry, I think 8 I've got the wrong volume. Which -- which volume are we 9 referring to now? 10 MR. NIELS ORTVED: So, Amber is Volume I. 11 DR. HELEN WHITWELL: Yeah, we're in 12 Volume I, are we? 13 MR. NIELS ORTVED: Yes, Volume I, and 14 it's Tab number 7, and it's document -- 15 DR. HELEN WHITWELL: Yes. 16 MR. NIELS ORTVED: Yeah. 17 DR. HELEN WHITWELL: The overview 18 document. 19 MR. NIELS ORTVED: Overview document. 20 DR. HELEN WHITWELL: Yes. 21 MR. NIELS ORTVED: And I'm at page number 22 30. 23 DR. HELEN WHITWELL: Yes. 24 25 (BRIEF PAUSE)

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1 MR. NIELS ORTVED: Bear with me just a 2 moment, Dr. Whitwell. Sorry, it's page number 20, 3 paragraph 53. 4 DR. HELEN WHITWELL: Yes. 5 MR. NIELS ORTVED: And I'm looking at the 6 single-spaced paragraph. 7 "So you that you understand that what 8 happened here is -- is Dr. -- there was 9 no autopsy ordered. Dr. Driver was in 10 touch with Dr. Young at the Coroner's 11 Office to request that there be an 12 autopsy, as a result of which Dr. 13 Young, who was then I think the Deputy 14 Chief Coroner, got involved and he 15 then, as reported here provided -- [I'm 16 looking at the second paragraph single 17 spaced] -- he provided a coroner's 18 warrant to order -- to retrieve all 19 medical records from both Sick 20 Children's Hospital in Toronto and St. 21 Mary's Hospital and it was following 22 that [on the next page, paragraph 54] 23 on August 18th the Attorney General 24 ordered an exhumation." 25 And on August 19th the -- the exhumation

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1 took place, correct? 2 DR. HELEN WHITWELL: Yes. 3 MR. NIELS ORTVED: So, my suggestion to 4 you simply is that you've told us already that failure to 5 order an autopsy in these circumstances was 6 inappropriate. 7 DR. HELEN WHITWELL: Correct. 8 MR. NIELS ORTVED: And -- and similarly, 9 to the extent it meant a delay in an investigation of 10 this scene and these individuals, that actually was 11 unfortunately delayed as well, correct? 12 DR. HELEN WHITWELL: Yes. 13 MR. NIELS ORTVED: And then you -- Dr. 14 Saukko made reference yesterday to the fact that there 15 were organs harvested in the Kenneth case, and made 16 reference to the fact that he considered that highly 17 inappropriate in a suspicious and potentially homicide 18 case, correct? 19 DR. HELEN WHITWELL: Correct. 20 MR. NIELS ORTVED: You agree with that? 21 DR. HELEN WHITWELL: I do, yes. 22 MR. NIELS ORTVED: And, similarly, Dr. 23 Ouchterlony in the Amber case also authorized organ 24 harvesting, as you're aware, correct? 25 DR. HELEN WHITWELL: Correct.

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1 MR. NIELS ORTVED: Which should not have 2 taken place? 3 DR. HELEN WHITWELL: That's correct. 4 MR. NIELS ORTVED: So then let me move to 5 Taylor. And that's going back to your Volume number IV. 6 Now, the -- just to -- to orient you here, Dr. Whitwell, 7 the -- your report is at Tab 49. 8 DR. HELEN WHITWELL: Yes. 9 MR. NIELS ORTVED: And one (1) of the 10 issues on the Commission's issues list -- in fact, it's a 11 whole section -- has to do with testimony. And -- and 12 you recall questions put to you earlier today about how - 13 - how it's -- how the whole issue of testimony is 14 important when it comes to these cases in explaining the 15 position to the court? 16 DR. HELEN WHITWELL: Yes. 17 MR. NIELS ORTVED: And the Taylor case, 18 I'm not going to through in detail, but sufficed to say 19 the details of this case were -- were suspicious? 20 DR. HELEN WHITWELL: Yes. 21 MR. NIELS ORTVED: And when you have not 22 only suspicious circumstances, but against a background 23 of -- of an infant, three and a half (3 1/2) months of 24 age, with as many as fourteen (14) broken ribs, albeit 25 healing, you -- your index of suspicion goes right off

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1 the dial, doesn't it? 2 DR. HELEN WHITWELL: It goes well up, 3 yes. 4 MR. NIELS ORTVED: And -- and you were 5 fair in indicating that Dr. Rieckenberg did the initial 6 autopsy, and Dr. Smith was reliant on -- on his findings. 7 And -- and some of Dr. Rieckenberg's work 8 actually was not perfect, correct? 9 DR. HELEN WHITWELL: Correct. 10 MR. NIELS ORTVED: Dr. Smith concluded 11 head injury as had Dr. Rieckenberg and -- and in that he 12 was supported by Dr. Deck, correct? 13 DR. HELEN WHITWELL: Correct. 14 MR. NIELS ORTVED: But what I really want 15 to talk about here is testimony, because what you 16 indicated to the Commissioner was that up until you'd 17 come here, you hadn't had any testimony, right? 18 DR. HELEN WHITWELL: Sorry, on this case? 19 MR. NIELS ORTVED: Right. 20 DR. HELEN WHITWELL: Yes, that's correct. 21 MR. NIELS ORTVED: And -- and if you look 22 at your report, and it's 13630, it's your Tab 50, -- 23 DR. HELEN WHITWELL: Yes. 24 MR. NIELS ORTVED: -- you confirm that as 25 far as your report was concerned, at Number 4 of page 8

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1 there was no testimony to review, correct? 2 COMMISSIONER STEPHEN GOUDGE: Right down 3 at the bottom. 4 DR. HELEN WHITWELL: Sorry, my -- 5 COMMISSIONER STEPHEN GOUDGE: Bottom of 6 page 8, last line. 7 DR. HELEN WHITWELL: Oh, I'm sorry. Yes, 8 that's correct. 9 10 CONTINUED BY MR. NIELS ORTVED: 11 MR. NIELS ORTVED: What you did have, if 12 you'd go back to page 4, -- 13 DR. HELEN WHITWELL: Yes. 14 MR. NIELS ORTVED: -- is a decision of 15 Mr. Justice Koczak (phonetic) of the Superior Court of 16 Justice of Ontario, correct? 17 DR. HELEN WHITWELL: Could you just -- 18 I'm sorry, could you just point me to it. 19 MR. NIELS ORTVED: Yes, it's under your 20 Court documents -- 21 DR. HELEN WHITWELL: Yeah. 22 MR. NIELS ORTVED: -- sub E, Ontario 23 Supreme Court of Justice Application by the Crown. Are 24 you with me? 25 DR. HELEN WHITWELL: Yes. I mean, that's

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1 what the document was entitled, I'm sorry, what did you 2 call it this time? 3 MR. NIELS ORTVED: Okay. So we'll look 4 at it, it's in your new Volume I, Tab 22. 5 DR. HELEN WHITWELL: Oh, sorry. Tab 22. 6 Yes, I've got it. 7 MR. NIELS ORTVED: And you'll recall that 8 was forwarded to you for the purposes of your initial 9 review report some time ago, correct? 10 DR. HELEN WHITWELL: Yes. 11 MR. NIELS ORTVED: And if you look at 12 page number 10, Item sub 8, -- 13 DR. HELEN WHITWELL: Yes. 14 MR. NIELS ORTVED: -- what -- what the -- 15 the judge here does is he -- he reviews the -- the 16 reasons of the provincial judge for discharging the Mr. 17 and Mrs. or the -- the parents, and -- and provides a 18 synopsis of his reasons and those are found at page 10, 19 among other places, and you see at Number 8: 20 "The medical evidence, particularly the 21 evidence of Dr. Charles Smith, a 22 pediatric pathologist, in my judgment 23 is quite clear. Given the explanation 24 tendered by Mr. XXXX..." 25 Sorry.

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1 "...it is Dr. Smith's expert opinion 2 that there is a possibility that the 3 injury could have occurred in the 4 manner described but there is also an 5 equal possibility that it could not 6 have occurred in that manner." 7 Correct? 8 DR. HELEN WHITWELL: Yes. 9 MR. NIELS ORTVED: And in fact that is 10 word-for-word the excerpt from the evidence to which you 11 were taken this morning, correct? 12 DR. HELEN WHITWELL: Yes, it seemed the 13 same to me, yes. 14 MR. NIELS ORTVED: And it was evidence 15 which -- which you characterized this morning as -- in 16 answers to Mr. Sandler in your view as being quite 17 confusing, do you recall that? 18 DR. HELEN WHITWELL: Well it did appear 19 confusing to me, but, yes. 20 MR. NIELS ORTVED: Apparently it wasn't 21 confusing to the judge, correct? 22 DR. HELEN WHITWELL: Apparently not. 23 MR. NIELS ORTVED: And in fact, I'm 24 suggesting to you that -- that Dr. Smith's evidence in 25 that case was eminently fair.

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1 DR. HELEN WHITWELL: Well, I think I've 2 already explained. The -- in my view, the findings of 3 head injury were not substantiated in this case, 4 therefore, we -- we don't have a cause of death. 5 MR. NIELS ORTVED: Dr. Whitwell, I'm 6 suggesting to you the cause of death couldn't matter 7 less. 8 DR. HELEN WHITWELL: In that sense, yes, 9 I understand your point there. 10 MR. NIELS ORTVED: And in fact as a 11 result of Dr. Smith's evidence in part, the accused were 12 discharged and their discharge was upheld on appeal 13 apparently, correct? 14 DR. HELEN WHITWELL: Correct. 15 MR. NIELS ORTVED: I didn't forget about 16 you, Dr. Saukko. 17 You realize that everyone in Canada when 18 they think of Finnish people they think of saku koivu. 19 THE COMMISSIONER: Everybody in Montreal. 20 DR. PEKKA SAUKKO: Yeah, so you have 21 understood -- also in Finland. 22 MR. NIELS ORTVED: So you come here with 23 good graces. By way of background, Dr. Saukko, you agree 24 with some of the same questions I put to Dr. Whitwell. 25 This is a complex discipline.

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1 DR. PEKKA SAUKKO: Oh, yes. It is 2 indeed. 3 MR. NIELS ORTVED: And one of the issues 4 that you and -- you will agree is that there's no uniform 5 standard for certainty when it comes to opinions in 6 forensic pathology. 7 DR. PEKKA SAUKKO: That's correct. 8 MR. NIELS ORTVED: Reasonable experts can 9 disagree. 10 DR. PEKKA SAUKKO: That's correct. 11 MR. NIELS ORTVED: And disagreement on an 12 opinion doesn't make one right and one wrong. 13 DR. PEKKA SAUKKO: Not always, no. 14 MR. NIELS ORTVED: And one of the issues 15 with which we've been wrestling is the extent to which a 16 pathologist puts weight on circumstantial evidence as 17 opposed to pathological evidence. You're aware of that 18 controversy within your discipline? 19 DR. PEKKA SAUKKO: Well, it's usual that 20 we take that into great consideration especially in our 21 country because we have to take a position as to the 22 manner of death. But if we don't have a cause of death 23 then it's more problematic. 24 MR. NIELS ORTVED: And so you're -- you 25 are in -- in Finland, used to taking circumstantial

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1 evidence into account. 2 DR. PEKKA SAUKKO: Yeah, when -- when we 3 consider the manner of death. 4 MR. NIELS ORTVED: Fair enough. I think 5 that, in fairness, there will be those within your 6 profession who will also factor circumstantial evidence 7 into a decision as to cause of death. 8 DR. PEKKA SAUKKO: That's correct. 9 MR. NIELS ORTVED: And Dr. Pollanen told 10 us last week that depending on the circumstances, it's 11 permissible to arrive at a diagnosis based on 12 circumstances. Do you agree with that? 13 DR. PEKKA SAUKKO: No, not personally, 14 no. 15 MR. NIELS ORTVED: So let me put it to 16 you then -- this is found in Dr. Pollanen's review of 17 Pediatric Forensic Pathology Review reports Ten Systemic 18 Issues and it's found in your new Volume 2, Tab 35. 19 20 (BRIEF PAUSE) 21 22 MR. NIELS ORTVED: I guess not. I don't 23 have one. Do you have one? 24 THE COMMISSIONER: What are you looking 25 for, Mr. Ortved?

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1 MR. NIELS ORTVED: Dr. Pollanen's, Ten 2 Systemic Issues. 3 DR. HELEN WHITWELL: I found it. 4 MR. NIELS ORTVED: Okay, sorry, hold on, 5 hold on. New Volume 1. 6 DR. PEKKA SAUKKO: Mm-hmm. 7 MR. NIELS ORTVED: Tab 17. So it's vol - 8 - it's 30 -- 301189 and it's on the screen. And do you 9 have a -- do you have a hard copy of it, Dr. Saukko? 10 DR. PEKKA SAUKKO: Yes. 11 MR. NIELS ORTVED: And -- and I'm looking 12 at page number 6. 13 DR. PEKKA SAUKKO: Yes. 14 MR. NIELS ORTVED: And you see here that 15 Dr. Pollanen has identified for the Commissioner, 16 systemic issue Number 4, "Sliding Scale for Degree of 17 Certainty in Forensic Pathology": 18 DR. PEKKA SAUKKO: Yes. 19 MR. NIELS ORTVED: 20 "We need to recognize that there's no 21 uniformed standard for the level of 22 certainty for expert opinions by 23 different forensic pathologists and 24 there -- and that there is often a 25 sliding scale for that standard,

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1 depending on the issue." 2 DR. PEKKA SAUKKO: That's correct. 3 MR. NIELS ORTVED: And what Dr. Pollanen 4 tells us at the bottom of the page is: 5 "Another sliding scale issue is when a 6 pathologist puts more weight on 7 circumstantial evidence compared to 8 pathological evidence. This can result 9 in a circumstantial diagnosis that may 10 be true, but does not flow directly 11 from the medical evidence." 12 Do you agree with that? 13 14 (BRIEF PAUSE) 15 16 DR. PEKKA SAUKKO: Of course, one has to 17 take into cons -- consideration the circumstances, but if 18 there is a situation that there is no pathology, then I, 19 personally, don't agree that one could base the diagnosis 20 on -- on circumstantial evidence. 21 MR. NIELS ORTVED: Well, let me put the 22 example to you that Dr. Pollanen suggested to us last 23 week, and see if you and he are on the same page. 24 He talked about a -- a post-mortem 25 examination of a -- a man who had been found dead in a

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1 motel. His post-mortem examination was -- showed 2 cardiovascular disease, but otherwise there were no 3 specific findings. 4 But he was then, subsequently, informed of 5 the fact that this man had been found with a plastic bag 6 over his head which allowed him to conclude that there 7 had been mechanical asphyxia due to suffocation as the 8 cause of death. 9 DR. PEKKA SAUKKO: Yeah, that's a very 10 problematic case, I agree. 11 But I still think that if I would 12 encounter such a case, I probably wouldn't -- I would 13 classify the death as unascertained. I would discuss the 14 possibility of suffocation based on the circumstantial 15 evi -- evidence. 16 MR. NIELS ORTVED: So then -- 17 DR. PEKKA SAUKKO: But I -- there aren't 18 -- there is this slight indifference. I know that from 19 cases from my own country where people have certified 20 alcohol poisoning based on the presence of lots of empty 21 bottles and half bottles of Vodka, and cir -- 22 circumstantial evidence that the person has been drinking 23 heavily, though at post-mortem and in toxicology, there 24 has been no alcohol in blood. 25 But I don't agree with that. But I know

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1 that has happened, because I've been reviewing our cases 2 when I did the assessment of our medicolegal system. 3 MR. NIELS ORTVED: Now, let me just -- by 4 way of further exploring this, because it is of 5 significance, Mr. Commissioner. 6 I'm told that -- that there is in fact a 7 new document at new Volume II, Tab 35, and it's an 8 excerpt from the evidence December 6, 2007, at page 109 9 and 110. 10 Do you have that? Do you have that, Mr. 11 Registrar? 12 13 (BRIEF PAUSE) 14 15 MR. NIELS ORTVED: Tab -- so you've got 16 it, do you, Dr. Saukko? 17 18 (BRIEF PAUSE) 19 20 DR. PEKKA SAUKKO: No. 21 MR. NIELS ORTVED: You don't have it? 22 DR. PEKKA SAUKKO: What tab? 23 MR. NIELS ORTVED: 35 of -- of new Volume 24 II. 25 DR. PEKKA SAUKKO: 35, one (1) page

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1 document or two (2) pages? 2 MR. NIELS ORTVED: One (1) page document, 3 I think. I don't actually have the same copy you have. 4 So -- yeah, that -- yeah, that's it. 5 DR. PEKKA SAUKKO: Yeah. 6 MR. MARK SANDLER: It's on the screen. 7 8 CONTINUED BY MR. NIELS ORTVED: 9 MR. NIELS ORTVED: So what this -- this 10 is an excerpt of the examination of Dr. Pollanen last 11 week, Dr. Saukko. 12 DR. PEKKA SAUKKO: Yes. 13 MR. NIELS ORTVED: I actually think it's 14 -- it confirms exactly what you're saying. Dr. Pollanen 15 is being examined by my colleague, Ms. Langford, 16 concerning this very issue about circumstances. And at 17 page number 109 after the excerpt about a particular 18 case, her question is: 19 "How, Dr. Pollanen... [or] Now, Dr. 20 Pollanen, I take it -- I take that 21 example as being a very good example of 22 what you are telling us yesterday, 23 which is that first of all there are 24 pathologists who have a comfort level 25 relying on circumstantial evidence in

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1 the presence of what I have been 2 calling general signs of mechanical 3 asphyxia. For example..." 4 Dr. Mcl -- Dr. Pollanen's answer is yes. 5 And Ms. Langford: 6 "And I think you described it for -- 7 rather aptly as "the sliding scale of 8 certainty" in that some are more 9 comfortable than others and everybody 10 has a different spot on the spectrum as 11 to when they make that call." 12 Dr. Pollanen: "Yes." And Ms. Langford 13 goes on: 14 "Is that fair, Dr. Pollanen? 15 That's fair, yes. Hopefully, there is 16 some general consensus about the 17 general point what we are -- where we 18 all are on the sliding scale. Because 19 clearly one would say that if you 20 populated the sliding scale, you might 21 separate off those pathologists who -- 22 that were perhaps separated from the 23 pack, as it were." 24 Ms. Langford: 25 "Fair enough. And at both ends of the

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1 spectrum, there will be -- there will 2 not be a consensus. There will be 3 nothing is present and there's nothing 4 that can make that call circumstantial 5 or otherwise. And at the other end of 6 the spectrum, this is the easy call 7 that almost everybody would make." 8 Dr. Pollanen: "Correct." 9 So having read that excerpt, that 10 actually, I think, ducktails with what you're saying to 11 me, isn't it? 12 DR. PEKKA SAUKKO: Yes. 13 MR. NIELS ORTVED: Yeah. So one (1) of 14 the areas of recurring difficulty we know is this whole 15 issou -- issue of mechanical asphyxia in children and its 16 diagnosis, correct? 17 DR. PEKKA SAUKKO: Yes. 18 MR. NIELS ORTVED: And as to when one 19 makes a diagnosis based on circumstances or includes 20 circumstances in a diagnosis is -- there -- there -- it's 21 a questions of judgment. There really isn't any bright 22 line, fair enough? 23 DR. PEKKA SAUKKO: Well, there's a limit. 24 It's -- it's not a sliding scale all the way. 25 MR. NIELS ORTVED: That's what Dr.

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1 Pollanen said that it's -- 2 DR. PEKKA SAUKKO: And it depends on -- 3 on the question. If we take, for instance, the -- what 4 we've talked lots about in -- during recent days the 5 unspecific signs of these petechiae, internal of serous 6 of pericardium pleura findings. Those are unspecific 7 signs. 8 MR. NIELS ORTVED: Correct. 9 DR. PEKKA SAUKKO: So those cannot be 10 considered as diagnostic criteria for mechanical 11 asphyxiation. 12 MR. NIELS ORTVED: Correct. 13 DR. PEKKA SAUKKO: So there's a limit. 14 If you have just those signs, you cannot diagnose 15 mechanical asphyxiation. 16 MR. NIELS ORTVED: And really what I'm 17 putting to you is, the extent to which circumstances can 18 be factored in, and I'm going to come to that, all right? 19 So, coming to Delaney; that's in your -- your main 20 volume, Tab number 4. 21 DR. PEKKA SAUKKO: Yes. 22 MR. NIELS ORTVED: And we've been through 23 this over the past day or so, so I'm not going to go 24 through it in any detail, except to say that you're -- 25 you're prepared to agree with me, I know, that the

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1 background circumstances to this case, to -- to call them 2 unusual would be an understatement. They're bizarre, 3 correct? 4 DR. PEKKA SAUKKO: That's correct. 5 MR. NIELS ORTVED: And you allow in your 6 report that they are certainly sufficient to identify 7 this death as being suspicious, correct? 8 DR. PEKKA SAUKKO: Yeah. 9 MR. NIELS ORTVED: And, in fact, you -- 10 you go on in your report and indicate that, frankly, on 11 the basis of that background, you really have to consider 12 homicide as a likelihood. 13 DR. PEKKA SAUKKO: That's correct. 14 MR. NIELS ORTVED: And in Dr. Smith's 15 post-mortem report -- and it's Tab 7 of that binder, 16 002507, page 4 -- what Dr. Smith indicates is -- is 17 asphyxia due to digital airway obstruction, correct? 18 DR. PEKKA SAUKKO: Yes. 19 MR. NIELS ORTVED: We've already 20 discussed the specific findings or the nonspecific 21 findings on autopsy here, and clearly to the extent that 22 that was Dr. Smith's opinion, it was premised on 23 circumstantial evidence, correct? 24 DR. PEKKA SAUKKO: Correct. 25 MR. NIELS ORTVED: And what you allowed

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1 in your report, and it's back at Tab number 4, is that 2 the circumstances suggested homicide, but there's no 3 pathology to substantiate, although the pathology does 4 not exclude it, correct? 5 DR. PEKKA SAUKKO: Correct. 6 MR. NIELS ORTVED: And really, if you 7 were looking at -- at the pathology findings that you had 8 in this case, if -- if the mother caused Delaney's death 9 by obstructing his airway with her fingers, then actually 10 the autopsy results would probably be very much what was 11 seen in this case, correct? 12 DR. PEKKA SAUKKO: I don't know. 13 14 (BRIEF PAUSE) 15 16 MR. NIELS ORTVED: They aren't 17 contradicted by this evidence. You've said that in your 18 report. 19 DR. PEKKA SAUKKO: It's a possibility. 20 MR. NIELS ORTVED: All right. 21 DR. PEKKA SAUKKO: It's a possibility. 22 MR. NIELS ORTVED: And -- and what I'm 23 suggesting to you is, it's really mostly just a question 24 of nomenclature. 25 DR. PEKKA SAUKKO: No, it's the absence

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1 of pathological evidence. 2 MR. NIELS ORTVED: So, back to Dr. 3 Pollanen's review; you've got that there. That's new 4 Volume I, Tab 17. 5 DR. PEKKA SAUKKO: Yes. 6 MR. NIELS ORTVED: Page number 6. Are 7 you with me? 8 DR. PEKKA SAUKKO: Yes. 9 MR. NIELS ORTVED: Bottom of the page; 10 it's the same paragraph I took you to previously. So it 11 reads: 12 "Another sliding scale issue is when a 13 pathologist puts more weight on 14 circumstantial evidence compared to 15 pathological evidence. This can result 16 in the circumstantial diagnosis that 17 may be true but does not flow directly 18 from medical evidence. This can lead 19 to problems if the [circumstantial 20 evidence is] circumstantial information 21 is wrong, however, circumstantial 22 diagnosis can give the impression of 23 bias even if this is not the case. 24 This need not necessarily indicate a 25 bias.

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1 The best examples in the overview 2 reports are Delaney and another one. 3 In both these cases, the diagnosis of 4 asphyxia was largely circumstantial and 5 in my view, raises issue about the use 6 of nomenclature rather than over- 7 reliance on outdated signs of asphyxia, 8 although that is also a consideration." 9 Now do you agree or disagree with that 10 statement? 11 DR. PEKKA SAUKKO: Well, to be accurate, 12 he says that pathologist put small weight on 13 circumstantial evidence compared to pathological 14 evidence. That's fair to say but in this case, there was 15 no pathological as evidence. 16 MR. NIELS ORTVED: And -- and Dr. 17 Pollanen is telling us that in the circumstances of this 18 case, it's really just an issue of nomenclature. 19 DR. PEKKA SAUKKO: I don't agree. 20 MR. NIELS ORTVED: Okay. So, you can 21 disagree, you know. 22 DR. PEKKA SAUKKO: Yes. 23 MR. NIELS ORTVED: You disagree, fine. 24 So let's go to Kenneth. 25 COMMISSIONER STEPHEN GOUDGE: How are you

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1 doing for time, Mr. Ortved? 2 MR. NIELS ORTVED: I'm doing -- I'm right 3 on schedule, which is to say -- 4 COMMISSIONER STEPHEN GOUDGE: Which is to 5 say another...? 6 MR. NIELS ORTVED: Which is to say I'll 7 be -- 8 COMMISSIONER STEPHEN GOUDGE: Another -- 9 MR. NIELS ORTVED: -- I think -- 10 COMMISSIONER STEPHEN GOUDGE: -- ten (10) 11 minutes, all right. 12 MR. NIELS ORTVED: -- five (5) -- five 13 (5) to ten (10). 14 COMMISSIONER STEPHEN GOUDGE: Great. 15 16 CONTINUED BY MR. NIELS ORTVED: 17 MR. NIELS ORTVED: As long as Dr. Saukko 18 gives me the right answers. 19 So coming to Kenneth, that's your -- your 20 document, Volume I, Tab 11. 21 DR. PEKKA SAUKKO: Yes. 22 MR. NIELS ORTVED: And here again, 23 without going through it in terms of the overview report, 24 what we got is -- is this two (2) year old, four (4) 25 month child who had had a very troubled history, been in

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1 and out of care, correct? 2 DR. PEKKA SAUKKO: Correct. 3 MR. NIELS ORTVED: Children's Aid? 4 DR. PEKKA SAUKKO: Yeah. 5 MR. NIELS ORTVED: Had been admitted to 6 hospital not long before his death -- a month before his 7 death -- with a fracture of the right femur, correct? 8 DR. PEKKA SAUKKO: Correct. 9 MR. NIELS ORTVED: In your business, that 10 is a very worrisome finding in a child of this age? 11 DR. PEKKA SAUKKO: That's correct. 12 MR. NIELS ORTVED: And then there's the - 13 - the circumstances of -- of leading to death which -- 14 which was canvassed with you earlier today and in the 15 result again, you indicate this was a highly suspicious 16 set of circumstances, correct? 17 DR. PEKKA SAUKKO: That's correct. 18 MR. NIELS ORTVED: And -- and you allow, 19 in your report, that the possibility of homicide has to 20 be taken into account, correct? 21 DR. PEKKA SAUKKO: That's correct. 22 MR. NIELS ORTVED: And -- and you know 23 that this was another one of these cases that was seen at 24 the Hospital for Sick Children, correct? 25 DR. PEKKA SAUKKO: That's correct.

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1 That's correct. 2 MR. NIELS ORTVED: And -- and without my 3 taking you to them individually, you know that the 4 clinicians in this case were very, very concerned about 5 the possibility of -- of abuse? 6 DR. PEKKA SAUKKO: That's correct. 7 MR. NIELS ORTVED: And Dr. Smith's 8 conclusion was asphyxia which we've discussed at length 9 with which you do not agree and -- and specifically here 10 we don't have a mechanism indicated, correct? 11 DR. PEKKA SAUKKO: That's correct. 12 MR. NIELS ORTVED: The findings on 13 autopsy are nonspecific, but they don't -- they don't 14 rule out suffocation, correct? 15 DR. PEKKA SAUKKO: Yes, correct. 16 MR. NIELS ORTVED: And so then what I'm 17 suggesting to you is what we have here is once again a -- 18 a situation of a diagnosis based on circumstances without 19 that having been identified. 20 DR. PEKKA SAUKKO: No, I -- I'm not sure 21 if I understand you correctly. 22 MR. NIELS ORTVED: So here now, Mr. 23 Registrar, we have another excerpt of the evidence and 24 it's new Volume 2, Tab 32, and it's December 5th, 2007, 25 page 117 to 118. Do you have that? And for your -- it's

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1 -- do you have it, Dr. Saukko? It's new Volume 2, Tab 2 32. Here we go. 3 DR. PEKKA SAUKKO: Page 117. 4 MR. NIELS ORTVED: Page 117, do you have 5 it? 6 DR. PEKKA SAUKKO: Yes. 7 MR. NIELS ORTVED: So here is Dr. 8 Pollanen again, last week, being examined by Mr. Sandler 9 and -- and Mr. Sandler says: 10 "All right, Kenneth, Dr. Pollanen, and 11 Kenneth, it's -- the again -- this is a 12 child who is in hospital with an anoxic 13 brain injury. So at some point in time 14 there's been an interruption of oxygen 15 flow to the brain and there's evidence 16 of an old fracture and quite an unusual 17 circumstantial history. And, 18 essentially, that's resulted in a 19 circumstantial diagnosis of asphyxia. 20 I'm not actually sure. We'd have to go 21 back to the report, Dr. Smith may have 22 in fact certified that as an 23 undetermined." 24 We know it certified it as asphyxia, 25 correct?

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1 DR. PEKKA SAUKKO: Yes, correct. 2 MR. NIELS ORTVED: 3 "But the more fulsome sort of 4 presentation of that in court was along 5 the asphyxia lines. And the issue 6 basically here is what is the 7 specificity of hypoxic brain damage in 8 a scenario which includes unnatural 9 causes. And it's a very difficult 10 issue, and it's essentially one (1) of 11 those issues that will be decided more 12 by testing of circumstantial and non- 13 medical information by the trier of 14 fact." 15 I've read that correctly? 16 DR. PEKKA SAUKKO: Yes. 17 MR. NIELS ORTVED: So what Dr. Pollanen 18 effectively is saying is what we have here is -- is a 19 circumstantial diagnosis and -- and really the issue is 20 for the -- for the court to decide, correct? 21 DR. PEKKA SAUKKO: Yes. 22 MR. NIELS ORTVED: Thank you, those are 23 my questions. 24 COMMISSIONER STEPHEN GOUDGE: Thanks, Mr. 25 Ortved. We'll rise then until 9:30 tomorrow morning.

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1 And Mr. Lockyer we'll begin with you for 2 an hour and a half, and then Ms. Kirkpatrick for an hour 3 and a half, and we will follow with the -- the others 4 tomorrow afternoon. And I don't know if you're in touch 5 with Mr. Manishen, Mr. Sokolov, but he'll -- he'll be on 6 tomorrow afternoon. I'm assuming it's him, or do you 7 know? 8 MR. LOUIS SOKOLOV: I don't know, but 9 I'll -- 10 COMMISSIONER STEPHEN GOUDGE: You don't 11 have to do anything. Probably Mr. Sandler will do it or 12 he may be watching intently on the Internet. Tomorrow 13 morning at 9:30. 14 15 (WITNESSES RETIRE) 16 17 --- Upon adjourning at 4:39 18 19 Certified correct, 20 21 22 __________________ 23 Rolanda Lokey, Ms. 24 25