11 2 3 THE INQUIRY INTO PEDIATRIC FORENSIC 4 PATHOLOGY IN ONTARIO 5 6 7 8 ******************** 9 10 11 BEFORE: THE HONOURABLE JUSTICE STEPHEN GOUDGE, 12 COMMISSIONER 13 14 15 16 Held at: 17 Offices of the Inquiry 18 180 Dundas Street West, 22nd Floor 19 Toronto, Ontario 20 21 22 ******************** 23 24 February 12th, 2008 25
21 Appearances 2 Linda Rothstein ) Commission Counsel 3 Mark Sandler ) 4 Robert Centa ) 5 Jennifer McAleer (np) ) 6 Johnathan Shime (np) ) 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 (np) ) 20 Grant Hoole (np) ) 21 22 William Carter ) Hospital for Sick Children 23 Barbara Walker-Renshaw (np)) 24 Kate Crawford ) 25
31 APPEARANCES (CONT'D) 2 3 Paul Cavalluzzo (np) ) Ontario Crown Attorneys' 4 Association 5 6 Mara Greene (np) ) Criminal Lawyers' 7 Breese Davies (np) ) Association 8 Joseph Di Luca (np) ) 9 Jeffery Manishen (np) ) 10 11 James Lockyer (np) ) William Mullins-Johnson, 12 Alison Craig ) Sherry Sherret-Robinson and 13 Phillip Campbell (np) ) seven unnamed persons 14 15 Peter Wardle (np) ) Affected Families Group 16 Julie Kirkpatrick (np) ) 17 Daniel Bernstein (np) ) 18 19 Louis Sokolov (np) ) Association in Defence of 20 Vanora Simpson (np) ) the Wrongly Convicted 21 Elizabeth Widner (np) ) 22 Paul Copeland (np) ) 23 24 25
41 APPEARANCES (cont'd) 2 Jackie Esmonde ) Aboriginal Legal Services 3 Kimberly Murray (np) ) of Toronto and Nishnawbe 4 Sheila Cuthbertson (np) ) Aski-Nation 5 Julian Falconer (np) ) 6 7 Suzan Fraser ) 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 (np) ) 14 Chantelle Blom (np) ) 15 16 Natasha Egan (np) ) College of Physicians and 17 Carolyn Silver (np) ) Surgeons 18 19 Michael Lomer (np) ) For Marco Trotta 20 Jaki Freeman (np) ) 21 22 Emily R. McKernan (np) ) Glenn Paul Taylor 23 24 25
51 TABLE OF CONTENTS Page No. 2 ENHANCING THE RELATIONSHIP BETWEEN THE CORONIAL SERVICE AND 3 THE PEDIATRIC FORENSIC PATHOLOGY SERVICE PANEL: 4 5 STEPHEN CORDNER 6 ALBERT LAUWERS 7 MICHAEL POLLANEN 8 BONITA PORTER 9 Questioned by Ms. Linda Rothstein 8 10 Questioned by Mr. Brian Gover 125 11 Questioned by Mr. William Carter 134 12 Questioned by Ms. Jackie Esmonde 141 13 Questioned by Mr. Suzan Fraser 147 14 15 THE DEATH INVESTIGATION TEAM IN PEDIATRIC FORENSIC CASES 16 PANEL: 17 DAVID RANSON 18 CHRIS BUCK 19 GARY GIROUX 20 JOHN AYRE 21 ALBERT LAUWERS 22 Questioned by Mr. Mark Sandler 154 23 Questioned by Mr. Brian Gover 270 24 25 Certificate of transcript 274
61 --- Upon commencing at 9:30 a.m. 2 3 THE REGISTRAR: All rise. 4 COMMISSIONER STEPHEN GOUDGE: Please sit 5 down. Good morning. 6 Ms. Rothstein...? 7 MS. LINDA ROTHSTEIN: Thank you very 8 much, Commissioner. I'm going to just welcome again Dr. 9 Cordner and Dr. Pollanen. I'm not going to reintroduce 10 them since they were introduced both a couple of times 11 yesterday. 12 I am going to welcome and introduce very 13 briefly Dr. Bonita Porter. As you know, Commissioner, 14 she is currently the Chief Coroner for Ontario. She's 15 served -- 16 COMMISSIONER STEPHEN GOUDGE: Dr. Porter. 17 MS. LINDA ROTHSTEIN: She's served as 18 Regional Supervising Coroner for the Niagara region from 19 1991 to 1996 and Deputy Chief Coroner, Inquest for 20 Ontario from 1996 to 2007. 21 She has conducted and supervised hundreds 22 of investigations, directed investigative initiatives, 23 and presided over many inquests into such areas as 24 domestic violence, child abuse, occupational health and 25 safety, custody deaths, and euthanasia.
71 She is an active member of the Medicolegal 2 Society of Toronto and indeed is the President for the 3 2007/2008 term. Welcome, Dr. Porter. 4 MS. BONITA PORTER: Thank you. 5 MS. LINDA ROTHSTEIN: And, Commissioner, 6 you will remember Dr. Lauwers, Dr. -- 7 COMMISSIONER STEPHEN GOUDGE: I do. Dr. 8 Lauwers. 9 MS. LINDA ROTHSTEIN: Dr. Albert Lauwers 10 is the Regional Supervising Coroner for Metropolitan 11 Toronto West and the acting Deputy Chief Coroner of 12 Ontario. In his work with the Coroner's Office he has 13 conducted twenty-two (22) inquests. 14 He continued his medical practice on top 15 of all of that and he is the Chair of the Paediatric 16 Death Review Committee and the Death Under Five 17 Committee. 18 Welcome back, Dr. Lauwers. 19 DR. ALBERT LAUWERS: Thank you, Ms. 20 Rothstein. 21 22 ENHANCING THE RELATIONSHIP BETWEEN THE CORONIAL SERVICE 23 AND THE PEDIATRIC FORENSIC PATHOLOGY SERVICE PANEL: 24 25 STEPHEN CORDNER
81 ALBERT LAUWERS 2 MICHAEL POLLANEN 3 BONITA PORTER 4 5 QUESTIONED BY MS. LINDA ROTHSTEIN: 6 MS. LINDA ROTHSTEIN: Our topic this 7 morning is enhancing the relationship between the 8 coronial service and the pediatric forensic pathology 9 service or, indeed, the forensic pathology service more 10 broadly described. 11 We're going to look -- we're going to 12 spend a lot of time this morning, I expect, Commissioner, 13 talking about what the Ontarians have developed, in terms 14 of a proposal for optimizing that relationship in the 15 next decade. 16 And from time to time, we'll hear from Dr. 17 Cordner a little bit more about how one might view the 18 world very differently, at least across the ocean. 19 I want to start on the ground floor, if I 20 can, with all of you, by looking at what, if any, 21 enhancements you would suggest need to be made at the 22 ground level of the -- the individ -- the relationship 23 between the individual investigating coroner and the 24 individual pathologist, taking note of this very broad 25 province of ours and the large number of investigations
91 in which that relationship is important. 2 And I want to start -- start with you, Dr. 3 Lauwers, and have you, based on your many, many years 4 involved in precisely that task on the ground, sharing 5 your views with the Commissioner, please. 6 DR. ALBERT LAUWERS: Yes. Fundamentally 7 speaking, the relationships actually are geographically 8 different, in the City of Toronto, for instance, than 9 they are in an area like the northeast region. 10 In the City of Toronto, we would have a 11 very formalized role and relationship, in that during our 12 -- the course of our morning rounds, as you know, Mr. 13 Commissioner, there's a discussion about the cases for 14 the day and the roles are very clearly delineated. My 15 role is to ask my consultant, Dr. Pollanen, to provide -- 16 my role is to provide him with fulsome information so 17 that he can conduct the autopsy accordingly. 18 In the northeast region, the roles are 19 perhaps a little different. It's very much a 20 collaborative process again but there might be more 21 activity with regard to issues regarding the autopsy. 22 For instance, in Toronto, I would not be inclined to ask 23 for any ancillary testing or would I ask for any 24 toxicologic testing. This would be part of our morning 25 discussion.
101 In northeast region, however -- in north - 2 - northeast region, however, it's -- that might change. 3 In fact, we would have a very active discussion around 4 issues such as toxicology and any ancillary studies that 5 might occur with regard to the -- the autopsy as it's 6 being performed. 7 MS. LINDA ROTHSTEIN: Do you see any need 8 for further protocols? Do you see any particular 9 enhancements as being appropriate? 10 DR. ALBERT LAUWERS: I think the 11 protocols presently in place are -- are adequate for 12 those purposes. I do think, however, the -- the 13 evolution of the guidelines for death investigation in 14 2007 and, certainly, Dr. Pollanen's efforts with regard 15 to guidelines for autopsy reports and criminally 16 suspicious and homicide cases, and I gather later on this 17 year he'll be producing guidelines for autopsy reports 18 for the remainder. 19 The non-suspicious cases will be 20 instrumental in -- in dictating and telling -- or, pardon 21 me, in developing policy with regard to the interaction 22 for -- between coroners and pathologists. 23 MS. LINDA ROTHSTEIN: Dr. Pollanen, how 24 do you see the issue? 25 DR. MICHAEL POLLANEN: I think the
111 starting point is a fundamental one, and that the 2 fundamental starting point is: there's a teamwork 3 approach. And that is a sort of a very important and 4 unbroken concept throughout all of our service delivery, 5 and that is that we exist in a death investigation system 6 that is based upon a medical coroners model. It is 7 populated by two (2) types of physicians: coroners, which 8 are different types of physicians but usually family 9 doctors; and pathologists, and some of those pathologists 10 are forensic pathologists. 11 And the important part of, or the ongoing 12 challenge in producing high quality death investigation 13 is effectively participating in the activity in an 14 integrated fashion. 15 Now, we have other team members, as well. 16 So if you take that as your starting point, the next most 17 important concept is communication between the various 18 elements of the team, and I'll contrast this by a 19 frequently misunderstood concept of teamwork. 20 And that -- the other sort of concept of 21 teamwork that is used sometimes is specialization. In 22 other words, this one specializes in that, that one does 23 this, and we all do our little bits and pieces to a very 24 high quality, and some people think that's teamwork. 25 That is not teamwork. That will not produce a high
121 quality result. What is required is that, in a 2 coordinated fashion, and that coordination is provided 3 essentially by building partnerships: teamwork through 4 communication. 5 So that's the goal. That's the goal at 6 the death scene when the coroner interacts with the 7 police or when the pathologist comes to the scene; that's 8 the goal in the post-mortem room; that's the goal in the 9 inquest; that's the goal in the criminal court for that 10 matter, although the emphasis is slightly different on 11 the single witness. That -- that concept needs to 12 permeate everything. 13 On that notion I think there are regional 14 differences. And some of those regional differences, I 15 believe, will be effectively dealt with by the minimum 16 standard guideline that are -- we're currently developing 17 for global use. I think it would also be enhanced by the 18 Ontario Forensic Pathology Services concept, as a sort of 19 a global over arching service across pathology. And I 20 think also there needs to be continued education in the 21 matter. 22 But I think we do a fairly good job right 23 now, although recognizing that there are multiple 24 mechanisms to improve it. 25 COMMISSIONER STEPHEN GOUDGE: Dr.
131 Pollanen, both you and Dr. Lauwers have sort of 2 implicitly emphasized the need for some flexibility given 3 the variations across the province in that roles in 4 individual death investigations as between coroner and 5 pathologist. 6 Does that mean it would be counter 7 productive to have, let us say a single document that 8 tried to precisely define the roles of each in a death 9 investigation? Does that produce too much inflexibility? 10 DR. MICHAEL POLLANEN: Well, I think -- I 11 think by -- by nature of -- of the functions, they're 12 already very clearly cleaved apart in -- in a way. I 13 mean, coroners are not capable of -- of performing 14 autopsies. 15 COMMISSIONER STEPHEN GOUDGE: Right. 16 DR. MICHAEL POLLANEN: So I mean, it's 17 not -- it's by -- it's sort of by definition the role of 18 the pathologist to do so. And -- and the coroner has the 19 statutory authority to take -- to seize the body and 20 write warrants and do the investigation and perhaps hold 21 an inquest, so -- so really those -- those differences 22 are so fundamental that they're already fairly 23 demarcated. 24 COMMISSIONER STEPHEN GOUDGE: Right. 25 DR. MICHAEL POLLANEN: Where -- where we
141 have historically got into trouble is where the medical 2 nature of the coroner has permitted an eclipse into the 3 role of forensic pathology at the policy level, at the 4 administration level, and, you know, unfortunately at the 5 individual case level. 6 COMMISSIONER STEPHEN GOUDGE: At the 7 individual case level. 8 DR. MICHAEL POLLANEN: This is something 9 that -- 10 COMMISSIONER STEPHEN GOUDGE: I mean, 11 that's why I asked the question. 12 DR. MICHAEL POLLANEN: And -- and this is 13 something that I think our system will evolve out of, and 14 largely has evolved out of, because of the realization of 15 the primacy of forensic pathology. 16 17 CONTINUED BY MS. LINDA ROTHSTEIN 18 MS. LINDA ROTHSTEIN: Dr. Porter, do you 19 have any comments? 20 DR. BONITA PORTER: I do. I think I have 21 a very practical suggestion as to how you could improve 22 the communication, which I think is the key piece to the 23 -- the ultimate and most positive outcome. 24 And that -- if we had a central dispatch 25 for the -- the Province, so that on any given day the
151 Regional Supervising Coroner for the particular area 2 would know what the activity of the individual coroners 3 in that region are, that -- that they could assume the 4 responsibility for appropriate communication between the 5 pathologists and the coroner, that that's taking place; 6 appropriate consultation with the Chief Forensic 7 Pathologist when required, with the -- the Regional 8 Forensic Directors at the -- the Centres of Excellence 9 for Forensic Pathology. 10 It's -- it's getting in at that particular 11 moment of the case where I think any difficulties, any 12 miscommunication, any -- any lack of communication can be 13 picked up early and identified and -- and corrected so 14 that you always get the best possible quality 15 investigation. 16 And that central dispatch I think would be 17 a very key piece to that. 18 COMMISSIONER STEPHEN GOUDGE: Right. 19 Right. Dr. Lauwers, do you have any comment on my 20 question? 21 DR. ALBERT LAUWERS: I -- I do. Mr. 22 Commissioner, I actually support both what my colleagues 23 have said, but I think a cleared lineation of roles is 24 necessity -- is a necessity for a quality system. 25 I think one (1) of the principles of
161 quality is that people understand what their functions 2 are and how they're to execute those functions and so I 3 would suggest to you that the clear delineation of roles 4 moving forward, with various policy initiatives like 5 the -- 6 COMMISSIONER STEPHEN GOUDGE: Yes. 7 DR. ALBERT LAUWERS: -- upcoming 8 guidelines for autopsies, generally -- 9 COMMISSIONER STEPHEN GOUDGE: Right. 10 DR. ALBERT LAUWERS: -- are going to be 11 of great benefit to us. 12 COMMISSIONER STEPHEN GOUDGE: Right. 13 Right. 14 15 CONTINUED BY MS. LINDA ROTHSTEIN: 16 MS. LINDA ROTHSTEIN: Dr. Cordner, before 17 I ask you to comment on what you've heard, can you give 18 us a bit more of an understanding about the relationship 19 that your pathologists have with coroners in Victoria. 20 DR. STEPHEN CORDNER: Well, there's a 21 distinction between the relationship in an individual 22 case -- 23 MS. LINDA ROTHSTEIN: Yeah. 24 DR. STEPHEN CORDNER: -- and the 25 relationship -- organizationally, so I think that that's
171 actually a really important difference; that -- 2 COMMISSIONER STEPHEN GOUDGE: Right. 3 DR. STEPHEN CORDNER: -- the hierarchy in 4 a particular case doesn't necessary get reflected in the 5 organizational -- 6 COMMISSIONER STEPHEN GOUDGE: Right. 7 DR. STEPHEN CORDNER: -- arrangement. So 8 we have it absolutely clear that in our system the 9 coroner sits at the peak of the investigation. Our 10 coroner is a judicial coroner, a legal -- a legal coroner 11 and runs the investigation, controls the body, orders the 12 -- orders the autopsy. 13 But I do believe that because perhaps our 14 coroners are legal coroners and acting judicially much 15 more, but in this inquisitorial system they do understand 16 that the more they get engaged with the particulars of 17 individual death investigations the less they can hold 18 those parts of the investigation to account, because 19 they, themselves, are implicated in the -- in the 20 management of that particular part of the investigation. 21 So -- but a coroner can, because it's a 22 inquisitorial system and the coroner runs the 23 investigation, the coroner can do anything. The coroner 24 can come in the -- come in the mortuary and stand by me 25 and say, Do this or do that, because he runs the
181 investigation, but he doesn't. 2 So -- because the coroner understands that 3 to the extent that he or she gets involved at that level, 4 Do this toxicology, the coroner has got to be held to 5 account and there really isn't anyone who can hold the 6 coroner to account. So the Coroner knows for the best of 7 system, the coroner actually keeps out of nitty-gritty of 8 the investigation. 9 So that is -- that's what sounds a little 10 bit strange to my ears when I hear -- 11 COMMISSIONER STEPHEN GOUDGE: So you -- 12 DR. STEPHEN CORDNER: -- this sort of 13 coroner's -- 14 COMMISSIONER STEPHEN GOUDGE: Right. 15 DR. STEPHEN CORDNER: -- system. It is - 16 - and obviously a community determined its own -- 17 COMMISSIONER STEPHEN GOUDGE: Sure. 18 DR. STEPHEN CORDNER: -- coroner system, 19 and that's fine, but that's what sounds strange to my 20 ears. 21 COMMISSIONER STEPHEN GOUDGE: So it, at 22 what Ms. Rothstein has called the "ground level" in 23 Australia, in Victoria, you wouldn't have the same -- 24 DR. STEPHEN CORDNER: No. 25 COMMISSIONER STEPHEN GOUDGE: -- need for
191 a sort of role definition concern that is implicit in my 2 question, on a case-by-case basis? 3 DR. STEPHEN CORDNER: Well, that question 4 would have been apposite prior to 1995 when the new 5 Coroners Act came into being, because that added a whole 6 new level of clarification to the role of forensic 7 pathology -- 8 COMMISSIONER STEPHEN GOUDGE: Yes. 9 DR. STEPHEN CORDNER: -- created an 10 organization and gave that organization -- 11 COMMISSIONER STEPHEN GOUDGE: I mean, we 12 have obviously heard some evidence, Dr. Cordner, without 13 getting into individual situations, where one could raise 14 the concern about role definition from the perspective of 15 a medical corner in effect spilling into the professional 16 world of the highly-skilled forensic pathologist, and 17 whether that needs some more stark definition or not, the 18 counter-argument to me is you need flexibility in a -- 19 DR. STEPHEN CORDNER: Mm-hm. 20 COMMISSIONER STEPHEN GOUDGE: -- province 21 as varied as Ontario. 22 And so here I am right on the fence and 23 I'm looking for help, you know, because we do need 24 flexibility. On the other hand -- 25 DR. STEPHEN CORDNER: Mm-hm.
201 COMMISSIONER STEPHEN GOUDGE: -- you 2 know, clearly the evidence shows at least some modest 3 concern in this area. 4 DR. MICHAEL POLLANEN: Well, I -- my own 5 view on that matter, and that's after navigating these 6 issues myself, you know, for the last several years and - 7 - and I don't want to be alarmist about this, I'm just 8 going to be very direct about it. We have to recognize 9 that in the eclipse, in the overlap, the intersection 10 between the two (2), the outcomes are potentially quite 11 unsafe. 12 So there -- there does need to be a very 13 clear demarcation, a no-fly zone as it were. How to 14 specify such a demarcation is -- 15 COMMISSIONER STEPHEN GOUDGE: Yes, that's 16 very hard, Dr. Pollanen. 17 DR. MICHAEL POLLANEN: -- is difficult. 18 But, you know, for example, I -- I -- I'm about to say 19 things that are very obvious but -- but they correlate, 20 you see. 21 Pathol -- a coroner should not give 22 evidence for pathologists in Court; that would be sort of 23 one (1). 24 COMMISSIONER STEPHEN GOUDGE: Right. 25 DR. MICHAEL POLLANEN: Coroners should
211 not perform autopsies, would be another. These are the - 2 - these are -- 3 COMMISSIONER STEPHEN GOUDGE: Be able to 4 direct the pathologist about whether or not to go to the 5 scene. 6 DR. MICHAEL POLLANEN: Correct. Any 7 matter that -- 8 COMMISSIONER STEPHEN GOUDGE: Should not 9 be to do that? 10 DR. MICHAEL POLLANEN: Should not be able 11 to do it. Should not form -- should not get into the 12 professional content of what is essentially a discipline 13 of medicine. And -- and because -- not because there 14 should be some type of -- 15 COMMISSIONER STEPHEN GOUDGE: Well, take 16 the example, Doctor -- and I don't want to spend too much 17 time on this, Ms. Rothstein, because I know we have other 18 issues to deal with, but it is a tough little area. 19 I mean, Dr. Lauwers says in some parts of 20 Ontario there needs to be fulsome discussion about what 21 toxicology to do. 22 DR. MICHAEL POLLANEN: And -- and that's 23 teamwork. You see, I would view that as being -- 24 COMMISSIONER STEPHEN GOUDGE: But who 25 calls that in the end?
221 DR. STEPHEN CORDNER: I think, if I may 2 say so, that Dr. Pollanen would probably regard that as a 3 failure of the forensic pathology system that -- but that 4 doesn't mean there can't be conversation and -- but it is 5 -- it sounded a bit odd to me that a person functioning 6 as a forensic pathologist needs direction about the 7 mechanics and necessity for toxicology in a particular 8 case. 9 COMMISSIONER STEPHEN GOUDGE: If I were 10 your coroner you wouldn't take my views on whether 11 toxicology was necessary, I hope. 12 DR. STEPHEN CORDNER: Well, I'd be a bit 13 disappointed if you had pointed -- and that is not -- and 14 I wouldn't want to say that that's impossible, either -- 15 COMMISSIONER STEPHEN GOUDGE: Yeah, no, 16 I -- 17 DR. STEPHEN CORDNER: -- because I mean 18 there might be knowledge that the coroner has that the 19 pathologist at that point does not have, so that's, you 20 know, so I wouldn't -- you wouldn't want to rule it out, 21 but on a technical point of view you'd be a bit 22 disappointed if -- 23 24 CONTINUED BY MS. LINDA ROTHSTEIN: 25 MS. LINDA ROTHSTEIN: Dr. Lauwers...?
231 DR. ALBERT LAUWERS: Mr. Commissioner -- 2 yeah, I just want to -- 3 MS. LINDA ROTHSTEIN: Go ahead. 4 DR. ALBERT LAUWERS: -- a couple of 5 comments. I mean, we have a system of medical care and 6 we have a system that's based on that, as well. We are 7 physicians, and it's like the administration of any other 8 system where a physician asks for a consultant. 9 If I'm in the Emergency Department and I'm 10 asking for a cardiology consultant -- 11 COMMISSIONER STEPHEN GOUDGE: Right. 12 DR. ALBERT LAUWERS: -- to come and see 13 my patient, he comes, he renders his opinion, he gives me 14 advice, and certainly if he's embarking on a course of 15 action that doesn't seem appropriate to me, or -- or 16 which could be informed by more information, or requires 17 discussion, I'm going to have the discussion with him; 18 that's in the best interest of the patient. 19 COMMISSIONER STEPHEN GOUDGE: Right. 20 DR. ALBERT LAUWERS: And the similar -- a 21 similar notion goes with an autopsy and the conduct of an 22 autopsy. I'm there to re -- my consulted, my forensic 23 pathologist is rendering the autopsy. If I see a pattern 24 or I have a concern I think I should be free to go and 25 discuss that with him, but again, it's the -- within the
241 context of a mutual discussion in which we agree upon the 2 facts and we inform each other, it's -- 3 COMMISSIONER STEPHEN GOUDGE: Right. 4 5 CONTINUED BY MS. LINDA ROTHSTEIN: 6 MS. LINDA ROTHSTEIN: But do I hear you 7 to be saying in that, Dr. Lauwers, that you in some ways 8 equate the role of the coroner in the death investigation 9 with the role of the practitioner who is the most 10 responsible physician dealing with a patient? 11 DR. ALBERT LAUWERS: That's exactly the 12 way I equate it. 13 MS. LINDA ROTHSTEIN: Yeah. All right. 14 So we know a lot about the education that is done for 15 coroners and how that's developed over the years and -- 16 and I think the Commissioner has a pretty good handle on 17 that. But the question that remains in light of our 18 mandate, being pediatric forensic pathology, is whether 19 or not you perceive there to be any important need, as 20 opposed to just it's always great to have more education 21 of coroners with respect to pediatric forensic cases, and 22 whether indeed you think it's practical to contemplate 23 any specialisation of coroners with respect to those 24 case? 25 Can we hear from you about that, Dr.
251 Lauwers. 2 DR. ALBERT LAUWERS: Well, I can tell you 3 -- just perhaps begin by populating it with numbers. We 4 know that there are approximately twenty thousand 5 (20,000) death investigations a year, five hundred and 6 fifty (550) in children under eighteen (18) years of age, 7 about two hundred and thirty (230) of those will be death 8 under five (5), and of that about seven (7) cases will be 9 homicides, so we're looking at a total volume of about 1 10 percent of our cases. 11 Having said that, we actually -- we 12 actually do think that an education regarding pediatric 13 issues is important, and in fact currently our induction 14 course for coroners provides three (3) hours of pathology 15 and one (1) hour of education dedicated toward pediatric 16 issues, which is far -- it's disproportionate in terms of 17 the amount of time it gets given the number of total 18 cases. 19 Having said that, I can tell you that we 20 discussed it and we realise and recognise that the unique 21 issues that came before this Inquiry are going to have to 22 be shared with all the coroners in the Province of 23 Ontario, and so we're going to dedicate a special 24 educational program just to that -- the particular issues 25 that we've raised at this Inquiry.
261 And something that's come up more recently 2 is Dr. Pollanen's proposal with regard to the Centre for 3 Forensic Medicine and Science. We're anticipating and -- 4 not anticipating, but hoping that at some point in the 5 future we will be able to develop an educational program 6 for -- with -- with regard to certification through that 7 very body, with regard to people who might have an 8 interest as graduating physicians to become coroners and 9 death investigators. 10 The last thing that I just share with you, 11 and it's -- it's something that perhaps hasn't come up 12 during the course of the Inquiry, is the notion that, 13 notwithstanding, physicians are coroners, and they have a 14 lot of experience dealing with pediatric cases. 15 And probably in my career, about 30 16 percent of the cases I saw were pediatric. And that 17 involved all the intricacies of dealing with family, 18 giving them bad news, and letting them know and 19 understand that we were going to be supportive of them. 20 So that -- that those principles are 21 inherent in our system. 22 MS. LINDA ROTHSTEIN: Dr. Pollanen, any 23 comments about that? 24 DR. MICHAEL POLLANEN: Well one (1) of 25 the things that -- that I think might be highly
271 beneficial in the long term, and I think this is a very 2 long term issue, in the educational area flowing through 3 a structure like the Centre of -- for Forensic Medicine 4 and Science is this: that I've -- I've indicated that one 5 (1) of the important parts would be to look at all the 6 Royal College certification programs and then identify 7 what type of forensic content could be delivered into 8 those residency training curricula. 9 And one (1) of the ideas would be to 10 provide essentially a certificate of special competency 11 in death investigation, in medical death investigation, 12 in -- in the same way that we have -- we're developing 13 this for forensic pathology. And you could, for example, 14 connect that to the Royal College certification and 15 family medicine. And so that -- that -- there is one (1) 16 currently existing for emergency medicine. 17 So whether or not you could produce a 18 similar circumstance for death investigation, this would 19 tend to give a -- a disciplinary base, as it were, to 20 death investigation. 21 COMMISSIONER STEPHEN GOUDGE: Is there 22 now an elective in the residency for emergency medicine 23 in forensics? When you say there's one (1), one (1) 24 what? 25 DR. MICHAEL POLLANEN: There's -- there's
281 one (1) of these special programs for emergency medicine 2 within family medicine, but there's -- there's no 3 current -- 4 COMMISSIONER STEPHEN GOUDGE: Oh, I see. 5 DR. MICHAEL POLLANEN: -- linkage -- 6 COMMISSIONER STEPHEN GOUDGE: Okay. 7 DR. MICHAEL POLLANEN: -- to the forensic 8 component. 9 COMMISSIONER STEPHEN GOUDGE: Okay. 10 DR. MICHAEL POLLANEN: That's one (1) of 11 the things that I see the Centre sort of filling the gap 12 in. 13 COMMISSIONER STEPHEN GOUDGE: Okay. And 14 you would see an elective in a pathology residency or in 15 the forensic fellowship that follows it in -- how would 16 you -- you would put it into the family medicine 17 residency, I guess? 18 DR. MICHAEL POLLANEN: For those people 19 that -- lets say you have a family doctor -- 20 COMMISSIONER STEPHEN GOUDGE: Right. 21 DR. MICHAEL POLLANEN: -- who's in -- in 22 the process of training to be a family physician, who's 23 going to go to a community -- 24 COMMISSIONER STEPHEN GOUDGE: Right. 25 DR. MICHAEL POLLANEN: -- where they want
291 to be a coroner, they can -- they can then elect to have 2 further post-graduate -- 3 COMMISSIONER STEPHEN GOUDGE: Right. 4 DR. MICHAEL POLLANEN: -- education in 5 that area, perhaps leading to a certification. 6 COMMISSIONER STEPHEN GOUDGE: Right. 7 DR. MICHAEL POLLANEN: Just providing 8 more of the disciplinary base. 9 COMMISSIONER STEPHEN GOUDGE: Right. 10 DR. MICHAEL POLLANEN: They've done this 11 in the US, for example, with the American Board of Death 12 Investigators, which is something that Dr. Hanzlick 13 talked about -- 14 COMMISSIONER STEPHEN GOUDGE: Right. 15 DR. MICHAEL POLLANEN: -- where they have 16 lay as opposed to medical death investigators. 17 COMMISSIONER STEPHEN GOUDGE: Right. 18 Right. 19 20 CONTINUED TO BE QUESTIONED BY MS. LINDA ROTHSTEIN: 21 MS. LINDA ROTHSTEIN: Dr. Cordner...? 22 DR. STEPHEN CORDNER: Yes, just -- just 23 briefly, Commissioner. When you asked a question about, 24 you know, more training and it sounded a bit like more 25 medical training, about pediatric deaths, that sounded
301 strange to me, because that's starting to turn the 2 coroner into more of a medical expert. Whereas, I fear - 3 - and I know that coroners get involved in going to the 4 scene here, but when I think of coroners, I think of 5 coroners as consumers of the work of others to produce 6 findings. 7 And so if you going to turn the medical 8 coroner into more of a medical expert, then you're really 9 turning your system into more of a medical examiner 10 system, in which case you'd have a forensic pathologist 11 as your chief coroner. 12 So I'm just -- I'm just sort of -- 13 COMMISSIONER STEPHEN GOUDGE: That's an 14 interesting perception. 15 DR. STEPHEN CORDNER: So now -- 16 COMMISSIONER STEPHEN GOUDGE: I mean, 17 what's described, as I hear it, is the over-arching need 18 for communication, and communication works best between 19 folk who are modestly, similarly educated. 20 Is that a fair sort of -- 21 DR. ALBERT LAUWERS: That's fair by my 22 understanding. 23 DR. STEPHEN CORDNER: Well -- well, the 24 only point -- think only thing I'd say about that is that 25 a forensic pathologist has five (5) years of specialist
311 training in examinations and is a medical specialist. 2 I'm -- I'm not quite sure what is behind being a medical 3 coroner. So -- 4 COMMISSIONER STEPHEN GOUDGE: Take a 5 family doctor, which is the common paradigm -- 6 DR. STEPHEN CORDNER: Yes. 7 COMMISSIONER STEPHEN GOUDGE: -- in 8 Ontario. Fair enough? 9 DR. BONITA PORTER: With some exception, 10 if I could perhaps respond to that? 11 COMMISSIONER STEPHEN GOUDGE: Yes, yes. 12 DR. BONITA PORTER: Sort of there's -- 13 there's been a change in the pattern of physicians that 14 are interested in forensic work, and within the last five 15 (5) years our percentage of medical specialties has 16 increased significantly. 17 COMMISSIONER STEPHEN GOUDGE: What would 18 it be now, Dr. Porter, just -- 19 DR. BONITA PORTER: It's about 18 percent 20 of the current population of new coroners, between one 21 (1) and six (6) years, have medical specialties. Some 22 have law degrees. And we actually have had pathologists 23 as -- 24 COMMISSIONER STEPHEN GOUDGE: Yes. 25 DR. BONITA PORTER: -- coroners, as well,
321 so -- 2 COMMISSIONER STEPHEN GOUDGE: Is it still 3 true that family doctors are the largest component -- 4 DR. BONITA PORTER: They -- they -- 5 COMMISSIONER STEPHEN GOUDGE: -- of the 6 coroner -- 7 DR. BONITA PORTER: Yes, it -- 8 COMMISSIONER STEPHEN GOUDGE: -- service? 9 DR. BONITA PORTER: -- it certainly is 10 because, quite frankly, we have to populate the Province 11 with -- 12 COMMISSIONER STEPHEN GOUDGE: Yes, right. 13 DR. BONITA PORTER: -- with coroners and 14 in some of the remote communities the physicians that are 15 there are family physicians. 16 COMMISSIONER STEPHEN GOUDGE: So take 17 that as a given, Dr. Porter, that the coroner is a family 18 doctor. And then the argument is, well, in order to have 19 effective teamwork, effective communication, and partly 20 to have one (1) part of the communication duality aware 21 of where, in Dr. Pollanen's terms, the no-fly zone is, 22 better to have a little more education. 23 DR. STEPHEN CORDNER: Well, impossible to 24 say, you know, more education isn't good. But I must 25 admit, I'd been thinking in -- in terms of legal
331 education and -- because, for me, the important role of 2 the coroner is actually the -- the consumption of the 3 result -- 4 COMMISSIONER STEPHEN GOUDGE: Right. 5 DR. STEPHEN CORDNER: -- of the 6 investigation and the produced -- 7 COMMISSIONER STEPHEN GOUDGE: Right. 8 DR. STEPHEN CORDNER: -- production of 9 findings, which is what the rest of the system is -- is 10 waiting for. Now -- 11 COMMISSIONER STEPHEN GOUDGE: Right. 12 DR. STEPHEN CORDNER: -- you've also got 13 your medical coroners at the scene and doing nuts and 14 bolts stuff, which in our system is done by either the 15 forensic pathologist attending the scene or at what we 16 call our police surgeon -- 17 COMMISSIONER STEPHEN GOUDGE: Right. 18 DR. STEPHEN CORDNER: -- group, who are 19 family practitioners who do that type of thing and 20 produce a little report, and that becomes part of the -- 21 part of the whole file. 22 DR. MICHAEL POLLANEN: Can I just make a 23 comment -- 24 COMMISSIONER STEPHEN GOUDGE: Sure. 25 DR. MICHAEL POLLANEN: -- about that? I
341 think there are two (2) concepts that -- that come out of 2 what Professor Cordner has said there. 3 One (1) thing that we have to guard 4 against in -- in the medical coroner system -- and I 5 think we're past this but we're just past it -- is the 6 feeling amongst pathologists and the view by some 7 coroners that the pathologist was essentially an autopsy 8 technician that was providing, you know, a mechanical 9 service of -- of dissecting the body, and that, you know, 10 that was, you know, their role in the system. And, in 11 fact, you know, well experienced and able dissectors that 12 are long-serving autopsy assistants could basically 13 substitute for a pathologist. 14 This is incorrect. I mean, it's -- it's - 15 - it's a dangerous misconception. So that's number 1. 16 And I think that we have to recognize 17 that, you know, a forensic pathologist is really not an 18 autopsy technician, can't really be replaced by, you 19 know, very longstanding, you know, people that work as 20 technicians; incredibly important members of the team, 21 but, again, we all have roles. 22 The second point is -- and -- but I think 23 we've done a fairly poor job. And when I say "we", I 24 also mean myself, in -- in the last few years in my post. 25 We've done a fairly poor job recognizing that the -- the
351 coroner is not the only consumer of the autopsy report. 2 In other words, that the autopsy report 3 flows as professional output from the pathologist to 4 many, many different groups. We know the criminal 5 justice system uses it because we're called to account 6 for our results in court; that we have the child welfare 7 system; we have -- you know, I could list them all. 8 COMMISSIONER STEPHEN GOUDGE: Right. 9 DR. MICHAEL POLLANEN: There's a lot of 10 them. 11 COMMISSIONER STEPHEN GOUDGE: We've -- 12 we've heard a lot about all that. 13 DR. MICHAEL POLLANEN: And -- and so we 14 need to be informed. The forensic pathologists and the 15 coroner service needs to be maximally informed that those 16 -- those players also have legitimate interests in this - 17 - in the discussion that we're having right now. 18 In other words, the -- the legal authority 19 to order the examination, which is the autopsy, is not 20 the only consumer of the report, does not have the only 21 interest in ensuring the -- the results are reliable, et 22 cetera. So that -- that sort of notion has to inform 23 policy development, as well, and the parallel for that, 24 for example, is the Centre of Forensic Science, which 25 provides toxicology, DNA testing, to --
361 COMMISSIONER STEPHEN GOUDGE: Right. 2 DR. MICHAEL POLLANEN: -- a whole bunch 3 of different client groups. 4 COMMISSIONER STEPHEN GOUDGE: Right. 5 6 CONTINUED BY MS. LINDA ROTHSTEIN: 7 MS. LINDA ROTHSTEIN: Next question. 8 It's actually for you first, Dr. Pollanen. 9 Is there a need to rethink the roles that 10 the coroner and the forensic pathologist should play in 11 determining cause of death and manner of death? 12 DR. MICHAEL POLLANEN: Well, 13 traditionally, the -- the coroner determines both. And 14 the -- and what happens practically is, if an autopsy is 15 performed the pathologist's opinion on cause of death is 16 then usually accepted by the coroner. Not necessarily; I 17 mean, the coroner has statutory official that decides in 18 ultimately what -- what the finding will be. Or a jury, 19 for example, in the case of coroner's inquest, which 20 essentially trumps the coroner in -- in that process. 21 But what is a consistent theme in history 22 is that the pathologist does not opine on manner of 23 death, which is a little bit of a paradox because in the 24 difficult pediatric cases and many of the difficult adult 25 homicide or quasi-homicide cases, that's the only thing
371 the path -- that anybody is interested in the pathologist 2 giving an opinion on. 3 So I would say that -- that the only 4 addition to thinking on the matter needs to be that when 5 the manner of death derives essentially from forensic 6 pathology, then the forensic pathologist determines the 7 manner of death. 8 MS. LINDA ROTHSTEIN: For example? 9 DR. MICHAEL POLLANEN: Well, in pediatric 10 head injury cases where the issue might be homicide 11 versus accident, I think that the pathologist will 12 ultimately give a view on that in the criminal justice 13 system, and therefore, you know, the pathologist 14 determining the manner of death is, you know, just -- is 15 just closely linked to that. That's not -- 16 COMMISSIONER STEPHEN GOUDGE: I think of 17 a strangulation case as one where the pathology comes 18 very close to talking about manner. 19 DR. MICHAEL POLLANEN: Yes. Now, I'm not 20 suggesting that the coroner should not have the 21 certificational role in, you know, filling out the death 22 certificate and giving the manner of death -- I'm not 23 suggesting that -- because that's their role in the 24 system. 25 But what I'm saying is that when -- when
381 the -- the content flows from forensic pathology then 2 essentially the forensic pathologist provides that 3 advice. 4 COMMISSIONER STEPHEN GOUDGE: It really 5 has to be demonstrated by the pathology before the 6 pathologist can articulate it. 7 DR. MICHAEL POLLANEN: Correct. If 8 you're into a circumstance, whether somebody has 9 committed suicide or accidentally discharged a firearm 10 with Russian Roulette, this does not hinge on the 11 pathology -- 12 COMMISSIONER STEPHEN GOUDGE: Right. 13 DR. MICHAEL POLLANEN: -- although you 14 may exclude it, based upon range, et cetera, but -- but 15 nothing -- there's nothing inherently -- 16 COMMISSIONER STEPHEN GOUDGE: There is no 17 pathology that speaks to it. 18 DR. MICHAEL POLLANEN: Exactly. 19 20 CONTINUED BY MS. LINDA ROTHSTEIN: 21 MS. LINDA ROTHSTEIN: Dr. Porter, Dr. 22 Lauwers, do you have any comments about that? 23 DR. ALBERT LAUWERS: I think that in 24 general the current practice, and for as long as I've 25 been a practitioner, with regard to death investigation,
391 is to consider the cause of death on the autopsy report 2 as the cause of death. But that invariably is subject to 3 interpretation and the facts of the case may actually 4 change that interpretation. 5 You know, I'm -- I'm very respectful of 6 what Dr. Pollanen is saying, but I would give you a 7 situation in which a demonstrated cause of death by 8 autopsy. 9 Perhaps a two (2) month old child that's 10 found in a crib and the crib is not populated with toys 11 and it's a safe crib for all intents and purposes, is 12 found deceased and the autopsy is negative. In other 13 words, there is no anatomic -- definitive anatomic or 14 toxicologic cause of death; there simply isn't one (1). 15 And -- and then subsequent to that there's a confession 16 by a mother that she smothered her child with a towel. 17 The coroner would not be restricted on 18 making the -- the manner and cause of death based on the 19 information that we gleaned from the case. I'm not sure 20 how the pathologist would view that particular 21 circumstance, given that there isn't actually any actual 22 evidence to give a manner and cause of death in that 23 circumstance. 24 MS. LINDA ROTHSTEIN: Dr. Cordner, you've 25 written on this subject, why don't you give us your --
401 your quick views about where pathologists should go in 2 terms of cause of death and what the role of the coroner 3 is. 4 DR. STEPHEN CORDNER: Well, encapsulated 5 by... 6 The way we operate in Victoria, a 7 coroner's finding is not evidence of the contents of that 8 finding. So that if there's an issue that needed to be 9 resolved in another court, that court has to resort to 10 the expertise that is inherent within that finding, and 11 so to the extent that forensic pathology can contribute, 12 it goes to a forensic pathologist. 13 I don't know -- I suspect that -- I don't 14 know, I'd be interested if somebody could tell me, in 15 this jurisdiction whether a coroner is regarded as having 16 sufficient expertise to talk about the cause and manner 17 of death in other Courts. I don't know it -- the answer 18 to that question. 19 But it would seem to me that as not being 20 a forensic pathologist, there might be difficulties in a 21 large number of cases where a forensic pathologist would 22 have a different -- you know, if there was a difference 23 of view I would imagine they -- the medical specialty of 24 -- of death investigation of which forensic pathology is, 25 it would probably regarded in other courts as -- as being
411 the relevant expertise. So that's why I would -- 2 COMMISSIONER STEPHEN GOUDGE: Do your 3 coroners in Victoria, Dr. Cordner, begin with the premise 4 that cause of death and that alone is the objective of 5 the autopsy? 6 DR. STEPHEN CORDNER: Well, no, they have 7 to find the cause of death, how the death occurred -- 8 COMMISSIONER STEPHEN GOUDGE: Right. 9 DR. STEPHEN CORDNER: -- which is the 10 circumstances within -- 11 COMMISSIONER STEPHEN GOUDGE: When I said 12 "that alone" I meant by implication to exclude manner of 13 death; that is, do your coroners begin with the 14 proposition that determining manner of death is not part 15 of their challenge? 16 DR. STEPHEN CORDNER: They -- they would 17 begin and -- and I don't have any difficulty with the -- 18 the coroner's function being to determine how the death 19 occurred, but the coroners want the best advice that they 20 can -- 21 COMMISSIONER STEPHEN GOUDGE: Right. 22 DR. STEPHEN CORDNER: -- obtain about 23 what other people who have got relevant contributions to 24 make think. But then there will be cases where there 25 won't be anybody else who can second guess the
421 pathologist and -- and the pathologist's view, it would 2 be extraordinary to think that in particular cases would 3 -- you know, that it wouldn't prevail, so -- 4 COMMISSIONER STEPHEN GOUDGE: Do your 5 coroners use the mechanism of -- mechanism of death, the 6 notion of mechanism of death, as something that if the 7 pathology takes them there that they can engage in -- 8 that is, short of manner of death? 9 DR. STEPHEN CORDNER: They rarely 10 actually conclude suicide, homicide; they -- they provide 11 a short brief statement which describes the 12 circumstances; so that so and so was found hanging in the 13 cupboard of the bedroom twelve (12) hours after he was 14 seen alive and had a history of depression. That's how 15 they would describe it. 16 COMMISSIONER STEPHEN GOUDGE: So it would 17 be done by descriptive terms, not a conclusory label like 18 mechanism of death: suicide? 19 DR. STEPHEN CORDNER: No, no. They 20 might. I mean a particular coroner might -- 21 COMMISSIONER STEPHEN GOUDGE: Right. 22 DR. STEPHEN CORDNER: -- and they would 23 be perfectly entitled to. 24 COMMISSIONER STEPHEN GOUDGE: Right, 25 right.
431 2 CONTINUED BY MS. LINDA ROTHSTEIN: 3 MS. LINDA ROTHSTEIN: Dr. Porter, are 4 coroners ever qualified to give expert evidence on either 5 cause or manner of death and ought they to be? 6 MS. BONITA PORTER: Well, the decision 7 about whether anyone is qualified as an expert I think is 8 up to the -- the individual who's -- who's essentially 9 running the process -- 10 MS. LINDA ROTHSTEIN: Right. 11 MS. BONITA PORTER: -- whether it be a 12 criminal court, a civil court, an inquest, and that's 13 open to challenge and cross-examination by parties who 14 participate. So the -- the definition of expert changes 15 depending on the nature of the process. 16 But I can tell you that -- that certainly 17 the education that we provide to our coroners is done 18 within the -- the confines of the intent of the Coroner's 19 Act, which is to improve public safety. And we certainly 20 train coroners and -- and continually offer educational 21 programs to them to ensure that they continue to be 22 experts in what their particular function is, and that is 23 to answer five (5) questions about any particular death. 24 And 75 percent of our -- our cases, the 25 coroner does not ask for assistance from an expert like a
441 forensic pathologist. Because they are physicians, they 2 -- they have the training, the ability to assess the -- 3 the circumstances of the death and answer those questions 4 without asking for additional assistance. 5 And in terms of mannerizing the death, we 6 undertook a significant amount of -- of external work to 7 come up with our definitions to ensure that they do meet 8 public safety criteria internationally, because that is 9 the purpose of our legislation; that is the -- the reason 10 that we have quite extraordinary powers to -- to order 11 things in any particular death; and we have come up with 12 definitions for the manner of death that I -- I think 13 meet our public safety function. 14 MS. LINDA ROTHSTEIN: So, hypothetically 15 speaking, a Crown attorney in a case thinks two (2) 16 witnesses is better than one (1) -- 17 MS. BONITA PORTER: Mm-hm. 18 MS. LINDA ROTHSTEIN: -- and is planning 19 to call the forensic pathologist, or just the pathologist 20 who did the autopsy, to speak about the issues of cau -- 21 the issue of cause of death, and says I want to also 22 subpoena the Regional Supervising Coroner or the 23 investigating coroner to speak to the issue of not just 24 cause of death, but manner of death. 25 What would you think about that?
451 MS. BONITA PORTER: Well, I think that 2 hopefully the coroner or the regional supervising coroner 3 would certainly be up to that challenge and be able to 4 speak to their view, based on their experience, and 5 training, and opinion. 6 And we certainly have circumstances where 7 coroners have been on the stand in criminal proceedings 8 for a couple of days, explaining what they saw at the 9 scene. What -- 10 MS. LINDA ROTHSTEIN: But that's a 11 factual witness. I'm talking about 12 DR. BONITA PORTER: But expertise -- 13 MS. LINDA ROTHSTEIN: -- to give opinion 14 evidence. 15 DR. BONITA PORTER: I -- I think that's, 16 again, something that I think is up to the -- the person 17 who is running the procedure. 18 Coroners certainly are able to speak to 19 what their training has been; what their opinion is based 20 on; their experience. And I think that is part of what 21 goes into determining whether or not someone can give 22 expert opinion and the weight and credibility to be 23 afforded to it. 24 COMMISSIONER STEPHEN GOUDGE: So you 25 would leave it entirely up to the system receiving the
461 evidence? 2 DR. BONITA PORTER: I -- I think I would, 3 Commissioner. And partly it's because the experience of 4 the coroner is so variable across the Province, depending 5 on the number of cases that they do. 6 In Toronto, certainly we have coroners who 7 do this full-time because they have four (4) or five 8 hundred (500) cases a year. And I think that their 9 experience in terms of their opinion about a case does 10 have value based on the exposure that they've had to 11 death investigation. 12 So I -- I think it would be artificial to 13 impose some limits on their ability to give an opinion, 14 but I think it depends on who the person is, what their 15 experience is, what their training is. 16 We have individual coroners who undertake 17 additional training on their own by attending conferences 18 outside of Canada, where -- the American Academy of 19 Forensic Science, for example. They're members of the 20 National Association of Medical Examiners -- 21 COMMISSIONER STEPHEN GOUDGE: Yes, but 22 take -- 23 DR. BONITA PORTER: -- of the 24 International Association -- 25 COMMISSIONER STEPHEN GOUDGE: -- where
471 the issue is the pathology. 2 DR. BONITA PORTER: Well, I'm not sure 3 that it's appropriate for a coroner who's not a 4 pathologist to give an opinion on pathology. I think 5 that's entirely -- 6 COMMISSIONER STEPHEN GOUDGE: We have 7 looked at that, okay. I mean, I think that is what 8 troubles me. 9 DR. BONITA PORTER: I think that's again 10 up to the individual who's conducting the proceeding. 11 I think we certainly have advised our 12 coroners, when they are giving evidence, to stick within 13 their areas of expertise. That's also something that 14 we've addressed with our forensic pathologists. 15 So the -- the perils of going outside your 16 area of expertise, it's -- it's a hazard of which we are 17 very well aware. 18 19 CONTINUED BY MS. LINDA ROTHSTEIN: 20 MS. LINDA ROTHSTEIN: Dr. Pollanen, do 21 you have any comments? 22 DR. MICHAEL POLLANEN: Coroners should 23 not give expert testimony on pathology. 24 MS. LINDA ROTHSTEIN: Dr. Cordner...? 25 DR. STEPHEN CORDNER: Well, I mean --
481 MS. LINDA ROTHSTEIN: How do you define 2 the limits of pathology in -- 3 DR. STEPHEN CORDNER: Well -- 4 MS. LINDA ROTHSTEIN: -- that exercise? 5 DR. STEPHEN CORDNER: -- I would just go 6 back to what I said before. That if being a coroner is a 7 matter of medical expertise, then why wouldn't you -- I 8 mean, why wouldn't the system look for a forensic 9 pathologist as a coroner? 10 That would be to me, the relevant 11 framework upon which to add other things to be the most 12 expert head of that type of death investigation system. 13 MS. LINDA ROTHSTEIN: A very different 14 subject that is nevertheless very important, I think, to 15 creating the right relationships, not only between the 16 coronial service and -- and the pathology service but all 17 the individuals themselves, and it's something that 18 you've spoken of or written about in your -- one (1) of 19 your papers for us, Dr. Cordner, and it's the whole issue 20 of premises and facilities and the concern that in the 21 death investigation business that those facilities keep 22 up-to-date with modern needs. 23 Dr. Porter, you've been very involved in 24 trying to move forward that agenda for the OCCO and for 25 the Pathology Services of Ontario. Can you tell the
491 Commissioner about that? 2 DR. BONITA PORTER: Yes. I'm very 3 excited about the possibility of what we've been working 4 on for a new forensic sciences complex. 5 A number of our staff, in addition to a 6 number of staff at the Centre for Forensic Sciences, have 7 spent a great deal of time participating in a -- a 8 proposed design for a complex. It's at the stage where 9 it is moving forward in government, and we're very 10 hopeful that government, who has in the past already 11 committed to the facility, will continue to support it, 12 and I believe it's out a position for tender. 13 So I'm very confident and hopeful that 14 this will be a world-class facility that will house both 15 the Centre for Forensic Sciences, the Pathology Service 16 in the Toronto area, which is commonly now the Toronto 17 Forensic Pathology Unit, but also expand the catchment 18 area for the Pathology Services, and the administrative 19 offices of the Office of the Chief Coroner, and the 20 Inquest Courts. 21 So it's a very exciting time for us, and 22 I'm -- I'm very hopeful that government is moving forward 23 with a new complex that will be a state-of-the-art 24 facility, including a very specialized lab to deal with 25 the type of SARS incident that we had that we
501 unfortunately were not able to deal with. 2 MS. LINDA ROTHSTEIN: Dr. Pollanen, 3 you've been involved in putting forward the requirements 4 of the Pathology Service of Ontario in the future in the 5 facility-side of things. Tell us about what you hope 6 those facilities will house. 7 DR. MICHAEL POLLANEN: Well, first of 8 all, I have to say that the -- the credit for all of the 9 planning and the -- of the pathology area, the autopsy 10 suites, et cetera, actually goes to our current morgue 11 manager, Mr. Jeff Arnold, who has done a fantastic job in 12 this. 13 In fact, I've just played quite a minor 14 role in looking at plans, et cetera. Mr. Arnold has 15 really done the lion's share of that work. And I think 16 the development of these facilities will really go a long 17 way to improving the operational quality of our work. 18 It is increased physical space, increased 19 body storage capacity. Looking at issues of health risk 20 and bio safety upgrades, the -- the facility is 21 excellent. It also has a -- has the capability of 22 dealing with a mass disaster; bio terrorism 23 eventualities, God forbid. 24 So these are all very important aspects of 25 progress. We've -- we've spent a lot of time talking
511 about the conceptual and the policy and the 2 administrative correlates of progress, but really 3 physical plant is very important. 4 MS. LINDA ROTHSTEIN: Dr. Por -- 5 COMMISSIONER STEPHEN GOUDGE: In terms of 6 the increased size compared to your present relatively 7 cramped facilities, which you were kind enough to show us 8 around, does that correlate with the enhanced catchment 9 area for the TFPU that you spoke about, Dr. Porter? 10 DR. BONITA PORTER: Yes, it does, sir. 11 COMMISSIONER STEPHEN GOUDGE: And give me 12 a sense of what your optimal catchment area would be in 13 the new facilities? 14 DR. BONITA PORTER: Well currently, the 15 forensic pathology unit now, and certainly Dr. Pollanen 16 could correct me if I'm mis-stating this, it not only 17 provides services to the Toronto area, but on occasion, 18 provides services to other parts of the province when 19 there are needs that -- 20 COMMISSIONER STEPHEN GOUDGE: Right. 21 DR. BONITA PORTER: -- that -- that our 22 staff are the most qualified. But the anticipated 23 catchment area for the new facility will not only include 24 the greater Toronto area on a routine basis, but will 25 also include areas that we now call Central or Central
521 West, which would include the Brampton -- the Guelph 2 area. 3 COMMISSIONER STEPHEN GOUDGE: Which would 4 now go where? 5 DR. BONITA PORTER: Well, they have some 6 pathologists in -- in local hospitals who will do the 7 routine cases. 8 COMMISSIONER STEPHEN GOUDGE: Right. So 9 this would be moving from fee-for-service to the TFPU? 10 DR. BONITA PORTER: Yes. I think that -- 11 that the facilities that we're planning -- the catchment 12 area -- would -- would allow those autopsies to be done. 13 Unless as part of the development of the Ontario Forensic 14 Pathology Service, Dr. Pollanen is quite confident of the 15 nature of the autopsy service that could be provided 16 locally. 17 COMMISSIONER STEPHEN GOUDGE: Right. 18 Right. 19 DR. BONITA PORTER: But certainly the -- 20 the size of the building needs to be increased. 21 COMMISSIONER STEPHEN GOUDGE: Right. 22 DR. BONITA PORTER: And it would include 23 probably more routine cases, -- 24 COMMISSIONER STEPHEN GOUDGE: Right. 25 DR. BONITA PORTER: -- because of the --
531 the nature of the business. 2 COMMISSIONER STEPHEN GOUDGE: Right. I 3 take it though the objective, Dr. Pollanen, would be not 4 to remove what now is in the catchment area of the other 5 Regional Units, but to take away from what's now being 6 done in those 50 percent of the autopsies that are done 7 fee-for-service? 8 DR. MICHAEL POLLANEN: Correct. 9 COMMISSIONER STEPHEN GOUDGE: And in a 10 perfect world, how many of the thirty-five hundred 11 (3,500) autopsies would you remove from fee-for-service 12 that way? 13 DR. MICHAEL POLLANEN: Well, there are 14 geographical considerations, transport considerations -- 15 COMMISSIONER STEPHEN GOUDGE: Fair 16 enough. But do you have -- 17 DR. MICHAEL POLLANEN: All. 18 COMMISSIONER STEPHEN GOUDGE: Sorry? 19 DR. MICHAEL POLLANEN: All. All of them. 20 COMMISSIONER STEPHEN GOUDGE: That is a 21 perfect world. 22 DR. MICHAEL POLLANEN: I mean, that's a 23 perfect world. 24 DR. BONITA PORTER: And quite frankly, 25 there might be some re -- resistant to that, because
541 moving the body out of the area -- 2 COMMISSIONER STEPHEN GOUDGE: Yes, fair 3 enough. 4 DR. BONITA PORTER: -- is not fair for 5 families or police -- 6 COMMISSIONER STEPHEN GOUDGE: Yes, 7 that's -- 8 DR. BONITA PORTER: -- services. 9 COMMISSIONER STEPHEN GOUDGE: -- that's 10 absolutely right, Doctor, we talked about that yesterday, 11 and that's right. Yes. 12 DR. BONITA PORTER: Okay. 13 COMMISSIONER STEPHEN GOUDGE: Okay, 14 that's helpful, thanks. 15 16 CONTINUED TO BE QUESTIONED BY MS. LINDA ROTHSTEIN: 17 MS. LINDA ROTHSTEIN: Are you able to 18 estimate a time line for us, assuming approvals, Dr. 19 Porter? Any kind of estimate? 20 DR. BONITA PORTER: We're hoping that we 21 might be in the facility perhaps by 2012. But it's 22 certainly beyond my ability to predict exactly the -- 23 there recently was a communicae that we were able to send 24 out to staff that we're hoping the site might be 25 announced sometimes towards the end of this year.
551 And then we still have things like 2 municipal approval. So it's still some way away, but I 3 think I'm confident that we have the commitment of 4 government to move it along as quickly as possible, -- 5 COMMISSIONER STEPHEN GOUDGE: It would 6 be -- 7 DR. BONITA PORTER: -- because they 8 recognize the need. 9 COMMISSIONER STEPHEN GOUDGE: Without 10 asking you to tell us anything you can't, it would be 11 outside the core, I take it, geographically? 12 DR. BONITA PORTER: I thinks following 13 the incident, 911, where the Medical Examiner's Office 14 was essentially put out of service because of it's 15 proximity to the downtown area -- 16 COMMISSIONER STEPHEN GOUDGE: Right. 17 DR. BONITA PORTER: -- that the current 18 belief is that it's better to be outside the core of the 19 city; close to an area that's easy for transportation and 20 delivery. 21 COMMISSIONER STEPHEN GOUDGE: Right. 22 DR. BONITA PORTER: So outside the core, 23 I think is -- would be the ideal -- 24 COMMISSIONER STEPHEN GOUDGE: Right. 25 DR. BONITA PORTER: -- spot.
561 COMMISSIONER STEPHEN GOUDGE: Thank you. 2 3 CONTINUED BY MS. LINDA ROTHSTEIN: 4 MS. LINDA ROTHSTEIN: And I know, Dr. 5 Porter, even when I press to you you can't reveal 6 anything about the estimated costs, so I'm going to turn 7 the tables and look at Dr. Cordner. 8 When Dr. Ranson was here we saw a movie of 9 your facilities in Melbourne and we were all very 10 envious, but I gather from you that it's now past its 11 best before date at twenty (20) years in -- 12 DR. STEPHEN CORDNER: I don't know 13 whether it included the mortuary, what he showed you. 14 MS. LINDA ROTHSTEIN: I think it did, 15 actually. 16 DR. STEPHEN CORDNER: Okay. 17 MS. LINDA ROTHSTEIN: So tell us about 18 your building, and what your vision is, and how much you 19 estimate it would cost to build a new forensic pathology 20 institute. 21 DR. STEPHEN CORDNER: Well, I think if I 22 can just start by saying -- and the Commissioner himself 23 mentioned the cramped quarters, but I would go a little 24 bit further if, you know, was being -- not being a model 25 visitor, and -- because I don't' think it would be a
571 stretch of the imagination to think that that facility, 2 if you want to attract the brightest and best and hold 3 them, that facility will be a relative disincentive over 4 time to both those goals. 5 So I cannot actually -- you cannot 6 overestimate the importance for the quality of what you 7 want to do, of having a contemporary facility which 8 recognises the complexity of conducting a medicolegal 9 death investigation today, which is quite different to 10 twenty (20) years ago, let alone the thirty (30) or forty 11 (40) years ago when that facility was constructed it -- 12 by way of introduction. 13 Secondly, our facility is twenty (20) 14 years old. The mortuary, as is every mortuary, is under 15 water every day; that is how you keep a mortuary clean. 16 There is no building -- I mean humankind has not 17 developed engineering to the extent where things can 18 withstand being under water every day for twenty (20) 19 years, so the fabric of the mortuary is in fact 20 collapsing at our place. So we don't claim that 21 everything you saw yesterday needs replacement, but the 22 mortuary does and the laboratories don't. We need more 23 space because we've got more staff. 24 So the finance people looked at what would 25 be involved to build the new plan, which is a larger
581 facility on a grainfield site, a new site, and that was 2 over $100 million Australian, to the cost for rebuilding 3 onsite to the -- to the larger plan is reckoned to be 69 4 million. And thirty-one (31) of those millions were 5 given in the last budget, so they're 38 million short, so 6 we're trying very hard to get the -- the residue in this 7 current budget, but there's no promises, sir. 8 So, with the 31 million there will be a 9 substantial upgrade of the coroner's side of the 10 operation and very little on the -- on the institute side 11 of the operation. So there's -- we still got a job of 12 work to do to make sure that we in fact do get a 13 substantial refurbishment of a mortuary, the fabric of 14 which is deteriorating before our very eyes. 15 COMMISSIONER STEPHEN GOUDGE: How quickly 16 does technology change in the mortuary or in the labs 17 associated with it? Is it the same exponential curve 18 that I think of for technology generally? That is, is -- 19 is a twenty (20) year life span a realistic lifespan any 20 longer? 21 DR. STEPHEN CORDNER: Who are you -- 22 COMMISSIONER STEPHEN GOUDGE: I'd like 23 both -- I mean you two are both intimately familiar with 24 mortuaries. 25 DR. MICHAEL POLLANEN: Well, I'm going --
591 I'm going to let you in on a trade secret, which is the 2 autopsy hasn't changed for hundreds of years. 3 COMMISSIONER STEPHEN GOUDGE: But the 4 equipment has significantly -- 5 DR. MICHAEL POLLANEN: There's the 6 scalpel, the scissors, the forceps, the autopsy tables -- 7 COMMISSIONER STEPHEN GOUDGE: Well, I'm 8 thinking of things like MRIs and stuff like that. 9 DR. MICHAEL POLLANEN: -- are all the 10 same. It's what we do; how we augment those procedures 11 that change. 12 COMMISSIONER STEPHEN GOUDGE: Right. 13 DR. MICHAEL POLLANEN: So the -- so the 14 bottom line is medical imaging, that's a new -- a new way 15 and -- 16 COMMISSIONER STEPHEN GOUDGE: Right. 17 DR. MICHAEL POLLANEN: -- the first 18 incarnation of that is the CT scanner. 19 COMMISSIONER STEPHEN GOUDGE: Right. 20 DR. MICHAEL POLLANEN: Second is MR. 21 COMMISSIONER STEPHEN GOUDGE: Right. 22 DR. MICHAEL POLLANEN: Now, in fact, 23 there seemed to be greater advantages with CT -- 24 COMMISSIONER STEPHEN GOUDGE: Right, 25 right.
601 DR. MICHAEL POLLANEN: -- in the first 2 instance, but -- so there's medical imaging. Second, 3 forensic pathologists have been very poor so far at 4 transferring the data obtained in the autopsy into the 5 information management system. 6 I dictate, other people use pen and paper, 7 but there are -- there are things now like smart boards, 8 where you can do things with your bloody glove onto a -- 9 onto a smart -- 10 COMMISSIONER STEPHEN GOUDGE: A board. 11 DR. MICHAEL POLLANEN: -- a board and it 12 cur -- produces the report -- 13 COMMISSIONER STEPHEN GOUDGE: Right. 14 DR. MICHAEL POLLANEN: -- in real time. 15 So there are a whole bunch of information management 16 issues that can be effectively used in the mortuary. 17 The -- the third area is 18 telecommunication, telepathology; we've talked about that 19 at some length. 20 The fourth, which I think is coming but, 21 again, we've been a little bit slow off the mark, is 22 something that we should essentially learn from the 23 clinical -- our clinical colleagues, which is point of 24 care testing. 25 COMMISSIONER STEPHEN GOUDGE: Right.
611 DR. MICHAEL POLLANEN: So there will come 2 a time when, for example -- 3 COMMISSIONER STEPHEN GOUDGE: What's that 4 mean? 5 DR. MICHAEL POLLANEN: Point of care 6 testing is where you can do essentially tests in the 7 morgue without the need for a big laboratory. 8 COMMISSIONER STEPHEN GOUDGE: I see. 9 DR. MICHAEL POLLANEN: So, for example, 10 you may -- we may, through screening -- we may be able to 11 screen genes on chips and that sort of forms a -- an 12 additional part of the -- of what we call the molecular 13 autopsy. And so all of these activities sort of are 14 centred in the -- in the mortuary but -- but flow from 15 it. 16 COMMISSIONER STEPHEN GOUDGE: All right. 17 DR. MICHAEL POLLANEN: But -- but the -- 18 the actual bricks and mortar of an autopsy facility are 19 essentially -- have been the same over time. 20 COMMISSIONER STEPHEN GOUDGE: Okay. Dr. 21 Cordner...? 22 DR. STEPHEN CORDNER: Well, Commissioner, 23 the -- the way I look at it is -- is like that but the -- 24 the organizational things that need to happen while the 25 body is in the facility are really quite numerous.
621 So, for example, while I'm actually doing 2 an autopsy, a question might arise. I need to get some 3 information from -- from the medical -- from the treating 4 medical doctor. I might need some information from the 5 police who attended the scene. And I need that while I'm 6 doing the autopsy. 7 So there's a whole lot of administrative 8 things that happen. So you're actually doing this 9 technical exercise which has biohazards associated with 10 it, but you need to be talking to people and people need 11 to be feeding back to you. So it takes a quite 12 complicated dynamics of a communication kind. 13 Paper, bits of paper, coming in and out of 14 a biohazard environment; there are probably innovative 15 electronic ways of -- of -- of dealing with that. 16 Police photographers might need to be in 17 the mortuary. Forensic science people need to be in the 18 mortuary. If it's a homicide, you need the -- in our 19 case, a homicide squad person there; needed to be there 20 because they might be feeding back. 21 So there are a whole lots of agencies, 22 people, paper, information. It's quite a dynamic thing 23 that is going on around this very inanimate object of 24 everyone's attention. Teaching and training has to be 25 happening around that, so not necessarily in the mortuary
631 but the facilities in the -- in the larger facility need 2 to support the teaching and training. 3 It needs to be family friendly. Families 4 need to be able to come and view bodies without being 5 assaulted by smells, noises, seeing the staff in their 6 gear or anything like that. So that -- that's an 7 interesting little architectural challenge. 8 Massive numbers of exhibit. Clothes might 9 need to be -- the clothing might need to be not only 10 removed from the body very carefully but then dried 11 before it's put in a bag, because if it's put in a bag 12 wet that just messes up future examination. 13 Swabs, you know, vegetation, little bits 14 of paint or -- so there's, you know, there's -- if you 15 draw a diagram of the autopsy in the middle and all the 16 lines going out, it really is a very prickly, a very 17 prickly appearance. So the design of the mortuary needs 18 to facilitate all of that, not get in the way of it, make 19 sure it works, so that you produce the result the 20 community expects. 21 COMMISSIONER STEPHEN GOUDGE: Thanks. 22 Sorry, Ms. Rothstein. 23 24 CONTINUED BY MS. LINDA ROTHSTEIN: 25 MS. LINDA ROTHSTEIN: No, that's great.
641 I want to turn now, if I can, panellists, to the -- the 2 issue that Dr. Cordner foreshadowed at the beginning, 3 which is how one enhances the relationship between the 4 coronial service and the pathology service at the 5 organizational level. 6 And, Commissioner, Dr. Porter, Dr. Lauwers 7 and Dr. Pollanen have all, as you heard a little bit 8 about yesterday, been involved in a steering committee, a 9 joint coroner and pathologist working group that has 10 developed a -- a proposal which is set out at Tab 5. 11 And it actually comes accompanied by an 12 org chart which was part of tomorrow's binders and so 13 some of my colleagues may not have brought it with them, 14 but is important in understanding the concepts that will 15 be put forward. 16 So I'm going to ask Mr. Centa or Ms. 17 Arbuck to pass those around in case people don't have 18 them. 19 And I'm -- I'm really going to turn it 20 over, I think, either to you Dr. Porter or to you, Dr. 21 Lauwers, or together, to walk the Commissioner through 22 this proposal; always addressing why, obviously, you 23 think this will enhance the relationship between Forensic 24 Pathology Services and the Coronial System. 25 DR. ALBERT LAUWERS: Thank you, Ms.
651 Rothstein. I'm, firstly, very excited about this 2 proposal. I think the process was very good and there 3 was excellent buy-in by all the various players. 4 I think the appropriate place to really 5 start in the diagram, Mr. Commissioner, is under the 6 title of "Forensic Pathology." 7 We view the forensic pathology piece as 8 something new in terms of the recognition that forensic 9 pathology will be defined by an Ontario Forensic 10 Pathology Service with a Chief Forensic Pathologist. And 11 that this Chief Forensic Pathologist will have 12 professional autonomy and independence and will be 13 leading the Forensic Pathology Service for Ontario. 14 You'll note that on either side of the 15 Chief Forensic Pathologist, there's a Forensic Pathology 16 Advisory Committee and that committee will give direction 17 and acc -- and the Chief Forensic Pathology (sic) with 18 that committee will have accountability and some degree 19 of oversight. 20 And in addition to that, which we find 21 very exciting, the notion of the Registry which we think 22 is an integral part to improve quality and will, in fact, 23 in our view, enhance the relationships between coroners 24 and pathologists. 25 MS. LINDA ROTHSTEIN: Just stopping
661 there, Dr. Lauwers. 2 Help us understand who you foresee -- 3 envisage -- populating the Forensic Pathology Advisory 4 Committee, if you will. 5 DR. ALBERT LAUWERS: The Forensic 6 Pathology Advisory Committee would be populated by the 7 Chief Forensic Pathologist, the Regional Directors of 8 each of the Units, and certainly any other stakeholders, 9 including people such as coroners. 10 MS. LINDA ROTHSTEIN: What others, 11 besides coroners, would -- 12 DR. ALBERT LAUWERS: Well -- 13 MS. LINDA ROTHSTEIN: Does "stakeholders" 14 include the Crown in some capacity; a representative of 15 the Ministry? Does it include a representative of the 16 defence? Does it look like the Forensic Services 17 Advisory Committee? Help us with that if you can. 18 DR. ALBERT LAUWERS: Perhaps I'll ask Dr. 19 Pollanen if he'd comment on that. 20 MS. LINDA ROTHSTEIN: Okay. Dr 21 Pollanen...? 22 DR. MICHAEL POLLANEN: So the -- well, 23 this is sort of complex and feeds into another part of 24 the diagram. But -- but essentially, the -- what -- what 25 we thought of in the Forensic Pathology Advisory
671 Committee was more at an operational level as opposed to 2 an accountability level. 3 MS. LINDA ROTHSTEIN: Okay. 4 DR. MICHAEL POLLANEN: So we thought that 5 that was going to be the Regional Directors meeting on a 6 regular basis, perhap -- including the coroners; perhaps 7 including a police representative; Centre of Forensic 8 Science representative, particularly in the toxicology 9 section, where we could essentially iron-out operational 10 issues related to the provision of service. 11 MS. LINDA ROTHSTEIN: But help me then 12 understand, Dr. Pollanen, why on page 3 of 4, when I see 13 the Chief Forensic Pathologist position, the Duties and 14 Responsibilities column, the Authority column, the 15 accountability I know is to the Chief Coroner, but the 16 oversight is defined there as "Forensic Pathology 17 Advisory Committee." 18 If it's an operational committee in its 19 mandate, help us understand how that would work. 20 DR. MICHAEL POLLANEN: This is a work-in- 21 progress. 22 MS. LINDA ROTHSTEIN: Okay. I promised 23 you I wouldn't cross-examine you, but I wanted to know 24 the answer -- 25 DR. MICHAEL POLLANEN: But --
681 MS. LINDA ROTHSTEIN: -- to that 2 question. 3 DR. MICHAEL POLLANEN: -- but you're 4 correct. I mean, essentially, if that were an advisory 5 body, it -- it's not a lateral box. 6 MS. LINDA ROTHSTEIN: Okay. 7 DR. MICHAEL POLLANEN: If it were more 8 than an advisory body, it would not be a lateral box. 9 MS. LINDA ROTHSTEIN: Okay. Okay. 10 Sorry, to continue then. 11 You were talking about how -- so it would 12 really just be populated with the operations, which would 13 be the Regional Directors, hopefully a Deputy Chief 14 Forensic Pathologist; and coroners, to what extent? Why 15 would they be needed? 16 DR. MICHAEL POLLANEN: Well, for example, 17 one (1) of the legitimate interests that the coroners 18 have is timeliness of reports. 19 And I sort of see one (1) of the roles of 20 this committee, providing benchmarking and a way of 21 tracking whether or not the Regional Forensic Pathology 22 Units are obtaining -- or attaining their benchmarks. 23 COMMISSIONER STEPHEN GOUDGE: Don't other 24 consumers have the same interest? 25 DR. MICHAEL POLLANEN: They do.
691 COMMISSIONER STEPHEN GOUDGE: We have 2 heard a lot about police and Crowns having exactly the 3 same problem. 4 DR. MICHAEL POLLANEN: And, you know, 5 that type of membership may also be highly relevant on 6 this committee. 7 COMMISSIONER STEPHEN GOUDGE: Right. 8 DR. MICHAEL POLLANEN: I think that the - 9 - the reason we thought that the coroner would be at the 10 committee at that level is that through the Act, the 11 reports flow from the coroner to the Crown, for example. 12 So in this circumstance, in terms of 13 providing benchmarking data, the coroner would be a proxy 14 for -- for some of those other groups, you know, at the 15 operational level. 16 That clearly doesn't work at the 17 accountability level, but it does work at the sort of 18 operational level. 19 DR. ALBERT LAUWERS: Just one (1) 20 comment; and also to improve cross-functional 21 integration. I mean, it is a death investigation system, 22 so the input of a coroner may be of some value -- 23 MS. LINDA ROTHSTEIN: Okay. 24 DR. ALBERT LAUWERS: -- at that level. 25 MS. LINDA ROTHSTEIN: Okay. So back to
701 you, Dr. Lauwers. Continue to take us through the -- the 2 proposal. We stopped at the Forensic Pathology Advisory 3 Committee, but I think you were still in the process of 4 developing that for us. 5 DR. ALBERT LAUWERS: I -- with reference 6 to the pathology, I -- I'm going to leave that and move 7 onto the other section of the diagram. 8 MS. LINDA ROTHSTEIN: Okay. 9 DR. ALBERT LAUWERS: All right, so 10 currently, division is that there are three (3) branches, 11 if you will. The one (1) branches will be -- or the 12 branch that previously didn't exist, but will currently 13 exist under the new practice, will be the forensic 14 pathology branch. 15 There will be investigations which will be 16 led by a Deputy Chief Coroner and there will be, of 17 course, inquests which will be led at -- by a Deputy 18 Chief Coroner. All of these will have accountability, 19 and particularly, the investigations and inquest part 20 will have oversight by the Chief Coroner. 21 And the part that is new for us and some - 22 - and some -- to some degree an issue that we've 23 developed in considering what existed in -- at the 24 Victoria Institute of Forensic Medicine is this notion of 25 having a Death Investigation Advisory Commission.
711 Principally, in our view there -- there is 2 opportunities for enhanced accountability for the Chief 3 Coroner, and our view is that the Chief Coroner 4 shouldn't, in the future, be an on -- omnipotent 5 individual, but actually should have some enhanced 6 degrees of oversight, and in particular, this Committee - 7 - well, let me start with the government box and the 8 Death Investigation Advisory box. 9 For the government box currently, we have 10 oversight in accountability with regard to such issues as 11 finances and resources. In addition to that, the -- the 12 current Act allows when an inquest is being -- an inquest 13 rejection has -- there's an opportunity for appeal to 14 government; that being the Minister under section 22. 15 We do receive direction from the 16 government with regard to governmental policy, and in 17 addition to that, we report to them about such items as 18 politically sensitive deaths which they may need to know 19 of. 20 We think, though, that, in our view, there 21 should be some form of an oversight Commission, or if you 22 will, a body or a council, I guess, as it's called in 23 Australia. 24 And really what we're looking for is an 25 organization to assist the Chief Coroner with regard to
721 issues such as governments and stewardship to provide 2 input into such issues as strategic planning, strategic 3 direction, the operational or to be able to review 4 operational plans for a current fiscal year. Quality 5 would be a significant issue. 6 The -- with respect to the whole issue of 7 strategic planning, a properly executed strategic plan -- 8 plan should have strategic directions within the year 9 with goals, objectives, and time lines to meet those. 10 And it's our hope or vision that on a 11 quarterly basis, ra -- performance expectations and 12 reviews would be performed by this Committee, as well. 13 And in addition, we would seek some guidance from the 14 Committee or the Chief Coroner would -- with regard to 15 ethical issues that could arise and be problematic for 16 our organization. 17 Having said that, we don't envision the 18 Committee as being a complaints commiss -- committee and 19 the reason for that is we see that in the Act, there's 20 the ability to make appeals to -- to government with 21 regard to disposition of inquests where we've turned 22 individuals down, and we would be concerned that the 23 activities of the Commission or Committee would be -- 24 would become overrun by requests of -- of those nature. 25 MS. LINDA ROTHSTEIN: To hear appeals.
731 DR. ALBERT LAUWERS: To hear appeals, 2 exactly. 3 MS. LINDA ROTHSTEIN: Okay. We're going 4 to break very shortly, but to what extent have you landed 5 on what the composition of the Death Investigation 6 Advisory Commission would be, Dr. Lauwers? 7 DR. ALBERT LAUWERS: You've asked a good 8 question. It -- it too is under consideration at the 9 present time, and we've lots of lively discussion about 10 it, but we haven't got a firm model. 11 But it's our hope, Mr. Commissioner, that 12 by the time our counsel will be making submission to you, 13 we'll have a very clear idea of exactly what we wished -- 14 or we might anticipate the -- the Committee to look like. 15 COMMISSIONER STEPHEN GOUDGE: All right, 16 I'd look forward to that. I take it these are 17 discussions that have gone on within the OCCO, is that 18 right, and I suspect -- 19 DR. ALBERT LAUWERS: That's correct. 20 COMMISSIONER STEPHEN GOUDGE: -- with 21 some consultation of the stakeholders. Well, that's 22 interesting. 23 24 CONTINUED BY MS. LINDA ROTHSTEIN: 25 MS. LINDA ROTHSTEIN: Should the --
741 should there -- 2 COMMISSIONER STEPHEN GOUDGE: Yes, why 3 don't we break now. So lets adjourn for fifteen (15) 4 minutes, and take a break, and we'll be back. 5 6 --- Upon adjourning at 10:42 a.m. 7 --- Upon resuming at 11:01 a.m. 8 9 THE REGISTRAR: All Rise. Please be 10 seated. 11 COMMISSIONER STEPHEN GOUDGE: Please sit 12 down. 13 Ms. Rothstein...? 14 15 CONTINUED BY MS. LINDA ROTHSTEIN: 16 MS. LINDA ROTHSTEIN: I just want to 17 assure all of you that the Commissioner very much 18 understands that this is a work in process and is very 19 grateful for the effort that you've spent so far. And so 20 if some of my questions push too hard for detail that you 21 haven't yet been able to formulate, we understand. 22 But I'd like to come back if I can, Dr. 23 Lauwers, to the Death Investigation Advisory Committee, 24 and see if we can -- can at least extract what the basic 25 principles are that you've developed in formulating this
751 concept, starting with this: I -- I believe you told me 2 that you see the roles as comprising governance, 3 stewardship, strategic planning, quality. 4 Is that quality assurance, or...? 5 DR. ALBERT LAUWERS: Well, quality and 6 quality assurance are -- are interchangeable notions. 7 MS. LINDA ROTHSTEIN: Okay. Performance 8 reviews of the individuals? 9 DR. ALBERT LAUWERS: Performance -- no 10 performance review of the -- of the meeting of the goals 11 and objectives of the Office of the Chief Coroner -- 12 MS. LINDA ROTHSTEIN: Okay. 13 DR. ALBERT LAUWERS: -- reported on a 14 quarterly basis. 15 MS. LINDA ROTHSTEIN: Okay. So would you 16 analogize this to a board of director's function? 17 DR. ALBERT LAUWERS: It could be 18 analogized to that. 19 MS. LINDA ROTHSTEIN: All right. 20 DR. ALBERT LAUWERS: I -- I think the 21 principle or the basic underlying notion is that there's 22 a need in our organization, flowing from this Inquiry, to 23 restore public confidence in our organization and to 24 establish independence and we think this is a way of 25 achieving it.
761 MS. LINDA ROTHSTEIN: Okay. And the 2 composition of the Commission with that -- those 3 functions in mind, what sorts of individuals would you 4 see as populating the Commission? 5 DR. ALBERT LAUWERS: I think it'd be safe 6 to call it a work in progress at this point. We've vary 7 -- varied between people entirely independent from death 8 investigation or having any knowledge into it to high 9 level appointees who would have great knowledge in 10 various aspects of -- of administration. 11 But at this point I think we would like 12 the opportunity to reflect on it and -- and firm up our 13 thinking. 14 MS. LINDA ROTHSTEIN: So -- 15 COMMISSIONER STEPHEN GOUDGE: One (1) of 16 the questions I have in my head, and it's a question I 17 suspect all of you have in your heads, Dr. Lauwer, is the 18 involvement of, to use a hackneyed word, stakeholders; 19 that is, is there a role for stakeholders in the output 20 of the Coroner's Office in this kind of function? 21 And if so, is this the appropriate window 22 in which that role can be inserted? 23 And obviously if this is still under 24 discussion, by all means tell me that, and I'll look 25 forward to Mr. Gover's submissions. But it is an issue,
771 it's certainly an issue in my mind. 2 DR. BONITA PORTER: I think there's a 3 positive and a negative side of having stakeholders in 4 this kind of body as we envision it. It could be 5 perceived -- and I think the ultimate purpose that we 6 think it's important is to restore public confidence 7 where -- where it may be damaged -- is that -- that this 8 organ -- this body should ensure the independence and the 9 operation at arms length of government, and if you have 10 too many of the stakeholders that are participant in the 11 investigation team, I'm not sure the public would 12 perceive that as being independence and -- and at arm's 13 length. 14 So if it were populated with lawyers or 15 def -- or police or -- or -- 16 COMMISSIONER STEPHEN GOUDGE: Or Crown 17 attorney's or -- 18 DR. BONITA PORTER: -- Crowns or Defence 19 Bar, then -- then I'm not sure that that's -- would 20 accomplish the goal of what we're looking for. 21 COMMISSIONER STEPHEN GOUDGE: Right. 22 DR. BONITA PORTER: And that it might be 23 more appropriate -- 24 COMMISSIONER STEPHEN GOUDGE: Right. 25 DR. BONITA PORTER: -- to have people
781 totally divorced from the death investigation initiative, 2 and people who, I think as Dr. Lauwers explained, are 3 experts in administration, in organizational structure, 4 and how you ensure that the -- that the purpose of what 5 you're doing is adequately being met. 6 COMMISSIONER STEPHEN GOUDGE: What you 7 would call in the corporate analogy, independent outside 8 directors. 9 DR. BONITA PORTER: That's right. To 10 ensure that the true purpose, which is improve public 11 safety, are being met. And you know, it is a work in 12 progress, and we appreciate -- 13 COMMISSIONER STEPHEN GOUDGE: Right. 14 DR. BONITA PORTER: -- your understanding 15 in that regard -- 16 COMMISSIONER STEPHEN GOUDGE: Right. 17 DR. BONITA PORTER: -- but I think that 18 we need to be clear in our own minds what the terms of 19 reference of this -- this body would be -- 20 COMMISSIONER STEPHEN GOUDGE: Right. 21 DR. BONITA PORTER: -- with the 22 underlying principle that I think it really is to ensure 23 the public that -- that we are independent of government, 24 because quite frankly we are often very critical of 25 government through our processes, through our inquests,
791 through our investigations. 2 And yet we are also accountable, because 3 we are funded by the public purse, and the Minister has a 4 responsibility to ensure that we are spending those 5 dollars appropriately. 6 But by the same token, it's -- it's -- we 7 want to make sure that government understands that on an 8 individual decision-making basis, whether it be 9 investigation or inquest, that we are making those 10 decisions with what we believe the purpose of the 11 Coroners Act is, and that is to improve public safety. 12 And I'm not sure that having people who are -- are very 13 involved with the team concept of our death investigation 14 are the best people to be on this commission. 15 COMMISSIONER STEPHEN GOUDGE: Not 16 independent enough or not perceived to be independent? 17 DR. BONITA PORTER: That would be my 18 concern; is the perception is that it's not independent 19 enough. 20 COMMISSIONER STEPHEN GOUDGE: That's 21 interesting. Well, as Ms. Rothstein says, it's a very 22 commendable exercise; same objective as I have been 23 tasked with and that's the restoration of public 24 confidence. 25 DR. BONITA PORTER: Yes, sir.
801 2 CONTINUED BY MS. LINDA ROTHSTEIN: 3 MS. LINDA ROTHSTEIN: So I'm going to 4 turn to you, Dr. Pollanen, for a moment and get you to 5 sketch out the extent to which this proposal explains how 6 the Chief Forensic Pathology would -- Pathologist would 7 be in a position to exercise what Dr. Lauwers described 8 as professional autonomy and independence; the extent to 9 which this proposal speaks to that. 10 DR. MICHAEL POLLANEN: I think the 11 creation of the Ontario Forensic Pathology Service and a 12 hierarchical structure within it for a service provision 13 is an important first step. And then having a Chief 14 Forensic Pathologist or a Director of that service, 15 whatever language you want to use, then feeds into this 16 greater structure, this greater organizational structure 17 that we have indicated here. 18 And the -- the challenge that I see with 19 it -- well, first of all I think what it does do is it 20 does solidify this team approach to death investigation. 21 It does provide an organizational framework for that. 22 There are, however, two (2) additional 23 linked issues that we need to consider when we think 24 about how forensic pathology fits into this structure. 25 The first is what I'm acutely aware of
811 right now in my position, is the fact that we need -- and 2 when I say "we" in this circumstance I'm talking about 3 forensic pathology services -- need to regain some lost 4 ground. 5 In other words, we really do need to 6 provide some very effective, reliable, transparent 7 mechanisms of accountability. And I believe one (1) of 8 those is the Registry where, you know, we can say these 9 are the pathologists doing post-mortems; this is how 10 they've been accredited. And that's a very transparent 11 way of recognizing that the public and other stakeholders 12 have a direct interest in -- in us doing something at a 13 high level of quality and reliability. 14 So the -- if you follow along that line, 15 what you find is that the credibility of the forensic 16 pathology service, relative to some greater type of 17 oversight, is being necessarily linked with the 18 reliability of the greater coronial system. And -- and 19 what we've seen in the past, is that that has been not a 20 very accountable mechanism. In other words, that there's 21 been -- linking the two (2) has not worked very well. 22 So from the -- from my point of view as a 23 chief forensic pathologist who is responsible for making 24 sure that, you know, we have a perception of reliability 25 out there in public for autopsy services, what we have to
821 make sure is that if we are going to derive our 2 credibility from the coronial oversight structure, we 3 must have a layer between the Chief Coroner and the 4 Government which essentially is providing that reli -- 5 that credibility to the -- to the forensic pathology 6 service. 7 Now, the -- and that essentially transits 8 through the Chief Coroner. But I'm not entirely sure, 9 for example, that the Chief Forensic Pathologist might 10 not be on the -- on the Commission; on the oversight 11 body, in general. I mean, I'm not sure how that -- how 12 that's actually going to work yet and I don't think we 13 have a clear view on what specific membership would be on 14 there. 15 But -- but I can tell you -- and I feel 16 very strongly about that -- the credibility of the 17 forensic pathology service, if it's going to be linked in 18 this way, the -- the way accountability flows must be 19 satisfactory. 20 MS. LINDA ROTHSTEIN: So that leads me to 21 you, Dr. Porter. Under this proposal, I see that the 22 chief coroner is responsible for both the accountability 23 and oversight of the deputy chief coroners. But with 24 respect to the chief forensic pathologist, as I read the 25 -- the diagrams that accompany this chart, it is an -- it
831 is -- the chief coroner is responsible -- is accountable 2 for the work of the chief forensic pathologist but is not 3 responsible for the oversight of that work. 4 Help us understand what that means and how 5 that would work. 6 DR. BONITA PORTER: Well, I -- I think as 7 -- as I see this, given that it's still a work in 8 progress, is that it -- it would be the responsibility of 9 the chief coroner to ensure that the death investigation 10 system is accountable and that the oversight mechanisms 11 that are in place are ensuring quality for all aspects of 12 the system -- forensic pathology, investigations and 13 inquests -- and that the chief coroner, I think, would 14 look to the chief forensic pathologist to ensure that 15 that quality mechanism is flowing throughout the 16 provision of pathology services. 17 But, certainly, the forensic pathologist 18 is the best individual to ensure that the mechanisms of 19 how that's done and what he or she needs to make sure 20 that that's -- that's realized. 21 But I think that the chief coroner, in 22 terms of being the individual responsible for the quality 23 and the fulfilment of the purposes of the Coroners Act, 24 is -- is the -- must have accountability for all aspects 25 of the death investigation system.
841 MS. LINDA ROTHSTEIN: What, if any, 2 concerns do you have, Dr. Porter, that the chief coroner, 3 assuming the chief coroner is not a forensic pathologist, 4 doesn't have the expertise to perform a -- a real 5 oversight role of the work of the chief forensic 6 pathologist and the Ontario Forensic Pathology Service? 7 DR. BONITA PORTER: Well, I think that 8 would be one of the functions of the Forensic Pathology 9 Advisory committee; is that, that that would be the 10 mechanism to ensure that the decisions of the chief 11 forensic pathologist can be -- are transparent and have 12 credibility. 13 I don't know, Michael, if you have any 14 other -- other views on that, but I think that's -- 15 that's the way that that reliability can be achieved. 16 MS. LINDA ROTHSTEIN: I guess my -- my 17 question would be, and it's just a question, is whether 18 you think it's viable to separate out oversight and 19 accountability, and why you do, if you do? 20 DR. BONITA PORTER: Well, I think the 21 oversight probably, in my view, is more of a day-to-day 22 operational assurance, and accountability is for the -- 23 the ultimate product, which is the confidence in the 24 system. So I think it is possible to separate it. 25 MS. LINDA ROTHSTEIN: Hypothetical case;
851 let's hope it never happens. In five (5) years a 2 forensic pathologist, properly trained, makes some 3 significant errors in one (1) or more cases that lead, 4 according to our justice system, to miscarriages of 5 justice. 6 Who is accountable for those mistakes, 7 under this model? 8 DR. BONITA PORTER: Well, I guess if it's 9 an individual opinion of the pathologist, I can't 10 separate that individual's accountability for it. 11 But I think that if -- if I were in that 12 position five (5) years from now, that I certainly would 13 be asked to account for what -- what oversight mechanisms 14 were in place on any individual case; on the training of 15 that individual; on the performance reviews of that 16 individual, whether they were meeting the benchmarks that 17 we have set up, which, you know, I'm -- certainly I can 18 rely on Dr. Pollanen to -- to establish and to -- he'll 19 be looked at to enforce them, as well. 20 So I think it's -- there's a multifaceted 21 answer to that and I -- I hope we're not in that position 22 in five (5) years time. But I think that all of the 23 efforts that we have undertaken to learn from the past 24 and to ensure that there is good communication, that 25 there is teamwork, that I'm hoping that that -- that
861 would not be a position we'd find ourselves. 2 COMMISSIONER STEPHEN GOUDGE: Can I ask 3 this, Dr. Porter: I gather from what I've read here that 4 you see the oversight role of the Chief Coroners Office 5 for investigations and inquests being rather different 6 than the oversight role for the forensic pathology 7 service. 8 Maybe I can get at it in terms of getting 9 you to describe a little bit how you see the oversight 10 role for inquests and investigations. 11 DR. BONITA PORTER: And investigations. 12 Well, I think it is somewhat different, because with the 13 current legislation it's very clear what the relationship 14 between the chief coroner and the other members of the 15 team are. What's missing, and I think what we've 16 identified needs to be addressed, is the -- the -- the 17 absence of the number -- even the word "pathologist" in 18 the legislation. 19 So that, clearly, we need to fix that 20 problem and that the chief forensic pathologist needs to 21 have -- have authority over the -- the delivery of 22 forensic pathology in the -- in the Province and that 23 probably requires legislative change. 24 Currently, I can answer that question very 25 easily with respect to what we -- we currently have with
871 respect to -- 2 COMMISSIONER STEPHEN GOUDGE: Right. 3 DR. BONITA PORTER: -- investigations and 4 inquests. 5 Somebody has to be able to make a final 6 decision based on everything that's done in an 7 investigation. If there is an appeal with respect to the 8 findings of a coroner, for example, in a -- a local 9 investigation, the family can appeal to the Regional 10 Supervising Coroner. 11 If they're not content with that decision, 12 they can appeal to one (1) of the Deputies. 13 If they're not content with that, there is 14 an appeal to the Chief Coroner. And the Chief Coroner, 15 by nature of how the system is currently functioned, has 16 the knowledge and certainly would have to have the 17 administrative and professional understanding and 18 expertise to be able to review that and make a final 19 decision. 20 COMMISSIONER STEPHEN GOUDGE: On manner 21 of death? 22 DR. BONITA PORTER: On a manner of death. 23 And with respect to inquests, once a -- we have developed 24 a system of specialists to do inquests because the nature 25 of inquests has changed significantly.
881 COMMISSIONER STEPHEN GOUDGE: Right. 2 DR. BONITA PORTER: And I could speak for 3 hours on this because this is a -- 4 COMMISSIONER STEPHEN GOUDGE: You know a 5 lot about it? 6 DR. BONITA PORTER: I know a lot about 7 that and -- 8 COMMISSIONER STEPHEN GOUDGE: Yes. 9 DR. BONITA PORTER: -- I'll try to be 10 very brief. 11 But I'm very proud of the processes that 12 we've gone through to try to ensure that no matter where 13 an inquest is held in Ontario, that the public can be 14 assured of a -- a high quality. 15 And that's because we've taken a group of 16 coroners that are considered to be senior in terms of 17 their experience. We've trained them, and as a matter of 18 fact, they've actually undertaken some rather unique 19 criteria to be allowed to continue. They must agree to a 20 mandatory evaluation and mandatory education. 21 So in terms of any decision that they make 22 in a -- in their inquest, we consider them as quasi- 23 judicial officers and the Chief Coroner would not 24 interfere. 25 The mechanism for dealing with concerns
891 about inquests is through the courts because there's a 2 Statute; we have the court oversight. 3 So in those two (2) areas, it's very clear 4 what the role of the Chief Coroner is. 5 The decision-making of forensic pathology 6 and the delivery of the service, that very clearly is 7 within the expertise of the Chief Forensic Pathologist. 8 COMMISSIONER STEPHEN GOUDGE: So the 9 Chief Coroner would not be one to, in effect, have the 10 same oversight role of cause of death coming out of the 11 Pathology Service, as you would about manner of death 12 coming out of a coronial inquest -- 13 DR. BONITA PORTER: Well -- 14 COMMISSIONER STEPHEN GOUDGE: -- 15 investigation? 16 DR. BONITA PORTER: Well, I think in any 17 individual case, I think, that the coroner would still 18 have the -- the ultimate decision on cause and manner of 19 death because that's the way it is in Legislation. 20 COMMISSIONER STEPHEN GOUDGE: Right. 21 DR. BONITA PORTER: And I think that -- 22 that the Coroners Act is based on public safety issues. 23 And we've defined our -- our manners of death -- 24 COMMISSIONER STEPHEN GOUDGE: Fair 25 enough.
901 DR. BONITA PORTER: -- and how we 2 determine cause of death. 3 In the totality of the whole thing, the 4 autopsy piece and the expertise of the forensic 5 pathologist is a very important part. But it -- I'm not 6 sure that -- that I can envision a circumstances that 7 would -- it could be the ultimate part because there are 8 other considerations. 9 COMMISSIONER STEPHEN GOUDGE: Right. 10 DR. BONITA PORTER: I'm not saying that 11 that's -- that's the same in the Criminal Justice System. 12 And I think there's a very significant difference of the 13 role of the forensic pathologist and the Criminal Justice 14 System and the role of the forensic pathologist in the 15 Coroner System; recognizing the expertise. But it is one 16 (1) area of expertise that the coroner may use in 17 determining the cause and manner of death. 18 The new Legislation and how that -- that 19 might work; the establishing of the role of the forensic 20 pathologist; the need to have that oversight authority 21 and accountability clearly defined, I think is a very 22 important piece of where the future needs to go. And 23 it's entirely possible that a future Chief Coroner could 24 be a forensic pathologist and -- 25 COMMISSIONER STEPHEN GOUDGE: Right.
911 DR. BONITA PORTER: -- it would be rather 2 artificial in my view to say that the Chief Coroner, who 3 may have just as much expertise as the current Chief 4 Forensic Pathologist, could not have any oversight 5 responsibility. 6 So I think it's the position. And the 7 position is administrative. It's one (1) of ensuring 8 accountability, responsibility, ensuring public 9 confidence. But the -- the quality of the individual or 10 the training of the individual who occupies that position 11 may change. 12 And I think it would be artificial to -- 13 to create barriers to that position being occupied by 14 someone who may have all of the three areas of expertise. 15 To define that because the Legislation says, you know, 16 one (1) individual area could not be over -- the Chief 17 Coroner could not change the decision of any one (1) 18 particular area, would be very artificial and could be 19 problematic. 20 COMMISSIONER STEPHEN GOUDGE: Right. 21 DR. BONITA PORTER: I think -- 22 COMMISSIONER STEPHEN GOUDGE: And if one 23 views -- we have heard, obviously, a great deal of 24 evidence about the oversight deficits that occurred over 25 the period of time we were looking at; part of which, I
921 suspect, I will be invited to find were inattention, but 2 part of which, I suspect, I will be invited to find were 3 want of skill set on the part of the overseers. 4 And it is the second that I really am 5 interested in getting your thoughts on -- 6 DR. BONITA PORTER: I -- I -- 7 COMMISSIONER STEPHEN GOUDGE: -- okay, 8 because that is something that, as we have learned and 9 hopefully into the future, it's going to be an oversight 10 requirement of an increasingly highly skilled forensic 11 service. 12 MS. BONITA PORTER: I think that -- 13 COMMISSIONER STEPHEN GOUDGE: What's the 14 answer to that conundrum? 15 MS. BONITA PORTER: I think the answer is 16 building an organizational structure that is not 17 dependent on personalities, and I think that's what we're 18 trying to accomplish; is that it's not dependent on a 19 particular skill set, it's structured so in such a way 20 that that is built in -- 21 COMMISSIONER STEPHEN GOUDGE: Right. 22 MS. BONITA PORTER: -- and that you're 23 not relying on people getting along, because I know in 24 the past, that's were the failures have been; when there 25 wasn't an organizational structure that would
931 accommodate, you know, the inability of people to get 2 along, and that's what we're working very had to ensure 3 doesn't happen again. 4 COMMISSIONER STEPHEN GOUDGE: All right. 5 6 CONTINUED BY MS. LINDA ROTHSTEIN: 7 MS. LINDA ROTHSTEIN: But just on that 8 point, and -- and you may well have answered it, I accept 9 that, but what would be the disadvantage in your view, 10 Dr. Porter, of having the Chief Forensic Pathologist 11 partner with the Chief Coroner, but report through, in 12 some fashion, to be determined both the Death 13 Investigation Advisory Commissioner? What would be the 14 disadvantage of that model? 15 MS. BONITA PORTER: I -- I don't think 16 that there is a disadvantage, but I think at some point, 17 one (1) person has to be held accountable for the whole 18 system. 19 And I think that that is a reasonable 20 expectation of the Chief Coroner, with an understanding 21 of the significant roles of -- and the expertise of -- of 22 the Forensic Pathology Service. 23 But it also has -- that person also has to 24 be accountable for the death investigation system in 25 totality, and I'm not sure that -- that from an
941 organizational point of view, it's a good idea to 2 separate that accountability. 3 MS. LINDA ROTHSTEIN: What are your 4 comments, Dr. Cordner? 5 DR. STEPHEN CORDNER: Could I just say 6 how wonderful of he -- to hear Dr. Porter emphasizing the 7 importance of the independence of the Office of the Chief 8 Coroner to be able to criticize government, deaths in 9 custody; to be able to make as powerful as possible 10 contributions to public health and safety. 11 You could say that if those elements were 12 not there, why have you bother having -- why would you 13 bother having a death investigation system if it didn't 14 have those elements? It seems to me they are the key 15 element of a death investigation system to be able to 16 independently conclude things that are unpalatable to the 17 government and perhaps, the community. 18 So, you would, I think, structure your -- 19 structure your system to make those conclusions as strong 20 and as credible as they possibly could be. And so with 21 that in mind, I would then ask, Is it fair to weigh down 22 the Chief Coroner? Is it right to make an individual, 23 who is not a forensic pathologist, accountable for a 24 forensic pathology service which has within it numbers of 25 very highly specialized medical practitioners and
951 scientists? 2 It is clearly a difficult area of -- of 3 expertise. The Chief Coroner's got plenty of other 4 things to do in terms of running investigations and -- 5 and inquests and to -- so I would just wonder that 6 dilutes and -- and compromises. 7 And I believe it would compromise a Chief 8 Coroner's ability to concentrate on what, I think -- this 9 is just me -- is the core reason for having a Coroner's 10 System in the first place, which is to make strong, 11 powerful conclusions that are listened to and believed 12 and acted on. 13 COMMISSIONER STEPHEN GOUDGE: What's the 14 answer, Dr. Cordner, to the proposition that Dr. Porter 15 clearly and forcefully enunciated, that there is one (1) 16 death investigation process and ultimately, somebody has 17 to be responsible for it? 18 DR. STEPHEN CORDNER: Well, I think and 19 what I would like to see -- I -- I think there's a little 20 bit of a confusion between a death investigation and an 21 accountability and oversight of a death investigation. 22 And then you need a chart, which the organizational 23 structure of all of the different organizations and 24 agencies that are involved in -- the coroner doesn't run 25 the police force; the coroner doesn't run the forensic
961 science service. The coroner runs a forensic pathology 2 service, so -- and that seems to be an ad hoc to me, sort 3 of historical accident. 4 And so I don't have any difficulty -- we 5 work within a system where the coroner runs an 6 investigation, but I think if you ask our coroner, they'd 7 say, I don't want to bow of any running of the forensic 8 pathology service because 9 A) In our system, that gets in the way of 10 my judicial independence because I'm then engaged in 11 things I'm supposed to be commenting on, but 12 B) You know I'm not a forensic 13 pathologist, I don't want to be -- you know I want to be 14 able to criticize you when you get it wrong. And when 15 you make a mistake, that's your problem, not mine, 16 because your organization has failed. 17 MS. LINDA ROTHSTEIN: And how does that 18 work in practice in -- in Victoria? What is the 19 relationship that you have with the state coroner? How 20 do you sort out problems? To what extent are you 21 partners, and to what extent are you at odds? 22 DR. STEPHEN CORDNER: Well, can -- can I 23 also say that I -- it resonated very strongly with me 24 when Dr. Porter says, We've got to get away from things 25 that are dependent upon personalities. And I couldn't
971 endorse that more strongly. 2 And -- but that does mean legislative work 3 to -- to clarify boundaries and roles and 4 responsibilities; to minimize the creation of roles and 5 responsibilities and -- and conflicts where they 6 shouldn't exist because the legislation hasn't dealt with 7 it. 8 So -- and that's personality dependent. 9 And I think that is -- that is really important. But 10 partnerships in terms rely on all of those clarity of 11 roles and -- and responsibility. 12 How did it work in -- in Victoria? Well, 13 there -- there have been times when the coroner and the - 14 - the State Coroner and the head of the Victorian 15 Institute of Forensic Medicine haven't seen eye-to-eye. 16 But we've managed to -- managed to work it 17 out, ultimately. 18 COMMISSIONER STEPHEN GOUDGE: Who 19 referees that? 20 DR. STEPHEN CORDNER: Yeah, if it's a 21 case then it's a -- if it's a matter of an investigation 22 in a particular case, I'm a nong. I don't know -- I 23 think you know that word. I'm -- I'm -- 24 COMMISSIONER STEPHEN GOUDGE: I don't. 25 Let me confess, I don't know what you're talking about.
981 DR. STEPHEN CORDNER: I'm a dill if I 2 don't accept the coroner's ultimate authority to 3 determine how a particular investigation will go. In our 4 system, the coroner orders the autopsy, runs the 5 investigation. 6 So -- but if that extends to the coroner 7 saying how the forensic pathology system will go about 8 it, that's where I start to push back. And ultimately, 9 the coroner, who is an ex-officio member of the council, 10 can raise that as a council matter. 11 So I've got to be very sure that I'm on 12 the right side of things, because the last thing I want 13 is my council telling me, No, you didn't do the right 14 thing. The council doesn't want to get involved in argy 15 bargy between me and the state coroner. 16 It wants a smooth sailing system. I don't 17 want to embarrass the judicial people that are on the 18 council. So it's all set up for me to be as 19 accommodating as I can be. 20 So it's only when I get to a very hard 21 corner that I'm prepared to make an issue of it. 22 COMMISSIONER STEPHEN GOUDGE: Now you're 23 -- your council, you would view in corporate 24 organizational parlance, as a board of directors -- 25 DR. STEPHEN CORDNER: Yes.
991 COMMISSIONER STEPHEN GOUDGE: -- is that 2 fair? 3 DR. STEPHEN CORDNER: Yes. So in fact, 4 the -- and we were talking about this yesterday -- 5 Albert and I -- that it is interesting, we do have 6 government representatives -- representative Minister for 7 Health, representative Minister for -- 8 COMMISSIONER STEPHEN GOUDGE: Yes, you 9 have a variety of Ministry representatives. 10 DR. STEPHEN CORDNER: Yes. They're 11 actually in a minority. 12 COMMISSIONER STEPHEN GOUDGE: Right. 13 DR. STEPHEN CORDNER: So they don't -- 14 the government can't sort of -- I mean they run us 15 anyway, but they -- they control the budget and -- but 16 that's the stakeholders. 17 I mean, the Minister for Health's clearly 18 got an interest in what we do -- public health and safety 19 -- we contribute to that function of the coroner. But we 20 can do things independently of the coroner in relation to 21 public health and safety, and we do. 22 The -- so -- 23 COMMISSIONER STEPHEN GOUDGE: But they 24 have an oversight role over the Institute? 25 DR. STEPHEN CORDNER: Yes. They are a
1001 governing body -- 2 COMMISSIONER STEPHEN GOUDGE: They don't 3 have any more skills relevant to pathology than the Chief 4 Coroner in this -- 5 DR. STEPHEN CORDNER: Well, one (1) of 6 the representatives -- the Attorney General has two (2) 7 representatives; one (1) of whom has to be another 8 pathologist. 9 So -- and that person we've tried to make 10 a pathologist who's got organizational leadership skills 11 in private pathology or hospital pathology so we get the 12 benefit of both pathology and medical administration, 13 pathology administration, so. 14 COMMISSIONER STEPHEN GOUDGE: I see. So 15 there's a statutory requirement to inject -- 16 DR. STEPHEN CORDNER: Yes. 17 COMMISSIONER STEPHEN GOUDGE: -- some 18 skill set -- 19 DR. STEPHEN CORDNER: Yes. 20 COMMISSIONER STEPHEN GOUDGE: -- that the 21 -- what I have called the board level -- 22 DR. STEPHEN CORDNER: Yes. 23 COMMISSIONER STEPHEN GOUDGE: -- of the 24 Institute? 25 DR. STEPHEN CORDNER: Yes. And we have
1011 the two (2) deans of the medical schools that usually be 2 -- and the Chief Commissioner has a representative; the 3 Minister of Police has a representative; the police are, 4 obviously, a key stakeholder. 5 COMMISSIONER STEPHEN GOUDGE: Right. 6 DR. STEPHEN CORDNER: We have a 7 representative, not statutorily, but people have 8 appointed representatives from each of the levels of the 9 judicial service; the Supreme Court, the intermediate 10 court, the County Court -- 11 COMMISSIONER STEPHEN GOUDGE: Right. 12 DR. STEPHEN CORDNER: -- and the 13 Magistracy. And I cannot over -- I really can't over 14 emphasize the importance that that has been to the 15 strength of the Institute; to the ability of the 16 Institute to relate to the courts; to receive informal 17 feedback about performance. 18 Very difficult to get formal feedback from 19 the court system about the performance of witnesses -- of 20 your expert witnesses. We've tried it with the 21 prosecution, who have tended to tell us that we didn't 22 say what they wanted us to say. And we've tried it with 23 the defence, who have tended to say that we didn't say 24 what they wanted us to say. 25 So very difficult, short of making sure
1021 that the expert witness, the pathologist, is accompanied 2 every time by another pathologist, which is quite 3 resource-intensive to -- deal with that. 4 So the -- the power of having judicial 5 representatives in terms of being seem by the Government 6 and the Department of Justice, I don't -- it means that 7 we are -- we are treated with a level of respect that is 8 different -- which would be different from the situation 9 if we didn't have judicial representation on it. 10 Just a last point on that. It is a 11 constant amazement to me that members of the judiciary 12 have been prepared to serve on such a council, because 13 clearly that exposes them to conflicts and embarrassment 14 if we make mistakes. 15 So these are powerful incentives to the 16 institution to make sure it's got those covered off. 17 COMMISSIONER STEPHEN GOUDGE: What -- 18 just as a matter of -- when I was reading your 19 information in preparing for today, how do you deal -- 20 this is a narrow self-interested question, Dr. Cordner, 21 but how do you deal with the conflict question for the 22 judiciary? 23 That is, do the judges on your Board 24 recuse themselves from any cases that are going to 25 involve any of your pathologist's giving evidence or is
1031 there any constraint like that or have you had that 2 experience? 3 DR. STEPHEN CORDNER: We haven't had that 4 experience, so I don't know what the answer to that 5 question is, and it might vary. But -- so those are the 6 sorts of issues that -- that the judicial officer has to 7 address, I suppose, when they agreed to join and they 8 presumably discuss it with the chief of their 9 jurisdiction -- 10 COMMISSIONER STEPHEN GOUDGE: Right. 11 DR. STEPHEN CORDNER: -- and that would 12 probably come up in those sorts of conversation. 13 COMMISSIONER STEPHEN GOUDGE: Right. 14 DR. STEPHEN CORDNER: So -- but the 15 courts, they've obviously got a great interest in -- 16 COMMISSIONER STEPHEN GOUDGE: Yes. I 17 mean -- 18 DR. STEPHEN CORDNER: -- pathology 19 service -- 20 COMMISSIONER STEPHEN GOUDGE: -- they are 21 clearly a major user -- 22 DR. STEPHEN CORDNER: Yeah. 23 COMMISSIONER STEPHEN GOUDGE: -- of your 24 product. 25 DR. STEPHEN CORDNER: So, all I can say
1041 is as the person responsible for the service that that 2 probably being the single-most powerful force. You know, 3 the thought that I would be responsible for serious 4 embarrassment for a judicial officer is -- is something 5 that worries me and keeps me on my toes. 6 COMMISSIONER STEPHEN GOUDGE: Thanks. 7 Thanks, Ms. Rothstein. 8 9 CONTINUED BY MS. LINDA ROTHSTEIN: 10 MS. LINDA ROTHSTEIN: Dr. Lauwers, any 11 comments? 12 DR. ALBERT LAUWERS: I do have just a few 13 comments. 14 I think the first comment I have is that 15 the plan, Mr. Commissioner, that is before you was the 16 findings of the joint Coroners and pathologists, 17 consisting of seven (7) forensic pathologists, five (5) 18 coroners, and it was our view that this is -- this would 19 be the best for our system. 20 Now, having said that -- and my belief is 21 that there's a great necessity for us to remain 22 intimately tied together so that we are capable of 23 performing our duties cross-functionally and giving 24 excellent product. 25 MS. LINDA ROTHSTEIN: But just help us
1051 understand what -- what is derived, what -- as my 2 business colleagues call it "the value add" is in being 3 intimately tied together? 4 DR. ALBERT LAUWERS: Well being 5 intimately tied together professionally allows for the 6 smooth transfer of communication and information. 7 I mean, you know, on a -- on a day-to-day 8 basis there's a significant amount of my work that is 9 done to support Dr. Pollanen. And also to run the system 10 in terms of the forensic pathology piece I track down 11 autopsy reports; I contact forensic pathologists; I 12 communicate with them about issues that other external 13 stakeholders to the system have raised with regard to the 14 -- the provision of the autopsy reports. That is 15 something that's the normal course of my business. 16 And I can state that, you know, the 17 difficulty that you have is when you separate that out; 18 you fractionate the system; it will really have a 19 detrimental effect in my view to death investigation for 20 years thereafter. 21 MS. LINDA ROTHSTEIN: Even when they're 22 housed in the same pres -- in the same premises and you 23 develop the right professional rapport that argues in 24 favour of partnership? Just to play devil's advocate 25 with you, Dr. Lauwers, even then?
1061 DR. ALBERT LAUWERS: I think it's a fair 2 statement that in -- in the delivery of a system where 3 the players are a part of the same system, they should be 4 properly integrated and functioning in teams. 5 There is no concept that I'm aware of that 6 states that quality gets better when you separate the 7 members of wa -- of who are working together for one (1) 8 common goal. 9 MS. LINDA ROTHSTEIN: Dr. Porter, any 10 comments? 11 MS. BONITA PORTER: I think I would like 12 to -- to just perhaps refer you to the position paper 13 that we had which was -- was also something that -- that 14 we worked on as a Director way back in August, looking at 15 what we thought was the best for the system. 16 The Forensic Pathology Services were 17 integrated with the Office in 1994, and Mr. Justice 18 Archie Campbell reviewed that -- that integration with 19 respect of the purposes of what he was asked to review 20 and actually endorsed the fact of that integration; that 21 it was -- it was critical to maintain it in terms of 22 interdisciplinary teamwork and being able to ensure that 23 all of the piece -- the -- the participants that have an 24 -- an investment in -- in a proper outcome do work as a 25 team.
1071 So that's -- that gave us the -- the 2 direction to continue working on that integration and 3 reviewing it to make sure that it still made sense for 4 the future. 5 And I think that was our position paper 6 and that was what was discussed in the working group and 7 that was the -- the collective feeling of all of the 8 participants on the group, which included non-forensic 9 pathologists and non-full-time coroners. 10 We had representations from the Ontario 11 Association of Pathologists and the Ontario Coroner's 12 Association and that -- that was an underlying principle 13 on which we felt we should move forward. 14 And I -- I firmly believe that is the best 15 for ensuring high quality investigation and fulfilling 16 the purposes of what our medicolegal Death Investigation 17 System is intended for. 18 MS. LINDA ROTHSTEIN: Dr. Pollanen, any 19 comments? 20 DR. MICHAEL POLLANEN: Well, these are 21 obviously very big issues, and we've taken them very 22 seriously as an organization because this will be the 23 future. I mean, essentially, the roadmap that comes out 24 of this Inquiry is going to determine the direction of 25 the growth and development of forensic pathology for
1081 Ontario and will largely be a blueprint for the 2 profession in Canada, so the -- these are very important 3 decisions to be made right now. 4 And I would say that what concerns me the 5 most right now, having traversed a lot of distance 6 through these cases and through these concepts, is that 7 we have these two (2) big issues, the way I see them -- 8 two (2) big continents. 9 We have the forensic pathology quality and 10 reliability issues, and I think we have put a lot of 11 effort as an organization evolving over time to improve 12 those attributes within the limits and the scope of the 13 science which is another huge area that we've discussed. 14 COMMISSIONER STEPHEN GOUDGE: Right. 15 DR. MICHAEL POLLANEN: But the part that 16 we still have not fully differentiated is how is this all 17 going to be dealt with in terms of oversight and 18 accountability. We have -- we do know about certain 19 things. 20 We do know that we need to maintain teams 21 -- the team concept. We do know that institutional 22 structures are very important. We do know that the 23 system at -- in its previous construction was not 24 particularly accountable at the appropriate levels to -- 25 to errors.
1091 And so what really concerns me now is how 2 -- how do we marry up the accountability in the quality 3 and reliability of forensic pathology. And from my point 4 of view, the most important thing -- and I'm going to -- 5 I'm talking about broad principles here -- the most 6 important thing are partnerships, effective 7 communication, demarcation of roles, working together, 8 shared common values, mission and vision all the same. 9 These are the important factors. 10 Our working group has decided that -- that 11 this can be accomplished within this organizational 12 model. But -- and -- and I think that there is a lot of 13 merit to this and we've -- we've gone a lot of distance 14 together on this -- on this model, but this still -- we 15 need to also consider other things and those include 16 things like, if we're going to have accountability 17 structures where forensic pathology reports to the 18 coroner in this current structure, who is accountable? 19 And is it fair to give, for example, the 20 Chief Coroner accountability on something that is not 21 within their purview? This is a tough question. 22 And the other issue is, we know, and this 23 is purely on the basis of institutional experience, that 24 we can be very effective partners in death investigation 25 and not be under the same organizational hierarchy, and
1101 that's every other member of the Death Investigation 2 Team. 3 So these -- these are the issues that we 4 grapple with. And, as I've said, I mean, I do not see 5 this structure as impairing progress in the future, but 6 it does have to recognize those fundamental principles 7 that I've talked about. 8 And it does have to -- and I think the -- 9 the public and the government and everybody who is a 10 stakeholder in the system has to realize then that the 11 ultimate accountability for mistakes in forensic 12 pathology will be the Chief Coroner. 13 And that's the way this structure is, 14 right? So -- so then -- 15 DR. ALBERT LAUWERS: I just want to 16 comment on that if I could. 17 DR. MICHAEL POLLANEN: So then, you know, 18 the -- the situation is, the Chief Forensic Pathologist 19 is the professional leader of the -- of the system, is 20 called to account for the scientific and the operational 21 and et cetera, but is -- but is ultimately not going to 22 be accountable for -- for the -- for failure. 23 MS. LINDA ROTHSTEIN: For the work. 24 DR. MICHAEL POLLANEN: And -- and if 25 that's -- and if that's the model that the -- that we
1111 want to endorse, then we should endorse it. 2 MS. LINDA ROTHSTEIN: Dr. Lauwers, you 3 wanted to comment on that? 4 DR. ALBERT LAUWERS: I did. I just want 5 to develop some clarity around definitions. 6 Accountability is the obligation to demonstrate and take 7 responsible for performance in light of commitment and 8 expected outcome. That's the definition of 9 accountability. The -- 10 MS. LINDA ROTHSTEIN: But did you hear 11 Dr. Pollanen defining it differently? 12 DR. ALBERT LAUWERS: I didn't. 13 MS. LINDA ROTHSTEIN: Okay. 14 DR. ALBERT LAUWERS: I just -- I'd like 15 to define oversight -- 16 MS. LINDA ROTHSTEIN: No. Okay, good. 17 DR. ALBERT LAUWERS: -- is the management 18 -- 19 COMMISSIONER STEPHEN GOUDGE: Are you 20 reading from something, Dr. Lauwers? It's terrific, and 21 we'll get it on the transcript. 22 DR. ALBERT LAUWERS: It's actually -- 23 COMMISSIONER STEPHEN GOUDGE: I just 24 haven't -- I can't write that fast, that's all, and I was 25 hoping that I could find it on a piece of paper.
1121 DR. ALBERT LAUWERS: It is on a piece of 2 paper, Mr. Commissioner. It's, I believe, in -- I 3 believe that it's the document opposite the Chief Coroner 4 Oversight and Accountability document. 5 COMMISSIONER STEPHEN GOUDGE: Okay. 6 DR. ALBERT LAUWERS: And if you look at 7 the last page -- 8 COMMISSIONER STEPHEN GOUDGE: I have it 9 attached, and I look at the last page? I see, okay, 10 great, terrific. Thank you. 11 DR. ALBERT LAUWERS: You're welcome. So 12 accountability, I've defined oversight as management by 13 overseeing the performance of a person or peer group. 14 So our model, and the model that was 15 endorsed by seven (7) of approximately twenty (20) 16 forensic pathologists working in the province and the 17 five (5) senior coroners, was a model in which forensic 18 pathology was led by the Chief Forensic Pathologists who 19 have oversight and accountability for the entire Ontario 20 Forensic Pathology Services. 21 The accountability for the -- the Chief 22 Forensic Pathologist goes through the Chief Coroner and 23 is the obligation, again, to demonstrate and take 24 responsibility for performance in light of commitment and 25 expected outcome.
1131 My interpretation and my understanding of 2 that is that, in essence, the Chief Forensic Pathologist 3 runs the entire Ontario Forensic Pathology Service, full 4 stop. 5 COMMISSIONER STEPHEN GOUDGE: Can I just 6 ask this, Dr. Lauwers? I mean, I've been puzzling over 7 what meaning to give to words like "accountability" and 8 "oversight" from the moment I read the Order in Council 9 that gave me this awful job. 10 And are these definitions one that your 11 group simply used as working definitions, or do they come 12 from some other source? 13 DR. ALBERT LAUWERS: These were obtained 14 -- they're definitions available on the Internet for 15 these two terms. 16 COMMISSIONER STEPHEN GOUDGE: Okay. And 17 there is another -- troublesome for me -- term in the 18 Order in Council. It's called "quality assurance". Now 19 where does that fit? I mean, is that something different 20 yet again? 21 DR. ALBERT LAUWERS: It is, indeed, 22 different yet again, yes. 23 MS. LINDA ROTHSTEIN: You've asked the 24 right person. 25 COMMISSIONER STEPHEN GOUDGE: Yes, I
1141 thought I might be. 2 DR. ALBERT LAUWERS: If you'd like a 3 definition -- 4 COMMISSIONER STEPHEN GOUDGE: It figures. 5 DR. ALBERT LAUWERS: -- of quality 6 assurance, I -- 7 COMMISSIONER STEPHEN GOUDGE: Yes. No, 8 I'd just like -- and this comes from the same source, I 9 take it? 10 DR. ALBERT LAUWERS: It comes from a 11 different source, but it's a -- it comes from a 12 publication called "Managing For Quality and Performance 13 Excellence" -- 14 COMMISSIONER STEPHEN GOUDGE: Okay. 15 DR. ALBERT LAUWERS: -- by Evans. And 16 the definition of -- first, let me give you the 17 definition of quality; it's the totality of features and 18 characteristics of a service that bears on its ability to 19 satisfy customers, clients, or stakeholders. 20 COMMISSIONER STEPHEN GOUDGE: Right. 21 DR. ALBERT LAUWERS: And quality 22 assurance is a planned systematic activity directed 23 toward providing customers, clients, stakeholders with 24 service of appropriate quality. 25 COMMISSIONER STEPHEN GOUDGE: Okay. And
1151 coming, I guess, to this through the various episodes 2 we've heard about in the last ten (10) weeks, one (1) of 3 the concerns I have is some of the things that we are 4 told went wrong have to do with a highly skilled 5 specialty and whether one can do accountability with or 6 without a knowledge of that speciality; whether one can 7 do oversight with or without a knowledge of that 8 specialty. 9 I kind of tend to think from the 10 definitions you've used that implicit in that is that you 11 need some fairly significant knowledge of the specialty 12 in the view of your committee to conduct oversight, but 13 not to engage in accountability. 14 Is that a fair assessment of the way this 15 document was intended to be read? 16 DR. ALBERT LAUWERS: That's a fair 17 assessment, Mr. Commissioner. 18 COMMISSIONER STEPHEN GOUDGE: Okay. And 19 I guess you may undoubtedly get to this, Ms. Rothstein, 20 but for me, this leaves me with a question of where does 21 the oversight of the entire forensic service come from in 22 this model? Does it come only from the Advisory 23 Committee? 24 DR. ALBERT LAUWERS: Well, as -- as Dr. 25 Pollanen has stated -- well, perhaps, before I go there,
1161 I'll just answer it by suggesting to you, within the 2 context of a medical establishment like a hospital, a 3 Chief of Staff has a department of surgery, a department 4 of medicine, a department of anaesthe -- 5 COMMISSIONER STEPHEN GOUDGE: Right. 6 DR. ALBERT LAUWERS: And that Chief of 7 Staff doesn't know how to operate and doesn't actually 8 know -- 9 COMMISSIONER STEPHEN GOUDGE: Right. 10 DR. ALBERT LAUWERS: -- how to do 11 anaesthetics, but he is the Chief of Staff. 12 COMMISSIONER STEPHEN GOUDGE: Right. 13 DR. ALBERT LAUWERS: Now, the appoint -- 14 important point here is that the Chiefs of all of those 15 departments have -- have a duty oversight for the members 16 of those departments because really only they can 17 actually address the issues -- 18 MS. LINDA ROTHSTEIN: Right. 19 DR. ALBERT LAUWERS: -- of performance 20 with regard to their members. 21 COMMISSIONER STEPHEN GOUDGE: Right. 22 DR. ALBERT LAUWERS: Yet that doesn't 23 discount the ability of the Chief of Staff -- 24 COMMISSIONER STEPHEN GOUDGE: That tells 25 --
1171 DR. ALBERT LAUWERS: -- to run the 2 hospital -- 3 COMMISSIONER STEPHEN GOUDGE: And to be 4 accountable for the -- 5 DR. ALBERT LAUWERS: -- and be 6 accountable -- 7 COMMISSIONER STEPHEN GOUDGE: -- running 8 of the hospital. 9 DR. ALBERT LAUWERS: And -- and of course 10 the accountability there -- 11 COMMISSIONER STEPHEN GOUDGE: Fair 12 enough. 13 DR. ALBERT LAUWERS: -- goes to the 14 Board. 15 COMMISSIONER STEPHEN GOUDGE: I think in 16 terms, though, and obviously I am coloured very heavily 17 by what I've heard in the last ten (10) weeks, but I 18 think in terms of public confidence and the question, How 19 are these things allowed to go on and not caught, okay? 20 I mean, that's a very common parlance; a question that 21 seems to be at the root of what we've been engaged in. 22 And if that is right, is part of "they 23 weren't caught" the absence of skill sets in those who 24 had accountability for them? 25 DR. MICHAEL POLLANEN: You're asking --
1181 MS. LINDA ROTHSTEIN: Anyone can answer 2 this question. 3 DR. MICHAEL POLLANEN: Yeah, I mean, I -- 4 I think that's patently obvious, isn't it? I mean, from 5 my point of view, that's true. I mean, if you're going 6 to provide effective oversight and accountability on 7 whether or not a technical act is performed, you -- you 8 must possess knowledge of that. 9 I mean, it's -- it's similar to you take - 10 - take an example of forensic DNA testing or some other - 11 - some other technical act, I mean, the meaningful 12 oversight of that re -- comes from expertise. 13 COMMISSIONER STEPHEN GOUDGE: Well, they 14 use the word "accountability", now that I'm 15 differentiating, according to -- 16 DR. MICHAEL POLLANEN: Well, I mean I 17 must admit, the differentiation between accountability 18 and oversight is a new concept for me -- 19 COMMISSIONER STEPHEN GOUDGE: Right. 20 DR. MICHAEL POLLANEN: -- because that's 21 -- that -- those -- the differences in those definitions 22 was not actually part of our collaborative analysis of 23 this issue. This is something that arrived a bit later. 24 But I think the point of the matter is -- 25 and I -- we're all struggling with it.
1191 COMMISSIONER STEPHEN GOUDGE: Yes, and 2 frankly, let me say right off the top, that I think what 3 the organization is doing is to be enormously commended. 4 These are very tough problems. 5 I wish you'd find a perfect solution, and 6 give it to me so I can just sign it. 7 DR. MICHAEL POLLANEN: And we're working 8 hard. 9 DR. ALBERT LAUWERS: Yeah. 10 DR. MICHAEL POLLANEN: But -- 11 MS. LINDA ROTHSTEIN: They're close. 12 DR. MICHAEL POLLANEN: But -- but I come 13 back to the point that, you know, I think the other way 14 of looking at it is that if you -- if you're starting to 15 split into these different features of accountability, 16 oversight, et cetera, does accountability and how it 17 flows through the system and oversight if it's different? 18 How does a -- if it flow -- does it flow 19 through the system in the same way that an organizational 20 chart is constructed of the system? 21 COMMISSIONER STEPHEN GOUDGE: Right. 22 DR. MICHAEL POLLANEN: I mean, to some 23 extent the answer to that is no, because we are -- the 24 forensic pathologists are broadly accountable, as are the 25 coroners for that matter, to many, many different
1201 stakeholders. 2 So -- so the accountability oversight 3 structure is a little bit different from the hard-wired 4 organizational diagrams. So I guess what we're ter -- 5 what, in a way, what we're talking about is how do you -- 6 how do you marry the two of those together in the most 7 effective way -- 8 COMMISSIONER STEPHEN GOUDGE: Right. 9 DR. MICHAEL POLLANEN: -- to deal with 10 the credibility issues of -- in forensic pathology if, at 11 the -- at the top end of the diagram, you have people who 12 are not content experts? 13 14 CONTINUED BY MS. LINDA ROTHSTEIN: 15 MS. LINDA ROTHSTEIN: Dr. Pollanen, just 16 before I turn it over to Dr. Porter, what reaction do you 17 have, if any, to Dr. Lauwer's analogy to another medical 18 organization in which accountability and oversight are 19 differentiated? 20 The Chief of Staff, as he says, who 21 doesn't have that hands-on technical skill, but 22 nevertheless remains accountable for the work of all of 23 the departments? 24 DR. MICHAEL POLLANEN: I think it's a 25 very profitable model to think about. And I think it
1211 provides us -- because there's a natural tendency for us, 2 when we're in difficult situations like this, to provide 3 -- to look at different models and different analogies, 4 right. 5 So -- so I can see that as being a -- a 6 very important way of inf -- of informing our thinking. 7 The -- and -- and for example, I think it's a very good 8 way of -- of justifying why a Board would be helpful in 9 terms of an accountability mechanism. 10 The -- the analogy does not get fully 11 translated, however, largely because if -- if we were to 12 -- to look at the diagram as it is, we would be a 13 hospital with three (3) departments. 14 Where the content expert -- the Chief 15 Coroner -- is -- is capable of providing direct oversight 16 and accountability to two (2) departments, but not the 17 third. So I mean that -- that's the -- and when I say, 18 not the third, I mean because of the -- there is a -- a 19 symmetry and content expertise compared to the other two 20 (2) departments. 21 COMMISSIONER STEPHEN GOUDGE: Right. 22 23 CONTINUED BY MS. LINDA ROTHSTEIN: 24 MS. LINDA ROTHSTEIN: Dr. Porter...? 25 DR. BONITA PORTER: I'd -- I'd just like
1221 to begin by saying that we will continue to work hard to 2 assist you with -- 3 COMMISSIONER STEPHEN GOUDGE: And I'll be 4 very grateful as I said before. I look forward to -- to 5 the product of the thought. 6 DR. BONITA PORTER: Okay. 7 COMMISSIONER STEPHEN GOUDGE: I mean, 8 these are hard questions. 9 DR. BONITA PORTER: But I think that I 10 would -- would like to comment to your question about, 11 you know, how what we're doing now might have prevented 12 what have happened, and I think I have something to offer 13 you on that regard. 14 What we have done with the coroners in the 15 provinces that -- it became very clear and this whole 16 concept of quality assurance is something that -- that is 17 new. I mean, the definition is not something that we -- 18 we clearly understand. 19 But we're working hard at that. And we -- 20 we started perhaps in the late -- late '90s, early 2000, 21 to recognize that we had to do something to assure 22 quality. But to be fair to the people who are delivering 23 the service, they need to know what you're expecting of 24 them. 25 So the history of that for the Coroner's
1231 System -- and the reason I'm telling you this, because I 2 think it's analogist to what Dr. Pollanen's task is ahead 3 of him -- is that we made it very clear what the 4 expectations were. 5 We -- we present -- we prepared those 6 guidelines in collaboration with the Ontario Coroner's 7 Association, so there is -- was some valid input as to 8 the crafting of them. 9 We created those. We distributed them. 10 We made it very clear those -- what the expectations are. 11 They've undergone one (1) revision, and now the coroners 12 are being evaluated. 13 And as part of that evaluation, we will 14 pick up problems. And I think if that had been in place 15 for the pathology service, the problems that -- that have 16 led to the -- the very unfortunate outcomes, might have 17 been picked up a lot earlier. 18 Because Dr. Pollanen's task will be to 19 create those same sorts of things -- and he's well along 20 the line -- the road to doing that for forensic 21 pathologists -- so that the expectations for them are 22 clear. 23 And then the corollary to that -- the next 24 step -- is to evaluating them, as in terms of do those 25 exp -- are they meeting those expectations? That's the
1241 creation of the registry and the ability to maintain on 2 the registry. 3 Once you have that structure in place, 4 that -- that I believe that -- that the problems that 5 we've -- we're talking about and have led us here, would 6 have been caught earlier, because there will be bench 7 marks. 8 There will be expectations in terms of 9 performance and giving evidence in court. There may be 10 the ability to monitor that over a period of time, just 11 the same way we're doing with the coroners right now; is 12 that we are auditing them. And that's the process that 13 we're -- we're committed to and engaged in. 14 And we've actually hired a consultant to 15 see where else we can improve in quality assurance. 16 So I see that this a -- an evolution in 17 progress and that by -- by formalizing the role of the 18 Chief Forensic Pathologist and legislation, the 19 expectations of that position will be the same as they 20 are for the expectations of those who are accountable for 21 coroners investigations. 22 And -- and to be accountable for that 23 means that those -- those benchmarks are being met, the 24 delivery is being met; that the expectations of the 25 stakeholders are being met. And I see that as
1251 accountability, and I don't think that that requires 2 intimate knowledge of forensic pathology. I think that's 3 organizational accountability. 4 And I think that would be the role of 5 whomever occupies the position of Chief Coroner; is they 6 are accountable for the death investigation system in 7 Ontario and the delivery of quality service to all 8 stakeholders: Criminal Justice, Civil Justice, families, 9 police, anybody else who has an interest in medicolegal 10 death investigation. I think it's an organizational 11 quality. 12 It's -- it's a quality of an organization 13 that believes in quality and there may be a number of 14 participants as there are a number of departments in a 15 hospital. But there is someone who is ultimately 16 accountable to ensure that the purposes of the -- the 17 system are being met for all the stakeholders involved. 18 COMMISSIONER STEPHEN GOUDGE: Thanks, Dr. 19 Porter. 20 MS. LINDA ROTHSTEIN: Commissioner, I was 21 about to hand it over to my colleagues for questions, 22 starting with Mr. Gover. I don't know, Mr. Gover, if you 23 might have some questions? 24 25 QUESTIONED BY MR. BRIAN GOVER:
1261 MR. BRIAN GOVER: I have just a couple of 2 questions and the first takes us back to the chart, the 3 Accountability and Oversight chart, proposed. 4 And in particular, we've had some 5 substantial discussion about the Death Investigation 6 Advisory Commission or Council, which -- which appears to 7 be a very significant innovation that you're suggesting 8 here, Dr. Porter. 9 Could I ask you or Dr. Lauwers, is this 10 the sort of thing that you require a recommendation from 11 the Commission in order to move forward with? 12 Dr. Lauwers...? 13 DR. ALBERT LAUWERS: Well, my view is 14 that -- that yes, we do. 15 I mean, the argument could be made that 16 the current structure as it -- as it sits, with the -- 17 the innovations that have occurred from 2001 to the 18 present are sufficient, but we -- we don't believe that. 19 We think that we really do and would encourage Mr. 20 Commissioner to make a recommendation just to that. 21 MR. BRIAN GOVER: Dr. Porter...? 22 DR. BONITA PORTER: I -- I think it's 23 essential to going a long way to restoring the public 24 confidence that I think might have been affected by -- by 25 what's happened. And we believe that that's critical to
1271 the role of the Office of the Chief Coroner; is ensuring 2 that the public has confidence in what we are doing. 3 We certainly can affect public safety by 4 inquests. We certainly can affect public safety by 5 making recommendations from inquest to relevant agencies 6 and governments. 7 But there is occasion where a comment from 8 the Chief Coroner is required immediately when there's 9 been an incident or a death. And the public must have 10 confidence in that individual and -- and the integrity of 11 that office. 12 And I think that this Commission would -- 13 the establishment of such a body, would go a long way to 14 restoring the public confidence of that individual who 15 might be speaking about an individual case or a 16 circumstance or an incident, and where the public needs 17 to -- to have some comfort that they can trust that 18 person; to go about their daily lives until there is a 19 further or a much more fulsome investigation and release 20 of results. 21 I think we need that, and I would -- would 22 support Dr. Lauwers' request that we -- we must find some 23 way of restoring public confidence in -- in the position. 24 MR. BRIAN GOVER: And perhaps I could ask 25 the Registrar, please, to call up on to the screens the
1281 transcript from December 3rd at page 77. 2 3 (BRIEF PAUSE) 4 5 MR. BRIAN GOVER: Perhaps, while we're 6 waiting for December 3rd at page 77 to appear on our 7 screens I'll preface the question, Dr. Porter, and I'll 8 be reading a substantial portion of the transcript. 9 This is an aspect of the evidence of Dr. 10 Young and he was speaking to the issue of the -- the 11 difficulty faced by small cost centres or small branches 12 within government. 13 And Dr. Young's view, expressed then, was 14 that if the Ontario Forensic Pathology Service were a 15 separate branch, that could be problematic in terms of 16 ensuring, on an ongoing basis, expenditure of adequate 17 resources by government. 18 So if we could go to page 77, please, Mr. 19 Registrar. 20 21 (BRIEF PAUSE) 22 23 MR. BRIAN GOVER: Well, perhaps we 24 might -- 25 COMMISSIONER STEPHEN GOUDGE: Why don't
1291 you just -- 2 MR. BRIAN GOVER: -- ignore -- 3 COMMISSIONER STEPHEN GOUDGE: Why don't 4 you just read it, Mr. Gover -- 5 MR. BRIAN GOVER: Actually -- 6 COMMISSIONER STEPHEN GOUDGE: -- and 7 we'll get it if we can, or do you have it there? 8 9 CONTINUED BY MR. BRIAN GOVER: 10 MR. BRIAN GOVER: The -- the portion that 11 I have isn't the -- the portion that I was hoping to call 12 up. 13 And perhaps, you know, not to drag this 14 out any longer, Dr. Porter, in your experience in dealing 15 with government, do you share the view expressed by Dr. 16 Young about the difficulty in the small branch? 17 And Dr. Young, in the portion to which I 18 was hoping to refer, spoke of the -- the difficulty for 19 the Office of the Chief Coroner within the Ministry of 20 Community Safety and Correctional Services, given that it 21 is much smaller than, for example, the -- the OPP or the 22 Correctional Service component of the Ministry. 23 Can you speak to that issue, please? 24 MS. BONITA PORTER: I think there is a 25 danger in being a very small organization in -- in the
1301 broader public service. 2 And given that we are, indeed, funded by 3 public funds, that there is a lot of competition for 4 those funds, and there are certainly some economies of 5 scale that I think have to be considered; that being a 6 part of the Office of the Chief Coroner, I think, would 7 improve the ability of the government to take notice of 8 the requests of the Forensic Pathology Service as part of 9 the larger integrated Death Investigation System. 10 So that I would agree with Dr. Young that 11 there is a danger in being -- being separate and small 12 and -- and not a very large demand on the greater public 13 dollar, to be forgotten and lost, and that certainly -- 14 that is something that -- that we've experienced, even in 15 terms of getting increases in fees for people who provide 16 services for us; that's it's difficult to get the 17 attention of government because of so many other demands. 18 So there is a danger in being a very small 19 organization and that there are some benefits to being a 20 part of the larger entity. 21 MR. BRIAN GOVER: And we have this now on 22 the screen and I see starting at page 77 and carrying on 23 to page 78, we can see at line 5 on page 78, Dr. Young 24 saying: 25 "Trying to get money for a small unit
1311 in government is extremely differ -- 2 difficult, and I had enough trouble 3 because my division in government was 4 tiny compared to corrections or the 5 OPP, but I could stand up and say and 6 demonstrate why it needed to be done. 7 And I was at the table meeting with 8 senior people and could make the 9 argument, but trying to do it for small 10 units, you really risk isolation. You 11 risk spending a disproportionate amount 12 of time on administration because, the 13 -- as I said earlier, the same -- 14 almost the same amount of 15 administration is required and you risk 16 losing communication." 17 So I take it that's a view that -- that 18 you share with Dr. Young, is that correct, Dr. Porter? 19 MS. BONITA PORTER: I do, and I can say 20 that -- that part of the planning for the Forensic 21 Science's complex is to look at how we can share services 22 with the other occupants of the complex, but it is -- it 23 is a hazard to be a small -- a small organization, a 24 small unit. 25 MR. BRIAN GOVER: And, Dr. Pollanen, I
1321 see you nodding your head in agreement, is that right? 2 DR. MICHAEL POLLANEN: Yeah, I think that 3 that's a reality of -- of our local context and I -- of 4 course, I have to differ to Dr. Young, who is obviously a 5 considerable -- has considerable experience as a 6 government administrator and Dr. Porter, as well. 7 And the -- the rationale, for example, at 8 the working group was that if you were -- if the 9 government was trying to feed two (2) mouths -- two (2) 10 separate mouths -- essentially along the same portfolio 11 as far as the government was concerned, that there would 12 be a dilution or a -- or a division of -- of 13 expenditures. 14 MR. BRIAN GOVER: Fair enough. And, Dr. 15 Cordner, you seem to be in agreement, as well, is that 16 right, in your own experience? 17 DR. STEPHEN CORDNER: Well, I'm sorry, 18 that mean no in Australia. No, I don't agree. 19 Now I do -- I think that that would be 20 allowing the tail to wag the dog -- that type of thinking 21 -- because I do think the government is there to make the 22 system work well. So I wouldn't, myself, allow that to 23 be a -- a principal underpinning what -- what should be 24 done. 25 Secondly, Dr. Porter has emphasized the
1331 independence of the coroner. There is a -- I mean, the 2 Chief Coroner is in the best position of any small 3 organization to make criticisms of inadequate resources 4 by them forming part of findings, or that would be the 5 system in Victoria; that the coroner can and does 6 criticize government for the inadequacy of resources or 7 support for different parts of the system. 8 And, thirdly, I think this -- the 9 existence of this inquiry will ensure that, for the 10 living memory of the bureaucracy, there won't be anywhere 11 near the same difficulty in getting a hearing. 12 MR. BRIAN GOVER: Dr. Porter, the last 13 question is for you and what are the challenges for any 14 Commission of Inquiry in making recommendations as to 15 recommend something that will be funded in years to come? 16 And that's -- that's why I asked the question I asked you 17 a moment ago. 18 But is there scope for a statutorily 19 mandated aspect of the service? And -- and already in 20 your experience, does the Coroner's Act provide a basis 21 for ensuring continuing government funding in some 22 respects? 23 DR. BONITA PORTER: Yes, there are some 24 expectations of the coroner -- the Chief Coroner -- that 25 are enshrined in legislation. And one (1) of them is the
1341 -- to conduct education programs. 2 So that's one (1) way to ensure that 3 educational resources are not subject to -- to times of - 4 - of difficulty in terms of government spending; is that 5 it's enshrined in legislation and -- and those are the 6 same sorts of things that I think would be very important 7 to -- to include in legislation for the Ontario Forensic 8 Pathology Service, is a requirement for -- for mand -- 9 for mandatory educational provision. 10 COMMISSIONER STEPHEN GOUDGE: So not just 11 legislating the position but legislating the obligations 12 of the position? 13 DR. BONITA PORTER: Yes, sir. 14 MR. BRIAN GOVER: Thank you. 15 COMMISSIONER STEPHEN GOUDGE: Thanks, Mr. 16 Gover. 17 Mr. Carter...? 18 19 QUESTIONED BY MR. WILLIAM CARTER: 20 MR. WILLIAM CARTER: Thank you, 21 Commissioner. 22 I just want to address the question of 23 accountability for the Forensic Service and the Office of 24 the Chief Coroner. And I imagine that all of you are 25 familiar with the record, to some extent, of this
1351 proceeding. 2 But it was the evidence that back in the 3 early '90s and late '80s at the time when the Ontario 4 Pediatric Forensic Unit was put together at the Hospital 5 for Sick Children, the Coroner's Office was separate and 6 accountable to the -- I think, it was the Assistant 7 Deputy Minister, as was the Chief Forensic Pathologist. 8 And, therefore, there were two (2) solitudes at that 9 time. 10 And as we understood the evidence, at 11 least as I did, there was, in addition to that kind of 12 structural separation, there was some personality issues 13 that created the lack of communication that one might 14 hope for. 15 And when the contract between the 16 Coroner's Office and the hospital was drawn up, there was 17 no attention given to the forensic, if you like, aspect 18 of the forensic unit. 19 There was no accountability drawn into the 20 agreement between the unit at the hospital and any type 21 of -- of framework that involved forensic oversight, if 22 you like, at the Coroner's Office. 23 Is that -- is that a fair recapitulation 24 as to the evidence as you understand it, Dr. Pollanen? 25 DR. MICHAEL POLLANEN: No, no.
1361 MR. WILLIAM CARTER: It's not? 2 DR. MICHAEL POLLANEN: No, the -- the 3 accountability was -- flows through the Service 4 Agreements, and that accountability is to the Chief 5 Coroner. 6 MR. WILLIAM CARTER: No, I understand 7 that. But the Chief Coroner did not have accountability, 8 at that time, for the Office of the Chief Forensic 9 Pathologist. 10 DR. MICHAEL POLLANEN: Well, the way it 11 was structured at the time, was that there was something 12 called the Forensic Pathology Branch of the -- of the 13 Ministry -- 14 MR. WILLIAM CARTER: Yes. 15 DR. MICHAEL POLLANEN: -- I think it was 16 called Sol/Gen at the time, and the -- the position that 17 was the head of that organization was the Provincial 18 Pathologist, not the Chief Forensic Pathologist. 19 So they did not have an oversight mandate 20 in that way. 21 MR. WILLIAM CARTER: Right. 22 DR. MICHAEL POLLANEN: And then the -- 23 the provision of autopsy services was essentially by 24 payment from the Coroner. 25 MR. WILLIAM CARTER: Yes.
1371 DR. MICHAEL POLLANEN: So individual 2 warrants given to individual pathologists, autopsy 3 services provided. 4 And then there was a -- the development of 5 Regional Units which were administered through the 6 Coroner's Office. 7 MR. WILLIAM CARTER: Right. 8 DR. MICHAEL POLLANEN: And the Regional 9 Units did not involve, for example, the forensic 10 pathology structure. 11 MR. WILLIAM CARTER: Right. I -- I think 12 that's what I was trying to get at. There seemed to be - 13 - to use the metaphor of the silos -- two (2) separate 14 silos for forensics and the Coroner's Office. 15 And that situation changed in the mid-'90s 16 when Dr. Chiasson was brought in to the Coroner's Office. 17 Is that fair? And so -- 18 DR. BONITA PORTER: It was 1994. 19 MR. WILLIAM CARTER: Yes. And as I 20 understand it, now there's considerable interface between 21 the forensic pathology units and the Coroner's Office 22 involving the Chief Forensic Pathologist, at least, at 23 the Hospital for Sick Children. 24 Is that fair? 25 DR. MICHAEL POLLANEN: Yeah, I would say
1381 it's fair. I mean -- 2 MR. WILLIAM CARTER: Yeah. 3 DR. MICHAEL POLLANEN: -- that -- that 4 certainly has been a major task that I've tried to deal 5 with and that was providing some type of unification 6 across the -- across the units with our office, yes. 7 MR. WILLIAM CARTER: What I'm really 8 trying to get at is this question of governance that has 9 occupied our conversation for the last hour or so, which 10 is an important one. 11 And it appears that you're of the view -- 12 your office is of the view -- looking forward, that it 13 remains in the best interests of the public that 14 accountability for the Death Investigation Service, 15 including the forensic aspect, remain with the Office of 16 the Chief Coroner. 17 Is that fair? 18 DR. BONITA PORTER: Yes. 19 MR. WILLIAM CARTER: And would I be right 20 in thinking that part of what informs that choice, is 21 recognition in the past that when the two (2) roles were 22 separate, there was a lack of communication between the 23 forensic and the coroner's aspects of this death 24 investigation. 25 Is that fair?
1391 DR. BONITA PORTER: Yes. 2 MR. WILLIAM CARTER: Okay. And the way 3 that one might address the accountability for the 4 forensic element of the coroner's role; we've talked 5 about investigations; we've talked about inquests; and 6 we've talked about forensics; and we acknowledge it seems 7 that the forensic aspect is -- has a unique professional 8 specialization that perhaps renders it vulnerable to 9 certain types of oversight deficiencies. 10 The way that one might address that is to 11 look to the public hospital format because within the 12 public hospital realm, those kinds of practice 13 specialization issues get dealt with within recognized 14 mechanisms. 15 One (1) is the Medical Advisory Committee 16 which is a multi-disciplinary committee which has direct 17 accountability to the governing body of a hospital for 18 the quality of care provided. 19 And so it would be the Advisory Committee 20 -- you're nodding so I think you -- you're agreeing with 21 me that that's the nature of the structure. Those of you 22 who are familiar with public hospitals recognize that's 23 how they're meant to be operated; fair? 24 DR. ALBERT LAUWERS: Yes. 25 MR. WILLIAM CARTER: Yeah. So the
1401 Advisory Committee that you're contemplating might 2 operate in a sense as a multi-disciplinary Medical 3 Advisory Committee to provide an oversight -- a mechanism 4 within the Coroner's Office -- that could legitimately 5 assure the Chief Coroner that that aspect of the 6 operation was being run properly. 7 Is that fair? 8 DR. ALBERT LAUWERS: That's fair. 9 MR. WILLIAM CARTER: Okay. So I just was 10 trying to connect all of these dots, and as a person 11 who's been involved in the public hospital area for a 12 number of year, I was seeing this model emerging as 13 having -- kind of address these issues in a different 14 kind of environment. 15 And I think you saw the same thing, Dr. 16 Lauwers, emerging at the same time, because you made a 17 comment that said, We've got a model elsewhere that we 18 might be able to look to. 19 So it would seem to -- to me that while 20 there may be no perfect solution, the solution that 21 you're contemplating and you're edging toward, does have 22 a certain number of checks and balances that addresses 23 the need to have skilled, and indeed, independent 24 oversight of those roles which cannot be adequately 25 managed by people who don't have the exact same
1411 expertise, such as the Chief Coroner. 2 Is that fair? 3 DR. ALBERT LAUDERS: That's fair. 4 MR. WILLIAM CARTER: Okay. Thank you 5 very much. 6 COMMISSIONER STEPHEN GOUDGE: Thanks, Mr. 7 Carter. 8 And Ms. Esmonde...? 9 10 QUESTIONED BY MS. JACKIE ESMONDE: 11 MS. JACKIE ESMONDE: Good afternoon. I'm 12 going to ask you some questions, and I'm here on behalf 13 of a coalition of Aboriginal Legal Services of Toronto 14 and Nishnawbe Aski-Nation. 15 And I'm just trying to wrap my head around 16 how this oversight and accountability model that's being 17 developed would work in practice, and I have -- could ask 18 you a lot of questions about that, but I don't have a lot 19 of time. 20 Now first, I understand this is being 21 developed by a joint committee of coroners and 22 pathologists. It -- this is internal to the Office of 23 the Chief Coroner at present? 24 DR. BONITA PORTER: Yes, but on the 25 working group, we also had representation from external
1421 to the organization itself, the Ontario Association of 2 Pathologists -- 3 MS. JACKIE ESMONDE: Right. 4 DR. BONITA PORTER: -- and the Ontario 5 Coroner's Association. 6 MS. JACKIE ESMONDE: Beyond stakeholders, 7 coroners, and pathologists, have there been consultations 8 beyond those two (2) professions? 9 DR. BONITA PORTER: Not at this stage, 10 no. 11 MS. JACKIE ESMONDE: Is that 12 contemplated? 13 DR. BONITA PORTER: It's certainly 14 something that could be event -- eventual -- sorry, we 15 could do that eventually, yes, but at this particular 16 time, the purpose of it was to deal with the particular 17 issue of the structure of the office. 18 MS. JACKIE ESMONDE: Mm-hm. 19 DR. BONITA PORTER: So that was the goal 20 of the particular working group. We didn't have any 21 terms of reference that go beyond the particular problem 22 that we were addressing at this time. 23 MS. JACKIE ESMONDE: Okay. One (1) of 24 the reasons that I -- I'm interested in the issue of 25 consultations with stakeholders beyond the office --
1431 beyond coroners and pathologists, relates to a question 2 that the Commissioner was asking earlier, which is, you 3 know how can problems in pathology evidence or pathology 4 services be identified, and do you need to have a certain 5 level of expertise in that field in order to identify 6 those? 7 And Dr. Pollanen was very -- expressed 8 some opinions about that. Now in the cases we're looking 9 at here, there were circumstances in which stakeholders 10 beyond the Office of the Chief Coroner did identify 11 problems; for example, the defence counsel, families, 12 Crown attorneys, police officers. 13 Do you see some value then, or perhaps are 14 -- are they -- I'll rephrase. 15 Taking that as a given, do you see those 16 sorts of stakeholders as playing a role in the oversight 17 and accountability, and are -- perhaps, on the advisory 18 bodies that are identified in your chart? 19 DR. BONITA PORTER: Well, I can start to 20 answer the question. I think it depends at what level 21 the advisory body is. 22 If you're talking about the Forensic 23 Pathology Services Advisory Committee, I think we've 24 identified that's analogist -- 25 MS. JACKIE ESMONDE: Mm-hm.
1441 DR. BONITA PORTER: -- to a Medical 2 Advisory Committee in a hospital, so there certainly is 3 appropriate opportunity there for input from the 4 stakeholders. 5 As I was explaining to Mr. Commissioner, 6 with respect to who might comprise the -- the Death 7 Advisory Commission, there could be a perception that if 8 you've got stakeholders on there, that they have an 9 investment, and that would not necessarily encourage the 10 perception of independence and operating at arms length 11 from government. 12 MS. JACKIE ESMONDE: Mm-hm. 13 DR. BONITA PORTER: So that's the piece 14 that we're grabbling with. But certainly the stakeholder 15 input is very important. It's just at what level that -- 16 that's appropriate for that input to be requested. 17 DR. ALBERT LAUWERS: Just to further 18 that, there -- there's normally a process during a 19 strategic planning exercise to actually canvas 20 stakeholders about their particular issues, and we're 21 committed to moving forward with the strategic planning 22 exercise in the very near future. 23 And certainly, we'll be expecting to hear 24 from various stakeholders at that time. 25 MS. JACKIE ESMONDE: Now, Dr. Cordner, I
1451 -- I took a quick look at the make-up of the Board -- 2 DR. STEPHEN CORDNER: Mm-hum. 3 MS. JACKIE ESMONDE: -- in Victoria, 4 which you spoke to about earlier this morning, and I -- I 5 was very interested to see that it includes a nominee 6 from the Minister of a person responsible for women's 7 affairs? 8 DR. STEPHEN CORDNER: Yes. 9 MS. JACKIE ESMONDE: And perhaps you 10 could -- that's a much -- that's a somewhat broader 11 definition perhaps of who a stakeholder is in that 12 system. Are you able to assist us in some of the 13 thinking behind that? 14 DR. STEPHEN CORDNER: That -- that 15 representative was added when the institute acquired 16 responsibility for clinical forensic medicine which is 17 forensic medicine applied to the living really, so a 18 physical assault, sexual assault, and child abuse where 19 there's not a dead -- so allegations of assault by 20 police, drugs and driving. 21 Those types of medical functions have been 22 collected together into a service and so because of the 23 sexual assault element of that, that was thought to be 24 and is a very important representation. 25 MS. JACKIE ESMONDE: And do I have time
1461 for one (1) more, sir? 2 COMMISSIONER STEPHEN GOUDGE: One (1) 3 more question, Ms. Esmonde. 4 5 CONTINUED BY MS. JACKIE ESMONDE: 6 MS. JACKIE ESMONDE: Okay. I wanted to 7 follow up on the proposal for, I suppose, modernizing the 8 -- the building and the facilities that -- that you spoke 9 about earlier this morning. 10 Dr. Pollanen, when you were here providing 11 testimony in November, there were some questions about 12 providing pathology services in remote communities, and 13 you had spoken about the possibility of video- 14 conferencing and -- and I believe, Dr. Lauwers, you spoke 15 to that, too, when you were here. 16 Is that something that is contemplated in 17 the proposal for the new facility that it would be able 18 to provide, kind of, what I think you called it 19 telepathology or -- or video-conferencing to other parts 20 of the -- of the Province as a way of perhaps amplifying 21 the pathology services in remote communities? 22 DR. MICHAEL POLLANEN: Yes. I would 23 actually like to see the -- the links go to the Courts 24 too, so we could get evidence for preliminary inquiries, 25 for example, remotely, but perhaps, that's a dream.
1471 COMMISSIONER STEPHEN GOUDGE: Thanks, Ms. 2 Esmonde. 3 MS. JACKIE ESMONDE: Thank you. 4 COMMISSIONER STEPHEN GOUDGE: Ms. Fraser, 5 finally. 6 7 QUESTIONED BY MS. SUZAN FRASER: 8 MS. SUZAN FRASER: My name is Suzan 9 Fraser and I'm here on behalf of an organization called 10 Defence for Children and some of you know that. I have 11 just a couple questions about the organizational chart. 12 And what I'm most familiar with in terms 13 of where there's an investigation system and sort of day- 14 to-day operations and then policy questions is the Police 15 Services Board model where the Police Services Board is 16 responsible for setting policy for the organization and 17 running of police services, but they don't actually 18 interfere with the day-to-day management of policing. 19 And I think that's sort of like the 20 hospital model where the Chief of Staff would be 21 responsible for day-to-day running of the hospital, and 22 the hospital board would be responsible for governments 23 and policy issues. 24 And -- and, Dr. Cordner, that seems to be 25 a little bit more like your council that has sort of
1481 policy. Is that a -- is that the definition? Is that 2 the distinction that exists within your council? 3 DR. STEPHEN CORDNER: Well, certainly 4 it's policy. 5 MS. SUZAN FRASER: Yes. 6 DR. STEPHEN CORDNER: And the more 7 business and corporate planning and strategic plan to, so 8 yes, I'm responsible for the day-to-day affairs, and I'm 9 accountable to the council for that. 10 MS. SUZAN FRASER: All right. And -- 11 and, Dr. Porter and Dr. Lauwers, is that something that 12 you were moving towards with that -- the Death 13 Investigation Advisory Commission? Is that sort of where 14 you were going? 15 DR. ALBERT LAUWERS: I -- I think the 16 structure that we envisioned was similar, for me anyways, 17 to a medical staff picture with a Board of Governors -- 18 MS. SUZAN FRASER: Yes. 19 DR. ALBERT LAUWERS: -- and a Chief 20 Operating Officer -- 21 MS. SUZAN FRASER: Oh. 22 DR. ALBERT LAUWERS: -- that sort of a 23 scenario. 24 MS. SUZAN FRASER: All right. And I take 25 it then that part of that also is to move towards more
1491 independence from the arm of government. Is that -- do I 2 understand that? 3 DR. ALBERT LAUWERS: I think that's a 4 fair assessment. 5 MS. SUZAN FRASER: All right. And I've 6 raised with various witnesses throughout the proceedings, 7 or, at least, one (1), a sort of perception of -- or 8 concern relating to the fact that traditionally the 9 Solicitor General, which manages correctional facilities 10 and policing, has also been responsible for the deaths -- 11 Death Investigation Team. 12 Do you have any -- is there any need for 13 the Solicitor General to actually retain responsibility 14 for the Office of the Chief Coroner in the Cor -- 15 Coronial System? 16 MS. BONITA PORTER: Sorry, can you -- 17 well, certainly the position of the Office of the Chief 18 Coroner has historically moved from ministry to ministry. 19 I believe when it first was -- was structured it was 20 actually part of the Ministry of the Attorney General, 21 and then it became part of the Ministry of the Solicitor 22 General, and then the Ministry of Community Safety and 23 Correctional Services where we are now. 24 So -- and I sus -- I remember reading that 25 there are always some suggestion that it should be part
1501 of the Ministry of Health and Long Term Care. 2 I don't know that if I have any strong 3 feelings or turn my mind as to where it appropriately 4 sits. I think it's more appropriate that it be 5 appropriately resourced, and that the purpose of it, 6 which is the improvement of public safety, and insurance 7 of appropriate death investigation and provision of those 8 results of that investigation to whatever stakeholders 9 they are, can be achieved. 10 I'm not sure that -- that it's -- we've 11 really turned our minds to whether or not it needs to be 12 moved in government. I think we just need to make sure 13 that -- that we're appropriately resourced and the 14 function has the -- the credibility and the confidence of 15 the public. 16 MS. SUZAN FRASER: All right. Thank you, 17 that -- that's helpful to me. Thank you very much. 18 COMMISSIONER STEPHEN GOUDGE: Thanks, Ms. 19 Fraser. 20 MS. LINDA ROTHSTEIN: So, Commissioner, 21 is it your preference to break for one min -- one (1) 22 hour and fifteen (15) minutes, until twenty (20) to 2:00? 23 COMMISSIONER STEPHEN GOUDGE: Yes, I 24 think that's fine. Thanks. If that suits everybody. 25 MS. LINDA ROTHSTEIN: Okay.
1511 COMMISSIONER STEPHEN GOUDGE: Lets do 2 that. 3 MS. LINDA ROTHSTEIN: So thank you very, 4 very much, all of you, for your participation this 5 morning, and we welcome your further comments and 6 submissions. 7 COMMISSIONER STEPHEN GOUDGE: Yes, I must 8 say -- 9 DR. BONITA PORTER: Thank you for the 10 opportunity. 11 COMMISSIONER STEPHEN GOUDGE: -- I found 12 it very enlightening. Thank you. 13 DR. BONITA PORTER: Thank you. 14 15 --- Upon recessing at 12:27 p.m. 16 --- Upon resuming at 2:51 p.m. 17 18 THE REGISTRAR: All rise. Please be 19 seated. 20 COMMISSIONER STEPHEN GOUDGE: Well, I'm 21 delighted to see everybody back. The panellists won't 22 know what I'm talking about, perhaps, but half the people 23 were stuck in an elevator. 24 MR. MARK SANDLER: They got the shaft, so 25 to speak.
1521 COMMISSIONER STEPHEN GOUDGE: Yes. 2 MR. MARK SANDLER: Well, good afternoon, 3 everyone. This is a panel entitled "The Death 4 Investigation Team in Pediatric Forensic Cases". And 5 based upon my preliminary discussions with this expert 6 panel, if I were to commence my questioning today I would 7 cover all of the topics of interest by a week Thursday, 8 perhaps. 9 So I'm going to focus on just some of the 10 many questions that arise in the course of the 11 investigation of pediatric forensic death cases. 12 Before I do so, I'll briefly introduce our 13 panellists. John Ayre is closest to me. John is the 14 Crown Attorney for Norfolk County, Ontario. And, John, 15 you better tell anyone who is here, some of whom are from 16 abroad, where Norfolk County is. 17 MR. JOHN AYRE: It's on the north shore of 18 Lake Erie: Long Point, Simcoe, Port Dover, Waterford, 19 sixty-five thousand (65,000) people. 20 MR. MARK SANDLER: All right. And John 21 has prosecuted a wide variety of serious criminal cases 22 throughout the central west region. He's been a 23 presenter and lecturer at the Ontario Crown Attorneys 24 Association summer schools, and a variety of other 25 educational programs for police and Crown counsel.
1531 He also has the -- the benefit of having 2 examined as part of assisting the work of counsel for the 3 Province of Ontario, each of the cases that have been the 4 subject of our review at this Inquiry. 5 To his right is Dr. Lauwers who has now 6 presented a number of times at this Inquiry, so I won't 7 introduce you yet again, Dr. Lauwers. 8 Dr. Ranson, again, who has presented now 9 earlier, Commissioner, so I won't re-introduce Dr. 10 Ranson, but welcome yet again. 11 To Dr. Ranson's right is Detective 12 Sergeant Chris Buck. Detective Sergeant Chris Buck has 13 been a member of the Toronto Police Service since 1976 -- 14 I really didn't believe that when he told that to me -- 15 and has been assigned to the homicide squad since January 16 of 2000. 17 Prior to that, he was involved in the 18 investigation of child sexual and physical abuse, and has 19 been designated a sexual assault child abuse 20 investigator. 21 He lectures regularly at the Toronto 22 Police Service College as part of the child abuse 23 investigators course. And he is a member, as is our next 24 presenter, Detective Sergeant Gary Giroux, of the 25 Paediatric Death Review Committee and the Death Under
1541 Five Committee. So welcome. 2 And, finally, last but not least, 3 Detective Sergeant Gary Giroux who also has been a member 4 of the Toronto Police Service, in his instance since 5 1979. He's been a member of the homicide squad since 6 1997. He has investigated approximately sixty (60) 7 homicides with the City of Toronto over the past eleven 8 (11) years. And, as I've indicated, Commissioner, he's a 9 member of the Paediatric Death Review Committee and the 10 Death Under Five Committee. 11 So welcome all. And I know from my prior 12 discussions we'll have a -- a spirited and interesting 13 discussion this afternoon. 14 15 THE DEATH INVESTIGATION TEAM IN PEDIATRIC FORENSIC CASES 16 PANEL: 17 18 DAVID RANSON 19 CHRIS BUCK 20 GARY GIROUX 21 JOHN AYRE 22 ALBERT LAUWERS 23 24 QUESTIONED BY MR. MARK SANDLER: 25 Well, I'm going to start, as I normally
1551 do, with a case scenario and I'm going to direct this, at 2 first instance, to Detective Sergeant Giroux, if I may. 3 You are presented with this scenario: The 4 911 is called. The mother of a young child says, "My 5 baby has died in its crib." Emergency personnel are 6 dispatched. 7 Who will be dispatched within Toronto to 8 represent the police? 9 MR. GARY GIROUX: Initially, as a result 10 of the 911 call, uniformed police officers from the 11 affected division would attend, followed very closely by 12 members of the Youth Bureau or the detective branch in 13 the div -- division which the occurrence is taking place. 14 MR. MARK SANDLER: All right. Detective 15 Sergeant Buck, what would the Homicide Squad's 16 involvement, if any, be at that stage? 17 MR. CHRIS BUCK: For any -- any 18 suspicious death of a child under five (5), as part of 19 our procedures where the detectives, or the first officer 20 on scene of that -- that pediatric death would notify 21 the on-call team at the Homicide Squad. 22 There's -- there -- actually are -- are 23 procedures contained within the binder, and it's -- there 24 is a -- a misprint at this stage, where it says: 25 "We shall investigate all."
1561 We shall be notified of all and we will 2 proceed from there. 3 But the on-call team will be notified by 4 the detectives. They will be -- receive advice. They'll 5 be -- receive direction on -- on the investigative -- on 6 the investigative procedure at the scene. 7 And in addition to that, we have an 8 internal policy within the Homicide Squad in Toronto, 9 sort of like a check and balance procedure, where myself, 10 or Detective Sergeant Giroux, will also be contacted by 11 the on-call team, and that case will be reviewed by 12 ourselves, so. 13 MR. MARK SANDLER: Okay. Well, lets -- 14 lets break that down a little bit, and -- and we're going 15 to talk about Toronto, given the expertise -- given your 16 expertise, though Mr. Ayre is going to give us a -- a 17 perspective that isn't Toronto-centric, and we're going 18 to have another panel that addresses some of the issues 19 in -- in the smaller communities, both in the north and 20 otherwise. 21 But just coming back -- just breaking down 22 what you've said for a moment. The only information the 23 911 call is that my baby has suddenly died in its crib. 24 Is that a suspicious death, to -- to 25 trigger some of the things that you've been talking
1571 about? I -- I'll ask Detective Sergeant Buck. 2 MR. DETECTIVE CHRIS BUCK: It's -- it's 3 the death of a child under five (5); the mother is 4 reporting that the child has suddenly died, the mechanics 5 of that death would not be immediately know at the time. 6 And I -- I believe that the detectives would contact our 7 office, as a child under five (5) has died, and take some 8 direction from us. 9 MR. MARK SANDLER: Okay. So the 10 protocol, and -- and as you say, the -- the written word 11 that's been contained here doesn't accurately represent 12 the -- the practice, and I gather there's some amendment 13 that's going to take place that -- that's in process to 14 -- to the protocol. 15 But can you explain to the Commissioner 16 why the Homicide Squad would not attend in each -- every 17 one (1) of the cases that involved the sudden death of a 18 child. And -- and the reason I ask you the question, 19 just to put it out there, is because we know that in the 20 English practice, that may be different. 21 So why not? 22 MR. CHRIS BUCK: We attend -- we attend 23 cases on an individual basis. The number of cases is 24 quite high, and we're always contacted in regards to any 25 death of a child under five (5) -- a sudden unexpected
1581 death of a child under five (5). 2 We don't attend all the scenes, because 3 there's -- there's a -- a process of giving the officers 4 on the scene some advice, some direction, and it may very 5 well turn out that within an hour, there is an 6 explanation as to what's caused this child's death, or 7 there's -- there's a need for us to attend, or -- or not 8 to attend. 9 Each -- each case is taken on its 10 individual merit. There's a lot of different information 11 that comes out after the initial 911 call, and I think 12 the -- the on-call person who's dealing with the officers 13 on the scene in concert with either Gary or myself, would 14 make that determination as to whether a team needs to go 15 out at that time, or to monitor it for the next hour or 16 so. But it's -- it's an individual case issue. 17 MR. MARK SANDLER: Okay. And Dr. 18 Lauwers, I think you've got some numbers that explain why 19 the homicide squad wouldn't necessarily attend at every 20 scene? 21 DR. ALBERT LAUDERS: Right. In 2005, 22 there were two hundred and thirty three (233) deaths of 23 children under five (5) years of age, and of that two 24 hundred and thirty three (233), seven (7) of them turned 25 out to be homicides.
1591 MR. MARK SANDLER: All right. So 2 continuing on this discussion for a moment, a couple of 3 questions arise out of that, and I'm focussing on our 4 officers for the time being, and then I'll turn to the 5 other panellists in -- in a moment. 6 We actually have heard from officers from 7 a number of police forces who have testified earlier at 8 this inquiry, and one (1) of the things that the 9 Commissioner was told by Sergeant Keetch if I remember -- 10 Inspector Keetch if I remember correctly, from the 11 Sudbury Police Service, is that -- is that it would be 12 desirable to know that there's a place that an officer 13 can call to get expertise in pediatric death 14 investigation cases, because in many jurisdictions, they 15 have none, or virtually none of these cases, and they 16 would welcome some sort of formalized process that -- 17 that they know who they can pick up the phone, and -- and 18 call. 19 Any ideas as to how that might be 20 affected, and who they might turn to? I'll turn to 21 Detective Sergeant Giroux, first. 22 MR. GARY GIROUX: I know we spoke about 23 this earlier, and I think the suggestion would be that a 24 memorandum of understanding between the various Chiefs of 25 Police within the Province of Ontario could be
1601 facilitated quite easily. 2 As a matter of fact, Chief Blair, our 3 chief, is the president of that association and he could 4 put something before the Committee that identified a half 5 a dozen officers in the Province that were go-to 6 investigators that could be called twenty-four (24) hours 7 a day with regards to some direction on a difficult case. 8 MR. MARK SANDLER: And if I'm right, if 9 we were trying to form -- if we were trying to create 10 some sort of a list, a good place to start might very 11 well be those officers who have been assigned to the 12 Paediatric Death Review Committee and the Under Five 13 Committee who are dealing on a regular basis with 14 pediatric death cases. Am -- 15 MR. GARY GIROUX: Yes. 16 MR. MARK SANDLER: -- I right? 17 MR. GARY GIROUX: Yes, absolutely. And 18 Chris and just spoke just briefly on the way down and 19 we'd be pleased to par -- participate in that, as well. 20 MR. MARK SANDLER: All right, well, I'll 21 ask you one (1) more followup question in that regard. 22 Do police from other police forces ever 23 get on the phone and call the Toronto Police Service to - 24 - to acquire expertise or -- or on pediatric death cases? 25 Or what is the extent of your interrelationship with
1611 other police services in that respect? 2 Either of you can answer. 3 MR. CHRIS BUCK: I -- I haven't -- I 4 haven't had that opportunity on a -- on a regular basis. 5 It's sporadic. 6 MR. MARK SANDLER: All right. 7 MR. CHRIS BUCK: Because I think 8 traditionally most police services will -- will call 9 within their own rank and file or -- or seek out -- seek 10 out advice of -- of people they're familiar with. 11 MR. MARK SANDLER: All right. 12 COMMISSIONER STEPHEN GOUDGE: Sergeant 13 Buck, how long you been -- both of you been doing the 14 death under five (5) work? That is do you rotate through 15 this? 16 What I'm getting at is how long this 17 information bank stays in place. 18 MR. GARY GIROUX: I guess we've been in 19 place for over two (2) years, consistently. 20 COMMISSIONER STEPHEN GOUDGE: And do you 21 understand that you've got a term that serve and then 22 you'll rotate into something else? Or is this a 23 specialty that remains with you for some considerable 24 period of time? 25 MR. GARY GIROUX: My -- my understanding,
1621 sir, is that they want to increase our expertise in this 2 field and we're part of the Committee, as long as Dr. 3 Lauwers wants us there, and -- and in doing so -- 4 COMMISSIONER STEPHEN GOUDGE: Right. 5 MR. GARY GIROUX: -- the internal policy 6 lends itself to our -- adding to our expertise by hearing 7 about the deaths of children within the community over 8 and over again, and in doing so we can impart that as we 9 need to. 10 COMMISSIONER STEPHEN GOUDGE: I mean, it 11 makes a lot of sense, intuitively, that you would bank 12 this expertise and stay with it and it then becomes 13 available as a resource to other forces around the 14 Province. 15 MR. GARY GIROUX: I agree. 16 COMMISSIONER STEPHEN GOUDGE: I just 17 wondered if that was the anticipation that you both have. 18 MR. GARY GIROUX: I think the short 19 answer is there's no end in sight as far as our 20 participation in the Committee. 21 COMMISSIONER STEPHEN GOUDGE: Right. 22 23 CONTINUED BY MR. MARK SANDLER: 24 MR. MARK SANDLER: Dr. Lauwers, how long 25 do you want Gary and Chris on your committees?
1631 DR. ALBERT LAUWERS: I think by what they 2 consume at dinnertime. 3 Actually, we would like to propagate 4 having the officers on the -- the test members of the 5 committees for as long as possible and is reasonable. We 6 do have terms of reference, though, and we have 7 guidelines with regards to re -- review of that 8 membership from time to time, to make sure we do get 9 fresh blood on the Committee. 10 MR. MARK SANDLER: Now -- now one (1) of 11 the interesting aspects of -- of your work, Officers, 12 that one should elaborate upon is the fact that even 13 though people apparently at present aren't picking up the 14 phone and calling you or calling the Toronto Police 15 Service to get advice on the pediatric death cases that 16 they're doing in their jurisdictions, you're calling them 17 as part of your function on the committees, are you not? 18 DR. ALBERT LAUWERS: Yes, we are. 19 MR. MARK SANDLER: Could you explain to 20 the Commissioner how that arises, because that may feed 21 into some of the oversight issues that will be addressed 22 in the next few days? 23 MR. GARY GIROUX: I can indicate that as 24 a result of the Death Under Five Committee we're assigned 25 a certain amount of files, prior to the -- the next
1641 scheduled meeting. 2 Say, for example, I'll be giving five (5) 3 different files in relation to the deaths of five (5) 4 different children, and I always contact the investigator 5 in charge of that particular file and ask him if he had 6 any concerns with regards to the file that he 7 investigated; did they consult a Crown attorney with 8 regards to the possibility of any charges; was there 9 anything that they felt was left undone; that this file 10 is going to be spoken about at the Committee in the near 11 future; and I'll call them back with regards to the 12 results of that Committee's hearing. And -- 13 COMMISSIONER STEPHEN GOUDGE: And a 14 standard list of questions, Sergeant Giroux, or I mean is 15 this a checklist? It sounds like you've got a mental 16 checklist that you go through with each file. 17 MR. GARY GIROUX: I think it's my own 18 based on the file. 19 COMMISSIONER STEPHEN GOUDGE: Right. 20 MR. GARY GIROUX: There's some of them -- 21 as I -- as I said earlier this afternoon, some of them 22 just read poorly, they read suspiciously, and I had -- 23 have concerns and as a result of them I'll phone them. 24 And traditionally those concerns are -- have been 25 investigated and then followed up.
1651 And the bottom line is: Have you 2 consulted a Crown attorney with regards to running this 3 case by them with regards to the possibility of any 4 criminal -- 5 COMMISSIONER STEPHEN GOUDGE: Right. 6 MR. GARY GIROUX: -- criminal charges? 7 COMMISSIONER STEPHEN GOUDGE: Right. 8 9 CONTINUED BY MR. MARK SANDLER: 10 MR. MARK SANDLER: Okay. Now, Mr. Ayer, 11 in Toronto I suspect that -- without giving evidence 12 myself, that Crown counsel would not be involved in the 13 ordinary course at this stage of the investigation. 14 Would that be the case in your 15 jurisdiction? 16 MR. JOHN AYRE: No, not necessarily. 17 It's a smaller jurisdiction; there's myself and two (2) 18 Assistant Crowns. And as soon as the police, they 19 perceive that they're investigating a suspicious death, a 20 potential homicide, they would tend to call me fairly 21 early just to give me a head's up. And the reason they 22 would do that is in case they need my assistance with 23 respect to a search warrant, a consent intercept, a non- 24 consent intercept, that sort of thing. 25 So we have the -- the luxury of being able
1661 to communicate quickly, readily; my office is close to 2 where they work. So we would have that kind of 3 communication fairly early on. I'd be aware that there's 4 something out there. 5 MR. MARK SANDLER: Okay. Now, we're 6 going to come back to the role of the Crown in a -- in a 7 very few moments, but let's deal with -- with 8 chronologically, one (1) of the other aspects that might 9 occur here. 10 We -- the coroner has arrived on-scene and 11 -- and an autopsy is going to be ordered for these kinds 12 of cases. No doubt about that, Dr. Lauwers, from -- 13 DR. ALBERT LAUWERS: None. 14 MR. MARK SANDLER: -- what we've heard? 15 All right. 16 So tell me about the collection of 17 records. Because one (1) of the things that we've heard 18 at this Inquiry is a certain unevenness in practice as to 19 what records where collected prior to the conduct of the 20 autopsy; who collected the records; and whether they made 21 their way to the pathologist before the actual 22 performance of the autopsy. 23 So, Dr. Lauwers, what would you like to 24 see happen and what does happen in -- in Toronto? 25 DR. ALBERT LAUWERS: Well, an integral
1671 part of the autopsy is that the pathologists have the 2 ability to review the medical record of the decedent 3 prior to the autopsy beginning, and so we try to 4 facilitate that as much as possible. 5 And we'll do that by -- if the coroner at 6 the scene has not issued the warrant -- and often the 7 coroner at the scene will also issue a warrant for the -- 8 for blood if the child has ever arrived in the hospital, 9 if there's some available, and the medical record if 10 there's one (1) available. 11 If that hasn't occurred, during our 12 morning rounds at the -- at the -- typically at the -- 13 the pathology unit, typically what will happen is we'll 14 determine what it is we need to have and we will warrant 15 those issues -- or warrant those particular items and fax 16 a copy to the -- the appropriate hospital. 17 Now, it's a little different in terms of 18 pediatric cases because as you know, the homicides will 19 typically come to the -- our office, whereas the -- the - 20 - by far the majority of deaths of children will go to 21 the Hospital for Sick Children. And in that case, 22 usually, I would assume, unless there's a medical record 23 at the Hospital for Sick Children, that record will not 24 arrive prior to the autopsy taking place. We will be 25 warranting it and obtaining it.
1681 MR. MARK SANDLER: All right. So when 2 we're talking about medical records, first of all we're 3 talking about hospital records -- 4 DR. ALBERT LAUWERS: Hospital records. 5 MR. MARK SANDLER: -- if the hospital's 6 been engaged. We're talking about family physician 7 records, I take it? 8 DR. ALBERT LAUWERS: We are. 9 MR. MARK SANDLER: What other records 10 might we be talking about? 11 DR. ALBERT LAUWERS: Well, generally 12 speaking, when I was an investigator I wanted to know a 13 little bit about what was happening with regard to the 14 death from the Children's Aid Society. And that might be 15 my requesting the police make that inquiry or doing it 16 myself as the investigating coroner. 17 MR. MARK SANDLER: All right. So I'll 18 look to the officers for a moment and say, in the ideal 19 world it would appear -- and I'm going to ask Dr. Ranson 20 about this in a moment. But in the ideal world, the 21 forensic pathologist should have available to him or her 22 at the outset of the autopsy, in addition to whatever 23 else the police are bringing -- bringing to the process: 24 family physician records if relevant; hospital records if 25 relevant; perhaps even Children's Aid Records if
1691 relevant. And we'll kind of come back to that, because 2 it raises other issues. 3 Do they get all those records in Toronto 4 prior to the autopsy commencing? Is the practice 5 uniform, uneven? What can you say about it? 6 MR. CHRIS BUCK: I think timing is going 7 to be an issue as well -- day of the week, where the 8 records are available -- and if the institutions and the 9 doctor, say the GPs, if their names are known immediately 10 to the -- to the coroner for him to warrant them for us, 11 or for the pathologist. 12 Ideally these records would be very 13 beneficial to have prior to the autopsy being conducted, 14 so that there's -- any background medical issues are 15 known; any other contact that the child has had with a -- 16 a medical practitioner, whether it's in an emergency ward 17 or at the family doctor. 18 But I don't think it's something that you 19 can 100 percent guarantee you're going to be able to 20 obtain in its entirety before the autopsy is -- is 21 performed. 22 MR. MARK SANDLER: Dr. Ranson, what are 23 your views on -- on proceeding to lift the scalpel before 24 you've got all of the records that we've described? 25 DR. DAVID RANSON: I think I'm be
1701 reluctant these days. I think we've seen quite a few 2 changes in sort of epidemiology in relation to child 3 death, and that's perhaps worth sort of raising. The 4 incidence of Sudden Infant Death Syndrome type cases has 5 probably decreased significantly. And as a consequence 6 the -- the range of cases involving potential 7 suspiciousness amongst infant deaths has probably -- has 8 probably risen as a consequence of that. 9 And certainly our experience is that we 10 have changed a range of practices in association with the 11 police and the coroner as forensic pathologists all over 12 the last few years, and that's included very similar 13 arrangements to -- that have been described here; that 14 is uniformed detectives attending and making contact with 15 the Homicide Squad in all such infant deaths to obtain 16 advice and guidance on proceeding and -- and get an 17 initial evaluation from experienced investigators. 18 Now that process means that we've upped 19 quite a lot of the sort of standards that we apply in 20 terms of getting information before an autopsy. I would 21 want all of those records and I would want to make sure 22 that I have, you know, a whole body X-ray screens -- my 23 body's -- the CT scan. I want those reported at least 24 verbally to me by a pediatric radiologist before I start 25 that autopsy.
1711 Now, I'm not suggesting that that would 2 happen every single time. There will be some situations 3 where, for example, a delay in records obtained was a 4 practical -- it would occur simply because it was 5 impractical to get them there at a particular way, and 6 there'll be some situations where if you were to delay 7 the autopsy until you had everything there, you might 8 lose important evidence from the autopsy because of a 9 substantial delay. 10 But I think that the -- the importance 11 here is to look at the autopsy in terms of you would any 12 medical examination. You need the history. And you need 13 that history in two (2) factors. One (1) is, the history 14 you're presented with, that is your given, and the 15 history which you as a physician, seek out from the 16 people who hold that information. 17 So there's two (2) types of medical 18 history, and if you like, what you're presented with and 19 the type -- and then what you actually interrogate to 20 obtain further details. 21 MR. MARK SANDLER: Okay. Well -- 22 DR. DAVID RANSON: And that's no 23 different from a physician referring a patient to a 24 specialist, and the same sort of things would apply. 25 MR. MARK SANDLER: Okay.
1721 COMMISSIONER STEPHEN GOUDGE: Do you get 2 your medical records through coroner's warrant? 3 DR. DAVID RANSON: We -- we do in some 4 situations and sometime via the police directly. It 5 varies a little bit. There are some legal factors with 6 regard to evidence obtained by the coroner and the 7 criminal justice process in Victoria, which do change 8 things slightly. 9 And as a result we can -- we may get 10 records through both mechanisms simultaneously. 11 DR. ALBERT LAUWERS: And -- 12 13 CONTINUED BY MR. MARK SANDLER: 14 MR. MARK SANDLER: All right. That's a 15 function in part -- in -- in one (1) second Dr. Lauwers. 16 That's a function in part of the fact that your 17 legislative regime provides that documents obtained 18 through coroner's warrant are not admissible in a 19 criminal proceeding? 20 DR. DAVID RANSON: In part, yes. 21 MR. MARK SANDLER: All right. Dr. 22 Lauwers...? 23 DR. ALBERT LAUWERS: I was just going to 24 comment, just going back to the Death Under Five form, 25 properly completed that should actually go with the
1731 warrant to the pathologist ahead of time. And it 2 contains extensive information if one is actually able to 3 interview the parents with regard to the past health of 4 the child, including such issues as whether there's been 5 a family history where there's been a history of 6 involvement with the CAS. 7 MR. MARK SANDLER: And this is the form 8 that's to be prepared by...? 9 DR. ALBERT LAUWERS: By the coroner. 10 MR. MARK SANDLER: Okay. So lets move 11 ahead to -- to the autopsy, if we may. Police officers 12 attend at the autopsy and they communicate certain 13 information to the forensic pathologists; that 14 information may include arguably rumours heard about the 15 case; history that's been taken, neighbours comments 16 about what has transpired; physical evidence at the 17 scene; photographs and the like. 18 How is that captured for posterity, the 19 information that has been communicated to the forensic 20 pathologists? 21 Detective Sergeant Buck...? 22 MR. CHRIS BUCK: The information that we 23 would give to our forensic pathologists would be 24 contained certainly in our notes. It would be contained 25 in the formal interviews that have been taken from either
1741 the care givers or the neighbours or any other witnesses 2 or possible witnesses to whatever situation you're 3 looking at. And it would be a verbal -- a verbal 4 conversation with the forensic pathologist and this is -- 5 this information would be imparted to him or her, prior 6 to the autopsy. 7 Our practice certainly is to also have our 8 forensics officers attend with us; digital photographs 9 have been taken -- if they have been taken, and a laptop 10 be provided so that the pathologist can have a look at 11 the scene of where this situation occurred. 12 And I mean, the -- the best case scenario 13 is that your forensic pathologist has come out to your 14 scene and got firsthand knowledge and -- and merely is a 15 recap of what we've done in between the -- the 16 pathologist coming to the scene, him or her going back to 17 his office, we've continued with our investigation and 18 now we're together again at the autopsy. 19 MR. MARK SANDLER: Now, I'm going to come 20 to the forensic pathologist at the scene in a moment, but 21 let's just unpack what you said for a moment and I'll -- 22 I'll direct it to Detective Sergeant Giroux, who -- and 23 you should feel -- the two (2) of you bring different 24 experiences as well as common experiences, so if you want 25 to comment on anything that your fellow officer has said,
1751 please do, but -- 2 MR. CHRIS BUCK: Absolutely. 3 MR. MARK SANDLER: Detectives -- as long 4 as you don't contradict him, that's -- that was the -- 5 that was the look that you got.. 6 MR. CHRIS BUCK: Yeah, you can count on 7 that, yeah. 8 MR. MARK SANDLER: So -- so Detective 9 Sergeant Giroux, here -- here's where we go from there. 10 Detective Sergeant Buck has said, All right, well, you 11 know, you've accumulated a certain amount of information 12 and you're bringing it to the forensic pathologist and 13 you -- then you're com -- then you're taking that 14 information, whether it's in notebooks, or a synopsis, or 15 what have you, and -- and you're communicating it 16 verbally to the forensic pathologist. 17 One (1) of the issues that has come up 18 here, and it's not unique to this Inquiry, is how 19 transparent that process is. In other words, how can you 20 later recapture precisely what it is that the forensic 21 pathologist actually had at the time that he or she 22 conducted the autopsy and -- and formed the opinion? 23 Is -- is there some better way than -- 24 than currently exists for reducing what is communicated 25 to the forensic pathologist in writing?
1761 MR. GARY GIROUX: Is there a way or is 2 that -- is that a possibility -- 3 MR. MARK SANDLER: Yeah. 4 MR. GARY GIROUX: -- absolutely. And I - 5 - and I indicated that I have no problem with giving the 6 pathologist a brief written, typewritten summary of a 7 thumbnail of the investigation to date with regards to 8 the investigation which I would describe is in its very 9 early stages. 10 COMMISSIONER STEPHEN GOUDGE: Sergeant 11 Giroux, I took from my -- I've forgotten which one of you 12 said this; that what you do is to read from the notes 13 you've made as you've interviewed the family and as 14 you've examined the scene yourself, as opposed to making 15 notes thereafter about what you told the pathologist. 16 Is that right, do you make notes of what 17 you told the pathologist? 18 MR. GARY GIROUX: My -- my practice is 19 that I would recount the investigation to date to the 20 pathologist from my notes, but not -- 21 COMMISSIONER STEPHEN GOUDGE: Make a 22 separate note of what you said. 23 MR. GARY GIROUX: -- regurgitate what I 24 already have. I would -- I would go from, you know, a 25 911 call to a certain address and -- and recount --
1771 COMMISSIONER STEPHEN GOUDGE: You 2 basically read your notes of the investigation to that 3 point. 4 MR. GARY GIROUX: To that point, yeah. 5 6 CONTINUED BY MR. MARK SANDLER: 7 MR. MARK SANDLER: All right. Mr. Ayre, 8 from -- from the perspective of the Crown, who later has 9 to deal with any prosecution that would arise from it, 10 what would you see making your job easier or harder in 11 that respect? 12 MR. JOHN AYRE: Speaking only from a 13 prosecution vantage point, because it's not for me to 14 tell the police how to -- to do their job or what the 15 pathologist needs, but transparency would -- would make 16 the task easier in Court in case the investigation is 17 being challenged for being too narrowly focussed or being 18 focussed on something it shouldn't have been looking at 19 at all. 20 I don't know whether it's a question of 21 being able to hand the pathologist a three (3) page 22 double spaced typed document saying, There are the 23 background facts that we rely on, Doctor. 24 If it's not in that form, then so long as 25 the notes are complete, so long as the officers can fully
1781 and fairly recount what it was the pathologist was told 2 or was not told, for -- for some reason, because it will 3 come under scrutiny -- it will come under scrutiny. 4 So we need to capture that, and if there 5 is a variance what police agencies do, then maybe there's 6 a best practice that would work for both the police and 7 the pathologist, and perhaps the Crown, as well. 8 COMMISSIONER STEPHEN GOUDGE: Would it be 9 better, Mr. Ayre, if they memorialized what they had told 10 the police -- the pathologist, even if it were simply a 11 repetition of what was in their notes? 12 MR. JOHN AYRE: Yes. 13 14 CONTINUED BY MR. MARK SANDLER: 15 MR. MARK SANDLER: And of course, that 16 could be done, for example, by saying, Read out to the 17 forensic pathologist pages 1 to 4 of our notebook, then 18 added such and such. 19 MR. JOHN AYRE: Indeed, and I -- and I 20 think the written format is the way to go. I've -- I've 21 heard it said in the course of this Inquiry, Well, what 22 about tape-recording it? I think that puts an artificial 23 pressure on the -- the interview and the contact. 24 So long as it's -- it's captured in 25 writing and can be produced in the normal course of
1791 disclosure, I think that does the trick. 2 MR. MARK SANDLER: Okay. Dr. Lauwers, 3 the issue has arisen on at least one (1) of the cases 4 that I can recall here where -- and -- and actually more 5 than one (1), where the -- where the coroner communicated 6 verbal information to the forensic pathologist and then a 7 dispute arose later as to precisely what it was that the 8 coroner communicated. 9 Can we improve in that area in your view? 10 DR. ALBERT LAUWERS: I think we can. I 11 think the two (2) things to improve that would be to have 12 the coroner write a summary of the relevant information 13 that he gave to the forensic pathologist and the forensic 14 pathologist to also have produced a summary of the 15 information that was relayed to him by the coroner. 16 MR. MARK SANDLER: All right. Dr. Ranson 17 -- sorry, I didn't want to cut you off. 18 DR. ALBERT LAUWERS: I was just going to 19 say, And the coroner should keep that in his file. 20 MR. MARK SANDLER: Okay. Dr. Ranson, 21 we're talking about transparency and what's communicated 22 to the forensic pathologist. 23 How transparent is that aspect in -- in 24 your jurisdiction? 25 DR. DAVID RANSON: Well, I suspect that
1801 the reality is there's some variation. I mean, I 2 certainly would thoroughly support most of what has been 3 said about transparency with -- with regard to 4 documenting the -- the important information that is 5 exchanged. 6 And certainly in our jurisdiction, the 7 police informant, in the matter, often a member of the 8 Homicide Squad charged with that duty, would actually be 9 filling in on the -- our case -- electronic case 10 management system, the core circumstances of the case; 11 they are informing the coroner. 12 And that is automatically available to the 13 pathologist in the autopsy room on the TV screen and that 14 works very well. 15 That, if you like, is a written 16 confirmation but however, it's fairly brief, I have to 17 say. And there is usually far more information even 18 prior to the autopsy that's probably known. 19 I suppose what I would say is that whilst 20 it's very important to -- to document these things for 21 the purpose of transparency, it is also important to 22 recognize that there's a somewhat artificial component to 23 information provided to the pathologist; that is, there's 24 initial information that you're -- you're given at the 25 point just before you start your physical examination of
1811 the child. 2 But of course, if the police are present 3 and the crime scene officer is present -- the forensic 4 officer -- and the police are proceeding with an 5 investigation at that time, new information comes up all 6 the time. And it may be halfway through your autopsy and 7 another piece of information comes in or the photographer 8 arrives having just been to the other scene and comes 9 back. 10 So in other words, there's a dynamism to 11 the information flow to the pathologist which I think is 12 very difficult to capture in that sort of one-off 13 process. 14 So I think that whilst I would thoroughly 15 support the written documentation of the principal 16 communication, I think there needs to be an understanding 17 that that would not necessarily suffice. And it may be 18 very, very difficult in practice to document with the 19 same degree of clarity and certainty the other important 20 information. 21 Now, in my reports, where I deal with the 22 preliminary matters in my autopsy report or medical 23 examination report, I will usually say, I was informed by 24 Inspector Sergeant so-and-so, the following thing -- 25 things.
1821 And I will tend to pick out the key line 2 items of the history that are relevant to me, from what 3 I've been told, and I will include those in the body of 4 my report. 5 It will depend a little bit on the 6 circumstances. If, for example, there's been a very 7 thorough information provided to the coroner on the Case 8 Management System, then I might say, See Form so-and-so, 9 provided by the police. And that will either be an 10 attachment or be available to anyone who sought it at a 11 later stage. 12 MR. MARK SANDLER: Okay. Can I turn -- 13 COMMISSIONER STEPHEN GOUDGE: Dr. Ranson, 14 would you continue to make notes about the information 15 communicated to you as the investigation moved forward 16 and you were conducting your autopsy? 17 DR. DAVID RANSON: I have to say that 18 would probably not occur for a variety of practical 19 reasons. One (1) is by the time that information is 20 coming to you, you're usually, you know -- 21 COMMISSIONER STEPHEN GOUDGE: Well into 22 it. 23 DR. DAVID RANSON: -- gowned up and 24 gloved -- 25 COMMISSIONER STEPHEN GOUDGE: Right.
1831 DR. DAVID RANSON: -- and so on, and 2 the -- 3 COMMISSIONER STEPHEN GOUDGE: Would you 4 at some later -- 5 DR. DAVID RANSON: -- capacity to do 6 that -- 7 COMMISSIONER STEPHEN GOUDGE: -- point? 8 Would you at some later point do that? 9 DR. DAVID RANSON: Certainly, there will 10 be some situations where you would. Particularly where 11 subsequently information was contacted and you were asked 12 to provide an opinion, We've now heard so-and-so, can you 13 provide an opinion. And then you'd either produce a 14 supplementary report or in your comments in your original 15 report say, On such a date I was told so-and-so by this 16 officer and in the light of that my comments are -- are 17 as follows. 18 COMMISSIONER STEPHEN GOUDGE: Would your 19 attention to that vary on -- as to whether it was 20 obviously a criminally suspicious -- 21 DR. DAVID RANSON: I think -- 22 COMMISSIONER STEPHEN GOUDGE: -- case 23 that -- 24 DR. DAVID RANSON: I think it would. In 25 practice --
1841 COMMISSIONER STEPHEN GOUDGE: -- was 2 going to go court or whether it was a case that was at 3 the moment uncertain about whether it would ever go to 4 court? 5 DR. DAVID RANSON: I'd have to say I 6 think it would, yes. 7 COMMISSIONER STEPHEN GOUDGE: I mean, 8 from Mr. Ayre's perspective, it's the cases that are 9 headed for court where this is most important from the 10 Criminal Justice System obviously. 11 DR. DAVID RANSON: Yeah, I think that's 12 true to say there will be some variation. And the 13 attention to transparency in -- if you like, put it that 14 way, would vary perhaps depending on the likelihood of 15 the case being a Criminal Justice matter. 16 COMMISSIONER STEPHEN GOUDGE: Is that 17 true of the police too, Sergeant Buck? 18 MR. CHRIS BUCK: As far as the notes back 19 and forth? 20 COMMISSIONER STEPHEN GOUDGE: Yeah. 21 MR. CHRIS BUCK: I'm just looking ahead 22 to a cross-examination of either the officer in charge or 23 of the pathologist, where we prepared something in 24 writing that this is what we've informed -- 25 COMMISSIONER STEPHEN GOUDGE: Right.
1851 MR. CHRIS BUCK: -- the pathologist. And 2 Dr. Ranson has mentioned that he may very well make notes 3 of his own, the nine (9) bullet points, of what we've 4 told him. If they don't mesh, there may be that -- 5 COMMISSIONER STEPHEN GOUDGE: Where are 6 you? 7 MR. CHRIS BUCK: -- there may be that 8 appearance of non-transparency all over again even 9 though -- 10 COMMISSIONER STEPHEN GOUDGE: Yes. 11 MR. CHRIS BUCK: -- we've tried with -- 12 with great effort to do that. Because if it's not letter 13 -- letter-perfect from both sides, it's going to give 14 that appearance that we told him fifteen (15) -- 15 COMMISSIONER STEPHEN GOUDGE: And then if 16 it's letter-perfect, somebody will say it's rehearsed. 17 MR. CHRIS BUCK: Exactly. We told -- we 18 told Dr. Ranson fifteen (15) points, and he's made a note 19 of nine (9) points so it's a difficult -- 20 COMMISSIONER STEPHEN GOUDGE: Yes, that's 21 right. 22 DR. DAVID RANSON: And I -- I accept 23 that. That is a difficulty. And I -- I should say and 24 as I was trying to say before, the -- the issue of 25 transparency is something that, as a forensic
1861 pathologist, you are in -- you are trying to achieve but 2 there are a variety of obstacles that some of them are 3 simply physical and practical obstacles. 4 And some of them are the exigencies of 5 working at 2:00 in the morning, perhaps, in a situation 6 where your recall of what happened at 3:00 in the morning 7 halfway through an autopsy is not going to be as good six 8 (6) months later. 9 COMMISSIONER STEPHEN GOUDGE: Right. 10 11 CONTINUED MR. MARK SANDLER: 12 MR. MARK SANDLER: Okay. Moving from 13 there, we're talking about how to record the information 14 that's communicated to the forensic pathologist, and I 15 want to speak to you for a moment -- question you about 16 the content of the information that's communicated to the 17 forensic pathologist. 18 Concerns have been expressed that -- that 19 the communication of some kinds of information might 20 colour the forensic pathologist's opinion on the case. 21 So, for example, evidence that the police 22 have or suspicions that the police have of prior abuse on 23 the part of the caregiver or -- or the fact that the 24 caregiver confessed might, in effect, predetermine the 25 results from the forensic pathologist's perspective.
1871 I'll ask the officers first. I'll start 2 with Detective Sergeant Giroux. 3 Do you ever filter any of the information 4 that you give to the forensic pathologists or, in your 5 view, should the forensic pathologists get it all? And 6 should it be the forensic pathologist that should filter 7 out relevant and irrelevant information? 8 MR. GARY GIROUX: My -- my opinion and my 9 practice is that I give the forensic pathologist the 10 entirety of the investigation and -- and place my 11 confidence in him that he is filtering the information to 12 take what from it he needs to form his opinion at the end 13 of the day with what he finds at the time of autopsy. 14 MR. MARK SANDLER: Okay. And, Dr. 15 Ranson, what do you think about the non-filtered 16 accumulation of information in the hands of a forensic 17 pathologist? 18 DR. DAVID RANSON: Okay. I think in the 19 hands of a professional forensic pathologist, there is no 20 problem with that. The difficulty, of course, is what if 21 it is not a person who is, you know, sufficiently 22 forensically skilled to look at those issues in that 23 particular way, and to understand the significance 24 between the direct evidence that is there, and the 25 indirect evidence that may or may not be admissible in
1881 the process. 2 You know, if you're looking at what is the 3 difference between a pathologist and a forensic 4 pathologist, an understanding of basic evidentiary 5 matters is a critical component. And that's what I would 6 expect a forensic pathologist to be able to do. 7 Whether, in fact, they have done that is 8 going to be a matter which, in a Criminal Justice 9 process, should be dissected out by the appropriate 10 counsel at trial. 11 MR. MARK SANDLER: So your answer would 12 be, don't filter out the information, make it as 13 transparent as possible and -- and ensure that, through 14 the training and accreditation and education process, 15 forensic pathologists understand what their role truly is 16 in assessing this information? 17 DR. DAVID RANSON: Yes, and I -- I'll 18 just go one (1) stage further than that and say, I think 19 it would be very important that the trial lawyers also 20 were aware of -- of their role in dissecting that process 21 out to ensure that transparency because if they fail to 22 do so, then we may be left with problems later on. 23 MR. MARK SANDLER: All right. 24 Mr. Ayre, I know you're alive to all of 25 the issues that can arise through the providing of
1891 unfiltered information to the forensic pathologists; some 2 of which may be speculation, innuendo, inadmissible 3 evidence ultimately. 4 Does it affect what -- what your wish list 5 would be as to how this -- how and to what extent this 6 information is communicated to the forensic pathologist? 7 MR. JOHN AYRE: I have a bit of a -- it's 8 the Canadian approach, the compromise. I have a bit of a 9 hybrid model. I agree with what Dr. Ranson says. I 10 think so long as it's fully captured -- I almost adopt a 11 Stinchcombe model that the police should provide 12 everything to the pathologist except that which is 13 clearly irrelevant. 14 And you can imagine the circumstance, for 15 instance, where if -- if reference was ever made to a 16 single parent on welfare with a drug addiction, you'd be 17 saying, Well, how does the fact they're a single parent 18 or most certainly, the fact they're on welfare have any 19 relevancy at all? 20 The fact of the drug addiction, well, it 21 may if it's a question of the child ingesting the 22 parent's drugs or a question of mistreatment. 23 I think that issue has to be left to the 24 expertise of the pathologist and the police. If it's 25 clearly irrelevant, it's clearly irrelevant. Whatever
1901 they do give should be captured and if it has to be 2 defended why they told the pathologist that, then they 3 have to defend it. 4 MR. MARK SANDLER: All right. 5 DR. DAVID RANSON: The question then of 6 course, is what is truly irrelevant? 7 COMMISSIONER STEPHEN GOUDGE: Who makes 8 that call? 9 DR. DAVID RANSON: And who makes that 10 decision, that's right. And I suppose as a pathologist, 11 I'd be concerned that information which a police officer 12 thought was irrelevant may, in fact, from my knowledge- 13 base turn out and prove to be relevant. 14 I'm not sure about the issues of welfare. 15 But a single parent may well have some relevance to 16 issues about timing; who might otherwise have care of a 17 child at a particular point in time. The likelihood of 18 that being the case whether there's a regular partner in 19 the pro -- these might be matters that actually do affect 20 the thinking process. 21 22 CONTINUED BY MR. MARK SANDLER: 23 MR. MARK SANDLER: Okay. 24 COMMISSIONER STEPHEN GOUDGE: What would 25 you say to that Mr. Ayre?
1911 MR. JOHN AYRE: I think if it is 2 subjective, that which is clearly irrelevant, is 3 something the Crowns have to struggle with all the time 4 in terms of making disclosure. I know -- 5 COMMISSIONER STEPHEN GOUDGE: Yes. Who 6 makes the call in the dialogue between the police and the 7 pathologist? 8 MR. JOHN AYRE: Well, we know, in fact, 9 it's going to be the police because if they don't give it 10 to -- to the doctor they've done -- 11 COMMISSIONER STEPHEN GOUDGE: Yes, who 12 should it be? 13 MR. JOHN AYRE: -- some -- 14 COMMISSIONER STEPHEN GOUDGE: You are too 15 tough to cross-examine, Mr. Ayre. Who should make that 16 call? 17 MR. JOHN AYRE: Who should make the call? 18 I think this is an investigatory function. Its actual 19 relevance in the cause of death is going to be the 20 pathologist. If it has any scientific merit, interest, 21 legitimacy, it's going to be the pathologist. 22 23 CONTINUED BY MR. MARK SANDLER: 24 MR. MARK SANDLER: So -- so what I -- 25 what I hear you saying is that police may well error on
1921 the side of inclusion if they're not certain whether or 2 not the information will be of assistance to the forensic 3 pathologist, but with some training and expertise and 4 experience on the part of the officers, they should be 5 able to weed out clearly irrelevant material? 6 MR. JOHN AYRE: I'll adopt that answer. 7 8 (BRIEF PAUSE) 9 10 MR. MARK SANDLER: Thank you. Well, 11 let's move from there for a moment. Let's go to the end 12 of the autopsy. And at the end of the autopsy, the 13 forensic pathologist completes his or her examination and 14 then speaks to the police officers. 15 And the question arises: What should the 16 forensic pathologist be saying to the police at that 17 stage and whether what they're saying to the police 18 should be captured in writing. 19 So, Dr. Ranson, I'll start with you. 20 DR. DAVID RANSON: Okay. Again, I think 21 it's important not to totally compartmentalize this in 22 the sense there will be a variety of communications that 23 may well take place between the pathologist and the 24 police officer during the course of the various 25 examinations that are taking place.
1931 But it's certainly my practice, at the end 2 of the process, to have a slightly more formal get- 3 together with the investigating officers and -- and 4 communicate and answer their -- any further questions 5 they may have. 6 I'm not sure that there's a universality 7 to how well that is done, even in my organization, in 8 terms of documenting that or the content of it. 9 My experience of that has been that the 10 police -- investigating police -- pretty well take down 11 verbatim the elements of the communication that you give. 12 And they will often show me their notes 13 and they will say, Have I got that right? Or if they've 14 drawn a diagram of something they'll say, Is that -- is 15 that good? 16 And there will be occasions where I will 17 draw a diagram for them and -- and give them a copy and 18 keep a copy in my notes and so on. 19 It hasn't been my practice to directly 20 record that communication, that point. I'm aware that it 21 has been recorded, and it hasn't been my practice to keep 22 a personal set of that. 23 There have been occasions, however, where 24 the police have given me a copy or photocopy of their 25 notes at that point and so on.
1941 I suspect that's something we could 2 improve, to be honest, and something that I think 3 probably should be done. 4 MR. MARK SANDLER: So just -- so -- I'm 5 sorry. So just to stop there for a moment. 6 The -- the systemic issue that gives rise 7 to my questions obviously is that -- that there's concern 8 that when the forensic pathologist communicates his or 9 her opinion at the end of autopsy verbally, it may be 10 misunderstood or over-interpreted by the police. 11 So first I'll ask Dr. Lauwers. We had 12 some discussion with Dr. McLellan when he was here about 13 preliminary reports and the desirability or non- 14 desirability of preliminary reports. 15 What do you say about that, and what do 16 you say about the current practice? 17 DR. ALBERT LAUWERS: Well, my 18 understanding of the current practice in our organization 19 is that the pathologist writes the cause of death on a 20 morgue death sheet, provides it verbally to the police 21 and provides it verbally to the coroner, as well. 22 But it becomes a part of our record and if 23 -- if, for instance, I weren't in a position to receive 24 that information, I could go later on in the day and just 25 look at the morgue death sheet and have that information.
1951 My -- my understanding, though, is nothing 2 is given in writing at that time. 3 MR. MARK SANDLER: All right, and should 4 it be given in writing? 5 DR. ALBERT LAUWERS: Well, I think that's 6 a question directed best to the pathologist, but I do 7 think there would be some advantages to that. 8 MR. MARK SANDLER: All right. 9 COMMISSIONER STEPHEN GOUDGE: There's a 10 transparency advantage, at the least, isn't there, Dr. 11 Lauwers? 12 DR. ALBERT LAUWERS: There -- there 13 certainly is. 14 DR. DAVID RANSON: Could I just say that 15 the issue, in terms of cause of death, if there's a clear 16 cause of death we would get -- also record that directly 17 into the case management system and that would available 18 to the coroner, to police, to any of the relevant staff 19 carrying out further examination, specimens, and tests -- 20 MR. MARK SANDLER: So just -- we'll stop 21 there for a moment because I -- I want the Commissioner 22 to understand your case management system and where that 23 goes and who accesses it. 24 DR. DAVID RANSON: Yes, the case 25 management system is a -- is a generic, if you like,
1961 computer database that exists throughout the organization 2 and also has direct feeds into the coroner's case 3 management system, as well. So the coroner's staff put 4 information into that that informs the pathologist. The 5 pathologists put information into that that informs the 6 coroner's staff. 7 We do have facilities in that system to 8 put in notes and comments so if we're retaining some 9 tissue, or whatever, or if we've contacted a family 10 member, or we've contacted particular police on an issue, 11 we can add notes to that in the system and we do do so. 12 And that is a secure system and the 13 systems are -- you know, their entries are locked and 14 sealed so that people can't later go and delete them and 15 -- and that sort of process, so it's been designed with a 16 forensic science type case management and case -- and 17 information control built into it. 18 MR. MARK SANDLER: And two (2) questions 19 arising out of that. The first is, do the police have 20 access to what's there, and second of all, is that 21 discloseable material in your criminal process? 22 DR. DAVID RANSON: It would certainly be 23 discloseable material. The police wouldn't have direct 24 access to it, but they could contact the relevant officer 25 in the Coroner's Office or in the institute to gain
1971 access to material that they were entitled to. 2 MR. MARK SANDLER: All right. 3 COMMISSIONER STEPHEN GOUDGE: And would 4 you record in that, Dr. Ranson, your preliminary 5 conclusion at the end of the autopsy? 6 DR. DAVID RANSON: I would certainly 7 record the -- if I was aware of the -- I had formed a 8 conclusion as the cause of death, that would be entered 9 pretty well straight away or within -- within a day or so 10 of the autopsies and -- 11 COMMISSIONER STEPHEN GOUDGE: And if you 12 had to await further tests who would -- 13 DR. DAVID RANSON: I would be putting in 14 pending the tests, what they are, that will be in the 15 cause of death field, and -- and there will be certain 16 situations where I might even add the word, you know, 17 "probable; this condition pending certain tests". 18 Certainly in a natural disease case where 19 I was suspicious that that was the cause of death I would 20 try to add that information in. That, again, will be 21 recorded and logged, and if it was subsequently changed, 22 that change would also be logged and timed and dated. 23 24 CONTINUED BY MR. MARK SANDLER: 25 MR. MARK SANDLER: So just to be clear,
1981 because we could use preliminary report in two (2) 2 different senses. We could use preliminary report to 3 mean a report pending further ancillary testing that 4 might affect cause of death. 5 And what I hear you saying is that in 6 those instances what the police should be advised is that 7 cause of death is pending, and that's the advice that's 8 to be given. 9 DR. DAVID RANSON: Yes, but of course, 10 the pathologist is not just providing information about 11 cause of death. That is one (1) aspect of the medical 12 examination. You're providing a wide range of 13 information about other factors. 14 There may be a scenario and you're asked 15 to confirm or deny, and you may be able to confirm or 16 deny a scenario even though you don't yet have the cause 17 of death. 18 MR. MARK SANDLER: Right. 19 DR. DAVID RANSON: There may be a 20 scenario later to an explanation for a particular injury 21 or a particular mark. 22 So I think it's important that we don't 23 get focussed solely on the cause of death because, in 24 fact, forensic pathologists provide a wide range of 25 information that may assist the investigation from -- by
1991 the coroner's perspective or the police's perspective. 2 MR. MARK SANDLER: And -- and your point 3 is well taken. I -- I -- what I was -- what I was going 4 to suggest, though, is that when we're talking about 5 preliminary reports in this context, what we're really 6 talking about is a situation where you can say something 7 definitive to the police, but the more lengthy fulsome 8 report of post-mortem examination may not be available 9 for some point down the road. 10 DR. DAVID RANSON: Oh, yes, that would 11 certainly be the case. And there are situations where 12 sometimes the pattern of injuries is quite complex, and I 13 will be worried that the police officers would not have 14 necessarily been able to record at the time the same sort 15 of information that I have been able to record about; you 16 know, eight-seven (87) different bruises or whatever on - 17 - on a person. 18 So I may well say to them at the -- the 19 end, If you'd like to come back tomorrow I'll give you 20 the summary of my injuries, which is the -- a component 21 of my final report, as -- as I draw a summary of those 22 things. 23 Now, that is a disposable document if they 24 wish -- if anyone wishes -- 25 MR. MARK SANDLER: Okay.
2001 DR. DAVID RANSON: -- to do so. 2 COMMISSIONER STEPHEN GOUDGE: If you had 3 suspicions, Dr. Ranson, but awaited confirmation, would 4 you tell the police if the suspicions were important for 5 the investigation? 6 DR. DAVID RANSON: Absolutely, and that's 7 the whole purpose of that discussion at the end of the 8 autopsy. We are saying, Well, this is where I am at now. 9 10 CONTINUED BY MR. MARK SANDLER: 11 MR. MARK SANDLER: So that leads very 12 naturally to the questions I'm about to direct to 13 Detective Sergeant Buck and Giroux. The autopsy's been 14 completed, the forensic pathologist says to you, Cause of 15 death right now is undetermined; got some more work to do 16 on it. 17 And are you going to ask questions like: 18 Okay, we hear what you say, Doctor, but where are you 19 leaning? Is this a suspicious death? Is it possibly a 20 non-accidental death? 21 Help us out here. Are you going to be 22 asking those kinds of questions? 23 MR. CHRIS BUCK: I think you're -- 24 initially if the pathologist is giving us a cause of 25 death, a definitive cause of death, but they're not able
2011 to expand on the mechanics of death, then we have more 2 work to do. If there's a scenario, you may run a 3 scenario by the pathologist, but I don't know that's 4 appropriate. 5 I believe that the pathologist is going to 6 give you his obs -- his or her observations at the time; 7 what has been determined during the autopsy. If they're 8 able to supply you mechanics of the cause of the death 9 and the mechanics of the death, and if it's non- 10 suspicious or suspicious, they're going to indicate that. 11 But if there's something that requires a further 12 investigation on their -- on their end, then we're -- 13 we're at a stage where we need to continue to investigate 14 because we're still in the middle of the road. 15 MR. MARK SANDLER: Well, taking all that 16 -- I'm going to probe this a little bit if I may. 17 Questions get harder now. The forensic pathologist says, 18 I can't determine cause -- cause or mechanism of death, 19 but there are some suspicions that this may be a 20 smothering case. All right? 21 MR. CHRIS BUCK: We have a suspicion of a 22 smothering scenario, but we don't know the mechanics of 23 that smothering scenario, so I think we still -- we have 24 more work to do; we have people to reinterview if there 25 was -- I know we spoke before we came in that there was
2021 an explanation given by -- say, there was an explanation 2 given by one (1) of the caregivers or another person in 3 the household and this, the smothering, does not dovetail 4 with that explanation, then we have more work to do. We 5 have to go back and speak with these people again. 6 MR. MARK SANDLER: Okay. Mr. Ayre, the 7 police come to you and say, The forensic pathologist 8 tells us that he or she can't determine cause of death or 9 manner of death, but is suspicious that this is a 10 smothering case. 11 What advice are you going to give the 12 police? 13 MR. JOHN AYRE: Good work so far, keep 14 investigating. The question of suspicious -- if it's a 15 suspicious death, whether or not the reporting 16 obligation's triggered for them to the CAS is a separate 17 question. 18 MR. MARK SANDLER: And we're going to 19 talk about that. 20 MR. JOHN AYRE: Okay. But clearly that's 21 -- it's not nearly enough. 22 MR. MARK SANDLER: All right. Let's say 23 they came to you and said, The forensic pathologist said 24 to -- said to us that the pathology is consistent with 25 smothering.
2031 MR. JOHN AYRE: We know post-Kalvin 2 Report that the word "consistent with" is so vague as to 3 be almost no opinion. It's of no particular value. So I 4 think all Crowns have to be cautioned and then are 5 cautioned following the Kalvin Report that you wouldn't 6 act on that, not an opinion that was merely consistent 7 with. What is it inconsistent with is what else I need 8 to know, so keep investigating, we're not there. 9 MR. MARK SANDLER: All right. Police come 10 to you and say, The forensic pathologist said that can't 11 determine cause or mechanism of death, suspicious that 12 it's an intentional smothering, but one thing that the 13 forensic pathologist could say with confidence is that 14 the explanation that was given by the caregiver, namely, 15 a fall down several stairs, doesn't wash. 16 Then what? 17 MR. JOHN AYRE: It means that I have no 18 forensic path -- pathological evidence to prove death, 19 and the mere fact that the pathology evidence may serve 20 to demonstrate that the reporter, the person giving that 21 story, is not telling the truth, does not equate in any 22 way to proving guilt, so you're still not there; continue 23 to investigate. It doesn't equate to anything amounting 24 to a reasonable prospect of conviction. 25 MR. MARK SANDLER: All right. And I'm
2041 assuming for the purposes of our discussion that there -- 2 that there does not exist a wealth of circumstantial non- 3 pathology evidence that could be added to the mix and 4 move the case further, right? 5 MR. JOHN AYRE: So at the most I would 6 have -- in that scenario, if it ever somehow ended up in 7 court, I'd have a pathologist who would say, I don't know 8 what caused this child's death. And I would have a 9 person who potentially, should they testify, might not be 10 believed, but with the charge given to the jury in WD 11 (phonetic), the most that would mean is they're not 12 believed. 13 That doesn't equate with proving the human 14 agency; that they, in some unknown fashion, some human 15 agency were responsible for the death of this child. 16 MR. MARK SANDLER: All right. Detective 17 Sergeant Giroux, would you have this kind of dialogue 18 that I'm having with Mr. Ayre -- not with microphones and 19 cameras and the like, and a Commissioner -- but would you 20 be having this kind of dialogue with a -- with a forensic 21 pathologist? 22 I mean, what is it that your opinion 23 means? Does the explanation -- does the explanation walk 24 -- wash? How high is your level of suspicion or comfort? 25 Would you be having all those kinds of
2051 discussions with the forensic pathologist? 2 MR. GARY GIROUX: I would be. I'd be 3 having the discussions surrounding: Are -- are you 4 leaning in one (1) direction. You know, we're going to 5 go back and we're going to re-speak to the parents. 6 We're going to re-look -- re-look at the environment the 7 child was found sleeping in. And I'll get back to you 8 with the -- with the findings of that continued 9 investigation. 10 MR. MARK SANDLER: All right. Now how do 11 you deal with the recording because I could see the 12 arguments on each side of the ledger, as to the extent to 13 which you're recording this -- this kind of a dialogue 14 with -- with the forensic pathologists? 15 So -- so what's your practice? Would you 16 write down "highly suspicious but that's as high as it 17 goes", or "rejects the caregiver's explanation but 18 otherwise can't -- can't validate cause or mechanism of 19 death"? 20 Would that all make it's way into your 21 notebook? 22 MR. GARY GIROUX: Yes, I certainly would 23 diarize pending and I certainly would diarize the 24 pathologist's opinion that the explanation given by the 25 caregiver was not valid.
2061 And any suggestions like re-examine the 2 sleeping environment, that we're going to have another 3 conversation with the -- with the caregiver with regards 4 to a statement, I would -- I would have those types of 5 conversations and I would diarize them in my memo book. 6 MR. MARK SANDLER: All right. Is there - 7 - is there anything in -- in the discussion that I've had 8 with Mr. Ayre that if you were having with the forensic 9 pathologist should not make its way into your notebook? 10 MR. GARY GIROUX: Nothing that I can 11 think of. It traditionally would and does in these types 12 of investigations. 13 MR. MARK SANDLER: All right. Mr. Ayre, 14 would you ever have a concern as a prosecutor down the 15 road because the officers have recorded all of this 16 dialogue with the forensic pathologist which might 17 arguably, down the road, sow some doubt about the quality 18 of your case? 19 MR. JOHN AYRE: If it's been said, it's 20 been said. We disclose it. No, you gave it out. 21 MR. MARK SANDLER: Okay. So let's talk 22 about Children's Aid for -- for a moment. And I'll -- 23 I'll turn to you first, Detective Sergeant Buck, and say, 24 what's the practice in contacting Children's Aid Society 25 about one of these investigations?
2071 MR. CHRIS BUCK: Certainly, if there's -- 2 there's -- there's three (3) -- three (3) areas that are 3 covered in our -- in our protocol with the joint 4 investigations between the Toronto Police Service and -- 5 and CAS. 6 Children's Aid is commonly notified. 7 Certainly, if there's other -- other living children 8 still within the home; it's going to depend on the -- the 9 seriousness of the investigation; if there's a suspicious 10 element in it; if the surviving children are living with 11 the -- in the same -- the same household as the -- the 12 child that has -- has been killed or died. 13 But in -- at the other end of the spectrum 14 is that if we are looking at a criminal charge, there are 15 instances where there may be, strictly for the integrity 16 of the case, that certain interviews are not discussed, 17 certain evidence is not discussed with the CAS. 18 MR. MARK SANDLER: All right. Well, now 19 this raises a whole host of systemic issues that I'm 20 going to discuss with -- with each of you. 21 The first is that your duty as a peace 22 officer is to disclose to Children's Aid where there's 23 reasonable grounds to suspect abuse. And your obligation 24 is to also disclose the information upon which those 25 suspicions are base.
2081 MR. CHRIS BUCK: Yes. 2 MR. MARK SANDLER: So -- so the question 3 is: Does that impose an obligation on -- on the police to 4 disclose all of the information upon which the suspicions 5 are based? 6 In other words, that could be the entire 7 Crown brief in theory, couldn't it? 8 MR. CHRIS BUCK: The -- the Child and 9 Family Services Act is quite specific that we shall 10 report. I don't -- it doesn't go into the -- into what 11 it is that we are -- are required to report. We're -- 12 we're required to report to the CAS but, I think, as the 13 investigator, that person should have the final say in -- 14 in the material that is disclosed. 15 Certainly, everything that is relevant to 16 the CAS needs to be disclosed but if there's -- if 17 there's areas for that individual case or within that -- 18 that individual investigator feels that this is going to, 19 in some way, hamper the criminal investigation or -- or 20 cause a -- a miscarriage in -- in the way it's going, and 21 that's the decision made at the time. 22 MR. MARK SANDLER: Mr. Ayre, police come 23 to you and they say, We have a duty to report; we suspect 24 child abuse. We've got this wealth of material that 25 we've accumulated that -- that could support child abuse,
2091 but we're concerned that some of this material, albeit 2 relevant to the suspicions of child abuse, if disclosed 3 at this stage of our investigation could imperil our 4 investigation. 5 Would you please give us some advice what 6 to do? What do you tell them? 7 MR. JOHN AYRE: That kind of scenario is 8 likely to happen in a mid to smaller jurisdiction. And 9 it may also happen in a non-homicide scenario. We're 10 thinking in terms of homicides, but we report child abuse 11 for instance in cases of domestic assault if there were 12 children present or in the house, so it's -- in terms of 13 numbers it's far beyond just the -- the numbers of 14 homicides we're talking about. 15 If the police came to me and said, We've 16 got this information, if we -- as soon as they reasonably 17 suspect abuse, they have to report. 18 MR. MARK SANDLER: Right. 19 MR. JOHN AYRE: As soon as they tell me 20 that they reasonably suspect abuse on the basis, I have a 21 personal duty to report under the statute. And it's -- 22 it's out of my hands and -- because I'm going to report 23 it at that point. 24 You report the abuse, and the real key is 25 of course, the information on which it is based.
2101 It seems to me that -- you know, the 2 question is often put by Crowns, Well, will it affect 3 your investigation? It's -- it's an interesting question 4 to ask, but it's a legitimate question. Because if the 5 answer is even yes, short of putting an undercover's 6 operators life in danger, you can imagine some factual 7 scenario, even if the investigation is compromised, the 8 other thing that is potentially compromised is some other 9 child's safety. And the people who are responsible for 10 that determination is not me and my office, it's the CAS. 11 So how you deliver that information is 12 something that is not clear. You have to give the 13 information, does that mean through the medium of a phone 14 call, does it mean that you give them the Crown brief 15 edited or unedited. I suspect it would be edited with 16 addresses, et cetera. 17 And is that approach necessarily the -- 18 the approach taken across the Province where protocols 19 exist? Because protocols between police and CAS, as I 20 understand it, although many exist, and I think may are 21 working very well, I can't sit here before the 22 Commissioner and say that there are protocols in all 23 jurisdictions that are all operating in the same way. 24 I know what my -- my advice would be. If 25 you reasonably suspect abuse and you have information you
2111 pass it over to the CAS. They're the ones who have to 2 deal with it. 3 MR. MARK SANDLER: So one (1) of the 4 things that the Commissioner has heard at this Inquiry is 5 that there's some -- at least in the cases that -- that 6 we've reviewed, there was some uncertainties about the 7 extent to which police should disclose that information 8 to Children's Aid; how that should be disclosed; the ext 9 -- to what extent one balances the considerations of best 10 interest of the child and the child -- in Children's Aid 11 proceedings, as opposed to the -- to the criminal 12 investigation; and uneven protocols that may or may not 13 exist throughout the jurisdiction. 14 So out of that, is it fair to say that at 15 the very least there should be some common standard 16 across the Province? 17 MR. JOHN AYRE: I think it would be 18 helpful to have some minimum guidelines so that police 19 agencies who differ in size, who differ in the -- the 20 relationship with the CAS, so they can come up with what 21 works for the CAS and for the police. I don't think the 22 functions are mutually exclusive. 23 I think they also need to work in terms of 24 those -- those guidelines or suggestions. What about the 25 ongoing duty of -- of investi -- of informations? So
2121 you've reported, you've given the information, but time 2 passes, the infor -- the investigation continues, perhaps 3 you get defence disclosure coming your way, and you learn 4 things that -- that perhaps point more strongly towards 5 guilt or abuse of other children, or point away from it. 6 What do you do with that? 7 Perhaps, the respondent parent is -- has 8 one (1) criminal lawyer and another family law lawyer; 9 maybe they're taking place in different towns. In a 10 smaller jurisdiction it's apt to be the same person. 11 So what do you do with that ongoing -- if 12 there is an ongoing duty to inform? 13 And I -- my perception is under the 14 wording of the Act there is an ongoing duty to inform. I 15 don't know that it's reached the criminal level of 16 Stinchcombe. On the other hand we have to remember, 17 post-charge, post-CAS apprehension proceedings, there's a 18 judicial officer sitting there determining the fate of a 19 child or children. And it would seem to me that it's -- 20 it's important for that judicial officer, to whom our 21 first duty is to the court, to have the best available 22 information to determine what's going to happen to that 23 child. 24 If that frustrates the investigation 25 somewhat, well I -- I think the child's fate -- the
2131 surviving child's fate, if that's the case, probably 2 trumps my ability to have a smoother prosecution, if you 3 will. 4 But I don't know that the means to do that 5 is -- is satisfactorily captured across the Province in 6 these protocols, so some directive input guideline that 7 police agencies can use, whether it's Metro, OPP, or a 8 small town police force, I think that would very helpful. 9 I think the police would appreciate it, and frankly I 10 think it would relieve Crowns and others of a lot of 11 headaches when the police -- because they will come to 12 you in smaller a jurisdiction for advice on that. We 13 can't sent them off to their own civil counsel; they 14 don't have civil counsel. 15 MR. MARK SANDLER: Okay. And, Dr. 16 Lauwers, when Dr. Eden was here Dr. Eden described a 17 protocol in -- in his former jurisdiction in which all 18 pediatric death cases were reported to Children's Aid 19 Society. And he made the case that -- that reporting 20 isn't necessarily a function of the duty to report the 21 we've describing, but of the desirability of getting 22 input from Children's Aid as to what they might have in 23 their files that would effect the investigation -- the 24 death investigation. 25 Do you agree entirely with what Dr. Eden
2141 had to say or would you put a qualifier on it? 2 DR. ALBERT LAUWERS: I would put a 3 qualifier on it. I think in general -- as a general 4 principle it's -- it's not a bad principle. On the other 5 hand, there are certain circumstances in which it's -- we 6 -- where you haven't mess -- met the test for reasonable 7 grounds, and those are typically children that are long 8 suffering with significant medical illnesses that die in 9 institutions such as hospitals. 10 And in my view the difficulty arises in 11 that the parents who are obviously going to be grieving 12 the loss of their child are then faced with having to 13 answer questions from a Children's Aid Society, which 14 becomes uncomprehensible. 15 MR. MARK SANDLER: Okay. Dr. Ranson, 16 we've been wrestling with some of the very difficult 17 issues in the interplay between child protection 18 proceedings and criminal proceedings. 19 What's the practice in Australia? And can 20 you give us some assistance on how the Commissioner might 21 wrestle with these issues? 22 DR. DAVID RANSON: I think there's -- 23 there's several issues. We have very similar 24 arrangements for reporting potential child abuse and so 25 on. There have been a number of issues that have con --
2151 concern -- that have concerned me in practice of 2 balancing criminal justice issues and what amounts to 3 administrative or family law issues in child protection. 4 And example of this fault would be a 5 situation where parents are -- are suspects in a child 6 death and there are other children of the family and that 7 matter has been reported to what will be our Department 8 of Health who would deal with that under child 9 protection. They may take proceedings in the -- in 10 Children's Court for child protection and it is -- well, 11 it's not common, it has occurred on several occasions 12 that the pathologist who has perhaps not yet completed 13 their investigation is asked to evidence before that 14 urgent child care proceeding. 15 Now, at that proceeding, of course, the 16 Department of Health is a -- is a party and the child is 17 effectively a party and -- but however, the parents, as 18 suspects in this matter, may also be present and may well 19 have a voice and would have a voice and representation. 20 That means that effectively I can be taken 21 through, if you like, almost an initial cross-examination 22 as to my findings which could prejudice at this stage a 23 criminal investigation where the parents may not yet have 24 been interviewed in relation to the matter. 25 So that actually is a potential issue.
2161 Now, obviously interests of -- of a living child may be 2 considered paramount, and I believe that's the -- that 3 is, of course, the situation that has usually occurred, 4 and I don't believe that that's necessarily a wrong 5 conclusion from a sort of broad jurisprudential and 6 social policy point of view, but it does raise the -- in 7 the issues of -- that it could be substantially paramount 8 from time to time of a criminal investigation process. 9 From an operational point of view a 10 child's death is always reported through by the coroner 11 to our Child Protection Service. It's not considered to 12 be a report to that service, it's considered to be an -- 13 really part of information request to that service to let 14 the Coroner's Office know whether that child -- the 15 deceased child was a -- was in fact subse -- a subject to 16 or had ever been subject to child supervision or -- or an 17 application, so there is a special relationship there. 18 We do have a unique piece of legislation 19 in my state whereby at the death of any second or 20 subsequent child of a family must reviewed by the 21 coroner. So it's, if you like, it's reportable not 22 because it is a reportable class of death, but because it 23 is, using the term in -- in legislation, a reviewable 24 death. 25 Now that reviewable death has -- has a
2171 number of outputs from it and it involves the -- an 2 investigation by the coroner which can include an 3 autopsy, but it also includes an obligation upon the 4 Institute of Forensic Medicine to take into account and 5 to deal with matters affecting the welfare of other 6 children in the family and indeed, protecting the parents 7 in that process. 8 So that this is to deal with issues such 9 as genetic disease and inheritable diseases that may 10 cause multiple deaths and so on. 11 However, we do have streamlining 12 procedures, so that if, perhaps, there's been one (1) 13 previous child death in the family from a motor vehicle 14 accident; if the next child dies of leukemia or something 15 from the natural disease process then the -- while it's 16 still reported to the coroner, the investigation process 17 is -- is certainly very streamlined so that it's almost 18 transparent to the family. 19 COMMISSIONER STEPHEN GOUDGE: Can I ask 20 this, Dr. Ranson? 21 I mean, whether it is in the context of 22 CAS proceedings that arise as a result of the 23 pathologist's work and the circumstances, or whether it 24 is a police investigation that is ongoing. One (1) of 25 the concerns that the evidence we heard seems to reflect
2181 from time-to-time is that as the pathologist develops a 2 preliminary view, it may be at a level of suspicion but 3 only at a level of suspicion. Further information that 4 the pathologist acquires changes that opinion; the 5 reverse may be true. What is initially asserted by the 6 pathologist as a very firm view -- 7 DR. DAVID RANSON: Mm-hm. 8 COMMISSIONER STEPHEN GOUDGE: -- 9 subsequently becomes far less certain based on subsequent 10 information shown. 11 What, in Victoria, if anything, is done to 12 ensure that police investigations don't head down a wrong 13 road as a result of a pathology view that is subject to 14 change; or CAS proceedings, child welfare proceedings, 15 get taken on the basis of the same problem? 16 DR. DAVID RANSON: Yes. From our point 17 of view, if a pathologist finds suspicious cases turned 18 into one (1) that's not suspicious through histology 19 result or something like that, in the face -- in the 20 ongoing investigation from the police, there will be 21 ongoing communication. 22 As soon as we had that result we would 23 ring up the informant, who is the police officer who's 24 controlling the investigation on the police side, inform 25 them of that result. And we would inform the coroner
2191 equally of that result. 2 We wouldn't normally have direct 3 involvement with child protection at this point because 4 we probably wouldn't have a -- have had a direct 5 relationship with them. 6 COMMISSIONER STEPHEN GOUDGE: Right. 7 Okay -- 8 DR. DAVID RANSON: Their relationship 9 would have been with the coroner and the police. 10 COMMISSIONER STEPHEN GOUDGE: So 11 transparent communication is the guard against 12 investigations going down a wrong road or a child 13 protection proceeding being taken on a wrong basis? 14 DR. DAVID RANSON: Yes, it would have to 15 be. I mean,, the only thing -- 16 COMMISSIONER STEPHEN GOUDGE: Okay. 17 DR. DAVID RANSON: -- the pathologist can 18 do -- 19 COMMISSIONER STEPHEN GOUDGE: Then let me 20 ask -- 21 DR. DAVID RANSON: -- do is support -- 22 COMMISSIONER STEPHEN GOUDGE: Let me ask 23 the question this way. 24 Is there any sort of minimal level of 25 suspicion that the pathologist might have early on in the
2201 autopsy process -- perhaps at the end of the physical 2 autopsy but before tests come back -- that is so low that 3 the pathologist would worry about what might happen if it 4 were communicated? 5 That is, it might be misunderstood and an 6 investigation pursued one (1) way that the suspicion 7 doesn't yet warrant. 8 Or is complete transparency on the part of 9 the pathologist the best practice? 10 DR. DAVID RANSON: I mean, it's so 11 dependent on the individual facts of a particular case, 12 it's extremely hard to answer. 13 There would certainly be, I suspect -- 14 COMMISSIONER STEPHEN GOUDGE: That 15 suggests that complete transparency might not always be 16 the answer. 17 DR. DAVID RANSON: I think that's right. 18 I think that transparency might not always be the answer. 19 I think there will be some situations 20 where a pathologist perhaps has that niggle in the back 21 of their mind of worry but really doesn't think they have 22 anything like a worry level, or a factual level, or any 23 evidential base to raise it. 24 That must be true in a whole variety of 25 cases, not just child deaths but in lots of other
2211 situations. It is, again, at the end of the day a 2 professional judgment issue. 3 It's not really much different from a 4 physician's judgment that they make when they're 5 examining a patient; you decided to do tests or to tell 6 them where they're worried about a -- where they think 7 they've got a serious illness; or whether they should 8 refer them at this point or forward the results of the 9 test to another specialist. It's a clinical professional 10 judgment at the end of the day. 11 COMMISSIONER STEPHEN GOUDGE: Thanks. 12 13 CONTINUED BY MR. MARK SANDLER: 14 MR. MARK SANDLER: I'm going to change 15 the scenario that the Commissioner presented just a 16 little bit. 17 And the question that he asked you was, in 18 essence, you know, are there ever occasions where you'd 19 rather hold the thought rather than express it? 20 Would your answer to his question be 21 different if the police had communicated to you that 22 there is a child protection issue? 23 DR. DAVID RANSON: Well, I think it would 24 depend on -- on the basis of your worry. And if your 25 basis of your worry was, I'm worried about if this was --
2221 if this is an injury or not an injury, then that might be 2 an influential factor, because it would co-pertain to the 3 fact why this child might have an injury. 4 If it raises some other issue in relation 5 to care or disease, then it -- it probably wouldn't be 6 relevant. So I think it would just simply go to the 7 particular facts in that particular case. 8 MR. MARK SANDLER: Okay. Commissioner, 9 I'm about to move to another topic. Perhaps that would 10 be a good time -- 11 COMMISSIONER STEPHEN GOUDGE: That's very 12 interesting. Perhaps we can just take a break for 13 fifteen (15) minutes and then we'll come back. 14 15 --- Upon recessing at 3:06 p.m. 16 --- Upon resuming at 3:24 p.m. 17 18 THE REGISTRAR: All Rise. 19 COMMISSIONER STEPHEN GOUDGE: Please sit 20 down. 21 Mr. Sandler...? 22 23 CONTINUED BY MR. MARK SANDLER: 24 MR. MARK SANDLER: Thank you 25 Commissioner. I'm continuing on through -- through the
2231 process, and I -- I want to then turn to another topic 2 that has arisen at this Inquiry and that is case 3 conferencing. 4 And we actually have in the compendium of 5 materials, at Tab 6, the memorandum from the Office of 6 the Chief Coroner on Case Conferences for Homicides and 7 Criminally Suspicious Cases. 8 And it reflects, and I -- I won't take you 9 to it, but it reflects a recommendation amongst other 10 things of the Office of the Chief Coroner that a case 11 conference be held within two (2) weeks of the autopsy 12 for every homicide and criminally suspicious deaths: 13 "In those cases where the laying of 14 criminal charges will rely to a 15 significant extent on pathological or 16 toxicol -- toxicological evidence, it 17 is strongly recommended that this case 18 conference take place prior to the 19 laying of the charges." 20 So I want to turn first to Detective 21 Sergeant Giroux, and Detective Sergeant Buck. Can you 22 help us out, what is the practice in terms of the holding 23 of case conferences on pediatric homicides or suspicious 24 cases? 25 How quickly are they held, what transpires
2241 at them, and the like? 2 MR. GARY GIROUX: Well, I can tell you I 3 have a case currently before the courts. It's through 4 the preliminary hearing, and we're moving towards trial. 5 And I had a case conference in relation to a twelve (12) 6 week old little girl. 7 And it was prior to the laying of charges, 8 and it was with regards to a discussion with the 9 pathologist and the neuropathologist in relation to this 10 child. And it took place approximately nine (9) months 11 after the autopsy was completed. 12 And it was, like I said, prior to the 13 laying of charges so that we were -- we, meaning me, was 14 comfortable with regards to the manner of death and -- 15 and the laying of those charges which falled -- shortly 16 thereafter. 17 MR. MARK SANDLER: All right. And I -- I 18 assume, was the report of post-mortem examination already 19 available I take it? 20 MR. GARY GIROUX: The report was 21 available at this time, and present was Dr. Chiasson and 22 Dr. Halliday from Sick Children, and we discussed the 23 case in detail with regards to the evolution of the 24 investigation and what the -- what the definitive finding 25 of cause of death was prior to the laying of charges.
2251 COMMISSIONER STEPHEN GOUDGE: Sergeant, 2 from the perspective of the investigation, what would be 3 optimal for the timing of the case conference? Take the 4 starting gun as the completion of the post-mortem, but 5 the report may not be available yet; that is autopsy plus 6 whatever toxicology, et cetera? 7 MR. GARY GIROUX: After the -- after the 8 autopsy? 9 COMMISSIONER STEPHEN GOUDGE: Yes. 10 MR. GARY GIROUX: Well, the different -- 11 COMMISSIONER STEPHEN GOUDGE: How soon 12 after that would be optimal from the perspective of an 13 effective investigation, or a most effective 14 investigation? 15 MR. GARY GIROUX: Well, selfishly from 16 the -- from the policing standpoint, I think within three 17 (3) to four (4) weeks would be ideal. But in this 18 particular case, there was so much testing that -- that 19 needed to be done; it took -- is the reason why it took 20 that long. 21 So I can't really speak for the -- for the 22 medical aspect of it, but from -- for moving the 23 investigation forward, I think three (3) to four (4) 24 weeks after -- after the initial investigation has been 25 commenced.
2261 2 CONTINUED BY MR. MARK SANDLER: 3 MR. MARK SANDLER: All right. Detective 4 Sergeant Buck, have you been involved in -- in pediatric 5 case conferences? 6 MR. CHRIS BUCK: Not in the more recent 7 times, but I -- I have been. And certainly each case is 8 different when -- when you're able to -- to meet with the 9 parties involved. 10 But I'll -- I'll agree with Gary's 11 recommendation of certainly three (3) to four (4) weeks 12 would be ideal. But there's many, many factors which 13 come to play, in particular, with pediatric cases. 14 MR. MARK SANDLER: All right. Do the -- 15 do Crown counsel attend these kinds of case conferences? 16 MR. GARY GIROUX: I've had Crown counsel 17 present at some case conferences with regards to adults. 18 But on this particular case, the Crown counsel was not 19 present for this particular one (1). 20 MR. MARK SANDLER: All right. 21 Mr. Ayre, let's assume a case conference, 22 the value of which appears to be significant, is held in 23 a pediatric death case to get the informed opinions of -- 24 in a multi-disciplinary sense, from -- from a variety of 25 medical experts.
2271 Should the Crowns participate in the case 2 conferencing, in your view? 3 MR. JOHN AYRE: Well, I think our Crown 4 policies are -- are fairly clear that we should never 5 take on the role of being the investigator; if we were 6 requested specifically by either the coroner or the 7 police to attend and there was some value added to our 8 presence. 9 But the purpose of a case conference is to 10 focus on the pediatric forensic aspect of it. And if 11 that's something that the police can do without our being 12 in attendance, I think that would be the better route to 13 go. 14 The police can always come back and 15 discuss the matter with the Crown when it comes to the 16 point of making any charging decisions. 17 A case conference is certainly not some 18 kind of a conference to decide if there's going to be 19 charges or not. It's to focus on these issues 20 surrounding the pediatric forensic pathology. 21 So I don't think there's an absolute 22 prohibition from going but a Crown should be cautious in 23 going; perhaps consult with a superior, review the 24 policies because you're in the position where people who 25 are potential witnesses are speaking, and there should be
2281 note-taking going on at that point. 2 It's not something I would try and do all 3 the time by any means. I have only ever been to one (1) 4 and found indeed that there was an issue about note- 5 taking going on. The death was ruled to be accidental 6 later on. 7 So you have to look at the function of 8 them. I think the function is -- it's going out of the 9 investigative stages; if the police need our advice, can 10 explain that to the Crown then follow the policies, make 11 sure of their notes. 12 It may mean that Crown is not going to end 13 up prosecuting the case if there was a charge. 14 MR. MARK SANDLER: All right. Just while 15 we're on the topic of case conferencing, what about 16 disclosure to the defence. 17 How does one deal with the thorny issues 18 arising out of a case conference and subsequent 19 disclosure? 20 MR. JOHN AYRE: Well, we've used the word 21 "transparency" today, and I've heard it earlier in this 22 Inquiry on the Webcast. 23 And even if the Crown is not there, I 24 think what should be happening is that the police should 25 have someone who's making note of what is being said.
2291 But I very much liked -- I think we heard earlier in this 2 Inquiry -- Ms. Regimbal's method -- that if -- if an 3 issue arises, there's always a danger that the officer 4 has not captured it correctly, the context; maybe got the 5 word incorrectly. 6 So if an issue does arise about what the 7 pathologist said, there's that option that Ms. Regimbal 8 adopted in her case; send the pathologist a letter, pose 9 the questions, get it back from the pathologist in their 10 own words. 11 Should you be disclosing if the 12 pathologist says something different than an earlier 13 statement? Yes. Then it should be captured. 14 MR. MARK SANDLER: All right. 15 Detective Sergeant Giroux, I don't want to 16 ask you about the case that's currently before the court, 17 but just as a matter of practice, how would you deal with 18 the disclosure issue at a case conference? 19 MR. GARY GIROUX: Again, I'd diarize the 20 meeting in my memo book. The difficulty is that, as you 21 can appreciate, there were many, you know, medical terms 22 being used. So what I captured in my book was -- was in 23 essence what the cause of death was; and it was explained 24 to me in layman's terms with regards to finalizing of the 25 report.
2301 And those types of conversations I diarize 2 in my book, and they were disclosed. 3 MR. MARK SANDLER: All right. 4 Dr. Lauwers, would you be participating in 5 these kinds of case conferences? 6 DR. ALBERT LAUWERS: I would be, and 7 normally I'd be the individual who organized them. I 8 would often get all the players together and get them to 9 the table. 10 MR. MARK SANDLER: All right. So I'd be 11 interested in your views on the participation of Crown 12 counsel. You've heard Mr. Ayre's concerns in that regard 13 and the issues of memorializing what's said in disclosure 14 in the criminal process. 15 DR. ALBERT LAUWERS: I'm not sure you're 16 asking the right person, but I can just offer this. 17 I've been involved in two (2) case 18 conferences in which the Crown attended. And in both 19 cases, the circumstances were such that there was 20 extraordinarily complex medical information coming from 21 the pathologist. 22 And I think the principal purpose of the - 23 - the presence of the Crown attorney was to be able to 24 understand that medical information. 25 MR. MARK SANDLER: All right. And was
2311 the case conference, or do you recall -- or those case 2 conferences memorialized in writing in some way or was 3 this more of an informational session for the benefit of 4 -- of the Crown? 5 DR. ALBERT LAUWERS: No, they were 6 memorialized in writing. There were notes jotted down at 7 the time of the case conference. 8 MR. MARK SANDLER: All right. And -- and 9 just a last question in this regard. 10 What's the interplay between the kinds of 11 case conferencing that -- that we've heard described just 12 now and the role of the Under 5 and the Paediatric Death 13 Review Committees, to what extent are they engaged in the 14 criminal cases or -- or suspicious cases and what's the 15 intersection between those committees and case 16 conferencing? 17 DR. ALBERT LAUWERS: That's interesting. 18 The case conferencing principally exists from the 19 coroner's point of view to ensure that the coroner 20 accurately gets the manner and cause of death correct. 21 In addition to that, just based on the -- 22 the memorandum, it's to -- to formalize the communication 23 and to make everybody aware of the information that's 24 available. 25 And it may arise during the course of the
2321 case conference that there may be some additional tests 2 that might need to -- to be undertaken and that -- that 3 is the function, as I see it. 4 With regard to that though, the case 5 conference is, in fact, for a pediatric death one (1) of 6 just a series of -- of meetings that will take place. 7 And at the present time, I'm involved with 8 a case that we are probably heading towards our fourth 9 meeting with regard to a very, very complex death. And 10 so the case conference is just one component of that. 11 MR. MARK SANDLER: All right. And -- and 12 I had asked how that relates to the work of the 13 committees that are also being done. 14 DR. ALBERT LAUWERS: Again, the 15 committees exist for the purpose of -- of the Coroner's 16 System which is not the Criminal Justice System and is 17 different. So it exists to find proper cause and manner 18 of death. 19 In fact, there are cases, for instance the 20 PDRC -- we generally won't take cases at the PDRC that 21 are under -- are being followed where the lead 22 investigators are the -- the police. 23 MR. MARK SANDLER: Okay. Dr. Ranson, 24 you've heard a little bit of a description of how case 25 conferencing might be working in Ontario.
2331 Is there something analogous in your 2 jurisdiction, or do you have any comments on what is 3 happening here? 4 DR. DAVID RANSON: We don't have quite 5 that same regular approach to -- routine approach to case 6 conferencing. That's not to say that case conferences 7 don't occur. They do, and they have occurred in 8 particularly difficult and problematic cases. 9 There seems, in my view, to be a number of 10 types of case conferences which we engage in; those that 11 are particularly related to the police criminal 12 investigation where the police may get together, 13 particularly around the Forensic Science Laboratory and, 14 say, want to involve the pathologists, the crime scene 15 staff and forensic scientists, usually in terms of 16 prioritizing the types of testing that will be undertaken 17 over the next few weeks to help further the 18 investigation. 19 And testing takes time and some tests are 20 more important than others at a particular stage in a 21 police investigation. So that's a particular type of 22 meeting that occurs. 23 Occasionally, we would get asked to attend 24 a meeting with the Director of Public Prosecutions Office 25 with the police, perhaps to further elucidate particular
2341 mechanisms surrounding the death or the evidence the 2 police have to receive advice about the issue of charging 3 a particular person. 4 And we might be asked to attend such a -- 5 a meeting, or we might be asked to respond in writing to 6 a series of questions that have come out of a meeting 7 between the prosecution's staff and the police. 8 And I rather favour the latter. It's 9 quite a good way of doing it and I rather -- because it 10 does actually -- the issues have been dissected from an 11 investigator's point of view and a prosecutor's point of 12 view. 13 And then the pathologist is able to bring 14 their skill set on the issues that are critical to the 15 Criminal Justice process at that time. 16 COMMISSIONER STEPHEN GOUDGE: And in 17 writing, it's memorialized? 18 DR. DAVID RANSON: It is, that's right. 19 There have been -- 20 COMMISSIONER STEPHEN GOUDGE: On the 21 other hand, the advantage of a case conference, Dr. 22 Ranson, is the -- I mean, if part of the purpose -- and I 23 hear that from all the panellists -- is to ensure as full 24 an understanding on everybody's part of the actual 25 science at work, whether it's forensic science or
2351 pathology, then an actual live conference may be more 2 effective than a simple question and answer on paper. 3 DR. DAVID RANSON: Indeed. They are, 4 however, far harder to document in -- in terms -- 5 COMMISSIONER STEPHEN GOUDGE: Right. 6 DR. DAVID RANSON: -- and I -- and I 7 suspect that -- 8 COMMISSIONER STEPHEN GOUDGE: Right. So 9 what you gain in understanding you may lose in 10 transparency? 11 DR. DAVID RANSON: I think that's the 12 case. 13 14 CONTINUED BY MR. MARK SANDLER: 15 MR. MARK SANDLER: Okay. I'm going to 16 move to a particularly vexing issue and that is 17 timeliness or lack of timeliness of reports from a 18 forensic pathologist. 19 At the risk of oversimplifying the 20 evidence that's been heard at this Inquiry, we've heard 21 on a number of the cases under review, concerns raised 22 about the lack of timeliness of the reports of post- 23 mortem examination or consultation reports or follow-up 24 reports in connection with pediatric death cases. 25 And I think it's also fair to say that the
2361 evidence at this Inquiry has demonstrated that a very 2 uneven approach to who should be approached to address 3 the issue of untimeliness. 4 We've heard that the defence approach the 5 Crown at some instances to try to get the more timely 6 report, approach the Chief Coroner's Office or the Deputy 7 Chief Coroner to try to get a timely report, approach the 8 police who in turn approach the forensic pathologist, or 9 approach the coroner to approach the forensic 10 pathologist. 11 And -- and if something could be said with 12 a degree of confidence is that -- is that each of these 13 cases presented somewhat different routes to try to 14 address the issue of untimeliness. 15 So the question for each of you is going 16 to be, if one had to construct an approach to be used on 17 a regularized basis to address the untimely report, what 18 would you suggest? 19 Mr. Ayre, now we start with you when I 20 have the easy questions. 21 MR. JOHN AYRE: Oh, thank you. 22 MR. MARK SANDLER: Go ahead. 23 MR. JOHN AYRE: Well, I was -- my 24 response would be I think that the issue of the 25 timeliness of the reports is -- is really an issue, that
2371 first and foremost, belongs with the Office of the Chief 2 Coroner and the present structure since they're the ones 3 who will engage the pathologist to perform this -- this 4 service. So I -- I frankly defer to whatever the Chief 5 Coroner says they can do to -- to maintain and improve 6 the system. 7 In the event that there is a problem with 8 a -- with an individual, I think in the -- in the new era 9 following this Commission of Inquiry, that we have a 10 number of routes. We've seen some people use the issue 11 of trying to reach the pathologist, threatening 12 subpoenas, subpoenas duces tecum, the judicial pretrial, 13 the preliminary inquiry. 14 Those are -- are blunt tools to be used if 15 you have to, but surely the better way will be in the 16 future, I think. The lines -- if -- if the Office of the 17 Chief Coroner has certain standards or expectations -- 18 benchmarks, if you will, then we'll rely on those 19 benchmarks. 20 And if someone falls behind one (1) of 21 those benchmarks, then obviously we'll be taking 22 appropriate steps. And I think our route is sometimes to 23 pick up the phone of the pathologist or the Coroner's 24 Office. If you have to use those judicial tools, well, 25 you have to do it, and hopefully, that won't be the case.
2381 MR. MARK SANDLER: All right. Dr. 2 Lauwers...? 3 DR. ALBERT LAUWERS: Well, my view is 4 that the best people to deal with physicians are other 5 physicians. And so I -- I agree that the Office of the 6 Chief Coroner is entirely responsible for the production 7 of -- of the post-mortem report or the autopsy report, 8 and that -- that task would fall squarely on the 9 shoulders of the -- the Chief Forensic Pathologist. 10 I would suggest to you that a timely email 11 and a verbal communication from the Chief Forensic 12 Pathologist to someone who's not producing a timely 13 report is probably the best mechanism to get that report 14 produced. 15 MR. MARK SANDLER: All right, and if the 16 report isn't produced in a timely way, notwithstanding 17 the intervention of the Chief Forensic Pathologist? 18 DR. ALBERT LAUWERS: You know, in any -- 19 in any medical discipline, there are actions that usually 20 are -- are undertaken to ensure that there's some 21 mechanism of discipline so that these things are dealt 22 with, and the Chief Forensic Pathologist will have to 23 decide upon his particular course of action in the 24 future. 25 I know for our investigating coroners, we
2391 have a very formalized process about how to deal with 2 reports that are outstanding. 3 MR. MARK SANDLER: All right. Dr. 4 Ranson, do you have timeliness issues in Australia? 5 DR. DAVID RANSON: Oh, yes. I mean I 6 don't believe there's probably any office which doesn't 7 have timeliness issues from time-to-time. I suspect I'm 8 -- I'm to blame on odd occasions for timely -- timeliness 9 lack in reports. 10 And of course the factors are usually 11 multi -- they're multi-factorial. They may relate to 12 issues relating to the scope of an investigation; the 13 information flow to the and from the pathologist in their 14 seek to reply upon in a report. It may relate also to 15 issues of workload. It might relate to issues of simple 16 -- of an individual being away, or on leave or sick. 17 And -- and that can be quite a significant 18 issue, in fact, where you have study arrangements and so 19 on where someone's not around for six (6) weeks and all 20 of the sudden, the report becomes urgent in the first 21 week when they're away, so there are some real practical 22 issues. 23 And there may just be poor performance, of 24 course, and that's probably an issue from time-to-time. 25 I would have said that in our experience, if you're
2401 dealing with a criminal investigation, then usually in 2 say -- in a setting of the homicide squad would be 3 ringing up the pathologist directly in the first instance 4 saying, How long is it going to take? 5 I've got to go to Court for a preliminary 6 matter in this, or some sort of bail issue, and that 7 would be the first instance. 8 If that failed, traditionally they would 9 maintain their contact through the Institute in the first 10 place, so it would come the Head of the -- of that 11 medical service section of the Institute and eventually 12 to the Director of the Institute. 13 And that woul -- that -- that request 14 would then be logged through our cont -- what's called 15 our continuous professional -- or sorry, our Continuous 16 Improvement System, which is often a complaint system, if 17 you like, which means it would have to be looked at by 18 the senior staff of the Institutes within -- within a 19 week of it being entered onto that system. 20 So that gives quite a material way of 21 recording significant issues. 22 And I would say that there very rarely 23 does a case get to that level. In the final instance, in 24 relation to pathologists, the primary process would be 25 back to our council. In other words, if there was a
2411 significant -- a substantial failure of a pathologist to 2 respond appropriately to the task they're asked to do, 3 then that would go to the disciplinary processes that we 4 have linked through our council and the Department of 5 Justice. 6 That would be an extreme end of the 7 process, but it would have very significant employment 8 ramifications for that individual. So there's a very 9 well-worked out process of dealing with a disciplinary 10 issue which starts off at a very simple level of direct 11 communication. 12 Occasionally, the coroner will become 13 involved in that process, but for the most part, they 14 don't because it's a criminal process issue, and by and 15 large, the coroner doesn't get involved too much in 16 issues surrounding the criminal process. 17 COMMISSIONER STEPHEN GOUDGE: Could you 18 just describe a little bit, Dr. Ranson, about this 19 complaint mechanism you have where something must be 20 looked at within a week? 21 DR. DAVID RANSON: Yes, what we -- 22 COMMISSIONER STEPHEN GOUDGE: I take it 23 these are complaints from what I would call consumers of 24 your product? 25 DR. DAVID RANSON: Not just that, it's a
2421 -- it's a system that records all kinds of departures 2 from what would be agreed practice. They, of course, 3 have to be reported into the system. 4 So that what happens is even if a bill 5 isn't paid on time or a piece of equipment failed -- 6 COMMISSIONER STEPHEN GOUDGE: But the 7 timeliness paradigm -- 8 DR. DAVID RANSON: Yeah. 9 COMMISSIONER STEPHEN GOUDGE: -- an 10 investigation is -- 11 DR. DAVID RANSON: If it was -- 12 COMMISSIONER STEPHEN GOUDGE: -- waiting 13 -- 14 DR. DAVID RANSON: That's right. 15 COMMISSIONER STEPHEN GOUDGE: -- a post- 16 mortem report -- 17 DR. DAVID RANSON: Yeah. 18 COMMISSIONER STEPHEN GOUDGE: -- and at 19 some point the call comes to the Institute from -- 20 DR. DAVID RANSON: That's right. 21 COMMISSIONER STEPHEN GOUDGE: -- the lead 22 officer saying -- 23 DR. DAVID RANSON: That's right. 24 COMMISSIONER STEPHEN GOUDGE: -- we just 25 can't get a response from --
2431 DR. DAVID RANSON: Yep. 2 COMMISSIONER STEPHEN GOUDGE: -- the 3 pathologist. 4 DR. DAVID RANSON: So a letter that's 5 received on that line -- 6 COMMISSIONER STEPHEN GOUDGE: Right. 7 DR. DAVID RANSON: -- to the Director's 8 office would go into that system. The -- the individual 9 phone call to the pathologist saying, Can you please get 10 this report out in the next ten (10) days wouldn't go 11 into that system. 12 But once it got beyond the communication 13 with that individual to say, Look, we are concerned that 14 we're just not getting this and -- 15 COMMISSIONER STEPHEN GOUDGE: Right. 16 DR. DAVID RANSON: -- the organization 17 needs to be concerned, then it would go into our system. 18 COMMISSIONER STEPHEN GOUDGE: And there's 19 a protocol that within a week, it gets looked at by the 20 Institute's senior management? 21 DR. DAVID RANSON: There's a -- the -- a 22 person will be allocated to deal with that particular 23 complaint and they -- and that would be -- 24 COMMISSIONER STEPHEN GOUDGE: A person 25 from the Director's Office or?
2441 DR. DAVID RANSON: That's right. Or 2 within their management -- within that management team 3 who's responsible for that particular member of staff. 4 So the Head of that pathology section. 5 It might be the Director in certain 6 situations, or the Deputy Director in -- in other -- 7 COMMISSIONER STEPHEN GOUDGE: Right. 8 DR. DAVID RANSON: -- situations. And 9 then usually there's either a weekly meeting or a 10 fortnightly meeting where the members of the senior 11 executive team, which might include the Head of the 12 scientific area and perhaps the Head of the clinical 13 area, together with the Administrative Officer -- Chief 14 Executive Officer -- would sit down -- the Quality 15 Manager, would -- would sit down and look at the current 16 things; where are we at, has this one (1) been resolved 17 yet, where are we at with this one (1)? 18 We'll ask for a response from this person 19 as to why and how. And that's just kept going the whole 20 time, and those logs are subject to audits through our 21 National Accreditation which is similar to the ASCLAD/LAB 22 or the NAME-type of accreditation process which will look 23 at the way in which we have handled those processes. 24 COMMISSIONER STEPHEN GOUDGE: Right. Now 25 those are all related to pathologists who are, if I can
2451 put it this way, direct employees of the Institute, is 2 that right? 3 DR. DAVID RANSON: That's right. Well, 4 it wouldn't necessarily be a direct employee of the 5 Institute. If the Institute was responsible, which it 6 is, for an autopsy being conducted by somebody else, that 7 -- in -- in another rural area -- 8 COMMISSIONER STEPHEN GOUDGE: Yes. 9 DR. DAVID RANSON: -- and there was a 10 problem with that, that would certainly go to that 11 process, because it will be a matter that the Institute 12 would have to resolve. 13 And we found the best way to resolve 14 issues like that that come up that are the concern of the 15 Institute, is to place into a formal review process so 16 that it doesn't fall off the -- fall off the ladder at 17 some point and get forgotten. 18 It has to be followed up -- 19 COMMISSIONER STEPHEN GOUDGE: Yes. 20 DR. DAVID RANSON: -- and at the next 21 meeting all the ones that have not been yet addressed are 22 brought up again -- 23 COMMISSIONER STEPHEN GOUDGE: Right. 24 DR. DAVID RANSON: -- and so on. 25 COMMISSIONER STEPHEN GOUDGE: I mean, one
2461 (1) of the reasons we're spending more time on this then 2 it might otherwise seem is that we heard a great deal of 3 evidence about timeliness. 4 We also heard concerns about the lack of 5 any line of authority that permits the Institution to do 6 anything about defaults on the part of -- 7 DR. DAVID RANSON: Yep. 8 COMMISSIONER STEPHEN GOUDGE: -- those 9 who work for others, like hospitals. 10 DR. DAVID RANSON: Well I suppose this is 11 what I have been saying when I talk about the 12 professionalization, and if one wants, the 13 corporatization of the forensic pathology service. If 14 you're operating within a business framework, the thing - 15 - the tools that I'm talking about are standard business 16 tools that a corporate entity would be using to ensure 17 the quality of their product. 18 And that is, I think, part of the modern 19 management process, and I don't believe that forensic 20 pathology is an inappropriate organization to apply those 21 same tools. 22 COMMISSIONER STEPHEN GOUDGE: But you 23 cannot apply discipline to somebody who does not work for 24 you, can you? 25 DR. DAVID RANSON: If you --
2471 COMMISSIONER STEPHEN GOUDGE: I mean, I 2 ask the question, I -- 3 DR. DAVID RANSON: -- are res -- 4 COMMISSIONER STEPHEN GOUDGE: -- didn't 5 put as a -- 6 DR. DAVID RANSON: Well, I take -- I take 7 that point, but if you are responsible for ensuring that 8 -- that issue then as a management team you'd say, Well 9 if this person isn't working for me, well, we're not 10 going to have them do this work again. We're simply 11 going to have it done in a different way because it's not 12 working. 13 COMMISSIONER STEPHEN GOUDGE: Okay. 14 Thanks. 15 16 CONTINUED BY MR. MARK SANDLER: 17 MR. MARK SANDLER: All right. 18 Detective Sergeant Buck, on timeliness. 19 Do you -- do you want to make any comments or 20 observations? 21 MR. CHRIS BUCK: I prefer taking the 22 direct approach. As a professional, we all -- 23 MR. MARK SANDLER: Does that involve the 24 use of your revolver? 25 MR. CHRIS BUCK: No, I tend to leave that
2481 behind too. But I certainly don't cross the street with 2 it. 3 I prefer -- I mean, we all understand our 4 own level of caseloads and work-related stresses and 5 issues like that. But certainly, timeliness of a report 6 that I'm waiting for, I'll make a phone call to the 7 pathologist. Normally, that -- that suffices. 8 And normally, you're going to get a 9 response, It's -- it's waiting to be signed off or I'm 10 waiting for toxicology. 11 There's all -- there are some issues that 12 are beyond the pathologist's control, which will result 13 in -- 14 COMMISSIONER STEPHEN GOUDGE: Right. 15 MR. CHRIS BUCK: -- that report maybe not 16 being ready today but it will be ready next week. 17 That's -- I prefer a direct -- a phone 18 call, maybe follow-up with an e-mail. And I can honestly 19 say, I haven't had to go to the next stage in contacting 20 the Chief Pathologist, so. 21 DR. DAVID RANSON: Just say one (1) other 22 point in relation to that. 23 Perhaps the most important issue here is 24 communication. 25 I mean, if I'm -- as a pathologist --
2491 aware that my report is going to take a bit longer than I 2 was expecting it to take, I will be pro-actively 3 contacting the investigator and saying, Look, I've 4 actually had to send this off for a special cardiac 5 pathology opinion, and that -- I might not get that 6 result for six (6) to eight (8) weeks so there will be a 7 delay. 8 And one (1) of the things we do put into 9 our case management system is an expected date of report 10 completion. So that the coroner staff can always look 11 and say, Ah, the pathologist has already said at the end 12 of the autopsy, he thinks this case is going to take 13 three (3) weeks, four (4) weeks, eight (8) weeks. 14 That means that the coroner has, at least, 15 some information to go back to a family or anyone who was 16 ringing up and saying, Well at the moment the pathologist 17 has said it won't be ready before the 24th of June or 18 whatever. And so that gives everyone some idea where 19 they're going. 20 And once you have some communication of 21 what the likely time lines are, you can build the rest of 22 your process a little bit around that. And I think that 23 can be very, very helpful in preventing the, sort of, 24 imbedded concerns about timeliness. 25 COMMISSIONER STEPHEN GOUDGE: Do you have
2501 standardized time line benchmarks? 2 DR. DAVID RANSON: We do, and we look to 3 see how often those are exceeded and where they're 4 exceeded and who exceeds them. 5 COMMISSIONER STEPHEN GOUDGE: What are 6 they? Just -- 7 DR. DAVID RANSON: What we've done 8 usually is we say for routine cases where there's 9 histology and not much else, in terms of extra testing, 10 then usually between two (2) or three (3) weeks, we want 11 the report to be out. 12 Having said that, even in those cases, 13 we'd expect 50 percent of those cases to have a cause of 14 death on the system within five (5) days, they're the 15 more straightforward cases. 16 We then have -- if the case involves 17 toxicology or some extra testing which we know is going 18 to take several weeks, we usually have a -- I think it's 19 a sort of four (4) to six (6) week window. 20 And then we will have perhaps a longer 21 window for a case that involves some very complex medical 22 issues and perhaps even a homicide case, where there's an 23 extended investigation inputs that we need, that may -- 24 so it will be something that exceeds six (6) weeks and 25 goes between six (6) weeks and three (3) months.
2511 There will always be some cases that go 2 beyond those -- those -- 3 COMMISSIONER STEPHEN GOUDGE: Right. 4 DR. DAVID RANSON: -- gateways. And -- 5 and normally what we ask the person to do is if that's 6 the case, to record why that has -- has taken place. 7 8 CONTINUED BY MR. MARK SANDLER: 9 MR. MARK SANDLER: And just to fit those 10 benchmarks within the kinds of cases we're seeing here. 11 You're aware of the kinds of cases that -- that we've 12 been reviewing. 13 DR. DAVID RANSON: Mm-hm. 14 MR. MARK SANDLER: Where would those 15 generally fit -- 16 DR. DAVID RANSON: I -- 17 MR. MARK SANDLER: -- within the 18 benchmarks? 19 DR. DAVID RANSON: In complex cases where 20 there's extra evaluation, outside reports, some very 21 complex issues, we might be certainly talking about a 22 sort of three (3) month-type frameworks. 23 But again, it would depend a little bit on 24 the individual case. And that's why we ask -- we 25 actually try to put -- give some guidance as to what that
2521 time line is because that helps everyone to, you know, 2 plan their processes. 3 It also means that just because a report 4 won't be available for three (3) months, let us say, that 5 doesn't mean to say that information is not available 6 before that time. 7 A toxicology result may well come back, 8 and we might communicate that result, but we say the 9 significance of it, we're not certain yet, we need to do 10 some further research or whatever. 11 And so it's important to say, Well, the 12 result is back; Here it is, but this -- it's significance 13 is -- is yet uncertain. And that, again -- again, good 14 communication resolves many issues about timeliness of 15 reports. 16 MR. MARK SANDLER: And the last -- 17 DR. DAVID RANSON: And what people are 18 actually after is the information. 19 MR. MARK SANDLER: Right. I'm sorry to 20 interrupt. The last question on -- on this area for you, 21 Dr. Ranson, is this. Is there any prioritization given 22 to your post-mortem or consultation reports? 23 For example, do the criminally suspicious 24 cases or homicide cases rank higher up in terms of 25 priority, and secondly, do cases that do have a child
2531 protection dimension with another living child in the 2 household, are those given any sort of priority, or is -- 3 or how is that addressed? 4 DR. DAVID RANSON: Yeah, I don't think 5 necessarily ab initio they get a higher priority. I 6 think where the -- where issues arise and there are 7 questions that need be asked, then that becomes usually 8 clear that that case needs a particular focus, and if 9 somebody comes along and says, Look, I've got a lot of 10 work to do on this particular case, I need to take some 11 time off from routine casework to finish this off, then 12 that will be looked on perfectly favourably. 13 I -- I think it's -- we -- we certainly 14 expect time lines that have been set in a particular case 15 to be followed, unless there's some particular exception, 16 but within the frameworks I've been talking about, 17 homicide cases shouldn't really be a significant problem 18 in terms of prioritization. 19 MR. MARK SANDLER: All right. And, 20 Detective Sergeant Giroux, on -- on this topic, you get 21 the last word. Is there anything that you'd like to add 22 to what's been said? 23 MR. GARY GIROUX: No, I would just mirror 24 what Chris said. Toxicology is often a problem in 25 relation to finalizing a report, and it's my
2541 understanding that Dr. Lauwers commented on the -- the 2 reports are peer reviewed, and of course, that would take 3 some time, as well, before they're ultimately disclosed 4 to us. 5 MR. MARK SANDLER: Okay. Well, I -- I do 6 have some miscellaneous questions that if time permits I 7 will ask, but I don't want to lose the opportunity to ask 8 each of you whether you want to make any recommendations 9 for consideration by the Commissioner, so perhaps we'll 10 do that at -- at this stage, and if time permits, I -- I 11 may ask a few questions to follow. 12 So, Mr. Ayre, I'll -- I'll turn to you 13 first, if -- if I may. Are there any recommendations 14 that -- that you -- you'd like to make? 15 MR. JOHN AYRE: We -- the Criminal Law 16 Division, of course, has filed initiatives with the 17 Inquiry. There's actually a definition and then six (6) 18 initiatives that -- that flow from it. 19 We're going to be putting those into 20 place, and you'll hear more of those -- more comments on 21 that, I think, next week when our Assistant Deputy 22 Minister testifies. I think something that arose at the 23 commencement of this -- this panel, was a concept of the 24 Police Resource Team. 25 And you'll note in our initiatives that we
2551 are going to have a Crown Child Homicide Resource Team of 2 eight (8) people who are going to have some enhanced 3 training knowledge to be an advisory resource for Crowns 4 when these kinds of cases crop up. 5 I can only pass on to the Commission and 6 my -- and the police officers present, that may be a 7 model that works for them, and I say that because of the 8 statistics, which I believe were also filed with the 9 Commission; that we found when we looked at the number of 10 child homicides as we define that term in the period from 11 1996 to 2007, they weren't uniform across the Province. 12 There was a ten (10) year gap when Halton 13 County, a sizeable community, lots of other murders, 14 didn't have a single one (1) of these child homicide 15 cases. Another year where London Middlesex had six (6), 16 which was unbelievable in a given year, and hopefully, 17 they'll go many years before they have them. 18 So there's not an even distribution of 19 these, and that means that the need for police services 20 in these isn't uniform. We thought we'd see form the 21 statistics that there was an enormous number from 22 Toronto. That wasn't true, and at least it wasn't true 23 as our statistics with their limitations reveal them. 24 So I think it probably would be a great 25 advantage to police forces, and thereby Crowns, and the
2561 Administration of Justice, if there was a group of 2 officers and whether it was Metro officers in the OPP and 3 other representative forces, I think that would -- would 4 provide a real benefit for police agencies. 5 Secondly, I wouldn't want -- 6 MR. MARK SANDLER: Can I just stop you -- 7 MR. JOHN AYRE: Sure. 8 MR. MARK SANDLER: -- there for one (1) 9 moment because I neglected to ask this question a little 10 earlier, and I'll ask it now of -- of either Detective 11 Sergeants. 12 Leaving aside pediatric death 13 specialization or expertise, are there other areas where 14 there are resource teams in the Province for -- for 15 police? In other words, in big case management or -- or 16 in other areas where -- where you can contact, through 17 some mechanism, a police officer with expertise in -- in 18 other areas or do you know? 19 MR. CHRIS BUCK: Well, I mean there's 20 certain areas the -- there's the -- the Serial Predator 21 Organization within the OPP at -- that's an OPP function, 22 that we could reach out to them. I don't know if there's 23 actual centralized areas where we could approach. I 24 mean, they're certainly not identified clearly. 25 If an officer in an -- in an outside
2571 agency was looking for a particular line of information 2 or -- or even to the extent that we've been speaking 3 today, there's not a local -- like a certain number; they 4 could pick up a phone and say, I'm looking for 5 information on... 6 COMMISSIONER STEPHEN GOUDGE: I mean, 7 that's what I was wondering as you were talking earlier, 8 Sergeant Buck, whether there's any kind of repository of 9 names of trained and highly sophisticated officers that 10 any officer in the Province, stuck with his ver -- or her 11 very first difficult investigation in a pediatric death, 12 can call for guidance. 13 Because that would be sensible, wouldn't 14 it? 15 MR. CHRIS BUCK: It would be sensible. 16 There is no central number. I suspect it would be up to 17 the individual investigator to say, Maybe I'll phone the 18 Homicide Squad in Toronto, or if they're in Kenora -- 19 Kenora, they may -- 20 COMMISSIONER STEPHEN GOUDGE: That's all 21 word of mouth -- 22 MR. CHRIS BUCK: Exactly. 23 COMMISSIONER STEPHEN GOUDGE: -- that's 24 all word of mouth. I heard one of you mention a protocol 25 negotiated between Chiefs of Police, and my heart sinks
2581 at the prospect of months of diplomacy working out that 2 protocol. 3 I mean, it does seem to me to be a highly 4 sensible thing if, you know, people with your skill-set 5 are available to be tapped into by -- Sergeant MacLellan 6 when he was here, was very open about the challenge he 7 had with his first pediatric death investigation, where 8 he wanted to do everything right and was doing it for the 9 first time. 10 MR. CHRIS BUCK: There's an informal way 11 of -- of people contacting other -- other police 12 officers with certain skill-sets. A lot of the training 13 sessions that our officers go to and officers from 14 different police services all over Canada, they'll -- I 15 mean, there'll be a list of delegates -- 16 COMMISSIONER STEPHEN GOUDGE: Right. 17 MR. CHRIS BUCK: -- that have attended, 18 and that's like sort of like an informal way of putting 19 people in touch with other services. Because it's quite 20 often without the aid of a specific number or a name of 21 somebody to phone, you may say, Well, I'll phone and talk 22 to, you know, Frank Smith, who I met three (3) months ago 23 and I'll -- if he can't help me, he'll put me in the 24 direction. 25 But I agree it would be a useful resource
2591 for -- for police officers all over the Province. 2 3 CONTINUED BY MARK SANDLER: 4 MR. MARK SANDLER: Sorry, Mr. Ayre, I 5 interrupted -- 6 MR. JOHN AYRE: No problem. 7 MR. MARK SANDLER: -- you. You go ahead 8 then. 9 MR. JOHN AYRE: Thank you. Two (2) to 10 go. The Commissioner touched on something. I wanted to 11 just speak briefly about this issue of CAS protocols with 12 the police and -- and guidelines for the ongoing exchange 13 of information and the vehicle by which to do it. The 14 Commission may want to reflect on -- on recommending 15 protocols between police and their local CAS, because 16 they do have local working practices. 17 In large measure, I suspect it works very, 18 very well. The dilemma, of course, is the number of 19 police agencies. My counterpart in Simcoe County deals 20 with no fewer than twelve (12) police agencies: Barrie, 21 Collingwood, Federal police. If it's left to each police 22 agency to construct a protocol with their CAS there's 23 likely to be by and by the Chiefs of Police, etc. 24 And there needs to be -- perhaps the 25 recommendation might be for minimum recommended
2601 requirements of exchange and how they achieve that. 2 COMMISSIONER STEPHEN GOUDGE: Or a 3 prototypical -- 4 MR. JOHN AYRE: Exactly, because there -- 5 COMMISSIONER STEPHEN GOUDGE: -- protocol 6 or something. 7 MR. JOHN AYRE: -- there seems to be a 8 lacuna in terms of the uniformity of that and how it's 9 achieved, if it exists at all in writing. So -- 10 COMMISSIONER STEPHEN GOUDGE: But I hear 11 you saying, Mr. Ayre, is that the desirable way to go 12 about it is locality by locality, albeit with some 13 province-wide minimum standards or something? 14 MR. JOHN AYRE: Minimum recommended 15 standards, yes. 16 COMMISSIONER STEPHEN GOUDGE: Okay. 17 MR. JOHN AYRE: And finally, I wanted to 18 -- I didn't want to be mistaken in terms of the case 19 conferencing, because I think in the circumstance that 20 Dr. Lauwers mentioned, I can understand the Crown 21 attending a case conference. 22 And I'm mindful of Justice Campbell's 23 report, the Green Ribbon Report, where he recommended, he 24 encouraged case conferences. I think there's real value 25 added to that, and if -- in those circumstances that he
2611 mentioned, I can well understand the Crowns attending, 2 mindful of the policies that govern us. That is distinct 3 from our initiative of a pre-charge consult with the 4 police, which would be a Crown-police, thereby privileged 5 consult. 6 And we hope that would be, in terms of our 7 initiatives, the pause, the critical conclusions check, 8 before -- and police have to operate on their own 9 initiative. It's their call, of course, if there's 10 public safety issues. But where the opportunity presents, 11 if there's that pre-charge consult distinct from a case 12 conference, then we can use that as a critical 13 conclusions check before we take these steps which are 14 very significant for many people. 15 COMMISSIONER STEPHEN GOUDGE: Okay. 16 That's helpful. 17 18 CONTINUED BY MR. MARK SANDLER: 19 MR. MARK SANDLER: Dr. Lauwers...? 20 DR. ALBERT LAUWERS: Thank you, Mr. 21 Sandler. One (1) of my tasks from the Chief Coroner is 22 to assist here with writing recommendations for 23 submission at the end of the Inquiry, and I'll defer any 24 recommendations to that time. 25 MR. MARK SANDLER: All right. Thank you.
2621 Dr. Ranson...? 2 DR. DAVID RANSON: I think many things 3 have come up, and I -- and I think I've managed to get 4 across many of the views I had. Perhaps the one I would 5 want to emphasize is that ensuring a proper, and 6 responsive, and efficient forensic pathology service 7 requires the building of an infrastructure which has a 8 strong corporate, albeit public service corporate base, 9 to allow all of those resource bases that any efficient 10 commercial office would run to have. 11 And that means things like quality 12 management systems. It means audit systems. It means 13 trail systems. It means the data structures of knowing 14 what you're doing, how you're doing it, how individuals 15 are performing within it. 16 And that, I'm afraid, is -- is a costly 17 exercise. There's no doubt about it. You can't get away 18 from it. But I do believe that the benefits it offers 19 are the sorts of benefits that not only allow you to 20 improve services very significantly but to ensure 21 accountability through those services. 22 MR. MARK SANDLER: All right. Thank you. 23 Detective Sergeant Buck? 24 MR. CHRIS BUCK: There's a couple of 25 points that -- that sort of cry out for attention. The
2631 one (1) -- one (1) was -- was brought out about the -- 2 how to have the transparency of the conversation between 3 the pathologist and the officer in charge at the 4 completion of an autopsy. 5 And maybe the Commission could -- would -- 6 could assist in some way either with some recommendations 7 or -- or helping with the mechanics of how the 8 pathologists can best give us those interpretations and - 9 - and we're -- we're able to record them on and that 10 we've bantered it back and forth. 11 Falling short of standing -- standing next 12 to the pathologist with a digital recorder, is there some 13 way we can -- we can have it more clearly done so that 14 the optics of it, when we -- when we're both in court, is 15 that we've been open and -- and succinct with all our 16 conversations and our -- and our interpretations between 17 -- between the two people? 18 MR. MARK SANDLER: So you'd like some 19 assistance on that front? 20 MR. CHRIS BUCK: Yes, because I can see 21 that it's -- it's going to crop up in the future, not 22 only for our police service and our -- our -- our 23 pathologists in -- in Toronto, but I think, with some 24 assistance and some guidance we can all, at least, run 25 business in the same manner and so that there's no --
2641 there's no hidden -- there's no hidden agenda that people 2 feel that is behind the scenes. 3 It's everything is out front. This is 4 what I saw. This is what I -- I feel is the cause of 5 death, and here's the mechanics or -- or -- or something 6 of that nature; and from the flip side, the 7 investigators, us passing the information on to the 8 forensic pathologists so that there's no -- no 9 misinterpretation of what was -- what was given. 10 MR. MARK SANDLER: Thank you. 11 Detective Sergeant Giroux? 12 MR. GARY GIROUX: I can indicate that I'm 13 a big fan of the pathologists attending the -- the scenes 14 of deaths, and I know there is a protocol in place. 15 And I know that Dr. Pollanen has been at 16 many of my scenes, and I found it extremely helpful, not 17 only to -- to have him see the death scene firsthand but 18 also to -- to pass on to, not only the first responding 19 uniformed police officers but investigators who are 20 junior members of our particular office, some of his 21 expertise with regards to the examination of death scenes 22 and -- and what to look for and some of the pitfalls that 23 they may experience when they arrive. So I'm a big fan 24 of that, and I'd like to see it continue. 25 MR. MARK SANDLER: All right.
2651 Dr. Ranson, just -- time only permits me 2 to ask you just several very, very short questions. 3 We have some documentation that did come 4 from Australia in the compendium, and -- and it may speak 5 to several of the issues that we're dealing with now. So 6 I'm wondering just literally, in thirty (30) seconds, 7 whether I can ask you to describe the use of three (3) 8 documents that are contained in -- in the compendium that 9 you have. 10 The first one is at Tab 18. And could you 11 simply tell the Commissioner what -- what that document 12 is? It's PFP304276. 13 DR. DAVID RANSON: Yes. This is the 14 document which is called the "NCIS Minimum Data Set". 15 And this is, essentially, the data set that we use which 16 was developed through the National Coroners Information 17 System and has been used to try to improve the reporting 18 of deaths to the coroner by police. 19 It's -- it's a very large and extensive 20 document as -- in terms of a questionnaire but, in fact, 21 in its real form and it's intended to be used as an 22 electronic document so that if a case is of a particular 23 type, then only those sections would appear in the form 24 that relate to a case of that type. 25 But the -- the document is designed to try
2661 to standardize, to some extent, data provided to coroners 2 by police at the initial stages of an investigation; that 3 is the reporting of the death to the coroner. 4 MR. MARK SANDLER: And is this document 5 provided to the forensic pathologist as well? 6 DR. DAVID RANSON: That -- the -- the 7 contents of that that relate to the particular death 8 would be provided to the forensic pathologist. 9 The reas -- each Coroner's Office has, of 10 course, their own freedom to choose around Australia what 11 data they do collect from the police, and that's done in 12 conjunction with the police. 13 What we tried to do here is provide a 14 model document which we're trying to roll out to as many 15 places as possible to try to get standardization across 16 Australia from every State and Territory as to the 17 quality and the extent of the information provided to the 18 coroner at the initial referral of that death to the 19 coroner; recognizing that, of course, ongoing police 20 investigations might mean that some of the data gets 21 amended and changed over time. 22 MR. MARK SANDLER: So -- so am I right 23 that if a police officer, in your jurisdiction, were to 24 come to the autopsy, that officer could provide you with 25 this document and then supplement it with -- with
2671 whatever information has already been gleaned at that 2 point in the investigation? 3 DR. DAVID RANSON: That -- that's right. 4 Essentially, hopefully, that information -- the idea -- 5 and we're still in the phases of developing this and 6 rolling this sort of process out -- the idea is that that 7 could be completed electronically at the police station 8 or even in a mobile form. 9 And it would come in on the -- on a 10 network link and would be present then within our case 11 management system. And that would then become available 12 as a -- as a document within the case management system 13 relating to that case. 14 MR. MARK SANDLER: All right. And then 15 Tab 19...? 16 DR. DAVID RANSON: Tab 19 refers to the 17 Infant Death Investigation -- Infant Investigation form. 18 Now, this is a document that -- one (1) of 19 the things that we did early on in our work, linked both 20 to research but also to operational matters of 21 investigating infant deaths, we had an approach which 22 meant that in all deaths that were, I think, within a 23 three (3) hour journey radius of our centre, which would 24 conclude a great proportion of our State. 25 We would send out one (1) of our science -
2681 - mortuary science staff to the scene, not necessarily 2 the same day of the death, maybe sometimes the day after, 3 and they would attempt to collect as much information as 4 possible. 5 This was quite separate from any police 6 investigation that might be -- might be going on, and 7 certainly was not meant to overtake a criminal 8 investigation process. 9 This is more designed to deal with those 10 matters which were not thought to be of criminal intent, 11 but to give the pathologist far more information that 12 might otherwise be easily collected by the uniformed 13 police officer who had attended the scene originally. 14 And it related to things that link to and 15 explore the issues around some of the associative factors 16 with -- with SIDS and so on. 17 MR. MARK SANDLER: All right. And then 18 finally, Tab 21. 19 DR. DAVID RANSON: Tab 21 related to a 20 form that we do have in our system; relates to a 21 conversation record. And this is, I suspect, not used as 22 wide as it should be within our organization. But it is 23 a record of a communication that takes place. 24 So, for example, if in the -- you know, in 25 the middle of the day, a family member was to ring up and
2691 speak to a pathologist and want to ask a lot of questions 2 and so on. There might be reasons why one (1) might not 3 have that conversation, but there might be reasons why 4 you would. 5 And that we would use a form, such as 6 this, to fill it out; jot down those conversations, and 7 it's available in our electronic document system. So if 8 you're sitting at your desk and the phone rings, really 9 all you have to do is to call up the document in the case 10 management system and print that out. You can then write 11 on it. 12 And you can also -- there's also areas in 13 our case management system where you can add comments to 14 a record, to include that as well. 15 MR. MARK SANDLER: Now -- 16 DR. DAVID RANSON: And we do have quite 17 detailed transaction stam -- automatically transaction 18 stamped communications fields in our case management 19 system as well. 20 MR. MARK SANDLER: And would this include 21 and could this be used for conversations with police 22 officers, other physicians and the like? 23 DR. DAVID RANSON: Yes, it certainly 24 could. It's not -- it currently isn't used particularly 25 in that way. It was more for, you know, telephone calls
2701 out of the blue rather than what I call the formali -- 2 "formal process" that would take place within a 3 particular routine case investigation. 4 MR. MARK SANDLER: All right. Thank you 5 very much. 6 I know, Commissioner, that there's several 7 questions that counsel wish to ask. Mr. Gover, I believe 8 has a question. 9 MR. BRIAN GOVER: One. 10 11 QUESTIONED BY MR. BRIAN GOVER: 12 MR. BRIAN GOVER: And my question is for 13 you, Dr. Ranson and it relates to this question of 14 timeliness of reports. 15 And I've heard what you said about multi- 16 factorial causes for delay in timeliness of -- of -- or 17 delay in preparation rather of post-mortem reports. 18 Toxicology is a contributor to delay and 19 we've heard that in your jurisdiction, reports that 20 involve waiting for results from toxicology take four (4) 21 to six (6) weeks. 22 Is that right? 23 DR. DAVID RANSON: Yes, it would depend a 24 little bit. That's the sort of the main -- the mainframe 25 of those. And for exa -- it depends a little bit on the
2711 -- what the results are. 2 For example, if you carry out a full drug 3 screen and there are no drugs detected, you will probably 4 find that information out within a couple of weeks. If 5 however, a -- a drug is detected, or a range of drugs are 6 detected, then the toxicology lab will carry on and carry 7 out quantification of the amounts of those particular 8 drugs and perhaps confirm those particular drugs using a 9 different test method as well. 10 And that's when it would extend out for a 11 longer period of time. And the number of drugs found 12 will depend of course -- will also give a -- have an 13 impact on the amount of time. 14 We're fortunate in that our toxicology 15 facilities are part of our same office in our same 16 building, so for -- for me I can go to see my 17 toxicologist any time within that phase. They may well 18 be able to give me the result of one (1) or two (2) of 19 the drugs that have been confirmed so I can pass that on. 20 So there is -- again, it re-enforces the 21 issue about communication with the investigators being a 22 regular and continuing process. 23 MR. BRIAN GOVER: Right. And are 24 benchmarks in place for both the -- the straightforward 25 case that you've described and the case where you're
2721 waiting for quantification? 2 DR. DAVID RANSON: I'm not aware of 3 specific benchmarks in that way apart from the ones that 4 I've already given you; that is the issue that most of 5 these results will be well on within a couple of weeks if 6 there's nothing detected. And it may take up to six (6) 7 weeks or so. 8 There will be the odd occasion where 9 special drugs, particularly say the muscle relaxant 10 blocking drugs and so on may well take a longer period of 11 time as some of the -- we have to send some of those 12 things out, and they may only be run four (4) times a 13 year in some centres. 14 But apart from that -- that -- we do 15 follow-up and have a -- a quality system that actually 16 looks at what the toxicology lab is reporting and when it 17 occurs. So if there was a major glitch in a particular 18 drug -- timeliness of a particular drug being reported, 19 that will be detected by our system, I'm aware -- as far 20 as I'm aware. 21 MR. BRIAN GOVER: Thank you. 22 COMMISSIONER STEPHEN GOUDGE: Dr. Ranson, 23 just to make sure I understand, is the toxicology you 24 access part of the Institute? 25 DR. DAVID RANSON: Yes, it is.
2731 COMMISSIONER STEPHEN GOUDGE: So it comes 2 under your governance structure? 3 DR. DAVID RANSON: It does. And as I 4 said, there will always be some substances -- 5 COMMISSIONER STEPHEN GOUDGE: Sure. 6 DR. DAVID RANSON: -- that we can't -- 7 COMMISSIONER STEPHEN GOUDGE: That 8 would -- 9 DR. DAVID RANSON: -- then -- the we are 10 still in -- 11 COMMISSIONER STEPHEN GOUDGE: You'll 12 have -- 13 DR. DAVID RANSON: -- control of that 14 process. 15 COMMISSIONER STEPHEN GOUDGE: -- and so 16 on? 17 DR. DAVID RANSON: Yeah. 18 COMMISSIONER STEPHEN GOUDGE: Okay. 19 MR. MARK SANDLER: Commissioner, that 20 completes both my questions and the questions of other 21 counsel. So I'm very, very grateful to the panel. This 22 has been extraordinarily helpful. Thank you so much. 23 COMMISSIONER STEPHEN GOUDGE: Yes, thank 24 you, on my behalf. I've found this afternoon, once 25 again, very, very interesting, so thank you all for
2741 coming. 2 We'll adjourn then until 9:30 tomorrow 3 morning. 4 5 --- Upon adjourning at 4:16 p.m. 6 7 8 9 10 Certified Correct, 11 12 13 14 __________________ 15 Rolanda Lokey, Ms. 16 17 18 19 20 21 22 23 24 25