11 2 3 THE INQUIRY INTO PEDIATRIC FORENSIC 4 PATHOLOGY IN ONTARIO 5 6 7 8 ******************** 9 10 11 BEFORE: THE HONOURABLE JUSTICE STEPHEN GOUDGE, 12 COMMISSIONER 13 14 15 16 Held at: 17 Offices of the Inquiry 18 180 Dundas Street West, 22nd Floor 19 Toronto, Ontario 20 21 22 ******************** 23 24 December 21st, 2007 25
21 Appearances 2 Linda Rothstein ) Commission Counsel 3 Mark Sandler (np) ) 4 Robert Centa (np) ) 5 Jennifer McAleer (np) ) 6 Johnathan Shime (np) ) 7 Ava Arbuck (np) ) 8 Tina Lie (np) ) 9 Maryth Yachnin (np) ) 10 Robyn Trask ) 11 12 Brian Gover (np) ) Office of the Chief Coroner 13 Luisa Ritacca ) for Ontario 14 Teja Rachamalla ) 15 16 Jane Langford (np) ) Dr. Charles Smith 17 Niels Ortved (np) ) 18 Erica Baron ) 19 Grant Hoole (np) ) 20 21 William Carter ) Hospital for Sick Children 22 Barbara Walker-Renshaw(np) ) 23 Kate Crawford ) 24 Paul Cavalluzzo (np) ) Ontario Crown Attorneys' 25 Association
31 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 (np) ) William Mullins-Johnson, 8 Alison Craig ) Sherry Sherret-Robinson and 9 Phillip Campbell (np) ) seven unnamed persons 10 Peter Wardle (np) ) Affected Families Group 11 Julie Kirkpatrick (np) ) 12 Daniel Bernstein (np) ) 13 14 Louis Sokolov (np) ) 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
41 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 ) College of Physicians and 11 Carolyn Silver (np) ) Surgeons 12 13 Michael Lomer (np) ) For Marco Trotta 14 Jaki Freeman (np) ) 15 16 Emily R. McKernan (np) ) Glenn Paul Taylor 17 18 19 20 21 22 23 24 25
51 TABLE OF CONTENTS Page No. 2 3 JEAN MICHAUD, Sworn 4 JOSEPH DE NANASSY, Sworn 5 BLAIR CARPENTER, Sworn 6 7 Cross-Examination by Ms. Alison Craig 6 8 Cross-Examination by Ms. Suzan Fraser 18 9 Cross-Examination by Ms. Luisa Ritacca 34 10 11 Certificate of transcript 83 12 13 14 15 16 17 18 19 20 21 22 23 24 25
61 --- Upon commencing at 9:30 a.m. 2 3 THE REGISTRAR: All Rise. Please be 4 seated. 5 COMMISSIONER STEPHEN GOUDGE: Good 6 morning. Okay. We begin with, from the Mullins-Johnson 7 group, Ms. Craig. 8 9 10 JEAN MICHAUD, Resumed 11 JOSEPH DE NANASSY, Resumed 12 BLAIR CARPENTER, Resumed 13 14 CROSS-EXAMINATION BY MS. ALISON CRAIG: 15 MS. ALISON CRAIG: Yes, good morning, 16 Commissioner. Good morning, doctors. My name is Alison 17 Craig and I'm one (1) of the lawyers that represent nine 18 (9) individuals who were convicted of crimes related to 19 cases that Dr. Smith worked on. And I really just have a 20 couple of areas. I'm going to ask you a couple of open- 21 ended questions about -- to get your feedback. 22 First, Dr. Michaud, there was some 23 discussion yesterday about whether criminally suspicious 24 autopsies should be conducted by pediatric pathologists or 25 forensic pathologists.
71 And I understood it's your view that that's 2 a matter that really should be open for further discussion 3 and further debate, but I also got the sense from you, 4 correct me if I'm wrong, that in a perfect world, funding 5 and logistics aside, it would be a good idea to have both 6 present at a criminally suspicious autopsy. 7 Am I -- am I right in that? 8 DR. JEAN MICHAUD: Well, the first -- the 9 first thing I could say about this is that we have to live 10 with the resources that we have, and the message for both 11 elements that you mentioned is that this kind -- decision 12 should not be taken unilaterally without having the input 13 from those who work in the system. 14 So, the first angle is, well, a decision 15 has to be made, let's sit down and discuss the pros and 16 cons of either decisions, and at some point in time, yes, 17 somebody will have to make a decision. But I believe that 18 those practising in the system have the right to be heard. 19 Second. For specific cases, again, it's 20 just a matter of good communication. It's a case-per-case 21 basis and I'm not a frontline forensic pathologist; I'm 22 just a consultant, so my colleagues may have comments to 23 say about -- to say about this. But again, on a case- 24 per-case basis, if there is good communication, a good 25 process, a well established process, again, decided as a
81 group, then we can function prospectively in a cohesive 2 manner. 3 MS. ALISON CRAIG: Okay. Dr. de Nanassy, 4 do you have anything to add to that? Funding issues 5 aside, let's say there's plenty of funds and a large pool 6 of pathologists available to do the work, would you agree 7 that it's the best approach to have both a pediatric and a 8 forensic pathologist available at a criminally suspicious 9 autopsy? 10 DR. JOSEPH DE NANASSY: Well, again, it 11 depends on a case by case situation, such an autopsy could 12 be either done completely alone by the pediatric 13 pathologist if the nature of -- of the case is such that 14 he or she can handle it -- handle it on their own. 15 Alternatively, the pediatric pathologist 16 would have the option of calling in a forensic 17 pathologist, double doctoring, or the foren -- the 18 pediatric pathologist might say, well, this is beyond my 19 knowledge, and limit, and level of comfort, I better have 20 the case transferred to a forensic centre. 21 It depends on the case. 22 MS. ALISON CRAIG: And the resources 23 should be available to make that an option at all times. 24 I suspect you'd agree? 25 DR. JOSEPH DE NANASSY: Yes, I mean --
91 yes. 2 MS. ALISON CRAIG: Okay. Thank you, 3 that's helpful. And the only other area I wanted to ask 4 you about: You would agree with me, I'm sure all of you, 5 that it's important for the Defence Bar to have access to 6 pathologists and the work that they do to get independent 7 consultations? 8 DR. JEAN MICHAUD: Yes, it is. 9 DR. JOSEPH DE NANASSY: Yes. 10 DR. JEAN MICHAUD: Yes. 11 MS. ALISON CRAIG: You would all agree 12 with that. And I'm sure you're probably aware of the 13 difficulties that the Defence Bar often has in gaining 14 access to pathologists who are willing to take on cases. 15 DR. JEAN MICHAUD: Yes, it is and we -- we 16 know about this. 17 MS. ALISON CRAIG: You do. 18 DR. JEAN MICHAUD: It is related to the 19 fact that there are limited resources in the system and 20 the -- the more specialised you are, the less -- the fewer 21 people there is. I was mentioning in outside discussions 22 that better collegiality between forensic pathologists in 23 this Province, more input from various people in review 24 committees and so on, would have a disadvantage. And this 25 disadvantage would be that you will have fewer
101 individuals, or perhaps at some point in time, no 2 individuals who would not be -- who would not have had 3 contact with a specific case for defence to have -- you 4 know, to have access or to call upon for some help. That 5 would be one (1) disadvantage of a larger pool of 6 discussant at any given review committees. 7 But at this moment the resources are very 8 limited. 9 MS. ALISON CRAIG: And I think we've heard 10 some evidence so far that there is a general systemic 11 reluctance of pathologist, many pathologists, not all, to 12 take on work for the Defence Bar. 13 Can you provide any insight onto, resources 14 aside, why pathologists are sometimes unwilling to get 15 involved in defence work? 16 DR. JEAN MICHAUD: It's a multifactorial 17 element. I have done some support -- I've given some 18 support to defence counsels in the past, prior to my 19 coming to Ontario and here. 20 First of all, we have already -- we always 21 have a tremendous workload; we deal with a lot of work, 22 okay. So to put one (1) to two (2) more cases, sometimes 23 very complex, on top of our workload is -- is -- you know, 24 we have to think about it. This is something that we have 25 to recognize right from the beginning.
111 Second, there is sometimes a reluctance to 2 review the work of colleagues whom we see at meetings, 3 various circumstances, and so on; sometimes we may be 4 friend with them and so on. So that -- that's another 5 aspect. 6 Third, there is also on part of defence 7 counsel this hesitation about the case sometimes, and 8 obviously the tendency to maybe influence our own opinion 9 and so on. And I -- I think we -- we -- as professionals, 10 we sometimes are allergic to this. There -- there are 11 situations where we're told that no written report will be 12 needed, and we'll just want you to have your opinion, and 13 we just want you to help us maybe to frame out some 14 questions, and so on, and so on. So, you know, this is 15 the type of situation we live. 16 Personally, remuneration has never really 17 been a factor, although again, resources there are not as 18 appealing as one would like to -- I think the Child Aid 19 Society has not moved along with -- with the rest of those 20 who support that type of work. And personally, I've had 21 instances where I was never paid. Personally. 22 So there -- there are all those factors, 23 and -- but limited time is -- in my view, my personal 24 life, limited time is a major factor. 25 MS. ALISON CRAIG: And I -- I hear you
121 mention remuneration, and that was going to be my last 2 question. You're aware, obviously, that most defences are 3 funded particularly in -- in large homicide cases, for 4 example, by the legal aid system. Remuneration has long 5 been an issue. 6 Do you think -- and I -- you acknowl -- you 7 say it's not -- not an issue for you, but for many 8 pathologists, is it the remuneration -- the fact that they 9 may not get paid, and if the do get paid, it's not going 10 to be much -- is that one (1) of the main factors in -- in 11 the unwillingness? 12 DR. JEAN MICHAUD: Very honestly, I cannot 13 answer your question because this is not a topic that I am 14 discuss with -- that -- that I have discussed with my 15 colleagues. I have never really heard anything poor or 16 against that, so I -- I really cannot answer the question. 17 MS. ALISON CRAIG: Dr. de Nanassy, do you 18 have anything to add? 19 DR. JOSEPH DE NANASSY: I don't -- I 20 haven't had any personal involvement with working for 21 defence, so I don't really have an opinion. 22 MS. ALISON CRAIG: And what's -- what's 23 the reason that you haven't been involved in defence work? 24 DR. JOSEPH DE NANASSY: I wasn't asked. 25 MS. ALISON CRAIG: You've never been
131 asked? 2 Dr. Carpenter...? 3 DR. BLAIR CARPENTER: I haven't been 4 involved very often neither. Time is an important issue, 5 being understaffed and overworked. The remuneration is 6 not very good. I don't think this would be an argument to 7 say yes or no. I have gotten involved verbally with some 8 people in -- in Ottawa, some lawyers or some people, and 9 often just not even a written -- or writing a report, just 10 giving them the advice, and remuneration was not involved 11 here. So it just stayed as such. 12 So remuneration is certainly not the -- a 13 major factor, but it certainly an important factor. Human 14 being, being what they are, if they're not paid to do 15 something they're less inclined to do it then if they're 16 paid to do it adequately. And that is across the board 17 whether you're a pathologist, or a lawyer, or a judge, or 18 a plumber; whatever you do, you wanted to be remunerated 19 proportionately to what you do and we are not at that 20 level, or at least we used not to be. 21 Me, personally, if you want my own opinion 22 why I was not involved all that often, aside from the 23 timing, is I did not feel at ease doing that for some 24 reason. Lack of experience in doing it. I wouldn't say 25 the fear, but the anxiety of getting involved in a new
141 approach to the work I do, finding the time to do that. 2 All that add -- it's to the fact that I was 3 not inclined to looking forward to doing it. I fully 4 realize it's wrong, because I've spoken with confrere, 5 I've spoken to groups/meetings, and I realize that it's 6 all important. 7 The -- the whole basis of our system is 8 based on that and if we don't do it the system falls 9 apart. But the fact remains that we are not a ease, we 10 are not well prepared to do that, and not inclined to do 11 it. 12 The only answer would be a larger pool of 13 pathologists from which to draw. That would be -- add 14 some expertise in forensic pathology and pediatric 15 forensic pathology, which they would be -- have to be part 16 of -- in the system that you just have to make such an 17 amount of time, a year fulfilling your civic duties of 18 being involved. 19 I don't know if it's possible in our 20 system. I don't know if it's possible in our North 21 American culture, but -- 22 MS. ALISON CRAIG: But you think it would 23 help? 24 DR. BLAIR CARPENTER: I don't know if it 25 will help, because it's not better off to have somebody
151 who's not interested in going, then you get a bad job 2 done. But something has to be looked into, and I don't 3 have exactly the answer. 4 MS. ALISON CRAIG: Thank you. Dr. 5 Michaud, did you have something to add? 6 DR. JEAN MICHAUD: Yes, if you'll allow me 7 I'd like to add two (2) -- two (2) other elements that are 8 based on personal experience. 9 First, I'm -- I'm -- specialize in 10 neuropathology, and sometimes there is, because of lack of 11 specialists around available for helping and so on, 12 sometimes there's a pressure to expand my expertise to 13 other areas where I'm not comfortable. And I -- I would 14 mention there true forensic elements, and then I'm -- I'm 15 not really willing to do that. 16 And second is that at times you get the 17 feeling, it's not confirmed, but you get the feeling that 18 you may not have all the elements in your hands to really 19 assess the case. And -- so this is something that also 20 bothers me at times. You never know, you don't have the 21 proof of this, and so on. You -- you deal with what you 22 have, you work with this. But you know, there are times 23 where you have the impression that maybe there -- there 24 are some pieces missing. 25 So this -- this is the type of work that is
161 very difficult in -- in -- for all those reasons. 2 MS. ALISON CRAIG: So do I hear you saying 3 that you're not provided with everything often times, as 4 the original pathologist would have been? Is that -- 5 DR. JEAN MICHAUD: We don't know that. 6 MS. ALISON CRAIG: You don't know. 7 DR. JEAN MICHAUD: We don't know that. We 8 may have this feeling, but there is nothing to really 9 substantiate. But, you know, once the feeling is there, 10 you have to live with it, but yet this is something that 11 sometimes I have -- I have to deal with. 12 MS. ALISON CRAIG: Would a way to counter 13 that problem, if it was -- if it was possible, be to have 14 a pathologist on behalf of the defence attend at the 15 original autopsy? Would that -- would you feel 16 comfortable doing that? 17 Would that make pathologists feel for -- 18 feel more comfortable, that they were getting the whole 19 picture when they are accessing? 20 DR. JEAN MICHAUD: Well this -- this is a 21 process I believe that is already possible. Certainly 22 I've been aware of one (1) case where -- while it was not 23 done at the same time, it was done sequentially. But I -- 24 I believe the process is already in place for that, if I 25 recall what I've read somewhere, but maybe the Coroner's
171 Office would confirm that. 2 But you -- you know, the judicial system 3 should allow that, to me there is no doubt about this. 4 But unfortunately most of the time you don't know 5 immediately when it's needed; it's only months sometimes 6 after. 7 MS. ALISON CRAIG: What about -- just 8 while I'm thinking of it, if autopsies were video taped, 9 or audio taped? I suppose video taped would make more 10 sense. If that -- a videotape of the autopsy was provided 11 to a reviewing pathologist, would that be of help? Would 12 that make you more comfortable in reviewing it? 13 DR. JEAN MICHAUD: Well, I believe that 14 numerous photographs are already taken, and I think video 15 -- videotaping of a -- of the entire autopsy would 16 probably be useless. But I believe that the appropriate 17 photographs are taken. 18 And in fact this is one (1) part of the 19 evaluation of cases that is done. If you recall 20 yesterday, Dr. Carpenter was mentioning a few cases that 21 he had reviewed for the Coroner's Office, cases that were 22 done by Dr. Smith, photographs and the pertinence of the 23 photographs, and the appropriateness of photographs was 24 mentioned in his reports. 25 When Dr. Pollanen was visiting Ottawa a few
181 months ago, well, in fact this fall, I mentioned to him 2 that in our original program we will have telepathology. 3 And I believe that he has now included that in a tool that 4 could be used for second doctoring on consultation or a 5 second opinion right at the time of an autopsy once, you 6 know, you find something that is unexpected, something 7 that is, you know, maybe equivocal, difficult, and so on. 8 So that -- that's another possibility that 9 modern technology would allow us to -- to use. 10 MS. ALISON CRAIG: Thank you, doctors. 11 Those are helpful suggestions. Those are my questions, 12 Commissioner. 13 COMMISSIONER STEPHEN GOUDGE: Thanks, Ms. 14 Craig. Ms. Baron, you have got no questions, I take it? 15 Ms. Fraser...? 16 17 CROSS-EXAMINATION BY MS. SUZAN FRASER: 18 MS. SUZAN FRASER: Doctors, my name is 19 Suzan Fraser, and I'm here on behalf of an organization 20 called Defence for Children International, which is a 21 charitable organization founded in Geneva in 1979 and is 22 devoted promoting and protecting the rights of the child. 23 I have some questions flowing from your 24 evidence yesterday, which I read and listened to by 25 webcast. And I was struck, listening to your evidence by
191 -- both on the memo, 631, which is the "think dirty" memo, 2 and on the recent changes regarding the medicolegal 3 autopsies -- as it seemed to me that in both of those 4 cases these were decisions that were made out of Toronto 5 or the -- the central office without consultation. 6 Am I right, Dr. Michaud, in understanding 7 that? 8 DR. JEAN MICHAUD: I cannot address the 9 first example that you gave, because I was not even in 10 Ontario -- 11 MS. SUZAN FRASER: All right. 12 DR. JEAN MICHAUD: -- at that time. 13 MS. SUZAN FRASER: Yes. 14 DR. JEAN MICHAUD: The second one, Dr. de 15 Nanassy is the forensic pathologist at CHEO. He would 16 probably be in a better position to answer this. But the 17 fact is that we -- yes, we were never consulted for it. 18 MS. SUZAN FRASER: All right. And -- and, 19 Dr. Carpenter, was that the case with memo 631, that this 20 was something that was produced out of the Office of the 21 Chief Coroner without consultation? 22 DR. BLAIR CARPENTER: For the "dirty" 23 memo? 24 MS. SUZAN FRASER: Yes. 25 DR. BLAIR CARPENTER: No, I was not
201 consulted on that. I -- I was told it exists and 2 explained what it meant and so on. I -- sorry. I -- I 3 was not involved in the decision of writing the memo and 4 the reason of why they did send the memo. 5 MS. SUZAN FRASER: All right. And it 6 seems to me that what that memo did was to import a 7 philosophy into a science. 8 Do you agree with me in my interpretation 9 of that? 10 DR. BLAIR CARPENTER: Yeah, I do agree 11 with you. 12 MS. SUZAN FRASER: All right. 13 DR. BLAIR CARPENTER: I -- I think it -- 14 it tried to -- to show to the people -- the various 15 pathologists -- that they had to change their approach and 16 be more aggressive, more inclined to think that there was 17 something wrong underneath before saying there was 18 something right. 19 So the philosophy was to try and pick up 20 something wrong if it was there, or -- or at least try to 21 push at the issue. 22 I always looked at the autopsy and the 23 opposite side. You -- you want to rule out that was 24 something wrong, and then you say, Okay, the -- the child 25 died naturally.
211 MS. SUZAN FRASER: Right. 2 DR. BLAIR CARPENTER: And only if it did 3 not that you say, Well, it was due to something that went 4 wrong. The -- to me the -- the mentality of the "dirty" 5 memo is to try and change that mentality. 6 Now, I think it's good if you send a memo 7 to people who do not realize that these cases exist. They 8 tend to be too nice and lenient towards the parents, or 9 the guardian, or whoever was responsible -- 10 MS. SUZAN FRASER: But -- 11 DR. BLAIR CARPENTER: -- for the child. 12 So you say to them, you put in face -- Think dirty, don't 13 think nice. You're goin -- those things exist. If you 14 look at it that way, it's a good memo. 15 On the other hand, the side effect is that 16 you maybe push a little too far and change the philosophy 17 of what I just mentioned. 18 MS. SUZAN FRASER: Right. But you -- I 19 think you'll agree with me that if there are particular 20 concerns about particular cases, where people have seemed 21 to have overlooked something or missed something, that 22 that should be addressed with the individual, correct? 23 DR. BLAIR CARPENTER: Well, I would -- 24 MS. SUZAN FRASER: The pathologist who -- 25 DR. BLAIR CARPENTER: If there was
221 something wrong and something was missed, it has to be 2 looked upon and -- and try to see where the -- the 3 wrongdoing is. 4 MS. SUZAN FRASER: And would you also 5 agree with me that if you're trying to address a problem, 6 if there is a problem of people missing things, that 7 that's something that you really need to bring together 8 people about, rather than to dictate to people by memo? 9 DR. BLAIR CARPENTER: Well I don't think 10 it was dictated. That's a -- 11 MS. SUZAN FRASER: All right. 12 DR. BLAIR CARPENTER: -- little too far. 13 It was written down to -- to stimulate people to think 14 that way. They didn't force people to do that. I don't 15 think so, at least not for in my case. 16 But I think it had to be brought forward. 17 Now to use the word, as you said, and put the emphasis on 18 it, it has a limit. And I guess it's proportionate to the 19 person who received the memo and what they wanted to do 20 with it. 21 MS. SUZAN FRASER: Right. Well I think 22 that's my concern, is that it seems to me we've heard 23 evidence both from Dr. Cutz, who was here, who I took it 24 as him say -- seeing the memo and -- and proceeding to do 25 what he had always done. And I -- I took a flavour of
231 that from the evidence yesterday. 2 So it -- it just seemed to me, in terms of 3 decision-making style, contents of the memo aside, that if 4 you're trying to reach out to pathologists to address 5 concerns, that memo might not be the best way to do it. 6 And would you agree with me -- 7 DR. BLAIR CARPENTER: I -- I can't really 8 say on that. 9 MS. SUZAN FRASER: All right. 10 DR. BLAIR CARPENTER: For me it was okay, 11 yet they -- it was a memo like another memo. 12 MS. SUZAN FRASER: All right. Yes, Dr. 13 Michaud? 14 DR. JEAN MICHAUD: Well as I mentioned 15 yesterday, I could not comment on the information -- or 16 consultation or lack of. 17 MS. SUZAN FRASER: Yes. 18 DR. JEAN MICHAUD: But I mentioned 19 yesterday that if I had seen that I would have reacted, 20 and I mentioned how I would have reacted. 21 As Dr. Carpenter said, this breaks the 22 philosophy that pathologists are used to work. We are 23 used to work with open minded. We have to be alert for 24 all fronts. To put emphasis on this it is shifting the 25 alertness on one side versus the other side.
241 And second, as I mentioned yesterday, it 2 gives a negative colour to the work that -- that we do. 3 And finally I would say that this memo was 4 certainly not sent to pathologists only. I think the 5 message was probably more for other members of the inveg - 6 - investigation team -- 7 MS. SUZAN FRASER: Right. 8 DR. JEAN MICHAUD: -- than just 9 pathologists. 10 MS. SUZAN FRASER: All right. All right. 11 I'll move on then. Just... 12 13 (BRIEF PAUSE) 14 15 MS. SUZAN FRASER: Dr. Michaud, you talked 16 about being in Quebec in the 1990s yesterday, and you 17 talked about an increasing awareness of child abuse in the 18 1990s. 19 And I think that the record will reflect 20 here, with some of the documents that have already been 21 filed with the Commission, that in Ontario there was a 22 similar development of our understanding and awareness of 23 child abuse. 24 And am I right in understanding your 25 evidence from yesterday that this awareness was really
251 starting to come out in the mid-1990s? 2 DR. JEAN MICHAUD: I do not believe that I 3 phrased that exactly like this -- 4 MS. SUZAN FRASER: You didn't say it that 5 way -- 6 DR. JEAN MICHAUD: -- I was in -- in the 7 Province, it were -- between 1981 and 1997. 8 MS. SUZAN FRASER: Yes. 9 DR. JEAN MICHAUD: The awareness that -- 10 that developed over the years, and certainly it was 11 already present in the '80s -- 12 MS. SUZAN FRASER: Yes. 13 DR. JEAN MICHAUD: -- is that pediatric 14 autopsies had to be done in pediatric centres if we wanted 15 to get optimal results about the presence of true Sudden 16 Infant Death Syndrome -- 17 MS. SUZAN FRASER: All right. 18 DR. JEAN MICHAUD: -- versus Sudden 19 Unexpected Death with identifiable causes. 20 MS. SUZAN FRASER: Yes. 21 DR. JEAN MICHAUD: If you -- you will 22 recall that following questioning by Ms. McAleer, that the 23 histology part of the autopsy in pediatric forensic 24 pathology has an importance that may not be as great as in 25 adult forensic pathology, for example.
261 MS. SUZAN FRASER: Yes. 2 DR. JEAN MICHAUD: So I -- I believe that 3 the awareness that developed over the years in the 4 province was then enhanced role of pediatric pathology in 5 the proceeding of forensic -- pediatric forensic cases. 6 I do not believe that we became more aware 7 of -- 8 MS. SUZAN FRASER: I see. 9 DR. JEAN MICHAUD: -- child abuse -- 10 MS. SUZAN FRASER: I see. 11 DR. JEAN MICHAUD: -- in those years, 12 because I believe we had been aware of that all along. 13 MS. SUZAN FRASER: Okay. So I've come to 14 think of the SIDS case, or the Sudden Unexpected Death 15 Under Two, as being a real chicken and egg problem for 16 pathologists, because there's been a discussion here that 17 criminally suspicious cases should go to a forensic 18 pathologist. 19 And the pediatric pathologists tell us that 20 in the case of a Sudden Unexpected Death, that we don't 21 know whether it's criminally suspicious until we do the 22 autopsy. 23 These are very difficult cases, and there's 24 a huge work up. Dr. Carpenter, am I right that this is a 25 bit of a chicken and egg problem?
271 DR. BLAIR CARPENTER: Well I don't know if 2 it's a chicken and an egg, but obviously if -- if it's a 3 sudden death unexpected at home, obviously you don't know 4 what the -- the cause is before you do the autopsy. 5 So it's -- it could be suspicious, or it 6 may not be suspicious. But it has to be suspicious to 7 start with because you don't know. So -- but it's not -- 8 I think then you -- you have to work it up in -- 9 MS. SUZAN FRASER: All right. So we're 10 talking about where there have been suggestions made about 11 a second doctor. 12 In terms of -- it seems to me that in 13 pediatric cases, with the SIDS cases being the most 14 difficult, that that might be a case where there -- that 15 you ought to have the pediatric pathologist and the 16 forensic pathologist working together, where there no 17 issue of wound interpretation, but it really is a sort of 18 classic SIDS case? 19 DR. JEAN MICHAUD: I -- I may -- I may 20 just say that SIDS cases are not difficult. 21 MS. SUZAN FRASER: All right. 22 DR. JEAN MICHAUD: This is our routine. 23 MS. SUZAN FRASER: All right. 24 DR. JEAN MICHAUD: This is routine work 25 for us.
281 MS. SUZAN FRASER: Yes. 2 DR. JEAN MICHAUD: Okay? They may be -- 3 they may be get complicated or difficult if we find 4 something that is unexpected or something. But SIDS cases 5 are part of our -- the routine work of a pediatric 6 hospital. And so I would not label them as difficult. 7 Our role is to ensure that there is nothing behind -- 8 MS. SUZAN FRASER: Yes. 9 DR. JEAN MICHAUD: -- the sepsis, 10 congenital malformation, or something else that would take 11 these cases out of the SIDS category, that would help the 12 family to understand why this thing happened -- 13 MS. SUZAN FRASER: All right. 14 DR. JEAN MICHAUD: -- because this is a 15 very important element. In fact, in SIDS cases we help 16 much more the family than we help the judicial system. 17 But we help the judicial system also by saying, This 18 autopsy does not show anything, okay. 19 And so with the other elements of the 20 investigation, at the end of the day you may say, This is 21 a Sudden Infant Death Syndrome or this is a Sudden 22 Unexpected Death related to, I don't know, poor bed 23 arrangement or things like this. 24 But for us it's routine. It's routine 25 work.
291 MS. SUZAN FRASER: All right. 2 DR. BLAIR CARPENTER: And -- 3 MS. SUZAN FRASER: So those cases prop -- 4 in your opinion, Dr. Michaud, properly belong with the 5 pediatric pathologist? 6 DR. JEAN MICHAUD: Oh, definitely. 7 DR. BLAIR CARPENTER: If -- if anything, 8 they're difficult for non-pediatric pathologists. It's 9 the reverse of your question. When it comes to a 10 pediatric pathologist, they are routine. They -- they are 11 simple case. It's when you are not a pediatric pathologist 12 that you try to avoid those sudden infant deaths in those 13 case. 14 And that's why they can't just send them to 15 us and not us to them. I mean, it's the other side 16 around. It's the forensic pathologists are quite happy to 17 -- to have the case done by a pediatric pathologist. 18 MS. SUZAN FRASER: All right. 19 DR. BLAIR CARPENTER: In my experience, 20 anyhow. 21 MS. SUZAN FRASER: And just -- I want to 22 just -- Dr. Michaud, Dr. Cutz was here earlier this week 23 from the Hospital for Sick Children. And he talked about 24 the fact that in terms of SIDS research that it had -- 25 there wasn't really much going on in the way of SIDS
301 research. 2 And is the situation the same in Eastern 3 Ontario? 4 DR. JEAN MICHAUD: Research on SIDS, I 5 think, has been done over the last, I would say, twenty 6 (20), twenty-five (25) years. And I must say that the 7 Toronto Sick Kids is a place where a good amount of 8 research was done on SIDS. 9 MS. SUZAN FRASER: Yes. 10 DR. JEAN MICHAUD: Dr. Larry Becker took 11 part -- and his team took a good hint at problems related 12 to SIDS in -- as early as the '80s. And, in fact, he was 13 consulted by the Jeremy Rill Centre. You know this 14 publication we were mentioning yesterday? 15 MS. SUZAN FRASER: Yes. 16 DR. JEAN MICHAUD: He was, at some point, 17 invited and he was consulted by -- by this centre about 18 his research and so on. Dr. Cutz, himself, has done some 19 research through his expertise in lung pathology and so 20 on. There is a good deal of research being done also in 21 Boston by Dr. McKinney's (phonetic) group. So there is 22 some research going on. 23 But I think it just illustrates we don't 24 have -- there is no frontier that was -- that were broken 25 in -- in this avenue. Dr. Aurore Cote and myself, we have
311 demonstrated, in the '80s, that there were some changes 2 that could be linked an ischemic changes. 3 And I believe that the notion of global 4 ischemia coming in these case is, you know, a fact that is 5 accepted by a number of individuals as -- no, there -- 6 there is no real answer. 7 It's a complex problem. The brain a 8 complex organ, and there -- there are still a lot of work 9 to do, probably. 10 MS. SUZAN FRASER: All right. 11 DR. BLAIR CARPENTER: Personally, I think 12 it's -- it's expressed more the frustration of not having 13 found the answer, than the lack of people looking for the 14 answer. When you look and you look and you don't find, 15 and you don't have the answer, you always tend to be 16 frustrated and say, If we had more this, more this, or 17 more research or more people or more money or more -- we 18 would maybe get the answer. 19 But that is just again, human nature 20 responding to a frustrating situation. Where after all 21 these years SID is still at the level of not being 22 completely understood. 23 MS. SUZAN FRASER: I think you -- his 24 concern, and I'm -- I'm finishing up here, Mr. 25 Commissioner, but I think his concern as I understood it
321 was that changes in the coroner's system, in terms of the 2 availability to study tissue, had a negative impact on the 3 ability to conduct research, and that -- that the research 4 had -- for, in part that and other reasons really ground 5 to a halt in Ontario. 6 Is that something that you -- 7 DR. BLAIR CARPENTER: I can't comment. I 8 suppose that's an experience Dr. Cutz had. 9 MS. SUZAN FRASER: Yes. 10 DR. BLAIR CARPENTER: And he expressed his 11 -- his experience, his frustration, his knowledge, you 12 call it whatever you want, on the subject. It's not an 13 issue that we have met, but again, we did not look for it. 14 MS. SUZAN FRASER: Okay. 15 DR. JEAN MICHAUD: I have a comment on 16 this. 17 MS. SUZAN FRASER: Yes? 18 DR. JEAN MICHAUD: I think that Dr. Cutz 19 concern is real, that's my personal opinion. I believe 20 that it's due to the fact that it's essentially impossible 21 to get samples for research out of a coroner's system 22 network. 23 I've had discussion with Bill Bechard 24 (phonetic). In the early years I was in Ottawa, there was 25 a need to proceed to perhaps some sampling on some of
331 those cases, and we were told -- no, I don't recall the 2 specifics of that, but you know, this -- this is a 3 concern. 4 MS. SUZAN FRASER: All right. And when -- 5 DR. JEAN MICHAUD: You would have to make 6 a deal with the coroner's system and -- and you know, 7 through legislations and so on to get -- get access to 8 some tissue. It's not totally clear to us, but this is a 9 concern that in my view would be -- would be real. 10 MS. SUZAN FRASER: And -- and is that to 11 be contrasted where you have a family and it doesn't 12 become a coroner's case, and they consent to you using the 13 tissue to conduct research, versus a coroner's system 14 where -- 15 DR. JEAN MICHAUD: Well, when -- when you 16 conduct research in hospital, you have to have a -- an 17 approval by the Research Ethics Committee -- 18 MS. SUZAN FRASER: Yes. 19 DR. JEAN MICHAUD: -- and once you have 20 that, yes, you can obtain consents from family to take 21 some samples and conduct the research. So you have to 22 have a decent research project, it has to be 23 scientifically sound. The output of the possible research 24 needs to be useful, either for more basic research or for 25 clinical research, applied research and so on. So you
341 need a consent. 2 And the coroner's system, I do not believe 3 that it's possible at this point in time, but I honestly 4 do not all -- know all the -- the details of that, but I 5 don't believe it is possible. 6 MS. SUZAN FRASER: All right. Thank you. 7 Those are my questions, Mr. Commissioner. 8 COMMISSIONER STEPHEN GOUDGE: Thanks, Ms. 9 Fraser. 10 Ms. Ritacca...? 11 12 CROSS-EXAMINATION BY MS. LUISA RITACCA: 13 MS. LUISA RITACCA: Good morning, Doctors. 14 Good morning, Commissioner. My name is Luisa Ritacca, and 15 I'm one (1) of the lawyers here for the Office of the 16 Chief Coroner. 17 Doctors, we heard from all three (3) of you 18 that you have in your respective careers have had a great 19 deal of experience with doing coroner's cases. 20 Is that fair? 21 DR. JOSEPH DE NANASSY: Yes. 22 MS. LUISA RITACCA: And so I take it then 23 you're familiar with the system of how a body is brought 24 to you? I'll ask Dr. de Nanassy first. 25 DR. JOSEPH DE NANASSY: I'm not quite sure
351 I understand what you are asking. 2 MS. LUISA RITACCA: You -- you receive a 3 body from a coroner under warrant, is that correct? 4 DR. JOSEPH DE NANASSY: Yes. 5 MS. LUISA RITACCA: And so once a coroner 6 decides to take jurisdiction over a body, it's the 7 coroner's job to decide what happens to the body, is that 8 fair? Is -- 9 DR. BLAIR CARPENTER: Yes. 10 MS. LUISA RITACCA: -- that fair, doctor? 11 Thank you. 12 And under the coroner's jurisdiction, it's 13 the coroner who decides whether there's a need for a post- 14 mortem examination, is that fair? 15 DR. BLAIR CARPENTER: Yes. 16 DR. JOSEPH DE NANASSY: Yes. 17 MS. LUISA RITACCA: And if the coroner 18 chooses to order a post-mortem examination and issue a 19 warrant, it -- he decides where the post-mortem is to be 20 held, is that right? 21 DR. BLAIR CARPENTER: Yes. 22 DR. JOSEPH DE NANASSY: Yes. 23 MS. LUISA RITACCA: And he also decides 24 who conducts the post-mortem? 25 DR. JOSEPH DE NANASSY: No.
361 DR. BLAIR CARPENTER: Not necessarily. 2 MS. LUISA RITACCA: And your stand on 3 this -- 4 DR. BLAIR CARPENTER: Well, he has a 5 choice at that point. If the person -- if the person is 6 not available or is busy som -- doing something else, then 7 he has to make a decision who's second on line. 8 MS. LUISA RITACCA: Fair enough. And then 9 the -- but the warrant is directed at an individual 10 pathologist, is that correct? 11 DR. BLAIR CARPENTER: In our experience at 12 CHEO they usually directed it to CHEO. 13 MS. LUISA RITACCA: Okay. We have seen 14 warrants in this case directed to specific pathologists. 15 That's not unusual, is that? 16 DR. BLAIR CARPENTER: No, it's not 17 unusual, and it was the case most of the time. But they 18 realized that they -- they didn't know who was available, 19 so they just sent to -- usually it was my name they were 20 putting down, because I was the one on top. Then they -- 21 they got what they got. 22 MS. LUISA RITACCA: All right. And as I 23 understand, the coroner's responsibility in the 24 legislation, it's only on receipt of a post-mortem -- a 25 warrant for post-mortem examination that a pathologist
371 becomes involved in the death investigation. 2 Is that fair? 3 DR. JOSEPH DE NANASSY: Yes, yes. 4 MS. LUISA RITACCA: And would you agree 5 that part of the coroner's responsibility -- the coroner's 6 mandate to thoroughly investigate deaths in the province - 7 - then is to ensure that he has the proper pathologist or 8 the proper unit performing post-mortem examination. 9 Is that fair? 10 DR. BLAIR CARPENTER: Yes. 11 DR. JOSEPH DE NANASSY: Yes. 12 MS. LUISA RITACCA: And, Dr. de Nanassy, I 13 have a few questions for you about CHEO. I -- as I 14 understood the evidence, CHEO's been performing 15 medicolegal autopsies for many decades. 16 Is that fair? 17 DR. JOSEPH DE NANASSY: I don't know about 18 decades. I have been there since 2004, but yes. 19 MS. LUISA RITACCA: And, Dr. Carpenter, 20 maybe I'll ask you that question. Been performing -- 21 CHEO's been performing autopsies for the Coroner's Office 22 since the 1970s? 23 DR. BLAIR CARPENTER: Yes. 24 MS. LUISA RITACCA: Back to Dr. de 25 Nanassy, then. And, Dr. de Nanassy, I understood your
381 evidence yesterday to say that the CHEO pathologists 2 certainly have the discretion to decline to perform a 3 post-mortem for the medi -- for the coroner. 4 Is that -- 5 DR. JOSEPH DE NANASSY: Yes. 6 MS. LUISA RITACCA: -- correct? Okay. 7 And in turn, would agree then that the CHEO pathologists 8 do not get to do a medicolegal case as of right? 9 DR. JOSEPH DE NANASSY: I agree with you 10 the way it's phrased, yes. 11 MS. LUISA RITACCA: There is no 12 contractual relationship between CHEO and the Coroner's 13 Office? 14 DR. JOSEPH DE NANASSY: Not in writing -- 15 MS. LUISA RITACCA: All right. 16 DR. JOSEPH DE NANASSY: -- to my 17 knowledge. 18 MS. LUISA RITACCA: And there's no other 19 legal obligation, to your knowledge, between the -- the 20 Coroner's Office and CHEO? 21 DR. JOSEPH DE NANASSY: To perform post- 22 mortems? 23 MS. LUISA RITACCA: Perform -- right. 24 DR. JOSEPH DE NANASSY: No. 25 MS. LUISA RITACCA: Okay. It's done on a
391 case-by-case basis? 2 DR. JOSEPH DE NANASSY: Yes. 3 MS. LUISA RITACCA: All right. And would 4 you agree that the cases that are sent to CHEO are done so 5 at the discretion of the coroner? 6 DR. JOSEPH DE NANASSY: Yes. 7 MS. LUISA RITACCA: Okay. Often the 8 regional coroner? 9 DR. JOSEPH DE NANASSY: Yes. 10 MS. LUISA RITACCA: And CHEO is not a -- 11 has not been designated a regional unit by the Coroner's 12 Office. Is that correct? 13 DR. JOSEPH DE NANASSY: Not in the way the 14 adult forensic unit has been designated, that's correct. 15 MS. LUISA RITACCA: All right. And it's - 16 - is it fair to say that the coroners have no obligation 17 to send cases to CHEO? 18 DR. JOSEPH DE NANASSY: The coroner can 19 choose to send the body wherever he wishes. 20 MS. LUISA RITACCA: Okay. And all 21 coroners, including coroners that work in the Ottawa 22 region, can choose to send cases outside of their region. 23 Is that fair? 24 DR. JOSEPH DE NANASSY: I suppose so, yes. 25 MS. LUISA RITACCA: My next set of
401 questions are for Dr. de Nanassy and Dr. Michaud. If I 2 could have you turn up Tab 38, I believe, and that's 3 PFP139350. It should be the October 2007 guidelines. 4 5 (BRIEF PAUSE) 6 7 MS. LUISA RITACCA: Now, I've -- I've 8 understood from both of you that you had not seen these 9 guidelines prior to the preparation of giving evidence 10 this week. 11 Is that correct? 12 DR. JOSEPH DE NANASSY: That's correct. 13 MS. LUISA RITACCA: And did I hear you 14 correctly that -- however, that you had seen or received 15 the earlier version of the guidelines? 16 DR. JOSEPH DE NANASSY: Yes. 17 MS. LUISA RITACCA: The 2005 guidelines? 18 DR. JOSEPH DE NANASSY: No, the July 2007. 19 MS. LUISA RITACCA: Okay. 20 DR. JOSEPH DE NANASSY: The first edition 21 of this -- these guidelines. 22 DR. JEAN MICHAUD: It was April, I 23 believe. 24 DR. JOSEPH DE NANASSY: April. 25 DR. JEAN MICHAUD: April 2007.
411 MS. LUISA RITACCA: Are -- are you 2 speaking of the guidelines that are specifically related 3 to pediatric homicides? 4 DR. JEAN MICHAUD: April or -- 5 COMMISSIONER STEPHEN GOUDGE: There are 6 some guidelines at Tab 33. Is that...PFP137602? 7 DR. JOSEPH DE NANASSY: Yes, I'm sorry, 8 that's correct. That's -- 9 MS. LUISA RITACCA: Those are right, okay. 10 DR. JOSEPH DE NANASSY: -- that's the one 11 we have on file at CHEO. 12 13 CONTINUED BY MS. LUISA RITACCA: 14 MS. LUISA RITACCA: Okay. Thank you. And 15 if we take a look at the guidelines at Tab 38, you'd agree 16 with me that the guidelines are directed to pathologists 17 conducting criminally suspicious and homicide cases? 18 DR. JOSEPH DE NANASSY: That's what the 19 title implies, yes. 20 MS. LUISA RITACCA: And the guidelines 21 aren't limited to pediatric criminally suspicious and 22 homicide cases? 23 DR. JOSEPH DE NANASSY: Certainly, they 24 are all encompassing, yes. 25 MS. LUISA RITACCA: Okay. And from what I
421 understood yesterday, you agreed with questions from the 2 Commissioner that CHEO conducted somewhere around five 3 (5), give or take, criminally suspicious or homicide cases 4 per year -- 5 DR. JOSEPH DE NANASSY: Yes. 6 MS. LUISA RITACCA: -- is that fair? And 7 turning back to the front page of the guidelines, you see 8 that on the front page the guidelines are directed to the 9 regional units? 10 DR. JOSEPH DE NANASSY: Yes. 11 MS. LUISA RITACCA: Okay. Including the 12 adult Ottawa unit? 13 DR. JOSEPH DE NANASSY: Yes. 14 MS. LUISA RITACCA: And if we turn to page 15 2 of the guidelines, under the preface, I'd like to turn 16 your attention to the second paragraph. 17 "This is the second edition of the 18 guidelines for autopsy practice in 19 criminally suspicious cases and 20 homicides. This revised and expanded 21 edition was developed using a 22 consultatative approach, by obtaining 23 input from the other Ontario forensic 24 pathologists, including Drs. C. Rao, D. 25 Chiasson, Queen, Shkrum, Acharay,
431 Dexter, Parai, Rose, and Fernandes." 2 Do you see that? 3 DR. JOSEPH DE NANASSY: Yes. 4 MS. LUISA RITACCA: And Dr. Acha -- 5 Acharay, is that how I say her name? She's from the 6 Ottawa unit, is that right? 7 DR. JOSEPH DE NANASSY: Yes. 8 MS. LUISA RITACCA: Okay. And would you 9 agree with me that the units conduct more criminally 10 suspicious cases than does CHEO? 11 DR. JOSEPH DE NANASSY: I supposed that's 12 correct. I don't know about the other units, but in 13 Ottawa that's correct. 14 MS. LUISA RITACCA: And so would you agree 15 that the forensic pathologists listed on page 2, the 16 representatives of the units, would have quite a bit of 17 experience-based input to provide? 18 DR. JOSEPH DE NANASSY: None of them is a 19 pediatric pathologist. 20 MS. LUISA RITACCA: Okay. Would you agree 21 that these individuals would have experience-based input 22 to provide with respect criminally suspicious and homicide 23 cases? 24 DR. JOSEPH DE NANASSY: For adult cases. 25 MS. LUISA RITACCA: And are you suggesting
441 that Dr. David Chiasson does not have the sufficient 2 experience-based input to provide information with regard 3 to pediatric criminally suspicious cases? 4 DR. JOSEPH DE NANASSY: That's not what I 5 am saying. I don't know what hus -- his personal 6 experience in pediatric pathology, as such. I happen to 7 know that he has an interest in pediatric pathology. He 8 comes from the other end from where I come from. 9 He's certified in forensic pathology and 10 has an interest in pediatric pathology, I have experience 11 in pediatric pathology, and I'm interested in forensic 12 pathology. So we represent the two (2) endpoints of a 13 spectrum. 14 15 (BRIEF PAUSE) 16 17 MS. LUISA RITACCA: And just a final point 18 on the guidelines, they were released in October 2007. 19 And as I understand the evidence, you were not conducting 20 criminally suspicious or homicide cases as of 200 -- 21 October 2007. 22 Is that correct? 23 DR. JOSEPH DE NANASSY: That's correct, 24 but we did prior to that. 25
451 (BRIEF PAUSE) 2 3 MS. LUISA RITACCA: Dr. de Nanassy, as I 4 understood your evidence yesterday, you acknowledged that 5 there is a role for the Chief Forensic Pathologist to play 6 in quality assurance of pathology services in the 7 province. 8 Is that fair? 9 DR. JOSEPH DE NANASSY: That is correct. 10 MS. LUISA RITACCA: Dr. Michaud, would you 11 agree with that proposition as well? 12 DR. JEAN MICHAUD: Yes, I do. 13 MS. LUISA RITACCA: And, Dr. de Nanassy, 14 you agree that part of the role of providing this quality 15 assurance includes actual review of individual cases? 16 DR. JOSEPH DE NANASSY: Definitely. 17 MS. LUISA RITACCA: Dr. Michaud, do you 18 agree with that? 19 DR. JEAN MICHAUD: I agree. 20 MS. LUISA RITACCA: And you'd agree that 21 part of the purpose of reviewing individual cases is to 22 ensure quality. Do you agree with that? 23 DR. JOSEPH DE NANASSY: Yes. 24 MS. LUISA RITACCA: Dr. Michaud...? 25 DR. JEAN MICHAUD: I agree.
461 MS. LUISA RITACCA: Okay. And to audit an 2 individual pathologists competency? 3 DR. JOSEPH DE NANASSY: I don't know what 4 is the mandate of the Chief Forensic Pathologist. I 5 suppose if this is part of his mandate, then yes. 6 MS. LUISA RITACCA: I'm asking you if you 7 think that's a good part -- should be a part of his 8 mandate? 9 DR. JEAN MICHAUD: The yes and no answer 10 does not reflect the entire picture. 11 MS. LUISA RITACCA: Okay. 12 DR. JEAN MICHAUD: I've commented on this 13 yesterday, and I will repeat myself today. The first set 14 of questions you asked about CHEO practising and not being 15 listed and so on, my message yesterday was the message 16 from Health Administrator. You have a group of individual 17 practising forensic pathology at large for over twenty 18 (20) years. There is no official legal -- like in other 19 places in Ontario, several other places, and suddenly 20 without any information, without any consultation, without 21 any good communication, you stop doing this. That is not 22 correct. That was my message yesterday. 23 MS. LUISA RITACCA: Thank you, Dr. 24 Michaud -- 25 DR. JEAN MICHAUD: I never implied the
471 role of forensic -- a unit in Toronto and whatever; to me 2 that's the message. When you talk now about quality 3 assurance, I have more experience in the health care 4 system than in the forensic system. But this is a very, 5 very important matter that has to be planned carefully, 6 that has to be communicated fully, and that has to receive 7 input from all those who are going to be assessed through 8 case-per-case review, through audit, and through other 9 means. 10 The one who's being assessed has to be 11 knowledgeable about the fact that he's going to be 12 assessed. You need to have interaction between this 13 individual and the body that is going to access his or 14 her. 15 And to me this is transparency. Otherwise 16 the result is going to be the following: you'll lose even 17 more forensic pathologists. 18 MS. LUISA RITACCA: Thank you, Dr. 19 Michaud. I think we understood your evidence quite 20 clearly yesterday, and I'm just going to continue to 21 direct my questions, and I'll ask you to answer as I -- as 22 I so direct them. Thank you. 23 And so I was asking, Dr. de Nanassy, if 24 you'd agree that part of the purpose of reviewing the 25 individual cases for the Chief Forensic Pathologist is to
481 be able to auto -- audit an individual pathologist. And I 2 think you agreed that that was part of his -- the Chief 3 Forensic Pathologist role as the reviewer. 4 Is that fair? 5 DR. JOSEPH DE NANASSY: I suppose that's 6 correct. 7 MS. LUISA RITACCA: Okay. And -- and 8 finally, you'd agree that part of the purpose would be to 9 ensure that well considered reports are being delivered to 10 the justice system, as is required by the legislation for 11 the coroners. 12 Is that fair? 13 DR. JOSEPH DE NANASSY: I don't disagree 14 with you. 15 MS. LUISA RITACCA: Okay. And, Dr. de 16 Nanassy, would you agree that these are laudable purposes, 17 these -- this is a good model for the Chief Forensic 18 Pathologist? 19 DR. JOSEPH DE NANASSY: The idea is good. 20 MS. LUISA RITACCA: Okay. 21 DR. JOSEPH DE NANASSY: The way it was 22 done so far is back some remarks. 23 MS. LUISA RITACCA: Fair enough. Yeah, I 24 well understood your evidence yesterday. 25 And you'd agree, Dr. de Nanassy, that there
491 has to be some level of transparency of the quality 2 assurance process, not only for those being reviewed as 3 Dr. Michaud just said, but also for the users of the 4 reports? 5 So what I mean by that is that the coroners 6 and those in the criminal justice system have to know that 7 there's a quality assurance process in place and being 8 done. 9 Is that fair? 10 DR. JOSEPH DE NANASSY: Yes. 11 MS. LUISA RITACCA: Okay. And this 12 transparency that I'm speaking of has to include at the 13 very least that if there are significant differences 14 between the reviewing pathologist and the pathologist 15 being reviewed, that that different -- those differences 16 should be documented. 17 Is that fair? 18 DR. JOSEPH DE NANASSY: Of course they 19 should be, and then there should be a feedback to the 20 pathologist being reviewed. 21 MS. LUISA RITACCA: I hear you. And you'd 22 agree that one (1) way to document those differences would 23 be for the Chief Forensic Pathologist or the reviewer to 24 prepare some kind of report? 25 DR. JOSEPH DE NANASSY: That's the most
501 obvious way, yes. 2 MS. LUISA RITACCA: Right, okay. And, Dr. 3 de Nanassy, would you also agree with me that as part of 4 the Chief Forensic Pathologist's quality assurance role, 5 he should have the ability to decide who should and should 6 not be doing medicolegal autopsies? 7 DR. JOSEPH DE NANASSY: He's the Chief 8 Forensic Pathologist for the entire province, and I guess 9 it might be part of his mandate. I don't know the 10 details, but it seems reasonable. 11 MS. LUISA RITACCA: Okay. And Dr. de 12 Nanassy, you were quite candid yesterday in discussing 13 that in -- in the fairly recent past there have been two 14 (2) cases that you've been involved in and where you've 15 produced reports where the regional coroner or some other 16 representative of the Chief Coroner's Office has felt it 17 necessary to -- to intervene at some level. 18 Is that fair? 19 DR. JOSEPH DE NANASSY: When you say 20 "intervene," you mean? 21 MS. LUISA RITACCA: Well, either to 22 prepare a second report or to get a second expert 23 involved? 24 DR. JOSEPH DE NANASSY: And I'm sorry, 25 your question again was whether I...?
511 MS. LUISA RITACCA: I -- I was just 2 relaying back to as -- what I understood your evidence to 3 be, that in the recent past there were -- you experienced 4 that on two (2) separate occasions. 5 Is that fair? 6 DR. JOSEPH DE NANASSY: Those two (2) 7 events have occurred, yes. 8 MS. LUISA RITACCA: All right, okay. And 9 in -- in the first case, I understand that it was a case 10 from 2005. Do you recall that? 11 DR. JOSEPH DE NANASSY: Not immediately. 12 MS. LUISA RITACCA: And you'll have no 13 documents in front of you, I'm sorry, to -- to help you 14 with that. 15 And I understand, and I think you said in 16 your evidence, that Dr. Pollanen wrote a second report 17 that was somewhat contrary to your -- your report? 18 DR. JOSEPH DE NANASSY: It was not 19 contrary. If anything, he -- in his communication to me 20 he said, I don't have substantial disagreements with you. 21 MS. LUISA RITACCA: Okay, but it was a 22 second report different than your report. Is that fair? 23 DR. JOSEPH DE NANASSY: It was a second 24 report. 25 MS. LUISA RITACCA: Okay. And you
521 indicated in your evidence that you believed the report 2 that Dr. Pollanen prepared was "unsolicited"; that was the 3 word you used? 4 DR. JOSEPH DE NANASSY: Well, the first 5 time I knew that such a report had been produced is when 6 he wrote me about it as a de facto event had already 7 occurred. 8 MS. LUISA RITACCA: So when you said it 9 was unsolicited, I took from you to mean that it was 10 unsolicited by you? 11 DR. JOSEPH DE NANASSY: I don't think I 12 used the word "unsolicited" myself. 13 DR. JEAN MICHAUD: I did. 14 MS. LUISA RITACCA: Dr. Michaud did, okay. 15 So, Dr. Michaud, when you used the word "unsolicited," I 16 take it then you meant it was a report that you didn't 17 solicit from Dr. Pollanen? 18 DR. JEAN MICHAUD: I meant -- I used that 19 term. And it's probably my poor English; this may be not 20 a good term. But certainly on -- on the basis of a 21 coroner's system, in my view, this is an unsolicited 22 system, and I explained why. 23 MS. LUISA RITACCA: Okay. 24 DR. JEAN MICHAUD: And I gave the example 25 that if I were to issue, without him knowing it, a second
531 report on a case he's done in the hospital system, this is 2 totally unacceptable. Without his knowing this, it 3 creates confusion on the part of those who receive it. 4 The lack of knowledge calls for the lack of 5 interactions, a total obliteration of the arguments of the 6 primary pathologist. This is not fair. 7 In the second independent report -- forget 8 the word "unsolicited." In the second independent report 9 that we received just a couple of weeks ago, there are 10 elements there that defers from my own neuropathology 11 report. 12 MS. LUISA RITACCA: Yes. 13 DR. JEAN MICHAUD: Did I have a chance to 14 argue? Did I have a chance to take photographs and 15 demonstrate what I found is real, and so on? 16 This is not the way pathologists work. It 17 brings confusion to those who receive. And you have two 18 (2) reports sitting on defence counsel's desk, or that may 19 sit, or -- or the -- the Crown attorney. It also sends a 20 very bizarre signal to your own colleague who works within 21 the same system as you do. 22 I hope you understand what I mean. 23 MS. LUISA RITACCA: I -- I certainly 24 understand. Dr. Michaud, though, you'd agree though -- 25 and I think Dr. de Nanassy's already agreed with me --
541 that part of the Chief Forensic Pathologist's job is to 2 ensure that well-prepared, thought out reports are being 3 provided to the criminal justice system. 4 And so in a situation where the Chief 5 Forensic Pathologist, as reviewer, feels it necessary to - 6 - or feels that that is not being provided to the criminal 7 justice system, you'd agree that part of his role would be 8 to document that? 9 And -- and I think Dr. de Nanassy agreed 10 that one (1) of the best ways to document that would be in 11 a second report, leaving aside your concerns about the 12 communication between pathologists; we've heard you on 13 that. 14 DR. JEAN MICHAUD: There's -- 15 MS. LUISA RITACCA: I'm asking you -- 16 DR. JEAN MICHAUD: -- there's not only the 17 -- the communication. It's because, you know, you -- you 18 issue another report without discussing with the 19 pathologist. The message that I get is that, You're not 20 good enough for -- in your report. This report is not 21 good enough, my report is better. Without any possibility 22 of discussion, to me this is not acceptable 23 professionally. 24 Second, in hospital system, in the 25 pathology world, one (1) report issued out of the
551 department, goes to the medical chart. Sometimes these 2 cases are very complex. Sometimes there is input of three 3 (3), four (4) pathologists. I'm talking not two (2), 4 because there are only three (3). 5 MS. LUISA RITACCA: Mm-hm. 6 DR. JEAN MICHAUD: But, you know, on adult 7 side, you know, there may be three (3), four (4). 8 Sometimes it's discussed at -- at specific rounds and so 9 on. But at the end of the day the primary pathologist has 10 to issue a final report. And obviously these cases are 11 discussed at length with the clinical team and so on. 12 In my view, this is entirely possible, that 13 if people take the time, they will be able to conceive a 14 system where only one (1) report is issued to the judicial 15 system, only one (1). And I do not believe it helps the 16 judicial system in having two (2) reports on the table. 17 There are ways to do it. We just have to 18 sit down and figure it out. 19 MS. LUISA RITACCA: All right. And, Dr. 20 de Nanassy, I understand in this case that we're talking 21 about, it was a case where Dr. Pollanen questioned 22 conclusions regarding a -- it was a Shaken Impact Syndrome 23 case. 24 Is that correct? 25 DR. JOSEPH DE NANASSY: I believe that to
561 be correct. 2 MS. LUISA RITACCA: All right. And I 3 understand it, Dr. Pollanen did not agree that Shaken 4 Impact Syndrome was an appropriate cause of death in the 5 circumstances? 6 DR. JOSEPH DE NANASSY: I forget the 7 details, but to put it in context, there is raging 8 discussion about whether the entity or the diagnosis as 9 such exists, so... 10 MS. LUISA RITACCA: We've been part of 11 that raging discussion. 12 DR. JOSEPH DE NANASSY: Yes. 13 MS. LUISA RITACCA: And, Dr. de Nanassy, 14 the -- the second case, as I understand it, is a more 15 recent case and is an ongoing criminal matter. 16 But it was a case where live birth was an 17 issue? 18 DR. JOSEPH DE NANASSY: That's correct. 19 MS. LUISA RITACCA: Okay. And you 20 performed the autopsy on that case? 21 DR. JOSEPH DE NANASSY: Yes. 22 MS. LUISA RITACCA: And Dr. McCallum had 23 an opportunity to speak to you following the autopsy? 24 DR. JOSEPH DE NANASSY: It's my duty to -- 25 MS. LUISA RITACCA: Right.
571 DR. JOSEPH DE NANASSY: -- speak to the 2 coroner after the post. 3 MS. LUISA RITACCA: And as I understand 4 it, sir, there was -- you were somewhat indecisive with 5 regard to the issue of live birth in that case? 6 DR. JOSEPH DE NANASSY: That's correct. 7 MS. LUISA RITACCA: And as a result, Dr. 8 McCallum sent the case to Dr. Chiasson for a second 9 autopsy or -- or second review? 10 DR. JOSEPH DE NANASSY: Yes. A -- a 11 second autopsy, yes. 12 MS. LUISA RITACCA: Okay. And -- and Dr. 13 Chiasson was, in fact, decisive about the live birth 14 issue? 15 DR. JOSEPH DE NANASSY: I don't know that 16 at -- 17 MS. LUISA RITACCA: You don't know, okay. 18 That's fine. 19 DR. JOSEPH DE NANASSY: -- the time of the 20 post-mortem what his opinion was. He did express his 21 opinion in a report of his where -- where he was more 22 definitive about it. But that included the microscopic, 23 not just the post-mortem per se. 24 MS. LUISA RITACCA: Okay. And, Dr. 25 Carpenter, I'd ask you to turn up Tab 33, please. The
581 Commissioner brought us to this earlier. And that's 2 PFP137602. 3 DR. BLAIR CARPENTER: Tab 33. 4 MS. LUISA RITACCA: Do you have that? 5 DR. BLAIR CARPENTER: 602, yes. 6 MS. LUISA RITACCA: Okay. And yesterday, 7 Dr. Carpenter, you spoke to the Commissioner about what 8 you called an "internal triaging" that you used to do on 9 your pediatric cases. 10 Do you recall that? 11 DR. BLAIR CARPENTER: Yes. 12 MS. LUISA RITACCA: Okay. And as I 13 understood you, you said you have a three (3) level 14 system, where a clearly medical care type of case would be 15 a level one (1)? 16 DR. BLAIR CARPENTER: Yes. 17 MS. LUISA RITACCA: And a level three (3) 18 would be a case where there are more obvious, suspicious 19 circumstances like bruises or external trauma? 20 DR. BLAIR CARPENTER: Yes. 21 MS. LUISA RITACCA: And then level 2 22 somewhere in the middle -- I think the example you used 23 was a SIDS type case with a classic history, I think was 24 your language. Is that -- 25 DR. BLAIR CARPENTER: Yes.
591 MS. LUISA RITACCA: -- fair? Okay. And 2 you indicated that depending on the level that you 3 classified a case, you'd be more or less likely to consult 4 with foren -- your forensic colleagues or -- 5 DR. BLAIR CARPENTER: I never said that. 6 MS. LUISA RITACCA: Okay. So what would 7 you do in the case of a level 3 case? 8 DR. BLAIR CARPENTER: I would do the 9 autopsy. 10 MS. LUISA RITACCA: You'd still feel 11 comfortable doing the autopsy? 12 DR. BLAIR CARPENTER: Yes. Well, 13 depending on the case. 14 MS. LUISA RITACCA: And could I ask you to 15 turn up page 4 of the document. And could you read under 16 "Indications For the use of Guidelines", and these are 17 guidelines that are meant to be -- 18 DR. BLAIR CARPENTER: Just a second. 19 MS. LUISA RITACCA: Oh, it's the same Tab. 20 DR. BLAIR CARPENTER: 33 -- 21 MS. LUISA RITACCA: Yes. 22 DR. BLAIR CARPENTER: -- page 4. 23 MS. LUISA RITACCA: Page 4. 24 DR. BLAIR CARPENTER: Okay, sorry. 25 MS. LUISA RITACCA: And so these are the
601 guidelines that have been put in place by the Coroner's 2 Office for the autopsy of an infant and a young child that 3 dies under criminally suspicious circumstances. 4 And so under section 2.2, on page 4, do you 5 have that, Dr. Carpenter? 6 DR. BLAIR CARPENTER: 2.2 on page 4, yes. 7 MS. LUISA RITACCA: There's inclusion 8 criteria for application of these guidelines. And if you 9 look at these inclusion criteria for a moment. Have you 10 had a chance to -- 11 DR. BLAIR CARPENTER: Well, I see the -- 12 MS. LUISA RITACCA: Okay, you see them. 13 All right. 14 Would you agree that where any of these 15 factors are present in a case, it's a level 3 case under 16 your tri -- internal triaging? 17 18 (BRIEF PAUSE) 19 20 DR. BLAIR CARPENTER: I would agree with 21 that, yes. 22 MS. LUISA RITACCA: Yes. 23 24 (BRIEF PAUSE) 25
611 MS. LUISA RITACCA: And in those 2 circumstances, who do you think is the most appropriate 3 pathologist to be performing at a case? 4 DR. BLAIR CARPENTER: I think a well 5 prepared pediatric pathologist with forensic pathology 6 experience is certainly number 1. 7 MS. LUISA RITACCA: All right. 8 9 (BRIEF PAUSE) 10 11 MS. LUISA RITACCA: Dr. de Nanassy, back 12 to you. In your testimony yesterday you indicated that in 13 your unequivocal view, I think that -- that was the 14 wording you used, pediatric forensic cases should be 15 conducted by a pediatric pathologist, is that fair? 16 DR. JOSEPH DE NANASSY: That's what I 17 said, yes. 18 MS. LUISA RITACCA: Yes. And part of your 19 rationale, as I understood you, was that a pediatric 20 pathologist is in a -- is in better position to identify 21 childhood diseases, is that -- 22 DR. JOSEPH DE NANASSY: Yes, in -- 23 MS. LUISA RITACCA: -- part of your 24 rational? 25 DR. JOSEPH DE NANASSY: -- in a broad
621 sense, yes. 2 MS. LUISA RITACCA: Yes. And -- and I 3 also understood you to say that a pediatric pathologist is 4 quite able to recognize the limits of her experience and - 5 - and ask for help or move the case along as the case may 6 be, is that fair? 7 DR. JOSEPH DE NANASSY: That's part of 8 professional knowledge, yes -- 9 MS. LUISA RITACCA: Right, okay. 10 DR. JOSEPH DE NANASSY: -- we are 11 professionals. 12 MS. LUISA RITACCA: Now am I to take from 13 that evidence that you believe a forensic pathologist who 14 does medicolegal work, which includes quite a lot of 15 natural deaths, cannot recognize where there may be 16 underlying disease? 17 DR. JOSEPH DE NANASSY: I don't quite 18 think that's what I said or implied. What I meant to say 19 is that there are medical -- there are pediatric medical 20 conditions that a forensic pathologist might not 21 necessarily be aware of. 22 And so if you don't know, you don't know 23 where your limits are. 24 MS. LUISA RITACCA: Okay. And are you -- 25 are we -- to also take from your evidence, that a
631 pediatric pathologist is better able to recognize her 2 limits as compared to a forensic pathologist? 3 DR. JOSEPH DE NANASSY: Well, that's 4 taking it a bit too far. I don't think that's what I 5 implied. We are all professionals. We know where to draw 6 the line. I can speak for pediatric pathologists, in 7 general, I cannot speak for the forensic pathologist. 8 MS. LUISA RITACCA: So you'd agree, then, 9 a forensic pathologist working in the same professional 10 manner that you conduct your cases would be able to 11 identify that perhaps a case is beyond her expertise and 12 call in appropriate help or con -- consultation as 13 necessary. 14 Is that fair? 15 DR. JOSEPH DE NANASSY: Well, I would have 16 to believe that a forensic pathologist would know when to 17 call in consultation, yes. 18 MS. LUISA RITACCA: Okay. And, Dr. de 19 Nanassy, in your testimony yesterday you indicated that 20 you did not become aware of the Coroner's Office decision 21 to bring cases from the Ottawa region to other units until 22 sometime this fall. 23 Is that fair? 24 DR. JOSEPH DE NANASSY: That's correct. 25 MS. LUISA RITACCA: Okay. Now, I
641 understand from Dr. McCallum it would be his position 2 that, in fact, he spoke to you in July of this year about 3 the Coroner's Office decision. 4 DR. JOSEPH DE NANASSY: I don't recall 5 that conversation. 6 MS. LUISA RITACCA: And further, I 7 understand that at some -- either during that conversation 8 or the conversation that you do recall, Dr. McCallum 9 explained to you that he and Dr. Pollanen were concerned 10 about several cases coming out of CHEO. 11 Do you recall that? 12 DR. JOSEPH DE NANASSY: No. 13 MS. LUISA RITACCA: Okay. And -- and I 14 think I heard you say this in evidence, Dr. McCallum 15 indicated to you that he and Dr. Pollanen wanted you to do 16 some continuing medical education at the Toronto Forensic 17 Unit? 18 DR. JOSEPH DE NANASSY: If I was willing 19 to, yes. 20 MS. LUISA RITACCA: If you were willing to 21 do so, yes. And they wanted you to do it, sir, before 22 they would consider using CHEO for the criminally 23 suspicious cases again. 24 Is that fair? 25 DR. JOSEPH DE NANASSY: No, the -- the
651 temporary diversion of criminally suspicious cases away 2 from CHEO was tied to the -- our -- to the production of 3 the report of this Commission. 4 5 (BRIEF PAUSE) 6 7 MS. LUISA RITACCA: And I understand that 8 Dr. McCallum told you that he and Dr. Pollanen expected 9 that you would be the person with primary carriage, much 10 like Dr. Carpenter was before you, of the criminally 11 suspicious cases when and if they were to be returned to 12 CHEO. 13 Do you recall a discussion about that? 14 DR. JOSEPH DE NANASSY: Maybe not quite in 15 such clear terms. But I did express my interest to Dr. 16 McCallum to pursue upgrading my skills in forensic 17 pathology, and once I would have that I would by 18 definition become the indicated person, yes. 19 MS. LUISA RITACCA: And, Dr. de Nanassy, 20 let's talk about communication with the Coroner's Office 21 for a moment. I understand that you do have phone 22 communication with the regional coroner on a case-by-case 23 basis. 24 I think you gave evidence to that effect 25 just a moment ago.
661 DR. JOSEPH DE NANASSY: We call the 2 coroner after every post-mortem to give a preliminary 3 verbal report on our findings. And certainly I have Dr. 4 McCallum's phone number. I can call him anytime. 5 MS. LUISA RITACCA: All right. And a 6 regional coroner, Dr. McCallum, might call you to discuss 7 a matter arising out of the case. Is that -- 8 DR. JOSEPH DE NANASSY: Yes, he's very -- 9 MS. LUISA RITACCA: And that happened? 10 DR. JOSEPH DE NANASSY: He's very open. 11 Yes, we -- we do talk. 12 MS. LUISA RITACCA: And in fact he has 13 contacted you to talk about your reports in the past. 14 Is that fair, or about cases in the past? 15 DR. JOSEPH DE NANASSY: I don't know 16 whether we are referring to particular cases. He doesn't 17 automatically call me about each and every case. 18 MS. LUISA RITACCA: Oh, I didn't say about 19 each and every case, but it has happened in the past that 20 he'll call you about a case? 21 DR. JOSEPH DE NANASSY: See, the reason 22 I'm hesitating is it might have happened once or twice, 23 maybe. 24 MS. LUISA RITACCA: All right, that's 25 fair. And -- and further, I understand that the Office of
671 the Chief Coroner mails its memoranda to every pathologist 2 that conducts medicolegal autopsies. 3 Is that correct? 4 DR. JOSEPH DE NANASSY: We do receive 5 written communication from Dr. McCallum's office. 6 MS. LUISA RITACCA: And from the Office of 7 the Chief Coroner in Toronto? 8 DR. JOSEPH DE NANASSY: Not -- not very 9 often, if at all. 10 MS. LUISA RITACCA: Okay. So the memos 11 that you -- you do receive from the Chief Coroner's Office 12 come through the Regional Coroner's Office. 13 Is that what you're suggesting? 14 DR. JOSEPH DE NANASSY: Most of everything 15 we get is through Dr. McCallum's office, yes. 16 MS. LUISA RITACCA: All right, fair. And, 17 Dr. Michaud, you spoke briefly during your evidence-in- 18 chief about a plan for Ottawa on a kind of go-forward 19 basis. 20 So at present there are no criminally 21 suspicious cases being conducted in Ottawa, either at CHEO 22 or the forensic unit. 23 Is that correct? 24 DR. JEAN MICHAUD: Currently, yes. 25 MS. LUISA RITACCA: Okay. And the
681 decision to move the criminally suspicious cases to other 2 regional units was made by the Coroner's Office? 3 DR. JEAN MICHAUD: It was. 4 MS. LUISA RITACCA: Right. But you, Dr. 5 Michaud, have been quite central in discussions with the 6 Coroner's Office with Dr. Pollanen, Dr. McCallum, and 7 others in an effort to ensure that the cases do come back 8 to Ottawa. 9 Is that -- 10 DR. JEAN MICHAUD: I was not central; I 11 was present. 12 MS. LUISA RITACCA: Present, okay. And I 13 understand that part of the discussions and efforts to 14 improve matters includes the recruitment of two (2) new 15 forensic pathologists for the adult unit? 16 DR. JEAN MICHAUD: Yes. I would like to 17 make a correction. I have not addressed that issue at all 18 here. 19 MS. LUISA RITACCA: All right. 20 DR. JEAN MICHAUD: So you heard that 21 through indirect evidence, not through this office. But 22 you -- we have indeed, in view of a retirement next year 23 and in view of increasing workload and so on, we have 24 established a plan to enhance the support of the forensic 25 unit. And with this we have now confirmation of two (2)
691 recruitments coming in July next year, at a time when 2 there is one (1) retirement. 3 And we have also in the region quite 4 advanced regional plan for level three (3) medicine that 5 will open up the possibility to link the general campus of 6 the Ottawa Hospital and the CHEO lab into what I will call 7 a reference IRLA (phonetic) lab. 8 This is something that needs to be 9 discussed by all stakeholders, needs to be accepted in 10 general, and so on. And there is, therefore, the 11 possibility, if this plan moves along, to link the 12 forensic activities currently going on at CHEO with the 13 ones at the -- currently at the forensic units, 14 understanding, however, that the practice of forensic 15 pathology in pediatric and adult centres are quite 16 different, similar to the practice of pathology in 17 general. 18 I don't think I would prostrate cancer -- 19 MS. LUISA RITACCA: Right. 20 DR. JEAN MICHAUD: -- on Dr. De Nanassy's 21 desk and vice versa. I don't think it would -- we would 22 placentas on the adult pathologist side. 23 MS. LUISA RITACCA: Right. 24 DR. JEAN MICHAUD: So, you know -- but 25 there are -- yes, there is a -- a very, very likelihood
701 that the forensic activities of these two centres will be 2 linked not only by agreement, but with a decent, planned 3 structure. 4 MS. LUISA RITACCA: Right. And you -- 5 COMMISSIONER STEPHEN GOUDGE: What does 6 linked mean, Dr. Michaud? 7 DR. JEAN MICHAUD: They will be part of 8 the same department. If -- if my -- if my -- 9 COMMISSIONER STEPHEN GOUDGE: Give me your 10 vision. How do you envision this? 11 DR. JEAN MICHAUD: -- if my vision goes 12 the way I would like it to go, the -- because this is 13 going to be a regional reference lab. And part of the 14 referred materials, sampling and so on, will be at CHEO 15 and part will be -- will be at the adul -- at the general 16 campus of the Ottawa Hospital. 17 So once IRLA is established, it's going to 18 be the IRLA reference lab. And my goal would be to put 19 more cohesion in the expertise, the work being done, and 20 so on. So they will be part -- if my vision goes, because 21 as you know it's not easy. It's easy to plan. It's easy 22 to have a vision. It's not necessarily easy to implement 23 it. 24 But if it goes the way I would like it for 25 a better output, better seamless work, and so on, they
711 will be part of the same department. 2 COMMISSIONER STEPHEN GOUDGE: Thank you. 3 DR. JEAN MICHAUD: Or the same division, 4 should I say, anatomical pathology division. 5 6 CONTINUED BY MS. LUISA RITACCA: 7 MS. LUISA RITACCA: And, Dr. Michaud, you 8 -- you anticipated some of my questions in answering that 9 -- that question. Thank you for that. 10 Just to go back to the two (2) forensic 11 pathologists you did recruit, you recruited one (1) out of 12 the Toronto unit. Is that correct? That's Dr. -- 13 DR. JEAN MICHAUD: That's correct. It's 14 all known it's Dr. Parai. 15 MS. LUISA RITACCA: Right. 16 DR. JEAN MICHAUD: And we recruited also 17 Dr. Chris Milroy from Sheffield in UK. 18 MS. LUISA RITACCA: Right. Thank you. 19 And I understand you've also recruited a resident. Is 20 that correct? 21 DR. JEAN MICHAUD: No, we have not 22 recruited a resident. We have made an offer -- 23 MS. LUISA RITACCA: Okay. 24 DR. JEAN MICHAUD: -- to our resident, but 25 he has had a few offers. And we are -- we're -- we're
721 waiting, and we'll see. 2 MS. LUISA RITACCA: Okay. And -- and you 3 may have already answered this on a -- on a general level 4 in answer to the question from the Commissioner. 5 But what role, if any, do you see the 6 forensic pathologists you've recruited playing in the 7 pediatric medicolegal cases? 8 DR. JEAN MICHAUD: Well, pending collegial 9 discussion -- 10 MS. LUISA RITACCA: Mm-hm. 11 DR. JEAN MICHAUD: -- and planning and so 12 on, there -- the role of forensic pathologists could be 13 better applied for some of the cases. My colleagues, 14 particularly forensic pathologists, would feel there is a 15 need. 16 So -- and also I -- I see a lot of 17 possibilities for enhance CME activities, for enhanced, 18 also, academic activities with this -- with this new 19 arrangement and this recruitment. 20 MS. LUISA RITACCA: And assume for a 21 moment, Dr. Michaud, that the Coroner's Office will 22 require either Dr. Milroy or Dr. Parai's involvement in 23 all criminally suspicious pediatric cases. Do you see a 24 difficulty with that? 25 DR. JEAN MICHAUD: I don't have any
731 difficulty with this provided it is discussed in a 2 professional manner with all those who are involved. I -- 3 I foresee that this group will have one (1) medical 4 director -- 5 MS. LUISA RITACCA: Yes. 6 DR. JEAN MICHAUD: -- and that the medical 7 director will play a role. I do not believe that the 8 Chief Forensic Pathologist has to make all the decisions 9 at all time. He'll get burned. 10 MS. LUISA RITACCA: Okay. 11 DR. JEAN MICHAUD: And we care for him. 12 So we believe that the Regional Director -- 13 MS. LUISA RITACCA: Yes. 14 DR. JEAN MICHAUD: -- will have a role to 15 play, not only within the reference lab unit, but even in 16 the region, because there are autopsies done elsewhere. 17 So that's the way I would envision such -- such a thing. 18 And this individual should be working very 19 closely with the Regional Coroner. 20 MS. LUISA RITACCA: Okay. And, Dr. de 21 Nanassy, I'll ask you the same question, because you are 22 the one (1) that's conducting the pediatric autopsies. Do 23 -- would you have any difficulty with a requirement that 24 Drs. Milroy or Parai are involved in the criminally 25 suspicious pediatric cases?
741 DR. JOSEPH DE NANASSY: Personally, I have 2 no problem with that scenario whatsoever. But I would 3 echo what Dr. Michaud said, let's have an understanding in 4 place before hand, not on -- on the morning of the day 5 when it's happening. 6 MS. LUISA RITACCA: Fair enough. Thank 7 you, doctors, those are my questions. 8 DR. JOSEPH DE NANASSY: If -- if you don't 9 mind, I would like to open a little parentheses here for-- 10 MS. LUISA RITACCA: Sure. 11 DR. JOSEPH DE NANASSY: -- the better 12 understanding of Mr. Commissioner. For a second, I would 13 like to come back to that case of the live birth autopsy, 14 and I -- I would like to offer some clarifications. 15 I was undecided in terms of the live births 16 at the time of the post-mortem examination. I said as 17 much to Dr. McCallum on the phone, so he decided to have a 18 second autopsy done at Sick Kids by Dr. Chiasson as it 19 turned out to be. 20 In the meanwhile, I -- afterwards, I also 21 did microscopy of the case just as did Dr. Chiasson. He - 22 - I got a copy of his report. By the time I got his 23 report, I have independently, on my own, come to the exact 24 same conclusion. 25 In other words, I was able to diagnosis
751 live births myself just as was Dr. Chiasson. The reason I 2 felt it important to -- to clarify that to you, because 3 the implication was that I don't how to diagnosis live 4 births, and someone else does. So I just wanted to 5 clarify this. 6 COMMISSIONER STEPHEN GOUDGE: Thanks, Dr. 7 de Nanassy. 8 DR. JOSEPH DE NANASSY: Thank you. 9 DR. JEAN MICHAUD: I'd like also to open 10 one (1) parentheses in mentioning something of a more 11 general nature. We have the tendency, or we are in Ottawa 12 believing that the words concerns equals mistake. And 13 this is not the case at all. 14 And the tendency also to bel -- believe 15 that mistakes equals lack of competence. This is not the 16 case. If I take my experience in the hospital system, 17 people see thousands and thousands of patients. 18 Our forensic pathologists in Ontario do 19 thousands and thousands of autopsies over many years. We 20 all make mistakes. We all make mistakes. Sometimes the 21 mistakes are made by the best and the brightest. 22 If you take, for example, the top notch 23 surgeon in any given hospital, he's the one (1) that's 24 going to see the most complex cases, the most ambiguous 25 situations and so on. He's much more in a position to
761 make some mistakes. 2 And do we stop people from practising 3 because they make mistakes? In the last fifteen (15) 4 years, the medical system has become much more supportive 5 and comprehensive about errors, incidents in hospital and 6 so on. 7 There is a tremendous process in place to 8 review cases, and/or review individuals. And currently in 9 the forensic system in Ontario, this does not exist to a 10 reasonable level. And so that's another irritant that I 11 see from the angle of the CHEO department, where the 12 decision come to us without even a word written, and so 13 on, without any information. You know I -- I'm calling 14 for improvement here. 15 COMMISSIONER STEPHEN GOUDGE: Thanks, Dr. 16 Michaud. 17 MS. LUISA RITACCA: Thank you. 18 COMMISSIONER STEPHEN GOUDGE: Thanks, Ms. 19 Ritacca. Mr. Carter...? 20 MR. WILLIAM CARTER: I have no questions, 21 Commissioner, thank you. 22 COMMISSIONER STEPHEN GOUDGE: Thank you. 23 Mr. McAleer...? 24 MS. JENNIFER MCALEER: Mr. Commissioner, I 25 don't have any re-examination. I would just like to thank
771 Dr. Carpenter, Dr. de Nanassy, and Dr. Michaud for coming 2 here and providing us with their evidence over the last 3 two (2) days. Thank you very much, Doctors. 4 DR. JOSEPH DE NANASSY: Yes. 5 DR. JEAN MICHAUD: Thank you. 6 COMMISSIONER STEPHEN GOUDGE: Yes, I 7 would, as well. Your evidence and the time you spent with 8 us has been very helpful to me. Thank you for coming. 9 DR. JOSEPH DE NANASSY: Thank you, 10 Commissioner. 11 COMMISSIONER STEPHEN GOUDGE: Have a safe 12 trip home. 13 DR. JEAN MICHAUD: It was a pleasure for 14 us. Thank you very much. 15 16 (WITNESSES STAND DOWN) 17 18 COMMISSIONER STEPHEN GOUDGE: Ms. 19 Rothstein...? 20 MS. LINDA ROTHSTEIN: Commissioner, just 21 before we wrap up for the break, I have a few comments, if 22 you don't mind, and thank you very much, Doctors, as well. 23 A few matters I want to cover. 24 First of all, looking back, Commissioner, 25 we have had six (6) weeks of hearing. We have heard from
781 seventeen (17) witnesses thus far. We have moved so far, 2 on schedule, and that is thanks very much to the 3 cooperation that we've received, not only from our 4 witnesses in making themselves available, notwithstanding 5 many other commitments and busy schedules, but if I may 6 say, that incredible assistance that we've received from 7 all of the parties with standing and their counsel, who 8 have worked very, very hard, who I have no doubt are very, 9 very tired, and who have made a great contribution to the 10 constructive process that we have witnessed thus far. 11 Secondly, Commissioner, I wanted to, 12 briefly, address a matter that has been brought to my 13 attention. When I examined Dr. Chiasson, I questioned him 14 about how high up Dr. Smith was in the hierarchy in 1987; 15 in doing so, I framed the question as how high up the 16 totem pole Dr. Smith was. 17 It was later pointed out to me that 18 actually vertical placement on a -- on a totem pole is of 19 no significance; many totem poles have the most prominent 20 symbols on the bottom or even in the middle. 21 This inaccurate use of the Aboriginal 22 symbol should be avoided, and I felt it appropriate to 23 indicate that on the record, and I am thankful to Ms. 24 Murray for bringing this to my attention. 25 And finally, Commissioner, looking forward,
791 we will, today, send an email to all parties with standing 2 and their counsel identifying for them our current draft 3 of the schedule for 2008. 4 As you can see, and as all the parties will 5 see, it is still somewhat a work in progress. January the 6 1st to 4th, thankfully no hearings. January the 7th we 7 will reconvene and commence the evidence of Dr. Bill 8 Lucas, Dr. James Edwards, Dr. Albert Lauwers, who are 9 Regional Supervising Coroners, and their evidence will 10 comprise two (2) days. 11 We will then hear on January the 9th and 12 10th from Dr. Katy Driver and Dr. Dirk Huyer, who are at 13 the Hospital for Sick Children in the SCAN Team. On 14 January the 11th, we will hear from Dr. Paul Thorner, who 15 is from the Division of Pathology at the Hospital for Sick 16 Children, and there may be some additional witnesses on 17 that day that have yet to be confirmed. 18 January the 14th and 15th will be for 19 criminal defence lawyers. I cannot identify them by name 20 yet, because we are still trying to ensure their 21 availability. On January the 16th, we will hear from Dr. 22 Rocco Gerace, who is the Registrar of the College of 23 Physicians and Surgeons of Ontario. 24 On the January the 17th and 18th, from Dr. 25 David Dexter, Dr. Chitra Rao, and Dr. Michael Shkrum, who
801 are representatives of the Regional Pathology Units. 2 January the 21st and 22nd from Mr. Ed 3 Bradley, Mr. Brian Gilkinson, and Ms. Terry Regimbault 4 (phonetic), Crown counsel. On January the 23rd and 24th, 5 we will have a number of police officers. We are still in 6 process of confirming particular individuals' 7 availability. 8 January 25th we are putting on hold; please 9 put that in your schedules, on hold, all counsel. We have 10 yet to determine the witnesses for that day, and then 11 January the 28th to February the 1st, we will hear from 12 Dr. Smith. 13 January 4, 7, and 8 are being held for 14 potential witnesses, but we have not identified them as 15 yet. All counsel should be aware that we will not be 16 sitting on February 5 and 6 of 2008. I meant February. 17 Ms. McAleer tells me I said January, but I meant February 18 4, 7, and 8. Thank you. 19 COMMISSIONER STEPHEN GOUDGE: Can I just 20 soften those last couple of dates, Ms. Rothstein, because 21 they are at my request. I have a commitment that I have 22 fulfill in my role in an other organization for superior 23 court judges that will occur, I hope, some time that week. 24 It will not occur on the Monday, and it 25 will not occur on the Friday. I am not quite clear
811 whether it will be the Tuesday, or the Wednesday, or the 2 Thursday. So I require some flexibility in that week. 3 MS. LINDA ROTHSTEIN: Thank you, 4 Commissioner. February 11th through 15th we are going to 5 use as the first week of our policy roundtables. We have 6 received some very helpful suggestions from a number of 7 the parties as to the composition and content of those 8 policy roundtables. 9 We are still in the process of confirming 10 the participation of our panellists and are hoping to be 11 in a position to provide the parties with further details 12 about their composition by the middle of January. 13 Same for the week of February 19 through 14 22, although, it should be noted that February 18th there 15 will no hearing. It is a new public holiday in Ontario. 16 February 25 through 29 will also be for 17 policy roundtables, depending on how the scheduling works. 18 We may be able to give people some breathing room that 19 week. That is to say, we may not be using the entire week 20 of February the 25th. 21 Written submissions, we are asking that 22 written submissions be provided to us by March 21. They 23 will be circulated to all parties on that day, which will 24 allow all parties to provide reply submissions to any of 25 the submissions of other parties which they wish to reply
821 to by March the 27th. 2 And we have set March 31 and April 1 for 3 oral submissions. So if I may, Commissioner, just say 4 this: On behalf of all of the lawyers of the Commission 5 and all of the staff, we wish everybody a very joyous 6 holiday season. We do hope they have time to relax. 7 And Ms. Brosseau has arranged for us to 8 have a nice 11:15 break with some refreshments. And we're 9 hoping that people can stay and have a chat and just enjoy 10 themselves, because we are very, very grateful to 11 everybody for all the hard work and contribution they've 12 made. 13 COMMISSIONER STEPHEN GOUDGE: Thanks, Ms. 14 Rothstein. Let me for my part echo what Commission 15 counsel has said. The level of cooperation amongst all 16 the parties has been something for which I am grateful and 17 has allowed us to move expeditiously. 18 Get a good rest. We are going to run hard 19 starting in January. We have got a lot to do, but it has 20 been a great first half of the game. 21 Halftime. Come back for the second half 22 first week in January. We will rise until then. 23 24 --- Upon adjourning at 11:00 a.m. 25
831 2 3 Certified correct, 4 5 6 7 8 _____________________ 9 Rolanda Lokey, Ms. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25