1

1 2 3 THE INQUIRY INTO PEDIATRIC FORENSIC 4 PATHOLOGY IN ONTARIO 5 6 7 8 ******************** 9 10 11 BEFORE: THE HONOURABLE JUSTICE STEPHEN GOUDGE, 12 COMMISSIONER 13 14 15 16 Held at: 17 Offices of the Inquiry 18 180 Dundas Street West, 22nd Floor 19 Toronto, Ontario 20 21 22 ******************** 23 24 February 8th, 2008 25

2

1 Appearances 2 Linda Rothstein ) Commission Counsel 3 Mark Sandler ) 4 Robert Centa ) 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 ) 12 13 Brian Gover ) Office of the Chief Coroner 14 Luisa Ritacca ) for Ontario 15 Teja Rachamalla (np) ) 16 17 Jane Langford (np) ) Dr. Charles Smith 18 Niels Ortved (np) ) 19 Erica Baron ) 20 Grant Hoole (np) ) 21 22 William Carter (np) ) Hospital for Sick Children 23 Barbara Walker-Renshaw (np)) 24 Kate Crawford ) 25

3

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

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 ) 6 7 Suzan Fraser ) Defence for Children 8 ) International - Canada 9 10 William Manuel (np) ) Ministry of the Attorney 11 Heather Mackay (np) ) General for Ontario 12 Erin Rizok (np) ) 13 Kim Twohig ) 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 ) 21 22 Emily R. McKernan (np) ) Glenn Paul Taylor 23 24 25

5

1 TABLE OF CONTENTS Page No. 2 3 Motion by Association in Defence of the 4 Wrongly Convicted 7 5 Submissions by Mr. Julian Falconer 12 6 Submissions by Mr. James Lockyer 15 7 Submissions by Mr. Brian Gover 17 8 Submissions by Mr. Mark Sandler 19 9 Reply by Mr. Louis Sokolov 23 10 11 Ruling 25 12 13 JAMES YOUNG, RESUMED 14 15 Re-Examination by Mr. Mark Sandler 28 16 Cross-Examination by Ms. Natasha Egan 41 17 Cross-Examination by Mr. Brian Gover 59 18 Re-re-examination by Mr. Mark Sandler 64 19 20 JOHN DAVID GORRELL, SWORN 21 BRUCE HILLYER, SWORN 22 JOHN STRUTHERS, AFFIRMED 23 24 Examination-in-chief by Mr. Mark Sandler 68 25

6

1 TABLE OF CONTENTS - continued 2 Page No. 3 4 Cross-Examination by Ms. Erica Baron 216 5 Cross-Examination by Mr. Peter Wardle 223 6 Cross-Examination by Mr. James Lockyer 234 7 Cross-Examination by Mr. Louis Sokolov 280 8 Cross-Examination by Mr. Joseph Di Luca 287 9 Cross-Examination by Ms. Kim Twohig 302 10 Cross-Examination by Mr. Brian Gover 312 11 12 13 Certificate of transcript 328 14 15 16 17 18 19 20 21 22 23 24 25

7

1 --- Upon Commencing at 8:46 a.m. 2 3 THE REGISTRAR: All Rise. Please be 4 seated. 5 COMMISSIONER STEPHEN GOUDGE: Good 6 morning. Mr. Sandler...? 7 MR. MARK SANDLER: Yes, good morning, 8 Commissioner. We have another quiet day today. We'll be 9 starting with a motion that you're familiar with. The 10 written materials have been filed. 11 Perhaps you'll hear from the applicants at 12 this point. Completed -- at the completion of the motion 13 we'll move to the evidence of Dr. Young. And depending 14 upon your ruling, that'll determine the scope of the 15 examination/cross-examination of Dr. Young today. 16 COMMISSIONER STEPHEN GOUDGE: Right. 17 MR. MARK SANDLER: And then you'll be 18 hearing from three (3) defence counsel, each of whom had 19 involvement in one (1) of -- at least one (1) of the 20 subject cases that you've heard about at this Inquiry. 21 COMMISSIONER STEPHEN GOUDGE: Right. So 22 we have to get the motion done and argued, and then we 23 will see where we go by 9:30. What kind of time 24 allocations do you propose? 25 MR. BRIAN GOVER: The -- as I understood,

8

1 your -- 2 MR. MARK SANDLER: Yes, I can indicate 3 that the -- that the applicants have been given fifteen 4 (15) minutes. 5 COMMISSIONER STEPHEN GOUDGE: Right. 6 That's my understanding. 7 MR. MARK SANDLER: Both in terms of 8 submissions and any reply. The OCCO five (5) minutes, 9 Commission Counsel five (5) minutes. 10 COMMISSIONER STEPHEN GOUDGE: Yes, that 11 is what I determined. Okay. Mr. Sokolov...? 12 MR. LOUIS SOKOLOV: Yes, Mr. 13 Commissioner, I'll lead off. Mr Friends Mr. Falconer and 14 Mr. Lockyer may have a few words to add, and I'll try and 15 save a few minutes left for reply. 16 COMMISSIONER STEPHEN GOUDGE: Right. 17 MR. LOUIS SOKOLOV: Let me get then to 18 the essence of the motion. As you're no doubt familiar 19 with -- 20 COMMISSIONER STEPHEN GOUDGE: Yes, I have 21 read the stuff, so. 22 MR. LOUIS SOKOLOV: The essence of the 23 motion by AIST-NAN, AIDWYC, CLA, and Mullins-Johnson 24 group, is for leave to permit cross-examination of Dr. 25 Young today on an additional issue while he's here.

9

1 And that issue is the role that his office 2 played, or may have played in permitting Dr. Smith to 3 testify for the prosecution in an Ohio death penalty case 4 in September of 2007. 5 This motion -- 6 MR. BRIAN GOVER: 2000, not 2007. 7 MR. LOUIS SOKOLOV: 2000 -- 2000, that's 8 -- thank you, Mr. Gover. September 2000. The motion 9 arises from evidence recently coming to the attention of 10 the applicants, although to be fair, it's been in the 11 database for some time. 12 That Dr. Smith consulted and testified for 13 the prosecution in September 2000 in a case called Ohio 14 v. Fuller. That was a case where the prosecution sought 15 the death penalty, where the jury recommended the death 16 penalty, but the trial judge imposed life in prison. 17 Knowing what we do now about Dr. Smith's 18 failings as a pathologist and as a witness, the prospect 19 that a jury would be asked to recommend a death sentence 20 based, in part, upon his evidence is, to say the least, 21 disquieting. 22 The case also appears in Hospital for Sick 23 Children records in the document at Tab G, the unsigned- 24 out cases by pathologists that's referred to in the 25 materials.

10

1 What we are most concerned about, Mr. 2 Commissioner, obviously, is the fact that Dr. Smith 3 testified in support of a prosecution seeking the 4 execution of an accused person. 5 We don't believe it's necessary to explain 6 why the applicants are concerned about the use of Ontario 7 resources in further prosecutions that seek execution. 8 AIDWYC, and Criminal Lawyers Association 9 have been on the record for a long time in opposition to 10 the death penalty. 11 And the concerns are, of course, well 12 articulated by others. For example, by the Supreme Court 13 of Canada in the Burns case, which is in the materials, 14 and just to quote briefly from paragraph 1: 15 "Legal systems have to live with the 16 possibility of error. The unique 17 feature of capital punishment is that 18 it puts beyond recall the possibility 19 of correction." 20 We are concerned about the timing of Dr. 21 Smith's evidence, being September 2000, ten (10) months 22 after the Fifth Estate Program which raised serious 23 questions regarding his competence, years after the 24 issues were raised before the College of Physicians and 25 Surgeons, and years after the -- the meeting, which you

11

1 will be hearing more about today when Dr. Young retakes 2 the stand. 3 We're concerned that the public resources 4 of the Prov -- of this Province may have been used for 5 purposes that we say are inconsistent with Canadian 6 values. 7 There are a number of questions that this 8 evidence gives rise to, which we submit go to your 9 mandate, Mr. Commissioner, and we suggest that Dr. Young 10 may be able to enlighten us on, particularly who, if 11 anyone, at the OCCO or the hospital permitted or, indeed, 12 requested that Dr. Smith would assist in this case. 13 If no one permitted him to do so, how was 14 he able to do so? How was he able to leave his job and - 15 - and travel, to take on these responsibilities? Who 16 paid for the time that he spent engaging in this work? 17 What other cases outside of Canada did Dr. 18 Smith testify in or consult in? Where there any other 19 death penalty cases? Is there a policy in place at the 20 OCCO to either prevent or, indeed, to permit testimony of 21 Ontario pathologists in death penalty cases? 22 And if no policy is in place, what is Dr. 23 Young's view, given his experience as Chief Coroner, 24 about whether there should be policies in place. 25 Depending upon the answers to these

12

1 questions, different systemic issues, and consequent 2 recommendations may arise. We submit that these are 3 issues you may wish to turn your mind to when you make 4 recommendations geared toward restoring, and enhancing 5 public confidence in the pediatric forensic pathology 6 system. 7 We hope that Dr. Young can assist in 8 answering some of these questions, and if you so rule 9 that we can examine him on these issues, we expect that 10 it would not take much of our time to find out what his 11 understanding is of these issues, one (1) way or the 12 other. 13 COMMISSIONER STEPHEN GOUDGE: How much 14 time? 15 MR. LOUIS SOKOLOV: Well, the -- the 16 questions are short. If Dr. Young is -- does his best to 17 be responsive, and succinct in his answers, I would 18 expect twenty (20) minutes. 19 COMMISSIONER STEPHEN GOUDGE: Okay. 20 Anything else you want to say? 21 MR. LOUIS SOKOLOV: No. 22 COMMISSIONER STEPHEN GOUDGE: Mr. 23 Falconer...? 24 25 SUBMISSIONS BY MR. JULIAN FALCONER:

13

1 MR. JULIAN FALCONER: Good morning, Mr. 2 Commissioner. 3 COMMISSIONER STEPHEN GOUDGE: Good 4 morning. 5 MR. JULIAN FALCONER: Aboriginal Legal 6 Services of Toronto and the Nishnawbe Aski-Nation join as 7 co-applications with CLA, AIDWYC, and the Mullins-Johnson 8 group. 9 We have set out in the motion at page 7, 10 paragraph 21 and 22 why, as First Nations communities, 11 issues around miscarriages of justice is generally over 12 representation in jails, both in Canada and the United 13 States, and the worst possible fear, the miscarriage of 14 justice resulting in an execution of an innocent person 15 are all matters that First Nations communities take a 16 very real and serious interest in. 17 On February 1st, 2008, last Friday, when 18 the Holcomb letter, which is set out as Tab A to these 19 materials, Appendix A to the motion, when it came to the 20 attention of myself, I raised it with your counsel, and 21 encouraged you to -- 22 COMMISSIONER STEPHEN GOUDGE: Been in the 23 database since September, Mr. Falconer. 24 MR. JULIAN FALCONER: That's right. And 25 I think it's really important that I address that.

14

1 It's been in the database since September, 2 one (1) document amongst thirty thousand (30,000). 3 COMMISSIONER STEPHEN GOUDGE: It was in 4 Ms. Fraser's productions. 5 MR. JULIAN FALCONER: The production she 6 served in respect of Dr. Smith, not Dr. Young -- 7 COMMISSIONER STEPHEN GOUDGE: Right. 8 MR. JULIAN FALCONER: -- with respect, 9 Mr. Gover's nar -- 10 COMMISSIONER STEPHEN GOUDGE: It's not as 11 if this document wasn't around. 12 MR. JULIAN FALCONER: No, I -- I 13 appreciate that, but what was striking, and that's why 14 Mr. Lockyer and myself called counsel for Mr. Fuller in 15 the US, his attorney, no one had contacted him before 16 because no one knew about the prosecution; your -- your 17 Commission counsel didn't know about and we didn't know 18 about. 19 So, this isn't -- I'm -- I'm reluctant to 20 make submissions on the basis of, we might have missed it 21 and it slipped between the cracks. If Ontario officials 22 -- with respect, Mr. Commissioner, if Ontario officials 23 are permitted to or are, indeed, loaned out as a resource 24 in support of death penalty cases in the US, Ontario 25 citizens ought to know about it and we ought to be

15

1 assured specifically with respect to pathologists that 2 there are rules governing, using, Ontario pathologists 3 for the purposes of death penalty prosecution. 4 My fear is simply this, and I'll close 5 with this, if knowing what they knew about Dr. Smith in 6 September 2000 they were prepared to or, indeed, he 7 slipped between the cracks and he was allowed to testify 8 in a death penalty case, what are the standards that we 9 allow our officials to go across the border and do this, 10 and if Dr. Smith did it, how many others have done it? 11 In my submission, these are questions that 12 have not been answered in the evidence to date, and 13 certainly Aboriginal Services of Toronto and Nishnawbe- 14 Aski Nation intend to make submissions on recommendations 15 to ensure there's rules in the future. You need evidence 16 for that, and in my submission, we don't have it. 17 Thank you, Mr. Commissioner. 18 COMMISSIONER STEPHEN GOUDGE: Thanks, Mr. 19 Falconer. Mr. Lockyer...? 20 21 SUBMISSIONS BY MR. JAMES LOCKYER: 22 MR. JAMES LOCKYER: Speaking for myself, 23 Mr. Commissioner, I feel I dropped the ball by missing 24 this issue up until now and apologise for that, but the 25 first thought that crossed my mind was that, if we

16

1 visualised Mr. Mullins-Johnson being convicted south of 2 the border in the wrong state, he would almost certainly 3 have been sentenced to death for the crime that he was 4 convicted, albeit it was a crime that never happened. 5 This is an issue, of course, with huge 6 international implications. Last year was the -- the 7 year that the UN chose as being the year to -- for the 8 abolition of the death penalty. 9 If you just look at the Burns and Rafay 10 case you'll see that the Senate from Italy intervened in 11 the case just to demonstrate the -- the international 12 significance of the issue that's -- that's before you now 13 at an international level, of course, Canada to the US. 14 And I think, as well, you should know, Mr. 15 Commissioner, that Dr. Young has some familiarity with 16 this issue; he was Chair of the Centre of Forensic 17 Science Advisory Board for many years and this was an 18 issue that came up before that Board because of the fact 19 that employees of the Centre of Forensic Science were 20 engaged in cases south of the border, as well. 21 So it's an issue that I think he could 22 perhaps provide us with some very helpful -- helpful 23 evidence on. That's all I can do to assist. 24 COMMISSIONER STEPHEN GOUDGE: Thanks. 25 MR. JAMES LOCKYER: Thank you.

17

1 COMMISSIONER STEPHEN GOUDGE: Mr. 2 Gover...? 3 4 SUBMISSIONS BY MR. BRIAN GOVER: 5 MR. BRIAN GOVER: Thank you, Mr. 6 Commissioner. Mr. Commissioner, I begin by pointing out 7 that you have a very substantial discretion in the 8 conduct of what is, after all, your Inquiry. It's a 9 discretion that is tempered only perhaps by a duty of 10 fairness to individuals and institutions whose conduct 11 you are inquiring into. 12 And the question that arises, what factors 13 might inform the exercise of your discretion, sir, and I 14 submit that, essentially, it's a cost benefit analysis 15 for you to engage in. 16 And I submit that there is a need for 17 finality and we find ourselves here on February 8th, 18 2008, the last day scheduled for testimony, and we are 19 confronted with this document that appears at appendix A 20 of the motion record, PFP115000, which has been in the 21 possession of the parties with standing since September 22 21st, 2007, some four and one half (4 1/2) months ago. 23 In my respectful submission, virtually all 24 of the questions that Mr. Sokolov has suggested are 25 relevant could have been and, indeed, should have been

18

1 put to Dr. Smith if this issue is of the significance 2 that the applicants claim. 3 And in my respectful submission, 4 ultimately, you might ask whether some further inquiry 5 into this subject is necessary for a fully informed fact- 6 finding process, including of course, informing the 7 public. 8 And in my submission, the documents speak 9 for themselves. With the exercise of reasonable 10 diligence the applicants could have explored these issues 11 on a timely basis. 12 And in my submission, in terms of the 13 exercise of your discretion, and that cost benefit 14 analysis, it would be appropriate for you to conclude 15 that it -- you ought not to allow this further line of 16 inquiry, given those circumstances. 17 And I close by reminding you, Mr. 18 Commissioner, that indeed Dr. Young is being re-called 19 for a very limited purpose, and it's to address the 20 evidence of Ms. Mann, on a -- on a narrow issue within 21 the evidence of Ms. Mann. 22 And it would be inappropriate, in my 23 submission, to allow further examination of Dr. Young who 24 has attended for four (4) days already, on this issue 25 which, in my submission, is not a new one, and indeed was

19

1 not even explored with the -- the person who actually 2 testified in this case, Dr. Smith. 3 Thank you, Commissioner. 4 COMMISSIONER STEPHEN GOUDGE: Thanks, Mr. 5 Gover. Mr. Sandler, anything? 6 7 SUBMISSIONS BY MR. MARK SANDLER: 8 MR. MARK SANDLER: Yes, Commissioner, 9 very briefly. 10 Commission Counsel opposes the application 11 respectfully, and does so for five (5) basic reasons. 12 The first is that there is already a wealth of evidence 13 that has been presented at this Inquiry concerning extent 14 to which the OCCO did or did not provide oversight of the 15 work being done by pathologists in this province. 16 There's also a wealth of evidence 17 concerning the extent to which accountability mechanisms 18 existed for the work done by those pathologists in this 19 province. A number of forensic pathologists have 20 testified here, and they indicated, or reflected in their 21 curriculum vitaes, that they are consulted to give 22 testimony in International cases or cases outside of the 23 jurisdiction and those included, Dr. Pollanen, Dr. 24 Milroy, Dr. Whitwell, Dr. Crane, Dr. Butt and others. 25 That's not an unforseen event for prominent forensic

20

1 pathologists or pathologists around the world. 2 There's evidence before you, which you may 3 accept, that there was no reliable method of tracking 4 consultations being provided by Dr. Smith on cases where 5 he did not perform the autopsy under coroner's warrant. 6 Simply put, although the specific question 7 was not asked of Dr. Cairns or Dr. Young, whether the 8 same applies to consultations in the United States, or 9 consultations in capital cases in the United States, I 10 submit, that the record is already a fulsome one and 11 permits all of the applicants to make systemic 12 recommendations for how these issues should be addressed. 13 And further, I point out that the policy 14 roundtables that will follow, specifically deal with the 15 organizational issues that impact upon oversight and 16 accountability. 17 For example, who, if anyone, is or should 18 be the employer of the pathologist in Dr. Smith's 19 situation, performing forensic, in order to promote 20 oversight and accountability? 21 Simply put, you can address all of these 22 issues on the evidentiary record that currently exists. 23 Second, the applicants contend that Dr. 24 Young and/or Dr. Cairns should be cross-examined on the 25 facts that the Fuller consultation was provided well

21

1 after the Fifth Estate and other complaints were made 2 against Dr. Smith. 3 Well of course, as you'll recall, that 4 topic was fully explored and at great length by 5 Commission Counsel and others with each of those two (2) 6 witnesses. 7 Three, the document that gave rise to this 8 motion, a letter from the United States prosecutor was, 9 as you've heard, and as you yourself reflected, released 10 to all parties as part of our very first document release 11 on September the 21st, 2007. 12 As you've noted, it was included by the 13 Defence of Children International in its document notice 14 respecting Dr. Smith. And I want to say it once, that 15 although the availability of that document for the 16 duration of the Inquiry is not determinative, of course, 17 it must figure prominently in your assessment, I suggest, 18 when coupled with the very limited, if any, systemic 19 contribution that further cross-examination can bring. 20 Fourth, Mr. Gover has made the point, with 21 which I agree, that Dr. Young was brought back for a very 22 limited purpose. I examined Dr. Young briefly on his 23 meeting with the CPSO arising out of a complaint in the 24 Amber Case. 25 Subsequent to that, the Commission

22

1 received the approved statement from Ms. Mann, and she 2 testified, and we determined in the exercise of 3 discretion that -- that we ought to exceed to the request 4 to have Dr. Young respond to what Ms. Mann said in her 5 testimony and, again, the limited basis upon which he was 6 invited to return should, again, figure prominently in 7 the exercise of your discretion. 8 And finally, I do want to point out that 9 what is at the heart of the applicants' concern, I 10 respectfully suggest, is the fact that this consultation 11 took place in a capital murder case, albeit it one in 12 which the death sentence was not imposed. 13 Dr. Smith has advised, through counsel, 14 that this is the only such case in which Dr. Smith 15 testified. But apart from that, the concern of the 16 applicants to prevent a potential miscarriage of justice 17 can be addressed by them through contacting the defence 18 in the Fuller case, which I understand has already been 19 done; by contacting the National Board of the Innocence 20 Network in the United States, which I also understand is 21 being done by the applicants; and by making submissions 22 to you as to what systemic recommendations might be made 23 to address potential wrongful convictions arising out of 24 forensic pathology evidence. 25 So the merits of the individual case in

23

1 Fuller can and should and will be dealt with elsewhere 2 and the systemic issues raised can and should and will be 3 dealt with through policy discussions and submissions 4 here. Thank you. 5 COMMISSIONER STEPHEN GOUDGE: Thanks, Mr. 6 Sandler. Mr. Sokolov, anything in reply? 7 8 REPLY BY MR. LOUIS SOKOLOV: 9 MR. LOUIS SOKOLOV: Yes, Mr. 10 Commissioner. First of all in response to Mr. Gover's 11 submission that it's a cost benefit analysis, I agree 12 with that. But the -- the cost here is approximately 13 twenty (20) minutes of the Commission's time versus the 14 benefit of airing, albeit briefly, an issue that has 15 international implications. And in my submission, the 16 cost benefit weighs in favour of airing evidence. 17 Secondly, with respect to Mr. Gover's 18 submission that this is unfair to Dr. Young, in my 19 respectful submission, there is nothing unfair about this 20 process. He has received notice of this motion; he has 21 received copies of the documents. There is nothing 22 unfair about him being asked to provide his best 23 recollection in order to assist you in what must be an 24 ever increasingly difficult task of making 25 recommendations.

24

1 And given the myriad of problems that 2 occurred in his office during his tenure, I would submit 3 that the least he can do is answer questions that may be 4 relevant to your mandate. 5 Third...just a moment please. The -- in 6 my respectful submission, there is not sufficient 7 evidence on the record, although there can be in a few 8 short minutes, to found recommendations with respect to 9 the issue of what happens going -- going forward. Are 10 pathologists in this province going to be invited or 11 permitted to give evidence in capital murder cases? And 12 that, in my respectful submission, is an important policy 13 question for -- for this Commission to exist. 14 And what we don't have on the record is 15 the most important evidence and that is whether Dr. 16 Smith's evidence in the Fuller case, and I should pause 17 briefly to say I -- I hear what My Friend Mr. Sandler 18 said about Dr. Smith's advice that this is the only such 19 case that he -- he testified in. That is helpful to 20 know, however, from the perspective of -- of my client 21 and, I expect, the other applicants, we are not prepared 22 to wholly accept what Dr. Smith may have said out of 23 Court without further scrutiny given the -- the record 24 that's before you. 25 But what we don't know, the key issue is,

25

1 to what extent the Ontario Chief Coroner's office was 2 aware of, his testimony in the Fuller case or, indeed, 3 whether he did so with -- with the blessing of Dr. Young 4 or someone else in that office. 5 And that, in my respectful submission, is 6 important evidence for this Commission. Thank you. 7 COMMISSIONER STEPHEN GOUDGE: Thank you. 8 I am going to rise and do my best to provide you with my 9 decision and we will come back as close to 9:30 as I can 10 manage. 11 12 --- Upon recessing at 9:09 a.m. 13 --- Upon resuming at 9:42 a.m. 14 15 THE REGISTRAR: All rise. Please be 16 seated. 17 18 RULING: 19 COMMISSIONER STEPHEN GOUDGE: Well, thank 20 you very much for your submissions. I have considered 21 them, and put this together as my decision. 22 Let me begin as a preliminary matter by 23 commending counsel for the expeditious and efficient way 24 this motion was put together and argued. 25 Let me start by recognizing the deep, and

26

1 legitimate interest, and concern of the applicants in 2 death penalty issues. 3 However, in my view, it is important to 4 remember that the focus of this Inquiry must be on 5 pediatric forensic pathology, and the systemic issues 6 central to its use in the criminal justice system in 7 Ontario. 8 The systemic issue that the applicants 9 seek to pursue with Dr. Young this morning is the 10 oversight of pathologists who work under a coroner's 11 warrant when they consult on cases not done under 12 warrant; that is, indeed, an important issue for the 13 Commission. However, it is one about which we have all 14 ready heard much evidence. 15 The challenges presented, given that most 16 of these pathologists are not direct employees of the 17 Office of the Chief Coroner of Ontario are real. 18 I look forward to hearing more abut those 19 issues at the round tables, and to the thoughts of all 20 participants in their final submissions. 21 Moreover, the letter at the heart of this 22 application demonstrates that Dr. Smith did, in fact, 23 testify outside of Canada, and in a case where the death 24 penalty could have been imposed. 25 In addition, the evidence indicates that

27

1 Dr. Pollanen, the current Chief Forensic Pathologist, is 2 active in international death investigations. 3 The parties should feel free to urge me to 4 make whatever recommendations they feel are appropriate 5 to ensure that the necessary oversight, and 6 accountability mechanisms, in their view, are in place to 7 deal with the international dimensions of the work of 8 Ontario forensic pathologists. 9 Ultimately, however, it must be remembered 10 that Dr. Young is being recalled today for a very narrow 11 purpose. In my view, it would not be fair to him to 12 permit a canvas of an entirely different matter based on 13 a letter that could have been put to him when he was here 14 before, and which raises a systemic issue that was 15 clearly on the table at that time. 16 In addition, and even more important than 17 this, is the reality that there is very considerable 18 evidence about the OCCO oversight of forensic 19 pathologists and, in addition, the round tables and final 20 submissions which I hope both will deal with this 21 systemic problem lie ahead of us. 22 I conclude, therefore, that it is 23 unnecessary for the effective work of the Commission to 24 pursue this letter with Dr. Young. 25 For these reasons, the motion is

28

1 dismissed. 2 Mr. Sandler...? 3 MR. MARK SANDLER: Commissioner, we 4 recall Dr. Young to the stand. 5 6 JAMES YOUNG, Resumed 7 8 MR. MARK SANDLER: Dr. Young, we will not 9 re-swear you. You should consider yourself still under 10 oath. 11 DR. JAMES YOUNG: I do. 12 MR. MARK SANDLER: All right. Good 13 morning. 14 DR. JAMES YOUNG: Good morning. Good 15 morning, Commissioner. 16 COMMISSIONER STEPHEN GOUDGE: Good 17 morning. 18 19 RE-EXAMINATION BY MR. MARK SANDLER: 20 MR. MARK SANDLER: You should have a 21 volume in front of you, Dr. Young, Volume I, which 22 contains any of the documents that might be referred to 23 on the narrow issue on which you'll be questioned this 24 morning. 25 DR. JAMES YOUNG: That's fine.

29

1 MR. MARK SANDLER: When you were last 2 here, Dr. Young, you were asked a number of questions 3 about the extent to which you were aware of the content 4 of Justice Dunn's judgment in the Amber case, and the 5 fact that a number of experts had testified for the 6 defence in that case. 7 What you told the Commissioner on November 8 the 29th of 2007, and November the 30th of 2007, was as 9 follows: 10 Until this Inquiry commenced you had not 11 read Justice Dunn's judgment; nor were you aware that a 12 number of expert witnesses had testified for the defence; 13 nor were you aware that Justice Dunn had been very 14 sharply critical of the Hospital for Sick Children, and 15 the methodology that was used in that case. Indeed, you 16 had received assurances from Dr. Smith to the contrary. 17 And does that accurately reflect -- 18 DR. JAMES YOUNG: Yeah. 19 MR. MARK SANDLER: -- what you had to say 20 about your knowledge in that -- 21 DR. JAMES YOUNG: Yes. 22 MR. MARK SANDLER: -- respect? 23 DR. JAMES YOUNG: Yes. 24 MR. MARK SANDLER: And November the 30th 25 of 2007 I did read out to you Ms. Mann's letter and I'm

30

1 going to take you, if I may, to your November the 30th 2 testimony, and you'll find that at Tab 7 of your binder, 3 this is November the 30th of 2007, and I'm going to take 4 you to page 114. 5 And you may recall that the context of 6 this was that Ms. Mann had reflected in a letter that she 7 met with you to discuss the circumstances of this case 8 and to seek answers to some of your, namely, the 9 complainants, outstanding questions: 10 "He did have a very good recollection 11 of this case and asked that I relay the 12 following information to you and to 13 your family." 14 And then she sets out certain information 15 in there, which -- which I then asked you about. And if 16 you'd look at page 114 of my examination of you on this 17 topic, just to give everybody context for the questions 18 that I'm about to ask, it reflects at line 22: 19 "MR. SANDLER: When the investigator 20 reflects that she met with you to 21 discuss the circumstances of this case 22 and to seek answers to some of your 23 outstanding questions, did she discuss 24 with you at that time, again, any 25 aspects of what had been decided in the

31

1 case or the specific pathology issues 2 that had been raised? 3 DR. YOUNG: No. 4 By the father of SM? 5 No. I don't have a tremendous 6 recollection of the meeting, but I 7 would clearly -- there were a set of 8 questions that she answers in the rest 9 of the paragraph there were issues that 10 we discussed. My knowledge of the case 11 at this point in time would have been - 12 - I would remember it well from the 13 point of view of meeting with the 14 family, going to Timmins; I still 15 remember that meeting very well. My 16 involvement, as I have relayed to you 17 at the beginning. After that my 18 impression was then, until recently, it 19 was a hard fought case, that Dr. Smith 20 told me the Judge -- the issue around 21 Justice Dunn and -- and the meeting, so 22 my view was it was hard fought. There 23 were views, differing views, about the 24 existence of shaken baby and that was 25 what the issue revolved around and so

32

1 that would be what I would be talking 2 to her about, but it certainly wasn't 3 in-depth. What did the court say..." 4 Et cetera, et cetera. And then you'll see 5 at Tab 8 that Ms. Mann testified before the Commissioner 6 on January the 16th of 2008. And if I can take you very 7 briefly to page 49 of her testimony on January the 16th, 8 if you have that? 9 DR. JAMES YOUNG: I do. 10 MR. MARK SANDLER: And Mr. Centra is 11 asking the questions and says: 12 "What did you tell Dr. Young was the 13 purpose of your meeting with him? 14 MS. MANN: I told him that there were 15 some questions that the complainant had 16 about his -- Dr. Smith's conduct had 17 been during the investigation of 18 Amber's death. And when I initially 19 met with him, then I reviewed with him 20 the fact that this family had 21 practically bankrupted themselves in 22 efforts to defend their daughter; that 23 several witnesses had been called from 24 various locations around the world to 25 testify for the defence; and that these

33

1 opinions of these witnesses had been 2 completely different from what Dr. 3 Smith's findings had been and his 4 analysis of the case. And I also 5 discussed with Dr. Young Justice Dunn's 6 decision, which had also been very 7 critical of the actions of Dr. Smith in 8 the investigation of Amber's death. So 9 all of these issues were discussed with 10 him upfront as a means of putting some 11 context into the meeting before these 12 questions contained on this document 13 were actually put to him. 14 MR. CENTA: Other than the questions 15 and answers that you've recorded in 16 your note, do you recall anything else 17 that Dr. Young said to you during that 18 meeting? 19 MS. MANN: I remember that he felt very 20 strongly that SM had killed this child 21 and I remember being surprised at that 22 comment. It was a very strong 23 assertion that he believed she had done 24 it and I was taken a little bit aback 25 by that, given the Judge's decision."

34

1 And then you'll see in the next few pages 2 Mr. Centa read to Ms. Mann what you said in response to 3 me. 4 DR. JAMES YOUNG: Mm-hm. 5 MR. MARK SANDLER: And then if you go to 6 page 52, line 15: 7 "Mrs. Mann, how do you react to Dr. 8 Young's testimony? 9 I don't believe it's accurate at all. 10 MR. CENTA: Why? 11 MS. MANN: Because those facts were 12 discussed with him in the context of my 13 meeting with him in February of '97. 14 We had discussed the witness 15 information, not in fine detail, but 16 that there had been several witnesses, 17 recognized experts in the field of 18 pathology who had disagreed strongly 19 with Dr. Smith's position on the 20 matter, and that Justice Dunn's 21 decision had been quite critical. 22 These were the main reasons why the SM 23 family came to the College in the first 24 place, so they were discussed with him. 25 So you've been invited back to provide

35

1 your comments on Ms. Mann's testimony? 2 DR. JAMES YOUNG: Yes. 3 MR. MARK SANDLER: What do you have to 4 say about her recollection and your recollection of the 5 February 1997 meeting? 6 DR. JAMES YOUNG: Thank you, Mr. Sandler. 7 The -- first of all, I'd like to put in context the -- 8 the evidence that I gave the last time. The review of 9 this particular meeting was raised during my evidence. I 10 had not seen the -- any of the documents, nor discussed 11 any of the matters with anyone prior to that, nor had I 12 had any discussion about this meeting for ten (10) years. 13 So I was asked questions about it sitting 14 here in the stand, the third or fourth day of my 15 evidence. So I had some recollection, but not as good a 16 recollection. This isn't the -- the best place to sit to 17 get clarity of ideas and -- and refresh your memory, I 18 can tell you. 19 I have had the benefit since then of -- of 20 Ms. Mann's notes, and that certainly refreshes my memory 21 of the -- the meeting considerably. As soon as I saw the 22 notes, the meeting became much more familiar to me. 23 The purpose of the meeting as far as I rem 24 -- am concerned is that it was to answer the -- the 25 issues surrounding the -- the three (3) main issues I

36

1 would characterize as the ordering of the exhumation, the 2 meetings that had taken place in Timmins, and the -- just 3 a minute -- third issue that's in the notes is escaping 4 me. 5 The ordering of the exh -- who orders the 6 exhumation, the -- oh, the death certificate, the 7 altering of the death certificate. Those were the -- 8 those were the issues that Ms. Mann was there to address. 9 Those are the issues that she wrote her 10 notes on. Those are the issues that she referred back in 11 her correspondence to Mr. M about. That was the purpose 12 of the meeting, and that constituted the -- the 13 overwhelming bulk of the -- of the meeting that took 14 place. 15 The meeting was relatively brief. I -- I 16 would estimate it to be probably somewhere around half an 17 hour, but it was certainly less than an hour or three 18 quarters (3/4) of an hour, and it was -- it was not a 19 lengthy meeting. 20 The main topic that we discussed at the 21 meeting was, first of all, Ms. Mann was clearly not used 22 to investigating anything to do with coroners or the 23 Criminal Justice System. 24 She was an experienced investigator from 25 the College of Physicians and Surgeons. I -- I knew her

37

1 to be an investigator there, but she normally was looking 2 into doctor's conduct and medical affairs. 3 This was an area that she was not familiar 4 with, and we spent considerable amount of time discussing 5 what a coroner was, what a pathologist was, how the 6 Coroner's System fit or didn't fit into the Criminal 7 Justice System, what everyone's roles were and what their 8 responsibilities, and who did with -- what within the 9 system. 10 We then went on and discussed the 11 specifics of this particular case; the involvement of the 12 SCAN Team, the release of the body, the subsequent call 13 from Dr. Driver to me, my -- my role in -- in going to 14 Timmins with -- with Dr. Smith. 15 And that part of the case, as I indicated 16 in my earlier evidence, was the part of the case I was 17 familiar with, and it was, in fact, my -- my last 18 involvement with that particular case, so. 19 That was the -- during the course of 20 that then we covered the issue of how death certificates 21 are altered, and that they aren't altered by 22 pathologists, they're altered by coroners; how 23 exhumations are obtained. 24 And -- and I think the letter that she 25 sent to -- both her notes and the letter that -- that she

38

1 sent, fairly reflect that. I believe this was the 2 beginning of the conversation, and it was the -- the 3 overwhelming bulk of the infor -- of -- of the 4 conversation. 5 At some point during the conversation, I 6 don't dispute the fact that there may have been 7 discussion that -- that there was evidence that was 8 contrary to Dr. -- Dr. Smith's. 9 I would have expected that there would -- 10 that the evidence that was heard at the trial would be 11 contrary to Dr. Smith because I'm not aware of any trial 12 where other experts are called that agree with the Crown 13 evidence. That defeats the point of -- of -- of calling 14 evidence by the defence. 15 So the fact that people came and disagreed 16 wouldn't surprise me and I'd certainly been told by Dr. 17 Smith that -- that -- and I can't answer honestly whether 18 it was one or two witnesses had come. My impression was 19 a couple of witnesses had been called and the main theme 20 that they had explored was that there was no such thing 21 as shaken baby and so they absolutely were in -- in 22 contrast to what Dr. Smith had -- had given in evidence. 23 So, my belief at that time going into the 24 meeting was that there had been evidence called that was 25 contrary to Dr. Smith. When I discussed it with Ms.

39

1 Mann, I came out of the meeting believing exactly the 2 same thing, there had been evidence called that was 3 contrary to Dr. Smith. 4 I have no recollection nor do I believe 5 that any numbers that were used as to how many witnesses 6 or that the discussion lasted very long -- the 7 significant thing was, I didn't hear anything in that 8 discussion that told me anything that I didn't already 9 know and I already had formed the impression there was 10 evidence contrary to Dr. Smith but she didn't say 11 anything that -- that -- that gave me an idea that it was 12 any greater. 13 On the issue of criticism of Dr. Smith, I 14 was unaware, as I've given evidence, and I remain unaware 15 until the preparation of -- for this hearing that there 16 was this lengthy written decision by -- by Justice Dunn. 17 I would have been thinking that we were 18 discussing, in fact, the acquittal of -- of Ms. M. from 19 the point of view that there may have been a comment with 20 some criticism because what I had been told by Dr. Smith 21 was that there had been some criticism of him losing an 22 x-ray. And that had been an issue that we picked up and 23 put into the pathologist's memo eventually. 24 So that very brief conversation with Ms. 25 Mann, again, I went into the meeting knowing there had

40

1 been criticism. There was no specifics of criticisms 2 mentioned. The fact that there was criticism was 3 mentioned. 4 And I came out of the meeting with the 5 same impression I went into the meeting with. Yes, there 6 had been criticism of Dr. Smith. 7 But I didn't come out of the meeting 8 knowing there was a lengthy report from Justice Dunn; nor 9 that the criticism was at the level; nor that there was 10 criticism of the Hospital for Sick Children. 11 I -- in essence, we had a conversation 12 where, in my mind, I didn't come out with any different 13 impression than I did at the beginning of the 14 conversation. 15 As for the -- as for the comment that I 16 felt strongly that -- that Ms. M. was guilty, I have no 17 recollection of saying that and it would be highly 18 unusual and uncharacteristic of me to -- to phrase things 19 in that particular way. So I can't -- beyond -- beyond 20 that, I don't know what I could say about that. 21 But, certainly, this -- this part of -- of 22 any conversation was very much very protracted and not 23 the substance of the meeting and took very, very little 24 time and was ten (10) years ago and I note is not 25 reflected in any way in any of the notes that were taken

41

1 at the meeting. 2 MR. MARK SANDLER: Okay. Those are all 3 the questions I have of Dr. Smith. Thank you. 4 COMMISSIONER STEPHEN GOUDGE: Dr. Young. 5 MR. MARK SANDLER: Dr. Young. 6 COMMISSIONER STEPHEN GOUDGE: What do you 7 propose now, Mr. Sandler? Do you -- do you want -- do 8 you want to rise for a few minutes and see what counsel 9 want and then I'll come back with my determination? 10 MR. MARK SANDLER: Why don't we just wait 11 one moment because we may -- we may have the answer 12 fairly quickly. 13 MR. ROBERT CENTA: Quick break. 14 MR. MARK SANDLER: Okay, I was wrong. 15 16 --- Upon recessing at 10:02 a.m. 17 --- Upon resuming at 10:08 a.m. 18 19 THE REGISTRAR: All rise. Please be 20 seated. 21 COMMISSIONER STEPHEN GOUDGE: Again, 22 thanks to counsel for efficiently sorting themselves out. 23 We're going to begin with you then, Ms. Egan. 24 25 CROSS-EXAMINATION BY MS. NATASHA EGAN:

42

1 MS. NATASHA EGAN: Good morning, Dr. 2 Young. 3 DR. JAMES YOUNG: Good morning. 4 MS. NATASHA EGAN: My name is Natasha 5 Egan, and I act for the College of Physicians and 6 Surgeons of Ontario. I'll be as brief as possible -- 7 DR. JAMES YOUNG: Okay. 8 MS. NATASHA EGAN: -- this morning. I 9 just want to start with Michelle Mann's notes, and you've 10 told us just moments ago that you have looked at those 11 notes now, and you've had a chance to consider them. 12 DR. JAMES YOUNG: I have. 13 MS. NATASHA EGAN: And Commission counsel 14 also took you to the letter written by Michelle Mann to 15 DM which chronicled parts of that meeting, as well. 16 DR. JAMES YOUNG: Mm-hm. 17 MS. NATASHA EGAN: And you'll agree with 18 me, in that letter Michelle Mann sets out her view that 19 you did have a very good recollection of this case. She 20 says that in her letter? 21 DR. JAMES YOUNG: Yeah, I -- I think she 22 -- she sets that out; that's a -- that's a fact in her 23 letter, that's right. 24 MS. NATASHA EGAN: She says that in her 25 letter.

43

1 DR. JAMES YOUNG: Mm-hm. 2 MS. NATASHA EGAN: Yes. However, just to 3 be clear, your recollection today does not stem from any 4 notes taken by you of that meeting. 5 DR. JAMES YOUNG: Well, I was being 6 interviewed. I'm not aware of anybody being interviewed 7 that takes notes. 8 MS. NATASHA EGAN: You -- 9 DR. JAMES YOUNG: Why would I take notes? 10 I'm not the -- I'm -- I'm -- 11 MS. NATASHA EGAN: The fact is, sir -- 12 DR. JAMES YOUNG: -- she's getting 13 information from me, so I'm -- I wouldn't expect that I 14 would take notes when she's coming to interview me. 15 MS. NATASHA EGAN: Fair enough, but the 16 fact is you didn't take any notes. 17 DR. JAMES YOUNG: No, in the -- 18 MS. NATASHA EGAN: Or make any -- 19 DR. JAMES YOUNG: I didn't take notes 20 when Mr. Sandler interviewed me, either. 21 MS. NATASHA EGAN: Fair enough, but you 22 agree with my proposition that you didn't take any notes 23 during that meeting. 24 DR. JAMES YOUNG: No. 25 MS. NATASHA EGAN: So we have no

44

1 contemporaneous notes or written documentation made by 2 you about that meeting. 3 DR. JAMES YOUNG: No. 4 MS. NATASHA EGAN: We have nothing in 5 writing about your recollection. 6 Now, just quickly, Dr. Young, you've 7 certainly given us some evidence about the commitments 8 that were placed on your time from 1994 through 1997, I 9 think that's fair, you -- 10 DR. JAMES YOUNG: No, no, it was 11 through -- 12 MS. NATASHA EGAN: Well, I'm sure it was 13 much -- 14 DR. JAMES YOUNG: No, no, not just in 15 1994 -- 16 MS. NATASHA EGAN: -- much longer than 17 1997. 18 DR. JAMES YOUNG: -- to '97; the 19 commitments on my time got worse with time, so... 20 MS. NATASHA EGAN: But there was 21 certainly significant commitments on your time during 22 that period. I understand you had two (2) offices. You 23 split your times between being both the Chief Coroner of 24 Ontario and the Assistant Deputy Minister of Public 25 Safety for the Ministry of the Solicitor General of

45

1 Ontario. 2 DR. JAMES YOUNG: Up to -- after 9/11, 3 then I had a third title, that's right. 4 MS. NATASHA EGAN: Right, but you had at 5 least those two (2) during that time. 6 DR. JAMES YOUNG: Mm-hm. 7 MS. NATASHA EGAN: And not -- very 8 quickly, not to go through all those duties, but to 9 suffice it to say, you ran the Public Safety Division 10 which included a whole litany of -- of oversight 11 responsibilities including the Centre of Forensic 12 Science, the Fire Marshall of Ontario, Emergency Measures 13 Ontario, Animal Welfare Humane Society, to name a few of 14 your responsibilities. 15 DR. JAMES YOUNG: That's right. 16 MS. NATASHA EGAN: And that's in addition 17 to your Chief Coroner responsibilities. 18 DR. JAMES YOUNG: That's right. 19 MS. NATASHA EGAN: Right. So -- 20 DR. JAMES YOUNG: The others were more 21 supervisory in nature, the coroner's was a more direct. 22 MS. NATASHA EGAN: But there were huge 23 demands on your time. 24 DR. JAMES YOUNG: Yes. 25 MS. NATASHA EGAN: And another thing you

46

1 did during that time -- you've told us last time you were 2 here -- is thousands, if not tens of thousands of media 3 interviews in that role. 4 DR. JAMES YOUNG: I did a lot of media -- 5 we did a lot of media in the Coroner's Office. 6 MS. NATASHA EGAN: And you -- 7 DR. JAMES YOUNG: I'm not sure I'd use 8 ten thousands, but I -- I did a lot. 9 MS. NATASHA EGAN: We can go to the 10 transcript if you -- 11 DR. JAMES YOUNG: No, that's all right, I 12 did lots. I'd say over my career I've probably done -- 13 MS. NATASHA EGAN: Certainly. 14 DR. JAMES YOUNG: -- yeah -- 15 MS. NATASHA EGAN: Right. 16 DR. JAMES YOUNG: -- lots. 17 MS. NATASHA EGAN: Just for your 18 reference, Commissioner, if you wish, it's November 30th 19 page 230 at -- starting at line 11 is that reference, and 20 we may have to go there, Dr. Young, because I would also 21 put to you that you've told us that you couldn't begin to 22 guess about the accuracy of the reports that came out of 23 those interviews. 24 DR. JAMES YOUNG: That -- that would be 25 true.

47

1 MS. NATASHA EGAN: Right. 2 DR. JAMES YOUNG: I, most times, wouldn't 3 even see the report. 4 MS. NATASHA EGAN: Well, you told -- and 5 maybe we should. If we can just go, it'll be -- 6 DR. JAMES YOUNG: You mean out of the 7 media interviews? 8 MS. NATASHA EGAN: Yes. 9 DR. JAMES YOUNG: Yeah. 10 MS. NATASHA EGAN: You had -- what you 11 told Mr. Sandler is: 12 "I couldn't tell you what I told him or 13 what I didn't or how accurate this is. 14 I just -- I'm -- I guess I couldn't 15 begin to guess." 16 DR. JAMES YOUNG: No -- 17 MS. NATASHA EGAN: This was in the 18 context of a media interview you gave to the Kingston 19 Whig Standard about the independent external review that 20 you were proposing to conduct at that time. I think it 21 would be helpful, perhaps, we'll go to the transcript. 22 DR. JAMES YOUNG: No, wait a minute. I'm 23 sorry. You've -- you've lost me completely, and I can't 24 understand the relevance to the meeting with Ms. Mann. 25 MS. NATASHA EGAN: Well, if you'll just -

48

1 - just bear with me. 2 DR. JAMES YOUNG: Yeah, but I -- 3 MS. NATASHA EGAN: That's fair. 4 DR. JAMES YOUNG: -- I don't know what 5 you're talking about. I'm -- you've completely lost me. 6 COMMISSIONER STEPHEN GOUDGE: Let her 7 rephrase the question, -- 8 DR. JAMES YOUNG: Okay. 9 COMMISSIONER STEPHEN GOUDGE: -- Dr. 10 Young. 11 12 CONTINUED BY MS. NATASHA EGAN: 13 MS. NATASHA EGAN: You know, I think -- I 14 think in fairness to you, sir, why don't we go to the 15 November 30th transcript at page 230, perhaps the 16 registrar can help us by bringing that up. I don't 17 believe -- I'm not sure if it's in your tab. If not 18 you'll see it right there on the screen. It's a very, 19 very short passage. 20 So just starting at -- at line 11, and 21 again, maybe I'll give you some context to that. Mr. 22 Sandler says: 23 "All right, and in reference to the 24 fact that..." 25 and he sets out a verbatim, a -- a

49

1 paragraph from that article, from the Kingston Whig 2 Standard: 3 "Was there any reason, if this is 4 accurate, that you didn't communicate 5 to the Kingston Whig Standard that -- 6 that the purpose of the independent 7 external review was to determine 8 whether Dr. Smith would be coming back 9 to work?" 10 And then you say, 11 "Sir, I -- I -- you know, I don't 12 remember how long the interview was and 13 what points I made and what points. 14 I've never given an interview in my 15 life, that everything I said was quoted 16 back directly in fullness. They pick, 17 they choose. You know, Mr. Sandler, I 18 couldn't remember what I said to a 19 reporter. I've done probably tens of 20 thousands of interviews and I couldn't 21 tell you what I told them, what I 22 didn't, or how accurate or inaccurate 23 this is. I just -- I'm -- I couldn't 24 begin to guess." 25 And so my proposition to you, just to --

50

1 to go back to my question was: You couldn't begin to 2 guess even seeing these -- this article or hearing a 3 verbatim -- verbatim paragraph from it, you couldn't 4 begin to guess what you had said during that interview? 5 DR. JAMES YOUNG: During which interview? 6 MS. NATASHA EGAN: During the interview 7 that Mr. Sandler took you to that -- in that sentence 8 that we just reviewed. It's -- it's a fairly simple 9 question. 10 DR. JAMES YOUNG: Well, it isn't, because 11 you're calling me back a couple of months to a 12 conversation about an interview, and I'm not sure I have 13 the full context of what we were discussing at -- at that 14 time. 15 I -- I think the point I was trying to 16 make was that I wasn't sure whether I had or hadn't said 17 what the purpose of the review was; that I certainly had 18 answered the questions the reporter had asked me about 19 the review of Dr. Smith and the purposes of it, but I 20 can't be accountable for what gets written afterwards. I 21 mean, I think that that's the substance of what I was 22 saying there. 23 But I, you know, to ask me two months 24 later something out of context that I wasn't prepared for 25 today, I don't know -- I don't know where this is going,

51

1 I'm sorry. 2 MS. NATASHA EGAN: I'm merely suggesting 3 to you that you did say that to this Commission. 4 DR. JAMES YOUNG: Say what? 5 MS. NATASHA EGAN: On November 30th. 6 That you couldn't begin to guess even how we're -- 7 DR. JAMES YOUNG: Well, the words are 8 there and I -- but -- but you're asking me the context of 9 the words and I -- you've got me in a position I -- 10 MS. NATASHA EGAN: The words are there. 11 DR. JAMES YOUNG: -- I don't recall. You 12 know, after four days of evidence, I don't recall every - 13 - every answer and the context of every answer that -- 14 MS. NATASHA EGAN: Every nuance. I 15 understand, sir, we'll move on. 16 So I'd submit to you then that it's not 17 surprising that you told the Commissioner, under oath, 18 that you do not have a tremendous recollection of your 19 meeting with Michelle Mann? 20 DR. JAMES YOUNG: Well, I think that's 21 very different. But I -- and I covered that at the 22 beginning. When I said I didn't have a tremendous 23 recollection, I'm sitting in this seat. A meeting that 24 took place ten years ago is being raised for the first 25 time while I'm sitting in this seat, and I'm being asked

52

1 of a -- about it of an event that took half an hour, ten 2 years earlier, and I'm being asked in detail. I have 3 nothing to -- no anchor or nothing to attach it to. 4 When you then later give me time to think 5 about it, when I see the tran -- the notes that were 6 taken, by -- my -- my recollection the meeting is -- is 7 refreshed considerably which, of course, notes will do. 8 That's -- that's the benefit of notes. So, I think -- 9 MS. NATASHA EGAN: Ms. Mann's notes. 10 DR. JAMES YOUNG: I think the -- to draw 11 the assumption between how a newspaper writer writes a 12 story and quotes me versus my recollection of a -- of -- 13 MS. NATASHA EGAN: To be fair, sir, it's 14 not -- it's not what the newspaper reporter wrote that 15 I'm bringing to you. It's your recollection based on 16 written documentation that you see after an interview has 17 taken place. 18 DR. JAMES YOUNG: No, no. That's an 19 unfair comparison. That's a completely unfair 20 comparison. 21 MS. NATASHA EGAN: Okay. 22 DR. JAMES YOUNG: I don't -- I don't 23 spend my life worrying about what the press write or 24 whether it's accurate or not accurate. I'd have had an 25 ulcer or a heart attack years ago if that was the case.

53

1 I -- when you show me a meeting, and 2 you're discussing a meeting of the importance with the 3 College of Physicians and Surgeons, my level of recog -- 4 of -- of retention of the meeting is different, my -- the 5 detail I'll remember is different, and -- and I'm much 6 more interested in the accuracy of the meeting. 7 It's too -- it's apples and oranges that 8 you're drawing the comparison between. 9 MS. NATASHA EGAN: You're telling us that 10 the meeting with Michelle Mann was much more important 11 than the meeting where you were discussing the parameters 12 of the external review? 13 You retained that information -- 14 DR. JAMES YOUNG: This wasn't a meeting. 15 MS. NATASHA EGAN: -- better? 16 DR. JAMES YOUNG: This was a -- wasn't a 17 meeting that I was discussing the parameters of -- 18 MS. NATASHA EGAN: An interview, sorry. 19 DR. JAMES YOUNG: -- the external. I 20 wasn't discussing the -- someone phoned me and asked me 21 whether the review was going ahead or not, and I gave 22 them an answer. And somebody is asking me all of the 23 detail of what the answer is, and I'm saying in this 24 section, that I can't remember all of the detail of the 25 interview.

54

1 But that to -- I don't think it's a fair 2 comparison -- to draw a comparison between one of many 3 interviews and -- and my meeting with Michelle Mann. 4 It's very -- it's quite a different thing. 5 MS. NATASHA EGAN: Well let's -- let's 6 move then to what -- what we agree on. And you've told 7 us today that there is -- there is some agreement. 8 You agree that the meeting took, at least, 9 thirty (30) minutes? 10 DR. JAMES YOUNG: I -- I believe it was 11 about thirty (30) minutes, that's right. 12 MS. NATASHA EGAN: And you agree that you 13 talked about the things that are set out in Michelle's 14 letter? 15 DR. JAMES YOUNG: Yes. 16 MS. NATASHA EGAN: And your -- 17 DR. JAMES YOUNG: For the majority of the 18 time. 19 MS. NATASHA EGAN: And you are relying on 20 Ms. Mann's notes to help you recollect that? 21 DR. JAMES YOUNG: They -- they certainly 22 gave me -- that and the other information I hadn't seen 23 before, give me a recollection of it, yes. 24 MS. NATASHA EGAN: And you agree that you 25 talked about the conflicting evidence?

55

1 DR. JAMES YOUNG: Sorry, about? 2 MS. NATASHA EGAN: You -- you agree - you 3 told us today that you did talk about the conflicting 4 evidence that was given? 5 DR. JAMES YOUNG: To -- to some degree, 6 that's right. 7 MS. NATASHA EGAN: Right. Now you -- you 8 didn't -- you tell us you didn't discuss the judgment? 9 DR. JAMES YOUNG: I didn't -- well, it 10 depends what you mean by the judgment. I -- 11 MS. NATASHA EGAN: Jus -- jus -- 12 DR. JAMES YOUNG: If I can -- if you're 13 talking about Justice Dunn's lengthy decision, we didn't, 14 because I didn't know that -- I didn't recognize that 15 that existed until I was preparing for this -- this 16 hearing. 17 MS. NATASHA EGAN: I understand that, 18 sir, I -- 19 DR. JAMES YOUNG: So, at my level, I 20 didn't discuss it with her, because -- and I had 21 opportunities -- as I've given evidence earlier -- I had 22 opportunities to know it existed. They went over my -- 23 over my head, and I simply -- you know, I didn't discuss 24 what I didn't know. 25 I -- the fact that she was acquitted, yes,

56

1 that certainly came up. 2 MS. NATASHA EGAN: You knew that she was 3 there about this case, the DM Case? 4 DR. JAMES YOUNG: Yes. 5 MS. NATASHA EGAN: You knew that's why 6 Michelle was there. And you knew there was a complaint 7 about Dr. Smith. You knew that's why Michelle was there? 8 DR. JAMES YOUNG: Yes. 9 MS. NATASHA EGAN: And you knew she had 10 Justice Dunn's judgment? 11 DR. JAMES YOUNG: That she, sorry? 12 MS. NATASHA EGAN: She had Justice Dunn's 13 judgment. 14 DR. JAMES YOUNG: No. I mean, she -- 15 there is no judgment that I'm aware of. I can't know 16 that she has something that I don't know exists. So I -- 17 I didn't know -- I didn't know this judgment existed, so 18 I couldn't know whether she had it. 19 MS. NATASHA EGAN: You don't doubt, sir, 20 that she read that judgment before she came to see you? 21 DR. JAMES YOUNG: I -- I couldn't comment 22 on it. I mean, I -- I didn't know it existed, and I 23 didn't know whether she had it so I don't know whether 24 she read it. 25 MS. NATASHA EGAN: And you've told us

57

1 that -- that Ms. Mann wouldn't have told you about 2 Justice Dunn's decision? That's what you've -- you've 3 basically come here to say that -- 4 DR. JAMES YOUNG: No. No, that's not 5 what I'm saying at all. That's not what I'm saying. 6 MS. NATASHA EGAN: You're not saying that 7 she didn't tell you -- no, that's a double negative. 8 DR. JAMES YOUNG: I'm not saying that -- 9 that she didn't -- that we didn't discuss the fact there 10 was an acquittal, and I'm not saying that she didn't say 11 there was criticism of Charles Smith, or that there was 12 other evidence in the court. I was very clear -- 13 MS. NATASHA EGAN: She did -- sorry. 14 DR. JAMES YOUNG: -- I was very clear to 15 say that was discussed. She did discuss it, and she said 16 what she said, and I -- my view of what she said and what 17 I recall from it, and my impression afterwards was that 18 she didn't tell me anything I didn't already know, and it 19 didn't change going into the meeting, going out of the 20 meeting. 21 That brief part of the meeting didn't 22 provide any information that -- that changed or 23 illuminated me or changed me on the course; that's all 24 I'm saying. She may well have -- she -- you know, I'm 25 not disputing what she knew or what she might have said.

58

1 My -- I don't recall any detail at all 2 about this other than there was some criticism, and I 3 thought to myself, Yes, I'm aware of that. There is -- 4 and also she made the point that -- that there was 5 evidence that was contrary, and my answer to that would 6 have -- in my own mind would have been, Yes, I'm aware of 7 that, as well. 8 And I think her answer to a question when 9 I was reviewing yesterday and given documents to look at 10 -- she makes the point in one (1) of the documents that 11 she ma -- she made her statements and that I didn't ask 12 for any further information and that I didn't amplify on 13 it, and that would be probably right because I didn't 14 hear anything that set off an alarm bell in my mind. 15 She may have thought she was telling me 16 something, but I -- what I heard wasn't new, wasn't 17 different, wasn't in detail, so I didn't take that up. 18 And that part of the conversation -- very, very brief -- 19 and it didn't -- at the end of the meeting, I didn't go 20 away thinking I learned something new from Ms. Mann. I 21 went away hoping that I had educated her and given her 22 the answers she needed for the questions she came to get 23 answered. 24 So I'm not disputing her -- her version in 25 the sense that she may well have thought she said or said

59

1 what she thought she said, but somehow we didn't -- 2 MS. NATASHA EGAN: She has a 3 recollection. You're not disputing her recollection. 4 DR. JAMES YOUNG: I -- I can't because I 5 -- I can only speak for what I knew going in and what I 6 knew coming out, and that's all I'm doing. That's simply 7 what I'm doing. 8 MS. NATASHA EGAN: Thank you very much, 9 sir, for your time. 10 COMMISSIONER STEPHEN GOUDGE: Thanks, Ms. 11 Egan. Mr. Gover...? 12 13 CROSS-EXAMINATION BY MR. BRIAN GOVER: 14 MR. BRIAN GOVER: Just a very few 15 questions, Dr. Young. 16 Dr. Young, you were taken to a portion of 17 the transcript at what I have as Tab 8 of the materials, 18 which is your -- pardon me, which is Ms. Mann's evidence 19 from January 16th, and you were taken to pages 49 to 50, 20 and you weren't taken, though, to a portion on page 50 21 from line 17 through line 23, and I'll take you to that 22 now. 23 So this is at line 50 -- or page 50, 24 rather. And the question at line 17 by Mr. Centa was 25 this:

60

1 "Was he aware of the fact of the 2 decision when you met with him? 3 Ms. Mann responded: 4 "He certainly..." 5 Pardon me: 6 "He didn't certainly seemed surprised 7 by any of the information I gave him. 8 He didn't ask any further probative 9 questions of me. I certainly got the 10 impression that he -- this was not news 11 to him." 12 Now, you've already offered substantial 13 evidence in relation to the other portion of Ms. Mann's 14 evidence. 15 And, Dr. Young, what's your evidence in 16 relation to what Ms. Mann has said, that you didn't seem 17 surprised by any of the information she gave you and you 18 didn't ask any further probative questions of her, and 19 she got the impression that this was not news to you? 20 DR. JAMES YOUNG: Yeah, I -- that -- that 21 statement suggests to me -- it was really what I was 22 referring to a moment ago. I -- I wouldn't be surprised 23 that I gave that impression to Ms. Mann because what we 24 were talking about was talked about very briefly, and she 25 mentions it several times that this part was very brief,

61

1 as well. 2 It was a brief conversation. She very 3 much relayed the two concerns; one (1), that there was 4 criticism, two (2), that there was other evidence. Those 5 were both matters I knew about. 6 I probably did -- I -- and I'm quite sure 7 I didn't ask pro -- further probative questions because 8 nothing was aroused in me. Nothing said to me -- I'm 9 hearing anything that I hadn't already been told by Dr. 10 Smith existed in this -- in the hearing, so I was 11 listening and hearing, yes. 12 I'm hearing what I already knew from Dr. 13 Smith, therefore, I didn't say anything about it. It was 14 at the end of the meeting and -- and that wa -- and we -- 15 and that was it. So I agree with what she's saying here 16 and that's probably how I appeared. Because I walked out 17 of -- in regards to these particular issues, I walked out 18 of the meeting the same as I walked in, without any 19 further knowledge. 20 MR. BRIAN GOVER: And you've told both 21 Mr. Sandler and Ms. Egan that as a result of your meeting 22 with Ms. Mann, or here -- her interview of you, that you 23 learned nothing new about the decision of Justice Dunn, 24 is that fair? 25 DR. JAMES YOUNG: And by decision, at

62

1 that time what I meant by "decision" was guilty -- or 2 acquitted, I should say, was the decision. I was 3 completely unaware of this lengthy written document that 4 existed. It just -- I didn't know before about it. I 5 didn't know afterwards about it. 6 MR. BRIAN GOVER: And in your evidence 7 today you've distinguished between the verdict and the 8 reasons for decision, is that right? 9 DR. JAMES YOUNG: Exactly. 10 MR. BRIAN GOVER: And having told us, 11 clearly, today that you didn't leave the interview with 12 any new information about Justice Dunn's decision, can 13 you -- can you remind us what it is that you knew at that 14 point, February 14th, 1997, about Justice Dunn's decision 15 in the SM case? 16 DR. JAMES YOUNG: As I had indicated, my 17 -- my involvement in the case virtually stopped after my 18 trip to Timmins. So I had good -- good knowledge of the 19 case up until that point in time. I had virtually no 20 knowledge after that period of time. 21 At some point after the trial finished, 22 and it was not immediate, it was quite some time after 23 but I could not tell you when, I became aware of the 24 acquittal. 25 I had conversations and I believe there

63

1 were more than one with -- with Dr. Smith and I think it 2 may even have -- it probably was him who told me but I 3 can't tell you with absolutely certainty it was him who 4 told me of the acquittal, but, I would think that it was 5 him because there was no other conversation going on 6 about the case at this point. So I don't know who else 7 it would be with. 8 But what I learned then at that point in 9 time was that -- from Dr. Smith, that -- that there was - 10 - he had lost an x-ray and there was criticism of the x- 11 ray. 12 I learned from Dr. Smith that some expert 13 evidence had been called in regards to the theory that 14 there was no such thing as -- as shaken baby and that -- 15 my recollection was that it was -- it was a person or 16 persons from the northwestern United States, and 17 Minnesota for some reason sticks in my mind but I don't 18 know whether that's right or not, but I could remember 19 specifically that that's what the evidence was about. 20 And I was aware from Dr. Smith that he, 21 during the trial, had -- had run into Justice Dunn on -- 22 on at least one (1) or more occasions and had had an 23 opportunity to have some form of conversation with him. 24 I think it was while they were flying or 25 eating or various times that they had run into each other

64

1 inadvertently. 2 MR. BRIAN GOVER: Thank you, Dr. Young. 3 And thank you, Commissioner. 4 COMMISSIONER STEPHEN GOUDGE: Thanks, Mr. 5 Gover. 6 Mr. Sandler...? 7 8 RE-RE-DIRECT EXAMINATION BY MR. MARK SANDLER: 9 MR. MARK SANDLER: Just very briefly, Dr. 10 Young, if you could just clarify several matters for me. 11 You testified in response to cross-examination by counsel 12 for the CPSO, 13 "I didn't know a judgment existed. I 14 couldn't know." 15 And -- and Mr. Gover asked you the 16 question that elicited the distinction between reasons 17 for judgment and a verdict. You remember those questions 18 -- 19 DR. JAMES YOUNG: Mm-hm, mm-hm. 20 MR. MARK SANDLER: -- and those answers? 21 I'm confused. Help me out as to this. 22 If you knew there were criticisms 23 expressed of Charles Smith; if you knew there was some 24 evidence that had conflicted with Charles Smith, though 25 you didn't know the range of that evidence; if you knew

65

1 that he'd been acquitted and you knew from Dr. Smith 2 that, according to him, Justice Dunn had got it wrong, 3 wouldn't it inevitably have followed that there would 4 have had to be something that Justice Dunn put in writing 5 to reflect reasons? 6 DR. JAMES YOUNG: I -- I couldn't have 7 told you whether it was a jury trial or a judge only 8 trial. I recognize now it was a young offender trial. I 9 didn't know that and I don't know the rules of young 10 offender trials that they're judge only. 11 So, no, where -- the fact of the -- 12 whether -- whether it was expressed verbally or whether 13 it was in a written decision, Charles certainly made 14 clear that there was a criticism of him for losing the x- 15 ray. I was aware of that, I knew about that. I dealt 16 with that both in speaking to him and in the memo to the 17 other people. 18 So that -- that was an issue I was aware 19 of but I never -- I didn't tweak to the fact that there 20 was a lengthy decision that was out there. I didn't know 21 about it, no one brought it to my attention and I'm not 22 blaming people for not doing so, but it simple didn't 23 come to my attention. 24 And I -- the fact that someone had given 25 evidence that was contrary to his would not surprise;

66

1 that -- that happens every day in the criminal courts in 2 -- in Ontario, that's -- that's called an adversarial 3 system. 4 MR. MARK SANDLER: Well I was just -- I 5 focused upon, just take one of the facts for a moment, 6 namely, that there had been criticisms of Dr. Smith and 7 you described what you understood the criticisms to be. 8 Did you expect that those criticisms 9 reflected somewhere? 10 DR. JAMES YOUNG: I don't think I 11 reflected on it. I -- Charles told me there was 12 criticism of him for losing the x-ray. I -- I listened 13 to him, I accepted that, we talked about it and that was 14 -- that was that. I, you know, I don't -- I can go over 15 this a million times and I -- I -- it didn't register 16 with me that -- that there was this decision. I didn't 17 seek it out. I regret deeply that I, you know, that I 18 didn't know more about this case but I didn't. 19 And I can't bring it back now. I -- I 20 just didn't -- I was very convinced by Dr. Smith both at 21 this time but later as things happened and he told me 22 about the further meeting with Justice Dunn. I was very 23 influenced by that and I ought not to have been but it 24 was and I was -- that's what I, you know, it -- I didn't 25 probe as deeply as I should have.

67

1 I -- I have no excuse. I just didn't. I 2 didn't -- I didn't know the decision existed and I didn't 3 do it. 4 MR. MARK SANDLER: Okay. Thank you very 5 much. Those are all my questions in re-examination. 6 Thank you, Dr. Young. 7 COMMISSIONER STEPHEN GOUDGE: Thank you, 8 Dr. Young for re-attending. 9 DR. JAMES YOUNG: Thank you. 10 COMMISSIONER STEPHEN GOUDGE: We are 11 grateful to you. 12 Mr. Sandler, what do you propose? Do you 13 want to rise for five (5) minutes and reassemble with the 14 next panel of witnesses. 15 MR. MARK SANDLER: Let's do that. 16 COMMISSIONER STEPHEN GOUDGE: Would that 17 be efficient? 18 MR. MARK SANDLER: Yes. 19 COMMISSIONER STEPHEN GOUDGE: Okay. So 20 let us rise for five (5) or ten (10) minutes. 21 22 --- Upon recessing at 10:34 a.m. 23 --- Upon resuming at 10:45 a.m. 24 25 THE REGISTRAR: All rise. Please be

68

1 seated. 2 COMMISSIONER STEPHEN GOUDGE: Mr. 3 Sandler...? 4 MR. MARK SANDLER: Thank you, 5 Commissioner. I am going to ask our registrar to swear 6 in our three witnesses, please. 7 8 JOHN DAVID GORRELL, SWORN 9 BRUCE HILLYER, SWORN 10 JOHN STRUTHERS, AFFIRMED 11 12 MR. MARK SANDLER: Good morning, 13 gentlemen, all. 14 MR. JOHN STRUTHERS: Good morning, sir. 15 16 EXAMINATION-IN-CHIEF BY MR. MARK SANDLER: 17 MR. MARK SANDLER: What I am going to do 18 is ask each of you a little bit about yourselves and then 19 -- and then proceed to each of the cases that has brought 20 you here today. 21 Mr. Struthers, I will start with you if I 22 may. 23 MR. JOHN STRUTHERS: Good morning. 24 MR. MARK SANDLER: You were called to the 25 bar in 1985, is that right?

69

1 MR. JOHN STRUTHERS: That's right. 2 MR. MARK SANDLER: That you served as an 3 assistant Crown Attorney in Toronto from 1985 until 1989? 4 MR. JOHN STRUTHERS: That's right. 5 MR. MARK SANDLER: That was in the 6 offices at 1000 Finch Court, am I right. 7 MR. JOHN STRUTHERS: Yes. Stephen 8 Leggatt (phonetic) was my superior. 9 MR. MARK SANDLER: All right. And I 10 understand that Mr. Armstrong, who was later Crown 11 Counsel on the Tyrell case that we'll talk about, also 12 served in that office; am I right? 13 MR. JOHN STRUTHERS: He did. 14 MR. MARK SANDLER: In 1989, you left the 15 Crown's office to commence practice as a member of the 16 defence bar? 17 MR. JOHN STRUTHERS: That's right. 18 MR. MARK SANDLER: And that from 1989 19 until the present you have defended a number of serious 20 cases as a defence -- member of the defence bar, 21 including a number of homicide cases; am I right? 22 MR. JOHN STRUTHERS: Yes, sir. 23 MR. MARK SANDLER: And during that period 24 have you also served on occasion as a Crown Attorney? 25 MR. JOHN STRUTHERS: Rarely these days,

70

1 earlier when I had first left, but, yes, on a per diem 2 basis. Very occasionally now. 3 MR. MARK SANDLER: All right. Now in the 4 various homicide cases that you've either defended or 5 prosecuted, did any involve pediatric deaths? 6 MR. JOHN STRUTHERS: Two (2). 7 MR. MARK SANDLER: All right. One (1) 8 would be Tyrell? 9 MR. JOHN STRUTHERS: That's right. 10 MR. MARK SANDLER: All right. And was 11 the other of similar nature or -- or very different? 12 MR. JOHN STRUTHERS: It was quite 13 different and didn't involve Dr. Smith. 14 MR. MARK SANDLER: Okay. Had you been 15 involved in any cases involving Dr. Smith, other than the 16 Tyrell case? 17 MR. JOHN STRUTHERS: No, I haven't. 18 MR. MARK SANDLER: All right. I'm going 19 to turn, if I may, then, to Mr. Hillyer very briefly. 20 Mr. Hillyer, as I understand it, you were 21 called to the Ontario Bar in 1972, am I right? 22 MR. BRUCE HILLYER: That's correct. 23 MR. MARK SANDLER: That you moved to 24 Burlington and began a criminal practice as a sole 25 practitioner after you were called to the Bar?

71

1 MR. BRUCE HILLYER: Well, I had partners, 2 but yes; yes, started off on my own right from the call. 3 MR. MARK SANDLER: All right. And I 4 understand that within a short period of time, in 5 addition to your practice, you prosecuted cases on a 6 part-time basis for approximately two (2) years, am I 7 right? 8 MR. BRUCE HILLYER: Yes, that's correct. 9 MR. MARK SANDLER: Between 1972 and 1985, 10 as I understand it, criminal cases comprised the majority 11 of your practice. 12 MR. BRUCE HILLYER: Yes. 13 MR. MARK SANDLER: Over time your 14 practice grew to include more and more civil work, though 15 your practice included criminal litigation. 16 MR. BRUCE HILLYER: That's correct. 17 MR. MARK SANDLER: And as I understand 18 it, you also started to take on medical malpractice 19 cases, as well. 20 MR. BRUCE HILLYER: Yes, my civil -- my 21 civil work is pri -- primarily what interested me, is the 22 me -- medical part of it, yeah. 23 MR. MARK SANDLER: All right. One can 24 actually see when we -- when we look at the Joshua case, 25 from a review of the documentation, some considerable

72

1 interest on your part in the various facets of the -- of 2 the medical evidence, and -- and am I accurate when I say 3 that? 4 MR. BRUCE HILLYER: I love the medicine, 5 yeah. 6 MR. MARK SANDLER: Okay. And did you 7 find that the medical malpractice work assists you in 8 dealing with some of the medical components -- 9 MR. BRUCE HILLYER: Yes. 10 MR. MARK SANDLER: -- of the criminal 11 practice, as well? 12 MR. BRUCE HILLYER: Yes, yes. 13 MR. MARK SANDLER: And I also understand 14 that in 1989, you began the Ontario Trial Lawyer's 15 Association which now has a membership of some one 16 thousand (1,000) members. 17 MR. BRUCE HILLYER: I did. 18 MR. MARK SANDLER: All right. Now, if I 19 can turn from you briefly to Mr. Gorrell. Mr. Gorrell, 20 you were called to the Ontario Bar in March of 1970, is 21 that right? 22 MR. DAVID GORRELL: Yes, that's right. 23 MR. MARK SANDLER: And you first worked 24 at Osler, Hoskin, and Harcourt for four (4) years, which 25 included a secondment to Amasco in Montreal, am I right?

73

1 MR. DAVID GORRELL: Yeah, that's correct. 2 MR. MARK SANDLER: And then you saw the 3 error of your ways and you went into criminal law. 4 MR. DAVID GORRELL: I did. 5 MR. MARK SANDLER: You joined the Crown's 6 office, as I understand it, in Toronto in 1974, and 7 during that period of time, that office covered not only 8 Toronto but also the new market area. 9 MR. DAVID GORRELL: There was only one 10 (1) Crown's office in those days based in the old City 11 Hall and we covered everything north to Lake Simcoe. 12 MR. MARK SANDLER: All right. In 1980, 13 you left the Crown's office to practice as a sole 14 practitioner in criminal law. 15 MR. DAVID GORRELL: I did. 16 MR. MARK SANDLER: And as I understand 17 it, you moved toward semi-retirement in June of 2001 and 18 today practice on a referral basis only, and on occasion 19 prosecute cases, is that so? 20 MR. DAVID GORRELL: That's correct. 21 MR. MARK SANDLER: So if we add all of 22 that up, you've practiced law for approximately thirty- 23 eight (38) years. 24 MR. DAVID GORRELL: Yes. 25 MR. MARK SANDLER: All right. And your

74

1 reward for that is testifying here at this Inquiry. And 2 have you defended persons charged with homicides over the 3 course of your career? 4 MR. DAVID GORRELL: Yes and prosecuted. 5 MR. MARK SANDLER: All right, and 6 approximately how many homicide cases do you think you've 7 been involved in over that period of time? 8 MR. DAVID GORRELL: I estimate about ten 9 (10). 10 MR. MARK SANDLER: And did any of them 11 involve pediatric homicide cases? 12 MR. DAVID GORRELL: Two (2). 13 MR. MARK SANDLER: All right, and one (1) 14 of them was involving the Gaurov case, am I right? 15 MR. DAVID GORRELL: That's correct. 16 MR. MARK SANDLER: Okay. Had you had any 17 other involvement with either the SCAN Team or with Dr. 18 Smith? 19 MR. DAVID GORRELL: Not at that time. 20 Subsequently, yes, but even -- even though I'm semi- 21 retired, I did do a historic sexual assault trial last 22 fall and that involved SCAN. 23 MR. MARK SANDLER: All right. 24 MR. DAVID GORRELL: But certainly the 25 time of the XXXX case, the answer is, no, I -- I had not.

75

1 MR. MARK SANDLER: All right. The way 2 we're referring to it is -- is -- we can refer to him as 3 Gaurov's father. 4 MR. DAVID GORRELL: All right, Gaurov. 5 MR. MARK SANDLER: All right? 6 MR. DAVID GORRELL: All right, thank you. 7 MR. MARK SANDLER: I'd be grateful. 8 Okay, thank you. Now, I'm going to start with you, Mr. 9 Struthers, if I may, and you have a volume in front of 10 you that relates to the Tyrell case. 11 MR. JOHN STRUTHERS: Thank you, yes. 12 MR. MARK SANDLER: And we've already 13 heard, Mr. Struthers, that Tyrell died on January the 14 23rd of 1998 in Toronto. He was almost four (4) years 15 old at the time of his death. 16 The criminal proceedings were initiated 17 against his caregiver, who we're referring to in these 18 proceedings as -- as Maureen only. 19 And -- and we see from the documentation 20 that's contained in our overview report, that actually 21 Mr. Gorrell was originally the defence counsel on that 22 case? 23 MR. JOHN STRUTHERS: He was. 24 MR. MARK SANDLER: And as I understand 25 it, Mr. Gorrell, you -- as you moved into semi-retirement

76

1 you turned that file over to Mr. Struthers. 2 Do I have that right? 3 MR. DAVID GORRELL: That's right. 4 MR. MARK SANDLER: So I'm going to direct 5 my questions on the Tyrell Case to -- to Mr. Struthers. 6 And if you could go to Tab 1 of -- in your book of 7 documents, Mr. Struthers, it's PFP144019. 8 This is the overview report that -- that 9 I'll be making reference to in the course of my 10 questioning of you. 11 MR. JOHN STRUTHERS: Yes. 12 MR. MARK SANDLER: And if you'd go to 13 page 73, and you'll see the pagination after the slash in 14 the centre of the top of each page. So at -- 15 MR. JOHN STRUTHERS: Yes. 16 MR. MARK SANDLER: 144019/73. 17 MR. JOHN STRUTHERS: I have it. 18 MR. MARK SANDLER: We actually see that 19 at paragraph 159, that according to the record of arrest 20 on January the 6th of 1999, Maureen was arrested and 21 charged with murder. 22 MR. JOHN STRUTHERS: Yes. 23 MR. MARK SANDLER: Were you involved in 24 the case at that point in time? 25 MR. JOHN STRUTHERS: No, I wasn't. That

77

1 was when Mr. Gorrell had the matter. 2 MR. MARK SANDLER: And at what stage of 3 the proceedings did you become involved in this case? 4 MR. JOHN STRUTHERS: Before the 5 preliminary hearing, and I think shortly after Mr. 6 Gorrell was retained. It wasn't very long after. I 7 think he referred it to me pretty quickly. 8 MR. MARK SANDLER: All right. And if 9 you'd go to page 75 of the overview report. Just to 10 orient you in -- in time and place, we see at paragraph 11 165, that the preliminary hearing took place on January 12 the 5th of 2000 and January the 6th of 2000 in Toronto. 13 Mr. Armstrong acted for the Crown and you 14 acted for the defence. 15 MR. JOHN STRUTHERS: That's right. 16 MR. MARK SANDLER: And again, does that 17 accord with -- with your recollection? 18 MR. JOHN STRUTHERS: Yes, it does. 19 MR. MARK SANDLER: Did you obtain 20 disclosure in connection with this case? 21 MR. JOHN STRUTHERS: I did. 22 MR. MARK SANDLER: And did you -- did you 23 obtain that disclosure before the preliminary inquiry? 24 MR. JOHN STRUTHERS: Yes. 25 MR. MARK SANDLER: And did the disclosure

78

1 include the report of post-mortem examination prepared by 2 Dr. Smith? 3 MR. JOHN STRUTHERS: It did. 4 MR. MARK SANDLER: And did you have a 5 view as to what Dr. Smith's opinions were upon receipt of 6 that report? 7 MR. JOHN STRUTHERS: Well immediately, of 8 course, his report basically was that children can't die 9 from household falls. And eventually that was, of 10 course, percolated down to, you had to be from three (3) 11 or four (4) stories up before a household fall could kill 12 a child. 13 And it seemed to me absurd in the initial 14 just reading of it. I guess we don't need to child proof 15 our houses anymore if we don't need to worry about fatal 16 consequences from falls. 17 I didn't know much about pediatrics 18 pathology at that point, and I tried to read up as much 19 as I could. Mr. Gorrell gave me Justice Dunn's decision, 20 I think, with the file pretty much as well. 21 And so I already had a template of 22 critique of Dr. Smith. 23 MR. MARK SANDLER: Just stopping there 24 for a moment. 25 MR. JOHN STRUTHERS: Yeah.

79

1 MR. MARK SANDLER: Mr. Gorrell, I'll turn 2 to you and say, how did you know about or get the -- the 3 Amber decision of Justice Dunn, do you recall? 4 MR. DAVID GORRELL: I had the disclosure, 5 and I -- I haven't looked at this file, but my 6 recollection was it was a blow to the head that had 7 caused the death, and the doctor's opinion was just as 8 John puts it, that it couldn't happen the way the accused 9 person had said it had happened. 10 Which on its face was ridiculous in my 11 view, because how can one tell from a -- from pathology 12 that -- whether the blow hits the head or the head hits 13 the hard object. 14 So I -- I began asking around the Bar 15 about who was this pathologist, and I began to hear 16 things. And I was led to Mr. Justice Dunn's decision 17 from, I think, Timmins, and I ordered it. 18 I don't think it was reported in those 19 days. It may still not be. And I got that, and when I 20 got that, some sort of a -- a road map began to present 21 itself as to how one might be able to defend this case. 22 MR. MARK SANDLER: All right. So when 23 you turned over the file, you turned over the Amber 24 decision as well to Mr. Struthers? 25 MR. DAVID GORRELL: I did.

80

1 MR. MARK SANDLER: Okay. And, Mr. 2 Struthers, I'll -- I'll let you continue on -- on the 3 narrative. 4 Had -- had you heard about Dr. Smith 5 before? 6 MR. JOHN STRUTHERS: It's hard to recall 7 at this point, it's so long ago. But there were rumours 8 out there certainly about him being a wild card, 9 essentially, with respect to these sorts of cases. 10 And it was pretty early on that having 11 reviewed Justice Dunn's decision and spoken to Mr. 12 Gorrell, that it became clear to me that there was a 13 problem with his evidence certainly. 14 That it was -- first of all, the report 15 took a year to produce, a full year to produce. It was 16 terse with respect to its conclusory nature. And simply 17 saying that this must be an intentionally inflicted 18 injury, because my view is that kids can't die of 19 household falls of this nature, period, which patently 20 absurd to me in the first instance. 21 So I had heard a number of rumours and, of 22 course, as time went on and it's hard to put these in 23 sequence at this point, we did speak to other lawyers, as 24 well. Eventually, of course, Felicity Hawthorn in 25 Kingston came to my attention and the W5 or, I'm sorry,

81

1 was it the -- 2 MR. MARK SANDLER: Fifth Estate. 3 MR. JOHN STRUTHERS: -- Fifth Estate, I'm 4 sorry, yes, came to my attention, as well. 5 MR. MARK SANDLER: All right. So just 6 going back there for a moment, Felicity Hawthorn, we've 7 heard, was counsel at one stage in the Sharon case, as we 8 refer to it here. 9 MR. JOHN STRUTHERS: I'm sorry, yes. 10 MR. MARK SANDLER: And -- no, that's 11 fine. And, again, how was it that that came to your 12 attention? 13 MR. JOHN STRUTHERS: I think at that 14 point we didn't have sort of the formalized Criminal 15 Lawyers Association lists served that we have now. 16 There's actually a computer group now that spans the 17 province with three or four hundred (400) members that 18 where you can actually get an answer from people about 19 specific individuals. But just word of mouth 20 principally, you know. People had heard about the case. 21 The dog bites/scissors case was pretty 22 well known at one point during the course of these 23 proceedings and I was very interested to find out who the 24 lawyer was on it. 25 MR. MARK SANDLER: Now when you say that

82

1 it was -- it was pretty well known that this case was out 2 there, we've actually heard that in the Sharon case the 3 charges were withdrawn around the same time period that 4 the charges were withdrawn in the Marine case but -- 5 MR. JOHN STRUTHERS: They weren't 6 withdrawn in my case. 7 MR. MARK SANDLER: I'm sorry, that they 8 were stayed in your case. Yes, I know that was a point 9 of contention that we'll talk about. 10 MR. JOHN STRUTHERS: Thank you. 11 MR. MARK SANDLER: But they happened 12 around the same period of time. So what you're 13 describing is some knowledge that was out there within 14 the defence bar of that case that preceded by some period 15 of time the actual withdrawal in Sharon. 16 Do I have that right? 17 MR. JOHN STRUTHERS: Absolutely, yes. 18 MR. MARK SANDLER: Okay. Now moving on 19 from -- from there, so what was the approach that you 20 anticipated you would be taking at the preliminary 21 inquiry? 22 MR. JOHN STRUTHERS: Well, two things. I 23 mean, the first is, of course, to get his opinions as 24 fleshed out as possible and to let him talk. I mean, 25 some of his profiling, which you've had a look at in

83

1 that, I normally wouldn't have let go, certainly not at a 2 trial. But I wanted to get as much out of him as I could 3 with respect to his -- his approach to the cases, and so 4 I did that. 5 I also took the position that, basically, 6 his expertise ended at the skin, that he really had no 7 business with respect to mechanics or physics or accident 8 reconstruction or anything of that nature. And I 9 consulted with an accident reconstructionist as you see 10 from the material, as well, about the degree of force 11 that is available in a house. 12 I made as many inquiries as I could to try 13 and get some literature. It was pretty limited and my 14 understanding of it was limited at that point, too. I 15 educated myself over time. 16 And, of course, I wanted to have his 17 testimony as complete as possible so that I could take 18 that testimony, along with the reports, and send them to 19 my own experts so that I would have his opinions 20 available to them as completely as possible. 21 I did want to challenge him, as well, 22 because of his opinion, on its face, seemed to me to be 23 somewhat absurd. 24 MR. MARK SANDLER: All right. So I take 25 from your answer three (3) components. The first is that

84

1 unlike the approach that you might have taken at a trial, 2 here you were going to let him delve into areas that you 3 might have felt were beyond his expertise? 4 MR. JOHN STRUTHERS: Absolutely. 5 MR. MARK SANDLER: Second of all, you 6 were going to pin him down or flesh out what he had to 7 say on the issues that arguably were within his 8 expertise? 9 MR. JOHN STRUTHERS: Yes. 10 MR. MARK SANDLER: Right? And -- and the 11 third component was that there was going to be a 12 component where you would -- where you'd challenge some 13 of the things that he had to say in areas that you found 14 problematic? 15 MR. JOHN STRUTHERS: Exactly. 16 MR. MARK SANDLER: All right. So you did 17 conduct the preliminary inquiry. The Commissioner has 18 had an opportunity to read the evidence of Dr. Smith, 19 including your cross-examination. 20 Generally, what was your view at the time 21 as to how Dr. Smith came across as a witness? 22 MR. JOHN STRUTHERS: Well, remarkably. I 23 mean, I watched a little bit of his testimony here which 24 was subdued. His voice didn't sound to me to be in the 25 same timbre as it was at the preliminary hearing.

85

1 He was very confident. He was overly 2 confident. He certainly believed what he was saying, 3 without question. He seemed to be a person of some 4 charisma. Certainly, he is articulate, authoritative, 5 and he certainly wore the mantle of the Hospital for Sick 6 Children and his level of expertise with some pride, to 7 say the least. 8 MR. MARK SANDLER: Okay. If you'd go to 9 page 86 of the overview report, and I'm going to take you 10 very, very selectively to the evidence that was given at 11 the preliminary inquiry. 12 MR. JOHN STRUTHERS: Yes, this is his -- 13 his pop psychology and sociology profiling of the type of 14 person that would be responsible for this sort of injury. 15 MR. MARK SANDLER: All right. So -- so 16 when you make reference to that, we see under item (b) at 17 page 86: 18 "Blunt force injuries were more likely 19 to be inflicted by a man than a woman." 20 You see under (c), 21 "Asphyxial deaths are more likely to be 22 caused by women." 23 And, again, this is with reference to what 24 you said earlier, that in your view these were outside 25 the scope of his expertise, but you were prepared to --

86

1 to let him articulate them at the preliminary inquiry. 2 MR. JOHN STRUTHERS: Yes, you know, 3 accusing someone of murder because they hadn't finished 4 high school seems to me to be a little bit problematic. 5 MR. MARK SANDLER: Okay. And then we 6 also see at paragraph 182 at page 87 that -- that Dr. 7 Smith stated the following with respect to the 8 possibility that Tyrell's injury was caused by a hand. 9 MR. JOHN STRUTHERS: Mm-hm. 10 MR. MARK SANDLER: 11 "If a blow was struck by a hand in a 12 face-to-face confrontation and a right- 13 sided impact, it was likely struck by a 14 left hand. He agreed that if a blow 15 were part of a process of abuse, the 16 process would be over a very short 17 period of time. The only evidence of 18 any abuse was the one (1) head injury." 19 Just stopping there for a moment. What 20 was your view as to whether a pathologist was qualified 21 to give opinions as to being struck by a left hand, right 22 hand, or some combination, or did you have an opinion on 23 that? 24 MR. JOHN STRUTHERS: Well, it seems 25 obviously outside his area of expertise. I mean, he --

87

1 he can talk respectfully from the skin in about what the 2 nature of the injury is, but to suggest, of course, an 3 entire mechanism of -- of injury was not possible in this 4 case, as we see later by every report. You simply can't 5 make that sort of conclusory statement. 6 MR. MARK SANDLER: Now you -- you 7 indicated to -- to the Commissioner that -- that you had 8 serious concerns, to use my terminology rather than 9 yours, with -- 10 MR. JOHN STRUTHERS: Yes. 11 MR. MARK SANDLER: -- what he had to say 12 about accidental household falls, and we see at paragraph 13 183 that -- that your question starts: 14 "Now, we've discussed this out of 15 Court. I'm going to ask you to 16 discuss it with me in Court." 17 And then you -- and then you go on to make 18 reference to -- to the fact that he had met with an 19 officer and it said: 20 "Quote: Accidental falls of this 21 nature do not cause children to die." 22 Closed quote. 23 And that's -- that's referable to what you 24 told the Commissioner earlier -- 25 MR. JOHN STRUTHERS: That's right.

88

1 MR. MARK SANDLER: -- the expression of 2 his opinion. What about the reference to, "we've 3 discussed this out of Court"? Tell us about what you 4 recall in that respect. 5 MR. JOHN STRUTHERS: It was very brief. 6 I did -- I want to be as complete as I can. I -- I do 7 know that the consultative process with defence lawyers 8 is an issue here. And Dr. Smith, although he was asked 9 to consult with my accident reconstructionist - and that 10 didn't go well, as I understand it - when he came to the 11 courthouse, I asked to speak with him and I think I had 12 about five (5) minutes with him where I posed a number of 13 just simple questions to him to get sort of his demeanor 14 and how he would respond to the sorts of questions I was 15 going to ask him about household falls and it was very 16 generic. 17 And he was polite and he did answer my 18 questions in the hall, but it was only for maybe five (5) 19 minutes before he testified. 20 MR. MARK SANDLER: Generally, as a matter 21 of practice, do you like to speak to the experts that are 22 being called by the Crown in advance or well in advance 23 of the preliminary inquiry or trial? 24 MR. JOHN STRUTHERS: It never hurts to 25 have some indication of where they're going, and how they

89

1 react to questioning, and whether or not they're at all 2 maluably -- emalable in their positions at all. 3 I mean it's very difficult to know in 4 advance how they're going to respond on the stand, and 5 I'd not met or seen Dr. Smith before. 6 MR. MARK SANDLER: Okay. Now, at page 88 7 of the overview report, there's reference made to the 8 Timmins case, namely SM, and -- and it's fair to say that 9 you -- you cross-examined him about that case. 10 MR. JOHN STRUTHERS: That's the one (1) I 11 had in hand. I did not have any other rulings of 12 significance in my hand at that time, but I mean Justice 13 Dunn's decision was quite thorough, and if I'm speaking 14 about the right one (1) now, where all of the letters and 15 indicia I think -- 16 MR. MARK SANDLER: Right. 17 MR. JOHN STRUTHERS: But that's the one 18 (1) I had in hand and that's the one (1) I asked him 19 about, and basically asking him about whether, you know, 20 sensible people could disagree on this point. 21 And I think it's been discussed at some 22 point in what I was reading that, you know, he had an 23 opportunity then to talk about the contradictory nature 24 of the -- the evidence with respect to that particular 25 issue and he just didn't do it.

90

1 MR. MARK SANDLER: Okay. And we see at 2 page 89, he reflects in response to your questions about 3 the case of SM: 4 "Since then, I mean I can't speak for 5 all of those people..." 6 And he's referring to the people who 7 testified for the defence. 8 MR. JOHN STRUTHERS: Right. 9 MR. MARK SANDLER: 10 "The person who I've discussed this 11 with most was the neurosurgeon who has 12 certainly retreated from that position. 13 Whether any of the other people have 14 retreated from it, I don't know." 15 And then he says: 16 "In the area of Dr. Duhaime, no, I 17 think she's made it clear that what was 18 attributed to her in the '80s is 19 different than the position she 20 espouses in the 1990s." 21 MR. JOHN STRUTHERS: He didn't tell me 22 that he had spoken to the Judge in the corridor and had 23 been told I was -- made mistakes about my position at 24 that time, either, I note. 25 MR. MARK SANDLER: All right. And did

91

1 you know whether or not the -- the neurosurgeon, who he 2 made reference to, had indeed resiled or retreated from 3 the position articulated in the -- in the Dunn judgment? 4 MR. JOHN STRUTHERS: No, I did not know 5 that. 6 MR. MARK SANDLER: All right. So -- so 7 the preliminary inquiry concludes and -- and the accused 8 is committed to stand trial? 9 MR. JOHN STRUTHERS: Right. 10 MR. MARK SANDLER: And what had the 11 preliminary inquiry impressed upon you as the next step 12 to take in the defence of Maureen? 13 MR. JOHN STRUTHERS: I wanted to take his 14 position, his transcript of evidence, his report, and get 15 as much information as I could to our experts. I had to 16 get to Legal Aid to get permission to hire experts, 17 which, of course, is another issue I certainly think 18 we'll discuss. 19 I got permission. Particularly, I knew 20 about Dr. Horsham. Dr. Horsham was very helpful in 21 referring me to others. She did make it clear to me 22 however, that I was not going to find anyone probably in 23 the province of Ontario, and certainly not in Toronto, 24 that was going to contradict Dr. Smith or the Hospital 25 for Sick Children; that it was a career-limiting move to

92

1 contradict SCAN, the Hospital for Sick Children and Dr. 2 Smith. And that people just wouldn't do it. They're -- 3 they wouldn't stand up to him. 4 As a result, I knew I was going to have to 5 get expertise outside of the province. I was able to get 6 an expert from Winnipeg and a very senior Fellow from 7 Chicago. We then had to marshal the evidence, his 8 preliminary hearing transcript, all of the forensics that 9 we could get, and there was some difficulty getting 10 slides, and, of course, CT scans were a bit of a problem, 11 but we eventually got them, and we sent them off. 12 I also wanted to consult with an accident 13 re-constructionist, because I believed his area of 14 expertise, he had exceeded grossly, and I wanted to know 15 from my accident re-constructionist, what the mechanisms 16 were that were available in -- in the home, what degrees 17 of force were available, and to actually get someone who 18 was an expert in the things that Smith was trying to be 19 an expert in, or claiming to be an expert in, so that I 20 had a full range of defences with respect to the case. 21 MR. MARK SANDLER: All right. Just 22 unpacking a few of the things that you said. 23 MR. JOHN STRUTHERS: Yep. 24 MR. MARK SANDLER: How had you identified 25 Dr. Horsham, who -- who we know from -- from other

93

1 evidence, served in Ottawa as a pediatrician, I rememb -- 2 if I remember correctly? 3 MR. JOHN STRUTHERS: Dyanoosh Youssefi, 4 who was the junior counsel for me on the case -- and 5 should be given a lot of credit with some of the research 6 and some of the work that she did -- I -- I think she was 7 able to locate Dr. Horsham, and I'm not sure by which 8 methodology or who made the recommendation, but we 9 certainly did consult with her. 10 MR. MARK SANDLER: All right. And you 11 made reference to a doctor from out west. That was Dr. 12 Ferguson? 13 MR. JOHN STRUTHERS: That's right, yeah. 14 MR. MARK SANDLER: And you made a 15 reference to an American doctor. That was Dr. Leetsma? 16 MR. JOHN STRUTHERS: Leetsma from 17 Chicago, that's right. 18 MR. MARK SANDLER: Okay. And 19 interestingly, all three (3) of them had testified for 20 the defence in the -- in the Amber Case, and were you 21 aware of that at the time? 22 MR. JOHN STRUTHERS: We were. And I 23 think we cross-referenced, obviously, who had testified 24 in that case, and initially went to Dr. Horsham, in part, 25 because of that case.

94

1 MR. MARK SANDLER: All right. And if I 2 can then go to paragraph 232 of the overview report, and 3 you'll find that at page 105. And I should say that -- 4 that -- that you made reference to some of the 5 difficulties in securing some of the materials for your 6 experts. 7 I'm not going to ask you about it, others 8 may -- 9 MR. JOHN STRUTHERS: Yep. 10 MR. MARK SANDLER: -- today. We've -- 11 we've received a fair bit of evidence on that point to 12 date. 13 MR. JOHN STRUTHERS: Yes. 14 MR. MARK SANDLER: We see at paragraph 15 232, that on January the 8th of 2001, Ms. Youssefi sent 16 Mr. Armstrong a letter enclosing the curriculum vitae and 17 preliminary reports of two (2) of the three (3) defence 18 experts who might testify at trial? 19 MR. JOHN STRUTHERS: Yes. 20 MR. MARK SANDLER: So stopping there for 21 a moment, and -- and we see that -- that in the days that 22 follow, other reports are, indeed, sent to Mr. Armstrong. 23 What was the thinking of the defence? 24 MR. JOHN STRUTHERS: Well, remarkably, it 25 seemed to me that this case was obviously problematic. I

95

1 mean, the fact that we had such -- 2 MR. MARK SANDLER: Problematic from whose 3 perspective? 4 MR. JOHN STRUTHERS: For the Crown -- for 5 the Crown. It should be problematic for the Crown. I 6 mean, we had overwhelming evidence from three (3) experts 7 -- two (2) of course were in our hand -- that he was just 8 plain wrong on this and that it was a conclusionary 9 judgment that he was making based on bad science or a bad 10 opinion, or some sort of faith-based decision-making 11 process where he simply determined that this must be an - 12 - an intentionally inflicted injury. 13 So I had hoped that two (2) things would 14 happen, and one (1) of them eventually did happen. I was 15 hoping to convince Mr. Armstrong that he should not 16 continue the prosecution because I thought we had an 17 extremely strong defence case. That was on the one (1) 18 hand. 19 On the other had, I didn't want to be in a 20 position at trial where we were going to be said, Well 21 this wasn't disclosed to us, we don't know what you're 22 going to say, we don't obviously have any referral to our 23 own experts to make criticism of your, you know, 24 reciprocal disclosure to some extent. 25 Because I was going to call the witnesses,

96

1 without question. 2 MR. MARK SANDLER: Okay. So -- so we see 3 that you did send a variety of materials to Mr. 4 Armstrong. 5 MR. JOHN STRUTHERS: We sent him a lot of 6 stuff. We sent him the fifth estate transcript. We got 7 that by going to the civil court where Dr. Smith had been 8 suing the fifth estate, and of course, he had to put a 9 transcript of the fifth estate program into his civil 10 suit in order to justify his suit. 11 That's where we got the fifth estate 12 transcript. 13 MR. MARK SANDLER: Okay. 14 MR. JOHN STRUTHERS: We went and got 15 that. We got a number of articles that we thought were 16 relevant, and we sent those to him. We sent our reports 17 to him. We sent our accident re-constructionist to him. 18 We inundated him with everything we had in hopes that he 19 would see the light. 20 MR. MARK SANDLER: Now, you made 21 reference to the accident re-constructionist and -- and 22 efforts for him to meet with Dr. Smith. Tell us about 23 that. 24 MR. JOHN STRUTHERS: Mr. Raftery -- who 25 is an accident re-constructionist I've used on a number

97

1 of cases -- I had several lengthy meetings with him about 2 discussing this and presented him, among other things, 3 with the preliminary hearing transcript and -- and what 4 Dr. Smith had to say about that. 5 There is a letter -- I'm not sure which 6 tab it is offhand -- that, where he was attempting to 7 meet with Dr. Smith, and my understanding is he wasn't 8 getting much cooperation. 9 MR. MARK SANDLER: You'll see that at 10 actually page 121 of the overview report, paragraph 257. 11 MR. JOHN STRUTHERS: The -- 12 MR. MARK SANDLER: No, I don't have to 13 take you to it. 14 MR. JOHN STRUTHERS: No, the letter's in 15 there as well, I believe, -- 16 MR. MARK SANDLER: Yeah. 17 MR. JOHN STRUTHERS: -- from Mr. Raftery. 18 MR. MARK SANDLER: And so here you were 19 accumulating the evidence of the various experts and 20 again the Commissioner has had the benefit, because you 21 come very late in the piece of the evidence that the 22 Inquiry has -- 23 MR. JOHN STRUTHERS: He's heard it all, 24 yeah. 25 MR. MARK SANDLER: -- had the benefit of

98

1 knowing what -- 2 MR. JOHN STRUTHERS: Yeah. 3 MR. MARK SANDLER: -- the experts have 4 had to say that were marshalled by you and presented to 5 Mr. Armstrong. 6 MR. JOHN STRUTHERS: Yes. 7 MR. MARK SANDLER: Those are all in the 8 overview report. What did you -- what -- how did your 9 discussions with Mr. Armstrong go? 10 MR. JOHN STRUTHERS: I'm not sure they 11 were discussions. We -- we hear from others about their 12 view of that. I'm not sure they were discussions. I was 13 simply attempting to convince him of the error of his 14 ways and eventually, I was able to do that, I take it, 15 after the voir dire with Justice Campbell didn't go well 16 for them either with the SCAN team, and we may discuss 17 that, but -- 18 MR. MARK SANDLER: We will. 19 MR. JOHN STRUTHERS: -- at the end of the 20 day there weren't discussions, there was no discussions. 21 It was simply, I was presenting him with the material; he 22 was not responding. 23 MR. MARK SANDLER: All right. Did you 24 have any idea, leave aside the characterization of 25 discussions, --

99

1 MR. JOHN STRUTHERS: Yes. 2 MR. MARK SANDLER: -- did he provide you 3 any information as to whether or not he knew about the 4 Sharon case or whether he was consulting with other Crown 5 Counsel in connection with this case? 6 MR. JOHN STRUTHERS: Late in the process, 7 I was aware that he was consulting with Dr. Becker, I 8 think, to get a neuropathology point of view that was 9 different than Dr. Smith. 10 I understood he was talking with John 11 McMahon, now His Honour, Justice McMahon, who was a 12 senior about the matter, but this was late in the process 13 and we're talking about perhaps in the last two (2) or 14 three (3) weeks before the matter was actually resolved. 15 MR. MARK SANDLER: All right. What about 16 the Sharon case? Did you know whether or not he had been 17 in contact or...? 18 MR. JOHN STRUTHERS: I did. I know that 19 he was talking to the Crown down there, and he had a fair 20 idea of what was going on down there and was very 21 interested in it. And he knew, I think, that the matter 22 was going to hit the press, if you will, pretty much 23 simultaneously with the decision-making process on our 24 case. 25 MR. MARK SANDLER: All right. So if --

100

1 if we can move ahead to, and you'll see this right at the 2 same page, page 105, paragraph 234, -- 3 MR. JOHN STRUTHERS: Right. 4 MR. MARK SANDLER: -- we see that Justice 5 Archie Campbell delivered oral reasons for ruling on the 6 voir dire -- 7 MR. JOHN STRUTHERS: He did. 8 MR. MARK SANDLER: -- to determine the 9 admissibility of statements attributed to Maureen by Dr. 10 Mian and Ms. MacLachlan of the SCAN team, -- 11 MR. JOHN STRUTHERS: Yes. 12 MR. MARK SANDLER: -- and -- and at the 13 risk of over simplifying Justice Campbell excluded the 14 statements on a variety of grounds, the primary of which 15 was volunteering as saying that they were functioning in 16 an investigatory role rather than assessment role. 17 MR. JOHN STRUTHERS: Ms. MacLachlan, of 18 course, was -- said one thing at the prelim and 19 contradicted herself directly at the trial. And it 20 seemed to me that they were, frankly, making a concerted 21 effort to have these statements admitted by giving proper 22 answers or answers they thought were going to justify 23 admission of the statement. And she contradicted herself 24 directly about whether they had an investigative role, 25 from her prelim to the trial.

101

1 MR. MARK SANDLER: And just stopping 2 there for a moment, I mean, in fairness to you, that's 3 not just your opinion, that's what Justice Campbell said? 4 MR. JOHN STRUTHERS: That's right. No, 5 I'm -- I've opened his judgment here. 6 MR. MARK SANDLER: Right. 7 MR. JOHN STRUTHERS: And he -- he made 8 specific reference to their -- their position being 9 destroyed under cross-examination by the fact that they 10 had said the exact opposite with respect to their 11 investigative role at the preliminary hearing. 12 He ruled that they were persons in 13 authority; that they did, in fact, have a strong role 14 with respect to the nature of the prosecution and that 15 therefore, there should be exclusion but he says, at page 16 17 of his ruling, which is at Tab number 26: 17 "Quite apart from the strict legal 18 issues just discussed, there's two (2) 19 further reasons to reject the purported 20 statement. The first reason is the 21 principle of investigative fairness 22 referred to above in the case analyzed 23 in the Sopinka, Letterman and Bryant 24 text and they are footnoted. There is 25 no apparent effort -- [there was, I'm

102

1 sorry] -- there was no apparent effort 2 at all in this case to ensure any 3 measure at all of fairness whatsoever 4 to Ms. XXXX." 5 So he would have thrown it out three ways 6 to Sunday, and it's very clear that they had no interest 7 in being fair to her at all. 8 The statements were not recorded properly. 9 The questions and answers were not recorded properly, and 10 basically, there was two (2) sides to the ledger. If she 11 said something that might be incriminated -- 12 incriminating, it went on the ledger. If she said 13 something that wasn't, we never heard about it. And 14 there was no attempt to be fair to her at all, not at 15 all. 16 MR. MARK SANDLER: All right. So how did 17 the dynamics of the case change, if at all, after you 18 obtained the favourable ruling on admissibility? 19 MR. JOHN STRUTHERS: Well, then it was 20 all Dr. Smith. I mean, at some point they were trying to 21 suggest that she had been somewhat contradictory in her 22 reporting of the accident circumstances; that was the 23 suggestion. And I don't see that; they were trying to 24 make that argument. 25 And as a result, after the statements were

103

1 ruled inadmissible, it was going to be all Dr. Smith, a 2 hundred percent his opinion that this could not be an 3 accidental fall simply because this just doesn't happen. 4 As a result, it was completely a forensics case and they 5 were limited to that. 6 So I think, at that point -- they had some 7 hope, I think, going in that if they had the statements 8 that would bolster or corroborate Smith in some material 9 way. Once they lost that and it was all Smith, then they 10 really had to think about it. 11 MR. MARK SANDLER: All right. And so 12 tell us what transpired in the days between the January 13 16th judgment from Justice Campbell and the date set for 14 trial, January the 22nd? 15 MR. JOHN STRUTHERS: Well, we, of course, 16 had three (3) experts that we were trying to do the 17 logistics of getting into town and Dr. Leetsma was very 18 expensive and I got quite a bit of resistance from Legal 19 Aid with respect to his fee structure. It was going to 20 be difficult to get paid but they had agreed to do it 21 but -- 22 MR. MARK SANDLER: No, we're going to 23 come back to that. 24 MR. JOHN STRUTHERS: Yeah, all right. 25 I'll leave that alone for now then.

104

1 But we're doing travel arrangements, of 2 course, and we're discussing it with the Crown on a 3 regular basis and we want updates. And I was asking for 4 Dr. Becker's final report which I didn't have because I 5 knew there had been a subsequent consultation with him. 6 And what had happened was, we won the voir 7 dire and then we went off to do our further preparation. 8 And we're Thursday, don't hear from the Crown. Friday, 9 don't hear from them. Saturday, Sunday, nothing. 10 We go to pick a jury and, you know, we 11 bring our boxes and our little trolleys and our junior 12 and our clients and we're making travel arrangements and 13 we get to court. 14 And I like to sit on the right-hand side 15 of the court, close to the jury box, because I can't see 16 the witness box from the left-hand tables at 361. So I 17 sit at the right-hand side if I'm allowed to. 18 And I was behind Mr. Armstrong and his 19 junior, Christine Peraglia, sitting with my associate 20 junior, Ms. Youseffi, and our client, of course, is in 21 the box waiting for the jury panel to come in. 22 And time goes by and nothing happens. 23 Time goes by and nothing happens. And eventually, about 24 forty (40) minutes my recollection is, Justice Campbell 25 comes into the courtroom. What's going on?

105

1 At which point, Mr. Armstrong stands up 2 and says, "I'm," you have the transcript, "I'm staying 3 the charges." This was the first I'd heard that that was 4 going to be the case. It was the first Maureen XXXX 5 heard that this was going to be the case. 6 She's in the box for forty (40) minutes 7 thinking the jury is going to come in to try her on 8 second degree murder and she's not told one second before 9 she had to be that the charges weren't proceeding. 10 MR. MARK SANDLER: All right. And did 11 you have discussions with Mr. Armstrong after the fact as 12 to what had prompted the decision? 13 MR. JOHN STRUTHERS: No. 14 MR. MARK SANDLER: All right. 15 MR. JOHN STRUTHERS: I have opinions but 16 I didn't discuss it with him. 17 MR. MARK SANDLER: I take it you had some 18 concern about -- about how it was that -- that you 19 learned for the first time that the charges were going to 20 be stayed? 21 MR. JOHN STRUTHERS: Well, despite the 22 fact that it cost Legal Aid a bunch of money for the 23 additional preparation and it cost, you know, people 24 being booked as experts to come into Toronto, and it cost 25 a bunch of human effort on our part, that's what we're

106

1 paid to do. 2 But for Maureen XXXX to have to think for 3 another five days that she was going to trial on second 4 degree murder -- 5 MR. MARK SANDLER: Yes, I -- I'm just 6 going to stop your there for a moment. Please, just 7 refer to her as Maureen. We are solving the problem at 8 this end -- 9 MR. JOHN STRUTHERS: Oh, I'm sorry. 10 MR. MARK SANDLER: -- in terms of the web 11 cast but -- 12 MR. JOHN STRUTHERS: I'm not used to 13 referring to people by their first names in court. 14 MR. MARK SANDLER: I understand. 15 MR. JOHN STRUTHERS: For Maureen to have 16 to wait five (5) days to learn that she was not going to 17 trial on second degree murder, in my respectful view, was 18 not appropriate. 19 MR. MARK SANDLER: Okay. So you made 20 reference to the challenges in defending the case and -- 21 and Legal Aid. 22 First of all, tell the Commissioner what - 23 - what involvement you now have with Legal Aid and -- and 24 then would you describe to the Commissioner what it is 25 defending a case like this on Legal Aid, what are the

107

1 challenges and what are the concerns? 2 MR. JOHN STRUTHERS: Well, you mean to 3 say that I should mention that I sit on the Exceptions 4 Committee of Big Case management for Legal Aid as a 5 volunteer with respect to the allocation of funds for 6 serious cases and I've done that for three (3) years now. 7 That's where I'm coming from. 8 I do a number of Legal Aid cases. 9 Obviously, right now we're getting to probably about 10 three (3) homicides a year that actually go to trial or 11 resolution with respect to my Legal Aid practice. 12 The difficulties are, of course, and I've 13 read ahead and I may be even moving ahead to some degree, 14 but one of the things that, of course, is being suggested 15 here that there should be a panel of lawyers able to 16 defend serious cases, educate themselves with respect to 17 forensics, be it gunshot wounds or forensic pathology, 18 whatever the case may be, and to become as well educated 19 as possible on that. 20 You know, Mr. Hillyer has got a level of 21 expertise well beyond anyone here with respect to the 22 medical issues. That is something he has self-taught; 23 you aren't taught this in law school. 24 The problem is that right now I think the 25 vast majority of senior lawyers don't want to take Legal

108

1 Aid cases at all because of the rate of pay. It's just 2 absolutely punitive. 3 It's difficult to get enough money for 4 experts. To pay them at their actual rate, that's just 5 out of the question. It's difficult to hire people that 6 will do cases on Legal Aid as experts because of the 7 Legal Aid rate, and it's difficult to find counsel with 8 experience and knowledge of specific issues that have 9 done multiple homicide cases to take them on Legal Aid at 10 this point because the -- the rate of pay is just 11 absolutely punitive for the number of hours that you put 12 in. 13 MR. MARK SANDLER: All right. What about 14 the retaining of experts? I mean, you were able to 15 retain experts of some significance and stature on Legal 16 Aid in this case, so... 17 MR. JOHN STRUTHERS: It's true. I have a 18 good relationship with Legal Aid and I obviously have to 19 talk to the area director and we have to get specific 20 permission, but at this point Legal Aid was aware of the 21 problems with Dr. Smith; they were aware of, you know, 22 the case in the -- in Kingston, as well, so they were 23 very good about the experts in this case, though I had to 24 really push them for Dr. Leetsma because the rate of pay 25 was well above the Legal Aid rate.

109

1 MR. MARK SANDLER: All right. 2 MR. JOHN STRUTHERS: They agreed to do 3 it, though. 4 MR. MARK SANDLER: And -- and just for 5 the Commissioner's benefit -- he probably already knows 6 all -- all this -- but is there a standard tariff for 7 what you can pay an expert on a Legal Aid defended murder 8 case? 9 MR. JOHN STRUTHERS: There is, but you 10 can exceed it if -- if absolutely necessary. You have to 11 get specific permission to do so though, yes. 12 MR. MARK SANDLER: All right, and -- 13 MR. JOHN STRUTHERS: A psychiatrist, for 14 example, there's a -- there's a set rate of pay that 15 they're able to do on an hourly basis. 16 COMMISSIONER STEPHEN GOUDGE: What's the 17 current practice, Mr. Struthers, about numbers of experts 18 for the defence that Legal Aid provides? 19 MR. JOHN STRUTHERS: I think I -- I 20 reached the maximum. There were others that may have 21 been available because, of course, I think it was eight 22 (8) that testified up in Timmins, something of that 23 nature, but I think -- I think three (3), especially with 24 this -- 25

110

1 CONTINUED BY MR. MARK SANDLER: 2 MR. MARK SANDLER: That wasn't on Legal 3 Aid as -- 4 MR. JOHN STRUTHERS: No. 5 MR. MARK SANDLER: That was not on -- 6 MR. JOHN STRUTHERS: I see, I understand. 7 But with respect to this case, I think they had no 8 problem with three (3); I -- to push it further would 9 have been difficult, especially given Leetsma's rate of 10 pay. 11 COMMISSIONER STEPHEN GOUDGE: All right. 12 MR. JOHN STRUTHERS: Yeah. 13 14 CONTINUED BY MR. MARK SANDLER: 15 MR. MARK SANDLER: All right. 16 MR. JOHN STRUTHERS: He was a very senior 17 guy. 18 MR. MARK SANDLER: Now, Mr. Struthers, 19 having -- based upon your involvement in this and other 20 cases -- homicide cases -- what, if any, recommendations 21 would you like to make to the Commissioner that might 22 make their way ultimately into our report? 23 MR. JOHN STRUTHERS: Well, with the 24 greatest of respect, it wasn't the Coroner's Office that 25 solved this problem, and it wasn't the Crown Attorney's

111

1 Office that solved this problem, and it certainly wasn't 2 the police or the Hospital for Sick Children. It was a 3 bunch of lawyers being paid the Legal Aid rate to 4 challenge Dr. Smith and basically, to point out to a 5 Court of law, in a manner that they accepted, that he was 6 really off the rails. 7 And if you want -- you know, we live in an 8 adversarial system. The theory is that the Crown doesn't 9 seek convictions; that's not been my experience, but 10 that's theoretically the rule, Bushey. 11 My position would be that if you want to 12 defend people charged with outrageous allegations that 13 have no foundation in fact, in law, or in science, then 14 the way to do that is to have prepared, competent, 15 skilled, and experienced defence lawyers who are willing 16 to take the case is to challenge this kind of evidence, 17 and you're not going to get it at this current rate of 18 pay. 19 A lot of people take the position that 20 they graduate out of Legal Aid; they don't take Legal Aid 21 cases anymore because the rate of pay is just completely 22 unacceptable. 23 And if you want somebody with twenty-two 24 (22) years experience to take homicide cases of great 25 difficulty, complexity, and that require a level of

112

1 expertise in specific areas that are outside of the legal 2 framework, then you're going to have those people paid 3 properly and right now they're not. 4 Extremely serious cases, including the 5 terrorist case in -- in Brampton and other cases like 6 this, require people with a level of expertise that 7 perhaps, is not commonplace. 8 And as a result, it would be my position 9 that Legal Aid should construct a tier 4 of payment. 10 Right now there are three (3) tiers; people with less 11 than four (4) years experience, people with less than ten 12 (10) years experience, and people with more than ten (10) 13 years experience. 14 It would be my view that there should be a 15 tier 4. There should be actually a accreditation process 16 for people who are capable of dealing with extremely 17 serious cases re -- based on their level of expertise, 18 their experience, their history; people that have 19 actually done a murder case, for starters, might be a 20 good plan. 21 And at the same time, to say to those 22 people that if you're competent in this sort of area -- 23 that you are able to do extremely serious cases -- that 24 there will be a level 4 tier for Legal Aid, so the people 25 are paid properly, and I -- I said this; it was excerpted

113

1 from my -- my statement. 2 We've got a room full of lawyers here -- a 3 room full of lawyers here -- solving or trying to clean 4 up a problem that Dr. Smith caused. Everybody in this 5 room is being paid three (3) times the Legal Aid rate 6 minimum -- minimum -- to solve a problem that was solved 7 by lawyers being paid at the Legal Aid rate; it's not 8 right. 9 The money is better spent at Legal Aid to 10 prevent this sort of thing from happening. To provide 11 proper remuneration for lawyers. It's just wrong. 12 MR. MARK SANDLER: Okay. Any other 13 comments that you wanted to make other than the Legal Aid 14 recommendation? 15 MR. JOHN STRUTHERS: That's probably 16 enough for now, isn't it? 17 MR. MARK SANDLER: All right. 18 COMMISSIONER STEPHEN GOUDGE: Certainly 19 got that one, Mr. Struthers. 20 MR. JOHN STRUTHERS: Was I clear enough? 21 COMMISSIONER STEPHEN GOUDGE: Can I ask 22 you a little bit about what you did voluntarily in this 23 case, and that we've heard from others that can be 24 considered doing in other ways and, that is, exchanging 25 your expert information with the Crown beforehand.

114

1 First, in your experience, how common is 2 that practice? 3 MR. JOHN STRUTHERS: I do it. If I'm 4 going to be calling the evidence, I certainly want it 5 disclosed in advance. I don't want to ever be accused 6 of, you know, bushwhacking the Crown and providing them 7 with some sort of -- 8 COMMISSIONER STEPHEN GOUDGE: You have no 9 legal compulsion -- 10 MR. JOHN STRUTHERS: No, I understand, 11 without legal compulsion on me. I mean, I want -- if I'm 12 calling the evidence, I want to disclose it. Obviously 13 if I have a report that I don't think is disclosable or I 14 disagree with or I think is -- 15 COMMISSIONER STEPHEN GOUDGE: Or that you 16 are not going to use or -- 17 MR. JOHN STRUTHERS: I'm not going to 18 use, that's different. 19 COMMISSIONER STEPHEN GOUDGE: Yes. 20 MR. JOHN STRUTHERS: But if I'm going to 21 use the evidence, I have no problem with disclosing it at 22 all. 23 COMMISSIONER STEPHEN GOUDGE: And what's 24 your sense of your colleagues generally? I'm going to 25 ask each of the other two (2) the same thing.

115

1 MR. JOHN STRUTHERS: I think if you're 2 going to call the evidence, generally speaking, I think 3 the -- the view is that, you know, reciprocal disclosure 4 of things you're absolutely going to be calling is -- is 5 a good idea. 6 I think it -- it gets to the point a lot 7 quicker. And -- and in this case it had two (2) 8 functions. I mean, overwhelming the Crown with the 9 problems eventually resulted in not having a trial, which 10 is in everyone's best interest -- 11 COMMISSIONER STEPHEN GOUDGE: Right. 12 MR. JOHN STRUTHERS: -- except -- 13 COMMISSIONER STEPHEN GOUDGE: Right. 14 MR. JOHN STRUTHERS: -- except for the 15 Legal Aid lawyer. 16 COMMISSIONER STEPHEN GOUDGE: Right. 17 MR. JOHN STRUTHERS: See, because if you 18 go on day one (1), and the charges stayed at 10: -- you 19 know, :45, you get paid seventy-three dollars ($73). 20 That's what you got paid to go to that trial. 21 And then the month that I had booked for 22 the trial, to defend the trial is a hole in my calendar 23 for which I get zero. 24 COMMISSIONER STEPHEN GOUDGE: Right. 25 MR. JOHN STRUTHERS: All right. So I was

116

1 paid seventy-three dollars ($73) to defend this case in 2 court. 3 COMMISSIONER STEPHEN GOUDGE: Right. 4 MR. JOHN STRUTHERS: At trial. 5 COMMISSIONER STEPHEN GOUDGE: Right. And 6 I take it there is a two-fold advantage to the kind of 7 disclosure that you undertook voluntarily. One (1) is it 8 obviously protects against a -- a blind-siding assertion 9 later on. 10 MR. JOHN STRUTHERS: Right. 11 COMMISSIONER STEPHEN GOUDGE: Does it as 12 well, in your experience, assist in -- let me put it this 13 way, refining the issues, focussing the issues, 14 determining where the professional disagreements truly 15 are, and where they're not? 16 MR. JOHN STRUTHERS: I think so. And I 17 think it's important for the Crown experts, you know, you 18 have the Brown and Dunn rule to some extent. It doesn't 19 really apply to experts, but if you're going to call an 20 expert in the defence, you want to put your expert's 21 opinion -- 22 COMMISSIONER STEPHEN GOUDGE: Okay. 23 MR. JOHN STRUTHERS: -- report and 24 substantiation for his opinion to the experts for the 25 Crown in cross-examination so that you have a fair

117

1 balance. So they're going to be disclosed as some point 2 anyway. 3 And rather than have someone on the stand 4 say, I haven't read his report, I don't know what he's 5 saying, maybe, you know, you want to have that in his 6 hand, and to say, You've read this report, paragraph 3 he 7 says this, it's contrary to your opinion, what do you say 8 about that? 9 I mean, or whatever you want to do in 10 cross-examination. 11 COMMISSIONER STEPHEN GOUDGE: What about 12 putting the experts together for a discussion? 13 MR. JOHN STRUTHERS: I have no problem 14 with that either, but I'd like to have it recorded, 15 because I think I'd like to know what people are saying 16 in that respect. But with respect to doing that, I have 17 no problem with that at all. 18 But the problem that you have is that many 19 of the experts see themselves as advocates. They are not 20 objective scientists. We are -- I mean, we're in an 21 adversarial system, but we have people on either side 22 that are not supposed to be adversaries. 23 And it's a contradictory position without 24 question. So if people take positions where they're true 25 believers, and they're -- they're testifying on faith as

118

1 opposed to science, it's pretty hard to talk to a brick 2 wall. 3 If this is just, blanket, this is the way 4 it is, because I'm right, it's pretty difficult to have 5 anybody, you know, assail that position. It's just not 6 possible. 7 COMMISSIONER STEPHEN GOUDGE: Okay. 8 Thanks. Sorry, Mr. Sandler. 9 MR. MARK SANDLER: All right. No, that's 10 fine. I'll just ask you, Commissioner, because we've -- 11 we've been going for a while, I'm going to take -- I'm 12 going to suggest a morning break. Is this a convenient 13 time to do that? 14 COMMISSIONER STEPHEN GOUDGE: Sure. I'm 15 getting quite used to going up and down the stairs. 16 We'll break then for fifteen (15) minutes. 17 18 --- Upon recessing at 11:32 a.m. 19 --- Upon resuming at 11:48 a.m. 20 21 THE REGISTRAR: All rise. Please be 22 seated. 23 THE COMMISSIONER: Mr. Sandler...? 24 MR. MARK SANDLER: Thank you, Mr. 25 Commissioner.

119

1 2 CONTINUED BY MR. MARK SANDLER: 3 MR. MARK SANDLER: Mr. Struthers, two (2) 4 other questions before we move to Mr. Hillyer. Question 5 Number 1 is this: You made reference to the fact that 6 Mr. Gorrell had given you the Amber decision that 7 obviously figured prominently in some of your preparation 8 for the case. 9 Did you give it to Mr. Armstrong? 10 MR. JOHN STRUTHERS: I did. 11 MR. MARK SANDLER: And second of all, you 12 made reference to the fact that Mr. Armstrong decided to 13 stay the proceedings as opposed to withdraw them. 14 What is the distinction and how did you 15 feel about that? 16 MR. JOHN STRUTHERS: Well, the 17 distinction theoretically is that if somehow miraculously 18 Dr. Smith has survived the decision in Kingston and it 19 came back for more that, theoretically, they could have 20 reinstituted proceedings inside a year. It was a Crown 21 stay of proceedings. 22 Given the overwhelming nature of the 23 defence case, it should have been withdrawn, and there 24 should have been nothing left hanging over Ms. XXXX's 25 head.

120

1 And as I understand it, the stay of 2 proceedings -- I apologize -- it's Maureen's case, I -- 3 I'm sorry. 4 MR. MARK SANDLER: Thank you. 5 MR. JOHN STRUTHERS: I apologize. At the 6 end of the day, I understand that that decision-making 7 process -- and I want to make it clear that I have no 8 expertise in family law and I try not to act outside my 9 area of expertise, unlike others -- I understand that 10 that had a very serious outcome with respect to the 11 Children's Aid proceedings for Maureen. 12 They took the position that there was 13 still an outstanding criminal charge of homicide against 14 her because it had been stayed as opposed to withdrawn, 15 and it caused her troubles in the family law proceedings 16 with respect to her own children, so it just never ended. 17 MR. MARK SANDLER: All right. Thank you 18 very much. I'm going to turn to Mr. Hillyer, if I may. 19 And, Mr. Hillyer, you have -- you're privileged to have 20 two (2) volumes of documents in front of you. 21 If I can take you to Volume I, which is 22 the overview report, PFP143053, and that's at Tab 1 of 23 Volume I. And if you'd look at page 3 of that overview 24 report again, and just to orient you and the others who 25 are here, we've heard that Joshua died in January of 1996

121

1 at the age of four (4) months in Trenton. 2 At the time of Joshua's death, Sherry, his 3 mother, was twenty (20) years old. On March the 27th of 4 1996, she was charged with first degree murder. She was 5 committed on that charge after a preliminary inquiry. 6 That committal was subsequently quashed 7 and a charge of second degree murder substituted. On 8 January the 4th of 1999, a new indictment charging 9 infanticide was placed before the Court. She entered a 10 plea of not guilty. 11 The Crown read into the record certain 12 agreed facts. The defence called no evidence in response 13 to those facts and did not dispute them. As a result, 14 she was convicted of infanticide and sentenced to a one 15 (1) year custodial term followed by probation. 16 And also set out in the overview report is 17 what transpired in related Children's Aid proceedings 18 involving Joshua's brother and another child, a daughter, 19 that was born to Sherry in September of 2005. 20 As I understand it, you were Sherry's 21 defence counsel during a period that included the 22 preliminary inquiry and ultimately what was effectively a 23 plea of nolo contendere at her trial, am I right? 24 MR. BRUCE HILLYER: You are. 25 MR. MARK SANDLER: There -- there was a

122

1 previous counsel involved in the case, am I right? 2 MR. BRUCE HILLYER: There was, if memory 3 serves me, his name was Wanekot (phonetic) and he was 4 going on a sabbatical and his boss, who happens to be a 5 very good friend of mine, asked me if I'd help out. 6 MR. MARK SANDLER: All right. What prior 7 experience did you have, if any, in pediatric or other 8 death cases where cause of death was an issue? 9 MR. BRUCE HILLYER: Well, I've been 10 blessed with a -- I shouldn't say blessed. I had had a 11 very high profile case in my little community, at least, 12 two (2) years before. It involved an allegation of -- of 13 Shaken Baby Syndrome, and we were able to prove, and I 14 highlight the word "prove", that the child died of 15 natural causes. 16 MR. MARK SANDLER: All right. And very 17 briefly, could you just describe for the Commissioner 18 what that case involved and -- and who were the experts 19 that were lined up on the case? 20 MR. BRUCE HILLYER: Sure. The -- the 21 allegation was that a mature woman who had her own 22 children was volunteering as a babysitter and, oh, in a 23 six (6) hour window of time this child that she was 24 babysitting went into a convulsive state and the child 25 was taken to the local hospital, Joseph Brant Memorial

123

1 Hospital, where she was stabilized. And then the child 2 was taken to McMaster University Hospital where all the 3 trouble began, and there a succession of specialists 4 opined that this child had died as a result of Shaken 5 Baby Syndrome. 6 And the experts that were marshalled 7 against us started with Dr. Rao, who I understand has 8 testified here. She was the pathologist. There was a 9 Dr. Hollenburg (phonetic), Dr. Parise, the name of the 10 pediatrician escapes me; and -- but there was probably 11 about a half a dozen specialists surrounding the 12 pathology opinion of Dr. Rao that was the core of the 13 Crown's case that I had to meet. 14 MR. MARK SANDLER: All right. And did 15 you have defence experts? 16 MR. BRUCE HILLYER: I did. I -- when I 17 first got the case, I bought into the Crown's theory that 18 this child had died of Shaken Baby Syndrome and my 19 initial defence was going to be that it couldn't possibly 20 have happened in this narrow window of time, particularly 21 given the information that the police had -- had gathered 22 and that we were able to muster that the -- it was, 23 perhaps, more likely that the parents would have been 24 responsible for any -- any assaultive behaviour with the 25 child.

124

1 But as I started to -- just because of 2 what I do in the rest of my practice, I -- I don't -- I'm 3 afraid I have a rather jaundiced view of the medical 4 profession and so I have to be satisfied myself that what 5 everybody is saying is correct -- so I started right from 6 scratch. 7 I went back and studied Shaken Baby 8 Syndrome. I discovered, in my view, this child did not 9 die -- didn't fit the pattern and then sought out a 10 series of experts, and the most important expert for me 11 was Dr. Leetsma in Chicago who I can't say enough good 12 things about. 13 I faced the same -- this was a legally- 14 aided case -- I faced the same problem that everyone else 15 does with a man of his caliber and what he charges. He 16 actually owns his own hospital. We -- we went -- I sent 17 a junior down to Chicago -- and then my wife and I went 18 down to visit him and that gentleman believed in the case 19 so strongly he agreed to come and do it for free. 20 That -- that's how -- I can't -- I have to 21 say that, and -- and I was joined by two (2) other fine 22 doctors here in the city, a Dr. Arnold Noyek at Mount 23 Sinai and Dr. Michael Hauck, (phonetic) both ENT 24 specialists, who had the same approach. 25 So while the funding was obviously an

125

1 issue and we were embarrassed by having to ask these fine 2 people to -- to come and help on the basis of a Legal Aid 3 tariff, they were willing to -- to do it even if we 4 didn't get any money from Legal Aid. That -- that's how 5 -- that's how great they were. 6 MR. MARK SANDLER: All right. And just 7 as a matter of curiosity, the position of the defence 8 having consulted those experts was what, as to cause of 9 death? 10 MR. BRUCE HILLYER: This child, we were 11 able to establish clearly, died of an ear infection. It 12 was just right there. Dr. Rao, fortunately for the 13 client, had decided that she was going to write a paper 14 on this case as a shaken baby case and so took a lot more 15 slides than we would normally find in -- in our forensic 16 pathology and once Dr. Leetsma pointed me in the right 17 direction as to where I had to go, what slides I needed, 18 and it was -- it was quite an effort because we -- we 19 were getting the slides in bits and pieces and they were 20 going to Chicago and back and forth by air so that 21 finally we got right slides and we were able to show that 22 -- show what had happened. 23 Now I mentioned the experts that I -- that 24 I initially faced. What disturbed me about that case was 25 the role of the Coroner's Office because Dr. Cairns start

126

1 showing up at the trial in the mid -- in mid-week, first 2 week, and by the second week he had arranged for three 3 (3) more experts, and I was presented with the opinions 4 of three (3) additional experts at the beginning of the 5 third week of the trial, at which point Justice Spyer 6 (phonetic) was very unhappy with that set of 7 circumstances and gave me the option of a mistrial or 8 adjournment or whatever I needed. 9 But fortunately, I was satisfied that what 10 each of those experts had to say was medical nonsense and 11 I didn't ask for an adjournment and we just dealt with 12 the witnesses right away, one after the other. 13 MR. MARK SANDLER: All right. Now if we 14 can move back to...excuse me for a moment, Commissioner. 15 MS. LINDA ROTHSTEIN: Sorry, 16 Commissioner. 17 18 (BRIEF PAUSE) 19 20 MR. MARK SANDLER: Ms. Rothstein just 21 points out something to me that in fairness to Dr. Cairns 22 I should put to you. 23 Did you see who you thought was Dr. Cairns 24 today here? 25 MR. BRUCE HILLYER: No. Dr. Young was

127

1 here, I think today. 2 MR. MARK SANDLER: Oh, okay. All right. 3 Now if we can go to the -- the Joshua case 4 and if you'd look at Volume II of the materials that you 5 have, and I am going to take you to Tab 21 of those 6 materials. 7 And we see this is a letter dated November 8 the 5th of 1996 to Dr. Jaffe, and is it fair to say that 9 this reflects an entreaty on your part to Dr. Jaffe to be 10 involved in the Joshua case? 11 MR. BRUCE HILLYER: Yes. 12 MR. MARK SANDLER: And you make reference 13 to the fact that: 14 "I'm writing to you once again hoping 15 to spark your interest in a new case 16 which I've received." 17 Had you utilized Dr. Jaffe before? 18 MR. BRUCE HILLYER: Yes. He's been my 19 resident teacher whenever I had a need for any forensic 20 issues for a number of years. 21 MR. MARK SANDLER: All right. 22 MR. BRUCE HILLYER: Both before and after 23 he retired. 24 MR. MARK SANDLER: And we actually see 25 from other correspondence that I won't take you to, but

128

1 that you provided him with extensive written materials, 2 and ultimately, the slides and -- and other materials 3 relating to this file. Am I right? 4 MR. BRUCE HILLYER: Correct. 5 MR. MARK SANDLER: Okay. 6 MR. BRUCE HILLYER: With the emphasis on 7 the word "ultimately". 8 MR. MARK SANDLER: All right. And I'm 9 not going to take you there, but the database will 10 reflect much correspondence having to do with efforts to 11 obtain, for review, the slides and x-rays relating to the 12 Joshua case. 13 Am I right? 14 MR. BRUCE HILLYER: Correct. 15 MR. MARK SANDLER: We also see at Tab 30 16 of the same volume that in January of 1997, it would 17 appear that you approached -- I'm sorry. It's actually 18 November the 5th, and you'll see it about four (4) pages 19 inside of the tab. 20 We actually see that you write to Dr. 21 Leetsma again entreating him to spark his interest in 22 this very same case. Am I right? 23 MR. BRUCE HILLYER: Initially, yeah. I 24 was a little reluctant to do that because of how generous 25 he'd been with his time and his expertise in the previous

129

1 case, and as I got to know the case a little better, I -- 2 I really didn't think I needed him so much, as I did 3 perhaps, Dr. Plunkett. 4 MR. MARK SANDLER: Okay. And we'll come 5 to Dr. Plunkett. How was it that you got Dr. Plunkett's 6 name and -- and got him involved in the case? 7 MR. BRUCE HILLYER: Dr. Leetsma. 8 MR. MARK SANDLER: All right. And if you 9 go to Tab 18. Tab 18 is a memorandum dated January the 10 2nd of 1997, from you to this file, that reflects a 11 meeting that was conducted with Dr. Jaffe on December the 12 19th of 1996. Am I right? 13 MR. BRUCE HILLYER: Yes. 14 MR. MARK SANDLER: And I'm just going to 15 ask you about some features of this memorandum. It 16 reflects the presence at the meeting, and we see notes 17 from various participants, not just your memorandum, 18 were: 19 "Lynne, James, KM and myself." 20 Who were they? 21 MR. BRUCE HILLYER: Lynne Thompson was 22 either an articling student, or a junior associate. 23 James Wartoygo (phonetic) was a junior associate with -- 24 who just worked on my medical malpractice files. And 25 Katherine (Phonetic) Matthews was my personal clerk.

130

1 MR. MARK SANDLER: All right. And then - 2 - you've reflected: 3 "He gave us a lesson on what he's seen 4 in the material." 5 And I can tell you that based on the 6 review of the file, it appears that, at this stage, he's 7 reviewed the written materials, but -- but not as -- but 8 not the slides, or the x-rays. 9 MR. BRUCE HILLYER: I think you're right, 10 yeah. 11 MR. MARK SANDLER: Okay. And we see: 12 "He said there are really just two 13 medical problems. He died of asphyxia. 14 He said this is the most abused word in 15 forensic medicine because all that 16 really means is lack of oxygen and that 17 everyone dies of a lack of oxygen. The 18 Crown needs an additional qualification 19 to add to the diagnosis of asphyxia to 20 make it culpable. 21 He said the second problem is to 22 provide a reasonable alternative cause 23 of death. He said in this case, SIDS 24 is the most reasonable cause of death. 25 As a matter of fact, he's of the view

131

1 that it's an excellent case for SIDS. 2 He said that it -- it fits it perfectly 3 in most respects. He pointed out that 4 smothering can be accidental or 5 intentional. 6 In this case, we don't have any 7 evidence physical around the mouth, 8 nose. There's no fibres, no bruises, 9 or cuts or abrasions around the mouth 10 or nose. There's no nose bleed which 11 they often find. The saliva on the 12 pillow means nothing. He said the 13 autopsy is consistent with smothering, 14 but he points out that it can be 15 accidental, just from the way the baby 16 sleeps, or from epileptic or drugs. 17 Petechia hemorrhages are not present in 18 the eyes or the face, which are 19 normally found in asphyxia smothering 20 cases. The petechia here are confined 21 to the internal organs of the chest 22 which is a hallmark sign for crib 23 death. The pathological findings are 24 in favour of a crib death." 25 And then he reflects:

132

1 "Problems to deal with: There's minor 2 problems to deal with. Contusion of 3 the scalp, but that could have been 4 caused by resuscitation, or from 5 needles in the scalp being attempted in 6 the scalp veins. 7 Subdural hemorrhage is a bit of a 8 problem but it's not related to the 9 cause of death. Brain swelling's not 10 normally part of crib death, but it's 11 also not a post-mortem fact. It's 12 probably a function of the artificial 13 circulation; CPR that was conducted on 14 the tiny infant. 15 The left tibia fracture, he said 16 there's no relation to the death, but he 17 wants to see the slide to see 18 if Dr. Smith's view of callus 19 formation is accurate, 20 because that's indicative of 21 an old injury. 22 He doesn't like the idea of red 23 herrings and wants me to take the 24 direct route on the SIDS. However, we 25 pressed him on the abnormal findings of

133

1 6.85 carbon monoxide in the blood." 2 And then there's some extended discussion 3 about that. Now just stopping there for a moment, tell 4 us -- just encapsulate if you would, what you're taking 5 from Dr. Jaffe's read of this case? 6 MR. BRUCE HILLYER: Well really, just the 7 way it's been laid out. He -- I should -- I should add 8 that it -- I can't remember whether it was at this 9 juncture, or later, or sooner -- or before where he was 10 attempting, perhaps unsuccessfully, to restrict his -- 11 his involvement in these matters, to simply being a -- a 12 -- somebody to consult, rather than someone to testify. 13 He was -- he was always reluctant to 14 testify at this stage of his -- of his career. And so it 15 was really just getting together, giving him the 16 material, asking for some advice, how should we handle, 17 what are we facing, and how should we handle Dr. -- Dr. 18 Smith at the preliminary hearing. 19 This -- so this was all very preliminary 20 in terms of how -- just basically educating me, what have 21 I got here, what do I -- how do I handle this at the -- 22 what are your recommendations on how to handle this at 23 the preliminary. 24 MR. MARK SANDLER: And you'll actually 25 see that in the next page, if we can look at that, under

134

1 Dr. Smith tactics: 2 "He invited me to take the following 3 tactics with the good old Dr. Smith. 4 He has no evidence from a forensic 5 point of view of any criminal act such 6 as smothering. Get him to acknowledge 7 the observations on autopsy that are 8 supportive of crib death without 9 telling him that it's what we're 10 getting him to acknowledge it for. Dr. 11 Smith's a nice fellow and a good 12 academic, but he's arrogant and 13 prosecution-oriented, and his wife is a 14 coroner. He's had problems in court 15 before where he has said inappropriate 16 things. 17 Jaffe, as usual, tells me he doesn't 18 want to testify, and said our evidence 19 should and could come from the mouth of 20 Dr. Smith, but he wants to be present 21 in Court when Dr. Smith testifies. He 22 said this case has got to be won in the 23 criminal law evidentiary aspect. Rule 24 out the stupid statement of our client 25 that she's made. He doesn't believe a

135

1 review of the slides will help either 2 side, but I'll help if he does give 3 evidence that he's seen them and 4 reviewed the photos." 5 Now just stopping there for a moment. Did 6 this accord with the strategy that you ultimately adopted 7 in the case? 8 MR. BRUCE HILLYER: Sort of. I was more 9 concerned -- notwithstanding what Dr. Jaffe was telling 10 me -- I was, as was my client, very concerned about the 11 mould in this woman's apartment. This was a -- this was 12 a major issue that we were anxious to pursue. 13 And I see with the benefit of hindsight, 14 having read the summary, that so was, at the same time, 15 the investigating officer, McFarland, (phonetic), 16 unbeknownst to me. 17 MR. MARK SANDLER: MacLellan. 18 MR. BRUCE HILLYER: MacLellan, sorry, 19 yeah. So yeah, it -- it's -- everything was very 20 preliminary, at this stage, in terms of what we were 21 going to do. And Dr. Jaffe and I didn't really agree on 22 how I was going to approach Dr. Smith, but that was my 23 decision, not his, so. 24 MR. MARK SANDLER: Reference is made to: 25 "He's had problems in court before

136

1 where he has said inappropriate 2 things." 3 Do you remember now whether you received 4 any other particulars of that, or whether your own 5 investigation revealed any of that? 6 MR. BRUCE HILLYER: No, this would have 7 just all come from Dr. Jaffe. I -- I -- I had had -- 8 actually I -- the previous case I was telling you about 9 when I was interviewed prior to coming here, I didn't 10 think Dr. Smith had had any role in, but apparently he 11 did because I pulled the files from storage. 12 And he -- I don't know -- I don't know 13 what his role was, because I never got a -- a will say 14 from the Crown, or I don't even know if he -- maybe he 15 did a paper review, I don't know what he had done, but 16 his name was on it, and I'm told that at Sick Kids, he'd 17 logged some of the -- some of the material. 18 MR. MARK SANDLER: All right. And just 19 looking under Tactics, on the bottom of the same page 20 we've been reading. This confirms what you've just told 21 the Commissioner: 22 "After Dr. Jaffe left, I instructed 23 James, notwithstanding Dr. Jaffe's 24 comments, to continue to pursue the CO 25 issues and the mould issues."

137

1 So I take that reflects the view that he - 2 - he's -- he's opining that one should approach this as a 3 -- as a crib death, but you're saying you -- you still 4 want the investigation to proceed on these other 5 environmental aspects? 6 MR. BRUCE HILLYER: Yeah. I -- I'm -- I 7 mean, I -- I may be the only person around that still 8 uses a differential diagnosis but I just have to rule 9 everything out. I mean, that's what medicine teaches 10 doctors and -- and that's the way I operate. 11 MR. MARK SANDLER: All right. If you go 12 to tab 24 of the same volume, this is January the 10th of 13 1997, you write to Sheila Walsh, the Crown attorney, and 14 you reflect, 15 "As you know, we've tried 16 unsuccessfully on numerous occasion 17 using various methods of communication 18 to get Dr. Smith to provide us with the 19 slides as per our agreement before 20 Christmas. The matter was left with 21 Dr. Smith, given his apparent family 22 crisis, that he would get back to us 23 upon his return," 24 and so on. Then you reflect, 25 "We haven't heard -- we haven't heard

138

1 yet." 2 And then you reflect that your cross- 3 examination of Dr. Smith should not take place until you 4 have the slides and have them reviewed by your expert. 5 And there's -- and there's some further 6 discussion about -- about the implications of not having 7 been provided with -- with the slides up until this 8 point. 9 And you reflect on a P.S. at the end of 10 the -- of the page, 11 "P.S. Dictated January 9th. Hold to 12 January 10th so I could call Dr. Smith. 13 I called Dr. Smith. Same result as 14 always, not available." 15 And, again, that reflects the fact that 16 you were having difficulty accessing him to -- to deal 17 with that issue? 18 MR. BRUCE HILLYER: Yes. 19 MR. MARK SANDLER: Now if you can move 20 ahead to the same volume, tab 31, we see here, January 21 the 14th of 1997, just following the sequence of events, 22 you've enclosed documents for Dr. Plunkett's review, 23 consideration and preliminary opinion. 24 We have some sense from your file as to 25 what Dr. Jaffe had to say at various times. I haven't

139

1 seen an opinion expressed by Dr. Plunkett. 2 Can you help us out as to that? To what 3 extent did you use Dr. Plunkett? Did he render an 4 opinion, whether verbal or in writing about this case? 5 MR. BRUCE HILLYER: I'm afraid I can't. 6 It's too long ago. I looked for it, as well. I don't -- 7 I don't believe -- I must have talked to him. He must 8 have -- we must have had a verbal -- a verbal discussion. 9 That may be what some of these notes are, I don't know. 10 MR. MARK SANDLER: We actually see at tab 11 32. Perhaps you can help us out as -- as to what those 12 notes are, whether you can make any sense of them? 13 14 (BRIEF PAUSE) 15 16 MR. BRUCE HILLYER: Well, if I -- I'd 17 only be guessing but it looks to me like it's notes I 18 made of -- during a phone call with Dr. Plunkett. 19 MR. MARK SANDLER: All right. Can you -- 20 can you help us out, based upon the notes, as to what he 21 may have said to you, just in general terms? 22 23 (BRIEF PAUSE) 24 25 MR. BRUCE HILLYER: Well, he seems to be

140

1 focussing on SIDS but -- 2 MR. MARK SANDLER: Do you take that from 3 the ten (10) arrows that are directed to SIDS on the 4 second page? 5 MR. BRUCE HILLYER: Yeah, I do. Yeah. 6 MR. MARK SANDLER: All right. That's why 7 I'm paid the big bucks, according to Mr. Struthers. 8 So if you'd go with me to the volume 2, 9 tab 34. 10 MR. BRUCE HILLYER: Oh, sorry. Same 11 volume, still in the same book, yeah. Yeah. 12 MR. MARK SANDLER: And we see that Ms. 13 Walsh writes to you on January the 15th of 1997 and we've 14 also seen this referred to in the overview report, which 15 I won't take you to, but at page 60, paragraph 154 that, 16 "I've just been informed by Dr. Smith 17 that one of the microscopic slides from 18 the post-mortem discloses a skull 19 fracture. Dr. Smith apparently just 20 realized that this fracture is not 21 noted in his report. I've asked Dr. 22 Smith to send me a description of the 23 fracture and I will disclose this as 24 soon as I receive it." 25 Then she reflects,

141

1 "As this is new information, I no 2 longer oppose your request to postpone 3 Dr. Smith's evidence to a later 4 date..." 5 Stopping there for a moment, as best you 6 can recollect, is this the first information that you had 7 that a skull fracture had been identified by Dr. Smith? 8 MR. BRUCE HILLYER: I think Sheila 9 actually had called me to tell me. I think I got a phone 10 call before I got the letter. 11 MR. MARK SANDLER: All right. 12 MR. BRUCE HILLYER: Yeah. 13 MR. MARK SANDLER: And -- and secondly, 14 she makes reference to the fact that, 15 "I no longer oppose your request to 16 postpone Dr. Smith's evidence to a 17 later date to short circuit what would 18 otherwise be more lengthy questions." 19 If one looks at the file, am I right that 20 -- that there's various correspondence over -- over your 21 ability to access, as we've talked, the -- the slides and 22 the x-ray, you were going to bring an application to 23 compel the postponement of Dr. Smith's evidence. 24 The Crown initially resisted that -- that 25 motion, but when this new information came out about the

142

1 skull fracture she indicated that she was content to 2 adjourn his evidence -- 3 MR. BRUCE HILLYER: Yeah. 4 MR. MARK SANDLER: -- do I have that 5 right? 6 MR. BRUCE HILLYER: Except for I don't 7 think she -- she was opposing or would have opposed it. 8 I mean it just made so common sense, how could you 9 possibly proceed without -- without having that ahead of 10 time. 11 MR. MARK SANDLER: Okay. 12 MR. BRUCE HILLYER: It would have been a 13 waste of time for her to do that anyway. 14 MR. MARK SANDLER: All right, now if 15 you'd go to Tab 17, we see that in a letter dated January 16 the 17th of 1997 you write to Dr. Jaffe and you update 17 him on -- on the status of the case, but I'm going to 18 take you to page 2 of the letter, if I may. 19 And at page 2 of the letter you reflect: 20 "In the meantime..." 21 If you have that. 22 MR. BRUCE HILLYER: I think so. 23 MR. MARK SANDLER: The third paragraph. 24 MR. BRUCE HILLYER: Yes. 25 MR. MARK SANDLER:

143

1 "...I have a couple of questions for 2 you which I hope you'll be able to 3 assist me on as follows: reread the 4 post-mortem which has been enclosed, 5 assuming that we're going to be forced 6 on with our cross-examination of Dr. 7 Smith's evidence. After you've reread 8 the post-mortem, if you could provide 9 me with some helpful hints for my 10 cross-examination of Dr. Smith. And 11 what I mean by "helpful hints" are as 12 follows: areas in the report that I do 13 not want to telegraph to the Crown and 14 what I should avoid in this area; an 15 idea of what significance, if any, Dr. 16 Smith's microscopic and laboratory 17 findings I need to know about; what to 18 worry about or not worry about in his 19 microscopic and laboratory findings. I 20 intend to take your advice given to me 21 at my office on December 19th on how to 22 deal with Dr. Smith, however, I need to 23 understand everything I am up against 24 with him so as not to fall into any 25 traps and give him any ideas as to

144

1 where I might be going with the case. 2 I would appreciate your view in 3 layman's terms your interpretation or 4 translation of Dr. Smith's microscopic 5 and laboratory findings." 6 And you provide as an example that Dr. 7 Smith makes mention of a callus formation on the x-ray 8 findings, however, the radiologist does not make mention 9 of a callus formation in his report. 10 I want to ask you generally, it appears 11 that you're -- that you're utilizing Dr. Jaffe not only 12 as an expert on pathology, but also in providing you with 13 some strategic advice as to how to approach Dr. Smith. 14 Is that a fair assumption from what I 15 read? 16 MR. BRUCE HILLYER: Yes, you could assume 17 that from the way I worded that letter, yes. 18 MR. MARK SANDLER: All right, and -- and 19 why was that? 20 MR. BRUCE HILLYER: I think because I'm 21 just -- if I had to speculate it, over the years he's 22 just been very helpful and -- and sort of as my practice 23 grew and as I matured and learned more and more about 24 medicine, he was just sort of a mentor to me, I guess. 25 MR. MARK SANDLER: Okay.

145

1 MR. BRUCE HILLYER: I -- 2 MR. MARK SANDLER: And the -- and the 3 other feature of it is that you heard some discussion as 4 between the Commissioner and Mr. Struthers about 5 reciprocal disclosure, and -- and what we see, at least 6 at this stage, is that -- is a strategic approach where - 7 - where one isn't going to telegraph too much to Dr. 8 Smith as to where the defence is coming from. 9 So I'd be interested in -- in your 10 comments on that, why that strategic approach? 11 MR. BRUCE HILLYER: Well, certainly that 12 would be standard at the preliminary stage. Where -- 13 where you get into -- where I disagree with Mr. Struthers 14 is when you're -- when you're getting ready for trial. 15 MR. MARK SANDLER: All right, so -- so 16 we'll differ that discussion -- 17 MR. BRUCE HILLYER: Okay. 18 MR. MARK SANDLER: -- until a little bit 19 down the piece. 20 MR. BRUCE HILLYER: All right. 21 MR. MARK SANDLER: All right, but it's 22 standard practice in the -- in the Defence Bar not to 23 telegraph too much to the witness for the Crown who 24 you're cross-examining at the Preliminary Inquiry. 25 MR. BRUCE HILLYER: Well, I don't know

146

1 about the Defence Bar, it's just been my -- my experience 2 that -- well, it varies from case to case. Sometimes you 3 -- you would -- you would want to telegraph it, sometimes 4 you wouldn't, sometimes telegraphing is just not an 5 issue. It's just -- your -- your goal is just to find 6 out -- everything is case specific. 7 MR. MARK SANDLER: All right. 8 MR. BRUCE HILLYER: But in this case it 9 looks as though I -- I didn't want to telegraph, although 10 it seems kind of silly with the benefit of hindsight 11 because the issues were so simple and from a forensic 12 point of view in -- in this case. 13 MR. MARK SANDLER: Okay. And if you'd go 14 to Tab 16, Dr. Jaffe has written to you on January the 15 18th of 1997 and he says that he's going to try to answer 16 the questions that are reflected in your fax of the same 17 date, and he says: 18 "Obviously any reference to SIDS is to 19 be avoided. Dr. Smith does not refer 20 to SIDS in his autopsy report, but in 21 his interview with Staff Sergeant 22 MacLellan and Sergeant Blakely..." 23 and so on. 24 "The Crown is less aware of the 25 possibility of SIDS and may bring it up

147

1 in chief, even if this should happen I 2 would not cross-examine Dr. Smith on 3 SIDS at this time. We should get 4 together some time later and plan his 5 cross-examination at the trial." 6 And then he goes on to reflect his views 7 on the microscopic findings. He says that: 8 "The recent and remote hemorrhage into 9 the dura was clinically insignificant 10 and played no role on the death." 11 He says that: 12 "The congestion and hemorrhage in the 13 lungs is an indication of terminal 14 heart failure from any cause." 15 He says that: 16 "The avulsion fracture of the left 17 tibia showed microscopic evidence of 18 healing." 19 This is the evidence microscopically after 20 a few weeks. And he reflects that: 21 "Dr. Smith is clearly sitting on the 22 fence as far as the mechanism of death 23 is concerned. SIDS is now recognized 24 as the failure of the regulation of 25 respiration leading to terminal

148

1 asphyxial. I think during the 2 preliminary inquiry the defence should 3 take in rather than give out. Dr. 4 Smith cannot do you any harm. in fact, 5 the more he says about the possible 6 mechanism of death in this case the 7 more vulnerable will he be at the 8 trial." 9 And so on. And just -- just to clarify. 10 We've heard some evidence here, Mr. Hillyer, that -- that 11 strictly speaking, if one applies the definition of SIDS, 12 because there was a fracture here for example, albeit 13 unrelated healing and therefore unrelated to death, this 14 case could not be characterized or strictly characterized 15 as a SIDS case. 16 Nonetheless, there seems to be a lot of 17 talk as between you -- or at least on Dr. Jaffe's part 18 about it being a SIDS case. 19 What did you understand him to mean when 20 he was treating it as a case that could be promoted as a 21 SIDS case? 22 MR. BRUCE HILLYER: I -- we never had 23 that discussion about the distinction in the definition 24 that you've referred to. So I just assumed that it was 25 the mechanism of death that would fall into what Dr.

149

1 Jaffe's vision or version of SIDS was. 2 MR. MARK SANDLER: Which is -- 3 MR. BRUCE HILLYER: Sudden -- Sudden -- 4 MR. MARK SANDLER: Which is in essence a 5 crib death, as I understand it? 6 MR. BRUCE HILLYER: Yeah, an unexplained 7 death. Yeah. 8 MR. MARK SANDLER: Okay. Now, there's 9 some reference at Tab 13, just again proceeding 10 chronologically, to a telephone conference that took 11 place as between Dr. Jaffe and Lynne of your office with 12 respect to the skull fracture which Dr. Smith has found 13 on the slides. And Dr. Jaffe says this, according to 14 these notes: 15 "He was quite disturbed by this for 16 three (3) reasons. First, while it's 17 not uncommon for a careless pathologist 18 to miss a skull fracture when they're 19 looking at each section, this did not 20 happen -- this does not happen with a 21 pathologist of the calibre of Dr. 22 Smith. 23 Secondly, in the post-mortem report, 24 Dr. Smith specifically mentions that 25 there was no evidence of skull

150

1 fracture, which indicates that he 2 looked for it and found nothing. 3 Thirdly, sections are taken during an 4 autopsy after the skull has been opened 5 with saws and chisels. Dr. Jaffe wants 6 to speak to Bruce Hillyer about this." 7 What do you recollect about discussion 8 with Dr. Jaffe, if any, about the skull fracture? 9 MR. BRUCE HILLYER: I don't. At this 10 stage, I don't have any memory of it, other than it would 11 have been nonsense. 12 MR. MARK SANDLER: Okay. And then -- but 13 we actually see, if I can take you to Tab 7, and I 14 appreciate we're going back a long time. And I should 15 tell you that I'm taking you to more documents than you 16 saw me take Mr. Struthers to, because many of these 17 documents were made available from your file fairly 18 recently, and counsel here haven't -- haven't seen them 19 until several days ago. 20 So bear with me if you may. Some of them 21 -- a number of them are not in the overview report. 22 This appears to reflect a memorandum to 23 the file from you reflecting an interview with Dr. Jaffe 24 that took place on April the 3rd of 1997. And I'm going 25 to see whether aspects of it refresh your memory as to

151

1 what Dr. Jaffe had to say about some of the issues. 2 If you'd look at page 3 of this 3 memorandum. Near the bottom of the page it says: 4 "Slide number 36/35." 5 And you say: 6 "We're now looking at slide 36, which 7 shows me two things that I would say 8 look like Detroit Red Wings insignia." 9 And then there's a description of what 10 they are and how they were taken. 11 And then looking at page 5, middle of the 12 page, Dr. Jaffe says: 13 "So I agree, I don't know what this 14 could be except an old, almost totally 15 healed fracture. It isn't totally 16 healed because eventually the fibrous 17 tissue here is going to be replaced by 18 bone but that may take months." 19 And then you say: 20 "All right. So now as I look at 21 photograph number 1, I see in the 22 middle of it -- I'll call it a river -- 23 if we're looking at it like a picture. 24 What you do see on both sides of the 25 photographs are purple areas which are

152

1 bone but they're not connected. 2 They're disrupted, there's a gap and 3 that's the suture line in the middle of 4 the picture? 5 No, that's not the suture line, it's an 6 old fracture. 7 Okay. 8 But the fracture is, to use a popular 9 term, knitted, and this is a fibrous 10 tissue." 11 And then skipping down to the bottom of 12 page 6, you ask: 13 "When a child is born, okay, this is 14 not in a suture line, it's near a 15 suture line? 16 Yeah, it's near a suture line, that's 17 right. 18 But when we say "near," how close could 19 we be and not see it to the suture line 20 on this photograph?" 21 To answer that: 22 "I don't see the suture line here. He 23 doesn't describe it in detail where he 24 took it from but it was more or less a 25 random block that he took. He just

153

1 took it because he saw a little bruise 2 there. And so I agree with him to the 3 extent that this is an old fracture, 4 and I agree with him that it could be a 5 birth injury and he'll give you all 6 that, but what he will say is, Yeah, if 7 forceps were used then it probably was 8 from that and otherwise he doesn't know 9 what it's from. 10 So what we're talking about is a 11 fracture somewhere on top of the head? 12 Yeah, somewhere on top of the head." 13 Am I right that it appears that, first of 14 all, it appears that someone in your office has 15 transcribed the -- the interview that you conducted with 16 Dr. Jaffe? 17 MR. BRUCE HILLYER: Yeah, I -- I had a 18 dictaphone with me when I went to his house. 19 MR. MARK SANDLER: Okay. And second of 20 all, it would appear from this exchange that Dr. Jaffe 21 has now had an opportunity to review the slides that are 22 relevant to the Joshua case? 23 MR. BRUCE HILLYER: Yes. 24 MR. MARK SANDLER: And third, it would 25 appear that -- that he has expressed the opinion to you

154

1 that what Dr. Smith has characterized as a skull fracture 2 is indeed a -- an old skull fracture and not a suture, 3 even though -- you put that possibility to him in -- in 4 the course of your questioning, am I right? 5 MR. BRUCE HILLYER: Well, as you can see 6 from the -- from the tenor of my notes, or my questions 7 of Dr. Jaffe, I am questioning his view that this is a 8 fracture. See, I even -- I even challenged Dr. Jaffe, 9 because I had already run this by an orthopod in my city 10 and had shown him the x-rays, who, and I was -- I had -- 11 I was pretty confident it was a suture. It turned out it 12 was. 13 MR. MARK SANDLER: All right. Now if we 14 could move from there to page 9 of the same document, and 15 again in the middle of the page Dr. Jaffe says: 16 "So the good news is that the two 17 fractures, [and we -- we know there was 18 this ankle fracture that's been 19 identified and also this skull fracture 20 that Dr. Smith opines on, so the good 21 news according to Dr. Jaffe is that the 22 two (2) fractures] neither of which are 23 related to the death of the child, the 24 bad news is that they're there." 25 And again, that reflected, at least, Dr.

155

1 Jaffe's opinion, albeit you might have been sceptical 2 about the skull fracture, is that right? 3 MR. BRUCE HILLYER: Yeah. Yeah. 4 MR. MARK SANDLER: And finally, when 5 one's looking at -- at a summary of what he's had to say 6 here, if you'd look at -- a little bit further on, at 7 page -- sorry, at page 14, two-thirds of the way down the 8 page: 9 "There was nothing in this case Dr. 10 Jaffe says that you can point a finger 11 at and say, This is the cause of death. 12 Nothing. And Smith doesn't do that 13 either because he can't. Asphyxia is 14 the most abused word in forensic 15 medicine, it covers the ignorance of 16 the pathologist. 17 Petechial hemorrhages, you get those in 18 crib deaths. 19 There's nothing to indicate any way in 20 which asphyxia could have been brought 21 about this way. 22 If someone may have suffocated this 23 child by putting its head into bedding, 24 sure, I think it's possible and you say 25 that it did happen, you put a plastic

156

1 bag over the head and suffocate that 2 way, sure it's possible, but there's 3 nothing to indicate that. 4 Could it be crib death? 5 Sure it could. There's nothing anyone 6 can point at and say: This is the 7 cause of death." 8 And, again, that -- that reflected, as you 9 understood it, Dr. Jaffe's opinion arising from the 10 pathology? 11 MR. BRUCE HILLYER: At that point, yes. 12 MR. MARK SANDLER: All right. And then 13 at page 16, middle of the page, Dr. Jaffe: 14 "The big thing you have is that there's 15 no demonstrable cause of death. There 16 are inferential, like, Smith tends to 17 infer that there was some form of -- of 18 asphyxia but you could equally infer 19 that there was a crib death if these 20 fractures weren't there. But I have a 21 feeling that they're not going to give 22 you that much of a problem, because 23 they're not related to the death of 24 this child in any event. But I'm a 25 little bit afraid of you showing Smith

157

1 these photographs and getting into 2 pathological detail where he's on 3 strong ground." 4 And you say: 5 "I will show him absolutely nothing at 6 the preliminary inquiry. He will not 7 know, hopefully, where I'm going unless 8 I think I can move him to the point 9 where I can get this lady a discharge. 10 Because I'm telling you right now, 11 there's nothing or no evidence to 12 commit her for trial at this moment. 13 We were there for a week and there's 14 nothing." 15 "I think I told you before..." 16 Dr. Jaffe says: 17 "... as an outsider coming into the 18 case, the thing that really bothers me 19 more than anything else were the stupid 20 remarks to people, e.g., 'I will kill 21 my child'." 22 And if you go to page 19: 23 "Smith may -- may not -- may not make a 24 big deal about it." 25 You say:

158

1 "You never know but you expect he will 2 if he's done his homework. 3 Oh yes, he's good, yes. 4 No, no, but you would expect him to 5 make something out of it." 6 And just stopping there for a moment. 7 When one looks at Dr. Jaffe's comments throughout the 8 piece, did he evidence a -- a respect for Dr. Smith in 9 the work that he did? 10 MR. BRUCE HILLYER: He did. Well, I 11 don't know about -- I didn't get a sense that he 12 respected the work he did, but I got a sense he respected 13 his ability as a professional witness. 14 MR. MARK SANDLER: Okay. Now if we can 15 move from there to the preliminary inquiry, and -- and 16 I'm not going to take you through the preliminary inquiry 17 again. The Commissioner has -- has read it, and it's 18 been summarized in great detail in the overview report. 19 What I want to ask you is this, did Sherry 20 every admit guilt to you? 21 MR. BRUCE HILLYER: Never. 22 MR. MARK SANDLER: What position was she 23 taking as to what had transpired in the case? 24 MR. BRUCE HILLYER: She never hurt 25 Joshua, never -- never did anything unlawful to him. She

159

1 was convinced that he died either one (1) of two (2) 2 ways. Either the mould or he somehow suffocated in the - 3 - in the unconventional bed that she had just recently 4 put him in. 5 MR. MARK SANDLER: All right. And was 6 Dr. Jaffe present for Dr. Smith's testimony? 7 MR. BRUCE HILLYER: He was. 8 MR. MARK SANDLER: And we see that 9 actually Dr. Jaffe suggested that he should be present 10 during -- during that testimony, and was that an approach 11 that you agreed with? 12 MR. BRUCE HILLYER: I -- I would prefer 13 always to have -- yeah, I shouldn't say that. I don't 14 know who suggested that, whether it was him or I, but it 15 was a good idea. It was certainly one that I would like 16 -- it was a luxury I'd like to have in any case. 17 MR. MARK SANDLER: All right. And what - 18 - what was the reason why you wanted to have Dr. Jaffe 19 there? 20 MR. BRUCE HILLYER: Well, I -- either as 21 a -- primarily as it turns out, to keep Dr. Smith honest, 22 and to keep him on the straight and narrow and not off in 23 the ditch. And secondly, as a coach in case I missed 24 something. 25 MR. MARK SANDLER: All right. When you

160

1 say, "Keep him honest", I take it by that expression you 2 mean that -- that -- that having another expert 3 recognized by the witness in the box might assist in -- 4 in -- in causing the witness to be more restrained in -- 5 in -- in the testimony given? 6 MR. BRUCE HILLYER: Well, in this case, I 7 sort of got a hint from his -- from his report that -- 8 that -- that he was going to sort of maybe jump around a 9 bit, because he was -- he was sort of giving us little 10 bits of information and then I think, in writing, he -- 11 he said that -- that it was more probable than not that 12 this was an unlawful death or something without joining 13 any of the dots together, so. 14 MR. MARK SANDLER: All right. Where did 15 you think you were at at the end of the preliminary 16 inquiry? 17 MR. BRUCE HILLYER: I thought Smith 18 didn't hurt me. I thought he was -- he -- he didn't hurt 19 me. 20 MR. MARK SANDLER: All right. And you 21 say, he didn't hurt you, is that a reflection of the 22 various qualifications that he placed upon the opinion 23 that he -- that he gave? 24 MR. BRUCE HILLYER: I think he just held 25 back. I think he -- I think -- I personally think it's

161

1 because Jaffe was sitting there that he just -- and I -- 2 we know from the benefit of hindsight that he didn't say 3 what Sheila Walsh had -- had anticipated he would say. 4 So he must have communicated a more 5 aggressive approach in his consultation with the Crown 6 ahead of time. 7 MR. MARK SANDLER: Well, at least, as she 8 perceived it? 9 MR. BRUCE HILLYER: Yeah. 10 MR. MARK SANDLER: So when you look at 11 the merits of the case, here you were at the end of the 12 preliminary inquiry, and I'll -- I'll take you to the end 13 of the period where you successfully brought a certiorari 14 to -- to quash the first degree charge, and the second 15 degree charge was substituted. 16 How did you feel about the strength of the 17 defence case? 18 MR. BRUCE HILLYER: On the medical side, 19 I -- well it -- it -- the problem was from my experience 20 as a jury trial lawyer, you know, the -- the unknown is 21 there. 22 I mean, I -- I had -- it was going to come 23 down to my client's word against a fellow like Smith who, 24 as Mr. Struthers says, was very articulate, well spoken, 25 good posture; would quickly, as you can see from the

162

1 transcript, go off on tangents, and talk about other 2 issues with some purported degree of expertise. 3 And, you know, that was -- it was going to 4 be -- I was troubled by -- by it, but I was -- 5 academically, I wasn't worried about the medicine, 6 assuming I had a trier of fact that could cut the wheat 7 from the chaff. I guess I was worried a jury might not 8 be able to do that. 9 MR. MARK SANDLER: All right. Did you 10 have any dialogue with Dr. Smith outside of the courtroom 11 prior to, during, or after the preliminary inquiry? 12 MR. BRUCE HILLYER: I don't think so. 13 MR. MARK SANDLER: All right. 14 MR. BRUCE HILLYER: But I did with the -- 15 with the preliminary hearing judge. 16 MR. MARK SANDLER: All right. 17 MR. BRUCE HILLYER: The only reason I 18 mention that is that he was -- he took me aside 19 afterwards, and it's a very small town; very small 20 courtroom; and said, You know, Dr. Smith's a very good 21 witness, and they were -- he was very proud of him. I 22 guess Dr. Smith -- I don't whether he'd done any -- any 23 of his work down in the Belleville area, but they -- he 24 was certainly well known down there. 25 And you know, it was just more information

163

1 to assimilate. He was -- the judge was encouraging me to 2 enter into plea negotiations with -- with the Crown. 3 MR. MARK SANDLER: All right. 4 MR. BRUCE HILLYER: Who I understood he 5 was -- he jogged with. 6 MR. MARK SANDLER: All right. I mean, 7 you're not suggesting anything improper -- 8 MR. BRUCE HILLYER: No, not at all. No, 9 no. I have high regard for Ms. Walsh. She handled 10 herself very well. 11 MR. MARK SANDLER: Okay. Now if you'd go 12 to page 87 of the overview report which is back at Tab 1 13 of your Volume I. 14 15 (BRIEF PAUSE) 16 17 MR. BRUCE HILLYER: Is that a PEP-87? 18 MR. MARK SANDLER: That's right. 19 MR. BRUCE HILLYER: I'm sorry, what 20 paragraph number? 21 MR. MARK SANDLER: And if you go -- well 22 we'll go to paragraph 174, if we may. It starts at page 23 86, at the bottom of the page. 24 MR. BRUCE HILLYER: Yes. 25 MR. MARK SANDLER: And it reflects that

164

1 on October 15th of 1998, Ms. Walsh sent a memorandum to 2 Staff Sergeant MacLellan in which she stated: 3 "Since our last conversation, I've 4 spoken to Bruce Hillyer about our offer 5 of a plea of guilty to infanticide. 6 Today, he agreed to give a firm answer 7 by November 15. By that time, he 8 should be able to have arranged for a 9 psychiatric evaluation of Sherry to 10 canvass the issues relevant to 11 infanticide which will hopefully also 12 address sentencing issues and to meet 13 with her." 14 Were discussions taking place as between 15 you and Sheila Walsh about a potential resolution to 16 infanticide? 17 MR. BRUCE HILLYER: Well, how that all ar 18 -- we'd already had a pretrial -- a judicial pretrial -- 19 where we were talking about the length of the trial, 20 whether there would be challenge for cause. 21 I think challenge for cause was more -- 22 more liberal then, than it is now. There was a window of 23 time where it was, anyway. And we may have had 24 discussions then, but I indicated there would be no plea 25 being offered.

165

1 And as we got closer to -- to the trial 2 date, I think Sheila called me, and asked me to -- I 3 think her first -- asked me to consider was manslaughter, 4 and I -- I just -- I said I'll pass it on, but I don't -- 5 I'm sure the answer will be no, and it was. 6 And then she called back, and surprisingly 7 said, Well you gotta give me something. She was very 8 uneasy about -- about prosecuting the case. And I said, 9 Well, I don't know what it could be. 10 And, so I said, But I'll have a look, 11 which was sort of -- I sort of didn't think that it would 12 amount to anything. 13 And then I started wandering through the - 14 - the criminal code, and the charge of infanticide caught 15 my attention, because I'd never dealt with it before. 16 And the only way I could even think that 17 it would possibly be an appropriate charge would be on 18 the basis that my client had -- was well aware of the 19 health problems the child was having, and she, in fact, 20 had gone out of her way to report the matter to the 21 landlord, to the local health authorities, but she was a 22 single -- single mother on, I believe, social assistance, 23 you know, very -- very -- not very -- no resources. 24 And then we got to the -- and in 25 discussions with the bedding, she was concerned that

166

1 maybe all these loose sleeping bags and blanket was -- 2 wasn't an appropriate way to deal with -- to deal with 3 bedding for such a young child, because I think the baby 4 had just moved from a -- from a crib setting into this -- 5 into this more unconventional setting. 6 And, you know, she was communicating to 7 me, if only I had gotten up in the night or whatever, and 8 -- and that was the only way I could -- I could even 9 justify it in my own mind, and without speaking to my 10 client, I communicated that to Ms. Walsh. 11 MR. MARK SANDLER: And just stopping 12 there for a moment. What I -- what I'm hearing you 13 saying is that a plea of guilt based upon omission as 14 opposed to commission. 15 MR. BRUCE HILLYER: Right. 16 MR. MARK SANDLER: Okay. 17 MR. BRUCE HILLYER: Yes. And Ms. Walsh 18 came back and said, No, she would insist on -- on 19 commission, and so I -- I just said, Well, is -- are you 20 saying you'll do that? And she said she would, so I 21 said, Well, I'll put it to -- I'll put it to my client. 22 MR. MARK SANDLER: Now, just stopping 23 there for a moment. Just to be clear, who had initiated 24 this discussion as to possible resolution? 25 MR. BRUCE HILLYER: The Crown.

167

1 MR. MARK SANDLER: And you said that she 2 had some discomfort or expressed some concern about -- 3 about the case. Did she tell you what it was that -- 4 MR. BRUCE HILLYER: No. 5 MR. MARK SANDLER: -- caused that -- 6 MR. BRUCE HILLYER: I mean I didn't -- I 7 didn't understand what was going on then, what -- what 8 I've seen here now. I just assumed it was -- well, I 9 hoped, I guess, in a perfect world that she thought that 10 the medical evidence was not going to go very far. 11 There were some evidentiary issues that 12 were going to get revisited at the trial with respect to 13 the KGB statements that we had -- we had spent all our 14 time on at the preliminary hearing, virtually, anyway, or 15 was she just was feeling sorry for my client; I didn't 16 know -- I didn't know what it was. 17 MR. MARK SANDLER: All right. 18 MR. BRUCE HILLYER: But it was just a 19 desire to -- to find a resolution that was nowhere near 20 manslaughter or murder. 21 MR. MARK SANDLER: So, could -- could you 22 give the Commissioner a sense, first of all, of -- of how 23 the conversation then went with your client that 24 ultimately resulted in what transpired in Court? 25 MR. BRUCE HILLYER: Yeah, well, this is -

168

1 - I know it was -- it was re -- I think it was recorded 2 somehow, but it was done in Mr. Bonn's office. I asked 3 that -- that my client and -- and her parents go into Mr. 4 Bonn's office in Trenton and that -- 5 MR. MARK SANDLER: Mr. Bonn was who? 6 MR. BRUCE HILLYER: He was the lawyer 7 whose office had asked me to help. 8 MR. MARK SANDLER: All right. 9 MR. BRUCE HILLYER: For lack of a better 10 description, the solicitor. And I was on the line at the 11 other end and I put to -- I put them -- I put the options 12 to my client, discussed the -- what -- what the -- what 13 could happen. 14 And I'm assuming she made the decision 15 right away, but I'm not sure, but she made it clear that 16 she would not plead guilty to anything. And so -- and I 17 don't know whether it was during that phone call or 18 whether it was later -- I assume it was during that phone 19 call because I've -- I've done a lot of work in the 20 states. I'm a member of the Board of Governors of the 21 American Trial Lawyers Association, which is now the 22 American Association for Justice. 23 And I've par -- taken part in their -- not 24 only their civil sections, but their criminal sections, 25 as well, and I was always interested in this nolo

169

1 contendere or whatever they call it down there, nolo 2 pros. 3 And I ran it by my partner of the day, 4 who's now Justice Forsyth, who actually wrote a paper on 5 -- on the need for -- in the Criminal Lawyers Quarterly, 6 I think, on the need for a nolo pros procedure, because, 7 of course, I had to face -- I had to look myself in the 8 mirror when -- at the end of the day and hope I had done 9 the right thing. 10 And -- and then I called -- I think I must 11 have gotten instructions that if -- if we can do it that 12 way, she would do it, and then I contacted Ms. Walsh and 13 put that proposal to her which she accepted. 14 MR. MARK SANDLER: All right. Had -- 15 throughout the process, up to and including the time that 16 the case was dealt with in Court, did the client ever 17 admit guilt? 18 MR. BRUCE HILLYER: No. 19 MR. MARK SANDLER: And did you have a 20 sense of the factors that informed her decision to 21 proceed by way of nolo contendere rather than to proceed 22 to trial? 23 MR. BRUCE HILLYER: Could you say that 24 again, please? 25 MR. MARK SANDLER: Did you have a sense

170

1 or did you discuss with her what factors informed her 2 decision to take that offer? 3 MR. BRUCE HILLYER: I guess it would just 4 be a fear of going to trial and being found guilty of 5 second or manslaughter and having an extensive period of 6 -- a far more lengthy period of time in jail. 7 MR. MARK SANDLER: Okay. Now, if you go 8 to -- well, I'll ask you this. It's probably implicit, 9 if not explicit, in what you've already said, but you had 10 consulted Dr. Plunkett; you'd consulted Dr. Jaffe. We've 11 heard what Dr. Jaffe had had to say about the case. 12 What level of confidence did you have in 13 ultimate success on the murder trial, had it proceeded to 14 trial? 15 MR. BRUCE HILLYER: I had a good level of 16 confidence on the medical evidence. What I didn't have a 17 good level of confidence on was in my client. She was 18 extremely stressed and upset over the events surrounding 19 the death of Joshua. 20 She -- you've got to appreciate the -- 21 this is a small town. The Children's Aid had -- first of 22 all, the fact that anyone would think that -- that she 23 killed her child; second of all, the Children's Aid had 24 taken away her -- her other child. 25 She was -- I won't say irrational, but she

171

1 was -- she was difficult. It was very difficult to sort 2 of communicate effectively with her in a very logical -- 3 logical sense, because she was consumed with -- with all 4 the emotional, whether it was guilt in her mind for not 5 having gotten up that night or whether the way the bed 6 was made, or whether it was the social pressure that she 7 was -- she was getting from the community. 8 She was telling me stories about people 9 making fun of her and speaking unkindly of her. She was 10 really in a mess intellectually and emotionally, in terms 11 of making decisions which is why I insisted that she have 12 her parents there and Mr. Bond, the solicitor, to 13 hopefully, effectively communicate what the options were. 14 I mean, if -- at the end of the day, 15 looking forward in the crystal ball, you don't know how a 16 jury is going to perceive something. I've got Doctor -- 17 or I've got Judge Hunter telling me what a great witness 18 this guy is; Jaffe is telling me what a great witness he 19 is. I hadn't -- I didn't dance with him at the 20 preliminary because -- I was ready to. If you see in the 21 material, I had a whole pile of medical stuff I was ready 22 to go at him with, but he didn't -- he didn't hurt me in- 23 chief. I just drew a circle around him and left him 24 alone. 25 So I was reasonably confident, but it's

172

1 not me that has to do the time, so I wasn't prepared to 2 recommend that she gamble. 3 MR. MARK SANDLER: All right. If you go 4 to page 100 of the overview report, we see that paragraph 5 199, that on September the 7th of 2005 you drafted a 6 letter on Sherry's behalf to assist her with the family 7 law proceedings. And you reflected: 8 "I was quite perplexed in representing 9 her about whether or not the Crown 10 could establish that her child had, 11 indeed, died as a result of an unlawful 12 act. The Crown's case rested primarily 13 on the opinion of Dr. Smith, the 14 forensic pathologist with the Centre of 15 Forensic Sciences in Toronto, who, at 16 the time, had a very high reputation in 17 his field. In preparing the defence, I 18 had commissioned opinions from Dr. 19 Jaffe, a forensic pathologist from 20 Toronto, and I also consulted with 21 American doctors who I spoke with on 22 the telephone. They were all deeply 23 troubled by what Dr. Smith reported 24 but, in essence, they deferred to him, 25 with the exception of Dr. Jaffe, with

173

1 respect to his conclusions and 2 findings." 3 Just stopping there for a moment. Does 4 that assist in refreshing your memory as to what you 5 might have received from -- from those other than Dr. 6 Jaffe about the case? 7 MR. BRUCE HILLYER: Not really. 8 MR. MARK SANDLER: Okay. 9 MR. BRUCE HILLYER: Don't forget, I wrote 10 that letter in '05, so. Yeah, I'm not so sure that that 11 comment is correct; it may be but I don't know. 12 MR. MARK SANDLER: And then you reflect: 13 "Faced with the prospect of a 14 conviction and all that flows from 15 that, I vigorously represented Sherry, 16 and at the eleventh hour, the Crown's 17 office, no doubt for good reasons, 18 elected to resolve the matter by way of 19 a plea for the rarely used charge of 20 infanticide on the basis that at the 21 time, Sherry was suffering from post 22 partum depression. The compromise was 23 seen as a way out for both sides. The 24 Crown fearing they couldn't get a 25 conviction of any kind, and the defence

174

1 fearing a conviction for murder, while 2 not justified, would result in a 3 lengthy period of incarceration." 4 And then you reflect some of the 5 psychological or psychiatric opinions that were rendered, 6 and then you say: 7 "Some cases come back to haunt you, and 8 this is one (1) of them." 9 And then you reflect certain -- more 10 recent information that have cau -- that has called into 11 question Dr. Smith's testimony, and you say: 12 "It's far to late to ever know what 13 happened -- really happened with 14 respect to the death of Sherry's child, 15 but I'd like to think in all the 16 circumstances, and in particular, with 17 respect to the reports that I have 18 enclosed and were commissioned so many 19 years, that one (1) shouldn't have any 20 concerns now. In my view, even then 21 with respect to Sherry's ability to 22 look after a child and to be a loving 23 and caring mother." 24 And did that represent your views of the 25 case?

175

1 MR. BRUCE HILLYER: It certainly did. 2 MR. MARK SANDLER: Now, one (1) of the 3 things I just want to ask you about very briefly, and I 4 won't take you to all the documentation, but it would 5 appear that -- that the various psychologists, or 6 psychiatrists weighed in on Sherry's case, gave some 7 conflicting views on -- on how to analyze her situation. 8 And -- and am I right that one (1) of the 9 factors that appears to explain some of the different 10 views is -- is how to reconcile what it was that she had 11 been found guilty with, with her continuing denial that 12 she had committed the offense? 13 MR. BRUCE HILLYER: I -- yeah. I -- 14 yeah, it -- it's hard for me to answer that question. I 15 mean, it -- I suspect the -- the doctors must have 16 assumed that -- that she smothered her child and that 17 they were sort of working with that as part of their 18 hypothesis. 19 With -- and -- and they were struggling 20 with coming up with a -- with a diagnosis. This -- 21 MR. MARK SANDLER: And we also see that 22 the presiding justice appeared to rely upon the absence 23 of remorse in determining what the appropriate sentence 24 was. 25 Am I right?

176

1 MR. BRUCE HILLYER: Yes. In fairness to 2 Justice Byers, she was very -- I don't know whether you 3 know this, but once this became known about Dr. Smith and 4 this -- and this case has been back in the news, was -- 5 I'm told publically commented on it in the local media 6 down in Trenton, and sort of regretted the way that it 7 had all unravelled. 8 MR. MARK SANDLER: All right. Based upon 9 your experience in -- in this case, and -- and your 10 experience as a defence counsel in the various cases that 11 you've described earlier, are there any recommendations 12 that you'd like to put to the Commissioner for his 13 consideration? 14 MR. BRUCE HILLYER: Well, I -- I would 15 join with -- with what Mr. Struthers said in -- in terms 16 of the funding for -- for the defence of -- of these 17 cases. 18 I -- I'm in -- sort of in a different 19 spot, because I've left the exclusive area of criminal 20 law, and I've gone into what can be and often is a far 21 more lucrative area of the law, and -- and all of the 22 cases that I've been doing -- much of what I did, I did 23 on my own nickle. 24 I mean there were -- there was -- I had 25 the resources to -- to not be so concerned about -- about

177

1 the fees, but my goodness, the -- there are so many 2 people that -- that need to have skilled criminal 3 representation. 4 I want -- I would add, though, that I 5 think that if we're going to be doing -- if -- as a 6 criminal lawyer, if you're gong to be doing this kind of 7 work, there's a lot of medicine you've got to learn. 8 And -- and you -- and you -- the other 9 recommendation that's got nothing to do, I don't think, 10 with where -- what you're mandate is, but I -- I just -- 11 I'll join with what John said. 12 Why is it us, the defence lawyers, who 13 have no -- we were trained in the law -- who have to 14 research the medicine to -- to prove that the opinions 15 that are -- at least, back in that era, were -- were 16 nonsense. 17 Whatever happened to differential 18 diagnosis? It just amazes me that experts can be -- can 19 be sought out, especially in this other case I had, where 20 -- where Dr. Cairns brought in those three experts in the 21 middle of my trial, and gave them little pieces of 22 information, and bingo, they're up there on their feet 23 espousing -- expousing (phonetic), whatever the word is, 24 what turns out to be medical nonsense. 25 I mean, it's a very dangerous area and --

178

1 and you have to be ready, willing and able to combat it. 2 You got to put in a lot of time. You never get -- I 3 never got compensated for anywhere near the hours that I 4 did, even at the Legal Aid rate. 5 I mean, there's caps on it and you just 6 have to be interested in it and you have to want to do it 7 for the -- for the client. Each of the three (3) that 8 I've been doing, I don't do very much Legal Aid anymore 9 at all, it's all been because of requests from friends. 10 The one that -- the shaken baby case was 11 the chief of staff at Joe Brant Hospital who he saw an 12 injustice, and he asked me to take it on. 13 And so -- but there has to be -- the 14 lawyers have to be paid a whole lot more, and experts. I 15 mean, Dr. Leetsma, when I first told him what Legal Aid 16 was going to pay him, you know, he told -- I think his 17 rate back then was three hundred ($300) U.S. an hour. 18 The man owns his own hospital in Chicago and I think it 19 was a hundred bucks ($100) Legal Aid was offering an hour 20 with caps on it. 21 And -- but there's -- there's a real 22 doctor. There's a guy who -- who -- he's -- he's good, 23 he's really good. And he -- and he questions everything. 24 COMMISSIONER STEPHEN GOUDGE: Can I ask 25 you, Mr. Hillyer, in your civil work you would have --

179

1 you'd be very familiar with experts from both sides -- 2 MR. BRUCE HILLYER: Yeah. 3 COMMISSIONER STEPHEN GOUDGE: -- getting 4 together beforehand? 5 MR. BRUCE HILLYER: Yeah. 6 COMMISSIONER STEPHEN GOUDGE: And the 7 justice system is working now towards the point of that 8 being a matter of compulsion, you know, you read Justice 9 Osborne's report and stuff like that. 10 How does that work in the civil context in 11 terms of the objective of narrowing the issues between 12 the experts and providing an ultimate truth seeking and 13 methodology? 14 MR. BRUCE HILLYER: Well, the way it's 15 working in practice now is, because of mediation, both 16 sides -- there are many cases where I have brought 17 experts to mediation, and so does the other side. And 18 that -- 19 COMMISSIONER STEPHEN GOUDGE: I take it 20 because it may well be helpful? 21 MR. BRUCE HILLYER: Right. Well, the man 22 who is writing the cheque or the lady who is writing the 23 cheque for the insurance industry needs to get a 24 firsthand feel of how this case is going to turn. 25 Mediation gives you a great opportunity to

180

1 do that in the civil context; whether it's -- 2 COMMISSIONER STEPHEN GOUDGE: Would you 3 transport it to the criminal context? 4 MR. BRUCE HILLYER: You know, I'd love 5 to, in a perfect world. But my experience with -- with 6 trying to give defence disclosure in the criminal field 7 varies widely. It depends on the case. It depends on 8 the Crown's office you're dealing with. 9 If, for example, the different -- 10 certainly, there are some jurisdictions where I would 11 gladly sit down and meet with the Crown and show them 12 what I have, and there's others where I wouldn't because 13 I'm going to be faced with -- they're just going to 14 scramble and grab three (3) or four (4) more experts that 15 I can't afford, and -- and I'm going to get overwhelmed 16 by it. 17 So I'd rather face the -- face the problem 18 of complying with the current rules and giving them the 19 CV and giving them the outline at the last minute. And 20 if -- if I have to face an adjournment mid trial, I'll do 21 it. 22 COMMISSIONER STEPHEN GOUDGE: Okay. What 23 if they were a roster of somehow accredited experts that 24 could be resorted to by the defence and the criminal bar? 25 Would that help balance the scales of expertise?

181

1 MR. BRUCE HILLYER: It wouldn't hurt. 2 COMMISSIONER STEPHEN GOUDGE: What do you 3 say? I didn't ask you, Mr. Struthers. Do you have any 4 views on that? 5 MR. JOHN STRUTHERS: But who does the 6 accrediting? 7 COMMISSIONER STEPHEN GOUDGE: Well, there 8 are a variety of alternatives but assume that 9 accreditation in some kind of generally agreed way could 10 be resorted to. 11 MR. JOHN STRUTHERS: The problem is that, 12 right now, the Centre of Forensic Sciences is that way. 13 We can go to them. 14 COMMISSIONER STEPHEN GOUDGE: Right. 15 MR. JOHN STRUTHERS: We can refer our 16 issues to them. 17 COMMISSIONER STEPHEN GOUDGE: Right. 18 MR. JOHN STRUTHERS: But it's mandatory 19 that they will disclose whatever they have to the Crown. 20 So we can't consult with the Centre of Forensic Sciences 21 on a private basis. You can't get their opinion and walk 22 away with it. It's basically handing it to the Crown at 23 this point whether you like it or not. 24 Depends who's doing the accrediting. And, 25 you know, we are in an adversarial system and we're

182

1 trying to plug in experts who are not supposed to be 2 adversaries. And it's -- it's a contradiction. This 3 isn't a mediation, this is -- this is -- 4 COMMISSIONER STEPHEN GOUDGE: But somehow 5 that circle has to be squared a little better, doesn't 6 it? 7 MR. JOHN STRUTHERS: It does. 8 Absolutely. Quite right. 9 COMMISSIONER STEPHEN GOUDGE: Yes, yes. 10 MR. JOHN STRUTHERS: And if we had -- you 11 know, if there was a viable accreditation process and 12 there was a panel of experts that were available, it 13 couldn't hurt us. But whether we'd be able to use them 14 with the, you know, automatic disclosure of anything we 15 give them is another question. 16 COMMISSIONER STEPHEN GOUDGE: Okay. 17 Thanks. 18 MR. BRUCE HILLYER: There are some States 19 in the United States, in the field of medical 20 malpractice, where you can't get your case to trial until 21 it's been run by a panel just like that. And that works 22 very well. That cuts out -- that takes a lot -- it gets 23 a lot of cases resolved. 24 And you could do something like that 25 maybe, but...

183

1 COMMISSIONER STEPHEN GOUDGE: Okay. And 2 I'll ask Mr. Gorrell when his turn comes. 3 MR. MARK SANDLER: All right. 4 Commissioner, -- 5 COMMISSIONER STEPHEN GOUDGE: One 6 o'clock? 7 MR. MARK SANDLER: -- I'm about to turn 8 to Mr. Gorrell. What I'm going to suggest is we're a 9 little bit behind time, but we've done a lot this 10 morning. I'd suggest perhaps a shorter lunch break and 11 come back at 2:00. 12 COMMISSIONER STEPHEN GOUDGE: Come back 13 at 2:00? Very well, rise till two o'clock. 14 15 --- Upon recessing at 1:00 p.m. 16 --- Upon resuming at 2:02 p.m. 17 18 THE REGISTRAR: All rise. Please be 19 seated. 20 COMMISSIONER STEPHEN GOUDGE: Mr. 21 Sandler...? 22 MR. MARK SANDLER: Thank you, 23 Commissioner. 24 COMMISSIONER STEPHEN GOUDGE: Now as all 25 of you know, we are going to have to move smartly this

184

1 afternoon. We have a very, very full afternoon, and I am 2 afraid I have not been able to accommodate all of the 3 requests for cross-examination, but we still have a full 4 afternoon. 5 So away you go, Mr. Sandler. 6 7 CONTINUED BY MR. MARK SANDLER: 8 MR. MARK SANDLER: Thank you. Mr. 9 Gorrell, we know from the materials that have been filed 10 here that -- that Gaurov died in Toronto on March the 11 20th, 1992, at the age of five (5) weeks. 12 Due to suspicions about his death, his 13 older brother was apprehended by CAS on that same date. 14 We also know that on June the 16th of 1992, the report of 15 post-mortem examination prepared by Dr. Smith was issued. 16 I'm going to take you to the overview 17 report if I may, which is at Tab 1 of your materials. 18 And if you'd go to PFP143828, at paragraph 59, and you'll 19 see paragraph 59 is at page 32 of the overview report. 20 MR. DAVID GORRELL: Thank you. 21 MR. MARK SANDLER: And you'll see that on 22 June the 26th of 1992, there was a meeting involving Dr. 23 Smith, Constable Line, Detective Rolf Prisor, and -- 24 Prisor, and Crown counsel, Mary Hall and Sandra Kingston. 25 Just stopping there for a -- for a moment.

185

1 First of all, what was Ms. Hall's position back in June 2 of 1992, as you understand it? 3 MR. DAVID GORRELL: I believe she was the 4 -- either a Bureau Chief, or a Crown attorney, an 5 independent Crown attorney. I'm not sure if Scarborough 6 had been hived off yet, and made into a -- a 7 jurisdiction for a separate Crown. But she was the head 8 person. 9 MR. MARK SANDLER: And were you aware of 10 what, if any, role she played in the Gaurov case? 11 MR. DAVID GORRELL: Well, she would 12 obviously supervise. She did participate in the -- in a 13 judicial pretrial that we had on October 22nd of 1992, 14 but that was simply because the assigned Crown, I 15 believe, was not available. 16 MR. MARK SANDLER: And that was Ms. 17 Koehl? 18 MR. DAVID GORRELL: Ms. Koehl, yes. 19 MR. MARK SANDLER: And you see from the 20 overview report that that meeting involving the police 21 and Crown counsel and Dr. Smith took place on June the 22 26th, and the overview report reflects that, according to 23 a police report, Dr. Smith confirmed his diagnosis of 24 Shaken Baby Syndrome, and added that the injuries 25 probably resulted from continuous shaking as opposed to a

186

1 single violent shake. 2 We also know, Mr. Gorrell, that on June 3 the 29th of 1992, Gaurov's father was arrested for second 4 degree murder, some three (3) days later. 5 MR. DAVID GORRELL: Yes. 6 MR. MARK SANDLER: And the bail hearing 7 took place on July the 10th - 8 MR. DAVID GORRELL: Yes. 9 MR. MARK SANDLER: -- and were you 10 involved in the bail hearing? 11 MR. DAVID GORRELL: I became involved on 12 July 2nd. The case first went to Dhamen Kissoon -- K-I- 13 S-S-O-O-N, who had gone to the bar in 1989, and he 14 retained me to lead on the defence. And I became 15 involved on June 30th. 16 And we worked on preparing the necessary 17 affidavits and so on for the bail hearing from June 30th 18 on. 19 MR. MARK SANDLER: All right. 20 MR. DAVID GORRELL: Until July 10th. 21 MR. MARK SANDLER: And we know from the 22 materials that have been filed that the Crown consented 23 to the release of your client on bail, pending trial. 24 Am I right? 25 MR. DAVID GORRELL: Yes.

187

1 MR. MARK SANDLER: And I want to ask you 2 about a conversation that your dockets reflect took place 3 with Rita Koehl on the same date of the bail hearing, 4 June -- July the 10th. 5 MR. DAVID GORRELL: Yes. 6 MR. MARK SANDLER: Tell us what 7 transpired. 8 MR. DAVID GORRELL: This is a -- a case 9 that's sixteen (16) years ago, and therefore, I'm relying 10 heavily on the notes that were found in Mr. Kissoon's 11 file. My own file isn't -- is no longer available. 12 According to the dockets and the notes 13 that I have here, on the day of the bail hearing, Ms. 14 Koehl, with Sergeant Prisor, I think, present, discussed 15 with me the possibility of a resolution by way of plea to 16 something possibly for no time. 17 MR. MARK SANDLER: All right. And how 18 did you react to the fact that on a murder case, the 19 Crown had initiated a discussion with you that involved a 20 potential plea for -- for no time? 21 MR. DAVID GORRELL: I was surprised. 22 MR. MARK SANDLER: And did you have any 23 explana -- or was any explanation given to you as to why 24 the Crown was taking that position as -- that early and 25 at that stage in the proceedings?

188

1 MR. DAVID GORRELL: Not that I recall, 2 and I would not have asked. You don't look a gift horse 3 in the mouth. 4 MR. MARK SANDLER: All right. And 5 similarly, I see that, as you've indicated, there was a 6 consent to your client's release on bail, pending trial. 7 MR. DAVID GORRELL: Yes. 8 MR. MARK SANDLER: Was that in your 9 experience usual for a murder case? 10 MR. DAVID GORRELL: John would be better 11 to ask. I haven't done nearly as many as he has, but you 12 can get consent releases on murders, and I think this 13 would have been a case where you could have. 14 MR. MARK SANDLER: All right. Now, just 15 seeing what, if anything, we can figure out about -- 16 about why the Crown was motivated to proceed in the way 17 it did. 18 I want to ask you about something that you 19 may or may not know about, and that is, we've heard some 20 evidence here, Mr. Gorrell, that on January -- in January 21 of 1992, that same year -- a conference -- a case 22 conference was conducted at the Hospital for Sick 23 Children in connection with the Amber case, and it arose 24 out of the comments that Justice Dunn had made about the 25 Hospital for Sick Children witnesses, including Dr.

189

1 Smith, at -- at that trial, and we also know that in 2 January of 1992, Ms. Hall and Ms. Kingston participated 3 in that conference. 4 Two (2) questions arising out of that. 5 Did either Ms. Hall or Ms. Kingston, or anyone else from 6 the Crown's office have any discussions with you about 7 the Amber case and its impact upon the Gaurov case? 8 MR. DAVID GORRELL: No. 9 MR. MARK SANDLER: Were you aware that -- 10 that the Crowns, including Ms. Hall, had participated in 11 a case conference in connection with the Amber case 12 before the Gaurov case had taken place? 13 MR. DAVID GORRELL: No. 14 MR. MARK SANDLER: All right. 15 MR. DAVID GORRELL: All right, let me 16 rephrase that. I know that they met again, I think, on 17 June the 26th about this case, about the -- the Gaurov 18 case, but I was unaware of this meeting. I have the 19 notes in front of me here. I've seen them today for the 20 first time. 21 I was unaware of this meeting on January 22 30th, 1992. 23 MR. MARK SANDLER: All right. And you've 24 made reference to -- to the meeting that took place here 25 and -- and I've made reference to the Crown, so just

190

1 taking you to page 32, paragraph 59, that's the reference 2 that I took you to a little bit earlier of the meeting 3 that took place involving Dr. Smith, the police, Ms. 4 Hall, and Ms. Kingston. 5 Am I right? 6 MR. DAVID GORRELL: Yes. 7 MR. MARK SANDLER: And were you aware 8 that -- that that conference had taken place prior to the 9 laying of the charges? 10 MR. DAVID GORRELL: I don't think so. 11 It's been a long time ago, but I don't think I was aware 12 of that meeting, and I don't think I had the police notes 13 of it. I do have the original disclosure here from 1992, 14 and the summary that is -- is available in these 15 materials is not in that disclosure. 16 MR. MARK SANDLER: Okay, and leaving 17 aside your awareness of the June 26th, 1992 meeting, you 18 earlier indicated that you were the one that actually 19 gave Mr. Struthers a copy of the Amber decision, and this 20 would be sometime later on. 21 MR. DAVID GORRELL: Yes. 22 MR. MARK SANDLER: Were you even aware of 23 the Amber decision back in June of 1992 or during the 24 currency of your involvement in the Gaurov file? 25 MR. DAVID GORRELL: No, I was not.

191

1 MR. MARK SANDLER: Was it something that 2 you would have been like -- that you would have liked to 3 have been aware of? 4 MR. DAVID GORRELL: Oh, yes. 5 MR. MARK SANDLER: All right. Now, what 6 I want to do is ask you how we get from the period of 7 time that we're now discussing, namely July of 1992, when 8 the bail hearing takes place, and initial discussions 9 take place with Ms. Koehl to what, ultimately, happens in 10 Court on December the 3rd of 1992. 11 So, tell us where it went from that, Ms. 12 Koehl initiated this discussion. What did you do with 13 it? 14 MR. DAVID GORRELL: I see on July 27th we 15 attended to speak to the matter -- I attended to speak to 16 the matter in Provincial Court, and I see we were engaged 17 with Legal Aid getting various authorizations. 18 On August 27th, the letter was faxed to me 19 from Ms. Koehl. I think a copy's been made available to 20 you. 21 MR. MARK SANDLER: All right, and if we 22 could just ask the Registrar to put the August 27th 23 letter up on the screen. This is one (1) of the 24 documents that came from -- 25 MR. DAVID GORRELL: Mr. --

192

1 MR. MARK SANDLER: -- the file of Mr. 2 Kissoon, am I right? 3 MR. DAVID GORRELL: Correct. 4 MR. MARK SANDLER: All right. You go 5 ahead. 6 MR. DAVID GORRELL: And this letter came, 7 I -- I don't have it right in front of me unless it's up 8 on the board. 9 MR. MARK SANDLER: It will come up on the 10 screen in a moment. 11 MR. DAVID GORRELL: All right. No. It 12 will be on a Ministry of the Attorney General letterhead. 13 That's it. 14 This is the letter that was faxed to my 15 then fax number. She talks about our meeting, or our 16 discussion on June the 10th, but that's a mistake, she 17 means July the 10th, and therein, she says: 18 "I offered your client a guilty plea to 19 criminal negligence causing death." 20 And then she goes on to say: 21 "This is a time limited offer." 22 And she wants an answer by September 1st, 23 which would have been five (5) days later. 24 MR. MARK SANDLER: All right. 25 MR. DAVID GORRELL: And then she goes on

193

1 to talk about the scheduling of the pre-trial that was 2 done without her knowledge. 3 MR. MARK SANDLER: All right. So, just 4 anticipating where we go for a moment, was that time 5 frame in which you had to either accept or -- or reject 6 the offer extended at some point by Ms. Koehl? 7 MR. DAVID GORRELL: Yes, I made some 8 phone calls, I think, to her and to Detective Lines and 9 as I put it in my docket, we put the matter back on the 10 rails. I think what happened is I explained why the 11 matter had not been addressed and, therefore, there was 12 more time given. But certainly there was pressure put on 13 the defence at that time to move forward. 14 MR. MARK SANDLER: All right. And did 15 you meet with the client as a result of this initiative 16 from the Crown? 17 MR. DAVID GORRELL: We met with the 18 client on August 31st. He always came with a group, and 19 I believe that he didn't speak English very well at that 20 time. He was relatively new to the country, and I think 21 we had a Court interpreter there, so we did have a 22 meeting with him on August 31st, and Mr. Kissoon was 23 there as well, I'm sure. 24 MR. MARK SANDLER: All right. And tell 25 us about that meeting.

194

1 MR. DAVID GORRELL: I -- I don't have -- 2 there are a number of meetings. There was that one, that 3 one lasted two (2) and a half hours. Then there was 4 another one on September 15th for an hour and a half, and 5 so on. 6 I can't say what was discussed at each one 7 of these meetings, but by this time, we would have had 8 some disclosure, if not all of it. We certainly knew 9 that it was a Shaken Baby Syndrome case. We had the 10 evidence supporting exclusive opportunity. And this -- 11 Gaurov's father was not experienced in the criminal law 12 system. 13 I'm sure there was a lot of discussion 14 about the presumption of innocence, the evidence; the 15 fact there would be a preliminary inquiry, a trial and so 16 on and so forth, and also the nature of the charge which 17 at that time was second degree murder. 18 MR. MARK SANDLER: All right. What did 19 you understand his position on the facts to be at that 20 stage? 21 MR. DAVID GORRELL: Well, he was a very 22 quiet man. Again, he did not speak English very well. 23 He had lots of people there with him. There was one 24 person, I think I remember, who was rather voluble, but 25 certainly he, at that time, was not admitting that he had

195

1 committed this offence. 2 MR. MARK SANDLER: All right. 3 MR. DAVID GORRELL: And I -- and I also 4 knew that he had not admitted to the police. 5 MR. MARK SANDLER: All right. And did 6 you characterize the offer that had been presented by Ms. 7 Koehl to -- to the client? And if so, how did you 8 characterize it? 9 MR. DAVID GORRELL: I did, whether I did 10 it in that first meeting -- I must've, because I was 11 responding to her letter of August 27th. At that time we 12 had not hammered -- hammered out what the actual offer 13 would be and I would have, in that discussion and also on 14 September 15th when we met again, I would have explained 15 to him the nature of the offer that was being made and 16 what it would entail. 17 MR. MARK SANDLER: All right. 18 MR. DAVID GORRELL: I would be seeking 19 instructions if he wished me to proceed further with it 20 or not. 21 MR. MARK SANDLER: Okay. Did you explain 22 the case against the client as you understood it that 23 point in time? 24 MR. DAVID GORRELL: Yes. 25 MR. MARK SANDLER: And what did you see,

196

1 simply put, what did you see the case to be? 2 MR. DAVID GORRELL: The case was 3 exclusive opportunity and Dr. Smith's report of Shaken 4 Baby Syndrome. He had made it very clear that that's 5 what had happened. This was early days. 6 Dr. Smith was unknown to me at that time, 7 but I certainly knew the Hospital for Sick Children, and 8 I had a pathologist's report indicating that the child 9 had died as a result of violence. So it was exclusive 10 opportunity plus Dr. Smith. 11 MR. MARK SANDLER: And did you have any 12 discussion with the client and the entourage about Dr. 13 Smith's standing or status in the profession or as a 14 result of his affiliation with the Hospital for Sick 15 Children? 16 MR. DAVID GORRELL: I -- I must have. I 17 really can't remember. I must have said, This is the 18 Head Pathologist at the Hospital for Sick Children. This 19 is -- I certainly would have said to him that if we 20 defend the case, we would certainly try to find a way 21 around the pathologist report; that is to say, attack the 22 exclusive opportunity. But if necessary, we would have 23 to go right at the report and we'd have to have our own 24 pathologists. 25 MR. MARK SANDLER: All right. Was there

197

1 any discussion about the consequences of being found 2 guilty of murder? 3 MR. DAVID GORRELL: I'm sure there must 4 have been. I really can't remember. That's a question 5 that would obviously be asked and answered. 6 MR. MARK SANDLER: All right. You -- 7 MR. DAVID GORRELL: But I -- this is in 8 the context of Ms. Koehl talking about a criminal 9 negligence causing death. 10 MR. MARK SANDLER: Right. 11 MR. DAVID GORRELL: A form of 12 manslaughter. 13 MR. MARK SANDLER: All right. Now we see 14 from -- from your dockets, and I won't take you there. I 15 know you -- you have them in front of you; that -- that 16 after several interviews with the client and -- and 17 others, you attended on Sunday, September the 20th to 18 review the Crown disclosure with a defence pathologist? 19 MR. DAVID GORRELL: That's correct. 20 MR. MARK SANDLER: And that meeting took 21 approximately two (2) hours? 22 MR. DAVID GORRELL: Yes. He had the 23 material on September 16th. 24 MR. MARK SANDLER: Right. 25 MR. DAVID GORRELL: And then we met on

198

1 September 20th. 2 MR. MARK SANDLER: And who was that? 3 MR. DAVID GORRELL: The doctor was Dr. 4 Naidoo, N-A-I-D-O-O. Initials JA. He was attached to 5 Queensway. 6 MR. MARK SANDLER: All right. And do you 7 know how you had secured Dr. Naidoo as opposed to anyone 8 else? 9 MR. DAVID GORRELL: Yeah, Mr. Kissoon was 10 at that time, in partnership with a gentleman by the name 11 of Mr. Pachai P-A-C-H-A-I. And I think that Dr. Naidoo 12 was connected somehow to Mr. Pachai. 13 MR. MARK SANDLER: All right. 14 MR. DAVID GORRELL: They either knew each 15 other or there was a connection. 16 MR. MARK SANDLER: Now I just want to ask 17 you something as a general practice. Defence counsel 18 have differing practices as to the extent to which they 19 elicit the facts from their clients before complete 20 disclosure is provided. 21 What was your practice back then, and it's 22 my way of saying: To what extent would you have elicited 23 a detailed account from Gaurov's father at this stage? 24 MR. DAVID GORRELL: My view at the start 25 of the solicitor/client relationship, I focus on what the

199

1 Crown says the client did. I do not find it particularly 2 helpful to get details from the client at the beginning. 3 First of all because an event such as this 4 is -- is shocking, and his memory may be faulty. And as 5 you proceed through the case and see the sign posts of 6 disclosure along the way, it may assist him with his 7 recollection. 8 It also doesn't assist if he takes a firm 9 position and then has to change later on because 10 disclosure contradicts it. Certainly, if he wants to 11 tell me his story, I'll listen to it, but I don't 12 question him about it initially. 13 I focus on the Crown disclosure. There 14 are exceptions to that, of course, alibi being one (1) of 15 them. 16 MR. MARK SANDLER: All right. Now we see 17 from your dockets that on September the 21st, you 18 prepared a direction to be executed by the client. And 19 I'm going to take you to -- to a document entitled 20 Direction in a moment. I'll ask the Registrar to put it 21 on the -- put it on the screen. 22 But while he's doing that, had you had 23 further conversations with Crown counsel as best you can 24 recollect, between the letter of August the 27 -- sorry, 25 between your telephone conversations about extending a

200

1 period of time of the offer and -- and September of this 2 year? 3 MR. DAVID GORRELL: I have no real 4 recollection. I see on September 8th, I attended out at 5 the Scarborough Courthouse for a disclosure and 6 discussion session with Ms. Koehl. 7 And I see that on the 13th, I was engaged 8 to reviewing the Crown brief. Crown briefs in those days 9 were a lot smaller than they are now. I have it here. 10 It's two (2) -- I see two and a half (2 1/2) hours were 11 spent on that. 12 I really can't say that there was too much 13 discussion between myself and Ms. Koehl, but I can't say 14 there wasn't either. I simply have to rely upon my 15 docket. 16 MR. MARK SANDLER: Okay. So I've put up 17 on the screen a document entitled Direction, and is this 18 the document that you would have prepared on September 19 the 21st? 20 MR. DAVID GORRELL: That's -- I think 21 it's undated, the copy we have. Yes, that was the 22 direction I had prepared, and if Mr. -- if the Gaurov's 23 father wanted me to pursue the discussions with the Crown 24 after -- I'd ask him to sign this. 25 MR. MARK SANDLER: All right.

201

1 MR. DAVID GORRELL: And, in fact, he did. 2 MR. MARK SANDLER: All right. And -- and 3 I'll ask you whether he signed this direction or a 4 modified direction in a moment. He did sign a direction, 5 at some point, I take it? 6 MR. DAVID GORRELL: Yes, he did. 7 MR. MARK SANDLER: All right. I'll ask 8 you about that in a moment. 9 MR. DAVID GORRELL: Okay. 10 MR. MARK SANDLER: If you look at 11 paragraph 3, it -- it reflects: 12 "In building its case, the Crown relies 13 principally on the evidence of Dr. 14 Smith, who conducted the post-mortem 15 examination, and who is prepared to 16 state, as his expert opinion, that the 17 death of the child was a classic 18 example of Shaken Baby Syndrome." 19 And then the -- the syndrome is described 20 in the -- in the direction, and it says: 21 "The Crown also contends that as a 22 result of its investigation, including 23 the statement I gave to the police and 24 various medical authorities, I had 25 exclusive opportunity to cause these

202

1 injuries." 2 MR. DAVID GORRELL: Yes. 3 MR. MARK SANDLER: 4 "I understand, if the matter went to 5 trial, the Crown might be hard-pressed 6 to win a conviction on a charge of 7 second degree murder, but would be far 8 more likely to win a conviction on a 9 charge of manslaughter." 10 MR. DAVID GORRELL: Yes. 11 MR. MARK SANDLER: 12 "The charge of manslaughter carries no 13 minimum imprison -- punishment, but 14 after a trial, I understand if I were 15 convicted of manslaughter, I would 16 likely face a term of incarceration 17 measured in years. I understand that 18 you, as my counsel, have met Dr. 19 Naidoo, a pathologist whose opinion it 20 is that, in fact, the evidence that 21 this baby died of Shaken Baby Syndrome 22 is overwhelming." 23 Just stopping there for a moment. Do you 24 have an independent recollection of what Dr. Naidoo told 25 you today?

203

1 MR. DAVID GORRELL: No, I -- I have to 2 rely on this. 3 MR. MARK SANDLER: All right. And this 4 would appear to indicate, the words seem to be self- 5 evident, that Dr. Naidoo expressed an opinion that was 6 very strongly favourable of the -- of Dr. Smith's 7 opinion. 8 MR. DAVID GORRELL: Yes, I -- reading 9 this I have some recollection. We met at Mr. Kissoon's 10 office, and I remember sitting at the table, and we went 11 through it all, and I had a lot of questions because 12 Shaken Baby Syndrome was fairly new to me. 13 And as I say, we were there for a couple 14 of hours, and I think at the end of the day, he simply 15 said that the pathological evidence is supportive of 16 Shaken Baby Syndrome. 17 MR. MARK SANDLER: All right. 18 MR. DAVID GORRELL: I use the word 19 "overwhelming;" he may have used that, I don't know. 20 MR. MARK SANDLER: And then you'll see at 21 paragraph 6: 22 "I understand there may be an offer 23 from Crown counsel to the effect that 24 if I plead guilty to manslaughter, she 25 will recommend to the Court and the

204

1 Court will accept the penalty that does 2 not include incarceration." 3 And you talk about some of the potential 4 terms, and then you reflect at the paragraph 7: 5 "I further understand that if an effort 6 is to be made to accept this plea 7 bargain, it must be made very shortly, 8 in any event, by the end of September 9 1992." 10 MR. DAVID GORRELL: I must have had an 11 extension of one (1) month. 12 MR. MARK SANDLER: Right. 13 "I understand that for any plea bargain 14 to be acceptable, I must be prepared to 15 admit to you, my counsel, and to the 16 Court that, through recklessness or 17 otherwise, I caused the death of 18 Gaurov. I understand that no one, at 19 this point, is alleging that I 20 intentionally set out to cause the 21 death of a child, but only that I, by 22 grievous error, did that." 23 Do you have an independent recollection of 24 what Gaurov's father had to say in response -- if 25 anything, in response to that paragraph?

205

1 MR. DAVID GORRELL: Well, he took it 2 away. He did not -- this was read to him by the 3 interpreter and his family, of course, was there 4 listening -- and I presume they were his family, his 5 group -- and then he did not take a position on this 6 right away, he took it away with him. 7 MR. MARK SANDLER: All right. And then 8 finally, paragraph 9 reflects: 9 "This document summarizes the lengthy 10 discussions I've had with you, my 11 counsel, including two (2) that took 12 place with an independent interpreter 13 on September 15 and September 21, 1992. 14 This document has been read over to me 15 by that same interpreter." 16 And that reflects what you've already told 17 us. 18 MR. DAVID GORRELL: Yes, I see that -- 19 from my docket, the next day he came in to my office to 20 provide me with instructions, so I presume that he took 21 this away with him and then brought it back the very next 22 day, September 22nd. 23 MR. MARK SANDLER: Okay. And -- and you 24 see under the addendum that -- that in the -- that 25 there's a discussion about immigration consequences.

206

1 MR. DAVID GORRELL: Yes. 2 MR. MARK SANDLER: And that you can't 3 offer any assurances that -- that he won't -- that action 4 won't be taken to deport him: 5 "But I understand it's your opinion 6 that I would have a good chance of 7 successfully resisting deportation 8 under the circumstances of this case." 9 And -- and were the immigration 10 implications of all of this discussed with him as -- as 11 part -- 12 MR. DAVID GORRELL: Yes. 13 MR. MARK SANDLER: -- of the ongoing 14 dialogue? 15 MR. DAVID GORRELL: Yes, but not by me. 16 I -- I have no real expertise in that area. Mr. Kissoon, 17 however, had a practice in that area. I think also there 18 had been a discussion with Sergeant Prisor who had said 19 the police would not red flag this one (1) for attention 20 by immigration authorities. 21 MR. MARK SANDLER: All right. And there 22 was reference in the -- in the direction to recklessness 23 as a basis for -- for a guilty plea. 24 Do you have independent recollection of 25 any discussion that you had to the layperson about what

207

1 recklessness actually meant or can you say? 2 MR. DAVID GORRELL: I -- I don't really 3 have an independent recollection of these meetings, 4 except to say that the -- the people who were there -- 5 this -- this was more or less a group discussion and it 6 was almost as if Gaurov's father was sitting there 7 listening because he was listening to the interpreter and 8 so on. 9 So, yes, it would be discussed. I mean, 10 there would be a decision, well, obviously, he didn't 11 kill his child, he loved his child, and so on. 12 And then, well, if he killed him, then it 13 would have to be because it was a mistake and that would 14 lead to a discussion of -- of what manslaughter was and 15 criminal negligence and that nature. 16 MR. MARK SANDLER: Okay. Now we know 17 that, ultimately, the Crown's position wasn't to agree to 18 a non-custodial term, am I right? 19 MR. DAVID GORRELL: That's correct. 20 MR. MARK SANDLER: So -- so where did -- 21 where did this go from -- from the direction that's 22 unsigned that we've seen in your file to the ultimate 23 resolution? 24 MR. DAVID GORRELL: I see on September 25 23rd I called Rita Koehl, and then, on September 25th, I

208

1 attended at 361 University Avenue to discuss the matter 2 with her and Detective Prisor. And I see I was there for 3 an hour and a quarter and I have the elegant term here, 4 "Discussion of plea bargaining." 5 MR. MARK SANDLER: All right. And as a 6 result of your conversations with Ms. Koehl, what was the 7 Crown's ultimate offer that was put to the client? 8 MR. DAVID GORRELL: They offered four (4) 9 -- on a plea the offered four (4) to six (6) months open 10 or ninety (90) days joint with the Crown not opposing 11 weekend time. 12 MR. MARK SANDLER: All right. And open 13 submission meaning -- 14 MR. DAVID GORRELL: And plus probation. 15 MR. MARK SANDLER: And open submission 16 meaning that you were free to ask for what you wanted? 17 MR. DAVID GORRELL: I could ask for 18 whatever I wanted. 19 MR. MARK SANDLER: All right. And was 20 there further discussion with the client about that 21 offer? 22 MR. DAVID GORRELL: Yes, on October 5th. 23 MR. MARK SANDLER: All right. And tell 24 us -- 25 MR. DAVID GORRELL: For -- for an hour

209

1 there, I see. 2 MR. MARK SANDLER: All right. And the 3 same question, probably the same answer: Do you have an 4 independent recollection other than what's contained in 5 the materials that you've seen as to the conversation 6 that took place on October the 5th? 7 MR. DAVID GORRELL: No, sir, I don't 8 really. It's a long time ago. I -- he accepted the 9 ninety (90) days on weekends but I don't have an 10 independent recollection of the discussion that took 11 place. 12 MR. MARK SANDLER: Okay. 13 MR. DAVID GORRELL: But there would have 14 been an interpreter there. 15 MR. MARK SANDLER: All right. And the 16 direction that we've looked at and, as far as I'm aware, 17 in Mr. Kissoon's file this is the only direction that 18 we've seen reference to, would there have been another 19 direction that reflected the -- the change in Crown 20 position from -- from the time of your original direction 21 to this one, or can you say? 22 MR. DAVID GORRELL: I think there -- 23 there was. It's not in Mr. Kissoon's file but I think 24 there must have been and I think there was. 25 MR. MARK SANDLER: All right.

210

1 MR. DAVID GORRELL: It's just my practice 2 to take instructions in writing on cases of this sort. 3 MR. MARK SANDLER: As a result of your 4 meeting with -- with the client, did you have any sense 5 of the factors that informed his decision to accept the 6 offer? 7 MR. DAVID GORRELL: Mr. -- I'm sorry, 8 Gaurov's father was a man under extraordinary stress at 9 that time. He was a recent immigrant to Canada. He was 10 a man who had found a job. He was trying to start a new 11 life in a new country. 12 His wife had just had a brain tumour, an 13 operation for a brain tumour. He was worried about her. 14 One of his children, Gaurov, had, in fact, died. The 15 other one had been apprehended or, at least, was somehow 16 entangled with Children's Aid. 17 He was charged with second degree murder 18 in this new country. He did not speak English. My heart 19 went out to him. He was under huge stress. 20 MR. MARK SANDLER: All right. And I 21 asked you earlier about what might have motivated the 22 Crown to take the position that it took on a murder case, 23 ultimately, accepting a -- a criminal negligence and 24 ninety (90) days. 25 Now I put to you the Amber case conference

211

1 which you're unfamiliar with and you've indicated there 2 was no discussion with the Crown about Amber or any of 3 the implications of the Amber decision to Dr. Smith's 4 case. 5 Am I right so far? 6 MR. DAVID GORRELL: That is correct. 7 MR. MARK SANDLER: Did you ever have any 8 discussion with Crown counsel as to what, if anything, 9 had motivated the Crown, whether weaknesses in this case 10 or any other case in which Smith had been involved to 11 make the offer that it had made? 12 MR. DAVID GORRELL: No, I -- I didn't. 13 And I had the offer, I had the disclosure. I certainly 14 knew Detective Prisor. And I knew Rita Koehl, as well. 15 And I could not and would not believe that they would be 16 concealing anything from me; I had what they had. 17 And, therefore, I didn't see the point of 18 asking if they had weaknesses in their case; I had it 19 right in front of me. 20 And it lies ill in the mouth of defence 21 counsel to say to a Crown who has made a very good offer, 22 "That's a silly offer to make. It's too good an offer." 23 MR. MARK SANDLER: All right. 24 MR. DAVID GORRELL: So I didn't pursue 25 that.

212

1 MR. MARK SANDLER: And underlying what 2 you've just said, and just to -- is the fact that you'd 3 had prior dealings with the Crowns that are involved in 4 the case and always -- and always found that -- that 5 there were no issues taken with concealment or disclosure 6 or -- or any of those kinds of practices? 7 MR. DAVID GORRELL: I -- I didn't have a 8 lot of dealings with Ms. Koehl, but I had no reason to 9 believe that anything like that was being done, and 10 Detective Prisor, I had a very high opinion of him. 11 MR. MARK SANDLER: Okay. Now the 12 overview report reflects that -- that ultimately this 13 disposition was pretried before Justice Ormstown 14 (Phonetic), and ultimately Gaurov's father entered a plea 15 of guilt in accordance with -- with what we've discussed 16 a little bit earlier. 17 Am I right? 18 MR. DAVID GORRELL: Correct. 19 MR. MARK SANDLER: Now, how did you craft 20 the facts, or did you, that supported the guilty plea, or 21 can you recall? 22 MR. DAVID GORRELL: Again, that would be 23 best found in the transcript. I don't know -- I 24 understand the transcript is no -- not available. 25 MR. MARK SANDLER: We don't have any

213

1 transcript and can't access it, so. 2 MR. DAVID GORRELL: I'm sure that -- 3 well, I can't say I'm sure. I expect that Ms. Koehl 4 would simply have read in the synopsis which I have here. 5 MR. MARK SANDLER: All right. 6 MR. DAVID GORRELL: It was done in 40 -- 7 404 Court, which was in those days a very busy Court, and 8 I'm sure it didn't take long. 9 MR. MARK SANDLER: Okay. Now, Mr. 10 Gorrell, you have either -- it's either a good thing or a 11 bad thing, that -- that you are last in the sequence of 12 defence counsel I've asked questions of today. 13 And -- and I've proceeded at a fairly 14 quick pace in going through your recollection of the 15 events. Let me ask you this. 16 Based upon your involvement in this case, 17 or other cases, are -- is there anything else that you'd 18 like to tell the Commissioner, or make any 19 recommendations, to assist him in his work? 20 MR. DAVID GORRELL: Certainly I agree 21 with Mr. Struthers; that -- and his initial comments. It 22 is an unfair, or an un -- it's -- it's not a level 23 playing field, defence versus the resources of the State. 24 Sometimes we glory in that to some extent, 25 but it is hard when a case comes along and -- and they're

214

1 so much bigger now, with all the Charter work and so on. 2 It's hard for a defence to take these 3 cases on with any expectation of paying the bills, 4 really. I mean, I -- I think there is an issue there. 5 Now Legal Aid, I think, works as hard as 6 they can. They're generous with the hours. If you call 7 them, they will give you hours to prepare. If you call 8 them and say you need more hours, they will certainly 9 give you more hours. 10 It is difficult with experts. I haven't 11 the experience there that my two (2) colleagues have had. 12 It is a constant battle. 13 I have, in fact, turned down, at least, 14 one (1) case, or, at least, moved another case on, 15 because I found myself unable to deal with the whole 16 issue on Legal Aid. I was unable to accept the case. 17 So I -- I think that I would echo what Mr. 18 Struthers said. And that would be my comment. 19 MR. MARK SANDLER: All right. 20 COMMISSIONER STEPHEN GOUDGE: Would it 21 have helped, Mr. Gorrell, if you had had access to the -- 22 the register that I discussed with Mr. Hillyer? I mean, 23 you did -- you were able to access Dr. Naidoo? 24 MR. DAVID GORRELL: The -- the problem, 25 if there is a problem, with that suggestion, sir, is that

215

1 Charles Smith would have been on the panel. 2 And as my colleagues said earlier, it 3 depends who is fixing the persons on the panel. And -- 4 and they become part of the State enterprise, if I can 5 put it that way. 6 And -- and going to a panel of experts 7 with questions that are very sensitive to the defence, 8 maybe it's just my -- my long years of practice, but I 9 would find that hard -- 10 COMMISSIONER STEPHEN GOUDGE: Okay. 11 MR. DAVID GORRELL: -- to do. I can 12 certainly see the -- the arguments in favour of it, but 13 you would go to the panel, and the next person on the 14 list would be Dr. Someone, and you'd go to Dr. Someone 15 and he'd give you an opinion, and then you'd say, Well, 16 it's not the opinion I want. I'd like to get my own 17 private opinion. 18 COMMISSIONER STEPHEN GOUDGE: Right. 19 MR. DAVID GORRELL: You'd be moving on 20 anyway. 21 COMMISSIONER STEPHEN GOUDGE: Right. You 22 said you do not have a clear memory of the meeting with 23 Dr. Naidoo, but do you recall anything being said by him 24 about facing an opinion from Dr. Smith? The icon factor 25 that we have heard --

216

1 MR. DAVID GORRELL: The icon factor. 2 COMMISSIONER STEPHEN GOUDGE: -- that we 3 have heard a lot about in this Commission? 4 MR. DAVID GORRELL: No, sir, I really 5 can't remember that. We didn't get a written opinion 6 from Dr. Naidoo. 7 COMMISSIONER STEPHEN GOUDGE: Right. 8 MR. DAVID GORRELL: That was due 9 diligence, because we had the offer; it was being 10 considered. I was uncomfortable moving forward with it 11 unless I had a -- my own pathologist to look at Dr. 12 Smith's opinion to see if a hole could be knocked in it. 13 COMMISSIONER STEPHEN GOUDGE: All right. 14 Okay. Thanks. 15 Is that it, Mr. Sandler? 16 MR. MARK SANDLER: That's it. Thank you. 17 COMMISSIONER STEPHEN GOUDGE: Thank you 18 very much. Thanks for being expeditious. 19 Okay, we are going to move along as 20 smartly as we can. Ms. Baron...? 21 22 CROSS-EXAMINATION BY MS. ERICA BARON: 23 MS. ERICA BARON: I'm pleased to report 24 that Mr. Sandler has reduced the amount of time that I'll 25 need, so that will help, I hope.

217

1 Mr. Hillyer, my name is Erica Baron. I'm 2 one (1) of the lawyers for Dr. Smith, and I have a few 3 questions for you, Mr. Struthers. And Mr. Gorrell, I -- 4 I donĘt have any additional questions for you other than 5 what you've already covered. 6 If you could start, Mr. Hillyer, by 7 turning up Volume II, Tab 39, -- 8 MR. BRUCE HILLYER: Yes. 9 MS. ERICA BARON: -- and you told Mr. 10 Sandler this morning that Ms. Walsh called you and let 11 you know that Dr. Smith had reported to you the discovery 12 of the skull fracture and -- and that subsequently there 13 was some subsequent correspondence that you were taken 14 to, but you weren't taken to this letter. 15 And I take it this was in response to a 16 request from you as to what Dr. Smith's evidence was in 17 terms of what he had seen on the skull fracture? 18 If you turn it over to the second page of 19 that document. She says the following: 20 "The information I received from Dr. 21 Smith concerning the skull fracture is 22 as follows: He did not see any 23 fracture upon visual inspection of the 24 skull. He was curious about the 25 discolouration noted at the top of page

218

1 4 in the post-mortem report, 2 parentheses, dura underlying the right 3 parietal bone, end parentheses. Dr. 4 Smith, therefore, obtained a sample of 5 the skull in this area for -- area for 6 microscopic examination. 7 I understand that the sample was 8 taken near the sagittal suture line. 9 It was this sample that revealed a 10 healing skull fracture. He is unable 11 to describe the size of the fracture as 12 he only observed a portion of it. Dr. 13 Smith indicated that the degree of 14 healing is such that it could have been 15 caused at birth of forceps were used." 16 Am I right to say that this -- this 17 explanation was sort of the context in which you had the 18 conversation with -- with Dr. Jaffe about the skull 19 fracture? Is it fair to say that you had this when you 20 had that conversation when you were looking at the 21 slides? 22 MR. BRUCE HILLYER: I couldn't tell you. 23 MS. ERICA BARON: Okay. 24 MR. BRUCE HILLYER: Sorry. 25 MS. ERICA BARON: But you certainly were

219

1 aware of the basis of Dr. Smith's opinion with respect to 2 the skull fracture and his -- his opinion that the skull 3 fracture could have been caused at birth? 4 MR. BRUCE HILLYER: From the letter, but 5 not from his evidence at the preliminary. 6 MS. ERICA BARON: Right. But this -- 7 this predated the preliminary inquiry, -- 8 MR. BRUCE HILLYER: Right. 9 MS. ERICA BARON: -- correct? 10 MR. BRUCE HILLYER: Mm-hm. 11 MS. ERICA BARON: Okay. Now if you could 12 turn to Tab 7 in that volume and this is a memorandum 13 that you were taken to by Mr. Sandler with respect to the 14 skull fracture this morning, and I just want to turn and 15 talk about another issue that you covered with Dr. Jaffe, 16 being the ankle fracture? 17 MR. BRUCE HILLYER: Yes. 18 MS. ERICA BARON: If you could turn 19 firstly to page 12 -- well, just to give the context, 20 starting at the bottom of page 7, you're looking at the 21 photograph marked as number 2 and, you say, which is a 22 photograph of the slide of the fracture of the left 23 ankle. So that's the context in which this discussion 24 has -- begins. 25 And you turn over to page 8, and it

220

1 records that Dr. Jaffe told you that it's an old 2 fracture? 3 MR. BRUCE HILLYER: Yes. 4 MS. ERICA BARON: Correct? And you 5 understood from -- from Dr. Jaffe that, if you could turn 6 forward to page 12, that the fracture was, as he 7 described it, several weeks old. 8 MR. BRUCE HILLYER: That's what he said, 9 yes. 10 MS. ERICA BARON: And he expressed 11 concern not only about the skull fracture but also about 12 the ankle fracture because if you'll go up two (2) pages, 13 two (2) lines from that, he -- he was concerned about how 14 this ankle fracture had come about. 15 MR. BRUCE HILLYER: That's correct. 16 MS. ERICA BARON: And if you turn, just 17 going down on that page, there's a discussion about "they 18 hearing a pop," and I'm hoping that you'll recall that 19 there was some suggestion that -- that a pop was heard 20 during the resuscitation attempts of Joshua, do you 21 recall that? 22 MR. BRUCE HILLYER: Yes. They were 23 putting some form of needle or something into the foot, 24 intravenous. 25 MS. ERICA BARON: Right. And Dr. Jaffe

221

1 expressed the opinion that they didn't produce the -- the 2 ankle fracture that he was looking at? 3 MR. BRUCE HILLYER: That's correct, 4 that's what he thought. 5 MS. ERICA BARON: And indeed, turning 6 over to the next page, about sort of the third entry from 7 Dr. Jaffe, it says -- 8 MR. BRUCE HILLYER: What page number, 9 sorry? 10 MS. ERICA BARON: Thirteen, page 13. 11 MR. BRUCE HILLYER: Okay, yeah. 12 MS. ERICA BARON: 13 "...in a four (4) month old that 14 doesn't walk yet or crawl yet but maybe 15 lifting the kid by his feet or in some 16 way playing roughly with the kid or 17 twisting." 18 That -- that's what Dr. Jaffe told you 19 about how this type of ankle fracture -- ankle fracture 20 may have occurred. 21 MR. BRUCE HILLYER: Yeah, and then I went 22 on to ask him about a jolly jumper because I had already 23 gotten an opinion from an orthopaedic about the fact that 24 it could be from a jolly jumper. 25 MS. ERICA BARON: And he -- well, he

222

1 didn't say what his own opinion was explicitly. He said 2 that -- that Dr. Smith, at least, would say that this 3 type of fracture was caused by a twist; more likely to be 4 caused by a twist. 5 MR. BRUCE HILLYER: That's what he -- 6 that's what Jaffe said, yeah. 7 MS. ERICA BARON: And he didn't suggest - 8 - he -- Dr. Jaffe never suggested to you that the jolly 9 jumper could have caused this sort of injury, I take it. 10 MR. BRUCE HILLYER: That's correct. 11 MS. ERICA BARON: Thank you. I think 12 those are all my questions. 13 COMMISSIONER STEPHEN GOUDGE: Thanks, Ms. 14 Baron. Mr. Lockyer...? 15 MR. JAMES LOCKYER: I think Mr. Wardle 16 would like to go before me, Mr. Commissioner. He has to 17 leave and I have agreed to that. 18 COMMISSIONER STEPHEN GOUDGE: That's 19 fine. 20 MR. PETER WARDLE: Good afternoon, Mr. 21 Commissioner. 22 COMMISSIONER STEPHEN GOUDGE: Yes, Mr. 23 Wardle, just let me -- just for everybody's sake, let me 24 tell you the time allocations I have ahead of us and then 25 where that leaves us, for those of you that have Go

223

1 Trains or anything like that, and, Mr. Wardle, you've got 2 ten (10) minutes, Mr. Lockyer, fifty-five (55) minutes, 3 and Mr. Di Luca, ten (10) minutes, Ms. Twohig, five (5) 4 minutes, and Mr. Gover, fifteen (15) minutes. 5 That will take us collectively until 6 shortly after, as my calculations go, with a break, 4:35, 7 4:40, with a little bit of tag in at the end from Ms. 8 Rothstein. So for your own getaway purposes, apart from 9 you, Mr. Wardle, who will abandon us early, that's for 10 the rest of us, way you go, ten (10) minutes. 11 12 CROSS-EXAMINATION BY MR. PETER WARDLE: 13 MR. PETER WARDLE: Thanks for giving me 14 that, sir, oomph feeling. My questions are -- are only 15 for you, Mr. Struthers, and of course, from our 16 discussion this morning, you know I act for Maureen, and 17 I act for another group of other families and caregivers 18 who've been affected by findings of Dr. Smith. 19 I want to just take you back to when you 20 first became involved in this case, and it may have been 21 either you or Mr. Gorrell who said that you thought that 22 Dr. Smith's opinion was "ridiculous". 23 Do you remember saying that this morning? 24 MR. JOHN STRUTHERS: I said that. 25 MR. PETER WARDLE: All right.

224

1 MR. BRUCE HILLYER: I probably did, too. 2 MR. PETER WARDLE: And do I take it that 3 was your view from when you read the post-mortem report, 4 Mr. Struthers? 5 MR. JOHN STRUTHERS: It didn't make any 6 sense to me at all. 7 MR. PETER WARDLE: Okay. And I -- and I 8 want to take you to just one (1) document because this is 9 not found in the post-mortem report. You described the 10 post-mortem report as being "terse." 11 Do you remember saying that? 12 MR. JOHN STRUTHERS: I did, yes. 13 MR. PETER WARDLE: I'm going to just ask 14 if we could turn up in your binder Tab 5, it's PFP105199, 15 and it's the Crown's synopsis. 16 MR. JOHN STRUTHERS: Oh, yes. 17 MR. PETER WARDLE: And the reason I 18 wanted to direct you to that, sir -- 19 MR. JOHN STRUTHERS: Thanks, I can't get 20 under the table, I'm sorry. I'm too tall. Thank you. 21 MR. PETER WARDLE: This would have been 22 one (1) of the documen -- documents you got through 23 disclosure before the preliminary inquiry, correct? 24 MR. JOHN STRUTHERS: Yes, I think this 25 was already produced by the time Mr. Gorrell referred me

225

1 the case. It was the original synopsis, yes. 2 MR. PETER WARDLE: And you'll see that in 3 the synopsis it refers to the post-mortem examination and 4 it says, and I don't believe this is in the post-mortem 5 report: 6 "Smith also stated that children do not 7 die from accidental falls of the nature 8 described by Maureen and that the 9 injury was an impact caused by a flat 10 object." 11 And I take it you knew that when you had a 12 chance to review the case and review Crown disclosure, 13 that that was Dr. Smith's position, correct? 14 MR. JOHN STRUTHERS: Yes. 15 MR. PETER WARDLE: Okay. And is it fair 16 to say that as you went on through the case and you heard 17 his evidence at the preliminary inquiry, it was still 18 your position that his evidence and his opinion in this 19 case was absurd, ridiculous? 20 MR. JOHN STRUTHERS: Absolutely. In 21 fact, I recall cross-examining him about the mechanism of 22 injury, and he was very equivocal at the prelim in terms 23 of being able to say it was a flat object or anything of 24 that nature. And I remember specifically going after 25 that particular wording even then.

226

1 MR. PETER WARDLE: So just following that 2 up a little bit, is it also fair to say, then, that in 3 your view this wasn't a case that was just about, you 4 know, reasonable experts can disagree. 5 This went significantly further than that, 6 is that fair? 7 MR. JOHN STRUTHERS: Well -- absolutely, 8 yes. 9 MR. PETER WARDLE: I want to take you, 10 then, to what happens at the end of a case -- 11 MR. JOHN STRUTHERS: Yes. 12 MR. PETER WARDLE: -- with the stay of 13 charges by the Crown. 14 MR. JOHN STRUTHERS: Mm-hm. 15 MR. PETER WARDLE: And first of all, with 16 respect to what you described this morning, sir, about 17 the period in Court where everyone was sitting waiting 18 and Maureen was in the -- in the box and the Crown got up 19 abruptly without giving any notice to anyone and 20 announced the stay. 21 MR. JOHN STRUTHERS: Yes. 22 MR. PETER WARDLE: I understand your view 23 is that that was being done to some extent to accommodate 24 Dr. Smith from adverse media scrutiny, is that fair? 25 MR. JOHN STRUTHERS: Yes.

227

1 MR. PETER WARDLE: And why do you say 2 that? 3 MR. JOHN STRUTHERS: Well, I think that 4 common courtesy would have dictated that we be advised 5 when the decision was made, certainly if not to me, then 6 to Maureen. 7 The only explanation that I can muster, 8 and it's my opinion, as to why I -- I wasn't told and she 9 wasn't told in advance, was to yet again insulate Dr. 10 Smith from bad media coverage. 11 I had a personal connection to the media 12 at that time in my life, and I think Dr. -- Frank 13 Armstrong was clearly aware of that. And you know, the 14 press at 361 doesn't come in for jury selection. They 15 come in, and they run around the building to try and find 16 their -- their stories. 17 And they come in for the Crown's opening, 18 because that gives them a precis of the case. It gives 19 them something they can report, and give the entire story 20 of the case to their readers at one (1) go. 21 But jury selection isn't something that 22 interests them. So they're running around trying to find 23 a case that they can make a story out of at that time. 24 They knew jury selection was in process in 25 -- in this particular courtroom, and of course, they

228

1 might have come in the next day or the day after to hear 2 the Crown's opening. 3 But they weren't going to be there for 4 this announcement; that he was staying the charges. And 5 it was simultaneous almost with the Kingston matter being 6 in the press, that this happened. 7 And as a result, I can't think of no other 8 explanation for someone to be so discourteous, not just 9 to the defence, but particularly to the accused, to 10 withhold that information as soon as the decision had 11 been made. 12 MR. PETER WARDLE: Now I want to just 13 take you quickly to the overview report with respect to 14 some post-trial developments. 15 And if -- you've got that, I think in your 16 binder, it probably is Tab 1. 17 MR. JOHN STRUTHERS: Yeah, I have -- I do 18 have it, yep. 19 COMMISSIONER STEPHEN GOUDGE: It's Tab 1. 20 MR. JOHN STRUTHERS: Thank you. 21 22 CONTINUED BY MR. PETER WARDLE: 23 MR. PETER WARDLE: If you go to paragraph 24 282 and following. This would be at page 136 of the 25 electronic numbering.

229

1 MR. JOHN STRUTHERS: Just give me a 2 second. Thank you. 3 MR. PETER WARDLE: So the PFP for the 4 syno -- the overview report is 144019. 5 MR. JOHN STRUTHERS: 282, did you say, 6 Mr. -- 7 MR. PETER WARDLE: Paragraph 282. 8 MR. JOHN STRUTHERS: Yeah. My letter to 9 Michael Lomer, is that what I'm looking at? 10 MR. PETER WARDLE: Correct. Yep. 11 MR. JOHN STRUTHERS: Thank you. 12 MR. PETER WARDLE: So you'll see that 13 after the stay of charges in Maureen's case, that there's 14 an exchange of correspondence between Mr. Lomer and Crown 15 counsel, Robert Hubbard, regarding the proceedings 16 against Maureen. 17 MR. JOHN STRUTHERS: Yes. 18 MR. PETER WARDLE: And you'll see the 19 quote there: 20 "Pursuant to your request, I have 21 spoken to Frank Armstrong and Ed 22 Bradley ..." 23 MR. JOHN STRUTHERS: Yes. 24 MR. PETER WARDLE: Frank Armstrong was 25 the Crown counsel who had carriage of the Maureen case,

230

1 one (1) of the cases to which you refer in your letter. 2 MR. JOHN STRUTHERS: Mm-hm. 3 MR. PETER WARDLE: 4 "According to Mr. Armstrong, in 5 Tyrell's case, there was conflicting 6 evidence as to the cause of death, and 7 while Dr. Smith was a proposed witness, 8 there appears to be no assert -- 9 assertion that his work lead directly 10 to the result of the stay." 11 And then just looking a little further 12 down, the next paragraph, 283, this is now another 13 officer of the Toronto force, Detective Bell -- 14 MR. JOHN STRUTHERS: Yes. 15 MR. PETER WARDLE: -- in another case 16 that we've been hearing evidence about, the Tamara case. 17 And you'll see it says that: 18 "Detective Bell spoke with Mr. 19 Armstrong on March 13th, 2001, with 20 respect to the withdrawal of the 21 charges in Tyrell's case. The notes 22 provided..." 23 And then there's an indication of the 24 time: 25 "...I -- I phoned Mr. Frank Armstrong

231

1 regarding a recent murder charge he 2 withdrew in case with Detective Scott 3 Bronson (phonetic)..." 4 That would be Tyrell's case: 5 "He advised that he had no concerns 6 with Dr. Smith's evidence. It came 7 out, unbeknownst to him, Dr. Becker had 8 reviewed the brain. Dr. Becker's 9 opinion differed from Dr. Smith's. 10 Armstrong did not feel his case fell 11 into same concerns as other recent 12 cases." 13 And just thinking about what information 14 was being communicated to other players in the Justice 15 System -- 16 MR. JOHN STRUTHERS: Yes. 17 MR. PETER WARDLE: -- do you think that's 18 a fair characterization of what had taken place? 19 MR. JOHN STRUTHERS: I can't read Mr. 20 Armstrong's mind. I've known him for many years, and I 21 couldn't even propose to read Mr. Armstrong's mind. 22 MR. PETER WARDLE: What would you have 23 said, Mr. Struthers, if you'd been asked those questions 24 after the stay of the charges, about whether, in fact, it 25 had to do with Dr. Smith's evidence in that case?

232

1 MR. JOHN STRUTHERS: Of course, it did. 2 MR. PETER WARDLE: In fact, would it be 3 fair to say that that was likely central to the decision 4 to stay the charge? 5 MR. JOHN STRUTHERS: Absolutely. 6 MS. KIM TWOHIG: Excuse me, Mr. 7 Commissioner. I suppose it's too late now, but I 8 understood My Friend's question to be one (1) in which he 9 was asking Mr. Struthers to -- to speculate on what was 10 in Mr. Armstrong's mind when he stayed the charges, and I 11 submit that is not a fair question. 12 MR. JOHN STRUTHERS: I -- I answered the 13 question that way, that I have -- 14 COMMISSIONER STEPHEN GOUDGE: I agree -- 15 MR. JOHN STRUTHERS: -- no idea -- 16 COMMISSIONER STEPHEN GOUDGE: -- yeah, I 17 agree that would be not a fair question. What I took the 18 witness to say was that his impression was that Dr. 19 Smith's evidence was central to -- is that fair, Mr. 20 Struthers? 21 MR. JOHN STRUTHERS: It is, sir. Thank 22 you. 23 COMMISSIONER STEPHEN GOUDGE: I think you 24 were pretty clear that nobody could read Dr. -- Mr. 25 Armstrong's mind?

233

1 MR. JOHN STRUTHERS: No, and I don't 2 propose that I could. 3 COMMISSIONER STEPHEN GOUDGE: Saw a lot 4 of nods in the audience when you said that. 5 6 CONTINUED BY MR. PETER WARDLE: 7 MR. PETER WARDLE: And one last question 8 relating to the same theme. We've heard evidence from 9 Dr. Cairns, and this is when he was examined on November 10 the 27th by Mr. Gover, that he had conversations with Mr. 11 Armstrong, and this is at page 236 of the transcript, and 12 it indicates that he phoned and said, 13 "Frank, what was the problem with Dr. 14 Smith in this case? 15 [And he said] Jim, there was no problem 16 with Dr. Smith. I had no problem with 17 his evidence at all." 18 And, again, I don't want to put you in, 19 you know, exactly the objection My Friend just raised. I 20 don't want you to speculate about what was in Mr. 21 Armstrong's mind, but if you'd had that kind of call from 22 Dr. Cairns at that point in time, what would you have 23 told him? 24 MR. JOHN STRUTHERS: If he was asking for 25 my opinion of Dr. Smith's evidence, I would have given it

234

1 to him. 2 MR. PETER WARDLE: And that would have 3 been as you've told us about today? 4 MR. JOHN STRUTHERS: Absolutely. 5 MR. PETER WARDLE: Thank you, sir. Those 6 are all my questions. 7 COMMISSIONER STEPHEN GOUDGE: Thanks, Mr. 8 Wardle. 9 Mr. Lockyer...? 10 MR. JAMES LOCKYER: Mr. Commissioner, I 11 stole ten (10) minutes from AIDWYC counsel and if I 12 finish in forty-five (45), if I do, can they get them 13 back? 14 COMMISSIONER STEPHEN GOUDGE: Sure. 15 MR. JAMES LOCKYER: Good, thank you. 16 COMMISSIONER STEPHEN GOUDGE: They'd get 17 more back if you want a transit rate. 18 MR. JAMES LOCKYER: You prefer listening 19 to them, do you? 20 21 CROSS-EXAMINATION BY MR. JAMES LOCKYER: 22 MR. JAMES LOCKYER: Mr. Struthers, just 23 arising out of Mr. Wardle's last series of questions, you 24 told us, obviously, one of the most significant 25 differences between a stay and a withdrawal is that the

235

1 stay means the charge continues to hover for -- for the 2 next year. 3 MR. JOHN STRUTHERS: And other people use 4 it inappropriately, disregarding the presumption of 5 innocence. 6 MR. JAMES LOCKYER: Yes. And -- well, 7 you said that in the context of Children's Aid? 8 MR. JOHN STRUTHERS: That's right. 9 MR. JAMES LOCKYER: Another difference I 10 was going to suggest to you that you often find is that 11 when a Crown withdraws a charge, especially a homicide 12 charge, there will usually be a long explanation provided 13 to the Court. 14 When a Crown stays a charge, they usually 15 provide no explanation. Is that right? 16 MR. JOHN STRUTHERS: It's true. I mean, 17 the thinking that goes into a stay is often not disclosed 18 for the very reason that the case may be reinstituted 19 and, of course, the problems or difficulties or whatever 20 the issue might be is not something that may be 21 disclosable in the -- in the ultimate case. 22 MR. JAMES LOCKYER: So your -- sorry. 23 MR. JOHN STRUTHERS: As a result, there 24 may be a lot less reasons put on the record, yeah. 25 MR. JAMES LOCKYER: So your difficulties

236

1 of reading Mr. Armstrong's mind take into account that he 2 didn't say anything when he stayed the charges other than 3 to say that's what he was doing? 4 MR. JOHN STRUTHERS: He said a few things 5 including that it was potential that a miscarriage of 6 justice could occur, as I understand my reading of what 7 he had to say, and that was accurate. 8 And I did say on the record that I 9 commended him for doing the right thing, which was 10 dealing with the case without commencing a trial. 11 MR. JAMES LOCKYER: Right. 12 MR. JOHN STRUTHERS: The fact that he 13 left the charges and didn't do the whole job to hover 14 over Maureen's head for another year was, in my view, 15 unfortunate, to say the least, for her. 16 MR. JAMES LOCKYER: Now I think you know 17 I represent nine (9) people who were convicted either in 18 whole or in part as a result of Dr. Smith's evidence. 19 MR. JOHN STRUTHERS: And seven of them 20 pleaded guilty, is that right? 21 MR. JAMES LOCKYER: Yes. Well -- 22 MR. JOHN STRUTHERS: To something? 23 MR. JAMES LOCKYER: -- six of them. 24 MR. JOHN STRUTHERS: Yeah, six? 25 MR. JAMES LOCKYER: Two of them were

237

1 tried and convicted. One entered a nolo contendere, Mr. 2 Hillyer's case. 3 MR. JOHN STRUTHERS: Yes. 4 MR. JAMES LOCKYER: And the other six all 5 pleaded guilty to less serious offences than they were 6 charged with -- 7 MR. JOHN STRUTHERS: Right. 8 MR. JAMES LOCKYER: -- and received 9 sentences ranging from suspended sentences to ninety (90) 10 days weekends, and so on. 11 MR. JOHN STRUTHERS: Right. 12 MR. JAMES LOCKYER: And I wanted to ask 13 you first, Mr. Struthers, and then come to -- to the 14 other two (2) of you. 15 MR. JOHN STRUTHERS: Yes. 16 MR. JAMES LOCKYER: Needless to say, 17 these cases, when they're looked at by Crown law office 18 who, of course, are now dealing with each and every one 19 of them -- one is resolved but -- 20 MR. JOHN STRUTHERS: Right. 21 MR. JAMES LOCKYER: -- the remaining 22 eight (8) cases, and particularly these six (6) or seven 23 (7) cases, their response is, Well, they all pleaded 24 guilty so what's the miscarriage of justice here? 25 They've all acknowledged that they committed the crimes

238

1 to which they pleaded guilty. So why should their cases 2 be reviewed? Why should their cases be considered 3 miscarriages of justice? 4 On the contrary, they've acknowledged what 5 they did and they've been found guilty of what they did 6 and they're lucky to have got away with it in the way 7 that they did because of the light sentences they 8 received. 9 And I'd ask you, Mr. Struthers, first, 10 since you didn't have one of these cases, to comment at - 11 - at a general level on that proposition. 12 MR. JOHN STRUTHERS: There is a gross 13 inequality of bartering position with respect to 14 homicides particularly and we're getting more and more 15 into it because of the mandatory minimum sentencing 16 provisions that are being provided. The Crown's have 17 unlimited discretion, unlimited discretion. 18 I was telling you about an American 19 prosecutor a couple of weeks ago in a case I have...it 20 doesn't matter. He said to me, on the telephone: 21 "Your client's parole officer hasn't 22 been born yet." 23 I found that to be slightly disturbing. 24 When you tell a person that you can lose a 25 finger or you can lose both arms and legs, it's a very

239

1 painful decision, and nobody would voluntarily cut off 2 their little finger. But when the alternative is 3 spending the rest of your life in Kingston watching the 4 ice go down the river, it's a very difficult choice. 5 You're between a rock and a rock. 6 When you are put in a position where the 7 persons now, as I understand it, who are convicted of 8 first degree murder, are paroled, on average, at twenty 9 nine and one-half (29 1/2) years and someone says you can 10 do three weekends at Mimico or you can roll the dice with 11 Dr. Smith and, you know, the mantle of the Hospital for 12 Sick Children on his shoulders in front a jury, let's 13 face it, injuries and death to children are everyone's 14 worst nightmare. 15 You have a jury with children who are 16 members of our community who are going to want something 17 to be done. You want consequences where a child's died. 18 And if someone says they were shaken to death or beaten 19 to death or whatever the case may be, they want something 20 to happen. As Bruce said, when you get in front of a 21 jury, you don't know how they're going to react and 22 whether or not there's going to be jury nullification. 23 I mean, we have a case currently in 24 process, the jury's out, they're still sequestered, where 25 both of the experts -- the Crown and the defence -- both

240

1 said the client was NCR. The Crown went ahead anyway. 2 They wouldn't accept us actually admitting their case. 3 They wouldn't allow us to go judge alone. It's 4 essentially a Crown effort of jury nullification. 5 We're in a position where if somebody says 6 to a client, you can go to Mimico for a couple of 7 weekends and walk away from this or you can suffer 8 through a trial for the next two (2) years or three (3) 9 years and face the rest of your life in prison, it's not 10 just a difficult decision, it's almost a no-brainer. It 11 doesn't matter whether you did it or not. 12 Now you're going to get written 13 instructions that are four (4) pages long saying that you 14 did or somehow get around the fact that maybe the facts 15 don't justify it. But the cost benefit analysis just 16 isn't there, the risk is just so great. 17 You know, a Crown comes to you with a 18 first degree murder charge or a second degree murder 19 charge and says, How would you like to do no time in 20 jail? I mean, that's outrageous. There's something 21 wrong with the case. Instead of making that sort of 22 ridiculous offer they should say, We can't prove this is 23 a murder, and you know what, we're going to drop the 24 charge, instead of making a -- an almost impossible 25 decision for an accused person to make, impossible.

241

1 MR. JAMES LOCKYER: Or reduce it, 2 perhaps, to criminal negligence causing death? 3 MR. JOHN STRUTHERS: Or, you know, 4 following too close, for -- for weekends. I mean, it's - 5 - it's not conscionable to do that. If your case stinks 6 and if you actually know that Dr. Smith has been 7 pilloried in another case and you withhold the 8 information as they did to -- to Mr. Gorrell, apparently, 9 we've seen memos where there were actually serious 10 concerns about Dr. Smith before the negotiations were 11 entered into with him, they didn't disclose that to him. 12 If they then say, you know, we're -- if 13 this ever comes out, we're going to be in trouble here. 14 We're going to offer him weekends or ninety (90) days or 15 whatever the case may be, it's unconscionable, in my 16 view. 17 MR. JAMES LOCKYER: Your client was 18 facing a murder charge. You always believed in her 19 innocence? 20 MR. JOHN STRUTHERS: I did. 21 MR. JAMES LOCKYER: And she was always 22 very insistent on her innocence? 23 MR. JOHN STRUTHERS: Always, from the 24 moment I met her. 25 MR. JAMES LOCKYER: Would you like to

242

1 speculate as to what might have happened if you had been 2 -- if she had been offered a plea of guilty to 3 manslaughter for a suspended sentence? 4 MR. JOHN STRUTHERS: No, I don't. 5 MR. JAMES LOCKYER: On that -- 6 MR. JOHN STRUTHERS: But I can tell you, 7 my instructions would have been sixteen (16) pages long. 8 MR. JAMES LOCKYER: Making the -- 9 MR. JOHN STRUTHERS: Because otherwise 10 I'd be here like these gentlemen trying to explain myself 11 how it is possible that someone can plead guilty or no -- 12 no contest to something that, you know, was a little 13 shaky in terms of the facts. There's no choice here. 14 MR. JAMES LOCKYER: So it would be 15 sixteen (16) pages long to protect your -- 16 MR. JOHN STRUTHERS: Me. Right. 17 MR. JAMES LOCKYER: -- professional 18 situation as opposed to protecting your client's issues? 19 MR. JOHN STRUTHERS: That's right. 20 MR. JAMES LOCKYER: And you would insist 21 that your client acknowledge that she did do something 22 wrong even if you believe strongly that she didn't? 23 MR. JOHN STRUTHERS: Yes. That would be 24 her choice, not mine. 25 MR. JAMES LOCKYER: Right. Can I move

243

1 that then, now, over to you -- the actual situations that 2 you two (2) gentlemen faced, and perhaps, start with -- 3 with you, Mr. Gorrell? 4 Much of what Mr. Struthers has just said 5 seems to tie in in some ways to the situation that you 6 encountered in -- in Gaurov's father's case and rather 7 than lead you, so to speak, could you just talk about the 8 situation that you encountered and how you viewed the 9 situation encountered by Gaurov's father back in 1992. 10 MR. DAVID GORRELL: Well, I -- I buy 11 every word that John said. This was a man -- 12 MR. JOHN STRUTHERS: Not at Legal Aid 13 rates, please, Mr. -- 14 MR. DAVID GORRELL: This was a man with 15 no record -- a new immigrant to this country, a wife with 16 a brain tumour, a job. He was a contributing member of 17 society, and all of the sudden an atomic bomb goes off in 18 his life -- murder 2. You have to tell him because they 19 always ask, What's the penalty, and you say, Life with a 20 minimum penalty of ten (10) years -- ten (10) years. 21 He would have gotten out of jail had he 22 gotten ten (10) years, and if the trial had taken two (2) 23 years, he's just be out now for four (4) years, and his 24 whole life would be shattered. 25 Now, I -- I see in these notes that I've

244

1 been given for the first time today, the meeting January 2 30th of 1992, the words "damage control" appear dealing 3 with the case from Mr. Justice Dunn. 4 I can't make a connection between that 5 meeting and what happened in my case, except that it 6 happened just a few weeks later out of the same office. 7 I'm still shocked. 8 MR. JAMES LOCKYER: The same Crown, as a 9 matter of fact -- 10 MR. DAVID GORRELL: Well, no, -- well, 11 no, Ms. Koehl wasn't on this case, but Mary -- 12 MR. JAMES LOCKYER: Mary Hall -- 13 MR. DAVID GORRELL: Mary Hall, the same 14 Crown attorney. 15 MR. JAMES LOCKYER: -- was the common 16 denominator to your case and their case, is that right? 17 MR. DAVID GORRELL: Yes, and the 18 Scarborough courthouse -- 19 MR. JAMES LOCKYER: Mm-hm. 20 MR. DAVID GORRELL: -- and Charles Smith, 21 of course. But -- 22 MR. JAMES LOCKYER: I think Mary Hall was 23 actually the Crown when you did the pretrial in October-- 24 MR. DAVID GORRELL: Yes, she did. 25 MR. JAMES LOCKYER: -- on the Gaurov

245

1 case, is that right? 2 MR. DAVID GORRELL: She was there. I 3 think Ms. Koehl was unavailable for some reason, but... 4 MR. JAMES LOCKYER: Yes. And I -- as I 5 recall, Mr. Koehl also said that any plea arrangement 6 would be subject to the approval of Ms. Hall. 7 MR. DAVID GORRELL: That I don't 8 remember, but I -- I wouldn't be surprised in any case. 9 MR. JAMES LOCKYER: It's in one (1) of 10 the documents in the file you arrived with today. 11 MR. DAVID GORRELL: Really? 12 MR. JAMES LOCKYER: Yes. 13 MR. DAVID GORRELL: Fine, then I accept 14 that. 15 MR. JOHN STRUTHERS: It was the practice 16 at the time. 17 MR. JAMES LOCKYER: Yes. 18 MR. DAVID GORRELL: But the -- just -- 19 just to continue with this, what -- I said, my heart went 20 out to Gaurov's father. I don't know how I'd -- I'd act 21 in this situation if I had someone like Mr. Struthers 22 saying, Well, you can get ninety (90) days on weekends. 23 After emission, that's sixty (60) days. That's a maximum 24 of fifteen (15) weekends. The Mimico is jammed, so 25 you'll wind up doing only three (3), or four (4), or five

246

1 (5). You can do that, or you can sit in the courtroom 2 and be judged by everybody with a risk, with Charles 3 Smith up there with a mantle of Sick Kids on his 4 shoulder. You can go to jail. You can go to jail on a 5 manslaughter. 6 I really didn't think a murder was in the 7 cards, but you can go to jail on a manslaughter. What 8 decision would I make? I'm pretty sure I'd make the 9 decision he made even if I were not guilty. But as his 10 lawyer, I'm the only person in the whole scenario that 11 doesn't judge him. The police judge him when they charge 12 him. The Crown judges him when they prosecute him. The 13 Judge judges him, the jury judges him, the press judges 14 him. 15 When he says, I want to plead guilty, and 16 I will sign on the dotted line, and I did it, I'm not 17 going to tell him, No, sir, you're going to face the 18 trial and if you get eight (8) years, that's for the 19 greater good of the justice. 20 I took his instructions and I -- I would 21 not be at all surprised, with the stress that man was 22 under at the time, if he was doing it out of expediency. 23 MR. JAMES LOCKYER: And the instructions 24 that you received from him by way of the form that you 25 prepared, obviously the way it's typed up, it was -- the

247

1 words were your words in that document, is that fair? 2 MR. DAVID GORRELL: Yes, they were my 3 words. 4 MR. JAMES LOCKYER: And they were words 5 designed to fit the notion of criminal negligence. 6 Reckless is hardly a word an east Indian that doesn't 7 speak English is going to come up with. 8 MR. DAVID GORRELL: No, the -- this -- 9 these were my words. 10 MR. JAMES LOCKYER: Yes. And, as Mr. 11 Struthers was just saying, it was more a document for 12 your protection than a document to assist Gaurov's 13 father, is that fair? 14 MR. DAVID GORRELL: I think that's 15 probably fair. It's also a document that you would use 16 to fix his mind as to what he's doing, so that he can't 17 come back and -- I guess to protect counsel, that's 18 right. I was thirteen (13) pages short of sixteen (16), 19 but that was the purpose. 20 MR. JAMES LOCKYER: And am I right that - 21 - I don't know if you're aware now, the Shaken Baby 22 Syndrome notion back in the early '90s was, as best I 23 think we -- we've heard, largely uncontroversial in the 24 pediatric field. 25 In other words, the kinds of injuries that

248

1 Gaurov had were not only indicative, but virtually proof 2 that he was the victim of a shaking, whereas, in the mid 3 to late '90s, a number of pediatricians and pathologists 4 came to realize that that was not an attainable 5 proposition, and we now have this considerable 6 controversy about whether the -- there is such a thing as 7 Shaken Baby Syndrom. 8 Are you aware of that? 9 MR. DAVID GORRELL: I'm aware of it. I 10 read, is it Dr. Hill -- what's your -- the -- 11 COMMISSIONER STEPHEN GOUDGE: Whitwell. 12 MR. DAVID GORRELL: -- I'm sorry? 13 14 CONTINUED BY MR. JAMES LOCKYER: 15 MR. JAMES LOCKYER: Helen Whitwell, Dr. 16 Whitwell, yes. 17 MR. DAVID GORRELL: Yes, I see that 18 there's been movement in the -- in the science since 19 1992. 20 MR. JAMES LOCKYER: And back in 1992, 21 there really wasn't much controversy about what Dr. Smith 22 was claiming Gaurov's injuries were indicative of. 23 Did you -- did you -- which presumably put 24 you in a very difficult position indeed, or, at least, 25 your client in a very difficult position.

249

1 MR. DAVID GORRELL: Yes. Well, there was 2 the other doctor from Sick Kids. There was the one (1) 3 that I consulted, and I also read as much as I could on 4 it, and I would agree with what you're saying. 5 MR. JAMES LOCKYER: Did you ever hear 6 anything of the notion of a "re-bleed"? Do you know that 7 concept now? 8 MR. DAVID GORRELL: No. 9 MR. JAMES LOCKYER: Oh, you don't even 10 know it now. 11 MR. DAVID GORRELL: Well, it's -- no, I 12 haven't had -- 13 MR. JAMES LOCKYER: Well, Gaurov got a -- 14 a subdural hemorrhage at the time of birth, and there's 15 considerable theory now in the field that there could 16 have been a re-bleed of that original injury -- 17 MR. DAVID GORRELL: I re -- 18 MR. JAMES LOCKYER: -- which could have 19 caused the findings at the autopsy. 20 MR. DAVID GORRELL: -- I recall that he 21 had the injury at birth. 22 MR. JAMES LOCKYER: Mm-hm. But did you 23 know the concept of re-bleed back in 1992? I doubt you 24 did for what it's worth. 25 MR. DAVID GORRELL: I -- I can't

250

1 remember. 2 MR. JAMES LOCKYER: All right. 3 MR. DAVID GORRELL: Sorry. 4 MR. JAMES LOCKYER: So I thought -- I 5 just thought I'd take you through some of the other 6 aspects of -- of the situation of -- of Gaurov's father. 7 You've certainly mentioned a lot of them. 8 But was it your understanding that as a consequence of 9 the brain tumour suffered by Gaurov's mother within 10 forty-eight (48) hours of birth, that that meant that 11 Gaurov had suddenly had to look after two (2) children; 12 one (1) a 17-year-old (sic) infant, and one (1) a 13 newborn, until such time -- through himself and his 14 relatives, until such time as his -- his wife got out of 15 hospital? 16 MR. DAVID GORRELL: Well, she was out of 17 hospital at the time of the occurrence. 18 MR. JAMES LOCKYER: She'd been out for a 19 week, I think. 20 MR. DAVID GORRELL: Yes, not for very 21 long. 22 MR. JAMES LOCKYER: Mm-hm. 23 MR. DAVID GORRELL: Yes, he was carrying 24 a heavy burden. He was looking after a newborn. The 25 other one (1) I think was 17 months. And he was trying

251

1 to keep his job. And he's dealing in an English speaking 2 environment. 3 MR. JAMES LOCKYER: You'd have been 4 aware, would you, that his other 17-month-old infant was 5 taken away? 6 MR. DAVID GORRELL: Yes, there were CAS 7 problems, and I think that child came back. I have a 8 letter somewhere in the file here. Once the charge was 9 resolved, Children's Aid was quite prepared to allow the 10 family to reunite and would offer voluntary supervision 11 for a short period of time. 12 I think supervision was withdrawn early in 13 '93. You could tell me. 14 MR. JAMES LOCKYER: So -- yeah, May of 15 '93. 16 MR. DAVID GORRELL: May of '93. 17 MR. JAMES LOCKYER: So -- so in essence, 18 there was a further carrot there, dangled in front of -- 19 of Gaurov's father -- 20 MR. DAVID GORRELL: There was a whole -- 21 MR. JAMES LOCKYER: -- to enter a plea? 22 MR. DAVID GORRELL: -- there was a whole 23 salad. 24 MR. JAMES LOCKYER: Because he'd get his 25 other child back.

252

1 MR. DAVID GORRELL: That's right, and 2 there's -- and there -- there would be no red flag on his 3 immigration situation, and -- and he wasn't deported, and 4 I don't know how many weekends he did. You may well 5 know. You act for him now. 6 But -- 7 MR. JAMES LOCKYER: I actually don't 8 know. 9 MR. DAVID GORRELL: You don't know. 10 MR. JAMES LOCKYER: No. 11 MR. DAVID GORRELL: But I mean the 12 alternative, we only have to look at the recent Ontario 13 reports. 14 People that fight their cases, you know, 15 what's -- what's the phrase we have around the old City 16 Hall when I was there. People who plead not guilty, we 17 have a word for them. We call them inmates. 18 MR. JAMES LOCKYER: Mm-hm. 19 MR. DAVID GORRELL: That may be a very 20 cynical point of view, but this was a -- a plea which I, 21 if had I been in his position, would have accepted, 22 guilty or not. 23 MR. JAMES LOCKYER: So you'd have been 24 prepared to say you were guilty in order to accept the 25 plea?

253

1 MR. DAVID GORRELL: And I wouldn't 2 second-guess a person who did. 3 MR. JAMES LOCKYER: Mm-hm. 4 MR. DAVID GORRELL: My job as a lawyer 5 was to make sure that he knew exactly what he was charged 6 with; knew his alternatives; knew his choices; and then 7 make sure he's unequivocal in what he instructs me to do. 8 But I'm not his judge. 9 MR. JAMES LOCKYER: You -- you said that 10 Gaurov's father was quiet and withdrawn. I'm -- I'm not 11 sure what words you used, but words to that effect. 12 Undemonstrative. Words like that. Is that right? 13 MR. DAVID GORRELL: Yes, that may be 14 partly because he was -- during the conversations we had, 15 he was always listening to the interpreter. 16 MR. JAMES LOCKYER: Mm-hm. Do -- do you 17 -- did you ever have him assessed from a psychiatric 18 point of view, to see if he was depressed? Or did you 19 assume he was? 20 MR. DAVID GORRELL: Clinical depression, 21 the answer would be, no, I did not go down that road. 22 I'm sure he was depressed, as we all understand the word. 23 MR. JAMES LOCKYER: Mm-hm. If he had 24 been convicted of manslaughter, would you have 25 anticipated -- I think you said in your -- in -- in the

254

1 plea document that he would have got years in prison in 2 your view, is that right? 3 MR. DAVID GORRELL: My view is on a 4 manslaughter, yes, he would -- 5 MR. JAMES LOCKYER: And would -- 6 MR. DAVID GORRELL: -- at that time. 7 MR. JAMES LOCKYER: What would the 8 consequences of that be, in your experience, from a 9 deportation point of view? 10 MR. DAVID GORRELL: He'd be gone. I 11 think -- and I don't practice in that area, but maybe 12 someone could help me here, but I think if you're 13 sentenced to something more than six (6) months, then 14 you're automatically on the list and -- and, you know, 15 then you -- then you can fight it, but you -- they will 16 try to deport you. I could be wrong on that. 17 MR. JAMES LOCKYER: So that was another 18 part of the carrot of the plea? 19 MR. DAVID GORRELL: Yes, that was written 20 down, as you see, as an addendum on that -- 21 MR. JAMES LOCKYER: Yes. 22 MR. DAVID GORRELL: -- direction I -- I 23 had that obviously came up. There's also a letter in the 24 file from CAS about the older child and about the return 25 of the older child. A lot depended on what happened in

255

1 this case. 2 MR. JAMES LOCKYER: Something else that 3 occurred to me, and it's sort of a parallel to William 4 Mullins-Johnson's case, is that if you were going to 5 defend this, what did you see your defence as, and I'm 6 wondering if you saw it as an exclusive opportunity 7 defence. 8 MR. DAVID GORRELL: Well, that's where I 9 would have gone first, and I'm not sure I would have had 10 much luck there because he had given statements in the 11 presence of counsel -- and neither myself nor Mr. Kissoon 12 -- to the police in which he had admitted exclusive 13 opportunity. 14 MR. JAMES LOCKYER: Well, no, his wife 15 was in the house, too. 16 MR. DAVID GORRELL: Well, she was 17 recovering from a brain surgery, and his statement had 18 her in bed in the other room. 19 MR. JAMES LOCKYER: All right. 20 MR. DAVID GORRELL: So I would have gone 21 there first. Had -- had I no success there, I would have 22 had to meet Dr. Smith head on. 23 MR. JAMES LOCKYER: Mm-hm. And as you 24 look back on it now, knowing what you know about Dr. 25 Smith and the whole shaken baby controversy and the re-

256

1 bleed that I've just mentioned to you in passing -- 2 MR. DAVID GORRELL: And the meeting on 3 January 30th of 1992. I know about that now, too. 4 MR. JAMES LOCKYER: Well, no, I'm going 5 to leave that out for a minute -- 6 MR. DAVID GORRELL: Okay. 7 MR. JAMES LOCKYER: -- because I'm 8 wondering if -- if looking back on it now, you still 9 don't feel that perhaps Gaurov's father -- thank God he 10 did what he did in December of 1992. 11 MR. DAVID GORRELL: Yes, I think -- I 12 wouldn't second-guess his decision. 13 MR. JAMES LOCKYER: Mm-hm. 14 MR. DAVID GORRELL: He was caught up in 15 something that was bigger than himself, and we know about 16 it. That's why we're all here. 17 MR. JAMES LOCKYER: Yes. 18 MR. DAVID GORRELL: It was early days. 19 He was one of the pioneers in this particular situation 20 and he was facing the problem first -- or among the 21 first. And had he attempted to assert his innocence, 22 plead not guilty, put the Crown to the proof of its case, 23 it could have been disastrous for him. 24 I would have had to do my best to find a 25 pathologist, or a number of them -- and look at the

257

1 number that were called in '91 up in Timmins -- I would 2 have had to find pathologists who disagree with Dr. 3 Smith. They're not the easiest thing to find here in 4 Ontario. 5 Legal Aid would have had to authorize 6 going outside the Province, and knowing what we know now 7 about Shaken Baby Syndrome compared to what was known 8 then, they might have been hard to find, so I -- I don't 9 second-guess his decision at all. 10 MR. JAMES LOCKYER: Last week when you 11 were in Toronto, I understand -- it happened in my 12 presence, you phoned your co-counsel, is that right? 13 MR. DAVID GORRELL: Yes, Mr. Kissoon, 14 yes. 15 MR. JAMES LOCKYER: And you spoke to him 16 on -- on speaker phone. 17 MR. DAVID GORRELL: Yes, we didn't have 18 the file at that point, so we were -- 19 MR. JAMES LOCKYER: Right. 20 MR. DAVID GORRELL: -- I was trying to 21 get some details from him. 22 MR. JAMES LOCKYER: And he actually found 23 the file, I think, shortly thereafter. 24 MR. DAVID GORRELL: Monday, I think. 25 MR. JAMES LOCKYER: Monday of this week,

258

1 yeah. 2 MR. DAVID GORRELL: I think so. 3 MR. JAMES LOCKYER: And in that 4 conversation with Mr. Kissoon he talked about how 5 Gaurov's father had, and -- and I think I'm quoting: 6 "...always categorically denied the 7 crime." 8 Do you remember that? 9 MR. DAVID GORRELL: Certainly he did to 10 the police and he -- there was no admission of commission 11 of the crime until we got down to the point of giving the 12 instructions. 13 MR. JAMES LOCKYER: And until then, there 14 had been nothing but denial. 15 MR. DAVID GORRELL: Yes, I would -- I 16 would go that far. I think it -- the discussions, as I 17 recall them, he didn't say very much at all but, 18 certainly, denial was on the table. He denied it 19 initially, he denied it to the police, and we were 20 talking about the case of the Crown, Dr. Smith and so on. 21 MR. JAMES LOCKYER: And the admission 22 that he provided you on the form was an admission that 23 you had prepared in print but not an admission that he 24 turned into a form of confession to you as to what had 25 happened on the night in question; is that fair?

259

1 Do you follow what I'm saying? 2 MR. DAVID GORRELL: I follow what you're 3 saying. I'm just trying to -- it's a long time ago. 4 It's sixteen (16) -- 5 MR. JAMES LOCKYER: I understand. 6 MR. DAVID GORRELL: -- years but I -- 7 when he came in and he said he was going to accept the 8 offer, at that point I would point blank have said, You 9 told me you're accepting this offer. Now we're at the 10 point where you have to tell me whether or not you're 11 guilty of the offence. Did you do -- and I would have 12 listed it off. 13 I would have got an assertion, yes, he 14 would have signed up and I would have moved from there. 15 MR. JAMES LOCKYER: All right. So you'd 16 have done the talking? 17 MR. DAVID GORRELL: I would have put, 18 through the interpreter, yes. And then he would have -- 19 but I did have an admission from him because I need one 20 if there's going to be a plea to anything. 21 MR. JAMES LOCKYER: So you'd have 22 essentially read the form to him and had the interpreter 23 translate it to him for you? 24 MR. DAVID GORRELL: Well, the form is 25 definitely translated to him because that's in my

260

1 dockets. There would have been a verbal discussion that 2 preceded that. I mean, this is certainly not a verbatim 3 transcript of what we said but I would have had an 4 admission. But the admission might well have been 5 coloured by his assessment of the situation with his 6 family and friends the night before when he went home 7 with the offer in his pocket. 8 MR. JAMES LOCKYER: And at the time you - 9 - that this all happened, was it your belief you had full 10 disclosure or partial disclosure? 11 MR. DAVID GORRELL: Well, I see now I 12 didn't have full disclosure. 13 MR. JAMES LOCKYER: How close was this to 14 the Stinchcombe decision, do you remember? 15 MR. DAVID GORRELL: I think it's one 16 year, isn't it? I think -- wasn't -- 17 MR. JAMES LOCKYER: Stinchcombe was -- 18 MR. DAVID GORRELL: -- Stinchcombe 1991? 19 MR. JAMES LOCKYER: November '91, as I 20 recall. 21 COMMISSIONER STEPHEN GOUDGE: I just 22 apply it. I don't know when it was decided. 23 24 CONTINUED BY MR. JAMES LOCKYER: 25 MR. JAMES LOCKYER: I think it was

261

1 November -- 2 MR. DAVID GORRELL: Did I get that right? 3 MR. JAMES LOCKYER: -- November of 1991. 4 MR. DAVID GORRELL: All right. 1991, 5 right. 6 MR. JAMES LOCKYER: So by the -- 7 MR. DAVID GORRELL: Yes, that's right. 8 MR. JAMES LOCKYER: By the time of the 9 plea you've moved on thirteen (13) months? 10 MR. DAVID GORRELL: Yes, Toronto -- 11 Toronto homicide, I think you would agree, was a leader 12 in disclosure. They used to prepare a brief for Crown 13 and defence as far back as the '70s and just hand them 14 out. 15 The brief that I had from Detective Prisor 16 was one of those briefs. It's -- it's not at all like 17 the briefs you get nowadays. 18 Did I have full disclosure? Maybe I did 19 in accordance with the standards of the times. 20 Certainly, it would not be full disclosure today. 21 MR. JAMES LOCKYER: Is it fair to say, 22 sir, to go back to Mr. Kissoon again for a moment, that 23 when you spoke to him on the phone the other day that he 24 was extremely sympathetic to Gaurov's father's situation? 25 MR. DAVID GORRELL: Yes, as am I.

262

1 MR. JAMES LOCKYER: And felt that 2 anything that happened back in December of 1992 was 3 simply a way to get around potential awful consequences? 4 MR. DAVID GORRELL: Well -- 5 MR. MARK SANDLER: Commissioner? 6 Commissioner, I don't think that's really helpful. I 7 mean, all he's doing is -- is repeating what Mr. Kissoon 8 said to the witness here. 9 COMMISSIONER STEPHEN GOUDGE: Yes -- 10 MR. MARK SANDLER: I don't see how that 11 is -- 12 COMMISSIONER STEPHEN GOUDGE: -- it's not 13 going to be of much help to me, Mr. Lockyer. Why don't 14 you move on? 15 16 CONTINUED BY MR. JAMES LOCKYER: 17 MR. JAMES LOCKYER: Mr. Gorrell, what 18 would you like to see happen now with -- with Gaurov's 19 father's case? 20 MR. DAVID GORRELL: Well, with 21 twenty/twenty (20/20) hindsight, knowing what we know 22 about -- well, I'm sorry. 23 MR. MARK SANDLER: Excuse me for a 24 moment. I'm sorry to interrupt Mr. Lockyer's cross- 25 examination again. This is a case that is either before

263

1 the courts or about to be before the courts. I'm not 2 sure it's terribly helpful in this process to ask this 3 witness to see what he'd like to see happen in the 4 judicial proceedings. 5 I'm a little concerned. We've been very 6 careful in the way we've -- we've tried to keep that 7 separation and -- and I'm just not sure that's very 8 helpful, with great respect, to your work. 9 COMMISSIONER STEPHEN GOUDGE: Mr. 10 Lockyer...? 11 MR. JAMES LOCKYER: Mr. Gorrell was an 12 integral part of what happened to Gaurov's father back in 13 1992 and has an immense interest in what happened then 14 and what will happen in the -- in the future. 15 And insofar as he can contribute to what 16 may happen in the future, in my submission, it would be 17 important for Mr. Gorrell to be able to do that and also 18 extremely important for Gaurov's father to hear him say 19 what he has to say in that regard, and for Gaurov's 20 father generally, as well. 21 COMMISSIONER STEPHEN GOUDGE: I take from 22 everything Mr. Gorrell has said that he would cooperate 23 in every way with the proceedings you have underway but 24 they really have to stay in the forum that's appropriate 25 for them, don't they?

264

1 MR. JAMES LOCKYER: Oh, I'm not saying 2 they don't. Mr. Gorrell can't solve the case by waving a 3 magic wand of his own, but if he can tell us how he would 4 like it to resolve, in -- in my submission, it would be 5 helpful. 6 COMMISSIONER STEPHEN GOUDGE: I think I 7 can guess what his answer would be, Mr. Lockyer. 8 9 CONTINUED BY MR. JAMES LOCKYER: 10 MR. JAMES LOCKYER: Okay. Mr. Hillyer, I 11 have less questions for you, but going back to the 12 original question that I asked Mr. Struthers, could you 13 relate it to -- to Joshua's mother's case? 14 I think we can call her Sherry because 15 she's identified very well in the public forum. 16 MR. BRUCE HILLYER: The first question, 17 you mean -- at my age you might have to -- 18 MR. JAMES LOCKYER: The -- the kind -- 19 the -- the -- what does it mean in a case like this when 20 it's alleged by Sherry that she's the victim of a 21 miscarriage of justice? What's the significance of the 22 fact that she chose not, in your case -- or in her case, 23 to contest the charge that she was facing, or, at least, 24 a reduced charge from the charge she was facing? 25 Does that mean in your view that she was

265

1 not a misca -- not a victim of a miscarriage of justice? 2 MR. BRUCE HILLYER: Oh, no, I think she 3 clearly was. I think the -- again, it comes back to what 4 both counsel have said about the disparities in the -- 5 the scales just don't -- aren't -- aren't equal. They 6 start out unequal and they remain unequal all the way 7 through it. 8 She probably, like My Friend's client was 9 in, just was caught between a rock and a rock. She had - 10 - I mean when you're -- when you're -- when I -- when we 11 explained to her what the likely consequences was of -- 12 of a finding on infanticide as opposed to manslaughter or 13 -- or murder, there just isn't any -- any -- really any 14 choice to someone in her situation. I mean she's totally 15 unsophisticated, without resources. 16 And I wanted to say one (1) more thing, 17 and My Friends have talked about, and I mean -- when 18 we're balancing up as counsel and we're looking at what's 19 the likely disposition going to be with -- with Smith and 20 his -- his eloquence and his reputation and particularly, 21 when you're -- when you're representing someone who's 22 unsophisticated and -- and in a -- in a bad mental state 23 and -- and trying to deal with a -- with all that situa - 24 - all that situation; part and parcel of what I have been 25 doing for now thirty-six (36) years; for the last twenty-

266

1 five (25) years, I've been doing focus groups in any 2 serious case I'm trying, whether it's a civil case or -- 3 or a criminal case. 4 And I am constantly amazed at how 5 laypeople resolve issues. And -- and it's helped me 6 understand jury verdicts. It's helped me to predict jury 7 verdicts. And there -- I can't remember whether I did a 8 focus group in Sherry's case, but I expect that if I did, 9 I would have been troubled by how she would have been 10 perceived because of what she was going through, and 11 because of her background, and -- and what her social 12 skills were in that -- in the context of sitting in the 13 dock and facing, you know, the police, the Crown, the -- 14 Dr. Smith, and the whole host of other doctors that would 15 have appeared. 16 They were all part of the time line -- 17 people who tried to resuscitate Joshua and the local 18 coroner, Dr. Bonn, and -- and so on, so yeah, I share 19 what My Friends are saying. It's just a no win situation 20 for -- for her. 21 And -- and I was very proud of the fact 22 that she wouldn't -- she would not, even when that very 23 attractive offer was made, the only way it was ever going 24 to work is if she didn't have to admit that she did 25 anything.

267

1 MR. JAMES LOCKYER: And that worked 2 against her, did it not? 3 MR. BRUCE HILLYER: You mean in the -- in 4 the sentence? 5 MR. JAMES LOCKYER: Mm-hm. 6 MR. BRUCE HILLYER: Well, yeah, but that 7 was unexpected. I -- I really -- I was surprised by the 8 verdict and I -- and I thought -- 9 MR. JAMES LOCKYER: On the sentence you 10 mean. 11 MR. BRUCE HILLYER: On the sentence, 12 yeah. I expected -- I expected something much less than 13 -- than what she got, I -- I was actually pretty 14 optimistic that with some -- with some psychiatric 15 evidence that she might get a suspended sentence. 16 MR. JAMES LOCKYER: Mm-hm. 17 MR. BRUCE HILLYER: But the justice was - 18 - he was emotional that day when he finally -- I mean, he 19 sat on it for months before he decided what he was going 20 to do, and -- and he was very emotional how he dealt with 21 it, and was -- was big enough to retract some it years 22 later in the media. 23 MR. JAMES LOCKYER: And the -- the -- I 24 mean, I think the emotion is reflected in his reasons, 25 but the emotion particularly arose out of what he saw as

268

1 Sherry's refusal to acknowledge she'd done anything 2 wrong. 3 MR. BRUCE HILLYER: Right. If I remember 4 right, he spoke with a very loud voice, and he said, If 5 you won't speak for the child, I will speak for your 6 child. And then away he went. 7 MR. JAMES LOCKYER: Mm-hm. You had spent 8 a lot of time with Sherry in -- in preparation for the 9 case, is that right? 10 MR. BRUCE HILLYER: Yes. 11 MR. JAMES LOCKYER: She was very anxious 12 and very scared? 13 MR. BRUCE HILLYER: Yes. 14 MR. JAMES LOCKYER: Do you happen to 15 remember if she was particularly affected by Dr. Smith's 16 evidence when she saw it? 17 MR. BRUCE HILLYER: I don't remember. 18 But clearly, we -- we discussed the bare bones of his 19 evidence, and -- and what the -- what he says he found. 20 MR. JAMES LOCKYER: Okay. And -- and you 21 said this morning -- I think it was this morning to 22 Commission counsel, Mr. Sandler, that she -- however her 23 son came to die, she -- she blamed herself for it. 24 Is that right? 25 MR. BRUCE HILLYER: Yeah -- yeah. It was

269

1 -- I don't know whether she was saying it in the sense of 2 -- in the social context of, I wish I had gotten up and - 3 - it was always said in the context, I wish I'd -- hadn't 4 put him in a bed like that. I wish I had done more about 5 the mould, or I wish I'd gotten up in -- in the middle of 6 the night and checked on him. 7 I mean, they had a -- they had a monitor 8 in the -- in the room and everything. 9 MR. JAMES LOCKYER: Yes, they did. 10 MR. BRUCE HILLYER: And they had -- you 11 know. She was very -- very -- felt very bad that -- that 12 this baby -- her baby had died in her -- in her care. 13 MR. JAMES LOCKYER: Mm-hm. Mr. 14 Struthers, the -- the -- one (1) of the possible problems 15 that might be identifiable out of these cases is that -- 16 and I -- and I come to you because you weren't personally 17 involved in -- in either of the two (2) cases. Obviously 18 the other counsel were, or indeed, in a situation quite 19 like they were. 20 MR. JOHN STRUTHERS: I could have been. 21 MR. JAMES LOCKYER: You could well have 22 been. But to take Mr. Gorrell's case, you had a father 23 charged with second degree murder. The Crown offering a 24 plea to criminal negligence causing death for ninety (90) 25 days, weekends.

270

1 In the case of Mr. Hillyer's case, you 2 have the Crown who tried to sustain a charge of first 3 degree murder. It had been reduced on a certiorari 4 application after a committal on first degree murder to 5 second degree murder. 6 MR. JOHN STRUTHERS: Yes. 7 MR. JAMES LOCKYER: So clearly the Crown 8 had actually tried to pursue a planned and deliberate 9 murder charge as much as they possibly could. 10 And were now offering a plea to 11 infanticide, which is obviously a -- a big step down from 12 first, to second, to manslaughter, ultimately, to 13 infanticide for a sentence that was really bound to be a 14 reformatory sentence, at least. 15 Does this raise, at least in your mind, 16 any systemic problems with the Crown using this sort of - 17 - sort of Damocles and -- and eliciting pleas to much 18 less serious crimes? 19 MR. JOHN STRUTHERS: Yes. I don't for a 20 minute criticize either of My Friends for the difficult 21 position they were in. I mean, Mr. Gorrell stated the 22 science in his case, of course, was also very much in its 23 infancy as well, and there was no question that Shaken 24 Baby Syndrome was, of course, not being questioned to the 25 same extent that it was even five (5), or ten (10) years

271

1 later. So he was in an even more difficult position than 2 -- than, perhaps, I was. 3 But obviously when you have a position 4 where a Crown attorney is looking at what is -- you know, 5 if -- if -- and quite rightly, in your case -- if your 6 client had actually been guilty of a crime of killing 7 this child, then why wouldn't the judge be emotional 8 about it, and upset with her, and say exactly what he did 9 say, which is you are remaining moot and admitting 10 nothing, but you're coming to Court, and effectively 11 entering a -- a plea of guilty by not contesting the 12 Crown's allegations. 13 I mean, you know, there's something wrong, 14 isn't there? If -- if the person really did do it, they 15 deserve to be punished, and perhaps, even more seriously 16 than they were. 17 Being offered weekends for effectively 18 either negligently or otherwise causing the death of a 19 child. That's an inappropriate sentence, isn't it; in 20 many ways, quite potentially? 21 So at the end of the day, if the case 22 isn't provable, I think that the -- the unlimited 23 discretion that's offered to the Crown attorneys with 24 respect to the sorts of extortive guilty pleas that are 25 being arranged is of serious problem. Of course it is.

272

1 And it -- you know, you're in a position 2 where you have almost no choice. You're being put in a 3 position where there's almost no choice. 4 MR. JAMES LOCKYER: Mr. Gorrell, do you 5 see any reason why in the case of Gaurov's father, the 6 Crown couldn't have simply said to you, We're not that 7 comfortable with our case at all, so we're going to 8 proceed on a charge of criminal negligence causing death, 9 whether or not she'd plead guilty to it? 10 MR. DAVID GORRELL: At the time when I 11 had disclosure and I saw the information charging second 12 degree murder, I thought it was an overcharge. I thought 13 at its highest, it would be a form of manslaughter which 14 includes criminal negligence causing death. So I was of 15 the view then and now, that they started from the high 16 ground. 17 Then -- 18 MR. JAMES LOCKYER: Well, -- 19 MR. DAVID GORRELL: Well, -- 20 MR. JAMES LOCKYER: -- the high ground 21 meaning -- 22 MR. DAVID GORRELL: Well, the -- 23 MR. JAMES LOCKYER: -- charging high 24 ground. 25 MR. DAVID GORRELL: Yeah.

273

1 MR. JAMES LOCKYER: You don't mean from 2 good high ground? 3 MR. DAVID GORRELL: Well, I -- what I 4 mean to say is it started -- 5 COMMISSIONER STEPHEN GOUDGE: I 6 understood what he meant by that. 7 8 CONTINUED BY MR. JAMES LOCKYER: 9 MR. JAMES LOCKYER: Yes. Be very careful 10 on that one. 11 MR. DAVID GORRELL: They -- they took the 12 most serious charge and then they -- 13 MR. JAMES LOCKYER: Yes. 14 MR. DAVID GORRELL: -- they -- 15 MR. JAMES LOCKYER: Bargained it down. 16 MR. DAVID GORRELL: Well, they laid it 17 and as I said previously, that's enough to scare 18 anyone, -- 19 MR. JAMES LOCKYER: Mm-hm. 20 MR. DAVID GORRELL: -- let -- let alone a 21 person new to the country, and it gave them room to 22 bargain down, yes. 23 MR. JAMES LOCKYER: Mm-hm. The -- 24 COMMISSIONER STEPHEN GOUDGE: How long 25 are you going to be, Mr. Lockyer? Are you going to run

274

1 out your time, do you think? 2 MR. JAMES LOCKYER: How long do I have? 3 I -- have I used forty (40) minutes? 4 COMMISSIONER STEPHEN GOUDGE: Yes, you 5 have used forty (40). 6 MR. JAMES LOCKYER: Could you take the 7 recess now and I may just use five (5) more and give Mr. 8 Sokolov his ten (10) back. 9 COMMISSIONER STEPHEN GOUDGE: That is 10 fine. 11 MR. JAMES LOCKYER: Because I feel guilty 12 taking -- 13 COMMISSIONER STEPHEN GOUDGE: Rise now 14 for fifteen (15) minutes. 15 16 --- Upon recessing at 3:33 p.m. 17 --- Upon resuming at 3:51 p.m. 18 19 THE REGISTRAR: All rise. Please be 20 seated. 21 COMMISSIONER STEPHEN GOUDGE: Mr. 22 Sandler. 23 MR. MARK SANDLER: Yes, Commissioner. 24 Before Mr. Lockyer continues on, I am just concerned 25 about one (1) area, and I -- I just want to draw it to

275

1 your attention. 2 When I examined Mr. Gorrell earlier in the 3 day, I took from his evidence that he had no awareness of 4 this Amber memorandum. He couldn't speak to the issue of 5 whether the Amber case conference spoke to the motivation 6 of the Crown in his case. Indeed, his only evidence as 7 to the state of mind of the Crown was that Ms. Koehl had 8 always acted with integrity in his dealings -- in her 9 dealings with him in -- in the past, and he assumed that 10 that was the case here. 11 I'm just a little bit concerned that on 12 the last day of the hearing, in cross-examination, we're 13 getting into the purported motivations of some of the 14 Crowns here, who will have no opportunity to speak to 15 their motivations in the case. 16 There are important systemic issues that 17 arise in -- in disclosure and other aspects but I'm just 18 very, very concerned that -- that motivations of the 19 Crowns in the individual cases are difficult for you to 20 make any findings of fact on -- on the last -- based on 21 evidence heard on the last day of the hearing, given that 22 factual context that I have just described and without 23 any opportunity for a response. 24 COMMISSIONER STEPHEN GOUDGE: Well, let 25 me simply say, and this is, sort of, very direct; the

276

1 focus of this Inquiry from the beginning has been on 2 systemic issues. That is going to continue to be the 3 focus. I am not concerned to make findings about 4 motivations of individual Crowns and individual cases. I 5 am very interested in systemic issues. That is where my 6 focus will remain. 7 MR. MARK SANDLER: All right. Thank you. 8 Those are my only comments. 9 COMMISSIONER STEPHEN GOUDGE: Mr. 10 Lockyer. 11 MR. JAMES LOCKYER: I will just be five 12 (5) minutes and give AIDWYC their time back, Mr. 13 Commissioner. 14 COMMISSIONER STEPHEN GOUDGE: Thank you. 15 16 CONTINUED BY MR. JAMES LOCKYER: 17 MR. JAMES LOCKYER: Mr. Struthers, one of 18 the things that you told us about was the preliminary 19 hearing and the evidence of Dr. Smith at the preliminary 20 hearing and how you used that opportunity to explore his 21 evidence with him in the way that you -- ways that you 22 chose to. 23 And -- and Mr. Hillyer, you said much -- 24 you -- you said some similar things about the preliminary 25 hearing.

277

1 And the preliminary hearing is something 2 that's been under attack a lot in recent years and maybe 3 under more attack in the near future, I fear. 4 And I was wondering if you could comment 5 on the preliminary hearing and the use it may have in 6 preventing miscarriages of justice. Mr. Struthers. 7 MR. JOHN STRUTHERS: Well, I think it's 8 critical. I mean from my perspective, certainly on 9 serious cases, the suggestion seems to be that you have 10 disclosure. You don't need anything more. You can go to 11 trial because now there's such a litany of case law with 12 respect to complete disclosure. 13 It's no substitute for cross-examination. 14 Our entire system of justice is based on the fact that we 15 get to the truth by competing interest; by having someone 16 represented in Court and by having them actually 17 challenge the evidence of the Crown. 18 There's no question that disclosure in 19 unchallenged -- unchallenged, and as a result there is 20 absolute necessity, in my view, for a preliminary hearing 21 on serious cases of this nature so that you can actually 22 challenge the Crown's evidence. 23 The suggestion that somehow this is an 24 inefficient way of going about things, is in my 25 respectful submission, just nonsense. It resulted in

278

1 this case in avoiding what might have been a two (2) 2 month trial; in my case -- in the Maureen's case, in my 3 view. 4 And I think it's critical to understand 5 that if you are able to challenge the evidence, this does 6 focus the proceedings. It does focus everyone's view on 7 what the issues are. It does challenge the evidence, and 8 you know, there's nothing like negotiating with a Crown 9 attorney who's trying to negotiate based on a synopsis. 10 The synopsis is someone's best dream of 11 what they're going to be able to prove at the end of the 12 day, and if somebody doesn't have to prove something, 13 negotiating with them is very difficult. 14 When you ask somebody to, Okay, prove it, 15 all of the sudden their position becomes very, very 16 different. And when you challenge their evidence in an 17 effective way, obviously your entire point of view may 18 change radically and you are able to explore the 19 evidence. You're able to have someone expand on the 20 evidence. You're able to say, This is what I'm concerned 21 with, whether it's disclosed or not, and you get the 22 answers that might be critical down the line. 23 I think it's very important. 24 MR. JAMES LOCKYER: Do you find the 25 preliminary hearing to be an effective way of controlling

279

1 a Crown over-charting? 2 MR. JOHN STRUTHERS: No, I don't. 3 MR. JAMES LOCKYER: Mm-hm. 4 MR. JOHN STRUTHERS: I think that 5 effectively what happens is you -- you are -- you know, I 6 sometimes say that the test -- the evidentiary test at a 7 prelim is, will some Judge some day let this in. 8 It's not as if you have a position where, 9 you know, the thing is fully fleshed out at the prelim. 10 In many cases, evidentiary rulings and -- and that sort 11 of thing go by the wayside, but in my view, the over- 12 charging is the problem to begin with. You're 13 negotiating on an over-charge on many -- many instances, 14 and that doesn't seem to get solved by the prelim. 15 I know you were able to take it to 16 certiorari, in fact, and get it knocked down by the 17 Superior Court from first degree to second degree, and 18 then that helped to some extent, but I don't find that 19 there is committals for trial very often on lesser 20 offences or that the offences are, shall we say, focussed 21 in that way as a result of the preliminary hearing. 22 MR. JAMES LOCKYER: All right, thank you. 23 Thank you, Mr. Struthers. 24 COMMISSIONER STEPHEN GOUDGE: Thanks, Mr. 25 Lockyer. Mr. Sokolov...?

280

1 2 CROSS-EXAMINATION BY MR. LOUIS SOKOLOV: 3 MR. LOUIS SOKOLOV: Good afternoon, 4 gentlemen. I appear for AIDWYC, the Association in 5 Defence of the Wrongly Convicted. 6 Mr. Struthers, I want to ask you first 7 about the -- the issue of quality control among defence 8 counsel and how to ensure that people who take on these 9 cases have the necessary skill set in order to adequately 10 represent their clients in the face of difficult and 11 complicated evi -- evidence. 12 And as I understand it, Legal Aid now has 13 an extremely serious criminal matters panel, correct? 14 MR. JOHN STRUTHERS: They do. The test 15 is very limited. In other words, there is a -- it's 16 self- reporting. It's a series of indicia as to whether 17 or not you're capable of handling a serious case, but 18 the, if you will, checklist of things that you have to be 19 satisfied you're able to do or have done in the past few 20 years, I'm not sure anyone would have difficulty 21 qualifying for it at this point -- 22 MR. LOUIS SOKOLOV: All right. 23 MR. JOHN STRUTHERS: -- who has practiced 24 criminal law exclusively for even a short period of time. 25 MR. LOUIS SOKOLOV: And obviously that

281

1 would only apply, even insofar as it goes, to legally 2 aided cases. 3 MR. JOHN STRUTHERS: It would, and you 4 run into the difficulty, of course, is the people have 5 the right to counsel of choice. It's very difficult to 6 say to somebody, You can't have the lawyer you want to 7 represent you because someone else's view is that it -- 8 he or she is not up to the task. 9 And, you know, you're always in this 10 competing interest situation where if somebody wants this 11 lawyer because they've had a relationship with them; 12 they've done a shoplifting with them before, and now 13 they're charged with murder, they still want the same 14 lawyer because they comfortable. 15 It doesn't necessarily jive with someone 16 else's opinion of this person's competency. 17 MR. LOUIS SOKOLOV: Now, would I be 18 correct that your view would be that there needs to be 19 some level of quality control among who can do these 20 cases? 21 MR. JOHN STRUTHERS: Yes. 22 MR. LOUIS SOKOLOV: And would you -- what 23 would your view be about whether this principle should be 24 dealt with at the licensing level by way of a specialty 25 certificate or a licensing requirement that persons who

282

1 take on homicide cases -- 2 MR. JOHN STRUTHERS: Well -- 3 MR. LOUIS SOKOLOV: -- have that -- 4 MR. JOHN STRUTHERS: -- you -- you know, 5 if you pay the right amount of money now, the Law Society 6 will certify you an expert with respect to just about 7 anything. I -- you know, I'm not exactly sure how we are 8 -- would administer such a thing or who judges the judges 9 at this point. It's a very difficult issue. 10 MR. LOUIS SOKOLOV: Leaving aside whether 11 or not the particular certification program in place now 12 is sufficiently effective -- 13 MR. JOHN STRUTHERS: Right. 14 MR. LOUIS SOKOLOV: -- but the principle 15 itself of licensure or certification being a prerequisite 16 for certi -- for serious cases, is that something you 17 endorse? 18 MR. JOHN STRUTHERS: Well, I have 19 difficulty with somebody who's been practicing in the 20 Defence Bar for two years, who's never done a jury trial, 21 is handling a homicide defence. 22 You can't get practice anymore. I mean 23 everyone who's of our vintage remembers when the -- the 24 lawyers lounge at 361 was full, in the morning, of 25 people.

283

1 They were there doing jury trials on break 2 and enters. They were doing jury trials on stolen cars. 3 Now the only jury trials that really happen are 4 historical sexual assaults, serious robbery gun and drug 5 charges and homicides. 6 So you either sink or swim on serious 7 cases. What Legal Aid has been doing is -- reluctantly, 8 because of the cost, they've been approving junior 9 counsel or co-counsel on serious cases much more often 10 then they used to in order to have people with this kind 11 of experience in front of a jury. 12 Maybe they take a witness, maybe they do 13 one (1) legal argument; whatever the case may be in the 14 jury trial, so that they can get a comfort level, and 15 obviously an expertise level with respect to serious 16 cases because it's difficult to come by these days. You 17 can't practice on a stolen car case. 18 MR. LOUIS SOKOLOV: Mr. Hillyer, do you 19 have anything to add with respect to the issue of quality 20 control and how to ensure that the people doing these 21 cases have the necessary skill set? 22 MR. BRUCE HILLYER: No, I -- I mean I -- 23 I sho -- it's been my experience as well. I mean, in the 24 early days I was -- I cut my teeth as a junior for other 25 people doing -- doing serious cases, and those cases

284

1 aren't around as much anymore. So no, I don't know the 2 answer to it. 3 MR. LOUIS SOKOLOV: All right. 4 MR. BRUCE HILLYER: I -- I'm not a big 5 fan of this specialization program. I've never applied 6 for any specialization whatsoever. 7 MR. LOUIS SOKOLOV: Let me turn to a 8 different issue. Mr. Struthers, you made mention earlier 9 today in your evidence of the Bushey Case and the dual 10 role of the Crown, one (1) being Minister of Justice and 11 the other being the -- the prosecutor. 12 MR. JOHN STRUTHERS: Yes. 13 MR. LOUIS SOKOLOV: And going back to -- 14 to your case -- your strategy in that case, if I can 15 probably over-simplify it was to, as I understand, try 16 and bury the prosecutor with paper and to urge him to do 17 the right thing and withdraw the charge, correct? 18 MR. JOHN STRUTHERS: Yes. 19 MR. LOUIS SOKOLOV: And so what you were 20 doing, I take it, was trying to appeal to the -- the 21 Minister of Justice part of the -- the Crown role? 22 MR. JOHN STRUTHERS: Well, I was in that 23 office for three (3) and a half years, and Steve Leggett 24 (phonetic) was my boss. And he made it very clear to all 25 of us that we were local Ministers of Justice and that we

285

1 were to look at the cases that we were dealing with in 2 that light, and that's the way, if you will, I was 3 brought up in the law. 4 And that's the same office that Mr. 5 Armstrong is in. And I had faith in his sense of -- 6 inate sense of justice at the end of the day that if he 7 was convinced that there was a case for the defence that 8 was overwhelming in the way I felt it was, that he would 9 eventually do the right thing. 10 And I was working on two (2) kinds of the 11 -- the approach at the -- simultaneously. You know, 12 defending the case and also trying to get the Crown to 13 see reasonable. 14 MR. LOUIS SOKOLOV: And from your 15 perspective, as I took your evidence earlier today, was 16 that you obviously got the Crown to do the right thing, 17 but there was certainly some reluctance upon -- along the 18 way for him to get there? 19 MR. JOHN STRUTHERS: Yes. 20 MR. LOUIS SOKOLOV: And I would suggest 21 to you that part of the -- the difficulty in putting 22 forward that strategy, is when you have the same person 23 who you're locked in a intense battle with, trying to put 24 on the Minister of Justice hat isn't necessarily the 25 easiest thing for him or her to do, would you agree with

286

1 that? 2 MR. JOHN STRUTHERS: I can't speak to 3 that. I can't speak to the state of mind or the -- 4 anything to do with what the Crowns might or might not be 5 able to do in the bifurcation of their roles. It's very 6 difficult. 7 MR. LOUIS SOKOLOV: Well, let me -- let 8 me ask you this then. Do you think it would have been 9 easier or more helpful to you if there were another route 10 within the Ministry of the Attorney General to access 11 that Minister of Justice role to determine whether a 12 charge should be withdrawn, rather than having to go 13 directly through the trial grown -- Crown that you are 14 embroiled in a trial with? 15 MR. JOHN STRUTHERS: Well, there is. I 16 mean, you can go to a superior at some point and lay it 17 out and say, This isn't working. I mean, you can do 18 that. I mean obviously it will taint your relationship 19 with your trial Crown if you try to go over their head, 20 but there is a route to do that. 21 I mean, you can go to their boss, you can 22 go to their senior Crown, you can go to their local Crown 23 if you choose to. And people that have been in the 24 business as long as we are know who these people are 25 personally.

287

1 I mean, we can make a phone call and say, 2 Will you look at this particular case for me? There's 3 something wrong here. Without question. 4 MR. LOUIS SOKOLOV: Right. But, as you 5 say, you run the risk of tainting your relationship with 6 the Crown? 7 MR. JOHN STRUTHERS: You would if there 8 was a formal process, too. I'm not sure that would 9 change things. 10 MR. LOUIS SOKOLOV: Thank you. Those are 11 my questions. 12 MR. JOHN STRUTHERS: You're welcome. 13 COMMISSIONER STEPHEN GOUDGE: Thanks, Mr. 14 Sokolov. Mr. Di Luca...? 15 16 CROSS-EXAMINATION BY MR. JOSEPH DI LUCA: 17 MR. JOSEPH DI LUCA: Thank you, Mr. 18 Commissioner. 19 Gentlemen, good afternoon. I'm here on 20 behalf of the Criminal Lawyers Association. Thankfully 21 given time. Most of my questions have been asked and 22 answered so I'll keep it brief. 23 Mr. Struthers, just on the issue of Legal 24 Aid -- 25 MR. JOHN STRUTHERS: Yes.

288

1 MR. JOSEPH DI LUCA: -- I haven't been 2 practising that long comparatively. When I started, I 3 think the rule of thumb was, before you took on a murder 4 trial you needed maybe ten (10) years of experience under 5 your belt. I think you could get away with seven (7) if 6 you were sharp. 7 Have you seen that change? 8 MR. JOHN STRUTHERS: Very much so. I 9 think the problem is that the Legal Aid rate is so low 10 that I can give you a long list of senior counsel who are 11 extremely experienced and well known who won't touch it. 12 They won't go near it. 13 And, as a result, the pool of lawyers 14 prepared to do serious Legal Aid cases has diminished 15 dramatically, in my experience. 16 I know, for example, there are -- I could 17 name names, I guess I'll choose not to -- but young 18 lawyers who are, you know, eight (8) or ten (10) years 19 out, start taking on homicide cases and start winning 20 them regularly, who then, of course, decide that they 21 can't do it anymore, that it's just a practice killer, 22 among other things -- I mean, these cases, as you know, 23 for many of them, especially if there's co-accused, and 24 you lose control of the proceedings in terms of the 25 motions or who's doing what, can take three (3), four

289

1 (4), five (5), six (6) months with pre-trial motions and 2 the trial itself. 3 To do that and only that for that period 4 of time at the Legal Aid rate is really untenable. I 5 mean, you're in a position where if you're doing a week- 6 long trial on Legal Aid, then you can go off and actually 7 have some clients pay you for a while to pay the bills, 8 you're all right. 9 But if you're in a three (3) to six (6) 10 month trial, you're stuck. You're not doing anything 11 else and, as a result, you're really at the mercy of 12 Legal Aid who then, at the end of the day, after you send 13 them your bill and you get paid four (4) or five (5) 14 months after you send them your bill. 15 I mean, it really is financially untenable 16 to take on long cases for anybody who doesn't have other 17 resources. 18 MR. JOSEPH DI LUCA: Certainly. And I 19 take it you've seen the average age or -- and by age, I 20 mean experienced, vintage -- 21 MR. JOHN STRUTHERS: Yes. 22 MR. JOSEPH DI LUCA: -- drop down. How 23 low is it at right now? Do you have any sense? 24 MR. JOHN STRUTHERS: Yes. 25 MR. JOSEPH DI LUCA: Can you share that

290

1 with us? 2 MR. JOHN STRUTHERS: I know of one case 3 currently -- I, again, won't be specific -- where there's 4 a lawyer who's never done a jury trial and is doing a 5 murder case. It's their first jury trial. 6 MR. JOSEPH DI LUCA: It's their first 7 jury trial? 8 MR. JOHN STRUTHERS: Yes. 9 MR. JOSEPH DI LUCA: And I take it, you'd 10 agree with me that when we had this rule of thumb of 11 seven (7) to ten (10) years experience before you touched 12 a murder trial, there was good reason, obviously, to have 13 that rule of thumb? 14 MR. JOHN STRUTHERS: There's no question. 15 I mean, being comfortable in front of a jury is something 16 that takes a very long time. It took me a very long time 17 to be comfortable in front of a jury. And I'm not there 18 yet, completely. 19 I mean, obviously, we all live and learn 20 but the situation is -- is deadly. If you don't have it 21 in your eyes in front of that jury that you have the 22 level of confidence necessary to persuade them, you've 23 got big trouble. 24 And it's very, very difficult and your 25 first -- you know, how do you select a jury? This is the

291

1 first time somebody does it physically in a courtroom, 2 where you stand, what you say, how you go about it, you 3 know, it is absolutely ridiculous for someone facing the 4 rest of their life in prison to be represented by 5 somebody who has never done a jury trial before. 6 MR. JOSEPH DI LUCA: Not an uncommon 7 experience nowadays in the courts, is it? 8 MR. JOHN STRUTHERS: No. 9 MR. JOSEPH DI LUCA: Do you think that 10 would change if we were able to restructure the Legal Aid 11 tariff? 12 MR. JOHN STRUTHERS: Well, maybe senior 13 counsel, some of whom sitting in this room, might 14 actually take an interest in doing a Legal Aid homicide 15 case once in awhile. 16 MR. JOSEPH DI LUCA: Sure. 17 MR. JOHN STRUTHERS: I don't see anybody 18 here. Mr. Lockyer is still here. He's the only one I 19 know that will, other than yourself. 20 MR. JOSEPH DI LUCA: Sure. On the issue 21 of juniors, you mentioned a moment ago about having 22 junior counsel authorized by Legal Aid. 23 MR. JOHN STRUTHERS: Mm-hm. 24 MR. JOSEPH DI LUCA: I have seen some 25 difficulties lately in getting juniors authorized --

292

1 MR. JOHN STRUTHERS: Are you speaking -- 2 MR. JOSEPH DI LUCA: -- on a homicide. 3 MR. JOHN STRUTHERS: -- though when you 4 come in front of the Exceptions Committee asking me for 5 it? 6 MR. JOSEPH DI LUCA: I think you've 7 turned me down before. 8 MR. JOHN STRUTHERS: I might have, yes. 9 The difficulty is -- the difficulty is that, you know, 10 you want co-counsel because the rate of pay is already 11 ridiculous. 12 Junior counsel's rate is fifty-eight 13 dollars ($58) an hour, you know. I once -- when I left 14 the Crown's office in 1989, I wasn't making very much 15 money. And I remember being interviewed on television 16 and saying, you know, I come to work in the morning and 17 the bus driver is making more than me. 18 You know, I sit in court and the police 19 officer beside me is making more than me. Obviously, the 20 clerk's making more than me. At that time, they actually 21 were. And then the accused starts testifying and they're 22 making more than me. You know, it's not a good plan to 23 have that sort of financial inequity at play. It's just 24 not right. 25 MR. JOSEPH DI LUCA: I take it, we are

293

1 seeing murder cases defended by one counsel solo? 2 MR. JOHN STRUTHERS: Absolutely. And 3 when there's often, if not exclusively, two (2) lawyers 4 for the -- for the Crown, they are able, and the 5 resources that are being put into guns and gangs, for 6 example, and into some of these new projects and the, you 7 know, the hysteria that's being developed, all of a 8 sudden we have five hundred (500) gangs in Toronto and 9 last week we weren't aware of any. It's -- it's really 10 something else the amount of money that's being put on 11 one side of the scale of justice. 12 And every time there's a new announcement 13 about law and order, there isn't an announcement about 14 how the defence is going to be able to cope with it. 15 And this is completely inefficient because 16 what you have then is, you know, one (1) side being given 17 so many resources and the other none that you're ending 18 up with more appeals. You're ending up with trials that 19 go longer. You're ending up with counsel that don't have 20 the confidence to admit the things they should admit. 21 I did a murder trial two (2) years in five 22 (5) Court days, from arraignment to verdict. A young 23 counsel wouldn't have had, perhaps, in foolishness or 24 whatever the case may be, to admit the things the Crown 25 can prove and make them prove the things they can't.

294

1 MR. JOSEPH DI LUCA: Yeah. 2 MR. JOHN STRUTHERS: Get to the point, 3 you know. We have Justice Moldaver (phonetic) making 4 noise about how inefficient we are and how we were 5 throwing charter applications around like they were 6 paper. 7 But at the same if you are a one year 8 lawyer out, you're not going to make admissions. You're 9 afraid to do it because what if that's the admission that 10 convicts my client and I'm going to be at an inquiry 11 later trying to explain myself. So they won't admit 12 anything. 13 MR. JOSEPH DI LUCA: And -- and looking 14 at the level playing field which, I think, you and I both 15 agree isn't necessarily level, -- 16 MR. JOHN STRUTHERS: Not at all. 17 MR. JOSEPH DI LUCA: -- do you see an 18 experience differential between the Crown side and the 19 defence side in terms of these types of homicide cases? 20 MR. JOHN STRUTHERS: To some extent, yes, 21 that's certainly the case. I mean, there are a lot of 22 career Crowns that are still available to do prosecutions 23 of homicides, and there's a lot of younger Crowns that 24 are doing them as well now. 25 But, you know, again, because they have so

295

1 much assistance from the officers-in-charge to junior 2 counsel and the Crown's office, they have unlimited 3 resources. If they want something investigated, they can 4 have it investigated. They don't have to go to Legal Aid 5 and ask permission -- 6 MR. JOSEPH DI LUCA: It's certainly not-- 7 MR. JOHN STRUTHERS: -- to get the money. 8 MR. JOSEPH DI LUCA: Sorry. It's 9 certainly not uncommon to have two (2) senior Crowns 10 prosecuting a murder case? 11 MR. JOHN STRUTHERS: Absolutely not. 12 MR. JOSEPH DI LUCA: Aided also, 13 obviously, by an officer-in-charge who often times sits 14 at counsel table? 15 MR. JOHN STRUTHERS: Well, absolutely, in 16 the homicide squad, as you know, working as a partner. 17 So there's always two (2) homicide officers on every case 18 as well as junior homicide officers; the Centre of 19 Forensic Sciences, the unlimited resources that they 20 have. I mean, they have millions of dollars in guns and 21 gangs. Now they don't know what to do. There are people 22 sitting around looking out the window. 23 MR. JOSEPH DI LUCA: Let me just change 24 gears in terms of the issue -- 25 MR. JOHN STRUTHERS: Don't laugh, it's

296

1 true, and you're all -- you know it's true, right? 2 MR. JOSEPH DI LUCA: I just want to turn 3 to the issue of the reverse disclosure for a moment. 4 MR. JOHN STRUTHERS: Sure. 5 MR. JOSEPH DI LUCA: And I take it, and I 6 open it up to the entire Panel. I take it none of you 7 would agree with a mandatory obligation for the defence 8 to disclose? 9 MR. DAVID GORRELL: That's correct. 10 MR. BRUCE HILLYER: That's correct. 11 MR. JOHN STRUTHERS: That's right. 12 MR. JOSEPH DI LUCA: You would all agree 13 that, perhaps, defence counsel should consider, in an 14 appropriate case, disclosing a report early? 15 MR. JOHN STRUTHERS: It's very case- 16 specific, as Bruce was saying earlier. His case didn't 17 apply because he might have been going towards SIDS at 18 some point and didn't want to light Dr. Smith up. 19 In my case, I felt I had overwhelming 20 defence evidence with respect to this, and I was trying 21 to do two (2) things at once which was to include getting 22 the Crown to do the right thing. It's case-specific, 23 there's no question. 24 But my practice and -- and preference is, 25 if you have a report that's credible from a -- a witness

297

1 you intend to call, I have no difficulty with disclosing 2 that because I think it makes everything more efficient 3 and at the end of the day, you can't be criticized for 4 somebody being, if you will, bush-whacked by some report 5 they had no idea of. 6 MR. JOSEPH DI LUCA: All right. 7 MR. BRUCE HILLYER: I have spent -- in my 8 earlier years, I spent a lot of time trying to do just 9 what you're suggesting, is showing my case and -- and 10 giving full disclosure, with very mixed results. 11 MR. JOSEPH DI LUCA: All right. 12 MR. BRUCE HILLYER: And with a lot of 13 regret sometimes. 14 MR. JOSEPH DI LUCA: Sure. 15 COMMISSIONER STEPHEN GOUDGE: Regret, 16 why, Mr. Hillyer? 17 MR. BRUCE HILLYER: Because they just 18 wouldn't -- they wouldn't face the obvious. They 19 wouldn't see that the case was going to be lost for the 20 Crown, and then we end up doing a trial and -- and we 21 win. 22 COMMISSIONER STEPHEN GOUDGE: Okay. So 23 it provided no efficiency. What about the issue that one 24 of you raised earlier in answer to the same question that 25 I ask you, that it is used as an opportunity to then go

298

1 out and cooper up your case, having seen the defence -- 2 MR. BRUCE HILLYER: Right. 3 COMMISSIONER STEPHEN GOUDGE: -- 4 expertise? 5 MR. BRUCE HILLYER: Right. 6 COMMISSIONER STEPHEN GOUDGE: Is that a 7 concern? 8 MR. BRUCE HILLYER: Well, it is a 9 concern. And -- and if you -- once you -- 10 COMMISSIONER STEPHEN GOUDGE: If you 11 could somehow freeze the Crown's expertise and then 12 require disclosure, does that remove that concern? 13 MR. BRUCE HILLYER: I don't think you 14 could ever do that because usually when -- whenever I've 15 been putting together a defence that I'm disclosing to 16 the Crown, it's going to have something in it they don't 17 have, so, you know, you'd expect they're going to be able 18 to -- they're going to want to go and get their own 19 opinion on that -- on that issue. 20 COMMISSIONER STEPHEN GOUDGE: Right. 21 MR. JOHN STRUTHERS: Even from their 22 predisclosed experts they're going to have to put it to 23 them, get their views on it, yeah. 24 MR. BRUCE HILLYER: Yeah. 25 MR. JOHN STRUTHERS: Yeah.

299

1 2 CONTINUED BY MR. JOSEPH DI LUCA: 3 MR. JOSEPH DI LUCA: And -- and related 4 to that, in terms of timing of the disclosure, I take it 5 that there's various factors that go into your decision 6 as to when you get the report over. Is it before a 7 prelim? Is it after the prelim? Is it right at the 8 close of -- 9 MR. JOHN STRUTHERS: Rarely before -- 10 MR. JOSEPH DI LUCA: -- the Crown's case? 11 MR. JOHN STRUTHERS: Rarely before a 12 prelim, because if it's a situation where you want your 13 expert to review the evidence the Crown has, often that 14 evidence will be available and challenged at the prelims 15 for them to actually have a look at before they render 16 their opinion. 17 And I think the more information your 18 expert has, the better their opinion's going to be, so 19 almost always after prelim and before trial and as early 20 as case specific, you know -- 21 MR. JOSEPH DI LUCA: You can see it in a 22 situation where you would disclose prior to a prelim? 23 MR. JOHN STRUTHERS: It's conceivable, 24 certainly. I mean if you had an overwhelming report that 25 says this is just abs -- and, you know, some sort of

300

1 smoking gun proof. 2 I mean let's, for example, say you had a 3 DNA report or something before a prelim that exonerated 4 your client completely, of course, you know, that would 5 be a situation where you have just an absolute lay down 6 hand; it may be a case where you do it, but it's rare. 7 MR. JOSEPH DI LUCA: Certainly. Mr. 8 Hillyer...? 9 MR. BRUCE HILLYER: Yeah, the only times 10 that I've been making disclosure of expert reports is 11 usually at the judicial pretrial before the trial, long 12 after the preliminary hearing. 13 And the reason I'm doing it is I don't 14 want to have any interruption in the flow of the trial, 15 so if the Crown is going to get upset about the fact 16 their getting this late notice in accordance with the 17 current status of the rules and they're going to ask for 18 and they're going to get an adjournment mid trial and you 19 don't want that, then you better show him your report and 20 avoid that. 21 MR. JOSEPH DI LUCA: Mr. Gorrell, 22 anything to add to that? 23 MR. DAVID GORRELL: I have nothing to 24 add. 25 MR. JOSEPH DI LUCA: Okay. And let me

301

1 just ask this -- 2 COMMISSIONER STEPHEN GOUDGE: You're 3 running out of time, Mr. Di Luca. I'm going to have to 4 be pretty firm today. 5 6 CONTINUED BY MR. JOSEPH DI LUCA: 7 MR. JOSEPH DI LUCA: Certainly, this will 8 be my last question, then. 9 Are there situations where you would 10 withhold the report until absolutely the last minute, 11 which is at the close of the Crown's case, for reasons 12 not related to the quality or caliber of the proposed 13 evidence, but other tactical reasons? 14 MR. JOHN STRUTHERS: It's conceivable. I 15 mean, we'd have to construct a fact scenario that would 16 make that appropriate, but it's certainly conceivable, if 17 you -- yes. 18 MR. JOSEPH DI LUCA: Mr. Hillyer...? 19 MR. BRUCE HILLYER: A lot has to do with 20 personalities. 21 MR. JOSEPH DI LUCA: Fair enough. 22 MR. BRUCE HILLYER: You get caught up in 23 the -- in the battle with your adversary sometimes. You 24 may not -- you may -- you may hang onto it longer than 25 you should.

302

1 MR. JOSEPH DI LUCA: Certainly, thank 2 you. Thank you, Mr. Commissioner. 3 COMMISSIONER STEPHEN GOUDGE: Thanks, Mr. 4 Di Luca. Ms. Twohig...? 5 6 CROSS-EXAMINATION BY MS. KIM TWOHIG: 7 MS. KIM TWOHIG: Thank you, Mr. 8 Commissioner. My name is Kim Twohig, I represent the 9 Province of Ontario. I have a few questions for you, Mr. 10 Struthers. I want to address the criticisms you made of 11 Mr. Armstrong. 12 MR. JOHN STRUTHERS: Yes. 13 MS. KIM TWOHIG: I take it from your 14 evidence that you were saying that, first of all, he led 15 you to believe that the trial would proceed on Monday, 16 January 22nd, 2001, and that your client was waiting in 17 the witness box for the proceedings to begin, is that 18 right? 19 MR. JOHN STRUTHERS: Prisoner's box. 20 MS. KIM TWOHIG: Prisoner's box, okay. 21 MR. JOHN STRUTHERS: Yes. 22 MS. KIM TWOHIG: Okay. And secondly, 23 that he had, in your view, adequate material which would 24 cast out on the evidence of Dr. Smith well in advance of 25 that date.

303

1 MR. JOHN STRUTHERS: Yes. 2 MS. KIM TWOHIG: And thirdly, that he 3 stayed the charge rather than withdrawing it. You 4 criticized him for that. 5 MR. JOHN STRUTHERS: Yes. 6 MS. KIM TWOHIG: And you suggested in 7 your evidence, as I understand it, that he -- he stayed 8 the charge for less than honourable reasons; in other 9 words, to insulate Dr. Smith rather than for the proper 10 administration of justice, is that correct? 11 MR. JOHN STRUTHERS: That's not what I 12 said. I said he didn't disclose his intention to do so 13 to protect Dr. Smith so that the press may not get wind 14 of it on that particular day simultaneously with the 15 Sharon case in Kingston. 16 Why he stayed the charge, you'll have to 17 ask him. I have no idea why he didn't withdraw it. In 18 my view, the proper thing to have done on the day would 19 have been to withdraw the charge. 20 MS. KIM TWOHIG: All right, and I take it 21 that you're not shy about speaking up in Court if you 22 disagree with something a Crown attorney says, is that 23 fair? 24 MR. JOHN STRUTHERS: If it's appropriate 25 to do so at the time, yes.

304

1 MS. KIM TWOHIG: All right. And when you 2 say something to the Court, you speak truthfully, I 3 assume. 4 MR. JOHN STRUTHERS: Yes, and I said that 5 I was grateful to him for doing the right thing by not 6 proceeding with the trial. 7 MS. KIM TWOHIG: Well, I'd like -- just 8 like to take you to the transcript, please, and it's Tab 9 25 of your materials -- 10 MR. JOHN STRUTHERS: Yes. 11 MS. KIM TWOHIG: -- document PFP142479, 12 beginning on page 158 of the PFP document. 13 MR. JOHN STRUTHERS: Yes. 14 MS. KIM TWOHIG: Do you have that? 15 MR. JOHN STRUTHERS: I will in a second. 16 158, did you say? 17 MS. KIM TWOHIG: That's right. 18 MR. JOHN STRUTHERS: Thank you. 19 MS. KIM TWOHIG: This is the page that 20 begins with "Monday, January 22nd, 2001". 21 MR. JOHN STRUTHERS: Yes, I have it. 22 MS. KIM TWOHIG: And you'll see that Mr. 23 Armstrong opened that morning -- 24 MR. JOHN STRUTHERS: Yes. 25 MS. KIM TWOHIG: -- by saying that:

305

1 "I had sent word to My Friend on 2 Friday, and I think also I had 3 indicated through the trial coordinator 4 that the Crown wishes to seek an 5 adjournment on this case." 6 So you knew on Friday that he was not 7 going to proceed to trial on Monday, didn't you? 8 MR. JOHN STRUTHERS: I knew that he was 9 going to make an effort not to proceed to trial. I 10 didn't know he was not going to proceed to trial. 11 MS. KIM TWOHIG: You knew he was going to 12 ask for an adjournment. 13 MR. JOHN STRUTHERS: I thought that was 14 his last option, yes. 15 MS. KIM TWOHIG: But you knew he wasn't 16 going to proceed with the trial. 17 MR. JOHN STRUTHERS: I knew he was going 18 to ask and I knew what Justice Campbell's response was 19 going to be, also, because of his severe criticism of the 20 SCAN Team and the evidence that had been led thus far. 21 The delay that had gone on to that point -- and I take 22 note, at page 156, where Mr. Armstrong says in his 23 reasons for staying the charge, 24 "The Crown has come to the conclusion 25 that it would not be in the interests

306

1 of the administration of justice to 2 continue the case against Ms. XXXX as 3 doing so may result in an injustice." 4 Now it would seem to me that staying the 5 charge wouldn't change the position that it might be in 6 the -- obviously, result in an injustice. So I ask why 7 it is that the case was, in fact, continued against Ms. 8 XXXX when he stated on the record, clearly, that doing so 9 may result in an injustice. Yet at the same time -- 10 MS. KIM TWOHIG: Could I, please, 11 interrupt you? 12 MR. JOHN STRUTHERS: Can I finish the 13 answer? 14 MS. KIM TWOHIG: No, because my time is 15 limited and I think -- 16 MR. JOHN STRUTHERS: I'm sorry you don't 17 like my answers. 18 MS. KIM TWOHIG: -- I want to ask you 19 some more questions. 20 MR. JOHN STRUTHERS: I'm sorry, you 21 don't -- 22 COMMISSIONER STEPHEN GOUDGE: No, just 23 let her ask the question, Mr. Struthers. 24 25 CONTINUED BY MS. KIM TWOHIG:

307

1 MS. KIM TWOHIG: Yes, please. Thank you, 2 Mr. Commissioner. 3 You'll notice a little farther up from 4 that -- 5 MR. JOHN STRUTHERS: Mm-hm. 6 MS. KIM TWOHIG: -- that he said that, 7 "As a result of information which has 8 been brought to our attention since we 9 adjourned last Wednesday ..." 10 MR. JOHN STRUTHERS: Right. 11 MS. KIM TWOHIG: 12 "... and as a result of reviewing the 13 entire matter, the Crown has come to 14 the conclusion that it would not be in 15 the interests [of administration] of 16 the administration of justice to 17 continue." 18 You have no reason to doubt Mr. Armstrong 19 when he said that he reviewed the case based on evidence 20 that he received the previous Wednesday, do you? 21 MR. JOHN STRUTHERS: I take it that would 22 be his review from Dr. Becker? 23 MS. KIM TWOHIG: Yes. 24 MR. JOHN STRUTHERS: Right. 25 MS. KIM TWOHIG: Thank you. And farther

308

1 down the page, that passage from Mr. Armstrong, he says, 2 "We are asking that rather than empanel 3 the jury at this stage for that 4 purpose, essentially we are offering no 5 evidence and asking that Your Lordship 6 enter a judicial stay of these 7 proceedings. 8 THE COURT: Thank you. 9 MR. STRUTHERS: ..." 10 And you said, at the bottom -- the Court 11 asked again, 12 "Are you content with what your friend 13 has proposed?" 14 And on the following page, your answer is, 15 "Yes." 16 Do you agree with that? 17 MR. JOHN STRUTHERS: Please, continue. 18 MS. KIM TWOHIG: Yes. 19 MR. JOHN STRUTHERS: I said yes. 20 MS. KIM TWOHIG: And you went on that you 21 were, 22 "... unaware of the position until this 23 very moment but, obviously, it's in 24 Maureen's best interests and I, of 25 course, take the position that the

309

1 matter, if My Friend is offering no 2 evidence at this point, there are two 3 options, I guess. One is that you, of 4 course, I guess we get to the point 5 somehow where you enter an acquittal in 6 this matter but given what he has said 7 for the potential of injustice in this 8 matter, it would have the same effect." 9 In other words, you were prepared to 10 accept the stay of proceedings when you were specifically 11 asked by the Court about that, weren't you? 12 MR. JOHN STRUTHERS: I was. I think when 13 I was presented with Mr. Armstrong's staying of the 14 charges for the first time when he rose, I probably 15 should have asked for a moment to think about my position 16 because I was, frankly, quite shocked that he had taken 17 that position. 18 MS. KIM TWOHIG: All right. 19 MR. JOHN STRUTHERS: However, the fact -- 20 may I finish -- that Ms. XXXX's matter would have been 21 finished on that day by the entry of a stay, and having 22 had a very brief moment to speak to Ms. XXXX, we agreed-- 23 MR. MARK SANDLER: I just ask Mr. 24 Struthers not to use the surname. 25 MR. JOHN STRUTHERS: I'm sorry. To

310

1 Maureen, that, of course -- that, obviously, she took the 2 position that she didn't want to say anything about it. 3 4 CONTINUED BY MS. KIM TWOHIG: 5 MS. KIM TWOHIG: All right, thank you. 6 If I can take you to line 19 and continue -- 7 MR. JOHN STRUTHERS: Mm-hm. 8 MS. KIM TWOHIG: -- the Court says, 9 "The defendant has been arraigned so is 10 there anything to do other than simply 11 to record on the indictment in the form 12 of an endorsement what Mr. Armstrong 13 has said, that it's with consent and a 14 judicial stay is entered?" 15 MR. JOHN STRUTHERS: Yes. 16 MS. KIM TWOHIG: And at the bottom of the 17 page, Mr. Armstrong says, 18 "My response to Your Lordship's 19 question would be yes. 20 MR. STRUTHERS: I agree." 21 There's another instance of your 22 agreement, fair enough? 23 MR. JOHN STRUTHERS: It is. 24 MS. KIM TWOHIG: Okay. And, finally, I'd 25 like to take you to the last page.

311

1 MR. JOHN STRUTHERS: Yes. 2 MS. KIM TWOHIG: Page 160, at the top. 3 MR. JOHN STRUTHERS: Yes. 4 MS. KIM TWOHIG: You say, at the close of 5 the proceedings, 6 "Sir, I was taken somewhat aback by, 7 obviously, My Friend's position today 8 but I would like to thank him on the 9 record for his position and the 10 honourable method in which that 11 proceeded." 12 And when you said that it had proceeded in 13 an honourable way, you meant that, didn't you? 14 MR. JOHN STRUTHERS: I did and the fact 15 that he chose not to take the matter to trial was, in 16 fact, honourable. 17 MS. KIM TWOHIG: Yes. And when the Court 18 concludes by saying, 19 "I would simply observe that Mr. 20 Armstrong has always followed the best 21 traditions of the Crown," 22 you had -- would have no reason to disagree with that, 23 would you? 24 MR. JOHN STRUTHERS: No. 25 MS. KIM TWOHIG: Thank you.

312

1 Mr. Gorrell, I just wanted to ask you if 2 you would agree that Ms. Koehl always dealt with you 3 honourably and fairly in the case in which you have given 4 evidence today -- about which you've given evidence? 5 MR. DAVID GORRELL: I had no reason to 6 think otherwise, so the answer to your question is yes. 7 MS. KIM TWOHIG: Thank you. 8 And, Mr. Hillyer, Ms. Walsh, as you know, 9 is deceased. I take it that you have no reason to 10 believe that she treated you other than honourably and 11 fairly in the Joshua case? 12 MR. BRUCE HILLYER: Absolutely. 13 MS. KIM TWOHIG: Thank you. Those are my 14 questions. 15 COMMISSIONER STEPHEN GOUDGE: Thanks, Ms. 16 Twohig. Mr. Gover...? 17 MR. BRIAN GOVER: Thank you, 18 Commissioner. 19 20 CROSS-EXAMINATION BY MR. BRIAN GOVER: 21 MR. BRIAN GOVER: Gentlemen, I act for 22 the Office of the Chief Coroner and individuals 23 associated with it. I go last on a Friday afternoon, it 24 appears, and I'll endeavour to be brief. I'll turn to 25 you, Mr. Struthers.

313

1 You testified that Legal Aid permitted you 2 to retain experts in the Tyrell case, as we've been 3 calling it, is that correct, sir? 4 MR. JOHN STRUTHERS: Yes. 5 MR. BRIAN GOVER: And I take it that was 6 in either 1999 or 2000? 7 MR. JOHN STRUTHERS: Yes. 8 MR. BRIAN GOVER: Do you recall when, 9 more precisely, that was? 10 MR. JOHN STRUTHERS: It was after the 11 preliminary hearing and pretty immediately after the 12 preliminary hearing, as soon as I had Dr. Smith's 13 evidence in hand, I obviously went to Legal Aid to say, I 14 now wish to have this reviewed as much as possible. 15 MR. BRIAN GOVER: Fair enough. And, Mr. 16 Struthers, you told Mr. Sandler, and I endeavour to get 17 this down -- 18 MR. JOHN STRUTHERS: Mm-hm. 19 MR. BRIAN GOVER: -- verbatim: 20 "Legal Aid was aware of the problems 21 with Dr. Smith." 22 Do you recall saying that? 23 MR. JOHN STRUTHERS: Yes. They had been 24 asked to fund, obviously, expertise in other of his cases 25 for similar reasons.

314

1 MR. BRIAN GOVER: And from your point of 2 view, in discussion with Legal Aid, what were those 3 problems? 4 MR. JOHN STRUTHERS: They wouldn't, of 5 course, give me -- Legal Aid doesn't give you case- 6 specific difficulties. They -- they say, We've been 7 asked to provide experts in this case and this case and 8 this case. But the person I was dealing with at the time 9 was aware of other requests for experts to contradict Dr. 10 Smith. 11 MR. BRIAN GOVER: And, Mr. Struthers, 12 have you ever become aware of Legal Aid ever raising any 13 concern about those problems with either the Ministry of 14 the Attorney General or the Office of the Chief Coroner? 15 MR. JOHN STRUTHERS: I'm certainly not 16 aware of them, no. 17 MR. BRIAN GOVER: And, Mr. Struthers, are 18 you aware of any attempt by the Criminal Lawyer's 19 Association to bring the defence bar's concerns about Dr. 20 Smith to the attention of the Office of the Chief Coroner 21 prior to 2001? 22 MR. JOHN STRUTHERS: I'm not aware of 23 any, no. 24 MR. BRIAN GOVER: And I take it, Mr. 25 Hillyer, you're not aware of any such attempt by the

315

1 Criminal Lawyers Association either, in an organized way, 2 to bring those concerns to the attention of the Office of 3 the Chief Coroner? 4 MR. BRUCE HILLYER: Correct. 5 MR. BRIAN GOVER: And, Mr. Gorrell, not 6 to leave you out, nor are you aware of any such effort; 7 is that fair, sir? 8 MR. DAVID GORRELL: That's correct. But 9 I am not a member of the CLA, so. 10 MR. BRIAN GOVER: Fair enough. And thank 11 you for that. 12 Now, Mr. Hillyer, you testified that -- 13 you testified about a case that you were involved in 14 before the case that we know as Joshua's case, that was 15 also a pediatric homicide, is that right, sir? 16 MR. BRUCE HILLYER: That's right. 17 MR. BRIAN GOVER: And you testified that 18 what disturbed you about that case was the role of the 19 Coroner's Office, is that right, sir? 20 MR. BRUCE HILLYER: Yes. 21 MR. BRIAN GOVER: And that was a case 22 that was tried before Justice Spier (phonetic), is that 23 right? 24 MR. BRUCE HILLYER: Yes. And a jury. 25 MR. BRIAN GOVER: In Milton?

316

1 MR. BRUCE HILLYER: Yes. 2 MR. BRIAN GOVER: And the Crown attorney 3 was Mr. Brian O'Mara (phonetic)? 4 MR. BRUCE HILLYER: That's correct. 5 MR. BRIAN GOVER: The Crown's theory was 6 that death ensued as a result of Shaken Baby Syndrome, is 7 that right? 8 MR. BRUCE HILLYER: That's correct. 9 MR. BRIAN GOVER: And experts at McMaster 10 University had concluded that death ensued from Shaken 11 Baby Syndrome, is that right? 12 MR. BRUCE HILLYER: That's correct, yes. 13 MR. BRIAN GOVER: And I may not have your 14 facility with the medical terminology but I understand 15 that in that case the death, pardon me, the evidence 16 disclosed that a cavernous sinus was thrombosed. 17 Do you recall that, sir? 18 MR. BRUCE HILLYER: Yes. 19 MR. BRIAN GOVER: And you had obtained 20 expert opinion evidence that suggested that the baby may 21 have died from an ear infection, as you've told us, is 22 that right? 23 MR. BRUCE HILLYER: Yes. Yes. 24 MR. BRIAN GOVER: And that expert opinion 25 evidence was in the form of Dr. Leetsma's report, is that

317

1 right? 2 MR. BRUCE HILLYER: Well, it was a 3 combination of Leetsma, Noyek, and Hauck (phonetic). 4 MR. BRIAN GOVER: Fair enough. And you 5 did not disclose that evidence to Mr. O'Mara, is that 6 fair? 7 MR. BRUCE HILLYER: Correct. That's 8 correct. 9 MR. BRIAN GOVER: And just as you told us 10 you didn't disclose the evidence to Ms. Walsh in Joshua's 11 case, is that right? 12 MR. BRUCE HILLYER: What evidence? I 13 didn't have any evidence to not disclose to her. 14 MR. BRIAN GOVER: Fair enough. All 15 right. So you've -- coming back to the case that was 16 before Justice Spier, that was a deliberate decision on 17 your part not to disclose that evidence to Mr. O'Mara, -- 18 MR. BRUCE HILLYER: Right. 19 MR. BRIAN GOVER: -- is that fair? And 20 during the trial you led evidence in accordance with the 21 defence position that death ensued due to the ear 22 infection, is that fair? 23 MR. BRUCE HILLYER: Yes. 24 MR. BRIAN GOVER: And you agree with me 25 that the evidence in the case was complicated?

318

1 MR. BRUCE HILLYER: Very. 2 MR. BRIAN GOVER: And Mr. O'Mara, the 3 Crown attorney, sought an adjournment with a view to 4 responding to the evidence that you led, isn't that 5 right? 6 MR. BRUCE HILLYER: Well, no, he -- he 7 didn't. He just showed up with these three new experts 8 in tow and just disclosed that he wanted leave to call 9 their evidence, and it was presented to me in that 10 manner, and then it was presented to Justice Spier in 11 Chambers, and I -- then Justice Spier left it up to me to 12 decide whether -- how I would deal with it. 13 MR. BRIAN GOVER: But he tried to refresh 14 your memory. You recall there was an adjournment from a 15 Thursday to a Monday that was granted by Justice Spier 16 and that was granted by Justice Spier, and that was 17 granted at the Crown's request. 18 Does that refresh your memory, sir? 19 MR. BRUCE HILLYER: It doesn't, sorry. 20 MR. BRIAN GOVER: No? And I suggest to 21 you that Mr. O'Mara (phonetic) contacted Dr. Cairns, do 22 you agree with that, sir? 23 MR. BRUCE HILLYER: I have no way of -- I 24 -- I would assume so. I don't think Cairns would have 25 stumbled into the Milton courthouse.

319

1 MR. BRIAN GOVER: And you know, sir, that 2 Dr. Cairns was the Deputy Chief Coroner of Ontario, is 3 that right? 4 MR. BRUCE HILLYER: Yes. 5 MR. BRIAN GOVER: You knew that he was 6 the Deputy Chief Coroner in charge of investigations, is 7 that fair? 8 MR. BRUCE HILLYER: I didn't know exactly 9 -- I didn't know much about his role actually or the 10 Office of the Coroner. 11 MR. BRIAN GOVER: Right. And we'll come 12 to that. 13 MR. BRUCE HILLYER: Okay. 14 MR. BRIAN GOVER: Did you know that he 15 was the Chair of the Paediatric Death Review Committee? 16 MR. BRUCE HILLYER: I didn't. 17 MR. BRIAN GOVER: No. And -- 18 MR. BRUCE HILLYER: Did you know he's a 19 family doctor? 20 MR. BRIAN GOVER: Do you know, sir, that 21 the -- pardon me, sir. 22 MR. BRUCE HILLYER: Okay. 23 MR. BRIAN GOVER: Did you know, Mr. 24 Hillyer, that the Office of the Chief Coroner has a role 25 in assisting Crown counsel in identifying expert

320

1 witnesses when that assistance is sought by Crown 2 counsel? 3 MR. BRUCE HILLYER: I -- I'm not 4 surprised by that. I assumed that's why he was there. 5 MR. BRIAN GOVER: Exactly. And you 6 accept that that's an appropriate role, -- 7 MR. BRUCE HILLYER: Absolutely. 8 MR. BRIAN GOVER: -- is that fair, sir? 9 MR. BRUCE HILLYER: Yep. 10 MR. BRIAN GOVER: And what you became 11 aware of, Mr. Hillyer, is that Mr. O'Mara consulted with 12 three (3) experts identified by Dr. Cairns, is that 13 right? 14 MR. BRUCE HILLYER: Three (3) that I'm 15 aware of. 16 MR. BRIAN GOVER: Right. And they are 17 Dr. John Deck, a neuropathologist, is that right? 18 MR. BRUCE HILLYER: Yes. 19 MR. BRIAN GOVER: And then two (2) 20 experts from the Hospital for Sick Children, is that 21 right, sir? 22 MR. BRUCE HILLYER: Yes. 23 MR. BRIAN GOVER: A neurosurgeon and a 24 pediatric radiologist, is that fair? 25 MR. BRUCE HILLYER: That's correct, yep.

321

1 MR. BRIAN GOVER: And oral opinions were 2 obtained from them, is that right? 3 MR. BRUCE HILLYER: At least, oral. I 4 was given written opinions. 5 MR. BRIAN GOVER: And ultimately, none of 6 them testified, is that right, sir? 7 MR. BRUCE HILLYER: That's incorrect. 8 They all testified. I cross-examined all three (3) of 9 them. 10 MR. BRIAN GOVER: And when Mr. O'Mara put 11 the evidence of death resulting from Shaken Baby 12 Syndrome, Dr. Leetsma testified, and I quote: 13 "You may be right, but I cannot exclude 14 the possibility of disease process." 15 End quote. 16 Do you recall that, sir? 17 MR. BRUCE HILLYER: If you're quoting 18 from a transcript, I'm in no position to say those words 19 weren't there. 20 MR. BRIAN GOVER: And that's what you 21 mean by the differential diagnosis, isn't that right, the 22 alternative? 23 MR. BRUCE HILLYER: No, that's not what a 24 differential diagnosis is. You start off -- a 25 differential diagnosis is you're faced with a clinical

322

1 situation, you're trained to assume the worst possible 2 disease -- process, and add the ones that are less 3 serious down the road. 4 And you start with number 1 and you start 5 ruling it out. 6 MR. BRIAN GOVER: Fair enough. And your 7 client was acquitted, sir? 8 MR. BRUCE HILLYER: Yes. 9 MR. BRIAN GOVER: And to be clear about 10 this, there was no finding that death was caused by an 11 ear infection, was there, in this jury trial, Mr. 12 Hillyer? 13 MR. BRUCE HILLYER: No finding? 14 MR. BRIAN GOVER: Yes. 15 MR. BRUCE HILLYER: Well, it wasn't a 16 civil case, it was a criminal case. The charge was 17 manslaughter. 18 MR. BRIAN GOVER: Then what's the answer 19 then to my question? There is no finding that death was 20 caused by an ear infection, was there, Mr. Hillyer? 21 MR. BRUCE HILLYER: No, nor could there 22 have been. 23 MR. BRIAN GOVER: Thank you, those are my 24 questions. 25 COMMISSIONER STEPHEN GOUDGE: Thanks, Mr.

323

1 Gover. Re-examination? 2 MR. MARK SANDLER: No re-examination, 3 thank you. 4 COMMISSIONER STEPHEN GOUDGE: Well, 5 gentleman, it falls to me to thank all three (3) of you 6 for attending and giving us your evidence and your 7 experience. It's of use in our endeavours, and we were 8 grateful for it, so thank you all for coming. 9 MR. JOHN STRUTHERS: Thank you for having 10 us, sir. 11 MR. BRUCE HILLYER: I hope it helps, yes. 12 13 (WITNESSES STAND DOWN) 14 15 COMMISSIONER STEPHEN GOUDGE: Ms. 16 Rothstein...? 17 MS. LINDA ROTHSTEIN: Commissioner, a few 18 words if I may. Today concludes the oral testimony phase 19 of the Inquiry. Since we began our evidentiary hearings 20 on November the 12th, we have heard from forty-seven (47) 21 witnesses over eleven (11) weeks, and a total of fifty- 22 two (52) hearing days. 23 Some witnesses have been called to provide 24 individual testimony, many others like Messrs. Gorrell, 25 Hillyer and Struthers, have testified in panels of up to

324

1 three (3) people. 2 In some cases Commission Counsel, with the 3 consent of the parties determined that it was not 4 necessary to call a witness, yet filed the witness's 5 interview summary as evidence at the Inquiry. 6 The five (5) witness statements entered 7 into evidence are available to the public on the 8 Commission's website. On behalf of Commission Counsel, I 9 would like to thank all of the witnesses for coming to 10 the Inquiry and providing us with their evidence. 11 I would also like to thank all counsel for 12 the parties for their hard work, cooperation, good 13 humour, and for respecting the systemic focus of this 14 Inquiry. 15 A few words about document production. To 16 date, the Commission has received and produced to the 17 parties in excess of thirty-six thousand five hundred 18 documents (36,500); of these, two thousand eight hundred 19 and forty-eight (2,848) have been entered into evidence. 20 Although we are grateful for the efforts counsel have 21 taken to provide the Commission with timely document 22 production, regrettably, we are not yet satisfied that 23 all of the parties have made full disclosure to the 24 Commission. We will be pressing those parties to make 25 aggressive efforts to comply with their disclosure

325

1 obligations next week. We anticipate that we will be 2 providing additional disclosure shortly. Counsel will 3 be permitted a reasonable opportunity in which to 4 identify any additional documents from this additional 5 disclosure which, in their view, should be entered into 6 evidence at the Inquiry. 7 Roundtables. Next week we will begin the 8 roundtable phase of the Inquiry. Fourteen (14) 9 roundtables are scheduled. Twelve (12) will take place 10 in this hearing room, and two (2) will take place in 11 Thunder Bay. Descriptions of the roundtables are 12 available on the Commission's website. 13 The panelists participating in the 14 roundtables will not be sworn, nor will they be subjected 15 to cross-examination. Each roundtable discussion will be 16 facilitated by Commission Counsel. Counsel for the 17 parties will have a limited opportunity to pose questions 18 to the panelists during the final fifteen (15) to twenty 19 (20) minutes of each roundtable. 20 Commission Counsel have prepared a 21 document compendium for each of the roundtables. The 22 compendia for the first week of the week of roundtables 23 are now available to counsel for the parties on the 24 secure download website. The compendia are intended as a 25 springboard for consideration of the systemic issues

326

1 being debated by the panel. They are not intended to be 2 used to formulate examinations of the panelists in the 3 way documents that have comprised the evidence binders 4 have been used in the last eleven (11) weeks. 5 Parties are free to rely on any of the 6 documents in the compendia for the purpose of their 7 written submissions. 8 The hearing day during the roundtables 9 will be as follows, little different than thus far: 9:30 10 til 10:45 for a panel; 10:45 to 11:00 break; 11:00 to 11 12:15 resuming that panel; 12:15 to 1:30 for lunch; 12 resume with either the same panel or a new panel at 1:30 13 until 2:45; afternoon break between 2:45 and 3:00; and 14 the final roundtable discussions between 3:00 and 4:15. 15 A reminder that closing submissions are 16 due on March 21 and reply submissions on March 27; oral 17 submissions will be presented on March 31 and April 1. 18 And counsel for the parties are always free to email us 19 or let us know if they have any other questions. 20 Thank you everyone. Thank you, 21 Commissioner. 22 COMMISSIONER STEPHEN GOUDGE: Thank you. 23 Before we rise today, let me just for my part echo what 24 Ms. Rothstein has said to all of you, to all counsel. 25 There has been, I think, an enormous sense of

327

1 professionalism demonstrated throughout our proceeding. 2 It has allowed us to proceed efficiently and, I think, 3 thoroughly and has certainly assisted us and me 4 particularly very much in getting along with this work. 5 We turn on Monday to a -- and I should say 6 that Commission counsel particularly have my thanks in 7 having led the way in an extraordinarily skilful way. 8 We turn on Monday to roundtables. I very 9 much hope that your avid interest will continue. They 10 will be very useful to me and I hope very useful to you 11 in helping you formulate the submissions that you want to 12 make with your written arguments, something that I am 13 looking forward to with great anticipation and hope to 14 gain a great deal from. 15 So, the next two (2) weeks I view as just 16 as important as the last eleven (11) weeks, and I very 17 much look forward to them, and I hope you do as well. 18 So with that, we will rise until Monday 19 morning and move into the policy stage of our hearings. 20 21 --- Upon adjourning at 4:38 p.m. 22 23 24 25

328

1 2 3 4 5 Certified correct, 6 7 8 9 __________________ 10 Rolanda Lokey, Ms. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25