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 February 6th, 2008 25

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

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

4
  1                 APPEARANCES (cont'd)
  2  Jackie Esmonde        (np) )     Aboriginal Legal Services 
  3  Kimberly Murray      (np) )     of Toronto and Nishnawbe
  4  Sheila Cuthbertson    (np) )      Aski-Nation
  5  Julian Falconer      (np) )
  6  
  7  Suzan Fraser         (np) )     Defence for Children 
  8                             )     International - Canada
  9  
 10  William Manuel            )     Ministry of the Attorney
 11  Heather Mackay     (np)   )     General for Ontario
 12  Erin Rizok          (np)   )
 13  Kim Twohig          (np)   )
 14  Chantelle Blom     (np)    )
 15  
 16  Natasha Egan              )     College of Physicians and 
 17  Carolyn Silver     (np)   )     Surgeons
 18  
 19  Michael Lomer      (np)    )    For Marco Trotta
 20  Jaki Freeman        (np)   )
 21  
 22  Emily R. McKernan   (np)   )    Glenn Paul Taylor
 23  
 24  
 25

1 TABLE OF CONTENTS Page No. 2 3 JOHN BEVERLY MCMAHON, SWORN 4 5 Examination-in-Chief by Ms. Linda Rothstein 6 6 Cross-Examination by Mr. Peter Wardle 58 7 Cross-Examination by Mr. Paul Cavalluzzo 67 8 Cross-Examination by Mr. Brian Gover 80 9 10 Certificate of transcript 89 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

1 --- Upon Commencing at 9:32 a.m. 2 3 THE REGISTRAR: All Rise. Please be 4 seated. 5 COMMISSIONER STEPHEN GOUDGE: Good 6 morning. Ms. Rothstein...? 7 MS. LINDA ROTHSTEIN: Good morning, 8 Commissioner. I believe you know our witness, Justice 9 John McMahon? 10 COMMISSIONER STEPHEN GOUDGE: I do. 11 Justice McMahon, thank you for coming. 12 MS. LINDA ROTHSTEIN: Registrar, do you 13 want to swear in our witness please? 14 15 JOHN BEVERLY MCMAHON, Sworn 16 17 EXAMINATION-IN-CHIEF BY MS. LINDA ROTHSTEIN: 18 MS. LINDA ROTHSTEIN: Good morning, 19 Justice McMahon, thank you for coming. I understand that 20 you became a Superior Court Justice on November the 19th, 21 2004? 22 MR. JUSTICE JOHN MCMAHON: That's 23 correct. 24 MS. LINDA ROTHSTEIN: Having received 25 your LLB in 1981 from the University of Windsor?

1 MR. JUSTICE JOHN MCMAHON: Right. 2 MS. LINDA ROTHSTEIN: Called to the bar 3 in '83? 4 MR. JUSTICE JOHN MCMAHON: Yes. 5 MS. LINDA ROTHSTEIN: Between '83 and '93 6 you served as assistant Crown attorney in Scarborough? 7 MR. JUSTICE JOHN MCMAHON: Yes. 8 MS. LINDA ROTHSTEIN: Prosecuted before 9 all levels of court? 10 MR. JUSTICE JOHN MCMAHON: Right. 11 MS. LINDA ROTHSTEIN: Numerous murder and 12 attempted murder prosecutions? 13 MR. JUSTICE JOHN MCMAHON: Yes. 14 MS. LINDA ROTHSTEIN: Any child 15 homicides? 16 MR. JUSTICE JOHN MCMAHON: I don't bel -- 17 I'm 99 percent certain I did not do a child homicide, no. 18 MS. LINDA ROTHSTEIN: In 1993, I 19 understand you left your position as Crown to accept the 20 invitation of then Chief Justice Callahan, to be his 21 executive legal officer? 22 MR. JUSTICE JOHN MCMAHON: I did. 23 MS. LINDA ROTHSTEIN: And you continued 24 to serve in that capacity until 1996, having the 25 opportunity to serve not only Chief Justice Callahan, but

1 Chief Justice Roy McMurtry and Chief Justice Le Sage? 2 MR. JUSTICE JOHN MCMAHON: Yes, that's 3 right. 4 MS. LINDA ROTHSTEIN: And, in 1996 you 5 then returned to Scarborough as the Crown attorney? 6 MR. JUSTICE JOHN MCMAHON: Right. 7 MS. LINDA ROTHSTEIN: Continued there 8 until 2000? 9 MR. JUSTICE JOHN MCMAHON: Yes. 10 MS. LINDA ROTHSTEIN: In 1998, one (1) of 11 your responsibilities, I gather, Justice McMahon, was 12 acting as what was called the Director of the 13 Implementation of the Kauffman Report, which followed the 14 public inquiry into the wrongful conviction of Guy Paul 15 Morin? 16 MR. JUSTICE JOHN MCMAHON: That's 17 correct. 18 MS. LINDA ROTHSTEIN: Can you tell us 19 about that? 20 MR. JUSTICE JOHN MCMAHON: Sure, I was 21 requested by then the Assistant Deputy Minister, Murray 22 Segal, to put together a team of Crown attorneys to 23 implement the recommendations of the Kaufman Inquiry into 24 the wrongful conviction of Guy Paul Morin. 25 I put together a team of about eight (8)

1 Crown attorneys and, basically, what our role was was to 2 develop policies in relation to the areas that the 3 Kaufman Inquiry recommended, and also to provide 4 educational training for Crown attorneys throughout the 5 Province on the dangers of wrongful conviction, tunnel 6 vision, the problems with in-custody informants, and also 7 to use that as an op -- and scientific evidence, and use 8 the educational training as an opportunity to do things 9 jointly with the Defence bar, which was a very positive 10 step in the process. 11 We specifically developed five (5) 12 policies in relation to that. 13 MS. LINDA ROTHSTEIN: Which were, do you 14 remember them? 15 MR. JUSTICE JOHN MCMAHON: The first one 16 (1) and probably the most important -- well, I think they 17 were all important, but was in-custody informants, as 18 opposed to allowing Crown attorneys simply to call them 19 per the recommendations, we developed an in-custody 20 informant review committee of which I was the chair, and 21 it was a policy whereby no in-custody informant could be 22 called as a witness unless they had the approval of the 23 committee and there was a very complicated detailed 24 method of going through that to ensure there was 25 necessary corroboration going to the reliability and

1 credibility. 2 Also, there is a policy developed in 3 relation to the role of the Crown and to reemphasise the 4 need of decision of Her Majesty in Bushey to avoid tunnel 5 vision. 6 A process to make sure that in conducting 7 interviews was another policy dealing with making sure 8 there was full and complete disclosure. 9 And the one (1) that comes closest to what 10 we're here today about, there was one (1) dealing with 11 the Centre of Forensic Science, physical scientific 12 evidence providing a process for the Crowns to write if 13 they had concerns about the credibility or reliability of 14 experts to the Centre and to work with the Centre and the 15 Defence Bar on a committee to look at any issues that 16 come up, and also to ensure that we had write -- written 17 reports from the Centre before proceeding with cases. 18 There was also -- a fifth one (1) was 19 dealing with how to concede appeals and a wider scope for 20 conceding appeals than there had been in the past. 21 MS. LINDA ROTHSTEIN: In 2000 you became 22 the Director of Crown operations for the Toronto region. 23 MR. JUSTICE JOHN MCMAHON: Right. 24 MS. LINDA ROTHSTEIN: How many Crowns 25 were reporting to you?

1 MR. JUSTICE JOHN MCMAHON: Well, at that 2 time, and I think it's important, is that there -- as far 3 as Toronto, there would be approximately two hundred 4 (200) Crowns. We would prosecute on a yearly basis 5 probably a hundred and twenty thousand (120,000) charges, 6 and that would be just Toronto, which would be about 35 7 percent of the -- the volume for the Province as far as 8 charges are concerned. 9 MS. LINDA ROTHSTEIN: Okay. You had five 10 offices? 11 MR. JUSTICE JOHN MCMAHON: Right. 12 MS. LINDA ROTHSTEIN: North York, 13 Scarborough, Etobicoke, Old City Hall, and College Park. 14 MR. JUSTICE JOHN MCMAHON: Right, as well 15 as the Superior Court location and I -- if there were 16 summary conviction matters, as well, so probably six (6). 17 MS. LINDA ROTHSTEIN: Okay. And in that 18 capacity, obviously you reported to Murray Segal who 19 you've mentioned was then the ADM criminal. 20 MR. JUSTICE JOHN MCMAHON: Right. 21 MS. LINDA ROTHSTEIN: And through Mr. 22 Segal to the Deputy AG, Mark Freiman then. 23 MR. JUSTICE JOHN MCMAHON: That's 24 correct. 25 MS. LINDA ROTHSTEIN: You, yourself,

1 became the ADM criminal in 2004 prior to your appointment 2 to the bench. 3 MR. JUSTICE JOHN MCMAHON: That's right. 4 MS. LINDA ROTHSTEIN: So, I gather as 5 well, Justice McMahon, just to give us a little bit of a 6 preview, that you also taught for a number of years at 7 the University of Toronto in criminal law. 8 MR. JUSTICE JOHN MCMAHON: Right. 9 MS. LINDA ROTHSTEIN: And did some 10 teaching for the National Judicial Institute, and I'm 11 particularly interested in what I gather was some 12 teaching again in the area of wrongful convictions. 13 Can you tell us about that? 14 MR. JUSTICE JOHN MCMAHON: Sure, and 15 actually, that goes before I was a Judge, but continued 16 on once I -- I changed jobs. 17 Mr. Justice Rosenberg of the Court Appeal 18 developed a program on wrongful convictions and basically 19 I lectured at that, developed a lot of the -- the videos 20 on it, on in-custody informants, credibility, reliability 21 with Mr. Mark Sandler of the Defence Bar, and that NJI 22 Program, National Judicial Institute, was put on across 23 the -- the country dealing with some of the frailties of 24 identification evidence, problems with in-custody 25 informants, causes of wrongful conviction, and I guess it

1 -- it probably took place in, I -- I would guess, six (6) 2 or seven (7) different locations. 3 MS. LINDA ROTHSTEIN: Now Justice 4 McMahon, we've heard evidence that in January 2001 you 5 had some involvement in some Dr. Smith related issues, in 6 that you were called to a meeting that was convened at 7 the OCCO regarding his work and, indeed, you were 8 involved in some discussions with the Crown attorney who 9 was responsible for the prosecution in what we call the 10 Tyrell case. 11 But before I get to that, because I want 12 to sort of create some context for the Commissioner if we 13 can. As of January 2001, and prior to that involvement, 14 what did you know about Dr. Charles Smith, if anything? 15 MR. JUSTICE JOHN MCMAHON: Well probably, 16 as you may or may not know, is that the Crown's office 17 prosecutes cases in about seventy (70) centres in the 18 Province. 19 There's about five hundred and fifty 20 thousand (550,00) charges. And my experience indirectly 21 would have been what I would have learned from other 22 Crowns within the Toronto region in relation to Dr. 23 Smith. 24 I was fully aware that he testified in 25 relation to child deaths, and also on occasion to non-

1 child deaths where there was significant injuries. 2 I was aware he had a reputation for not 3 getting his reports out in a timely fashion. I -- I say 4 it with this caveat; he was not the only forensic expert 5 that would do that, especially psychiatrists. They have 6 a significant problem. 7 But he was the only pathologist that I was 8 aware of that there was, I would say a significant 9 problem in getting your reports out in a timely basis. 10 MS. LINDA ROTHSTEIN: And dealing with 11 that issue, as Director of Crown Attorneys for the 12 Toronto Region, what would you have seen as the options 13 for your Crown attorneys who were confronted with a time 14 delay from Dr. Smith in getting his reports done? 15 MR. JUSTICE JOHN MCMAHON: Well that 16 could be like any forensic expert. Where you'd start off 17 with is you would contact the expert; explain the urgency 18 of the matter. 19 If you had difficulties and you couldn't 20 get the report, you might ask the Crown attorney to 21 become involved from -- from your location to see if he 22 can put any pressure on. 23 What I -- my personal experience, what 24 worked best with any forensic expert would be using the 25 judicial officer at the pretrial, or at Court, to be able

1 to get back and say Judge So-and-so has directed, or 2 ordered, that we get a report by a certain date, and on 3 occasion some judges would be in a position to say if we 4 don't get the report, I expect Dr. So-and-so to be here 5 on that date to explain why. 6 So I think the most successful route would 7 be to use the judicial influence of case management. 8 MS. LINDA ROTHSTEIN: Okay. Justice 9 McMahon, what, if anything, had you heard about concerns 10 about Dr. Smith's competency, as of January of 2001? 11 MR. JUSTICE JOHN MCMAHON: In relation to 12 I was aware that there were cases like other experts 13 where he was cross-examined in relation to other cases 14 where although not on the negative finding of 15 credibility, but on how he conducted other cases. 16 That wasn't, just so we're clear, although 17 I was aware of that with Dr. Smith, that would happen 18 with other forensic experts as well. 19 I was aware of that. And then we get into 20 2001, where I become aware of the case I believe you 21 refer to as the -- as the Sharon case, or the Kingston 22 case. I became aware of that in -- some time in probably 23 2000, or 1999. 24 MS. LINDA ROTHSTEIN: Okay. And how did 25 you become aware of that case, do you recall?

1 MR. JUSTICE JOHN MCMAHON: I -- I 2 honestly believe because at the time that case was dealt 3 with, I was in Scarborough, initially. I didn't become 4 the Director until 2000. 5 So I think it was through media reports 6 that I became aware of it. It is possible that at some 7 point I could have discussed somewhere along the lines 8 with the Director of Crown Attorneys, Jim -- Jim -- I'm 9 having a blank here -- Jimmy Stewart (phonetic) from the 10 East Region, but it would have been the media. 11 MS. LINDA ROTHSTEIN: Okay. And while 12 we're on the point, Justice McMahon, would you turn up 13 Tabs 1 and 2 of your document book. Registrar, the Tab 1 14 document is 088516. 15 You've had an opportunity to see this 16 letter dated November the 9th, 1999, copied to Murray 17 Segal as the ADM. No reference on the printed document 18 to you, Justice McMahon, although there is a JM in 19 handwriting in the top right corner. 20 What is your sense, sir, as to whether or 21 not you were provided with a copy of Ms. Hawthorn's 22 letter on or about the time of its -- of its writing? 23 MR. JUSTICE JOHN MCMAHON: As I discussed 24 with you yesterday, I brought it to your attention that 25 at this time the "JM", I'm betting, refers to me.

1 Although, I can't say for certain. 2 I do know I would not have got this in 3 that fall, because a) I wasn't acting as the Director of 4 Crowns, I was in Scarborough. My best reac -- best -- 5 and I have no recollection of -- of reading it. 6 I can tell you this is my best 7 recollection is it probably came to me at a later date 8 when we did the due diligence on a case called Kpowardu 9 where I asked all the Crowns in the province, which would 10 include the ADM, if there was any issues in relation to 11 it, because I didn't have anything to do with the case in 12 Kingston, and I wasn't in the position of Director in 13 November of '99, and there would have been no reason to 14 send me the letter at that time. 15 But I'm certain it would have come to me 16 at a later date, and that's probably why it is a 17 different colour ink coming to me. But that's sort of my 18 surmise of why it's there. 19 MS. LINDA ROTHSTEIN: And looking at Tab 20 3, same answer, with respect to document 088 -- 21 MR. JUSTICE JOHN MCMAHON: Yeah. 22 MS. LINDA ROTHSTEIN: -- 119? 23 MR. JUSTICE JOHN MCMAHON: I -- yeah, 24 because if -- I had not been involved in the review of 25 Reynold's case for absolutely certain, and I never

1 received all of the information that would be attached to 2 that back in 1999. 3 And I say, I wouldn't have been there -- 4 MS. LINDA ROTHSTEIN: Okay. 5 MR. JUSTICE JOHN MCMAHON: -- in the 6 capacity of -- of it -- of Director when this took place. 7 MS. LINDA ROTHSTEIN: Okay. But -- so to 8 go back to what you were telling the Commissioner about 9 your knowledge of Dr. Smith and any issues about his work 10 prior to you dealing with the Tyrell case, and your 11 meeting with the OCCO. 12 Do I understand you to be telling us, 13 Justice McMahon, that you were entirely dependent on word 14 of mouth advice from other Crowns? 15 MR. JUSTICE JOHN MCMAHON: Yeah, there 16 was no institutional memory or mechanism for tracking 17 experts at the time whatsoever. And basically how it 18 would work within a Crown Attorney System, is if someone 19 had a case, they may gain information of I know, geez, I 20 think Mr. O'Malley (phonetic) had such a case in -- in 21 Windsor. 22 You may call someone up on a one-off, but 23 there was no institutional way of gathering data in 24 relation to competence, credibility, reliability of 25 expert witnesses.

1 MS. LINDA ROTHSTEIN: Okay. So that 2 takes us then to the Tyrell case. If you would look at 3 Tab 5 of your book of documents, Justice McMahon. It's 4 PFP136261 with an accompanying document, which I'm 5 actually going to ask the Registrar to pull up on the 6 screen in a moment. 7 It appears that you were sent a fax from 8 Frank Armstrong on January the 19th, 2001. There's some 9 handwriting on the first page directed to you, John. I 10 think it comes from F. Frank, am I reading that 11 correctly -- 12 MR. JUSTICE JOHN MCMAHON: Right. 13 MS. LINDA ROTHSTEIN: -- Justice McMahon? 14 MR. JUSTICE JOHN MCMAHON: Yes. 15 MS. LINDA ROTHSTEIN: And suggests that 16 you've had a -- some kind of a conversation with him 17 prior to his forwarding this documentation to you, is 18 that right? 19 MR. JUSTICE JOHN MCMAHON: That's 20 correct. 21 MS. LINDA ROTHSTEIN: Can you just assist 22 us with what you recall about how you became involved in 23 discussions with Frank Armstrong about the Tyrell case, 24 please? 25 MR. JUSTICE JOHN MCMAHON: Sure. Mr.

1 Armstrong is probably one of the most senior Crowns in 2 the North York office that has been doing homicides 3 before I was called to the bar. 4 But being an experienced lawyer and 5 experienced Crown, when he has a difficult case sometimes 6 he would ask to case conference it. He had a case that 7 after his preparation for trial, as we know, the Crown 8 has an obligation to continually reassess whether it is a 9 reasonable prospect of conviction. 10 And in his preparation for trial, he 11 interviewed some of the witnesses, some other experts, 12 and then asked for a second report from a Dr. Becker. 13 And based upon that, he had a concern of whether there 14 was a reasonable prospect of conviction on his homicide 15 case. 16 And although it's his call, and it's 17 important that the individual Crown exercise the 18 discretion, what's very important for the system, is 19 people don't -- don't make decisions without discussing 20 with others, just to gain the benefit. 21 And being an experienced person, he 22 happened to ask me. I was the Director. So he wanted to 23 meet to discuss his case and to get my input in what 24 would finally be his decision. 25 And that's basically -- what the

1 conversation would have been, he would have naturally 2 sent me this material before we met, so I'd have some 3 idea other than his oral discussion of what it was, to 4 basically have some summary of what the issues were, and 5 then we would have met subsequent to that. 6 MS. LINDA ROTHSTEIN: So looking at the - 7 - the document that appears behind the fax cover-sheet, 8 136258, that would have been at least one of the 9 documents that he sent to you. It looks like 12 pages 10 were sent. 11 Justice McMahon, I have to tell you that. 12 I'm not sure that we can recreate for you -- 13 MR. JUSTICE JOHN MCMAHON: Right. 14 MS. LINDA ROTHSTEIN: -- all of the other 15 documents that you may have got, but having looked at 16 this one, does this ring a bell? 17 MR. JUSTICE JOHN MCMAHON: No, 18 absolutely. There was an issue, I recall, that after he 19 was preparing for trial and the evidence of Dr. Becker he 20 went further and that based upon getting a second opinion 21 in relation to the case, he was of the view that the 22 second opinion that he provided was -- is more consistent 23 with the defence expert than the Crown expert at that 24 time, Dr. Smith. 25 And he thought at that point the right

1 thing to do was -- was to withdraw the charge as there 2 was not a reasonable prospect to conviction. 3 After our meeting, I completely agreed 4 with that. It made perfect sense because when you have a 5 conflict in the evidence like that, it's better to -- 6 there isn't a reasonable prospect to conviction and 7 exercise the Crown's discretion and withdraw the charge. 8 So that's basically what came out of my 9 meeting with Mr. Armstrong in relation to it, that the 10 decision was made. 11 MS. LINDA ROTHSTEIN: Can you remember 12 whether any of your discussions with Mr. Armstrong about 13 this case led you to have any additional concerns about 14 Dr. Charles Smith or his work? 15 MR. JUSTICE JOHN MCMAHON: To be honest, 16 I'd say no. I'd say that we get cases where the experts, 17 especially in the subjective area of this, disagree. 18 There were some significant disagreements with Dr. Becker 19 on whether -- you know, what exactly was required to 20 support it. 21 And both Mr. Armstrong and I, at that 22 time, thought we have experts that disagree and, as such, 23 it would be unsafe to proceed and that that decision was 24 made based upon that. 25 MS. LINDA ROTHSTEIN: That's helpful.

1 And then do you recall that sometime later that month you 2 learned that, indeed, the charges were being withdrawn in 3 Sharon's case? 4 MR. JUSTICE JOHN MCMAHON: I don't recall 5 today but obviously from the meeting it was clear it was 6 going to happen, it would be in the next week or two and, 7 yes, I was sure that it was going to happen. I don't 8 recall exactly when it happened. 9 MS. LINDA ROTHSTEIN: Right. We know 10 from newspaper reports and other -- and other elsewhere 11 that, indeed, by January 26th of that year there was a 12 withdrawal of the charges against Ms. Reynolds in that 13 case. That's just -- 14 MR. JUSTICE JOHN MCMAHON: I'm sorry? 15 MS. LINDA ROTHSTEIN: The 26th of 16 January. 17 MR. JUSTICE JOHN MCMAHON: Right. 18 MS. LINDA ROTHSTEIN: Okay. So that 19 takes us then to the meeting that I foreshadowed earlier, 20 the meeting that was held at the instance of the OCCO in 21 relation to Dr. Smith. We've heard some evidence about 22 that already from Dr. Cairns and Dr. Chiasson. 23 Can you tell us what you recall about how 24 that meeting came about? 25 MR. JUSTICE JOHN MCMAHON: Certainly. I

1 was, at that time, the director for Toronto. I received 2 a call, probably from Dr. Chiasson, it may have been from 3 Dr. Cairns, I'm not a hundred percent certain. 4 They said to me that they wanted to meet 5 in relation to Dr. Charles Smith was no longer going to 6 be doing autopsies and post mortems for us, could I meet? 7 And I said, yes, I would. And we arranged to meet -- I'm 8 not certain if it was the same day, the next day, but 9 very shortly thereafter we met. 10 MS. LINDA ROTHSTEIN: We know from a 11 variety of other written documents which you've seen that 12 that meeting, indeed, took place on the 31st of January 13 of 2001. 14 Does that accord with your recollection? 15 MR. JUSTICE JOHN MCMAHON: Yes, it does 16 and seems like the documentation of various pieces put 17 before me would confirm that. 18 MS. LINDA ROTHSTEIN: Help us with this, 19 if you would. How well did you know Dr. Jim Cairns prior 20 to that meeting? 21 MR. JUSTICE JOHN MCMAHON: I would say I 22 knew him well. I would have -- he would have been at 23 somewhere along the line at Crown conferences. I taught 24 a course at U of T with Justice Campbell and then another 25 one with Justice Muldaver and I believe we'd asked him to

1 come and discuss matters there, so I'd invited him as a 2 coroner on that. But other than -- I knew him well, 3 based on our professional interactions over several 4 years. 5 MS. LINDA ROTHSTEIN: What about Dr. 6 David Chiasson, did you have any acquaintance with him 7 prior to the meeting? 8 MR. JUSTICE JOHN MCMAHON: I think, and 9 I'm not a hundred percent certain, I think he'd been a 10 pathologist once or twice on cases I prosecuted. I'm not 11 a hundred percent certain on that. 12 I knew him not as well but I certainly 13 knew him well in his capacity over there. 14 MS. LINDA ROTHSTEIN: Okay. And we know 15 that Tony Smith of the Toronto Homicide Squad was also in 16 attendance at that meeting. 17 Do you remember that, as well? 18 MR. JUSTICE JOHN MCMAHON: Yes. 19 MS. LINDA ROTHSTEIN: And can you assist 20 us as to why he was involved in that meeting, or was that 21 ever explained? 22 MR. JUSTICE JOHN MCMAHON: Well, I -- I 23 don't think it was explained. I didn't invite him, but 24 after we got there and started discussing it, I was fully 25 -- I completely understood why the Coroner's Office asked

1 him to be there for sure. 2 MS. LINDA ROTHSTEIN: And that was 3 because? 4 MR. JUSTICE JOHN MCMAHON: Well, I guess 5 we get into what happened at the meeting. 6 MS. LINDA ROTHSTEIN: Okay. 7 MR. JUSTICE JOHN MCMAHON: The first 8 thing that I was advised at the meeting by probably, I 9 believe, Dr. Chiasson is that in light of the case in -- 10 I know we don't use the name of -- I think we referred it 11 as the Sharon case, and the media around that, Dr. -- Dr. 12 Smith had indicated that he was no longer going to be 13 doing any of the criminal work, and the first step was to 14 tell me that they were going to get someone to -- to 15 replace him and that we would have a smooth transition. 16 And Dr. Chiasson was worried about how 17 they were going to get someone to replace him, but that 18 was the first thing that I was advised. 19 MS. LINDA ROTHSTEIN: And just stopping 20 there for a moment. Are you able to be more precise as 21 to what work he was no longer going to do; was it all 22 medicolegal autopsies, was it just criminally suspicious 23 cases, or do you recall? 24 MR. JUSTICE JOHN MCMAHON: I don't 25 recall, but I have absolute recollection that at the very

1 least he was not going to be doing any criminal autopsies 2 where they would affect our Crown attorneys -- 3 MS. LINDA ROTHSTEIN: Okay. 4 MR. JUSTICE JOHN MCMAHON: -- dealing 5 with cases. So, they may have gone farther than that 6 what they told me, but that's clearly what I heard and 7 was concerned about that part. 8 MS. LINDA ROTHSTEIN: Okay. And again, a 9 question that you may or may not be able to answer: Did 10 you understand that there was any qualification on the -- 11 the limit on Dr. Smith doing criminal cases; that is to 12 say, was it time limited in any way? 13 MR. JUSTICE JOHN MCMAHON: No, I mean, I 14 was basically told he voluntarily was not going to do it. 15 The second part was that they wanted to do 16 an internal review of his work. And the reason for the 17 meeting, from their perspective, is they asked myself and 18 Detective Sergeant Smith if we could assist them with 19 providing a list of the cases that Dr. Smith has been 20 involved in in relation to the criminal matters. 21 It was explained to me that they were 22 going to review a cross-section of his cases internally 23 and that I would provide them with a list which would 24 involve completed cases, cases ongoing, coroner's 25 inquests, if we had any, and it was to get them a list

1 that is -- of all his cases. 2 Now, at the time I thought it was a little 3 odd because I was glad to help out, but I thought in the 4 circumstances, maybe -- I was sort of surprised they 5 needed our help to -- to generate the list, but saying 6 that, both -- and Detective Sergeant Smith, who I had a 7 good working relationship, would be assisting me, because 8 he was with Toronto homicide, in facilitating the Toronto 9 list. 10 That's what they wanted out of the meeting 11 was to get our help to assist in coming up with a list so 12 they could do this internal review. 13 MS. LINDA ROTHSTEIN: And just stopping 14 there, seizing on one (1) of the things you said, 15 Detective Sergeant Smith was going to assist in getting 16 the Toronto list. 17 Was your -- was the request of you bigger 18 than that? Were you being -- 19 MR. JUSTICE JOHN MCMAHON: Yes. 20 MS. LINDA ROTHSTEIN: -- asked to not 21 only get the Toronto list, but if I can put it this way, 22 the Provincial list? 23 MR. JUSTICE JOHN MCMAHON: Yeah, 24 absolutely. The -- the request wasn't just Toronto 25 centric.

1 MS. LINDA ROTHSTEIN: Right. 2 MR. JUSTICE JOHN MCMAHON: It was, can we 3 look at the cases that he has -- not just that are 4 outstanding, but are cases that have been completed so we 5 can look at doing a review, and it would be a cross- 6 section. 7 I didn't get the impression that initially 8 they would look at all of those cases, but from those 9 cases they would start a review, and depending where that 10 went, we'd see -- they'd see where they went from there. 11 MS. LINDA ROTHSTEIN: Okay. 12 MR. JUSTICE JOHN MCMAHON: They told me 13 that whatever their review showed, not the end, but on 14 cases, if there was a problem with any of the cases that 15 they have reviewed, they would let us know right away. 16 MS. LINDA ROTHSTEIN: Okay. And did you 17 foresee any difficulties in amassing such a list, either 18 because you were the Toronto Regional Crown Attorney or 19 because of your own record-keeping issues at the Ministry 20 of the Attorney General? 21 MR. JUSTICE JOHN MCMAHON: I didn't have 22 any issue with the fact that I was from Toronto. As far 23 as getting the cooperation across the Province, I didn't 24 see that as a problem. 25 What I did see as a problem is the way of

1 tracking, or record-keeping, within the Crown's system. 2 There's no central institutional memory or data bank for 3 this. 4 Statistical data is kept by the Courts 5 through their Icon (phonetic) computer system in the 6 Provincial Court, and I think, FRANK (phonetic) in the 7 Superior Court. 8 And the Crowns -- in my experience, other 9 than asking Crowns, there's no -- there's no magic way 10 you can go out and say, Give me all the cases where 11 expert X testified. 12 So I -- I knew at the beginning that was 13 going to be difficult. 14 MS. LINDA ROTHSTEIN: Okay. 15 MR. JUSTICE JOHN MCMAHON: So that's what 16 they wanted out of the meeting. 17 MS. LINDA ROTHSTEIN: Okay. Is there 18 anything you wanted out of the meeting? 19 MR. JUSTICE JOHN MCMAHON: Yes, there -- 20 yes, there was. All right. So that -- to me, that dealt 21 with if there's some issue here, he's no longer doing 22 them, voluntarily or otherwise, but voluntarily as I was 23 advised. 24 They're going to review what's gone on in 25 the past. And I want to make sure with any ongoing, or

1 live cases, that they would be able to facilitate my 2 Crowns. 3 And when I say that, I'm speaking beyond 4 Toronto, to be able to get a second independent opinion 5 that I wanted from outside of Ontario, depending on what 6 the area of expertise is, and I needed them to facilitate 7 me being able to do that. 8 So -- and I can say Dr. Chiasson, in 9 particular, was very helpful and advised me, There'll be 10 no problem. We'll get you the names of experts for this 11 type of a review. 12 MS. LINDA ROTHSTEIN: Okay. 13 MR. JUSTICE JOHN MCMAHON: And we started 14 that probably almost immediately. 15 MS. LINDA ROTHSTEIN: Right. So I hear 16 what you're telling us, Justice McMahon, the future was, 17 from your perspective, taken care of appropriately 18 because Dr. Smith wasn't going to be doing cases in the 19 future. 20 The past was going to be attended to by 21 virtue of an internal review by the OCCO. But cases that 22 were still actively before the Courts, from your 23 perspective, would likely require a second look by an 24 independent expert. 25 MR. JUSTICE JOHN MCMAHON: I thought -- I

1 mean, no one at that time was saying to me that there is 2 a problem vis a vis this person's competence, or 3 compellability, or credibility in relation to it, but in 4 light of what I was aware of, I thought in fairness to a) 5 the accused, and b) to the process, that it's important 6 that we get an objective second opinion. 7 MS. LINDA ROTHSTEIN: Okay. Anything 8 else you remember about that meeting to assist us? 9 MR. JUSTICE JOHN MCMAHON: No, other than 10 that I undertook that I would get the list as soon as I 11 could, and also that we'd want to move, depending on what 12 cases were in the system, getting independent second 13 opinions where necessary. 14 MS. LINDA ROTHSTEIN: All right. 15 COMMISSIONER STEPHEN GOUDGE: Can I just 16 ask you a couple of questions -- 17 MR. JUSTICE JOHN MCMAHON: Yeah, sure. 18 COMMISSIONER STEPHEN GOUDGE: -- Justice 19 McMahon? How far back did they ask you to go? 20 MR. JUSTICE JOHN MCMAHON: They didn't. 21 I -- I expected they -- I -- I took it that any case that 22 we were aware of, we should look at. So it wasn't -- and 23 I mean, how far does that take you. 24 I guess it would go back to the 25 institutional memory of the people --

1 COMMISSIONER STEPHEN GOUDGE: Right. 2 MR. JUSTICE JOHN MCMAHON: -- that you're 3 going to ask -- 4 COMMISSIONER STEPHEN GOUDGE: They did 5 not -- they did not put a -- 6 MR. JUSTICE JOHN MCMAHON: -- no -- no, 7 they didn't say -- 8 COMMISSIONER STEPHEN GOUDGE: -- they did 9 not put a start date on it? 10 MR. JUSTICE JOHN MCMAHON: -- absolutely 11 not. It wasn't, I want every case from 1990 -- I mean, 12 I've looked at the list, and most of them are from '96, 13 but there was no magic to that. 14 If there was a '91 case, it would be there 15 if we had it. 16 COMMISSIONER STEPHEN GOUDGE: Okay. And 17 the second question is: Did you form any impression in 18 the meeting as to what the purpose was in their minds for 19 doing their cross-section review once they got the list? 20 MR. JUSTICE JOHN MCMAHON: I -- I 21 surmised -- it wasn't articulated to me -- but I surmised 22 that quite -- in light of the, if I -- the Kingston 23 case, I -- I think that there was -- I surmised a concern 24 about his -- his competence, and they wanted to make sure 25 that the cases he'd done had been done right.

1 No one specifically articulated that to 2 me, but that's what I took out of the meeting. That 3 that's why they were going to do it, because that's why I 4 wanted to know, If there's any problems, let me know. 5 COMMISSIONER STEPHEN GOUDGE: Okay. 6 MS. LINDA ROTHSTEIN: Okay. 7 COMMISSIONER STEPHEN GOUDGE: Thanks, Ms. 8 Rothstein. 9 10 CONTINUED BY MS. LINDA ROTHSTEIN: 11 MS. LINDA ROTHSTEIN: So following that 12 meeting, Justice McMahon, what steps did you take; what 13 steps did Detective Sergeant Smith take in coordination, 14 or at your behest to move this forward? 15 MR. JUSTICE JOHN MCMAHON: Probably 16 almost immediately. I -- I think after that, I -- I 17 talked to Detective Sergeant Tony Smith at the end of the 18 meeting, or the next day, but, Can you get the list 19 together as soon as possible. 20 And I think Detective Sergeant Smith got 21 the Toronto list together within a day or so. To deal 22 with the rest of the province and -- is probably the best 23 way to deal with it is I had what's called a Divisional 24 Management Committee meeting -- I don't know, three (3) 25 or four (4) days later.

1 MS. LINDA ROTHSTEIN: Take a look at Tab 2 9 and see if that assists you with refreshing your memory 3 on that. We have a document 100066, DMC minutes, 4 February 2, 2001. 5 MR. JUSTICE JOHN MCMAHON: Right. Okay, 6 so this is three (3) days later. At -- a Divisional 7 Management Committee is the -- the Assistant Deputy 8 Minister which would be Murray Segal and the directors 9 from each region of the province. 10 The Crown attorney Directors; we would all 11 be at a meeting here, so each -- each area would be 12 represented. And I -- at that time -- at the end of the 13 meeting -- because the agenda's already set, they have 14 what's called a "roundtable" where anybody advises of any 15 issues that may be coming forward at that time. 16 At that point, I advised my colleagues of 17 the meeting and told them two (2) things; one (1) is, 18 We've been asked to put this list together, can you 19 canvass the Crowns in each of your regions and get back 20 to my counsel, Cheryl Blondell? 21 So if there's cases out there, please let 22 us know, because we want to give it to the -- to the 23 Coroner's Office for this review. 24 And the second part was to tell them, at 25 that time, that we did have -- on go-forward cases, if

1 there is a case, they're going to facilitate getting a 2 second opinion in relation to us getting someone outside 3 of Ontario. 4 MS. LINDA ROTHSTEIN: And do you know 5 then how the various Regional Directors went about 6 identifying cases in their region? 7 MR. JUSTICE JOHN MCMAHON: No. 8 MS. LINDA ROTHSTEIN: Do you have any 9 sense of that? 10 MR. JUSTICE JOHN MCMAHON: I -- I wish I 11 did, but I basically relied on them, gave them the 12 instruction, and I could see some of the emails that have 13 come back from different parts of the province as to -- 14 I'd assume they canvassed them in the -- each of their 15 Crown's office in relation to it. 16 MS. LINDA ROTHSTEIN: And am I correct in 17 understanding that Ms. Blondell, your counsel, was the 18 coordinator of all of this information and was ultimately 19 responsible for preparing the list? 20 MR. JUSTICE JOHN MCMAHON: Right. I -- I 21 asked Cheryl to basically -- what comes in, we've got the 22 list -- I don't know if by February 2nd, but within a 23 couple of days of February 2nd, either before or after, 24 we already had the Toronto list in good shape. 25 MS. LINDA ROTHSTEIN: Right.

1 MR. JUSTICE JOHN MCMAHON: Which was a 2 little easier -- as you recall, we had one (1) homicide 3 office, and it's -- it's easier to compile. 4 MS. LINDA ROTHSTEIN: Okay. So if you 5 would turn over to Tab 15, Ms. Blondell eventually writes 6 to Dr. Cairns on the 11th of April, 2001, it's 044076. 7 MR. JUSTICE JOHN MCMAHON: Right. 8 MS. LINDA ROTHSTEIN: And she indeed 9 apologizes for the delay there, she was raid -- waiting 10 for further information regarding the inquest that Dr. 11 Smith had been involved in. 12 And so looking at that list, and indeed in 13 light of her leth -- letter, what was, at the time, your 14 view as to what these nineteen (19) cases represented in 15 terms of Dr. Smith's cases -- or total cases? 16 MR. JUSTICE JOHN MCMAHON: I guess two 17 (2) things. Although -- before we get to that, just -- 18 that list goes out on April 11th. 19 MS. LINDA ROTHSTEIN: Right. 20 MR. JUSTICE JOHN MCMAHON: I should add 21 that the Tony Smith's list, which I don't know if we have 22 -- do we have Tony Smith's list here? 23 MS. LINDA ROTHSTEIN: We do. 24 MR. JUSTICE JOHN MCMAHON: All right. 25 Wherever that is -- the Tony Smith list, we had within a

1 day or so, and I would have -- 2 MS. LINDA ROTHSTEIN: You did. 3 MR. JUSTICE JOHN MCMAHON: -- that would 4 have gone over right away. 5 MS. LINDA ROTHSTEIN: Okay. 6 MR. JUSTICE JOHN MCMAHON: So as far as 7 that list; my view of the list, and again, it shows sort 8 of the difficulties of trying to go with getting 9 information out of people, not knowing -- I thought the 10 list was -- was not as long as it should have been. I 11 mean, I -- 12 MS. LINDA ROTHSTEIN: Even at the time 13 you had a sense of that -- 14 MR. JUSTICE JOHN MCMAHON: Well, I -- I-- 15 MS. LINDA ROTHSTEIN: -- what you're 16 telling us? 17 MR. JUSTICE JOHN MCMAHON: -- you don't 18 know, but I looked at how many were in Toronto, and -- 19 and most of them were in Toronto, and there were other 20 ones from outside that they were following up on, but it 21 just, I guess, demonstrates that you ask people to -- 22 what their history or knowledge of it is and they do the 23 best they can, but yeah, I -- I kind of -- I looked at it 24 and I was a little surprised that -- you know, how many 25 seemed to be from Toronto and not elsewhere.

1 MS. LINDA ROTHSTEIN: Okay. 2 MR. JUSTICE JOHN MCMAHON: I mean there's 3 Windsor, Lemington, different places, Brampton, but I 4 thought there would have been more from elsewhere. 5 MS. LINDA ROTHSTEIN: Okay. And I take 6 it that in light of what you've said and what Ms. 7 Blondell says, that you were looking for a whole range of 8 cases including inquests -- 9 MR. JUSTICE JOHN MCMAHON: Completed 10 cases. 11 MS. LINDA ROTHSTEIN: -- completed cases. 12 And even if you look at number 11 on the attachment to 13 Ms. Blondell's letter, a medical negligence civil suit is 14 -- is noted as part of this inventory. 15 MR. JUSTICE JOHN MCMAHON: Yeah, and I 16 think that's probably -- because there were -- the only 17 reason I can see that, just reading into it, whenever the 18 Crown responded from Brampton, because there was an 19 inquest, that's why it would have been through the Crown 20 system -- and that's probably why there was somebody who 21 had some memory of it and disclosed that. 22 MS. LINDA ROTHSTEIN: All right. And do 23 you know, Justice McMahon, whether anyone in your office 24 ever received a response to this list ever -- someone 25 from the OCCO saying, We need more information, we need

1 less, or -- well, I guess not less -- 2 MR. JUSTICE JOHN MCMAHON: No. 3 MS. LINDA ROTHSTEIN: -- but we need 4 more, we need better? Okay. 5 MR. JUSTICE JOHN MCMAHON: Absolutely 6 not. 7 MS. LINDA ROTHSTEIN: Did you ever hear 8 back from the OCCO about what the progress or status of 9 the internal review, to use your words, was? 10 MR. JUSTICE JOHN MCMAHON: Never heard a 11 word at any time. 12 MS. LINDA ROTHSTEIN: Did you follow up? 13 MR. JUSTICE JOHN MCMAHON: No. I wish I 14 did, but I didn't. I figured it was the Office of the 15 Coroner; if they're going to do a review, they'll let us 16 know. I -- looking back on it, if I had to do it again, 17 I should have followed up -- 18 MS. LINDA ROTHSTEIN: Right. 19 MR. JUSTICE JOHN MCMAHON: -- but I 20 trusted what they told me and I relied on it. 21 MS. LINDA ROTHSTEIN: And you assumed no 22 news was frankly, good news. 23 MR. JUSTICE JOHN MCMAHON: Well, yes, I - 24 - I expected if there was a problem with any case that we 25 had, based on getting the cases for them, that they'd let

1 us know. 2 MS. LINDA ROTHSTEIN: Okay. And dealing 3 with the other track, that is to say the current cases, 4 did the -- the system which Dr. Chiasson had agreed to 5 help you with; that is to say, identifying experts for 6 ongoing and active cases before the Criminal Courts, did 7 that work, to the best of your knowledge? 8 MR. JUSTICE JOHN MCMAHON: To the best of 9 my knowledge, it did. And I was sort of dealing with the 10 Toronto cases, but within a couple of weeks of this, we 11 implemented it immediately on -- 12 MS. LINDA ROTHSTEIN: On Tamara's case? 13 MR. JUSTICE JOHN MCMAHON: -- on Tamara's 14 case, sorry, I want to get the right -- 15 MS. LINDA ROTHSTEIN: Look at Tab 10 -- 16 MR. JUSTICE JOHN MCMAHON: Right. 17 MS. LINDA ROTHSTEIN: -- 052196. 18 MR. JUSTICE JOHN MCMAHON: Yes, but what 19 -- and I guess the other part of the briefing that I -- I 20 didn't -- I -- I told you how I briefed DMC, and I should 21 have told you, I also would have briefed my five (5) 22 Crown attorneys in Toronto -- Mr Clark would have been 23 one (1) of them for the Toronto -- or the Scarborough 24 office -- and on what to do about getting a second 25 opinion and how to go about it.

1 So this is the first case where we went 2 out and got a second opinion based upon what had 3 transpired at the January 30th meeting. 4 MS. LINDA ROTHSTEIN: Okay. And are 5 there any others that you particularly recall or -- or 6 became noteworthy in any way? 7 MR. JUSTICE JOHN MCMAHON: Obviously, the 8 other case where we sought the second opinion to see if 9 it supported Dr. Smith's conclusions was in Kpowardu -- 10 MS. LINDA ROTHSTEIN: Okay. 11 MR. JUSTICE JOHN MCMAHON: -- where we 12 dealt with that. 13 MS. LINDA ROTHSTEIN: Right. So, is it 14 safe to conclude, then, Justice McMahon, that your next 15 significant involvement in issues related to Dr. Smith 16 arose in the context of the Kpowardu case? 17 MR. JUSTICE JOHN MCMAHON: Yes. 18 MS. LINDA ROTHSTEIN: Okay. Can you 19 assist the Commissioner with how it was - and I believe 20 it's in November of 2002 - that you became involved in 21 the Kpowardu case that was making its way through the 22 Courts? 23 MR. JUSTICE JOHN MCMAHON: Sure. I 24 received a call as the Director from one (1) of the 25 defence counsel on that case, a Ms. Cindy Wasser. It's

1 somewhat unusual; it -- it happens on occasion where 2 counsel sort of go over and beyond the -- the trial 3 Crown, and I'm very sensitive to not interfering with 4 Crown discretion. 5 But Ms. Wasser had concerns about 6 disclosure of information in the possession of the Crowns 7 globally in -- in regard to the con -- I forget her 8 words, I think it was comp -- competence and -- in any 9 event, we'll find it at some point -- but in any event, 10 the competence, credibility, and reliability of Dr. Smith 11 and wanted a canvass done of -- of Crowns to -- to ensure 12 that the defence had everything that they may be able to 13 use at trial in relation to that case, so that was the 14 request to me. 15 When I got the request, I discussed it 16 with several people, and although there wasn't an 17 absolute consensus on how to deal with it, I reached the 18 conclusion that it was appropriate to deal with the 19 defence request, and although I wasn't aware of it being 20 done before, that I was going to canvass the entire 21 Province to see if there was issue -- there was 22 information that could be provided to the defence that 23 would be of assistance to them, and I set about doing 24 that. 25 MS. LINDA ROTHSTEIN: How did you set

1 about doing that canvas? 2 MR. JUSTICE JOHN MCMAHON: Well, not to 3 get into all of the -- the tooing and froing, but there 4 was some -- I decided that the simplest way now that -- 5 and I wouldn't say I'm the most computer literate person 6 in the world, but I thought this is an opportunity where 7 I could canvass every Crown in the Province by sending 8 out an email, setting out the importance of it, and 9 requesting that they feed into the -- the trial Crown so 10 we could get that information, and it could be disclosed. 11 So I -- I know there was debate of who 12 should send the memo -- or the email. I decided to do 13 it, because I had confidence people would respond, and I 14 sent it out. And got the responses that I think are part 15 of the process that were then provided to the -- the 16 Crown in the case. 17 I instructed the Crown in the case that 18 the Crown had two (2) options; either disclose all of the 19 information and go behind them, and if for whatever 20 reason you -- you -- per Stinchcombe, think it should not 21 be disclosed, is you disclose everything that you think 22 should be, advise counsel of what you're not disclosing 23 so they can seek any judicial remedy but, at least, they 24 know you have it. 25 MS. LINDA ROTHSTEIN: Okay.

1 JUSTICE JOHN MCMAHON: But I think, in 2 the end, it was all disclosed. 3 MS. LINDA ROTHSTEIN: Take a look at Tab 4 22, Justice McMahon. It's PFP099566. 5 MR. JUSTICE JOHN MCMAHON: Right. 6 MS. LINDA ROTHSTEIN: An email from you 7 to all Crowns, dated November 26, 2002. Is that the 8 email which you've just referred to that you sent to all 9 the Crowns in the Province? 10 MR. JUSTICE JOHN MCMAHON: That would be 11 the email, right. 12 MS. LINDA ROTHSTEIN: Right. We have 13 numerous copies of that, together with the responses, and 14 I won't take you through all of that, but you've had an 15 opportunity to look at them. 16 How revealing are they, even with today's 17 eyes, Justice McMahon, about what the issues were? What 18 do you think? 19 MR. JUSTICE JOHN MCMAHON: There -- there 20 are certain things that when you look at them, it would 21 have been nice if you had a system in place beforehand to 22 be able to deal with these issues, and to know where -- 23 if there's been any adverse findings of credibility; if 24 there's issues about competency; if there's issues about 25 how things -- how opinions are -- are given, and whether

1 they're in a written form; whether they're not. 2 So they're -- they're -- they're clearly, 3 to me, revealing in relation to -- to some of the issues, 4 and I fully understand why the defence wanted them. 5 MS. LINDA ROTHSTEIN: Okay. And there's 6 a letter exchange between you and John Rosen who was co- 7 counsel with Ms. Wasser on this issue, and on this case, 8 starting at -- actually the first letter you'll find is a 9 November 21st letter, starting at Tab 17. 10 MR. JUSTICE JOHN MCMAHON: I'm sorry, Tab 11 17 -- all right. 12 MS. LINDA ROTHSTEIN: Yeah. 096245. I 13 -- I don't propose -- 14 MR. JUSTICE JOHN MCMAHON: Ms. Rothstein, 15 if you just hang on. My binder, unfortunately, came 16 apart here, so just let me put it back together here. 17 18 (BRIEF PAUSE) 19 20 MR. JUSTICE JOHN MCMAHON: Okay. I'm 21 sorry, Tab -- 22 MS. LINDA ROTHSTEIN: Okay. It starts at 23 Tab 17 -- 24 MR. JUSTICE JOHN MCMAHON: Right. 25 MS. LINDA ROTHSTEIN: -- 096245. I don't

1 propose to take you through that line-by-line or anything 2 close, but from your perspective, in terms of that 3 exchange with Mr. Rosen, what was the -- what were the 4 key points from your perspective? 5 MR. JUSTICE JOHN MCMAHON: Well, I -- I 6 think first of all, there's the agreement that this -- I 7 come to the conclusion this has to be done and it will be 8 done. 9 There were about three (3) debates in the 10 letter, not on, I -- I think, significant things; is that 11 I advised that I wouldn't, or Mr. Clark, wouldn't be the 12 one (1) that would actually make the call on disclosure, 13 but it was clear that if the trial Crown doesn't make 14 disclosure of all of this, or any part of it, they will 15 advise you. 16 There were only a couple of things that -- 17 they wanted to know had I heard back from the Coroner's 18 Office in relation to the review. 19 MS. LINDA ROTHSTEIN: Right. 20 MR. JUSTICE JOHN MCMAHON: And I 21 specifically tell them that I had not heard back from the 22 Coroner's Office in relation to the view which is 23 accurate. 24 And the other issues that came out of that 25 were whether or not matters in the pre -- in the -- in

1 the possession of the Coroners Office were, in fact, 2 third party records or not. 3 We had a debate which would be decided 4 judicially. And I also explained to them about my 5 meeting with the Coroner's Office and -- and in January 6 of thir -- of '01 and what our position was, which is 7 consistent with what I told you today. 8 MS. LINDA ROTHSTEIN: Right. And so just 9 on that point, Justice McMahon, if you look at the third 10 page of the letter of November 21, 2002, 096245. It's 11 slash 3, please, Registrar. In the middle of the page, 12 Mr. Rosen records what Ms. Wasser apparently advised the 13 Court about on November 21, in terms of her conversation 14 with you, and in the middle paragraph it's recorded: 15 "I asked Mr. McMahon since he had asked 16 for the review of Dr. Smith's work, if 17 he had ever received a report back." 18 And that leads us to your response, 19 Justice McMahon, which is at the next tab, 18, 096253 20 slash 1, and the last paragraph of that letter at slash 21 2. 22 Are you with me? 23 MR. JUSTICE JOHN MCMAHON: Right. 24 MS. LINDA ROTHSTEIN: Lastly in your 25 letter of November 21:

1 "It is indicated that I asked for the 2 review of Dr. Smith's work. I can 3 indicate that the Coroner's Office 4 decided that it was going to do its 5 review of Dr. Smith before I was ever 6 contacted. In my meeting with the 7 Coroner's Office, I asked that the 8 Crown be advised to the results of any 9 review that could impact on any ongoing 10 or completed criminal prosecution." 11 And so on. 12 MR. JUSTICE JOHN MCMAHON: Right, because 13 it was important to me that when they did the review, 14 it's just not on ongoing cases, it's obviously that any 15 completed cases, as well. 16 So, I guess the big disagreement with John 17 -- Mr. Rosen and I at the time was; I think when Ms. 18 Wasser, I'm sure, inadvertently, said, I asked for the 19 review, I didn't -- I did ask for the view -- review. 20 I'd like to take credit for it, but I didn't. I simply 21 responded to what they said. 22 MS. LINDA ROTHSTEIN: All right. So, 23 Justice McMahon, we have some additions to our binder 24 that you and I have looked at that you had not a lot to 25 do with in terms of authoring them at Tab 51, but that

1 we've -- that you've been told, and I understand, have 2 already been the subject of some policy development at 3 the Ministry of the Attorney General. 4 I can tell you that when Mr. Gilkinson 5 testified just over two (2) weeks ago, he testified about 6 a committee that was responsible for putting together 7 this document entitled "Summary of Criminal Law Division 8 Initiatives", 304038. You've had a chance to look at 9 that? 10 MR. JUSTICE JOHN MCMAHON: Yes, I have. 11 MS. LINDA ROTHSTEIN: And in light of 12 your experience in trying to develop the information-base 13 upon which to assist the Coroner's Office -- to assist 14 the Crown with its ongoing prosecutions where there was a 15 critical piece of expert witness that was potentially at 16 issue, what -- what are your views as to these 17 recommendations that have been put forward -- or these 18 new initiatives? 19 MR. JUSTICE JOHN MCMAHON: Well, 20 obviously when I did both of my attempts to assist, one 21 (1) being with the list initially, it -- it became 22 painfully obvious that there was no tracking system for 23 these type of cases. 24 We relied on people that have boxed cases, 25 put them away, to say, Geez, can you remember what

1 happened, and -- and we shouldn't have to -- to do that, 2 so in light of what happened, it makes sense that we be 3 able to track those. It would seem to be -- make sense 4 for the system that you're able to do that. 5 It's also important when we look at what's 6 happened with the Kaufman Inquiry in relation to the 7 Centre of Forensic Science and that sort of the 8 obligation on -- on the Crowns and -- and also defence 9 that if there's issues in relation to either negative 10 judicial finding on credibility or reliability or 11 competence, or a Crown has a concern about it, that 12 basically there be a mechanism that that information be 13 sent to the overseer, and I'm sure you'll hear from Dr. 14 Prime, but... 15 MS. LINDA ROTHSTEIN: And just stopping 16 there, Justice McMahon. The question I didn't ask you, 17 but I did before you sat in the witness box, was whether 18 it ever came to your attention that there was a lengthy 19 written decision authored by Justice Dunn, the Family 20 Court, in a case in Timmins in the late '80's; whether 21 that decision actually ever made its way onto your desk 22 as a result either of your initial attempt to gather 23 information for the Coroner's Office or indeed, in the 24 Kpowardu revisiting of those issues some years later. 25 MR. JUSTICE JOHN MCMAHON: I can tell you

1 that it never arrived on my desk at any time. I can also 2 tell you that people would be aware of Smith and other 3 experts being cross-examined on other cases. So I was 4 aware Dr. Smith would have been cross-examined on other 5 cases in relation to credibility and reliability and 6 findings, although technically, they shouldn't be on 7 judicial findings. 8 And -- but as far as the actual case or 9 being brought to my attention, no. 10 MS. LINDA ROTHSTEIN: Okay. Sorry, you 11 were -- you were continuing to give us your -- your 12 experience-based views of these initiatives as they're 13 set out at Tab 51? 14 MR. JUSTICE JOHN MCMAHON: Right. And I 15 mean, the idea of -- of having a central repository would 16 have made the review of this much easier. 17 But in my view, there has to be a link 18 with that, not just within the Crown system for the 19 purpose of disclosure and assessment of reasonable 20 prospect to conviction, but to ensure that there's 21 oversight at -- at the Coroner's Office, that there has 22 to be a link that the Coroner's Office gets that -- 23 COMMISSIONER STEPHEN GOUDGE: Right. 24 MR. JUSTICE JOHN MCMAHON: -- so they can 25 obtain transcripts, if necessary, to review issues as to

1 the reliability or competence of their staff. 2 3 CONTINUED BY MS. LINDA ROTHSTEIN: 4 MS. LINDA ROTHSTEIN: Okay. 5 MR. JUSTICE JOHN MCMAHON: And the second 6 part, and again, I just go back to my experience on the 7 In Custody Review -- Informant Review Committee, is by 8 having senior Crowns that aren't involved in a case -- on 9 a case conference matter, and where you're constantly 10 bringing in different members of a committee with some 11 consistency of a Chair, like was suggested here, this 12 Homicide Resource Team, my experience with that committee 13 is it did two (2) things. 14 One (1) is it ensured better prosecutions 15 and more sober second look at how to deal with a case 16 from people who have experience. But it also allowed for 17 an educational process as to the dangers involved and 18 what to look for. 19 And what's happened with the Informant 20 Review Committee, in my time there, was that less and 21 less naturally in-custody informants were used, and if 22 they were, it seemed people were far more alive to the 23 issues. 24 So I just think anytime you have 25 experienced people that oversee cases, as we saw with

1 Frank Armstrong, although very experienced, and not just 2 because it was me, but anybody that you seek input from 3 others, it's a -- a positive step. 4 So -- I mean, for whatever -- if these 5 were in place when I was doing what I was doing, it would 6 have made life a lot easier and probably would have 7 worked out better for the administration of justice. 8 MS. LINDA ROTHSTEIN: Those are all my 9 questions, Commissioner, unless you have some? 10 COMMISSIONER STEPHEN GOUDGE: I just want 11 to follow up, Justice McMahon, on a couple of these 12 things, particularly relating to the process that the 13 Crown commendably has been put in place -- has put in 14 place already. 15 One (1) of the things that we've heard 16 repeatedly is the concern with, particularly Dr. Smith, 17 as he acknowledged when he was here last week, giving 18 evidence that was too dogmatic. 19 Could this kind of review process or what 20 is called here "evidentiary issues" that a prosecuting 21 Crown has, could that go some distance to addressing that 22 kind of concern? 23 MR. JUSTICE JOHN MCMAHON: Well, it does, 24 because I think, in the long run, expert evidence -- 25 opinion evidence can be very dangerous as we've seen

1 here, and you've seen in other cases. 2 And if you have a system in place of 3 people that are going to look at it from a distance and 4 objectively, you know, you'd like to see it get to the 5 point where there might be cases, as I've experienced, 6 where the defence may have a contrary expert opinion that 7 they may be prepared to share -- 8 COMMISSIONER STEPHEN GOUDGE: Mm-hm. 9 MR. JUSTICE JOHN MCMAHON: -- ahead of 10 trial with people, as happened in -- if we look back on 11 the case of Tyrell -- 12 COMMISSIONER STEPHEN GOUDGE: Mm-hm. 13 MR. JUSTICE JOHN MCMAHON: -- where that 14 was done. 15 COMMISSIONER STEPHEN GOUDGE: Mm-hm. 16 MR. JUSTICE JOHN MCMAHON: The inf -- 17 that was shared, and that had an impact on it, so -- 18 COMMISSIONER STEPHEN GOUDGE: Right. 19 MR. JUSTICE JOHN MCMAHON: -- having that 20 kind of system in place -- 21 COMMISSIONER STEPHEN GOUDGE: It's really 22 a feedback mechanism, isn't it? 23 MR. JUSTICE JOHN MCMAHON: Feedback, 24 advice -- 25 COMMISSIONER STEPHEN GOUDGE: Yes.

1 MR. JUSTICE JOHN MCMAHON: -- and if 2 you're -- if you're a Crown prosecuting in Windsor, and 3 you have the benefit of an experienced group of people 4 saying, You know, in second thought, when we step back 5 outside of this case, here's what we think. It -- you 6 know, I think it leads to a -- you know, can lead to a 7 better prosecution. 8 COMMISSIONER STEPHEN GOUDGE: And then 9 one (1) of the things that you referred to that isn't 10 expressly referred to in this new initiative is any 11 feedback mechanism from 720 Bay, from the Crown's office 12 to the Coroner's Office -- because the reality of life is 13 that unless they know and act, -- 14 MR. JUSTICE JOHN MCMAHON: Exactly. 15 COMMISSIONER STEPHEN GOUDGE: -- the 16 pathologist who does the autopsy will turn up again no 17 matter what the view in the feedback system is? 18 MR. JUSTICE JOHN MCMAHON: Right. I 19 mean, that's what I identified, I guess yesterday when I 20 -- I looked at it, was that you need the people that are 21 overseeing it to, I mean, to investigate it. 22 And, so if there's a concern by Justice X, 23 and then they get the transcript, and they look at it, 24 and they investigate it but, otherwise, the coroner's 25 office wouldn't know about it, although it'd be disclosed

1 to the defence. 2 But we're hope -- I would hope would 3 happen is if there's issues about professionalism or 4 that, they could be dealt with by the -- in the same way 5 that's done right now with the Centre of Forensic 6 Science, and I -- I gather, Ms. Rothstein, that you're 7 going to hear from Dr. -- or Dr. Ray Prime -- 8 COMMISSIONER STEPHEN GOUDGE: Right. 9 MR. JUSTICE JOHN MCMAHON: -- and I -- I 10 must say that what's happened on that front since the 11 Kaufman Inquiry, the Centre of Forensic Science has been 12 excellent. 13 So, and the response -- 14 COMMISSIONER STEPHEN GOUDGE: Your sense 15 is that it's been effective? 16 MR. JUSTICE JOHN MCMAHON: Yes, I -- I 17 think it has. I think the -- I think there have been a 18 lot of input, and it's not just Crown input, it's defence 19 input -- 20 COMMISSIONER STEPHEN GOUDGE: Right. 21 MR. JUSTICE JOHN MCMAHON: -- and there's 22 also a working group up there with the Crown and defence 23 involved in looking at issues with the Centre of Forensic 24 Science. And that's helpful as well. 25 COMMISSIONER STEPHEN GOUDGE: Okay. That

1 is great, thanks. 2 Thanks, Ms. Rothstein. What do you want 3 to do? Do you want to take a morning break, and then you 4 can canvas counsel and then, if necessary, I will 5 allocate the times, and we will move on to -- 6 MS. LINDA ROTHSTEIN: That makes sense, 7 Commissioner. 8 COMMISSIONER STEPHEN GOUDGE: -- the 9 examination of other counsel? We will rise then -- 10 MS. LINDA ROTHSTEIN: Why don't we take 11 20 minutes, just to give us the time to do that? 12 COMMISSIONER STEPHEN GOUDGE: Rise for 20 13 minutes? Thank you. 14 15 --- Upon recessing at 10:31 a.m. 16 --- Upon resuming at 10:54 a.m. 17 18 THE REGISTRAR: All rise. Please be 19 seated. 20 COMMISSIONER STEPHEN GOUDGE: Mr. 21 Wardle...? 22 23 CROSS-EXAMINATION BY MR. PETER WARDLE: 24 MR. PETER WARDLE: Good morning, Mr. 25 Commissioner. My name is Peter Wardle. I represent the

1 affected families guild. 2 I want to review the findings of Dr. Smith 3 in various cases, including several of the cases you've 4 mentioned this morning in your evidence, sir. 5 I want to ask you just about two (2) 6 areas. First, you were asked some questions by My 7 Friend, Ms. Rothstein, about the email you sent to all 8 Crowns in November of 2002, and you'll recall that you -- 9 you said that having had an opportunity to review some of 10 those responses recently, you find them revealing. 11 Do you recall saying that? 12 MR. JUSTICE JOHN MCMAHON: Yes, I do. 13 MR. PETER WARDLE: I just wanted to take 14 you to one (1) of them, which is in your binder at Tab 15 32, and it's PFP099609. 16 MR. JUSTICE JOHN MCMAHON: Okay. Yes. 17 MR. PETER WARDLE: And -- and first of 18 all, sir, just to get the context for this. My 19 understanding is that when you sent out the email to all 20 Crowns, as the responses came back to you, you likely 21 didn't read them. 22 You simply forwarded them on to Mr. Clark, 23 who had some responsibility for the Kporwodu case. Is 24 that right? 25 MR. JUSTICE JOHN MCMAHON: Actually I

1 think what I did is I forwarded them -- I -- I -- the -- 2 the email said to contact the Crown directly, which would 3 have been Ms. Zaied, and so I think when you look at -- 4 like lets take that one (1) is she's copied on it. The 5 co-counsel, Mr. McGrath, is copied on it, and I'm copied 6 on it. So on -- on the one where it says: "From 7 Elizabeth Quinlan." It went to me. 8 MR. PETER WARDLE: Do -- do you have any 9 recollection, sir, of reading this at the time, or would 10 you have simply forwarded it on? 11 MR. JUSTICE JOHN MCMAHON: I don't have 12 any recollection specifically of reading it, no. 13 MR. PETER WARDLE: Now, if we could just 14 look at the email from Elizabeth Quinlan that's in the 15 middle of the page and, first of all, perhaps you could 16 tell us who Elizabeth Quinlan was. I'm assuming she was 17 a Crown. 18 Do you know in what jurisdiction? 19 MR. JUSTICE JOHN MCMAHON: I believe she 20 was in Barrie. I don't know the lady directly, because 21 there's about nine hundred (900) Crown attorneys, but -- 22 and I'm cheating somewhat, but I -- I believe that in any 23 event, but I see at the ba -- bottom there it even tells 24 you that she's with that office. 25 MR. PETER WARDLE: So I wanted to just

1 take you through the body of this email, if we may. The 2 email indicates that Ms. Quinlan had prosecuted Roy 3 Simmons (phonetic) on a charge of manslaughter in which 4 Dr. Charles Smith was a witness. 5 The prosecution began in 1994, and I 6 believe -- and she says in the email: 7 "I believe in 1997 or early 1998, we 8 were advised that Dr. Smith had mixed 9 up samples from the post-mortem that 10 were subsequently used in DNA testing." 11 And then it goes on to say: 12 "To give you some background, Simmons 13 was charged in 1994 with killing his 3- 14 month-old grandson. It was believed 15 that he was also the father of the 16 baby. DNA tests were done to confirm 17 this; however, the tests [and I'm 18 assuming that's the initial tests] show 19 that not only was Simmons not the 20 father of the baby, he was not the 21 grandfather of the baby or the father 22 of the child -- baby's mother. 23 Although the maternal grandmother was 24 adamant that Simmons was the father of 25 the baby's mother, we were assured by

1 CS -- CFS of the accuracy of the 2 results of the test." 3 And then you'll see it goes on to say: 4 "Simmons was convicted of manslaughter 5 in October 1995. The Ontario Court of 6 Appeal ordered a retrial on an 7 unrelated issue. Before the retrial, 8 the baby's mother advised the police 9 that the information she had given to 10 them about the paternity of the baby 11 was false. She confirmed that Simmons 12 was the father of the baby. DNA 13 testing was redone using a sample from 14 the mother and another sample from the 15 baby. These second tests confirmed 16 that Simmons was the father and 17 grandfather of the baby, and of course, 18 the father of the baby's mother." 19 And it's really the last paragraph I 20 wanted to direct you to: 21 "An investigation was undertaken 22 regarding the mixing up of the original 23 sample. A meeting was held with Dr. 24 Jim Cairns, Dr. Smith, CFS personnel, 25 the investigating officer, Detective

1 Constable Dave Fawcette, Detective 2 Inspector Ken Smith, and myself." 3 And -- and just stopping there. It would 4 appear from the chronology that this would be -- it 5 doesn't say when this meeting took place, but I'm 6 assuming from what's in this email, that it must have 7 been somewhere between 1996 and 1998. 8 MR. JUSTICE JOHN MCMAHON: It would make 9 sense. 10 MR. PETER WARDLE: And then it says: 11 "Dr. Charles Smith explained at that 12 meeting that he had mislabeled the 13 original sample from the baby taken at 14 the post-mortem and had taken the wrong 15 sample to CFS for DNA testing. This 16 resulted in the initial incorrect 17 result as to the paternity of the 18 baby." 19 And then it goes on to say: 20 "Simmons was convicted in 1999. After 21 the retrial on the charge of 22 manslaughter, he pleaded guilty to 23 incest." 24 And I'm really just highlighting this for 25 you, sir, because we've heard a lot of evidence about

1 what the Coroner's Office knew or didn't know about 2 issues relating to Dr. Smith's competence in the -- in 3 the late 1990's. 4 And -- and this would certainly suggest 5 that Dr. Cairns, at least, was aware of one (1) incident 6 involving a mixing up of a sample, which appears to have 7 had some impact on an ongoing criminal prosecution, is 8 that fair? 9 MR. JUSTICE JOHN MCMAHON: Absolutely, it 10 would be fair based on that -- what Ms. Quinlan's 11 recollection is. 12 MR. PETER WARDLE: The second issue I 13 want to take you to is just briefly about your meeting 14 with Dr. Cairns and Dr. Chiasson in January of 2001 and 15 your evidence about the internal review. 16 And my notes have that you indicated that 17 you thought it would be a cross-section of cases of some 18 kind; that you surmised that the purpose of the review 19 after the Kingston case was that there may be concerns 20 about Dr. Smith's competence and that the Coroner's 21 Office would want to make sure that cases had been done 22 right. 23 MR. JUSTICE JOHN MCMAHON: Yes. 24 MR. PETER WARDLE: Do I have that fairly? 25 MR. JUSTICE JOHN MCMAHON: Yes, I think

1 that's what I said. 2 MR. PETER WARDLE: Okay. And did you 3 have any sense, in your own mind, as to what this 4 internal review would look like going away from that 5 meeting? 6 MR. JUSTICE JOHN MCMAHON: No, I -- I 7 didn't know how they'd actually do the review. I 8 thought, then again, maybe I'm just again surmising, they 9 wanted -- they looked at all the cases that we could 10 provide. 11 They were going to look at a cross-section 12 of them, and what I -- I took from the meeting is they 13 were going to look in -- into cases and see if they were 14 done correctly. And if there was a problem, that I -- I 15 expected it would expand from there, and if there wasn't 16 a problem at the end of the cross-section, maybe it 17 wouldn't. But no one articulated that to me, but I knew 18 they were going to do a cross-section first and then see 19 where that led. 20 MR. PETER WARDLE: We've heard evidence 21 from Dr. Cairns that for the -- the cases that were the 22 subject of the internal review -- that is the criminally 23 suspicious cases -- for a number of those cases, the only 24 internal review that was actually done in 2001 was he 25 went back to see if there had been a paper review of the

1 case done by Dr. Chiasson at -- after the time of the 2 post-mortem report. 3 In other words, there was no sort of fresh 4 review, simply a confirmation that Dr. Chiasson had 5 checked the post-mortem report at the time. 6 Does that come as a surprise to you, sir, 7 that that may have been the extent of the review? 8 MR. JUSTICE JOHN MCMAHON: Yeah, although 9 not articulated, I thought it was going to be far deeper 10 or a more detailed review than simply checking the 11 paperwork. I -- no one said that to me but when they 12 said they're going to go over and review his cases, I 13 thought there would be some detailed review, although no 14 one said that directly to me. So that does come as a 15 surprise. 16 MR. PETER WARDLE: And would it be fair 17 that you would have assumed that any review done by the 18 Ontario Coroner's Office at this time, any internal 19 review of criminally suspicious cases, one of their 20 concerns would have had to have been whether there was 21 any possibility of a wrongful conviction in any of those 22 cases, correct? 23 MR. JUSTICE JOHN MCMAHON: I absolutely 24 believe that that would be part of their concern, yes. 25 MR. PETER WARDLE: Those are all my

1 questions then for you, sir. Thank you. 2 MR. JUSTICE JOHN MCMAHON: Okay. 3 COMMISSIONER STEPHEN GOUDGE: Thanks, Mr. 4 Wardle. 5 Mr. Cavalluzzo...? 6 7 CROSS-EXAMINATION BY MR. PAUL CAVALLUZZO: 8 MR. PAUL CAVALLUZZO: Justice McMahon, I 9 am Paul Cavalluzzo and I act on behalf of the Crown 10 Attorneys Association, as you know. 11 This morning I'd like to deal with three 12 general areas with you. The first is the point that you 13 made concerning tracking expert evidence and oversight by 14 the Coroner's Office. 15 The second area is the relationship 16 between the Crown attorney and the defence. 17 And the third area will be a 18 recommendation that the Association is going to make 19 concerning an advisory team. 20 But first dealing with the tracking of 21 expert evidence and I just want to ask you a few 22 questions because I think you agree with the position 23 that we're going to put forward. 24 You talked about the -- the letter that 25 goes to the Centre for Forensic Sciences which came out

1 of the Kaufman Report and you -- and -- and you told us 2 that it does two things that the government's initiatives 3 don't do at the present time. 4 One is that it gets the input from defence 5 counsel which I think is very important. Would you agree 6 with that? 7 MR. JUSTICE JOHN MCMAHON: Yes, it's good 8 to have both sides. I mean, the Crown may think he did a 9 fine job. The defence may not. That's -- 10 MR. PAUL CAVALLUZZO: Right. 11 MR. JUSTICE JOHN MCMAHON: -- what should 12 be looked at. 13 MR. PAUL CAVALLUZZO: Now Dr. Pollanen, 14 in his evidence, said that he would also like the input 15 from judges. I -- I don't know what you would think of 16 that. 17 MR. JUSTICE JOHN MCMAHON: I think that's 18 going to be difficult and I think that would be a 19 problematic. Other than whatever is on the transcript -- 20 MR. PAUL CAVALLUZZO: Right. 21 MR. JUSTICE JOHN MCMAHON: -- that's 22 fine. But I don't personally think the judges should be 23 writing letters on these things. 24 MR. PAUL CAVALLUZZO: Okay. Now the 25 other thing that this form does is that the overseer or

1 the oversight body will get the feedback that is 2 important; that is, in our estimation it should be the 3 chief forensic pathologist at the Coroner's Office who 4 would get this information. 5 And let me just put to you another thing 6 that will be recommended and ask for your views, and that 7 is that, it will be our recommendation that the chief 8 forensic pathologist should maintain a certified roster 9 of pathologists who would be available not only to Crown 10 attorneys to be called in such prosecutions but also to 11 defence counsel. 12 What would you think of that idea of 13 having a certified roster? 14 MR. JUSTICE JOHN MCMAHON: I think that 15 tries to mirror what they did with the CFS after Kaufman, 16 looking at seeing if they can provide people that can 17 testify for -- or can provide expertise to the defence. 18 And I think in the long run that's a very 19 positive step because people can be more objective and 20 not be one side or the other. 21 MR. PAUL CAVALLUZZO: And having acted 22 for Crowns for many, many years and constantly arguing 23 with the employer that they -- they work too hard and so 24 on and so forth, you would agree -- you -- 25 COMMISSIONER STEPHEN GOUDGE: No

1 speeches, Mr. Cavalluzzo. 2 3 4 CONTINUED BY MR. PAUL CAVALLUZZO: 5 MR. PAUL CAVALLUZZO: You would agree 6 with me that the kind of form that we're talking about 7 which would -- in effect, it would be tailored. 8 Obviously, we would have other questions concerning -- 9 that would go to the Coroner's Office but it wouldn't 10 impose a great deal of paperwork on the Crown -- 11 MR. JUSTICE JOHN MCMAHON: Right. 12 MR. PAUL CAVALLUZZO: -- attorney that 13 would inhibit a good feedback that the Crown should be 14 giving to the Coroner's Office. 15 MR. JUSTICE JOHN MCMAHON: Right. I 16 think the Crown could provide that information in ten 17 (10) or fifteen (15) minutes max and it would -- they can 18 investigate from there. 19 MR. PAUL CAVALLUZZO: Okay, that's fine. 20 Now I'd like to move on to the next area, that is, the 21 relationship between the Crown and the defence. And I 22 think that you have participated in a number of Crown 23 education courses and you're a great believer in 24 education of Crowns. 25 But you're also a great believer, and you

1 would agree with me, that there is great merit, 2 particularly in this area of expert evidence, of having 3 joint education both with Crowns and with the defence 4 bar? 5 MR. JUSTICE JOHN MCMAHON: Yes, we did 6 that after Kaufman and it's -- the more people are 7 working together, I think, although we do different -- 8 they do different jobs, I think it works out well, and 9 joint education is something that I think is very 10 helpful. 11 MR. PAUL CAVALLUZZO: Okay. The next 12 area that I would move into relating -- 13 COMMISSIONER STEPHEN GOUDGE: Can I just 14 ask a question about that, Mr. Cavalluzzo? What was the 15 nature of the joint education, Justice McMahon, after 16 Kaufman? 17 MR. JUSTICE JOHN MCMAHON: Sure, it -- 18 COMMISSIONER STEPHEN GOUDGE: Did it get 19 right down to enhancing the understanding of the lawyers 20 about DNA for example, or -- 21 MR. JUSTICE JOHN MCMAHON: It -- it was -- 22 COMMISSIONER STEPHEN GOUDGE: -- hair or-- 23 MR. JUSTICE JOHN MCMAHON: It was all -- 24 what happened is we put on a three (3) day educational 25 training for Crowns, and with the Criminal Lawyer's

1 Association, the last half day we did on the area that 2 was of -- of some -- the most concern -- Centre of 3 Forensic Science expert evidence, getting independent 4 reviews and some of the frailties of that. 5 And we put that on jointly, and you know, 6 there was a lot of people on both sides of the fence that 7 you know weren't overly supportive of that. But the 8 practical reality is it worked out, and -- and you know, 9 and unfortunately, in my view, we have the Criminal 10 Lawyer's Association have their educational conference at 11 -- at one time, the Crowns have it separate. 12 But there are things that could be -- 13 beyond the educational benefit of having the Crown and 14 defence working together, and I think you get less 15 polarization and less Americanization of our system of an 16 adversarial process. 17 COMMISSIONER STEPHEN GOUDGE: Thank you. 18 Thanks, Mr. Cavalluzzo. 19 20 CONTINUED BY MR. PAUL CAVALLUZZO: 21 MR. PAUL CAVALLUZZO: Okay, now just 22 moving on from there in terms of making the process in -- 23 in pediatric homicides less adversarial in terms of the 24 goal. And I think all of the stakeholders in the system 25 want to ensure that there is reliable evidence that is

1 put before the judge. 2 And that is the area of -- of mutual 3 disclosure. We have heard evidence, for example, let me 4 give you an example of a -- a case out of Timmins, where 5 there were something like nine (9) experts that testified 6 on behalf of the defence, with the Crown attorney having 7 no advance notice whatsoever in respect of a report; in 8 and effect, would be cross-examining the expert on the 9 very same day that she found out that the expert would be 10 testifying. 11 Which raised to my mind, not being a 12 criminal lawyer, why don't we have mutual disclosure in 13 these kinds of cases? It would -- it would be efficient 14 for the system, it would seem to me, and at the same time 15 it would give the Crown -- it would place the Crown in a 16 better position in order to make the real determination 17 that has to be made as to whether there's a reasonable 18 prospect of success for a conviction. 19 And so basically, what are your views on 20 mutual disclosure? 21 MR. JUSTICE JOHN MCMAHON: Well, I think 22 -- I can tell you about my experience as a Crown in 23 relation to it as opposed to my personal views now. But 24 there are many cases -- and I -- and I think it depends 25 on a level of trust with the defence bar and the

1 individual Crown -- where disclosure of expert reports 2 has led to a frank discussion between the experts, which 3 has led to the resolution of cases, and often when that's 4 done, withdrawals. 5 You know, the Tyrell case was part of -- 6 part of the reason that happened, was the defence's -- 7 MR. PAUL CAVALLUZZO: Mm-hm. 8 MR. JUSTICE JOHN MCMAHON: -- disclosure 9 of their expert report early. And I have seen that if 10 you have someone, that the defence counsel have 11 confidence in, exercising Crown discretion, overseeing 12 it, that they might be open to do it. 13 MR. PAUL CAVALLUZZO: Right. 14 MR. JUSTICE JOHN MCMAHON: And it 15 certainly is if we have two (2) experts that the parties 16 feel confident can discuss the matter, and hopefully come 17 up with, you know, the best scientific information, 18 wherever that may take us, it's certainly a benefit to 19 the administration of justice in those cases, and it -- 20 it's something. 21 Now counsel -- obviously in my experience, 22 there are times where defence counsel don't wish to do 23 it, and there are -- there are probably valid reasons why 24 they didn't. 25 But it's a trust issue, and it's an issue

1 that can lead to, as opposed to the adversarial process, 2 better scientific opinion by -- by consulting when 3 feasible. 4 MR. PAUL CAVALLUZZO: And one (1) related 5 question to that, and this obviously is coming from the 6 civil process, and that is, before the preliminary 7 inquiry for example, having meetings between Crown 8 defence and their experts to have a quote, "a scientific 9 discussion" to see the state of the evidence at -- at the 10 commencement of the preliminary inquiry? 11 MR. JUSTICE JOHN MCMAHON: Yeah, I -- 12 I've done that as a Crown, and I've done that as the 13 Director. People would call me up and, you know, once 14 you had that discussion, it's resulted in cases being 15 withdrawn or resolved by way of plea of guilty. 16 So if the parties are open to it, it 17 certainly seems to have an advantage of doing it in a 18 less adversarial process than in a courtroom when both 19 parties think it's a good idea. 20 MR. PAUL CAVALLUZZO: And do you -- do 21 you think that mutual disclosure should be a matter of 22 legal compulsion, or do you think it just should be a 23 matter of consensus to be worked out -- 24 COMMISSIONER STEPHEN GOUDGE: I think if 25 we do not ask you to offer any view about the legality of

1 it, Justice McMahon -- 2 MR. PAUL CAVALLUZZO: Right, right. 3 COMMISSIONER STEPHEN GOUDGE: -- given 4 your position. 5 MR. PAUL CAVALLUZZO: Right. 6 COMMISSIONER STEPHEN GOUDGE: But if you 7 have any thoughts on its desirability, I welcome them. 8 MR. JUSTICE JOHN MCMAHON: All right. I 9 -- I think you need consensus. I -- I'm -- I guess my 10 experience is there may be occasions where the defence 11 simply doesn't trust the expert for the Crown, or -- or 12 whatever, or the Crown -- and that they may wish to hold 13 it back. 14 But it should be encouraged. And you see 15 experienced members of the bar doing it -- 16 COMMISSIONER STEPHEN GOUDGE: Okay. 17 MR. JUSTICE JOHN MCMAHON: -- and the 18 more of it that happens, I think the better chance we 19 have of getting it right. And I think that that's what 20 we all want to see happen. 21 COMMISSIONER STEPHEN GOUDGE: The more it 22 happens, the more it works; the more people will be able 23 to try it. 24 MR. JUSTICE JOHN MCMAHON: Exactly. And 25 -- and I think when you have leaders of the bar

1 advocating it from the defence bar, and you have the 2 right Crown attorneys doing the case, and -- and if you 3 had a group of these senior people of this -- as proposed 4 here, I think the likelihood of the bar buying in would 5 be much higher. 6 So I think you have everything in place to 7 encourage it to work. 8 COMMISSIONER STEPHEN GOUDGE: Right. 9 10 CONTINUED BY MR. PAUL CAVALLUZZO: 11 MR. PAUL CAVALLUZZO: Okay. That's -- 12 that's fine. Let me just come to the last area. 13 And that is, it's -- it's little change 14 from the government, and that is, what we would recommend 15 is that there be an advisory team with a group lead -- 16 you can call him, or her, whatever. 17 But there would be a group lead, and a -- 18 a senior Crown from each region, so that you would have 19 an advisory team focussing and experienced in pediatric 20 homicides, and that for a transitional period -- when the 21 number of pathologists in this Province hopefully will be 22 growing -- for a -- a transitional period of maybe two 23 (2) or three (3) years, that pediatric homicides would be 24 prosecuted by one (1) of these experienced Crown, along 25 with a Crown from the local area until sufficient

1 expertise has been built up in the -- in the system to 2 deal with these -- these homicides. 3 And the evidence, as we're talking about, 4 I believe ten (10) to fifteen (15) pediatric homicides a 5 year. What would you think of that? 6 MR. JUSTICE JOHN MCMAHON: Well, I guess 7 generally speaking, is you want to make sure that you 8 have someone who has the right expertise and experience 9 to do any case, and -- and you would like to assign that. 10 What I -- I think, in light of all that's 11 happened here that I've read about, is that having this 12 group with somebody who is going to be involved in all of 13 them, as the lead, to me is the most important part, 14 because there'll be a consistency of approach, and that 15 person can have an impact on how it's done. 16 But as long as you have someone who's 17 experienced and has the ability to do the case, I don't 18 think I can comment on whether that has to be one (1) of 19 these special twelve (12) people, or not. 20 MR. PAUL CAVALLUZZO: Okay. Thank you. 21 I have no further questions. 22 COMMISSIONER STEPHEN GOUDGE: Okay. Was 23 there any specialization of prosecution after Kaufman, 24 that is, was there any sort of information bank of Crown 25 expertise built up about forensic science?

1 MR. JUSTICE JOHN MCMAHON: Not 2 specifically. There was in relation in-custody 3 informants so we had a consistency of approach. 4 COMMISSIONER STEPHEN GOUDGE: But you did 5 that through the Committee you have described? 6 MR. JUSTICE JOHN MCMAHON: Right. Right. 7 But as far as designated prosecutors -- 8 COMMISSIONER STEPHEN GOUDGE: Right. 9 MR. JUSTICE JOHN MCMAHON: -- only to 10 do -- 11 COMMISSIONER STEPHEN GOUDGE: Case 12 involving hair samples where that is critical, for 13 example. 14 MR. JUSTICE JOHN MCMAHON: No. No, there 15 wouldn't be. But there would be sort of the case 16 conference was re -- requested, and sort of required in a 17 lot of the cases involving that kind of thing. 18 COMMISSIONER STEPHEN GOUDGE: All right. 19 Okay. Thanks. 20 MR. JUSTICE JOHN MCMAHON: Okay. 21 COMMISSIONER STEPHEN GOUDGE: Thanks, Mr. 22 Cavalluzzo. 23 MR. JUSTICE JOHN MCMAHON: Thank you, Mr. 24 Cavalluzzo. 25 COMMISSIONER STEPHEN GOUDGE: Mr.

1 Gover...? 2 3 CROSS-EXAMINATION BY MR. BRIAN GOVER: 4 MR. BRIAN GOVER: Justice McMahon, my 5 name is Brian Gover. I act for the Office of the Chief 6 Coroner; Dr. Young, Dr. Cairns, Dr. Porter, Dr. McLellan, 7 Dr. Pollanen, Dr. Chiasson, Dr. Wood and the Regional 8 Supervising Coroners. 9 And, Justice McMahon, you and I have met 10 once or twice over the years. Is that fair? 11 MR. JUSTICE JOHN MCMAHON: Yeah, I think 12 that would be fair, sir. 13 MR. BRIAN GOVER: And, Justice McMahon, 14 you knew of Dr. Smith prior to 2001? 15 MR. JUSTICE JOHN MCMAHON: Absolutely I 16 did, yes. 17 MR. BRIAN GOVER: And you'd known of him, 18 I suggest, since the 1980s. Is that fair? 19 MR. JUSTICE JOHN MCMAHON: Yeah, I think 20 that would be fair. 21 MR. BRIAN GOVER: And you've told us that 22 you knew that on occasion he was cross-examined regarding 23 his opinion in other cases. 24 MR. JUSTICE JOHN MCMAHON: Correct. 25 MR. BRIAN GOVER: And I suggest that

1 that's not unheard of for an expert who's frequently 2 before the Courts to be cross-examined on opinions given 3 in other cases. 4 MR. JUSTICE JOHN MCMAHON: It's a routine 5 matter that happens on a daily basis. 6 MR. BRIAN GOVER: In and of itself that 7 doesn't trigger an obligation on the part of senior Crown 8 attorneys, or senior members of the Criminal Law Division 9 to acquire information about all those previous cases, 10 does it? 11 MR. JUSTICE JOHN MCMAHON: No. 12 MR. BRIAN GOVER: Now, you knew that he 13 was a pathologist who specialized in pediatric cases. 14 MR. JUSTICE JOHN MCMAHON: Right. 15 MR. BRIAN GOVER: And in fact, I'm going 16 to suggest that among Crown counsel in the 1980s and 17 1990s, he was thought of as the most prominent 18 pathologist in that field. 19 MR. JUSTICE JOHN MCMAHON: I'd say that's 20 correct because he did more than anyone else on a -- at 21 least, in a Toronto basis, he would have done more 22 pathology reports than other people dealing with 23 children. 24 MR. BRIAN GOVER: Now, prior to January 25 of 2001, you were unaware that the content of Dr. Smith's

1 reports was in any way problematic, is that fair? 2 MR. JUSTICE JOHN MCMAHON: Yes, that 3 would be fair. 4 MR. BRIAN GOVER: Is it also fair to say 5 that prior to January of 2001, you were unaware that the 6 content of Dr. Smith's testimony was in any way 7 problematic? 8 MR. JUSTICE JOHN MCMAHON: Other than as 9 happens with other pathologists, he was cross-examined on 10 other cases he did in -- in relation to it, but with that 11 one (1) caveat, I would agree. 12 MR. BRIAN GOVER: And for example, you 13 were unaware of any concern being raised about his 14 testimony being dogmatic or excessively dogmatic. 15 MR. JUSTICE JOHN MCMAHON: I wasn't aware 16 of that, no. 17 MR. BRIAN GOVER: And specifically, I'm 18 going to suggest that prior to January of 2001, no 19 defence counsel had ever raised any concern with you 20 about the content of Dr. Smith's reports. 21 MR. JUSTICE JOHN MCMAHON: I have no 22 recollection of any defence counsel raising that with me, 23 no. 24 MR. BRIAN GOVER: And similarly, I 25 suggest that up until January of 2001, no defence counsel

1 had ever raised any concern with you about Dr. Smith's 2 testimony. 3 MR. JUSTICE JOHN MCMAHON: I don't know 4 if I could say that and -- and I think counsel may have 5 said to me at some point that -- that he was someone that 6 was, I don't know if difficult to be with, a little -- I 7 don't know how best to describe what they would have said 8 to me, but, you know, words that he would seem to go a 9 little farther than other forensic experts. 10 MR. BRIAN GOVER: And do you recall the 11 specifics of any of those conversations, Justice McMahon? 12 MR. JUSTICE JOHN MCMAHON: No. 13 MR. BRIAN GOVER: Did you take any action 14 in light of that information being provided to you? 15 MR. JUSTICE JOHN MCMAHON: No, I did not. 16 MR. BRIAN GOVER: Had the Criminal 17 Lawyers Association ever raised any concern with you 18 about either Dr. Smith's reports or his testimony? 19 MR. JUSTICE JOHN MCMAHON: No, not in any 20 of my capacities with the Ministry. 21 MR. BRIAN GOVER: Had any -- and this is 22 still in the period prior to January 2001, had any Crown 23 counsel ever raised any concern with you about the 24 content of Dr. Smith's reports or his testimony? 25 MR. JUSTICE JOHN MCMAHON: Not the

1 contents or testimony about the delay in getting written 2 reports, but as far as the contents or testimony, no. 3 MR. BRIAN GOVER: Now, we know from the 4 materials, Justice McMahon, that on November 26th, 2002, 5 you canvassed all Crown counsel in the Province for 6 information relevant to Dr. Smith's credibility. 7 MR. JUSTICE JOHN MCMAHON: Right. 8 MR. BRIAN GOVER: To the best of your 9 knowledge, prior to November 26th, 2002, had any senior 10 member of the Ministry of the Attorney General's Criminal 11 Law Division ever canvassed Crown attorneys for that 12 information? 13 MR. JUSTICE JOHN MCMAHON: No, I don't 14 believe that had ever been done before. 15 MR. BRIAN GOVER: And that's information 16 relating to his credibility. 17 MR. JUSTICE JOHN MCMAHON: That's 18 correct. 19 MR. BRIAN GOVER: To the best of your 20 knowledge, prior to November 26th, 2002, had any senior 21 member of the Criminal Law Division ever canvassed Crown 22 attorneys for information in relation to any aspect of 23 Dr. Smith's work? 24 MR. JUSTICE JOHN MCMAHON: Well, I 25 canvassed in relation to getting the -- the different

1 cases so they could do their review in February through 2 April of '01, but that was the only other time anything 3 was canvassed that I was aware of. 4 MR. BRIAN GOVER: Now, on January 31st, 5 2001, you met with Dr. Cairns and Dr. Chiasson, and 6 Detective Sergeant Smith. 7 MR. JUSTICE JOHN MCMAHON: Right. 8 MR. BRIAN GOVER: Is that right? 9 MR. JUSTICE JOHN MCMAHON: That was the 10 30th, but 30 or 31, whatever. 11 MR. BRIAN GOVER: Thank you. And if -- 12 MR. JUSTICE JOHN MCMAHON: I could be 13 wrong. 14 MR. BRIAN GOVER: I -- I'm certainly not 15 trying to mislead you, Justice McMahon. 16 MR. JUSTICE JOHN MCMAHON: No, I didn't 17 think that, Mr. Gover. 18 MR. BRIAN GOVER: And that was at the 19 request of the Office of the Chief Coroner? 20 MR. JUSTICE JOHN MCMAHON: That's 21 correct. 22 MR. BRIAN GOVER: There was discussion 23 about a review to be conducted by the Office of the Chief 24 Coroner. Is that right? 25 MR. JUSTICE JOHN MCMAHON: Yes, sir.

1 MR. BRIAN GOVER: It's fair to say, 2 though, that few details were given to you concerning 3 that review. 4 MR. JUSTICE JOHN MCMAHON: Right, other 5 than what I've testified here to this morning. 6 MR. BRIAN GOVER: Yes. And at the 7 meeting, Dr. Cairns asked for your help to identify cases 8 going through the Courts where Dr. Smith was the primary 9 expert. 10 MR. JUSTICE JOHN MCMAHON: It was more 11 than just going through the Courts. It was -- it wasn't 12 just to get cases that were outstanding, it was to get 13 other cases as well. 14 MR. BRIAN GOVER: Right, right. And -- 15 MR. JUSTICE JOHN MCMAHON: But -- 16 MR. BRIAN GOVER: -- pardon me, you've 17 told us about part of the focus being on completed cases. 18 MR. JUSTICE JOHN MCMAHON: Right. 19 MR. BRIAN GOVER: Part of it as well was 20 in relation to ongoing cases. 21 MR. JUSTICE JOHN MCMAHON: Exactly. 22 MR. BRIAN GOVER: And did you understand 23 that the Office of the Chief Coroner did not have any 24 record, or any means of tracking, where a case was within 25 the criminal justice process, and that was one (1) of the

1 reasons why your help was sought? 2 MR. JUSTICE JOHN MCMAHON: Yeah. I was 3 left with the distinct impression that they didn't know 4 which criminal cases were in the system that he had acted 5 as the pathologist on. 6 That was my impression, and that's why 7 they wanted the help. 8 MR. BRIAN GOVER: Now following the 9 meeting, the Office of the Chief Coroner did facilitate 10 obtaining second opinions in some cases. Is that right? 11 MR. JUSTICE JOHN MCMAHON: Yes. I -- 12 immediately, Mr. Clark had one (1) within two (2) weeks, 13 and they facilitated it, and they did a -- an excellent 14 job on facilitating second opinions for the Crown. 15 MR. BRIAN GOVER: Do you agree with me as 16 well, Justice McMahon, that ultimately the decision to 17 seek a second opinion in a prosecution rests with the 18 Crown attorney? I'm talking about expert opinions in 19 this respect. 20 MR. JUSTICE JOHN MCMAHON: We certainly 21 do the ultimate -- if -- if we want to rely on the 22 evidence in Court, I can say that, you know, the 23 Coroner's Office, if they had some concerns could either 24 advise us, or they might want a second opinion. 25 But as far as going forward in Court, it

1 would be our decision of whether we wanted a second 2 opinion. 3 MR. BRIAN GOVER: Right. And it would 4 not, in those circumstances, rest with the Office of the 5 Chief Coroner. Is that fair? 6 If it were for the purposes of the 7 prosecution, the decision would be made by the Crown 8 attorney or someone at a Director's level. 9 MR. JUSTICE JOHN MCMAHON: Right. Unless 10 they had a concern that they brought to us that, We think 11 you should get a second opinion. I mean, it -- it could 12 emanate from the Coroner's Office, but the ones that we 13 did emanated from the Crown. 14 MR. BRIAN GOVER: Sure. And in that 15 respect, it was a cooperative process. Is that fair? 16 MR. JUSTICE JOHN MCMAHON: Getting the 17 second opinion was very cooperative. 18 MR. BRIAN GOVER: Thank you very much, 19 sir. Those are my questions. 20 MR. JUSTICE JOHN MCMAHON: Okay. 21 COMMISSIONER STEPHEN GOUDGE: Thanks, Mr. 22 Gover. 23 Mr. Manuel...? 24 MR. WILLIAM MANUEL: No questions. 25 COMMISSIONER STEPHEN GOUDGE: Ms.

1 Rothstein...? 2 MS. LINDA ROTHSTEIN: No further 3 questions, Commissioner. Thank you. 4 MR. JUSTICE JOHN MCMAHON: Okay. 5 COMMISSIONER STEPHEN GOUDGE: Well, 6 Justice McMahon, thank you very much for coming -- 7 MR. JUSTICE JOHN MCMAHON: Thank you very 8 much, Mr. Commissioner. 9 COMMISSIONER STEPHEN GOUDGE: -- you have 10 been of great assistance. We know it is not part of your 11 day job, so we are even more grateful. 12 We will rise then until Friday morning at 13 9:30. 14 15 --- Upon adjourning at 11:26 a.m. 16 17 18 Certified Correct, 19 20 21 22 ___________________ 23 Rolanda Lokey, Ms. 24 25