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 13th, 2008 25
21 Appearances 2 Linda Rothstein ) Commission Counsel 3 Mark Sandler (np) ) 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 ) 11 Sara Westreich (np) ) 12 13 Brian Gover (np) ) 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 Paul Cavalluzzo (np) ) Ontario Crown Attorneys' 3 Association 4 5 Mara Greene (np) ) Criminal Lawyers' 6 Breese Davies (np) ) Association 7 Joseph Di Luca (np) ) 8 Jeffery Manishen (np) ) 9 10 James Lockyer (np) ) William Mullins-Johnson, 11 Alison Craig ) Sherry Sherret-Robinson and 12 Phillip Campbell (np) ) seven unnamed persons 13 14 Peter Wardle (np) ) Affected Families Group 15 Julie Kirkpatrick (np) ) 16 Daniel Bernstein (np) ) 17 18 Louis Sokolov (np) ) Association in Defence of 19 Vanora Simpson (np) ) the Wrongly Convicted 20 Elizabeth Widner (np) ) 21 Paul Copeland (np) ) 22 23 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 ) Ministry of the Attorney 11 Heather Mackay ) 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 ) 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 OVERSIGHT AND ACCOUNTABILITY PANEL: 3 4 LORNE SOSSIN 5 STEPHEN CORDNER 6 DAVID RANSON 7 RAY PRIME 8 9 Questioned by Ms. Linda Rothstein 8 10 Questioned by Ms. Suzan Fraser 171 11 Questioned by Ms. Jackie Esmonde 177 12 Questioned by Ms. Alison Craig 185 13 Questioned by Ms. Carolyn Silver 189 14 15 16 Certificate of transcript 192 17 18 19 20 21 22 23 24 25
61 --- Upon commencing at 9:31 a.m. 2 3 THE REGISTRAR: All rise. Please be 4 seated. 5 COMMISSIONER STEPHEN GOUDGE: Okay. Sit 6 down everybody, please. 7 Ms. Rothstein...? 8 MS. LINDA ROTHSTEIN: Thank you very 9 much, Commissioner. I have the pleasure of welcoming two 10 (2) new panellists. 11 I'd like to introduce Professor Lorne 12 Sossin. As you know, Commissioner, he is a professor at 13 the Faculty of Law at the University of Toronto. His 14 teaching interests are varied. They span administrative 15 law, public administration, professional regulations, 16 civil litigation, ethics, professionalism, and legal 17 process. 18 Professor Sossin holds doctorates in law 19 from Columbia University, and in political science from 20 the University of Toronto. Welcome, Professor Sossin. 21 DR. LORNE SOSSIN: Thank you. 22 MS. LINDA ROTHSTEIN: And I should also 23 say for those who are not Inquiry afficionados that 24 Professor Sossin has been very involved in the research 25 agenda for this Inquiry.
71 I would also like to welcome Dr. Ray 2 Prime. Dr. Prime is the Director of Ontario's Centre of 3 Forensic Sciences. He holds a doctorate in analytical 4 chemistry from McMaster University. 5 Following a post-doctoral fellowship at 6 the Trace Analysis Research Centre, Dalhousie University 7 he joined the chemistry section of the Centre of Forensic 8 Sciences in 1973. 9 Dr. Prime's professional affiliations 10 include membership in the Canadian Society of Forensic 11 Science, the International Association of Chiefs of 12 Police, the Forensic Science Committee, and the American 13 Society of Crime Laboratory Directors. 14 And, Dr. Prime, we are very grateful to 15 you for attending, thank you. 16 And as you know, Commissioner, Dr.'s 17 Cordner and Ranson are back, weather notwithstanding they 18 seem to be tolerating well this very, very wintery 19 February. So you know, both of you, this not 20 characteristic; we now have three (3) times the snow that 21 we normally expect in February. 22 Dr. Ranson, as you'll recall, 23 Commissioner, has been very, very involved in the quality 24 assurance side of the Victorian Institute of Forensic 25 Medicine. And Dr. Corner has been, as you know, very
81 involved in helping to create the organizational 2 framework for oversight and accountability at that 3 Institute, so we're very delighted to have their 4 participation today. 5 6 OVERSIGHT AND ACCOUNTABILITY PANEL: 7 8 LORNE SOSSIN 9 STEPHEN CORDNER 10 DAVID RANSON 11 RAY PRIME 12 13 QUESTIONED BY MS. LINDA ROTHSTEIN: 14 MS. LINDA ROTHSTEIN: I thought it might 15 be useful given the breadth of today's roundtable to try 16 and sketch our for everyone, but mostly for my 17 colleagues, what we're attempting to achieve this 18 morning. 19 We are going to see whether we can 20 conceptually distinguish between a number of the concepts 21 that have been used over the last week and I'm sure will 22 be very much a part of today's conversation: 23 The concepts of oversight and 24 accountability; whether those are actually conceptually 25 distinct and to what extent they can be distinguished
91 meaningfully. The concept of a quality assurance 2 mechanism or system. We're going to look at peer review 3 as an aspect of those concepts. 4 We're going to discuss the issue as to 5 whether or not technology can be part of quality 6 assurance in a modern organization, particularly a modern 7 scientific organization. 8 We're looking -- going to look at 9 accreditation mechanisms. We're going to discuss 10 corrective measures, that is to say the oversight and 11 accountability that occurs after the fact, of errors, and 12 the various documentation and disclosure issues that 13 follow from a consideration of corrective procedures. 14 We're going to look at an organizational 15 design yet again, and we are mindful of the fact that we 16 have asked four (4) persons who are external to the 17 organizations that we have been considering and the 18 workings of the OCCO to give us their comments. 19 We're hopeful that what they can do for us 20 today is share not only their views at 30,000 feet of how 21 quality management can best be achieved at that level, 22 but also their day-to-day experiences on the ground with 23 how that's actually done in practice. 24 And so with that overview in mind I'm 25 going to ask the first really open-ended question and I'm
101 going to ask if you, Professor Sossin, because you've 2 done a lot of reading in the aridy -- in the area of 3 accountability and -- and oversight, whether those are 4 two (2) conceptually distinct concepts, and if so, how 5 you would distinguish them. 6 DR. LORNE SOSSIN: Thank you. There is 7 no scientific definition of accountability or oversight, 8 so we are going to be in terrain that is about ideas that 9 are contested, but I think there is a coherent way of 10 distinguishing these two (2) concepts. 11 I see accountability as the overarching 12 framework, and this has been related to public confidence 13 in the death investigation system; it's been spoken of as 14 who answers for all of the activities engaged in death 15 investigation, and I think that's also right. 16 So I would see transparent -- sorry, 17 accountability as having four (4) prongs, or pillars has 18 been a word used a fair bit at -- at these roundtables. 19 One (1) is transparency. And transparency 20 would include everything from the fact that we 21 memorialize much of a death investigation, whether a 22 post-mortem report or a coroner's investigative statement 23 summaries. All of the things we write down is part of 24 transparency and so is data collection on time lines, on 25 staffing. All of this and its availability for scrutiny
111 is a key component of accountability. 2 Second, I would say is standards; that is, 3 the development of guidelines for the conduct of the 4 different steps in a death investigation. 5 And I would include in the sense of 6 guidelines also mechanisms like peer review, maybe even 7 quality assurance, that engage how these standards are 8 going to be put in place. And it could also include 9 having accreditation so that you're being measured on 10 whether you have the systems and standards in place. So 11 that's the second prong of accountability. 12 Third, I see as oversight. And oversight 13 is the ability, both internally and externally, to review 14 whether standards are complied with, whether errors are 15 occurring, and intervene in a corrective or remedial way 16 to deal with that. 17 So oversight can come from supervision; it 18 can come from bodies like the Paediatric Death Review 19 Committee that are looking into the conduct of a death 20 investigation; it can come from outside bodies, and I 21 would say it includes, although not the subject of 22 today's discussion, complaint mechanisms that also engage 23 other oversight bodies. So internal/external, 24 independent and part of the organization. 25 But what distinguishes oversight is this
121 mandate to not simply review but where there is a concern 2 to be able to take steps to intervene to remediate. 3 And then lastly is this notion of 4 answerability, the fourth prong of accountability; that 5 you have an ability to arrange of other institutions and 6 individuals to take responsibility for the outcome and 7 the quality and the integrity of a death investigation. 8 So under the Coroners Act, we know the 9 Chief Coroner has this accountability built in, but we 10 also think of accountability as to stakeholders, to 11 affected parties. We think of answerability, finally, in 12 a general sense to the public, and that of course builds 13 back in why we have transparency, why we have standards, 14 why we have oversights. 15 So I took a little bit of time with that 16 because I think it is a -- they're both slippery 17 concepts. They are distinct but I would see the 18 overarching framework as accountability, and an important 19 element within that as oversight. 20 MS. LINDA ROTHSTEIN: So you would see 21 oversight, in effect, as a component of a broader concept 22 of accountability, if I understand you, Dr. Sossin? 23 DR. LORNE SOSSIN: I think that's right. 24 And I would say accountability is not simply having one 25 (1) of those prongs; I would say we also think of
131 accountability as an evaluative methodology; in other 2 words, we want to say, Are you accountable enough? And I 3 think the way you evaluate is by looking at those four 4 (4) and saying, Are these all in place? 5 And this has been a moving target with 6 respect to death investigations. We've seen the 7 development, for example, of sta -- guidelines and 8 standards where before they were just through practice 9 and custom. We've seen clearly at -- attention to review 10 an oversight that was not there in the past. 11 And in my paper and in my thinking, if 12 you're truly looking at oversight you include bodies like 13 this Inquiry, a judicial review, the media, NGOs like 14 AIDWYC; all form part of that structure but many of these 15 are not within the organizational design. But I think if 16 you're going to understand accountability it has to be 17 from that broad standpoint and not just from who reports 18 to who within the organization. 19 COMMISSIONER STEPHEN GOUDGE: Can I just 20 ask a couple of questions, Professor Sossin. 21 One (1) is does what you have just 22 described, which seems very coherent to me, does it 23 reflect any organizational theory or is this the Sossin 24 definition of accountability and oversight? 25 DR. LORNE SOSSIN: No. You know, it is
141 an evolving field. I -- and I have relied on a recent 2 text Michael Dowdell published on public accountability. 3 This is an amalgam of people coming out of sociology, 4 coming out of law, coming out of politics and I'd say 5 what I've tried to do is provide a synthesis. So I 6 wouldn't want to -- 7 COMMISSIONER STEPHEN GOUDGE: Right. 8 DR. LORNE SOSSIN: -- take credit for 9 inventing anything, but it's also probably true that no 10 one has written it down in exactly this way. 11 But I'd say that if you got together all 12 those people in a room they would mostly nod their head 13 at most of this. They might take issue with one (1) or 14 two (2), but I think it's fair to say it represents a 15 consensus view on how to -- 16 COMMISSIONER STEPHEN GOUDGE: Right. 17 DR. LORNE SOSSIN: -- understand -- 18 COMMISSIONER STEPHEN GOUDGE: Right. 19 DR. LORNE SOSSIN: -- accountability. 20 COMMISSIONER STEPHEN GOUDGE: Okay. The 21 second question is: 22 As I said yesterday, I am puzzled from the 23 first time I saw it, with the Order in Council that 24 directs this Inquiry, it has a third notion besides 25 accountability and oversight and that's quality control.
151 Where does it fit in your scheme of things? 2 DR. LORNE SOSSIN: Well I think quality-- 3 COMMISSIONER STEPHEN GOUDGE: I mean, 4 take it out of the Order in Council, and lets not make 5 this a letter of interpretation task, but just as sort of 6 a management -- 7 DR. LORNE SOSSIN: Sure. 8 COMMISSIONER STEPHEN GOUDGE: -- 9 organizational theory. 10 DR. LORNE SOSSIN: I think it -- it also, 11 as I said earlier, would fit within the rubric of 12 accountability. In other words, and accountable 13 organization is one that has quality assurance 14 mechanisms, but I see it as -- 15 COMMISSIONER STEPHEN GOUDGE: Is there 16 any real difference between oversight mechanisms and 17 quality control mechanisms, or are they more or less 18 aimed at the same thing -- 19 DR. LORNE SOSSIN: I -- 20 COMMISSIONER STEPHEN GOUDGE: -- that is 21 reviewing work and intervening to correct? 22 DR. LORNE SOSSIN: I think there is a 23 difference, because I would say that the description that 24 you've just given really captures oversight. Quality 25 assurance, I think, is also meant to be a regenerative
161 tool to continually improve the quality of a given 2 service or activity. So for instance -- 3 COMMISSIONER STEPHEN GOUDGE: So it has a 4 prospect of dimension? 5 DR. LORNE SOSSIN: Exactly. And I think 6 it would include things like -- you asked a question a 7 couple of days ago about once you've been accredited, two 8 (2) or three (3) years later do you have to return to 9 some body to assess whether you're still meeting those 10 standards. 11 And -- and what about when those standards 12 change; there's a new guideline, there's new science; how 13 do you show your ongoing engagement with that field? To 14 me that's quality assurance. 15 And it's both perspective, but also as we 16 know from a number of professions that have quality 17 assurance committees, it can be an -- an additional 18 support, not a sanction, but a support that comes out of 19 oversight. 20 So it may be that you see concerns through 21 your oversight that someone just isn't properly 22 understanding a particular procedure. Well, the answer 23 isn't to remove them from the work, because they're 24 otherwise a competent professional. 25 The answer may be a quality assurance
171 program of ongoing education and monitoring to provide 2 the supports to enable them to contribute more 3 constructively to the quality of the output. 4 So to me that's not oversight. It may be 5 a product of oversight. It certainly is happening within 6 a framework of accountability, but it's an ongoing day to 7 day aspect rather than oversight, which I think occurs at 8 specific junctures. 9 You -- you can look at -- at peer review 10 as a -- as a kind of oversight in the -- 11 COMMISSIONER STEPHEN GOUDGE: Right. 12 DR. LORNE SOSSIN: -- work in progress. 13 COMMISSIONER STEPHEN GOUDGE: Right. 14 DR. LORNE SOSSIN: PDRC, for example, is 15 oversight in -- in a short time frame. Afterwards, 16 judicial review might be a different kind of oversight 17 long after the fact. 18 COMMISSIONER STEPHEN GOUDGE: Right. 19 That's helpful, thanks. 20 21 CONTINUED BY MS. LINDA ROTHSTEIN: 22 MS. LINDA ROTHSTEIN: Dr. Cordner, what's 23 your perspective on all this? 24 DR. STEPHEN CORDNER: Well, that was a 25 very clear introduction, if I may -- if I may say so.
181 And that -- I and just -- I suppose I was thinking that 2 when I just see oversight and accountability without any 3 other qualifiers, you do think of it in a broadest 4 conception term from a forensic pathology point of view. 5 It extends from the technician standing 6 next to the pathologist doing the autopsy and saying, 7 Hey, doc, you forgot to put some of this tissue in for 8 histology. It extends from there right up to being asked 9 a question by a Barrister during a trial. 10 So when we talk about it in the next two 11 (2) or so hours, it will be helpful, I think, to either - 12 - are we talking about it in it's broadest conception or 13 are we talking about it within what -- within our control 14 as an institution of forensic pathology? Or are we 15 talking about it within one (1) section of that -- 16 COMMISSIONER STEPHEN GOUDGE: Right. 17 DR. STEPHEN CORDNER: Are we talking 18 about it as forensic pathologists within a coroner's 19 system, which broadens it a bit more. So I think to be 20 clear about what component of the section we're talking 21 about -- of the system we're talking about, might be -- 22 might make it easier to discuss it. 23 24 CONTINUED BY MS. LINDA ROTHSTEIN: 25 MS. LINDA ROTHSTEIN: Dr. Prime, as
191 someone who as assisted the Centre of Forensic Sciences 2 in dealing with concerns that arose with respect to the 3 accountability and oversight mechanisms that were in 4 place and were seen to have had a role in the wrongful 5 conviction of Guy Paul Morin, and as someone who's been 6 instrumental in putting forward and making effective the 7 recommendations from the Kaufman Inquiry, which followed 8 that, what's your approach to this broad question of 9 oversight and accountability? 10 DR. RAY PRIME: I think the oversight 11 issue is one that's an organizational one, and I think 12 the organization needs to put in various things that are 13 related at quality assurance and quality assurance 14 mechanisms. 15 I think quality assurance becomes a 16 management value system and I think that's what we've 17 tried to do at the Centre of Forensic Sciences to ensure 18 that we have a system that everyone is buying into, and 19 everyone then has some level of accountability for it. 20 I think forensic science has a public 21 dimension, and -- and some of the individuals that are 22 involved in a forensic system are working under a system 23 that we try to put into place, which values quality and 24 quality assurance, but they are also working in the 25 environments external to the laboratory, and the -- the
201 quality system has to extend to that. 2 But the individuals at all levels of the 3 organization have accountability for what they do, and I 4 think the accountability part falls on the -- on the 5 individual. 6 MS. LINDA ROTHSTEIN: Okay. And Dr. 7 Ranson, do you have some comments that you want to make 8 at this early stage, about how we broadly conceive of the 9 notion of oversight, and perhaps distinguish it from 10 accountability? 11 DR. DAVID RANSON: Perhaps I could 12 provide for sort of -- sort of simplistic model. To my 13 mind, if you take the two (2) terms, oversight and 14 accountability, they form part of a spectrum. And I 15 suppose at the extreme end of the spectrum of 16 accountability you might have ministerial accountability, 17 where -- where the Minister perhaps has no direct 18 individual knowledge of the steps, and processes, and so 19 on, but has that political accountability for the 20 operation of a -- of a Ministry. 21 And at the far -- at the bottom end, if 22 you like, of the details of what goes on in the -- the 23 mortuary for pathologists, you've got somebody who's 24 standing over the shoulder. They're actually quite 25 specifically looking at the fine details of what the
211 person's doing. 2 So you've got really quite a wide 3 spectrum, and I think accountability actually overlaps in 4 the middle. So you have ministerial, if you like, at -- 5 at one (1) end of the process, and you've got an 6 individual sort of responsibility for the practical day- 7 to-day activities at the other end. 8 And I think where you -- where you put the 9 boundary between the two (2) concepts is a little bit 10 flexible, and it will be flexible for different 11 organizations. 12 MS. LINDA ROTHSTEIN: Okay. So from 13 30,000 feet, I want to go down to ground level and see if 14 we can start to develop these concepts by moving upwards 15 in our analysis. 16 So we go down to ground level. It does 17 sound to us, Dr. Cordner, from looking at your paper, 18 like peer review is perhaps one of the best means by one 19 -- by which one achieves a quality management of an 20 organization. 21 Tell us how you use peer review; what it 22 actually looks like every day in your workplace. 23 DR. STEPHEN CORDNER: Well, first of all, 24 peer review is one (1) part of a whole quality management 25 system. So it is a very important part, but it is one
221 (1) part of it. 2 We -- at the Institute, we believe we've 3 got a quality management system, and an important part of 4 it is peer review. 5 In terms of peer review, I set quite a lot 6 of stock on a collegiate atmosphere; that's the first 7 thing; that we have a group of peer professionals who 8 have different personalities, but who know that part of 9 their daily life is sharing their work with their 10 colleagues. 11 So that's the first thing. But that -- 12 MS. LINDA ROTHSTEIN: So, stop -- 13 DR. STEPHEN CORDNER: -- that's very 14 informal. 15 COMMISSIONER STEPHEN GOUDGE: Yes, right. 16 Remind us of the numbers, Dr. Cordner. 17 MS. LINDA ROTHSTEIN: -- yes, exactly. 18 DR. STEPHEN CORDNER: Okay. Well we have 19 -- we have a six point three (6.3) full time equivalent 20 pathologists, but that's spread over about nine (9) 21 pathologists -- 22 COMMISSIONER STEPHEN GOUDGE: Right. 23 DR. STEPHEN CORDNER: -- okay, including 24 myself. 25 COMMISSIONER STEPHEN GOUDGE: Right.
231 DR. STEPHEN CORDNER: So, some of those-- 2 COMMISSIONER STEPHEN GOUDGE: And in 3 addition, you would have other adjunct scientists? 4 DR. STEPHEN CORDNER: Yes. Oh yes, and-- 5 COMMISSIONER STEPHEN GOUDGE: And you 6 include them in this notion of -- 7 DR. STEPHEN CORDNER: I do, and in their 8 own areas, but -- 9 COMMISSIONER STEPHEN GOUDGE: Right. 10 DR. STEPHEN CORDNER: -- perhaps I find 11 it easier to talk about the pathologists. 12 COMMISSIONER STEPHEN GOUDGE: Okay. 13 DR. STEPHEN CORDNER: So I actually think 14 the fact that they're in the one (1) place, and the fact 15 that there is a collegiate atmosphere is a -- is an 16 important first step. 17 But then there are more formal aspects of 18 -- of peer review, so that on two (2) mornings of the 19 week, on Tuesday morning at 8:30 and Thursday mornings at 20 eight o'clock, we have a -- a meeting which the 21 pathologists alone attend, and then a -- a wider meeting 22 where the pathologists with other medicals and scientists 23 attend. 24 The purpose of the meeting is to present 25 cases.
241 MS. LINDA ROTHSTEIN: So it's really -- 2 COMMISSIONER STEPHEN GOUDGE: What I 3 would call rounds? 4 DR. STEPHEN CORDNER: You -- a round. 5 MS. LINDA ROTHSTEIN: Yeah. 6 DR. STEPHEN CORDNER: So that -- and 7 again that isn't by an agenda; people bring their cases 8 along. 9 It's very important -- and this is where 10 error can slip in. It's very important that there is 11 equal participation by everybody in those meetings, and 12 that everybody is exposing themselves to the group by 13 presenting their work, and having it challenged. 14 Every day in the mortuary, pathologists 15 interact in the mortuary, and share their -- share their 16 experiences. The pathologists will have trainees or 17 students with them, so they're having to discuss their 18 case but perhaps not with -- perhaps not with peers. 19 We have a system where forensic cases 20 undergo a technical review so that a defined group of 21 cases, which includes pediatric deaths, deaths where the 22 cause of death is unascertained, deaths where a homicide 23 squad is involved, or suspicious deaths; plus any case 24 which a pathologist feels one of their colleagues would 25 think this case should be subject to technical review.
251 The materials in that case are provided formally to 2 another pathologist who completes a form which is part of 3 a -- part of the paper. 4 So every case has an administrative review 5 so that, yes, the autopsy report's here and we think 6 there aren't any spelling mistakes; it's got the dates, 7 the name, got a cause of death, got the toxicology 8 report; it's got all of the elements that go to at least 9 making a formal document. That's not -- that's an 10 administrative quality as opposed to a -- as opposed to a 11 technical quality. 12 Every quarter in the institute -- twenty- 13 five (25) cases are picked at random by the computer, and 14 those cases provided to a pathologist who makes sure that 15 they conform with our published minimum standard. So the 16 elements of peer review are both formal and informal, and 17 you would not want to underestimate the power of the 18 informal in considering the totality of the process. 19 20 CONTINUED BY MS. LINDA ROTHSTEIN: 21 MS. LINDA ROTHSTEIN: You just -- 22 COMMISSIONER STEPHEN GOUDGE: Can I just 23 --sorry, ms. Rothstein. 24 Can I just press you a little bit, Dr. 25 Cordner, about how one creates this collegial working
261 atmosphere that you've referred to several times as being 2 absolutely vital to the kind of quality management that 3 is essential. I mean, you listed a number of steps: all 4 being in the same place; the -- 5 DR. STEPHEN CORDNER: Yes. 6 COMMISSIONER STEPHEN GOUDGE: -- twice 7 weekly rounds, the technical review, the administrative 8 review of each case, the quarterly review of sample 9 cases. Those are precise ways that I take it help build 10 this collegial atmosphere. 11 Are there other ways? I mean, for 12 example, when you hire a pathologist, is that an 13 important dimension of the hiring process? 14 DR. STEPHEN CORDNER: Well, the 15 employer's in a weak position these days hiring 16 pathologists, because they're in short supply. 17 COMMISSIONER STEPHEN GOUDGE: Right. 18 DR. STEPHEN CORDNER: So -- but you're 19 absolutely right. I think in an ideal world there is, 20 but I think, you know, but I -- a professional grouping 21 can tolerate a mix of personalities -- 22 COMMISSIONER STEPHEN GOUDGE: 23 Personalities. 24 DR. STEPHEN CORDNER: -- and it's 25 probably important that there is a mix of --
271 COMMISSIONER STEPHEN GOUDGE: Right. 2 DR. STEPHEN CORDNER: -- personalities 3 and that we're not all the same. But there is -- there 4 has to be work in the group to develop a shared set of 5 values and a shared set of what we're here for and a 6 shared set of what it's about. And as I mentioned in a 7 previous round table, we've been fortunate that five (5) 8 of the seven (7) full-time or almost full-time 9 pathologists were trained within the institution, so -- 10 COMMISSIONER STEPHEN GOUDGE: That's an 11 important way -- 12 DR. STEPHEN CORDNER: -- they have a long 13 life within the institution and we develop a modus 14 operandi as a close group. Interestingly, I wouldn't say 15 that the pathologists socially are all friends. 16 COMMISSIONER STEPHEN GOUDGE: Right. 17 DR. STEPHEN CORDNER: We don't -- 18 COMMISSIONER STEPHEN GOUDGE: That's not 19 essential, obviously. 20 DR. STEPHEN CORDNER: That's not 21 essential. It -- but I do -- actually, I'm very proud of 22 the colleg -- what I believe is a collegiate atmosphere. 23 COMMISSIONER STEPHEN GOUDGE: I take it, 24 what that facilitates is, in a difficult case, the 25 pathologist doing it, going to the next office and --
281 DR. STEPHEN CORDNER: Yes. 2 COMMISSIONER STEPHEN GOUDGE: -- saying, 3 Here's a problem, can you help? 4 DR. STEPHEN CORDNER: Why would anyone 5 want to go alone? Why would you want to go alone when 6 you can go and get help and assistance, and have the 7 benefit of knowing that actually you've got a group of 8 people who think the same? 9 COMMISSIONER STEPHEN GOUDGE: Yes, it 10 makes a lot of sense to me, but one wonders how one can 11 ensure in some -- 12 DR. STEPHEN CORDNER: Oh, you can't 13 ensure it, no. 14 COMMISSIONER STEPHEN GOUDGE: -- kind of 15 institutional sense that this vital element of quality 16 management -- 17 DR. STEPHEN CORDNER: But that's all 18 about the surrounding support -- the surrounding -- the 19 importance attached to it by government and -- government 20 departments and their -- all of the paperwork. 21 COMMISSIONER STEPHEN GOUDGE: Is it 22 partly, Dr. Cordner, in this very difficult area of 23 science a shared understanding that this is a difficult 24 area where certainty is not always there? 25 DR. STEPHEN CORDNER: Yeah, and within
291 the group there are different -- there are different 2 approaches to -- there would be some people within the 3 group who would be happy to own up to being, perhaps, a 4 little bit more definite than others in the group. 5 That -- that's -- 6 COMMISSIONER STEPHEN GOUDGE: Stay away 7 from the word "dogmatic", that's the only -- 8 DR. STEPHEN CORDNER: And -- but that's - 9 - I think there's a shared understanding about the 10 importance of avoiding dogmatism, but there -- 11 COMMISSIONER STEPHEN GOUDGE: But 12 communication is vital to that -- 13 DR. STEPHEN CORDNER: Yes. 14 COMMISSIONER STEPHEN GOUDGE: -- to the 15 process of putting definiteness in context, isn't it? 16 DR. STEPHEN CORDNER: Yes. 17 COMMISSIONER STEPHEN GOUDGE: Yes. 18 MS. LINDA ROTHSTEIN: Professor So -- 19 COMMISSIONER STEPHEN GOUDGE: But you 20 would agree this target is nebulous. 21 DR. STEPHEN CORDNER: It is nebulous, but 22 it's -- it really is behoven upon this system to provide 23 every opportunity for that to develop. 24 COMMISSIONER STEPHEN GOUDGE: Yes, what 25 I'm trying to get at is what pieces can be given to the
301 system to facilitate this outcome, and you've talked 2 about a number of specific pieces, but clearly one (1) of 3 the tasks we face is to try to make as precise as 4 possible what -- how that can happen. 5 DR. STEPHEN CORDNER: Well, I think it's 6 all about how -- I mean it -- it's not specific to 7 forensic pathology how you create a productive good 8 institution. 9 COMMISSIONER STEPHEN GOUDGE: Right. 10 Thanks, Ms. Rothstein. 11 12 CONTINUED BY MS. LINDA ROTHSTEIN: 13 MS. LINDA ROTHSTEIN: Professor Sossin, 14 you had a comment. 15 DR. LORNE SOSSIN: It's actually just an 16 elaboration on a peer review within a framework of 17 accountability because one comes across a certain tension 18 between -- and I say this about death investigation 19 professionals generally, not just forensic pathologists - 20 - all of whom see peer review as a real foundation for 21 what they see as a constructive means of addressing error 22 correction, building in this set of fresh eyes, and all 23 the good things that will come from it, whether on a 24 case-by-case basis with a sample, spot audits, that sort 25 of thing versus this public confidence question.
311 And when you go to the measure of public 2 confidence, a system that looks so internally regulated, 3 especially where we've had evidence where the culture of 4 an institution can, in fact, pervade many participants in 5 it, where a peer review simply exacerbates, rather than 6 remediates the problem. 7 It raises this issue of transparency; to 8 what extent can you build transparency into peer review 9 either by capturing written records of conversations or 10 reviews. And, of course, that opens up to what extent 11 those become discloseable or otherwise providing 12 aggregates of a peer review process and how many cases 13 was the initial conclusion, for example, revised as a 14 result of the peer review. 15 If it turns out to be zero, we might say 16 peer review is pro forma step that has no traction. If 17 it turns out to be 70 percent, we might say, Well, what's 18 going on in the training and qualifications that is 19 leading three (3) times out of four (4) to an initial 20 view that is not the ultimate view. 21 So I think unless you have some way of 22 capturing peer review and being able to, at least, in 23 some meaningful way, share that with outsiders, even if 24 not by turning on the tape recorder every day at rounds, 25 than peer review is going to lose a lot of its benefit.
321 From the standpoint of public confidence, it may keep -- 2 COMMISSIONER STEPHEN GOUDGE: But there 3 is a tension, Professor Sossin, isn't there? I mean what 4 do you lose in the easy communication that's essential 5 for the collegial working environment by a completely 6 transparent and recorded set of interchanges? 7 DR. LORNE SOSSIN: Yeah, I think this is, 8 to me, the most challenging aspect because it's easy to 9 build in those mechanisms to memorialize, or to chart, or 10 to otherwise capture conversations. 11 And, in fact, what's hard is for that to 12 be authentic; in other words, for that not to become a 13 boilerplate or to make sure conversations happen in 14 hallways rather than rounds because you want to have -- 15 COMMISSIONER STEPHEN GOUDGE: Or a 16 distance and up to discussion. 17 DR. LORNE SOSSIN: Right, or you ju -- or 18 sometimes you create just work arounds to -- to these, so 19 to find something that is authen -- and -- and I -- you 20 know, it's a frail foundation in many ways, but I think 21 you're hearing this from a number of people on a number 22 of different settings that much of this does come back to 23 -- to leadership -- 24 COMMISSIONER STEPHEN GOUDGE: Right. 25 DR. LORNE SOSSIN: -- and to
331 organizational culture; to say that, you know, we want 2 the -- we want the transparency, and we realize the costs 3 which are going to be some moments where we have to 4 explain or we have to look in -- in the mirror at how we 5 can do things better. 6 And I think we've got risk averse 7 institutional cultures, and that's not the fault of good 8 people within them. It can be the fault of how quickly, 9 when there's litigation in the background, people seize 10 on it or how funding depends on showing nothing but 11 successes. 12 I mean, there's all sorts of -- what I can 13 say because I'm -- I'm -- I don't have to work in this 14 field everyday -- what appear to be perverse incentives, 15 that go against an authentic kind of transparency because 16 of all the external pressures at work and the limitations 17 of personnel resources and everything else. 18 So -- so I think the principle ought to 19 be: How do you get the most value from peer review that 20 enables the greatest level of transparency about it? And 21 there will be a tipping point where so much transparency 22 starts to undercut the value, and there will be a tipping 23 point in the other direction where not enough 24 transparency starts to undercut the public confidence 25 question.
341 MS. LINDA ROTHSTEIN: Now, we need to 2 hear from all of you on some of the questions that 3 Professor Sossin has very importantly raised. 4 But before we do, I want to fill in a 5 little bit more of the ground level if I can by asking 6 you, Dr. Ranson, to speak to, as candidly as you're 7 prepared to, what it's like to peer review the Director. 8 How does that work? 9 DR. DAVID RANSON: The sim -- we follow 10 the exact processes that -- that Stephen has, in fact, 11 outlined. There's no difference about that. As I said, 12 in the submission materials under Tab 14, I think it's 13 page 672 of our quality manual, he has given you the 14 details of what carries out. 15 The way in which the report is selected or 16 randomly selected by a computer means he's got an equal 17 chance of coming up on any of his routine cases as any 18 other pathologist. And he will be subject to the same 19 process by the person who reviews -- his case as it will 20 by the -- by the next pathologist. 21 With regard to what we have called "the 22 forensic cases," which require a technical review, we've 23 defined those in that document. They're the ones that 24 are essentially likely to go to court and present the 25 organization in a broad public context. And they're the
351 ones that involve, perhaps, the most potential 2 commentary, opinion, and subjective assessment. 3 Then we have a strong policy that you do 4 not send out one (1) of those reports without another 5 pathologist reviewing that. And when that pathologist 6 reviews that report, they sign the cover sheet of the 7 case file to say they have carried out that review. 8 And Professor Cordner, when he sends out a 9 report, will give that report to someone to look at and 10 that someone may well be me. It is on occasions. It may 11 be another pathologist on other occasions. And I would, 12 you know, make some suggestions. 13 It's very rare, I think these days, we 14 would have an issue with what I call "the factual base" 15 of it, largely because the administrative reviews have 16 already made sure that the relevant paperwork is in the 17 case file. But when we come to the -- the critical 18 deductions, or the critical conclusions report, that's 19 where we sit down and discuss. 20 And sometimes the output of that 21 discussion is, I think we should -- this is one (1) that 22 we bring up to the whole group on a Tuesday morning or 23 Thursday morning because I think we need the benefit of 24 everyone. 25 I think it goes back to what we were
361 saying, I think, perhaps earlier on this week where, you 2 know, medicine isn't practiced anymore as an individual 3 base -- 4 COMMISSIONER STEPHEN GOUDGE: Right. 5 DR. DAVID RANSON: -- and double- 6 doctoring is only an artificial concept. In fact, most 7 medicine is practiced in a team. And when you're down in 8 the mortuary and you're doing an autopsy, there are four 9 (4) or five (5) other pathologists around you, and 10 everyone has the opportunity to look at what everyone 11 else is doing. 12 And the culture is that you welcome 13 someone coming and looking over your shoulder. What have 14 you got? Oh, that's interesting. I've got something 15 over here. Come and have a look at this. 16 That is the culture that you develop that 17 brings up, at a really grassroots level, that 18 collegiality. 19 And I suppose again -- just referring to a 20 little bit earlier in the week, that's where the co- 21 location of all the people together, to get the maximum 22 pairs of eyes, the maximum collegiality is important. 23 COMMISSIONER STEPHEN GOUDGE: Can I just 24 -- sorry, Ms. Rothstein. 25 MS. LINDA ROTHSTEIN: That's fine.
371 COMMISSIONER STEPHEN GOUDGE: Can I just 2 follow-up on a couple of things? 3 The technical review is triggered by "the 4 case may get to the Justice system"? 5 DR. DAVID RANSON: Not specifically. We 6 actually have defined it in a number of categories that 7 includes on the homicides and suspicious deaths -- 8 COMMISSIONER STEPHEN GOUDGE: Is that in 9 -- is that in... 10 DR. DAVID RANSON: That's in the -- the 11 document which is the Forensic Pathology Policy and 12 Procedures Manual of the Institute. 13 COMMISSIONER STEPHEN GOUDGE: Yes. 14 DR. DAVID RANSON: I think we've only got 15 a few pages -- 16 COMMISSIONER STEPHEN GOUDGE: Yes, I 17 know. 18 DR. DAVID RANSON: -- effectively, but I 19 think it's picked up some of them but not all of them. 20 For example, if a case has an undetermined 21 cause of death -- 22 COMMISSIONER STEPHEN GOUDGE: Right. 23 DR. DAVID RANSON: -- which is 24 automatically included within that -- within that 25 category as well. So that there are -- and infant cases
381 are included within that category. So there are a range 2 of additional cases. 3 COMMISSIONER STEPHEN GOUDGE: Infant 4 cases being any death under...? 5 DR. DAVID RANSON: I think we define that 6 as under five. Is -- 7 DR. STEPHEN CORDNER: The full -- the 8 full technical review of forensic cases -- 9 DR. DAVID RANSON: Is in Appendix 5. 10 DR. STEPHEN CORDNER: -- is Appendix 5 11 of -- 12 COMMISSIONER STEPHEN GOUDGE: Yes, I do 13 not have Appendix 5 -- 14 DR. STEPHEN CORDNER: -- the paper of the 15 Model Forensic Pathology Service. 16 MS. LINDA ROTHSTEIN: Commissioner, we 17 have the document, but not in this compendium. 18 COMMISSIONER STEPHEN GOUDGE: Yes, I -- 19 okay. 20 DR. STEPHEN CORDNER: And pediatric 21 deaths; deaths in children four years (4) and younger. 22 COMMISSIONER STEPHEN GOUDGE: Right. So 23 there's a triaging of the cases in terms of what gets 24 technically reviewed? 25 DR. DAVID RANSON: What gets technically
391 reviewed. 2 COMMISSIONER STEPHEN GOUDGE: Now can you 3 elaborate a little on the extent of the technical review? 4 Does it include, for example, a review of the slides? 5 DR. DAVID RANSON: The technical review 6 includes the slides and in -- as indeed does the -- the 7 random technical order that's carried out on the -- the-- 8 COMMISSIONER STEPHEN GOUDGE: On the 9 quarterly basis? 10 DR. DAVID RANSON: -- the quarterly 11 basis, yes. 12 COMMISSIONER STEPHEN GOUDGE: Okay. So 13 it would -- 14 DR. STEPHEN CORDNER: I think it may 15 include the slides, okay. 16 COMMISSIONER STEPHEN GOUDGE: Depending 17 on how central the slides are -- 18 DR. DAVID RANSON: Depending on -- 19 MS. LINDA ROTHSTEIN: You know -- 20 COMMISSIONER STEPHEN GOUDGE: -- to the-- 21 DR. DAVID RANSON: I've -- I've seen -- 22 most people who bring things to me bring the slides to 23 me -- 24 COMMISSIONER STEPHEN GOUDGE: Right. 25 DR. DAVID RANSON: -- and also the
401 photographs. If there were scene photographs, I would 2 expect to see those as well, and autopsy photographs -- 3 COMMISSIONER STEPHEN GOUDGE: Right. 4 DR. DAVID RANSON: -- of those cases. 5 And it's more likely to be those cases within that 6 forensic category that are going to have scene and 7 autopsy photographs -- 8 COMMISSIONER STEPHEN GOUDGE: Right. 9 DR. DAVID RANSON: -- in all types of 10 cases. 11 COMMISSIONER STEPHEN GOUDGE: Right. And 12 I take it some of the triaging criteria are ones that 13 require judgment? I mean, like death under four (4) is 14 pretty clear. 15 DR. DAVID RANSON: And -- and 16 unascertained causes of death -- 17 COMMISSIONER STEPHEN GOUDGE: And 18 unascertained. 19 DR. DAVID RANSON: -- because there 20 you're evaluating -- 21 COMMISSIONER STEPHEN GOUDGE: But do you 22 leave it to the original pathologist for the others as to 23 what should get triaged to technical review? 24 DR. DAVID RANSON: That -- that's true. 25 DR. STEPHEN CORDNER: It's fairly clear
411 really. It's homicides, -- 2 COMMISSIONER STEPHEN GOUDGE: Yes. 3 DR. STEPHEN CORDNER: -- it's suspicious 4 deaths, including but not limited to all cases involving 5 the homicide squad. 6 COMMISSIONER STEPHEN GOUDGE: Right. 7 DR. STEPHEN CORDNER: All firearm deaths. 8 COMMISSIONER STEPHEN GOUDGE: Right. 9 DR. STEPHEN CORDNER: All firearm deaths. 10 COMMISSIONER STEPHEN GOUDGE: Right. 11 DR. STEPHEN CORDNER: All fire deaths -- 12 COMMISSIONER STEPHEN GOUDGE: Right. 13 DR. STEPHEN CORDNER: -- where it is not 14 certain the deceased was alive during the fire. 15 COMMISSIONER STEPHEN GOUDGE: Right. 16 DR. STEPHEN CORDNER: Okay. Deaths in 17 custody, pediatric deaths -- that's deaths in children 18 four (4) years and younger. All asc -- unascertained 19 deaths in deceased under forty (40) years of age. And 20 other cases, at the pathologist's discretion, where 21 colleagues would believe a technical review is desirable. 22 COMMISSIONER STEPHEN GOUDGE: Okay. And 23 at what stage does the technical review take place? 24 After the post-mortem report is finished, but before it's 25 released?
421 DR. DAVID RANSON: That's right, yes. 2 COMMISSIONER STEPHEN GOUDGE: Okay. 3 Thanks. Thanks, Ms. Rothstein. 4 5 CONTINUED BY MS. LINDA ROTHSTEIN: 6 MS. LINDA ROTHSTEIN: Dr. Prime, how does 7 the Centre for Forensic Sciences -- Sciences incorporate 8 peer review into it's quality control systems? 9 DR. RAY PRIME: Well, your orig -- your 10 original question was to whether or not -- how do I feel 11 or how do our staff feel about criticizing their boss, 12 and I have to say that none of our staff has ever had any 13 difficulty criticizing -- 14 And perhaps, I -- perhaps, I say that in 15 jest, but I think perhaps, that is a good thing in terms 16 of -- of congeniality, that Dr. Ranson said. I think we 17 have to have an open door policy throughout the 18 organization so that people are able to bring their 19 concerns forward. 20 But we are talking on a technical level, 21 and it's not very often that people actually do come to 22 me on the technical level for things. Within the Centre 23 for Forensic Sciences, we have essentially a 100 percent 24 technical and administrative on our -- on our files. 25 The -- the quality system that we chose to
431 define requires that. Usually an accreditin -- 2 accrediting system will ask you to define your own number 3 of -- of reviews that you want to do, and -- and they 4 then audit to that level. 5 So it's up to the -- the individual 6 laboratory to decide to the level of review they need. 7 There are a few areas in our lab that we are not able to 8 do 100 percent review, and that becomes -- areas where we 9 might have, for example, only one (1) person that can do 10 that kind of work. 11 And then we have to seek an external 12 reviewing source. So we might then define a -- a 13 different level for that. We have reviews on the work 14 before it goes out. It becomes part of the culture of 15 the organization. 16 The fact that once we became accredited 17 back in 1993, it was part of our way of life. The issues 18 about doing reviews become less of a -- a concern in 19 terms of objections from fights or dis -- disagreements 20 between staff. 21 It doesn't mean to say that there isn't 22 sometimes a disagreement among staff, and we then put in 23 a mechanism to -- to resolve those disagreements. 24 COMMISSIONER STEPHEN GOUDGE: What's the 25 mechanism, Dr. Prime?
441 DR. RAY PRIME: It's discussion with 2 either another scientist or with the manager -- 3 COMMISSIONER STEPHEN GOUDGE: Right. 4 DR. RAY PRIME: -- within the -- the 5 section. 6 COMMISSIONER STEPHEN GOUDGE: Right. 7 DR. RAY PRIME: And then there's 8 provision for those to continue to escalate up to the 9 level of the Deputy Director or myself -- 10 COMMISSIONER STEPHEN GOUDGE: Right. 11 DR. RAY PRIME: -- if agreements can't be 12 made. But we do have a requirement that an agreement is 13 reached before the reports go out. 14 MS. LINDA ROTHSTEIN: Now, Dr. Prime -- 15 sorry. 16 DR. RAY PRIME: I was going to say that 17 there are some different levels of -- of review. There's 18 sometimes a need to review the actual observations, for 19 example. 20 Most of our reviews would be done on the 21 file itself, looking at the documentation, and -- and 22 data that's been produced. 23 The -- there are sometimes a need to 24 review the actual observations, and there's a few 25 instances in forensic science where an observation of
451 colour has been made, an observation for -- for example 2 through the microscope has been made, and on these 3 instances, we require a second person to -- to view that, 4 as well. 5 A couple of things. One (1) thing that 6 Professor Sossin mentioned was about the value of that 7 review, and particularly if it's going to be not 8 measured, and -- and Dr. Sossin and I had some 9 discussions prior to -- to starting the panel this 10 morning, and I -- I sense a theme that he has that we 11 need to -- to measure, and measure, and measure. 12 And from a practitioner, that becomes more 13 and more of a challenge, because every time you put 14 resources into measuring, you lose resources on the end 15 where you're trying to get your productivity. 16 So one (1) of the values I think -- 17 MS. LINDA ROTHSTEIN: Nods from the 18 Australians, you should know. 19 DR. RAY PRIME: So -- so one (1) of the 20 things I -- I do want to express as a value of doing this 21 is that you do have a documented record that this process 22 has been followed. 23 It may not necessarily always document 24 that there has been any changes in place, but you do have 25 a documented -- document method to say it's been
461 followed. 2 The second thing, the review itself is not 3 -- and -- and we have to counsel our staff on this -- 4 it's not a bolstering mechanism. So staff cannot go into 5 Court and say, My work was reviewed and the reviewer 6 agrees with me. We've been -- we've had very clear 7 direction from the Courts not to do that. 8 MS. LINDA ROTHSTEIN: That's interesting. 9 DR. RAY PRIME: So that's an -- that's 10 another element. 11 And I would also mention that, and we 12 probably will go into this later, but one (1) of the 13 other elements of peer review is our Court monitoring 14 process -- 15 MS. LINDA ROTHSTEIN: We are going to 16 talk about that. 17 COMMISSIONER STEPHEN GOUDGE: Yes, we are 18 going -- 19 DR. RAY PRIME: Okay. I -- 20 MS. LINDA ROTHSTEIN: But just -- 21 DR. RAY PRIME: -- I was just going to 22 mention for the -- the Commissioner, though, since 23 Professor Ranson brought this up as well, the congenial 24 atmosphere is something that's much easier to develop 25 within the laboratory.
471 We have a large lab in Toronto with about 2 two hundred and forty (240) staff in -- in various 3 sections. We have another lab of about twenty (20) 4 people in Sault St. Marie. It's a much bigger challenge 5 to keep the level of interaction and congeniality, in 6 place between the external lab, and the lab in Toronto. 7 We have been, over the last ten (10) 8 years, working very hard to make that happen, and keep 9 that happening, but it is certainly more of a challenge 10 than if the group is all in one (1) place. 11 COMMISSIONER STEPHEN GOUDGE: At some 12 point, I would like to pursue the two (2) locations 13 issue, because there is a clear comparison to the 14 challenge -- 15 MS. LINDA ROTHSTEIN: Yeah. 16 COMMISSIONER STEPHEN GOUDGE: -- that we 17 have been looking at. Can I just ask -- 18 MS. LINDA ROTHSTEIN: You can, sure. 19 COMMISSIONER STEPHEN GOUDGE: -- Ms. 20 Rothstein, just a couple of questions? 21 Is this technical review that you have 22 described, Dr. Prime, a product of the Kaufman report? 23 DR. RAY PRIME: No, that's a product of 24 the quality management system, and it's -- it's a common 25 --
481 COMMISSIONER STEPHEN GOUDGE: How long 2 has it been in place? 3 DR. RAY PRIME: Since the first 4 accreditation in 1993. 5 COMMISSIONER STEPHEN GOUDGE: And what 6 component -- how resource intensive is it? 7 DR. RAY PRIME: It's very resource 8 intensive. It -- it means that you have -- 9 COMMISSIONER STEPHEN GOUDGE: Can you put 10 an order of magnitude on that? I mean you said you have 11 got -- is there any simple measures -- 12 DR. RAY PRIME: I -- and -- going back to 13 Professor Sossin's point, we don't measure that, but I 14 know that it -- we got a considerable number of resources 15 from the Kaufman era, and much of those resources have 16 been consumed in the extra time that we put into quality 17 assurance. 18 COMMISSIONER STEPHEN GOUDGE: You said 19 it's about two hundred (200) -- 20 DR. RAY PRIME: It's not -- 21 COMMISSIONER STEPHEN GOUDGE: -- what did 22 you say, two hundred and thirty (230) people in the lab 23 in Toronto? 24 DR. RAY PRIME: Right. 25 COMMISSIONER STEPHEN GOUDGE: Of the two
491 hundred and thirty (230) person years, is it easy to do a 2 very, very approximate percentage that has to be devoted 3 to what I would call peer review, or technical review, or 4 is it -- 5 DR. RAY PRIME: No, I -- I really can't 6 put a figure on it. 7 COMMISSIONER STEPHEN GOUDGE: That is too 8 dangerous, Dr. Ranson? 9 DR. DAVID RANSON: Perhaps the -- just 10 the number of staff you allocate is quite a useful 11 measure in the sense just as a crude measure. We have a 12 quality -- 13 14 CONTINUED BY MS. LINDA ROTHSTEIN: 15 MS. LINDA ROTHSTEIN: Just stopping 16 there. The point being that -- both of your institutions 17 have actual formal quality assurance units -- 18 DR. DAVID RANSON: Oh yes. 19 MS. LINDA ROTHSTEIN: -- of people 20 devoted to that exercise, correct? 21 DR. RAY PRIME: Yes, yes. 22 DR. DAVID RANSON: Full time employees, 23 or a mixture -- 24 COMMISSIONER STEPHEN GOUDGE: Okay. Fair 25 enough. I did not understand that. That is helpful.
501 DR. DAVID RANSON: Yeah, yeah. So that, 2 I mean, we would have -- 3 COMMISSIONER STEPHEN GOUDGE: Describe it 4 for the Institute. 5 DR. DAVID RANSON: -- a full time quality 6 manager, and we have a number of staff, some of them are 7 part time and some full -- full-time next to them, so 8 there'll be -- I think there's equivalent to about a 9 couple of full time staff with that quality manager. 10 And I think we were talking earlier, Dr. 11 Prime, that you have the terms of numbers in your unit. 12 DR. RAY PRIME: We have -- we have five 13 (5) staff in a quality assurance unit, and then within 14 each of the sections we have at least one (1) person that 15 has quality assurance responsibilities -- 16 COMMISSIONER STEPHEN GOUDGE: Right. 17 DR. RAY PRIME: -- but those are 18 responsibilities that relate to other aspects of the -- 19 the quality management system. 20 COMMISSIONER STEPHEN GOUDGE: Right. 21 DR. RAY PRIME: The peer review is 22 actually done by other qualified individuals. 23 COMMISSIONER STEPHEN GOUDGE: Right, 24 right, and I was going to ask, Dr. Ranson or Dr. Cordner, 25 if you take your six point three (6.3) pathologists --
511 DR. DAVID RANSON: Yeah. 2 COMMISSIONER STEPHEN GOUDGE: -- what 3 component of their annual time would be devoted to the 4 kinds of reviews -- 5 DR. DAVID RANSON: Yeah. 6 COMMISSIONER STEPHEN GOUDGE: -- you 7 listed? 8 DR. DAVID RANSON: I think -- I'm trying 9 to think, really. It's very difficult to answer. 10 COMMISSIONER STEPHEN GOUDGE: Yes. No, I 11 just -- 12 DR. DAVID RANSON: On the -- 13 COMMISSIONER STEPHEN GOUDGE: But we're 14 going from a system where clearly in the period we were 15 examining this wasn't a focus -- 16 DR. DAVID RANSON: Yeah. 17 COMMISSIONER STEPHEN GOUDGE: -- to one 18 where, from the perspective of what I hear this morning, 19 it's vital. 20 DR. DAVID RANSON: Yes, I mean think the 21 -- there's two (2) processes to that time, one is the -- 22 what are called the informal time; the time that takes 23 you longer to do an autopsy if you're looking at another 24 three (3) colleague's autopsies as well. 25 COMMISSIONER STEPHEN GOUDGE: Right.
521 DR. DAVID RANSON: There's an element of 2 that. 3 COMMISSIONER STEPHEN GOUDGE: Right. 4 DR. DAVID RANSON: There's the element of 5 going to the broad meetings where discuss each other's 6 cases; there's the element -- 7 COMMISSIONER STEPHEN GOUDGE: Right. 8 DR. DAVID RANSON: -- where you go to 9 Court and hear a colleagues evidence. But there's also 10 the actual concrete work where you sit down and to the 11 formal reviews; there's a bundle of slides, a bundle of 12 reports, the twenty-five (25) arrive at the -- on 13 somebody's desk a quarter, and they sit down and it may 14 take them a week to do those twenty-five (25) cases in a 15 review process. 16 So that -- the reason why we do so few, 17 and I think we should do more, is we simply don't have 18 enough pathologist time to do more than twenty-five (25) 19 a quarter. 20 COMMISSIONER STEPHEN GOUDGE: Right. And 21 it may be too arbitrary to be meaningful. I just 22 wondered if -- 23 DR. STEPHEN CORDNER: Well, another way 24 of thinking of it is -- and we had some discussion at a 25 previous roundtable -- that say something like 33 percent
531 of our specialist medical practitioner's time, including 2 a forensic pathologist, should be devoted to, broadly 3 speaking, academic educational research quality assured 4 continuing medical education-type activities -- 5 COMMISSIONER STEPHEN GOUDGE: So a 6 component of the one third (1/3). 7 DR. STEPHEN CORDNER: Yeah. 8 COMMISSIONER STEPHEN GOUDGE: Can I use 9 this -- I said to Ms. Rothstein this morning, I didn't 10 put the question to both of you on Monday, I guess -- one 11 (1) of the questions I would like an answer to -- and 12 that is how you divide your time as between service 13 teaching and research. 14 Is it a third (1/3), a third (1/3), a 15 third (1/3)? 16 I know that both have administrative 17 responsibilities, but setting that aside for the moment, 18 in dealing with the three (3) pillars that were described 19 so graphically on Monday, what kind of time allocation 20 would you say, very roughly, each of you engage in? 21 DR. STEPHEN CORDNER: Well, I know that 22 Dr. Ranson you have to divide that into a hundred (100) 23 hours a week. That book that he wrote didn't happen in 24 office hours -- 25 COMMISSIONER STEPHEN GOUDGE: Yes.
541 DR. STEPHEN CORDNER: -- so I mean it -- 2 COMMISSIONER STEPHEN GOUDGE: Right, 3 right. 4 DR. STEPHEN CORDNER: -- it is -- so -- 5 but it -- 6 COMMISSIONER STEPHEN GOUDGE: But you 7 hold a chair -- 8 DR. STEPHEN CORDNER: Yeah. 9 COMMISSIONER STEPHEN GOUDGE: -- okay? 10 And you've got legislated responsibility to teach and 11 research, as well as perform -- 12 DR. STEPHEN CORDNER: Yes. 13 COMMISSIONER STEPHEN GOUDGE: -- service. 14 DR. STEPHEN CORDNER: Yeah. So speaking 15 for myself, I'd probably do about a hundred (100) 16 autopsies a year where we would regard a proper workload; 17 two-fifty (250) to three hundred (300). But in our 18 institution we have pathologists doing four (4) and five 19 hundred (500) because we've got demand pressures and 20 insufficient staff, so -- 21 COMMISSIONER STEPHEN GOUDGE: So if you 22 take three (300) as a very full full-time year for a 23 pathologist, you'd be spending a third (1/3) of your time 24 doing -- 25 DR. STEPHEN CORDNER: Yeah. And then
551 administration probably takes up to 33 percent than 2 probably say administration, 50 percent, in my case -- 3 COMMISSIONER STEPHEN GOUDGE: Yeah. 4 DR. STEPHEN CORDNER: -- and teaching and 5 other academic activity, the remaining 17 percent. 6 COMMISSIONER STEPHEN GOUDGE: Right. 7 What about you, Dr. Ranson? 8 DR. DAVID RANSON: We -- we tend to run 9 the service work component. Professor Cordner and I tend 10 to be equivalences of one (1) person, so he might be 11 doing a hundred (100) cases, I would probably doing -- be 12 doing perhaps around two hundred (200) cases. 13 COMMISSIONER STEPHEN GOUDGE: Right. 14 DR. DAVID RANSON: And corresponding, I 15 would have some lesser degree of administration, but from 16 the point of view of the research and teaching ap -- I 17 would say we were probably the same. 18 COMMISSIONER STEPHEN GOUDGE: Okay, 19 that's helpful. Sorry, I had one (1) other question that 20 I wanted to ask the two (2) of you about your technical 21 review. 22 When the pathologist comes to technically 23 review one (1) of the cases that is required to be 24 technically reviewed, what's the mindset the pathologist 25 brings to that review?
561 Is it a right diagnosis or is it a -- 2 DR. STEPHEN CORDNER: This is -- this is 3 really interesting. And -- and I should have mentioned 4 when I talked about that technical review. First of all, 5 we were informed in developing our technical review by 6 one that had been developed in Toronto -- sorry that it 7 happened here before it happened in Melbourne; the first 8 thing. 9 The second thing is -- 10 COMMISSIONER STEPHEN GOUDGE: When was 11 that, just -- 12 DR. STEPHEN CORDNER: Oh, well, for us it 13 had been developed over the last eighteen (18) months. 14 COMMISSIONER STEPHEN GOUDGE: Yes. 15 DR. STEPHEN CORDNER: So I'm not sure 16 precisely when it was developed here, but it was in place 17 here before it was in place in Melbourne. 18 And so that's just how -- how it is 19 important to have your ears out to what's going on 20 elsewhere. 21 COMMISSIONER STEPHEN GOUDGE: Right. 22 DR. STEPHEN CORDNER: But secondly, it 23 was -- it became a requirement in our accreditation 24 system, so we actually had no choice. 25 But once the institution has -- has been
571 signed up to an accreditation process there is no going 2 back. And as the accreditation process becomes more 3 developed, you know, you either continue with that or you 4 lose your accreditation. And that would be a serious 5 thing in the public domain to say we've lost our 6 accreditation. 7 COMMISSIONER STEPHEN GOUDGE: Right. 8 DR. STEPHEN CORDNER: So there were those 9 two (2) elements. 10 Now, the -- and a big difference between 11 the -- what I understand the Toronto technical quality 12 review of cases and ours is -- and I shouldn't speak to 13 the Toronto one (1), but I believe, if my memory serves 14 me -- 15 COMMISSIONER STEPHEN GOUDGE: I suspect - 16 - wondering about the Toronto one (1) tomorrow. 17 DR. STEPHEN CORDNER: -- I believe it is 18 actually that the second pathologist signs up that they 19 agree. 20 In our technical quality review, we are 21 signing up and saying that we believe the conclusion to 22 reasonable, which is something short of agreement. 23 COMMISSIONER STEPHEN GOUDGE: Why did you 24 choose that? 25 DR. STEPHEN CORDNER: It is less resource
581 intensive, and the amount of work involved for me to say 2 that I actually agree with everything is substantially a 3 greater amount of work, which -- 4 COMMISSIONER STEPHEN GOUDGE: What more 5 would you have to do? 6 DR. STEPHEN CORDNER: Well, I'd have to 7 have everything. I would -- 8 COMMISSIONER STEPHEN GOUDGE: You would 9 have to look at the photos, you would have to look -- 10 DR. STEPHEN CORDNER: Have to look at 11 every slide. 12 COMMISSIONER STEPHEN GOUDGE: Yes. 13 DR. STEPHEN CORDNER: I'm not going to 14 say I agree with something until -- so "agree" is the 15 type of standard that I would bring to -- when I'm asked 16 to -- by the defence to review a case in another 17 jurisdiction, you know, that is being prosecuted. 18 COMMISSIONER STEPHEN GOUDGE: Right. 19 DR. STEPHEN CORDNER: So I want 20 everything. 21 COMMISSIONER STEPHEN GOUDGE: Right. 22 DR. STEPHEN CORDNER: So it is a 23 different thing and it -- I'd have -- it is a different 24 standard but we do say that we believe the autopsy is 25 reviewable by somebody else. In other words, we believe
591 that we've done everything that enables that autopsy to 2 be reviewed by somebody who might be engaged by the 3 defence in another jurisdiction. 4 So we'd be disappointed if there was 5 criticism that there weren't enough photos or slides, or 6 the report was deficient in some respect. 7 And that on the -- on the face of it, the 8 opinions as expressed in the report appear reasonable. 9 COMMISSIONER STEPHEN GOUDGE: That 10 permits a report to go out that may ultimately be 11 demonstrated to be wrong? 12 DR. STEPHEN CORDNER: That's -- that -- 13 yeah. And I think -- I think -- 14 COMMISSIONER STEPHEN GOUDGE: Is that -- 15 and that's acceptable? 16 DR. STEPHEN CORDNER: -- and that's a 17 resource -- that's a resource -- that is a judgment that 18 the institution made on the resources available to be 19 applied to all of the things that had to be done, and 20 that is a compromise. 21 I'm not sure -- I'd like to think a bit 22 more about whether I would necessarily say that it has to 23 be the case, that it has to -- that there has to be 24 agreement -- a very deep thing. 25 COMMISSIONER STEPHEN GOUDGE: It's a big
601 step. 2 DR. STEPHEN CORDNER: It's a big step 3 that could -- 4 5 CONTINUED BY MS. LINDA ROTHSTEIN: 6 MS. LINDA ROTHSTEIN: You once -- 7 DR. STEPHEN CORDNER: What level of 8 agreement? Every detail? 9 COMMISSIONER STEPHEN GOUDGE: You are 10 starting to talk like a lawyer now. 11 12 (BRIEF PAUSE) 13 14 DR. STEPHEN CORDNER: I think actually to 15 keep the claims as modest as possible. 16 COMMISSIONER STEPHEN GOUDGE: Right. Dr. 17 Prime, what is the standard for the CFS? I got the sense 18 that it was agreement. 19 DR. RAY PRIME: No. And I think it's 20 more in line with the Australian view as well, and that 21 is that the technical review is meant to show that the 22 processes have been used that could have been used, and 23 some other step isn't necessary and it's been left out. 24 And the accountability for the report, I 25 think we always have to remember, remains with the author
611 of the report. And this is not trying to deflect the -- 2 the findings onto another person; the original author is 3 the one who is accountable for the report. 4 COMMISSIONER STEPHEN GOUDGE: Because 5 ultimately the author is going to be the one giving 6 evidence? 7 DR. RAY PRIME: Right. 8 9 CONTINUED BY MS. LINDA ROTHSTEIN: 10 MS. LINDA ROTHSTEIN: Since the issue has 11 been raised about how one does effective peer review in 12 an environment where resources are limited, I -- I just 13 wanted to ask you, Dr. Prime, if you can tell us what 14 happened to the Kaufman recommendation that the unit's 15 staffing and mandate -- that is to say the quality 16 assurance unit's staffing and mandate -- be always the 17 subject of a separate allocation of funds and that that 18 be insulated from erosion by the operation elsewhere. 19 Does that recommendation still carry 20 today? 21 DR. RAY PRIME: The recommendation 22 carries today that we do have funding. We have the same 23 number of people in the quality assurance unit. We 24 separated the way the unit is structured. It originally 25 had a training manager in that unit, but that's been
621 separated as a different -- a separate unit. 2 The budget is essentially protected from 3 erosion. I heard a better word earlier today which was-- 4 DR. DAVID RANSON: Indexing. 5 DR. RAY PRIME: -- indexing. It would 6 have been better if we'd asked for it to be indexed 7 rather than protected from erosion. The -- the one (1) 8 element of it that becomes more of a challenge is -- is 9 the actually training component; that was part of the 10 protected from erosion component in the original Kaufman 11 recommendation. And that is the one (1) that becomes the 12 hardest one (1) to maintain when we have to make it work 13 within a -- a government context. 14 MS. LINDA ROTHSTEIN: Okay. I want to 15 turn then if we can, from the thorny question of 16 reviewing reports and conclusions in reports, to what 17 you've all foreshadowed, which is perhaps even more 18 difficult, at least it seems to to our ears, which is how 19 one provides a review and quality assurance of court 20 testimony. 21 So starting with you, Dr. Prime, that's 22 something that came out of Kaufman as well, can you tell 23 us about your program, how it works, what your challenges 24 are, what -- what you'd like to see in a -- in a best 25 case scenario?
631 DR. RAY PRIME: Well, in our -- we have a 2 fairly robust court review pro -- program now. Excuse 3 me. We did have one before Kaufman. We did have a 4 requirement for test -- testimony review. 5 This is another area where it commits a 6 considerable amount of resources, particularly in a 7 province like Ontario. If the requirement is for a 8 person to attend in person to witness a -- a court 9 testimony, I appreciate that that's two (2) people now 10 out of the office. 11 And particularly within our court system 12 where a lot of that time is -- honestly, is wasted time, 13 and it's very common for people to travel around the 14 Province and not be heard -- give testimony. So now you 15 have two (2) people doing it. And then you have the 16 expense of sending them. 17 So -- so prior to the Kaufman Inquiry it 18 was very easy for managers to say I'll wait till the 19 witness is here in Toronto. One (1) of the things we -- 20 we made a conscious effort to do after Kaufman, was to 21 make sure that people did go and make personal 22 evaluations of -- of their -- their staff. 23 We have another mechanism. We will use 24 another testifying scientist if more persons -- if more 25 than one (1) persons goes to the -- the court, so that's
641 essentially a -- a peer review, and that's what I 2 referenced earlier. 3 We then -- if we can't manage to get 4 personal reviews, we will use a review in the transcript. 5 And we make it a -- it's -- it's actually a component of 6 our accreditation that each person has some form of 7 review each year. 8 The other part that we introduced after 9 Kaufman was the court letter monitoring process and 10 that's used in a number of laboratories. We require that 11 -- well we don't require, but we ask the -- the Crown and 12 the defence to fill out a -- a questionnaire and return 13 it after trial. 14 The element that I think we introduced 15 that makes it a little bit more effective is that we do 16 it totally administratively. In some other jurisdictions 17 the witness takes this little report card to the -- to 18 court with him and asks the -- the lawyers if they don't 19 mind filling out the report card. 20 I always felt that was a -- a barrier to 21 its use, and -- and it is -- it is a little bit 22 demeaning, I think, in that sense. 23 So we set up a system where by the quality 24 assurance unit is identified -- or notified when the 25 court is imminent. And the administrative staff in the
651 quality assurance unit follow up by sending out these 2 questionnaires directly to the -- the counsel. 3 So they -- the scientist simply has to 4 report the -- the names of the people who need to get 5 those forms. 6 MS. LINDA ROTHSTEIN: Just following up 7 on that, Kaufman recommended that the scientists being 8 monitored should be instructed that any observed over 9 statement or misstatement of evidence triggers an 10 immediate obligation to advise the appropriate trial 11 counsel. 12 Is that the practice, Dr. Prime? 13 DR. RAY PRIME: Yes, it is. Yes. 14 MS. LINDA ROTHSTEIN: Okay. Tell us 15 what -- 16 COMMISSIONER STEPHEN GOUDGE: Before we 17 move away from you, Dr. Prime, about this, can I take 18 advantage of your presence just to understand a couple of 19 things? How does the CFS track, once a report has been 20 finalized, and sent to, I assume, the police or the 21 Crown? How does one then track at the CFS whether the 22 scientist is going to be required to go to Court? 23 DR. RAY PRIME: How do we track it? 24 COMMISSIONER STEPHEN GOUDGE: Yes. 25 DR. RAY PRIME: The -- it's -- it's
661 directly by means of subpoena to the scientist, so 2 there's no -- 3 COMMISSIONER STEPHEN GOUDGE: So a 4 subpoena comes in, and then -- 5 DR. RAY PRIME: Yep. 6 COMMISSIONER STEPHEN GOUDGE: -- that 7 gets recorded centrally at CFS. So you know the 8 scientist is going -- 9 DR. RAY PRIME: The scientist would 10 report to their manager -- their section head usually -- 11 COMMISSIONER STEPHEN GOUDGE: Okay. 12 DR. RAY PRIME: -- when they're going to 13 Court. 14 COMMISSIONER STEPHEN GOUDGE: All right. 15 DR. RAY PRIME: But we don't have it 16 centrally monitored, no. 17 COMMISSIONER STEPHEN GOUDGE: Okay. And 18 -- okay. Thanks, Ms. Rothstein. 19 20 CONTINUED BY MS. LINDA ROTHSTEIN: 21 MS. LINDA ROTHSTEIN: Dr. Cordner, I was 22 going to ask you to describe for the Commissioner the way 23 your Court monitoring process works. 24 DR. STEPHEN CORDNER: Well, I have to 25 say, I think this is an area of, generally speaking, in -
671 - in my discipline of weakness. 2 I don't think -- I don't know of any 3 forensic pathology system that formally audits -- audits 4 the evidence provision by a forensic pathologist. Okay. 5 So what I'm describing is -- what I'm 6 about to describe is not an audit. It's really a -- it 7 is a quality assurance mechanism, but it's not -- it's 8 not the level of an audit. 9 So what happens with us is it -- we have a 10 requirement that at least once, and perhaps, twice a 11 year, a pathologist will be accompanied to Court, when 12 they're going to give evidence, by another pathologist. 13 And the requirement is that a -- the form 14 be completed, and the essence of the form is that there 15 has been a discussion between the two (2) about the 16 evidence provided. 17 So that is -- that what we do. The -- we 18 have tried to engage counsel in providing us with 19 feedback. We found that that was problematic. 20 Understandably, counsel have got a lot on their -- their 21 mind. 22 And -- and then find it hard to find the 23 time right then and there to evaluate the performance. 24 To the extent it happened, we found it wasn't very 25 helpful, because it tended to be an emphasis on the
681 contribution to the sorts of points that counsel were 2 trying to make, rather than some sort of -- rather than 3 some sort of objective evaluation, you know -- 4 MS. LINDA ROTHSTEIN: Really. 5 DR. STEPHEN CORDNER: -- in the totality 6 of the Justice System, so. And then of course, it's 7 simply not -- it's simply not feasible to expect. It 8 would be wonderful if you thought the judge could give 9 you some feedback, but that clearly entered the realm of 10 possibility in a formal sense, although we do get that 11 feedback informally. 12 So before any of us -- before any of our 13 new staff go to Court, we do have an in-house process so 14 -- which involves some instruction about -- of a formal 15 kind about laws of evidence, and -- and a moot Court 16 experience. That's an in-house exercise. 17 And as I mentioned the other day, for the 18 forensic physicians in the State who have to do -- 19 essentially had to do our graduate diploma of clinical 20 forensic medicine, there is a medic -- there is an 21 evidence subject. 22 MS. LINDA ROTHSTEIN: I know I have some 23 more questions for Dr. Prime, but before I do, a few 24 questions. 25 So even under this less -- the system that
691 is less than an audit, would you expect that if the 2 monitoring forensic pathologist saw overstatement or 3 misstatement, that they would see that as triggering an 4 obligation to advise Crown counsel? 5 DR. STEPHEN CORDNER: Well, I haven't -- 6 it never been brought to my attention that I -- the 7 accompanying pathologist has ever heard something of such 8 seriousness that something needed to be done about it. 9 That's not quite answering your question, 10 but I think there is something quite -- quite salutary 11 about the attitude of a pathologist in the witness box, 12 when they know there's a colleague in Court. 13 And that is true from my own experience 14 when there's a -- a defence pathologist in Court; that is 15 a very -- it's a very important part of just -- just the 16 presence has a -- has a salutary, I think -- I like the 17 fact that there's somebody looking over my shoulder when 18 I'm giving evidence. But -- 19 COMMISSIONER STEPHEN GOUDGE: What does 20 the annual monitoring look for? That is, when the 21 pathologist is accompanied by a colleague, you said that 22 the output of that was a form saying there had been -- 23 DR. DAVID RANSON: Mm-hm. 24 COMMISSIONER STEPHEN GOUDGE: -- a 25 discussion.
701 Is -- what does the monitoring pathologist 2 look for? Does he or she look for kind of conformity 3 with the post-mortem report or -- 4 DR. DAVID RANSON: It's actually -- 5 COMMISSIONER STEPHEN GOUDGE: -- what? 6 DR. DAVID RANSON: -- set out in the 7 accreditation guidelines that we use for court 8 monitoring. So the -- the sort of headlines that come up 9 in that, I think are -- if I had -- got the document I 10 can provide it for you. But things like, you know: 11 appearance; sort of conduct -- if there's a conduct 12 issue; there are some technical issues about, you know, 13 use of appropriate language in front of a jury, for 14 example, ability to present scientific information. 15 And these are fairly standard sort of 16 things and I don't think there's a great deal of -- 17 COMMISSIONER STEPHEN GOUDGE: Okay. 18 DR. DAVID RANSON: -- difference 19 between -- 20 COMMISSIONER STEPHEN GOUDGE: Are -- are 21 they all -- 22 DR. DAVID RANSON: -- by forensic science 23 and ourselves. 24 COMMISSIONER STEPHEN GOUDGE: Yes. I am 25 looking at Tab 14. I do not know if you have it there,
711 Dr. Ranson -- 2 DR. DAVID RANSON: Yeah. 3 COMMISSIONER STEPHEN GOUDGE: -- and the 4 second-to-last page, there is a policy manual referred -- 5 DR. DAVID RANSON: That's right. 6 COMMISSIONER STEPHEN GOUDGE: -- to. Is 7 that where the detail would be found that you just talked 8 about? 9 DR. DAVID RANSON: That -- that's right. 10 COMMISSIONER STEPHEN GOUDGE: Okay. 11 DR. DAVID RANSON: Yeah, the form that 12 relates to those -- those -- those -- part of the quality 13 manual. 14 COMMISSIONER STEPHEN GOUDGE: Okay. 15 DR. DAVID RANSON: And in the 16 requirements for the forensic mod -- operations module 17 of NATA, which is the National Association of Testing 18 Authorities, which is our version of ASCLAD and the 19 Accreditation for Laboratories, they have court testimony 20 monitoring as part of that process, and we confirm to 21 that accreditation standard. And that also lists the 22 variety of court monitoring -- court testimony monitoring 23 parameters that should be -- 24 COMMISSIONER STEPHEN GOUDGE: Right. 25 DR. DAVID RANSON: -- discussed and so on
721 in that -- 2 COMMISSIONER STEPHEN GOUDGE: Right. 3 DR. DAVID RANSON: -- process. 4 I should perhaps, just following on the 5 com -- question that you asked Professor Cordner. I 6 have, on one (1) occasion been asked by Crown during the 7 course of a trial, to actually go and listen to one (1) 8 of my colleagues, where they felt that my colleague was 9 perhaps not, you know, giving evidence the way they 10 thought it should be given. 11 And I have to say that I listened to that 12 evidence and came away and said to the counsel, I'm 13 afraid they're doing it absolutely right and you've got a 14 wrong expectation of what a pathologist can actually 15 provide in these circumstances. 16 So it can work -- it can work both way -- 17 both ways round. 18 19 CONTINUED BY MS. LINDA ROTHSTEIN: 20 MS. LINDA ROTHSTEIN: And does the 21 monitoring pathologist read the report and look at the 22 slides before attending? 23 DR. DAVID RANSON: I'm not sure that I've 24 looked at slides before I've gone. I've certainly dis -- 25 what we tend to do is we go to court together and the
731 pathologist gives me a precis of the case. I have a look 2 at the report. We sit outside the court together and 3 then -- so there's quite a lot of discussion about the 4 case and the report. 5 The issues -- I mean, it really goes back 6 to what we've talked about when we've talked about the 7 content of reviewing reports. And the sorts of things 8 that I'm interested in are things like the critical 9 conclusions of the report, which are, I think, some of 10 the most important aspects of evaluating a report. 11 And the other one (1) I -- I personally 12 believe in very strongly is internal consistency which is 13 that in any conclusion a report contains, the eventual 14 base of that conclusion is stated in the main body of the 15 report. 16 So internal consistency between 17 conclusions and the factual basis and then the critical 18 conclusions in the report comes to, I think are the most 19 important elements of report's evaluation. 20 MS. LINDA ROTHSTEIN: Dr. Cordner, to 21 what extent, if at all, can a review of court 22 transcripts -- 23 DR. STEPHEN CORDNER: Yeah. 24 MS. LINDA ROTHSTEIN: -- take the place 25 of attending in court? With all the -- as Dr. Prime has
741 made clear, the difficulties that come with that because 2 you wait around -- at least we do in Canada, maybe you 3 don't in Melbourne -- hoping to be called on. 4 DR. STEPHEN CORDNER: Well, one (1) of 5 the benefits of being involved with something like this 6 is you're thinking about what you should be doing. And 7 Dr. Ranson and I were talking about this in the last few 8 days. I think that probably is the next step for us is 9 that we should, at least, have as part of our records the 10 transcript which we don't. The system is probably such 11 that we'd probably have to pay for it. 12 MS. LINDA ROTHSTEIN: That's no different 13 here. 14 DR. STEPHEN CORDNER: But I think that is 15 -- as I think about it, I think we should, at least, have 16 the ability to look at the transcript if we want to, and 17 then we need to think about how many of them we actually 18 do and how many of them having done that, we discuss with 19 the pathologist giving evidence. 20 MS. LINDA ROTHSTEIN: Yeah. I'm going to 21 call in Dr. Prime and then Dr. Sossin -- or Professor 22 Sossin. 23 Dr. Prime, you wanted to say...? 24 DR. RAY PRIME: I just wanted to say in 25 response to Dr. Cordner, that we have had quite a good
751 rate of return on our court monitoring process. The 2 Crowns will return at a rate of about 70 percent and -- 3 and defence at about 40 percent, so we do measure some 4 things, Professor Sossin. 5 And -- and they do -- the majority of them 6 are very good reports, they're not critical, and the ones 7 that I feel best about are ones when I get a report from 8 a defence counsel that says the witness was unbiased and 9 objective, which is reaffirming that that's what we've 10 been trying to -- to get from our organization. 11 And I'd like to think that the fact that 12 most of them are coming back with good reports there that 13 they could -- we have good people, and we're training 14 people well, and we're trying to do that. 15 So I think there is a benefit; really, 16 truly a benefit in this. 17 There are occasionally some lawyers that 18 will write to us and say that they can't fill it out 19 because it's in the middle of the trial and it's 20 inappropriate and -- and sometimes they will later and 21 sometimes it does get lost in the process. 22 The other thing that I did want to say 23 though is, if you get a report from the Crown that says 24 this was a wonderful witness and you get a report from 25 the defence that says that this was a terrible witness,
761 then you know that you have to do some investigating and 2 getting the transcripts and looking into the reasons why 3 and is it -- was it a personality thing, was it an actual 4 failure to remain objective in the witness box. So on 5 those case -- those occasions I think they're very 6 valuable to see that. 7 MS. LINDA ROTHSTEIN: Professor Sossin, 8 your comments. 9 DR. LORNE SOSSIN: So just a quick point 10 that was mentioned earlier but hasn't been picked up on 11 this context, and that is that none of these moments in - 12 - in a look at accountability should be seen abstracted 13 from all the others. 14 So when we were hearing before about 15 reasonableness, well, that would be a big problem if that 16 was the only moment where there was going to be a chance 17 to look at the possibility of an error. It works because 18 it's one (1) of a series, some of which are going look at 19 the correctness and some of which aren't. 20 Here I think you need look at it the same 21 way. If you're telling me that there's no training, for 22 example, on giving testimony or that the culture of an 23 organization isn't based on kind of evidence based 24 approach, or you have these other colourations of the 25 system built in, well then I'd say Court monitoring does
771 absolutely nothing except reaffirm and exacerbate the 2 problem. 3 So I think it's -- when it's part of a 4 system that has to include the elements we discussed 5 earlier around training and accreditation, or that were 6 discussed earlier at another roundtable, and that in -- 7 go beyond the view that scientists are the best judges of 8 testimony in Court. 9 In other words, if a pathologist is coming 10 there, they're coming there to see was the science done 11 properly, insofar as this is an element of the 12 pathologist's remit. 13 I -- I think there's another view that 14 says you want to look at the interface with the criminal 15 justice system in a more complete way that would include, 16 for example, reviewing judgments when issues, or voir 17 dires, or other elements to see how was this testimony 18 used and is there something in this testimony, even 19 though it appeared fine at the mo -- at the time, that we 20 need to consider. 21 And I -- and I think the problem with what 22 we do now, to the extent that it involves questionnaires, 23 is we're not getting a disinterested perspective on that 24 interface between science and law. It's either the 25 advocates involved who have a specific view on what they
781 want to see established or not established or the -- the 2 other scientists who are going to have that prism. 3 So that's fine as long as there's another 4 moment where someone is going to take that other kind of 5 look, and that's where I -- I see these different prongs 6 of accountability all having a bearing on testimony; that 7 you need to have some transparency at the outset; you 8 need to have standards and guidelines, quality assurance; 9 you need to have meaningful oversight; and ultimately 10 someone has to answer for all the testimony given, both 11 individually for a pathologist and systemically in some 12 framework. 13 DR. DAVID RANSON: I just have one (1) -- 14 MS. LINDA ROTHSTEIN: Sure. 15 DR. DAVID RANSON: -- one (1) very brief 16 thing, just to say that one (1) of the basis and the 17 importance of the institute's counsel is it actually has 18 senior judicial officers on it. And notwithstanding the 19 various communications that take place ordinarily between 20 judicial officers, there's clearly an understanding of 21 culture of organizations that are working within the 22 public sector. 23 And having judicial officers at all level 24 of our Courts present on our governing council means that 25 the informal feedback that Professor Cordner talked about
791 is very, very valuable, back to the director of the 2 organization, as to the perception that is coming through 3 from judicial officers as to the conduct of -- of the 4 institute's staff giving oral testimony. 5 MS. LINDA ROTHSTEIN: Just on that final 6 point before we wrap up before the break, as you know, 7 Dr. Prime, what Justice Kaufman had hoped in his 8 recommendations is that trial and appellate judges would 9 be encouraged to correspond with the Centre through the 10 Chief Justice of Ontario to draw to the Director's 11 attention, in writing, any concerns about testimony. 12 What's happened in reality to that -- 13 DR. RAY PRIME: In -- in reality -- 14 MS. LINDA ROTHSTEIN: -- aspiration? 15 DR. RAY PRIME: -- in Ontario we have 16 very little feedback from the judges. And we were -- 17 when we were instituting this program we -- it was 18 advised that we didn't send them to the judges because 19 they wouldn't want to respond. 20 Occasionally we will get -- one (1) of the 21 questions that we have on our -- on our form is whether 22 the judge mentioned the testimony of the scientist, and - 23 - and in what way did he or she do that during the -- the 24 summation, and occasionally we will get some feedback 25 from that.
801 And one (1) very ironic report came back 2 to me just last week from an instance where we had a 3 witness who was involved in a -- a testimony in a US 4 case, and that was interesting that we had a report back 5 that the judge and all the court officials and the jury 6 thought he was the best witness. 7 It's quite a different system in the US 8 for getting that kind of feedback. 9 MS. LINDA ROTHSTEIN: Commissioner, 10 that's an appropriate time for our morning break, if it's 11 okay with you? 12 COMMISSIONER STEPHEN GOUDGE: Sure, why 13 don't we adjourn then for fifteen (15) minutes. 14 15 --- Upon recessing at 10:49 a.m. 16 --- Upon resuming at 11:07 a.m. 17 18 THE REGISTRAR: All Rise. 19 COMMISSIONER STEPHEN GOUDGE: Please sit 20 down. 21 Ms. Rothstein...? 22 23 CONTINUED BY MS. LINDA ROTHSTEIN: 24 MS. LINDA ROTHSTEIN: Thank you very 25 much, Commissioner. Dr. Prime will be with us shortly.
811 I want to -- it's okay. 2 COMMISSIONER STEPHEN GOUDGE: Is that 3 okay? 4 MS. LINDA ROTHSTEIN: Yeah. 5 COMMISSIONER STEPHEN GOUDGE: I mean 6 we've denied you a fair hearing, Dr. Prime. 7 MS. LINDA ROTHSTEIN: Yeah -- no, it's 8 okay. No, Dr. Prime and I agreed that there might be the 9 odd break. 10 DR. RAY PRIME: Sorry. 11 MS. LINDA ROTHSTEIN: Not at all. We 12 were just getting restarted. 13 14 CONTINUED BY MS. LINDA ROTHSTEIN: 15 MS. LINDA ROTHSTEIN: And I really wanted 16 now to come back to the questions which Professor Sossin 17 foreshadowed about an hour ago, dealing with, okay, 18 you've got review pla -- review processes in place that 19 you think capture a whole range of concerns from those 20 that are just sort of every day workman like concerns, 21 and wouldn't necessarily raise any significant issues, to 22 those that do raise very significant performance issues. 23 And, you know, Professor Sossin makes the 24 case, that if you're going to be an accountable 25 organization, you've got to have some transparency around
821 the weaknesses of -- particularly your weakest members. 2 So to what extent, if at all, do you 3 memorialize your review processes, and if you do, to what 4 extent, if at all, do you disclose them? Start with you, 5 Dr. Cordner. 6 DR. STEPHEN CORDNER: I mean part of our 7 quality management system is a very -- in fact, quite a 8 sophisticated IT framework. The centre of that framework 9 is the CIRCA system, which is a continuous improvement, 10 correct -- collective action system so that if people see 11 any near misses or actually save a complaint or a -- or 12 something nice is said about them, or there is a problem 13 that is specifically brought to their attention, it's 14 supposed to enter the CIRCA system and so there is 15 immediately a record. 16 And -- and then there is a trail of what 17 has been generated by that entry into the CIRCA system. 18 There's a quality review committee, which 19 I sit on, which the manager of the quality unit is -- is 20 the executive officer of. Our senior corporate person 21 sits on it, and then either David, or the head of our 22 scientific services is also present at the Quality Review 23 Committee, and we review the CIRCA, the other function of 24 the quality review, and their progress. 25 We insert ourselves into it if we think
831 things aren't happening, or different things should be 2 happening, or we want more about it. 3 But the quality unit reports on a systemic 4 basis, everything it's doing; so the audit it's 5 performing; the -- the quality assurance program that the 6 different parts of the organization participates in; the 7 results from that, the results of specific proficiency 8 testing. 9 So there's a lot of quality activity which 10 is formalized, and written down, and reviewed by the 11 Quality Review Committee. So all of those documents are 12 available. 13 We haven't had a lot of inquiry from the 14 legal system. In fact, we're not aware of having had any 15 inquiry from the legal system saying how's your 16 pathologist been in the College of American Pathologist 17 Forensic Pathology Quality Assurance Program; how's your 18 pathologist been in a College of American Pathologist 19 Neuropathology Quality Assurance Program; how's your 20 pathologist been in the Royal College of Pathologists of 21 Australasia Histopathology Quality Assurance Program? We 22 haven't had any of that, the record to date. So -- 23 MS. LINDA ROTHSTEIN: Meaning that if 24 someone asked, you'd send them all to them? 25 DR. STEPHEN CORDNER: Well, we haven't
841 had that -- 2 MS. LINDA ROTHSTEIN: But I'm asking the 3 question, Dr. Cordner. 4 DR. STEPHEN CORDNER: Well, I -- I 5 imagine there's a legal answer to that question, so we 6 will do -- we will do what we are obliged to do in the 7 circumstances. 8 And that not to be -- you know, I think we 9 would do -- we'll do what -- what we should do. 10 MS. LINDA ROTHSTEIN: Well, let me earn 11 my stripes here, Dr. Cordner. You've told us then that 12 you'll do what you're obliged to do, and we understand 13 that. 14 But what do you feel obliged to do in the 15 following scenario. You actually uncover a case in which 16 you think one (1) of your forensic pathologists has 17 erred, and erred in a way that you all agree isn't even 18 reasonable. 19 Do you have an obligation to disclose 20 that, and if -- if so, to whom? 21 DR. STEPHEN CORDNER: Well, obviously. 22 MS. LINDA ROTHSTEIN: Okay. And what do 23 you do about their prior cases? Does that trigger an 24 obligation to go back, and look at their other cases? 25 DR. STEPHEN CORDNER: We'll, look -- you
851 know, this is all hypothetical, because I've never been 2 confronted with it. So whatever I say has to be -- you 3 know, that has to be taken into account. I 4 haven't actually had to confront that 5 particular situation, where somebody's performed so badly 6 where the question of, Oh God, you know, have we missed 7 others? So -- but clearly that would be -- if the error, 8 or mistake, or whatever, was of sufficient magnitude, 9 well then that question would clearly arise. It hasn't 10 arisen, and nothing like it has arisen. Not to say it 11 couldn't. 12 MS. LINDA ROTHSTEIN: And to answer 13 Professor Sossin's question, to what extent do you 14 memorialize the rounds? Those kind of more informal 15 discussions. 16 DR. STEPHEN CORDNER: Yes, well there are 17 minutes, so the -- I'm not sure whether necessary -- they 18 -- our -- our pathology liaison office sits in, and takes 19 minutes. So she perhaps creates a -- she's a nurse, so 20 she understands medical terminology. She's under -- 21 she's the person who allocates the cases to pathologists. 22 She has a detailed knowledge of the whole case load 23 that's going through the place. 24 She keeps a record of the aspects of the 25 case that are discussed, whether it actually includes a
861 case number, I can't actually recall. But certainly 2 there is a description in general terms about what was 3 discussed without saying that pathologist A thought this, 4 and pathologist B thought that, and pathologist C thought 5 otherwise. 6 So it's not memorialized to that extent. 7 I've often -- and David and I have often thought it a 8 little surprising, that a -- that a barrister who's 9 really struggling for the defence hasn't said, Well what 10 did your colleagues think when you discussed it, because 11 -- just looking for something. And it never -- never 12 been asked, which surprised me. 13 It's never been even asked in sort of 14 conversations that we have prior to trials. So there 15 are, I think, opportunities there for -- for -- you know, 16 for the sort of inquisitive counsel if they wanted to 17 pursue them, but we haven't -- perhaps we're too far away 18 from everything to be -- you know, our adversarial system 19 perhaps isn't as adversarial as other parts of the world. 20 COMMISSIONER STEPHEN GOUDGE: Can I just 21 ask a couple of questions, Ms. Rothstein? 22 Remind us, Dr. Cordner, of how many 23 autopsies a year are done at Victoria? You told us on 24 Monday, but I forgot. 25 DR. STEPHEN CORDNER: Yeah, it's about --
871 we do -- in our facility, there are four thousand (4,000) 2 bodies and about -- 3 COMMISSIONER STEPHEN GOUDGE: Right. 4 DR. STEPHEN CORDNER: -- two thousand, 5 five hundred (2,500) autopsies. 6 COMMISSIONER STEPHEN GOUDGE: Right. 7 DR. STEPHEN CORDNER: Of which about a 8 hundred/hundred and fifty (100/150) are suspicious 9 deaths, sixty (60) to seventy (70) actual clear 10 homicides. 11 COMMISSIONER STEPHEN GOUDGE: Right. Now, 12 in beginning to answer Ms. Rothstein's question, you 13 talked of three (3) quality assurance programs that your 14 documentation would comply with if anybody asked or came 15 to look. Are they quality assurance programs that you 16 signed up to as -- 17 DR. STEPHEN CORDNER: Yeah. 18 COMMISSIONER STEPHEN GOUDGE: -- part of 19 your accreditation? 20 DR. STEPHEN CORDNER: No, not as part of 21 accreditation. That's simply the institution trying to 22 access as many programs as it can to -- as a formal way 23 of -- of -- 24 COMMISSIONER STEPHEN GOUDGE: Improving 25 quality assurance.
881 DR. STEPHEN CORDNER: -- they're testing 2 us and making sure that we're participating -- 3 COMMISSIONER STEPHEN GOUDGE: Okay. 4 DR. STEPHEN CORDNER: -- in the -- 5 COMMISSIONER STEPHEN GOUDGE: Can you 6 talk a little about the three (3) programs? I mean, I 7 recognize one's in histology and one's in neuropathology, 8 but each of them, I take it, are similar in the sense 9 that they set out certain principles that should be 10 followed by -- 11 DR. STEPHEN CORDNER: Well, actually -- I 12 mean, I don't -- 13 COMMISSIONER STEPHEN GOUDGE: David, do 14 you want to do that? 15 DR. DAVID RANSON: No, the reason -- I 16 was just going to sort of name what my -- as I said, 17 reviewing my -- my -- my leader's comment there. It's 18 not that the -- enrolment in all of these programs is a 19 requirement for accreditation, but accreditation does 20 require to have both internal and external -- 21 COMMISSIONER STEPHEN GOUDGE: Right. 22 DR. DAVID RANSON: -- proficiency 23 testing. 24 COMMISSIONER STEPHEN GOUDGE: Right. 25 DR. DAVID RANSON: It doesn't specify
891 exactly which ones we must use. 2 COMMISSIONER STEPHEN GOUDGE: Right. 3 DR. DAVID RANSON: And what we do is we 4 over-include -- that is, we engage in far more external 5 proficiency test programs than we would be required to do 6 for accreditation purposes. 7 COMMISSIONER STEPHEN GOUDGE:. Yes. 8 DR. DAVID RANSON:. And that is because 9 we see those programs as having not just an assessment of 10 our current performance, but many of them are designed 11 particularly to have an educational component. 12 So that if you're being tested on a -- on 13 a particular diagnosis from a history and some 14 photographs and some slides, and you come up with perhaps 15 a range of diagnoses or some range of ideas and you 16 answer the questions, there's often a feedback about full 17 details with references about what that case was all 18 about and it provides very, very important ongoing 19 professional development. 20 So we see enrolment in those programs as 21 both fulfilling our requirements for external 22 proficiency, but also adding to the educational -- 23 COMMISSIONER STEPHEN GOUDGE: Right. 24 DR. DAVID RANSON: -- and professional 25 development --
901 COMMISSIONER STEPHEN GOUDGE: You 2 actually enroll -- do you enroll in the programs or do 3 you simply borrow their -- 4 DR. DAVID RANSON: No. 5 COMMISSIONER STEPHEN GOUDGE: -- best 6 practices, quality assurance -- 7 DR. DAVID RANSON: We enroll in those 8 programs. 9 COMMISSIONER STEPHEN GOUDGE: And what 10 does that mean? 11 DR. DAVID RANSON: It means that we get 12 our results back and we get an idea of how we are 13 performing against others in the -- in the program. 14 DR. STEPHEN CORDNER: The program is in 15 the form of test cases, so you get -- for example, in the 16 College of American Pathology, Forensic Pathology 17 program, you get a history, a story, generally some 18 photographs, and maybe some histo-photographs -- 19 histology photographs; maybe the result of special 20 testing of a microbiology or biochemistry or other 21 special testing from forensic science in a particular 22 case. 23 And then you get asked a series of 24 questions. This is where, from my point of view, it gets 25 a little bit weak because it -- it tends to be multiple
911 choice answer questions, which is quite different to the 2 way we operate, which is where we have to generate 3 opinions and -- 4 COMMISSIONER STEPHEN GOUDGE: Right. 5 DR. STEPHEN CORDNER: -- so -- but that's 6 -- that's the compromise it makes in order to produce -- 7 COMMISSIONER STEPHEN GOUDGE: Marked by 8 computers. 9 DR. STEPHEN CORDNER: Yeah. Yeah. So -- 10 but that's how it works and -- but it is very important 11 educational material and the whole group -- we do it as a 12 group. It's part of our group activity. Now, somebody 13 might say, Oh, you should each be doing it individually-- 14 COMMISSIONER STEPHEN GOUDGE: Right. 15 DR. STEPHEN CORDNER: -- but that's again 16 a matter of how much time and resource you've got to do 17 it. We do it as a group -- 18 COMMISSIONER STEPHEN GOUDGE: Does the 19 American program actually set out a set of best practices 20 that should be used for quality assurance for an 21 organization like the Institute or is it this case 22 approach? How does it work? I do not quite understand. 23 DR. DAVID RANSON: It's not that the pro 24 -- the program is an external proficiency, or assessment, 25 or an educational program that you're entering into. It
921 is our own quality assurance and our accreditation 2 programs in Australia, which is the NATA or the National 3 Association of Testing Authorities -- 4 COMMISSIONER STEPHEN GOUDGE: Right. 5 DR. DAVID RANSON: -- which specifies we 6 must engage in an a range of programs. 7 COMMISSIONER STEPHEN GOUDGE: I see. 8 Okay. 9 DR. DAVID RANSON: And we engage in those 10 programs -- 11 COMMISSIONER STEPHEN GOUDGE: I see. 12 Okay. 13 DR. DAVID RANSON: -- as part of 14 education and also to fulfill -- 15 COMMISSIONER STEPHEN GOUDGE: Okay. Fair 16 enough. 17 DR. DAVID RANSON: -- accreditation 18 requirements. 19 COMMISSIONER STEPHEN GOUDGE: That's 20 helpful. I just didn't understand it. 21 DR. DAVID RANSON: I mean, the programs - 22 - sometimes there are very good programs, and sometimes 23 they're not as good but they have other values. 24 The American programs are extremely all- 25 encompassing and very useful, but sometimes they don't
931 fulfill our Australian requirements. On occasion, we get 2 things about bear paws, but we've never seen anything 3 about kangaroos, for example. So you -- their programs 4 may or may not be beautifully tailored to our specific 5 requirements, and that's partly why we engage in so many. 6 COMMISSIONER STEPHEN GOUDGE: Right. 7 Thanks, Ms. Rothstein. 8 9 CONTINUED BY MS. LINDA ROTHSTEIN: 10 MS. LINDA ROTHSTEIN: You're prob -- I 11 gather your tests have a lot of questions about water 12 deaths, do they not? 13 Dr. Prime, do you want to tell us about 14 your experience in memorializing your reviews and what 15 you view as your obligations in disclosing any errors 16 that they collect? 17 DR. RAY PRIME: Well, certainly, if the 18 error relates to a specific case and the case has already 19 gone out, then we would notify the Crown attorney and 20 issue appropriately new reports. 21 We memorialize or, at least, log, I guess 22 is a better word for us. We document and keep track of 23 all of the various quality assurance functions that are 24 carried out within the laboratory, and that would include 25 the audits, the court feedback reviews that we talked
941 about earlier, and also proficiency testing results. 2 There was concern among staff when these 3 things were introduced when we were first becoming 4 accustomed to -- to accreditation processes because of 5 the same sorts of things. 6 And I think you were mentioning that -- 7 that the staff didn't want to be faced with probing 8 questions, mainly because we feel that sometimes 9 something we put in as a test, or a check and balance, is 10 not properly understood when it gets into the -- the 11 adversarial process. 12 So staff were concerned about that, but I 13 don't think those concerns have really materialized as to 14 be anything that's been problematic for us in any big 15 way. 16 If we do find that there's a problem with 17 a proficiency test, then the process is then to 18 investigate it; evaluate what, if any, the -- what the 19 serious error might have been; if it was serious or not. 20 And if we find that's the case, then we 21 would go back to review the work of the people that were 22 involved in that test for a period going back to the 23 previous test that was passed. 24 If anything is identified that impacts 25 case work as a result of that, then amended reports would
951 be sent to the appropriate parties. 2 We create corrective action reports when 3 things have been out of specification, for example, and 4 the technical staff in the section involved would be 5 ensuring that that has been fixed and hasn't -- hasn't 6 impacted case work. 7 Now, making those records available openly 8 is -- is more problematic than I -- I would want to. I 9 guess, I wouldn't want to make those kind of records 10 readily available. And generally, if we're asked for 11 those kind of records, we would start by giving a 12 synopsis of what may have happened and what corrective 13 action was taken and whether there was any impact on the 14 product that went out of the door. 15 That would be my first step. And if it 16 was going to be beyond that, I think then we'd be looking 17 at whether or not we needed to go before the judge and 18 make a case for not -- not giving it over. The -- 19 COMMISSIONER STEPHEN GOUDGE: What would 20 your concern be, Dr. Prime, about full transparency? 21 DR. RAY PRIME: Well, I'm willing to go 22 on. First -- 23 COMMISSIONER STEPHEN GOUDGE: Sure. You 24 do it your way -- 25 DR. RAY PRIME: -- we do have a fairly
961 transparent process. 2 COMMISSIONER STEPHEN GOUDGE: -- I'm just 3 interested. You said it -- 4 DR. RAY PRIME: Okay. 5 COMMISSIONER STEPHEN GOUDGE: -- was 6 problematic. I would be interested to know why. 7 DR. RAY PRIME: In terms of making the 8 data for the cases, we have complete disclosure on 9 anything that relates to the case file, the specific 10 file -- 11 COMMISSIONER STEPHEN GOUDGE: Right. 12 DR. RAY PRIME: -- or background 13 information. 14 What we're talking about is if someone has 15 failed the proficiency test -- so called failed a prof -- 16 proficiency test, has it had any impact on their -- on 17 their ability work? 18 And it's -- it's that misunderstanding of 19 what the whole process -- 20 COMMISSIONER STEPHEN GOUDGE: Right. 21 DR. RAY PRIME: -- of the proficiency 22 test involves. 23 COMMISSIONER STEPHEN GOUDGE: Right. 24 DR. RAY PRIME: It's not a black and 25 white thing and certainly, we'd view the quality
971 assurance process itself as being one (1) that is 2 punitive. 3 We don't use that to -- to try to dismiss 4 someone, for example. We try to use it to determine 5 whether we have an gaps in our system and to use it for 6 the continuous improvement processes that my colleagues 7 have addressed. 8 And so the -- the results of a profi -- 9 proficiency test or an audit that might be out of 10 compliance means we have to take some steps as an 11 organization to fix that, and that's what we do. We -- 12 if -- if it's an individual it may re -- involved re- 13 training, or re-orientation, or simply a discussion with 14 the person to see what might have happened at that 15 particular point in time. 16 Once it's corrected and it hasn't impacted 17 the workflow, then we feel that's the end of it. 18 COMMISSIONER STEPHEN GOUDGE: All right. 19 DR. RAY PRIME: If the retraining doesn't 20 work, then that's when the disciplinary action might kick 21 in, but it's not -- not a response to the initial issue 22 that came up during the quality assurance process. 23 COMMISSIONER STEPHEN GOUDGE: So if I 24 said what lies at the heart of your concern about full 25 transparency, I get the sense that it has to do with the
981 potential for misunderstanding. 2 DR. RAY PRIME: I think it's mostly 3 revolving around that because the -- the -- some of the 4 issues of -- of the science are not cut and dried. 5 Proficiency tests are very difficult to set up so that 6 they're real. 7 And they're -- often times the results 8 from a proficiency test may lead the question as to 9 whether or not the test was, in fact, a true and -- and 10 useful test, and if it goes into the courtroom, it 11 becomes very black and white. 12 COMMISSIONER STEPHEN GOUDGE: And would 13 it concern you, as well, that if there were full 14 transparency, that might -- let me put it bluntly -- take 15 the teeth out of the value of this form of quality 16 assurance? That is -- 17 DR. RAY PRIME: We -- we -- 18 COMMISSIONER STEPHEN GOUDGE: -- there 19 would be less inclination to -- 20 DR. RAY PRIME: We've always -- when I 21 talk to defence counsel and when we talk to our Advisory 22 Committee about these issues, we want to be able to 23 perform our quality assurance process in a effective and 24 useful way. 25 We don't want to have any element of human
991 nature coming into this that says, If we're going to do a 2 really tough test, then -- and be criticized for it, well 3 let's do the minimum, so yes, we don't want to take the 4 teeth out of the program. 5 COMMISSIONER STEPHEN GOUDGE: Can I just 6 ask one (1) other question, Ms. Rothstein? What 7 accrediting agency do you look to? 8 DR. RAY PRIME: In the past, we've been 9 accredited by ASCLAD/LAB, which is -- they name it 10 America Society -- 11 MS. LINDA ROTHSTEIN: American Society of 12 Crime Lab Di -- Directors. 13 DR. RAY PRIME: Yes, Laboratory 14 Accreditation Board. Until our next inspection, that was 15 the only inspecting body that was available. Now there's 16 three (3) options for accreditation under the ISO 17 standards, and we are intending to go again with 18 ASCLAD/LAB International. 19 COMMISSIONER STEPHEN GOUDGE: What are 20 the ISO standards? 21 DR. RAY PRIME: ISO standards are interna 22 -- they -- they are generally referred to as 23 international standards, but it's an international system 24 of -- of accrediting, and there's a standard for 25 laboratories referred to as Standard 17025, and it -- it
1001 lays out a set of standards for any kind of a testing 2 laboratory to -- to meet. 3 And what the forensic community has done, 4 has developed some supporting documentation and 5 supporting guidelines to -- to bring that standard in 6 line with the requirements of a forensic science 7 laboratory, so... 8 COMMISSIONER STEPHEN GOUDGE: And how 9 long have you been accredited? 10 DR. RAY PRIME: We've been accredited 11 since 1993, and we're -- we'll be going forward again in 12 the fall for -- 13 COMMISSIONER STEPHEN GOUDGE: How often 14 do you have to do it? 15 DR. RAY PRIME: The accreditation under 16 the old system was every five (5) years. And the five 17 (5) year interval was for the complete external review 18 which means for our organization, for example, that we 19 have a team of inspectors; usually about twenty (20) 20 inspectors that come from all over -- basically, all over 21 the world usually, but mostly from North America, and 22 they're led by one (1) staff inspector who directs the 23 team. They come into the lab for a period of one (1) 24 week, and they work very intensely during that week to 25 examine all the managerial and technical processes that
1011 we have in place. 2 They interview staff and -- and do a very 3 thorough audit. Now on a yearly basis, we're required to 4 do our own audits and report those audits to the -- to 5 the auditing body, and -- and we have a date each year by 6 which we have to do that. 7 COMMISSIONER STEPHEN GOUDGE: Do they 8 have an external component, or is that all internal? 9 DR. RAY PRIME: That's an internal, but 10 the accrediting body can, at any time, ask to -- to 11 review the documentation or to do a reinspection. The 12 exception of that is that the -- the biology section 13 where the DNA analysis is done is subject to a bi-yearly. 14 Every two (2) years we have an audit -- 15 COMMISSIONER STEPHEN GOUDGE: And 16 external or -- 17 DR. RAY PRIME: -- an external audit for 18 the DNA laboratory. 19 COMMISSIONER STEPHEN GOUDGE: Right. 20 DR. RAY PRIME: A -- a significant 21 component of being involved in accreditation is that we 22 commit to allowing our staff and part -- mostly our 23 management staff, but a few of the other staff have been 24 involved, we commit to having them go out and audit other 25 labs as well, so that they have a -- a learning component
1021 that comes from that. 2 COMMISSIONER STEPHEN GOUDGE: Mm-hm. 3 DR. RAY PRIME: And -- and that's 4 something that we encourage amongst the -- the -- the 5 staff. And I -- I attempt to give people an opportunity 6 to do that at least once a year. 7 COMMISSIONER STEPHEN GOUDGE: Right. 8 Does that resonate with the accreditation system in 9 Australia, Dr. Cordner, that you have to comply with? 10 DR. STEPHEN CORDNER: Very similar. 11 COMMISSIONER STEPHEN GOUDGE: Every five 12 (5) years? 13 DR. STEPHEN CORDNER: More frequently 14 than that. 15 COMMISSIONER STEPHEN GOUDGE: What is it? 16 DR. STEPHEN CORDNER: Well, it's -- I 17 think it's about every three (3) years for us, and it can 18 be more frequent. 19 COMMISSIONER STEPHEN GOUDGE: Right. 20 DR. STEPHEN CORDNER: And on occasion, it 21 has been more frequent for us if at the end of a -- an 22 accreditation visit they think, Oh there's one (1) or two 23 (2) things, you know, you need to get on to before we 24 come back in three (3) years time, or come back in twelve 25 (12) months time.
1031 COMMISSIONER STEPHEN GOUDGE: Right. 2 Okay. 3 DR. DAVID RANSON: I think we -- we 4 basically have multiple levels of accreditation. NATA, 5 the group I talked about before, has a basic 6 accreditation for medical services, so we're -- we're -- 7 we are credited against medical laboratory, but then 8 we're also accredited against the forensic modules in 9 17025 in ISO as well. 10 So in order to get the ISO accreditation 11 you have to -- in -- for Australia, we have to be part of 12 the -- the NATA accreditation for the medical and the 13 forensic science components. 14 And then ISO is -- accreditation is 15 delivered by the same accreditation body against the 16 international standards. We also have another level of 17 accreditation which relates to therapeutic goods 18 administration, because we are actually a provider of 19 tissues for transplantation. 20 COMMISSIONER STEPHEN GOUDGE: Right. 21 DR. DAVID RANSON: And that has very, 22 very stringent and formal requirements in relation to 23 obviously health safety of products that are being used 24 in transplantation. 25 COMMISSIONER STEPHEN GOUDGE: Right.
1041 DR. DAVID RANSON: And some of those 2 accreditation standards are probably even higher and 3 tighter than the -- the NATA ones. 4 COMMISSIONER STEPHEN GOUDGE: All right. 5 That's helpful. Thank, Ms. Rothstein. 6 7 CONTINUED BY MS. LINDA ROTHSTEIN: 8 MS. LINDA ROTHSTEIN: Professor Sossin, I 9 know you had some comments. 10 DR. LORNE SOSSIN: Just a -- a brief 11 follow-up on the issue of disclosure of these things. 12 And I think one should never have a sense of the black 13 and white, as Dr. Prime put it, that you're either 14 disclosing or you're withholding. 15 I think the question is always what is the 16 public or the parties have a right to know, and how can 17 that be satisfied without compromising the integrity of 18 the process. 19 So for example, quality assurance 20 shouldn't feel like discipline. It's meant to be a 21 support, and it's meant to be part of an organizations 22 regenerative mandating continual improvement. 23 It's not meant to be a sanction. So one 24 could imagine a situation in which you wouldn't disclose 25 the identity of someone who had failed a proficiency
1051 exam, but in an annual report would say, We engage in 2 proficiency exams for these external courses or programs 3 for these reasons. 4 In 2007/2008, we did this on these many 5 occasions, this percentage of our scientists or forensic 6 pathologists reached a certain level of proficiency. And 7 if there were some that didn't reach that, these 8 corrective actions are in place as part of our policy of 9 continual improvement. 10 So you're able to say, Here's what we do, 11 here's why we do it, without having to say, And it's this 12 individual who was responsible for, you know, fifty-five 13 (55) samples that year which would lead to a very quick 14 rush to -- if you failed a completely unrelated exam, 15 maybe everything you're doing is inadequate. 16 And then I think there's a response if 17 someone says, Well it says here three (3) people failed, 18 you know, isn't that a huge concern with respect to all 19 the materials coming out of that lab? 20 The answer is no, and here's why, and I 21 think there -- you know, in that spirit of transparency, 22 it doesn't mean that you simply turn over every file. 23 It can mean summaries, synopses, a 24 gysting. It answers the threshold in each case though, 25 Have you provided a meaningful set of data, or
1061 information for outside parties to be able to ascertain 2 what's happening and ensure confidence in -- in the 3 process? 4 And -- and I think that, to me, is the -- 5 the right threshold. Conscious disclosure or -- or not 6 disclosure. 7 COMMISSIONER STEPHEN GOUDGE: That is the 8 public confidence threshold you are talking about. 9 DR. LORNE SOSSIN: Right. 10 11 CONTINUED BY MS. LINDA ROTHSTEIN: 12 MS. LINDA ROTHSTEIN: Dr. Prime -- 13 COMMISSIONER STEPHEN GOUDGE: Can you 14 keep all that, Professor Sossin, from the prying grasp of 15 adversarial counsel? 16 DR. LORNE SOSSIN: I -- I think you can 17 through other accountability mechanisms, like, for 18 example, the -- the data collection, the annual reports, 19 the ways of conveying information which are, we've seen, 20 spotty around various parts of the death investigation 21 system in Ontario, and it's -- it's a -- it's a similar 22 refrain. 23 I mean, the resources; there's time, 24 there's money in being able to aggregate data and -- and 25 convey it in a meaningful way.
1071 But I think the payoff is enormous value 2 for the money spent. And I -- I'd add, because Dr. Prime 3 hasn't, that CFS has also been subject to a fairly 4 rigorous review by the Provincial auditor in Ontario, and 5 -- and that resulted in a number of, I thought, very 6 important windows into the operations. 7 And in many cases, the successes of that 8 institution that wouldn't have been apparent on their -- 9 in their own communications or on their own steam. 10 So I think we need to see the whole 11 picture, both the downside risks, and the upside risks of 12 adding more transparency and more accountability into the 13 system. 14 15 CONTINUED BY MS. LINDA ROTHSTEIN: 16 MS. LINDA ROTHSTEIN: Dr. Prime, you had 17 some comments. 18 DR. RAY PRIME: Yeah. I -- I didn't want 19 to mean -- leave the impression that we weren't 20 transparent in our documentation and our reporting. 21 We do have an Advisory Committee, and I 22 report to the Advisory Committee on the results of the 23 audit, and those are -- are quite available. 24 What I was more concerned about is when we 25 get a request from defence counsel for specific
1081 disclosure in a case -- 2 COMMISSIONER STEPHEN GOUDGE: Sure. What 3 is the error rate of scientist X. 4 DR. RAY PRIME: -- and it's a specific 5 person, and I think that's personnel information, and I 6 would -- I would give a general synopsis that -- even if 7 it was a scientist that had no blemish on their record, I 8 think I would be in a position where I would want to say 9 that, There's been nothing that we can identify as a 10 concern for you, and I'm not going to dis -- disclose the 11 actual specific records of the testing, and -- and 12 correct a batch of reports that are involved. 13 The bottomline is if the -- if counsel 14 wants to pursue that, then it's up to a judge to make 15 that decision, and -- and perhaps, we will have to do 16 that. 17 But as Professor Cordner has said, we have 18 not been in a position where we've had to go to that 19 extent. We've been as -- as open, and transparent, and 20 cooperative -- and I think that's the key word. 21 If we cooperate with defence counsel, give 22 them the information that's going to help them to 23 understand what the -- the strength of our evidence is, 24 then that has been working up to now. 25 And certainly, I can tell you that after
1091 Kaufman, when all of this was fresh and in the news, we 2 certainly did have just about every question for every 3 disclosure of material at the time. 4 And I think we were successful in working 5 with defence counsel to -- to show them that we were 6 genuinely interested in helping their broader case, and - 7 - and I think that's been paying off. 8 9 CONTINUED BY MS. LINDA ROTHSTEIN: 10 MS. LINDA ROTHSTEIN: Dr. Ranson, you had 11 some comments? 12 DR. DAVID RANSON: Just one (1) brief 13 comment, in relation to the system that we have, which is 14 a -- a computerized system. Whilst Professors Koll and 15 Stratbe (phonetic), we've never really had a request from 16 a -- a defence or counsel in relation to a particular 17 trial, we certainly have had Freedom of Information 18 requests against that from journalists, and we have 19 handled those according to the government's Freedom of 20 Information policy and provided information where it was 21 available in relation to the request. 22 So in that sense, it is a discloseable 23 document, and we would respond to those requests. 24 COMMISSIONER STEPHEN GOUDGE: Right. 25 DR. DAVID RANSON: The other thing I'd
1101 say is that the accumulated data from our quality 2 management system, and -- and the continuous improvement 3 system, is actually aggregated. 4 It is provided to all section heads so 5 they can see how their section has been performing in 6 relation to that, so giving them feedback on a broad 7 management point of view, and the aggregated type of 8 results of those are also made available to our council 9 as part of council papers in -- in relation to, you know, 10 the overall operation of our quality management system. 11 So there is a feedback through the 12 ordinary business accountability process. 13 MS. LINDA ROTHSTEIN: I want to turn 14 then, if we can, to look at some of the corrective 15 measures that you gentlemen have worked with in your 16 various working lives. 17 And start with you, Dr. Prime, by asking 18 you to describe, for the Commissioner, what the 19 complaints mechanisms are from be it members of the 20 public, or defence counsel, or other persons who feel 21 themselves aggrieved as a result of the work of one (1) 22 of your forensic scientists. 23 DR. RAY PRIME: The -- basically, the 24 complaints mechanism is to bring it to the attention of a 25 manager within the organization. And our complaints
1111 policy indicates that anyone who receives a complaint 2 should bring it to their manager's attention and then the 3 quality assurance manager, and ultimately myself. 4 We have a procedure in place for 5 responding to that, and if I'm a little weak on being 6 able to tell you what that is, that's because we don't 7 get a lot of complaints through this mechanism. 8 We do get some letters that are directed 9 to me, and -- and we respond to those letters by -- by 10 way of a communication that says, We will investigate it 11 to the level that we need to. 12 We may ask for additional information from 13 -- if it's -- if it's counsel, we will ask for additional 14 information, and then I will assign one (1) of the 15 appropriate managers to investigate it. 16 MS. LINDA ROTHSTEIN: Is there ever a 17 need to go outside to do the investigation; to bring in 18 an external person to provide the level of objectivity 19 that may be required? 20 DR. RAY PRIME: Not as a first step, and 21 I don't remember any recent cases where we've done that. 22 Certainly, as part of the Kaufman Inquiry, 23 we did go back and bring in external reviewers to examine 24 the case files that were in question prior to the -- the 25 case involving Christine Jessup, and that was done by
1121 bringing in reviewers from -- from other laboratories. 2 The other means of identifying the 3 complaints is through the court monitoring process that I 4 referred to before. And we did have one (1) instance 5 where I asked for a review by someone on the Advisory 6 Committee who was from the Crown office. Tha -- that's 7 been an infrequent need. 8 MS. LINDA ROTHSTEIN: Dr. Cordner, what 9 corrective mechanisms are available to address concerns 10 about the work of a forensic pathologist in Victoria? 11 DR. STEPHEN CORDNER: Well, again, I 12 mean, there's -- there's been relatively little activity 13 if you like or things brought to attention that have 14 required action. 15 A particular example occurred some years 16 ago where the prosecution, in the middle of a trial, came 17 along to my office and said, Well, what do you think 18 about this opinion of your pathologist in this particular 19 case about this particular issue? And as it happened, I 20 said, Well, actually I don't think that's right. 21 And so I addressed that with the 22 pathologist who said, Well I'm sticking with what I said. 23 MS. LINDA ROTHSTEIN: May I stop you 24 there and just ask the question that lawyers will be 25 curious about.
1131 Whose opinion, yours or the other 2 pathologist, was most supportive of the Crown's position? 3 DR. STEPHEN CORDNER: As it turned out, I 4 don't think it was actually an important issue. 5 MS. LINDA ROTHSTEIN: Okay. 6 DR. STEPHEN CORDNER: So, because the 7 different opinion that I then wrote, I said to the 8 pathologist, Well that's fine, I mean, actually I think 9 you are wrong. But you say that you're sticking with 10 what you say, that means I'm now going to have to write 11 another -- my own opinion and provide that to the 12 prosecution which I did. 13 And -- as opposed to the other pathologist 14 -- I wasn't able to convince the other pathologist of the 15 -- nearer to my own view, so. And then having provided 16 that opinion in the event the prosecution didn't tender 17 it because it wasn't -- and it was provided to the 18 defence, it didn't -- wasn't so much at issue at the 19 point they felt necessary to come and see me in the first 20 place, so. 21 And that -- that is about the most -- 22 that's about the highest level to which this has risen in 23 relation to a forensic pathologist. 24 MS. LINDA ROTHSTEIN: Does your medical 25 licensing body have the jurisdiction and capacity to deal
1141 with concerns about the quality of work performed by a 2 forensic pathologist in Victoria? 3 DR. STEPHEN CORDNER: Yes, it does, and 4 although there is a section in the Coroner's Act which 5 says that everything done under the authority of a 6 coroner is immune in any -- 7 DR. DAVID RANSON: Yes, basically legal 8 proceeding, I think is -- 9 DR. STEPHEN CORDNER: -- any legal 10 proceeding. So we had, what I regard, as a very 11 unfortunate and inappropriate use of the Medical Board 12 against one (1) of our pathologists and -- and -- which 13 resulted in an adverse, but at the lowest level of 14 adverse, finding for that pathologist which completely 15 turned that pathologist off -- a very good pathologist in 16 my view -- off the practice in forensic pathology. 17 So I've got a little bit of a view about 18 the adequacy of the general medical regulatory mechanisms 19 and their applicability to -- and what I think is a 20 different paradigm which is poorly understood by general 21 medicine, which is forensic medical practice. 22 MS. LINDA ROTHSTEIN: Help us understand, 23 with a little more detail if you would, Dr. Cordner, why 24 you say they got it wrong. 25 DR. STEPHEN CORDNER: Well, that -- that
1151 would mean going into the details of the particular case, 2 but let me just say that -- I mean Medical Boards and 3 medical counsels are obviously an extremely important 4 organ -- group for the protection of the public; the 5 protection of the public from medical practitioners who, 6 for a whole range of reasons, ought not to be practicing 7 medicine or ought to be brought to account for some 8 falling below the -- the acceptable standards, so that is 9 absolutely right. 10 Forensic pathologists need disciplinary 11 mechanisms, not getting away from that for one (1) 12 moment. The General Medical Counsel or the Medical Board 13 type approach is there for the protection of patients, 14 okay? That's dealing with the primary obligation of 15 virtually all doctors to look after patients. That is 16 quite a long way away from where forensic pathologists 17 are practicing. 18 So, you've got a whole system here, which 19 is geared to protecting the public and evaluating a 20 doctor's observation of his or her duties to patients, 21 evaluating a forensic pathologist who's operating in a 22 completely different paradigm. 23 So unless that disciplinary mechanism goes 24 to some lengths to accommodate this different paradigm, 25 then I think there needs to be a separate disciplinary
1161 mechanism for forensic pathologists which would have, at 2 least, perhaps, a wider level of support amongst forensic 3 pathologists. 4 In the particular case, there was no 5 effort to engage forensic pathologists from another 6 discipline -- from another -- 7 DR. DAVID RANSON: Jurisdiction. 8 DR. STEPHEN CORDNER: -- jurisdiction in 9 a Medical Board process to evaluate their performance. 10 That was a problem, I believe, with the way Professor 11 Meadow was evaluated by the GMC. 12 MS. LINDA ROTHSTEIN: Right. 13 DR. STEPHEN CORDNER: There were three 14 (3) medical practitioners and three (3) lay people on 15 that -- on that board that suspended his registration; 16 none of whom had any particular understanding or 17 knowledge of what it's like to be a witness operating in 18 a completely different paradigm. 19 So -- and we've written a little bit about 20 it in the paper, but I actually think the Home Office 21 mechanism -- at least, they've gone to the trouble of 22 setting up a particular mechanism to evaluate the 23 performance of forensic pathologists, but to what extent 24 that is recognized by the GMC as sort of doing for their 25 work for them, I think that's still a body of work to be
1171 done. 2 COMMISSIONER STEPHEN GOUDGE: I take it, 3 at the very least, you would say when the regulatory body 4 purports to engage in this sort of regulation, they ought 5 to come at it through the eyes of forensic pathology. 6 DR. STEPHEN CORDNER: Well, to recognize 7 that it's a different paradigm. It's not to do with the 8 medical management of patients which is what the whole 9 system is designed for; to protect patients from doctors 10 who have fallen below some standard of medical practice. 11 Now, forensic pathologists are practicing 12 a form of medicine, but it is so different. I know this 13 is pleading a special cause, but it is so different that 14 it needs recognition in the way that it's evaluated. 15 MS. LINDA ROTHSTEIN: Dr. Cordner, what 16 would you say about a model in which the licensing body's 17 case against the forensic pathologist was premised on the 18 expert views of forensic pathologists that -- that you 19 respected? 20 So that the standards of practice -- the 21 evidence about what the standards of practice of that 22 forensic pathologist were -- and the failings that are 23 identified, was all the subject of expert evidence from 24 well-qualified forensic pathologists, but the decision 25 makers were not forensic pathologists. What would you
1181 say about that model? 2 DR. STEPHEN CORDNER: Well you'd -- I 3 mean, the decision-makers might feel more comfortable if 4 they weren't only receiving the advice but had amongst 5 the members somebody, perhaps from another jurisdiction, 6 who's respected by everybody to help them make the 7 decision. 8 That's -- but, I mean, -- 9 MS. LINDA ROTHSTEIN: But why isn't that 10 model that I've just put to you, for the sake of 11 argument, the same model that we use in most adjudicative 12 disputes? 13 DR. STEPHEN CORDNER: Yes. 14 MS. LINDA ROTHSTEIN: That is to say the 15 experts provide the specialized content knowledge about 16 what the standards are or not, and the decision-makers 17 don't have that expertise. 18 DR. STEPHEN CORDNER: Yeah, well in 19 regulatory bodies, I think -- this is a bit of a 20 generalization I suppose, when we've got an expert on 21 regulatory bodies two (2) -- two (2) people away, so I 22 might be about to -- I'm speaking outside my area of 23 expertise -- but let me just say, I think, that on 24 regulatory bodies, it not necessarily the case that the 25 decision-makers have a lot of experience or training in
1191 making decisions of those kinds. 2 MS. LINDA ROTHSTEIN: Right. What are 3 you comments about this, Professor Sossin? 4 DR. LORNE SOSSIN: I just want to 5 highlight what I think is a very important slippage, and 6 I -- and I would say an all too common slippage in the 7 discussion on accountability. 8 We go from the outset saying these are 9 teams. It's -- it's the wrong paradigm to see an 10 individual pathologist or in our system, an individual 11 coroner or an individual scientist, as the place where 12 you want to deposit all of this residue of 13 accountability. 14 You want to see it as integrated over time 15 between different professionals. And when you bring in 16 complaints, and I know this will be subject to a separate 17 roundtable, I think it's always important to look at it 18 from the standpoint of the down-stream person who's often 19 going to bring the complaint. The family let's say, or 20 the person who feels hard done by, or wrongfully accused, 21 or whatever it might be. 22 They're not going to say, I -- I take 23 issue with that position or that pathologist or that 24 scientist most often. They're going to say, They got it 25 wrong. And who the 'they' are; what elements of the
1201 team, what processes broke down, whose professionalism 2 wasn't up to the right guideline or standard won't be, 3 and I would suggest, ought not to be the focus of the 4 complainant. 5 I think unless you're able to provide a 6 way of getting outside these silos, and of course, by its 7 definition, any physician-based disciplinary process is a 8 silo. 9 It's not going to have the ability to 10 reach outside beyond that physician's standards and 11 conduct to all the surrounding connections; then, I 12 think, even when it's working, it's not really working. 13 I mean it's working to a separate public 14 interest mandate, which is that all physicians are 15 accountable to the College, and there's a separate 16 rationale for that. 17 But if our question is how to render death 18 investigations accountable, I think then it becomes 19 merely a piece of a puzzle, and not a particularly large 20 piece, if we see this integrated model as our primary 21 paradigm. 22 MS. LINDA ROTHSTEIN: Dr. Ranson, you 23 have a comment? 24 DR. DAVID RANSON: Just mention one (1) 25 thing. I mean, there's a -- I suppose you could say
1211 there's a bit of a trend in professional regulatory 2 bodies to move towards them having more involvement with 3 the sort of -- the welfare of the provider. 4 And that's true for medical boards who 5 have an interest in the health and welfare of physicians 6 to ensure they're able to practice safely because of 7 their own benefit -- their own conditions. 8 And -- and also the disciplinary process, 9 particularly where it results or deals with the issues of 10 actual medical knowledge-base and facts in a particular 11 speciality area. 12 And there has been a bit of trend towards 13 the movement of saying, Well the regulatory body runs the 14 management of this, however, when we come to the 15 disciplinary process, we will hive off, at least, part of 16 it now to the formal administrative legal mechanisms. 17 And certainly that's happening in our 18 state where the disciplinary process, to some extent, is 19 now being moved, in the last stage, away from our medical 20 board towards the administrative appeals tribunal. 21 And now that's interesting, because I 22 suppose from one (1) public paradigm, you'd say, Well 23 from a public perception, this might be seen to be good. 24 You're taking away from doctors the -- the power to 25 discipline doctors -- intrinsically the board is made up
1221 of other people -- and you're now placing it into the 2 formal legal framework. 3 And we think that's going to be better. 4 It's more independent, and so on. 5 And yet I think historically once you 6 enter into that more formal legal framework outside the 7 profession, in fact, so many legal rules are applied that 8 often there -- there's less sanctioning of the -- of the 9 medical professional in the out -- outside legal 10 framework organizations and tribunals, and there is often 11 within the -- the medical disciplinary process run by -- 12 to a large extent, by the -- by the medical profession 13 itself. 14 So there's a bit of a discontinuity in my 15 view between the -- the public perception of internal 16 medical discipline processes, and -- and in fact, what 17 really happens. 18 COMMISSIONER STEPHEN GOUDGE: What is 19 happening on the ground. 20 DR. DAVID RANSON: Yeah. 21 COMMISSIONER STEPHEN GOUDGE: Yes. Let 22 me come back to -- can I ask, Professor Sossin -- ask you 23 a question, because while you make a persuasive case that 24 given the team approach that lies at the heart of quality 25 assurance that the four (4) of you have been speaking
1231 about all morning, it is true that one (1) window on 2 dissatisfaction arises out of what is seen in the 3 Criminal Justice System's part -- you know, the 4 participation in that system by an individual 5 pathologist. 6 We have heard a great deal of evidence 7 about how that perception arises. And that is a 8 perception about an individual. 9 DR. LORNE SOSSIN: Yeah, and I think -- 10 COMMISSIONER STEPHEN GOUDGE: And, so can 11 you really have a full-scale public confidence quality 12 assurance system without individual responsibility being 13 assigned, given that part of the operation -- the team -- 14 comes through the performance of an individual? 15 DR. LORNE SOSSIN: Yeah, I -- I think 16 it's an excellent point, and of course, the idea of a 17 team can also be a way to evade accountability, right; 18 that it's -- it's everyone's fault, so it's no-one's 19 fault. 20 So I think there's two (2) individual 21 dynamics at work here. 22 One (1) is the professionalism of each 23 person who participates in a death investigation, for 24 their individual work and conduct. 25 And then leadership of that team, so that
1241 if -- if the team breaks down, there's someone who says, 2 and -- and that's my role, whether it's a committee, or 3 an individual, or an office, to remediate or deal with 4 it. 5 The concern around the complaints, for 6 example, that isolate one (1) forensic pathologist is 7 that if everything we've said this morning were working, 8 then it should never get to the point where the conduct 9 and actions of a single rogue, lets say, forensic 10 pathologist, would be able to compromise that whole 11 system. 12 There's so many different junctures where 13 that kind of activity ought to have been caught, that 14 almost by definition you're calling into question the 15 viability, or the success, of all those other measures. 16 And yet -- 17 COMMISSIONER STEPHEN GOUDGE: There will 18 have been failure upstream, so to speak. But can you 19 have a sort of full-service quality assurance set of 20 machinery without an individual complaints mechanism? 21 DR. LORNE SOSSIN: No, I think the 22 complaints mechanism is -- is key. I think the problem 23 is simply the scope and jurisdiction of it. 24 And, so what I -- where my kind of logic 25 would lead is to a complaint mechanism over a death
1251 investigation. And that when someone comes and says, I 2 think the death investigation was either wrongfully 3 conducted or simply got it wrong, that shouldn't then be 4 broken down into now, We've got a separate complaint 5 about a physician, and a separate complaint about a 6 scientist. 7 And a -- it -- it ought to be taken in the 8 same spirt that it's made, which is, Let's look at the 9 death investigation as a whole, and if there were 10 concerns, where do they come from, and how to fix them, 11 rather than the siloing off. 12 That, I think, is a product of all these 13 different professional regimes, and different 14 institutional structures that we now have. 15 And it's enormously challenging to keep 16 meaningful accountability over things that start to 17 devolve into systemic, or team. 18 And that -- that, I think, is a real 19 challenge, if you don't break it down in -- in the way we 20 do, and yet it seems to me the only way to effectively 21 say that the -- the Death Investigation System is 22 accountable, as opposed to its constituent parts. 23 COMMISSIONER STEPHEN GOUDGE: Right. 24 Thanks. 25
1261 CONTINUED BY MS. LINDA ROTHSTEIN: 2 MS. LINDA ROTHSTEIN: I want to turn now, 3 if we can, gentlemen, to the questions that arise in 4 developing full accountability, quality management, and 5 oversight in designing the organization; what the 6 architecture of the organization ought to look like in 7 the best case scenario in order to achieve those aims. 8 And I want to start with you, Dr. Prime, 9 with a couple of, perhaps, easier issues; the issue of 10 geography; the challenges of this large Province. 11 I understand, from your opening comments, 12 that CFS has two (2) labs; one (1) here in Toronto which 13 is the majority of your workforce -- 14 DR. RAY PRIME: That's correct. 15 MS. LINDA ROTHSTEIN: How many employees 16 would you have there in Toronto? 17 DR. RAY PRIME: Roughly two hundred and 18 thirty five (235) to two hundred and forty (240). 19 MS. LINDA ROTHSTEIN: Okay. 20 DR. RAY PRIME: In that range. 21 MS. LINDA ROTHSTEIN: And you've got a 22 lab as well in the Sault? 23 DR. RAY PRIME: In Sault St. Marie, yes. 24 MS. LINDA ROTHSTEIN: How many employees 25 reside there?
1271 DR. RAY PRIME: There's about twenty (20) 2 to twenty-three (23). 3 MS. LINDA ROTHSTEIN: Can you assist the 4 Commissioner with what the challenges are of ensuring a 5 quality management system permeates the organization 6 particularly in the -- in the other location in the 7 Sault? 8 DR. RAY PRIME: Yes, I -- we -- we do 9 have an over-arching quality system. The -- the rules we 10 have in place and our requirements for meeting the 11 accreditation standards are the same for the two (2) 12 laboratories. 13 The laboratory in Sault Ste. Marie was 14 accredited; not at the same time as -- as us originally 15 because they were a new lab just opened in 1990 or 1991, 16 I believe, but as soon as we were able to, that lab 17 became accredited. And on subsequent accreditations, 18 it's been rolled into the accreditation process for the 19 whole organization. So it's -- it's basically a -- a one 20 (1) system, two (2) location accreditation. 21 Our quality manager has the -- the 22 authority over both labs and makes regular visits to that 23 lab. And we have a quality assurance individual assigned 24 to that lab as well, within the system. So we make every 25 effort we can to -- to keep the umbrella the same for
1281 both. 2 There's a few things that have to be taken 3 into account, geographically, that are different, but 4 they're very -- very small, I think. 5 Where the challenges come are when we have 6 a process of say 100 percent review, and you have a 7 smaller workforce in one (1) location, then you don't 8 have as many people available to do the technical 9 reviews, for example. And that leads to further delays 10 in turnaround time; backlogs because cases might have to 11 be sent back down to Toronto and -- and reviewed in that 12 case. 13 Or if -- again, with a small workforce, if 14 someone is out for whatever reason, then cases are going 15 to sit until those review processes are done. 16 So there -- there is that challenge. 17 There's the challenge of managing the group and trying to 18 keep the technical expertise the same in both locations. 19 We try as much as we can to offer the same 20 services and the same -- use the same methods with one 21 (1) lab to the other. But if one (1) lab gets a new 22 instrument and we haven't got the resources to get the 23 same instrument at another lab, then that might lead to 24 some differences in the way we do business. But that's 25 the -- the biggest challenge of keeping the technical
1291 expertise consistent. 2 And the way we try to do that is certainly 3 by keeping them involved either by teleconference or -- 4 or some other means. Occasionally we bring staff down to 5 Toronto for special technical meetings, for example, 6 within the disciplines and -- and keep -- keep the -- the 7 two (2) groups involved. 8 We have a requirement for -- for staff to 9 -- to come down to Toronto on a periodic basis. And 10 again, we just have to recognize that to be able to do 11 that we have to expend the resources, so we don't 12 hesitate to say, You know, it's going to cost three 13 thousand dollars ($3,000) to bring them down here. If we 14 need them, we endeavour to do that. 15 COMMISSIONER STEPHEN GOUDGE: What kind 16 of teleconferencing capacity do you have? 17 DR. RAY PRIME: Just a -- it's not -- 18 it's not video, it's just a regular audio capacity. 19 COMMISSIONER STEPHEN GOUDGE: Would it 20 help if you had a video? 21 DR. RAY PRIME: We had looked at that 22 many years ago when it was not as good a technology as 23 was available. We haven't found that it would be -- 24 COMMISSIONER STEPHEN GOUDGE: You do not 25 think --
1301 DR. RAY PRIME: -- necessarily helpful 2 right now. 3 We did at one (1) point buy an ELMO, for 4 example, which was -- 5 COMMISSIONER STEPHEN GOUDGE: What is 6 that? 7 DR. RAY PRIME: -- going to allow us to 8 look at documents so that the case file reviews could be 9 done by remote mechanisms. But we've -- we didn't 10 actually feel that it was going to be helpful at the 11 time. What we've done, instead, is to increase the size 12 of the lab. 13 When -- when we were considering this ten 14 (10) years ago, the lab had a staff of about thirteen 15 (13) or fourteen (14) people, so we have increased the 16 size of the lab. So that we do have duplication of 17 resources, and that minimizes the need for -- for 18 staffing review. 19 It does make it more difficult for 20 training still because a lot of our training is done 21 through mentorship programs and -- and that's much more 22 difficult to do remotely, so again we -- we take 23 advantage of the need, when we can, to bring people down 24 for training purposes -- 25 COMMISSIONER STEPHEN GOUDGE: Okay.
1311 MR. RAY PRIME: -- and we include them in 2 -- and the -- the lab in the north has an -- a separate 3 training budget essentially and they are involved in all 4 of the requests for external training in the same way as 5 staff in Toronto are. 6 COMMISSIONER STEPHEN GOUDGE: Right. 7 8 CONTINUED BY MS. LINDA ROTHSTEIN: 9 MS. LINDA ROTHSTEIN: Professor Cordner, 10 we understand that the vast majority of your forensic 11 pathologists and forensic scientists are housed in the 12 Victorian Institute in Melbourne. 13 Do you have any regional challenges, 14 geographical challenges, to contend with? And if so, how 15 do you deal with them? 16 DR. STEPHEN CORDNER: We do. Just -- 17 we're not also the forensic science laboratory. There is 18 a separate -- 19 MS. LINDA ROTHSTEIN: Right. 20 DR. STEPHEN CORDNER: -- forensic science 21 laboratory. But I think the emphasis this morning has 22 correctly been on systems, okay? And -- and I think an 23 analogy for what we do -- and not on -- you can't just 24 take the forensic pathologist and plunk him up somewhere 25 in the country and expect the same things to happen.
1321 So -- just as you can't take a cardiac 2 surgeon to a regional hospital and expect him or her to 3 be able to immediately do a coronary artery bypass 4 operation; that patient needs a work-up. There needs to 5 be an intensive care unit in the hospital. There need to 6 be specially trained nurses. There need to be cardiac 7 theatre technicians. There need to be expert 8 cardiologists there to help the patient post-operatively. 9 So there's a whole technical system, quite apart from a 10 cultural system, that can deal with matters of that 11 magnitude. 12 So it is with forensic pathology. So, in 13 fact, you saw the list of our forensic cases. By and 14 large, I think probably 95 percent of all those deaths 15 happen at our central -- 16 COMMISSIONER STEPHEN GOUDGE: Right. 17 DR. STEPHEN CORDNER: -- facility, and 18 that includes pediatric -- pediatric cases. 19 So we would say that there is a whole 20 system, including the quality system, that is if much -- 21 there's a standardized process, which I need to have 22 confidence in, in order to be able -- institution have 23 confidence in to be able to stand behind the results. 24 So myself, I don't think -- if I was 25 confronted with a suspicious pediatric death that was up
1331 in Mandurah, which is about as far away as you can get 2 from Melbourne and Victoria. It's a eight (8) hour 3 drive. If you can get a plane, it's an hour by small 4 plane. 5 I would have to say I'm not prepared to do 6 -- I might need to go there to visit the scene perhaps. 7 I'm not prepared to do the autopsy in Mandurah. I can't 8 bring -- the body has to come back to Melbourne, has to 9 come back to the Institute. So I'm not going to do that 10 autopsy at Mandurah Hospital, as much as I know family 11 are very upset -- and they are upset when the body has to 12 be removed, and we need to be sensitive to that in cases 13 where it's not necessary to move the body, because we 14 should work to the greatest extent possible to 15 accommodate those sensibilities in -- in the regions. 16 So that is -- that's a serious challenge, 17 much more so in Ontario than for us in Victoria. It's 18 gigantic here, so that's a really big issue for you, much 19 bigger than for us, about how you're going to duplicate a 20 satisfactory system, in however many areas, that can 21 produce reliable results; that if there is one (1) 22 service, that that one (1) service can stand behind. 23 COMMISSIONER STEPHEN GOUDGE: How far can 24 technology go assisting that challenge, Dr. Cordner, 25 recognizing your optimal? I mean, all of you have said -
1341 - Dr. Prime wasn't here, but the panels we've had in the 2 last couple of days have all talked about global 3 consultation as now being a reality in today's world of 4 forensic pathology. Information can go around the world 5 for a second look. 6 How much more can technology do? 7 I mean, one of the things that's been in 8 the air in our discussions is some kind of video 9 conferencing. Is that something you've had any 10 experience with? 11 DR. STEPHEN CORDNER: David has a much 12 better feel for -- 13 DR. DAVID RANSON: We've certainly used 14 video conferencing for case discussions, particularly in 15 clinical forensic medicine. The Institute in Victoria 16 also runs the clinical -- 17 COMMISSIONER STEPHEN GOUDGE: Right. 18 DR. DAVID RANSON: -- forensic medical 19 servicing in Canberra in the capital territory. And we 20 have at our meetings that we talked about -- the Thursday 21 morning meetings -- those people are online by video 22 link, and they can see the presentations, and they can 23 make presentations, and we can enter in joint discussions 24 and look at the pictures and comment. 25 I'm not sure the technology is quite as
1351 nice as being in the same place, but it's very good, and 2 it certainly is -- is valuable. And we certainly have 3 used both video and still images digitally from remote 4 areas showing us scenes from a remote when we have 5 carried out an autopsy in Melbourne, and some cases where 6 remains have been found remotely. 7 We have been able to look at digital 8 pictures and say, No, that actually isn't human -- 9 COMMISSIONER STEPHEN GOUDGE: Right. 10 DR. DAVID RANSON: -- that's, you know, 11 some animal. 12 COMMISSIONER STEPHEN GOUDGE: Right. 13 DR. DAVID RANSON: And so there -- there 14 are a number of ways in which that is certainly 15 effective. I think part of the point though that 16 Professor Cordner is making, when you -- when you go to a 17 remote area and you're, you know, able to bring with you 18 your own skills and your knowledge-base of your forensic 19 system, the lack of infrastructure in most of our 20 Regional hospitals in terms of just the environment of 21 practice is a very significant impediment -- 22 COMMISSIONER STEPHEN GOUDGE: Right. 23 DR. DAVID RANSON: -- of quality. 24 COMMISSIONER STEPHEN GOUDGE: Right. In 25 terms of the video conferencing of your rounds, I think
1361 of the rounds you describe as being conducted around a 2 seminar table much like a discussion in a seminar as 3 opposed to something that would go in the autopsy suite. 4 Am I right about that? 5 DR. DAVID RANSON: Yes. 6 COMMISSIONER STEPHEN GOUDGE: Okay. 7 Could you use teleconferencing -- a video conferencing -- 8 to communicate the morning meeting in the autopsy suite 9 if you had a counterpart to the remote clinical forensic 10 service? 11 DR. DAVID RANSON: I suppose you could in 12 a -- in a sense of the general round. When it came to 13 the -- the nitty gritty of looking at particular things, 14 one (1) the problems with a single eye point -- 15 COMMISSIONER STEPHEN GOUDGE: Right. 16 DR. DAVID RANSON: -- if it's not 17 particularly great when you're dealing with a three 18 dimensional individual -- 19 COMMISSIONER STEPHEN GOUDGE: Right. 20 DR. DAVID RANSON: -- and, you know, the 21 best ways of really looking at that have been some of the 22 studies that have carried out in Switzerland where they 23 have been looking at combined CT scanning of the whole 24 body, MRI scanning, and then surface laser scanning of 25 the body --
1371 COMMISSIONER STEPHEN GOUDGE: Right. 2 DR. DAVID RANSON: -- in creating this 3 incredible sort of the 3D model that can be, you know, 4 literally projected, if you like, in any -- in any 5 educational space for discussion. 6 It's incredibly expensive. The technology 7 is nowhere near the level we could deal -- we could deal 8 with that as a -- 9 COMMISSIONER STEPHEN GOUDGE: Right. 10 DR. DAVID RANSON: -- at a practical 11 level, yet, and I think we're many -- probably decades 12 away of -- from getting that in a -- in a meaningful 13 sense where people of remote location have a real handle 14 on what's going on. 15 That said, at the location where you are 16 recording or where the actual subject -- the deceased is 17 present -- the people at that site can certainly video, 18 take digital photographs, enter a verbal discussion 19 online. 20 All of those things can take place, but 21 you are still subject to their selection of the data -- 22 COMMISSIONER STEPHEN GOUDGE: Right. 23 DR. DAVID RANSON: -- at every point. 24 You don't have quite that same level of -- that you have 25 when you're physically there of -- and this happens all
1381 the time in the mortuary where you're looking at a body, 2 somebody points out something to you, and you sort of 3 say, Oh, just about, let's -- 4 COMMISSIONER STEPHEN GOUDGE: Yes, a 5 clearly physical presence is far preferable. I was just 6 trying to get at what the alternatives were in a province 7 like Ontario where there are certain realities. 8 DR. DAVID RANSON: I think you could do 9 some of those things -- 10 COMMISSIONER STEPHEN GOUDGE: Yes. 11 DR. DAVID RANSON: -- but we -- but some 12 of the technology exists to go a lot further in the 13 future, but I'm not sure that it's necessarily -- 14 COMMISSIONER STEPHEN GOUDGE: Yes. 15 DR. DAVID RANSON: -- fully suffices in 16 all cases. 17 COMMISSIONER STEPHEN GOUDGE: Yes. 18 DR. DAVID RANSON: But I suspect -- 19 COMMISSIONER STEPHEN GOUDGE: Two (2) 20 questions about the video conferencing, Dr. Ranson. 21 First, there's nothing antithetical to the working of the 22 autopsy suite to put the video conferencing in there, 23 that is the antiseptic quality you have to maintain is 24 not inconsistent with having a video conferencing -- 25 DR. DAVID RANSON: No, not at all.
1391 COMMISSIONER STEPHEN GOUDGE: -- 2 capacity? Okay, the second thing is, for the video 3 conferencing you do use for the rounds with the clinical 4 forensic unit offsite, how expensive is it? 5 DR. DAVID RANSON: Again, I think you 6 would probably be talking about tens of thousands of 7 dollars to set it up as annual fees for the lines, 8 there's the equipment for putting a camera in and the -- 9 and the various computer facilities you need to be able 10 to integrate, you know, documents, speech -- 11 COMMISSIONER STEPHEN GOUDGE: Right. 12 DR. DAVID RANSON: -- video. 13 COMMISSIONER STEPHEN GOUDGE: Right. 14 DR. DAVID RANSON: I think our set-up of 15 our -- of our lecture theatre was somewhere around forty 16 (40) or fifty thousand dollars ($50,000) to put all that 17 in place; that's my remember -- or memory. 18 I may not be accurate on that, but I can 19 certainly find out that information. 20 COMMISSIONER STEPHEN GOUDGE: But it 21 sounds like five (5) figures, not six (6) figures. 22 DR. DAVID RANSON: Oh, yes, yes. 23 COMMISSIONER STEPHEN GOUDGE: Okay. 24 Thanks, Ms. Rothstein. 25
1401 CONTINUED BY MS. LINDA ROTHSTEIN: 2 MS. LINDA ROTHSTEIN: Staying just with 3 sort of organizational design for the moment, and -- and 4 all of us understand, Dr. Cordner, that you even -- you 5 haven't even been to the Hospital for Sick Children, and 6 the Ontario Forensic Pathology Unit. 7 But at the level of sys -- systemic 8 design, what are your concerns about leaving the 9 pediatric forensic service in that location which is 10 physically separate from the Toronto morgue, and what, if 11 any, enhancements can you do to make that a more quality 12 system in the future? 13 DR. STEPHEN CORDNER: And there's an 14 assumption in that question that I'm responsible -- 15 MS. LINDA ROTHSTEIN: You're responsible. 16 DR. STEPHEN CORDNER: -- for -- 17 MS. LINDA ROTHSTEIN: Hypothetically 18 speaking. 19 DR. STEPHEN CORDNER: -- every aspect of 20 the medicolegal death investigation of that death? 21 MS. LINDA ROTHSTEIN: Mm-hm. 22 DR. STEPHEN CORDNER: Well look, short of 23 being able to recreate the system that I would have in 24 place in my institution at the children's hospital, and 25 short of that system in the children's hospital that is
1411 recreated there, being my system and subject to me, for 2 all of the reasons we've talked about, and particularly, 3 if it wasn't a very long distance away, I couldn't myself 4 see why I would go to the -- why you would recreate it at 5 the hospital when you've got it at the -- at your central 6 facility. 7 Having said that, I wouldn't want to 8 minimize the importance that I believe, and I can 9 understand a hospital's attachment to -- hospitals don't 10 do enough autopsies. 11 So they have a -- a deep attachment to 12 those autopsies that do happen within them, because their 13 staff want to benefit from the educational, and 14 continuing learning opportunities from the autopsies that 15 are -- that are conducted there. 16 So I can understand a hospital wanting to 17 hold onto it's autopsies. I suppose the bottomline for 18 me would be it is easier to meet the hospital's needs at 19 the central forensic facility than it is likely to be for 20 the hospital to meet the forensic facility's needs at the 21 hospital. 22 Now there may be, for example, some 23 variation on that. For example, the forensic facility 24 may not have a CT scan, and the hospital may be saying, 25 Ah well, if you leave the child at the hospital, we'll
1421 make sure it gets a CT scan. 2 So there may be opportunities for 3 collaboration, but I would be emphasizing in -- if this 4 was happening in Melbourne, and it did happen in 5 Melbourne, and very soon after we got going in 1988. 6 The deaths from the -- instead of being 7 dealt with at the children's hospital, were dealt with at 8 our facility. 9 And I think actually the -- the hospital's 10 been very happy with getting the information back that it 11 needs, and of course, it was -- it's pediatric 12 pathologists that work with us in the intervening twenty 13 (20) years as a wonderful mixture of forensic and 14 pediatric pathology being brought to bear in a different 15 balance in different cases. 16 And we've been very lucky. And, so the 17 cases we've been -- more medical issue. The hospital- 18 based pediatric pathologists who we employed for point 19 four (.4) of the week takes the lead. 20 If, during the course of the autopsy, it 21 becomes apparent that there's problems, it shifts over 22 for their forensic pathologist to take the lead, but only 23 the lead. The pediatric pathologist is always there, and 24 vice versa. 25 So -- so just to -- the bottomline is, I
1431 think the medical needs -- the hospital needs -- can be 2 more easily met in these more complex days from the 3 forensic facility than vice versa. 4 COMMISSIONER STEPHEN GOUDGE: It is a 5 complex question, and one (1) that we are obviously going 6 to have grapple with, Dr. Cordner. 7 Take one (1) of the cases -- or one (1) of 8 the paradigms that I am sure will be put to us, and that 9 is where you have a highly sophisticated children's 10 hospital interested in SIDs research, okay. 11 How does that get effectively done in the 12 forensic environment at the Victorian Institute? 13 DR. STEPHEN CORDNER: How do you meet the 14 hospitals -- 15 COMMISSIONER STEPHEN GOUDGE: How do you 16 meet the hospital's need to -- these are cases that are - 17 - I mean, we have excluded the clearly criminally 18 suspicious cases in the beginning, and you have got a 19 case that is a SIDS case. 20 We heard evidence from a world-class 21 expert at this hospital about SIDS research, you know. 22 DR. STEPHEN CORDNER: Mm-hm. 23 COMMISSIONER STEPHEN GOUDGE: Is that as 24 effectively done at a forensic institute, as it is at a 25 pediatric hospital?
1441 DR. STEPHEN CORDNER: Well I mean, we've 2 done SIDS research. I mean, I -- and -- but I wouldn't 3 want to in any way -- and there are every opportunity at 4 our facility for the engagement of any number of people 5 interested in all types of research in particular cases. 6 Now, I don't know the actual number but we 7 would probably have well over twenty (20) research 8 projects being run by different medical groups. Medical 9 and scientific groups -- 10 COMMISSIONER STEPHEN GOUDGE: From other 11 institutions? 12 DR. STEPHEN CORDNER: From other 13 institutions that we are actively assisting -- 14 COMMISSIONER STEPHEN GOUDGE: Right. 15 DR. STEPHEN CORDNER: -- either with 16 visitors in the mortuary or we have a system for 17 approaching families for permission to use tissues -- 18 COMMISSIONER STEPHEN GOUDGE: Right. 19 DR. STEPHEN CORDNER: -- which we have 20 access to during autopsies for medical and scientific 21 research purposes. So in a sense, I would say that 22 across the board it might even be easier because the 23 forensic system can develop the system across all of the 24 cases to have an approach for assisting medical research. 25 So -- but, you know, I don't want to sound
1451 -- I think it's our obligation to be as cooperative and 2 as assisting as possible. And we do hold ourselves out 3 as -- we will -- we will alter the time of the autopsy; 4 we'll do it at any time to suit the attending medical 5 practitioners. We've got staff whose job is to make sure 6 that researchers needs are met. We have an ethics 7 committee where they can make application for obtaining 8 tissues. So we've got actually a system to make this -- 9 those sort of needs. 10 DR. DAVID RANSON: I think that we've 11 been, I think, successful in that area. Even in the area 12 of SIDS we've helped establish and taken part in 13 collection of, you know, tissues for SIDS tissue banking 14 of material; a whole variety of these activities. 15 And I'll endorse what Professor Cordner 16 said that our mortuary environment is one (1) which we 17 actively support researchers from universities and the 18 hospitals -- 19 COMMISSIONER STEPHEN GOUDGE: Right. 20 DR. DAVID RANSON: -- to come and work in 21 that environment, and we do see that as being a very, 22 very important part of the autopsy. It has its 23 medicolegal outputs and consequences, but this is the 24 last opportunity in many cases to gain learning from 25 someone's life and -- and now their death, and if a
1461 forensic services is not cognizant of that importance 2 then I think it's failing. 3 4 CONTINUED BY MS. LINDA ROTHSTEIN: 5 MS. LINDA ROTHSTEIN: Commissioner, we 6 have two (2) options. I can carry on for about twenty 7 (20) minutes; I have one (1) last topic which is the 8 issue of how you design a governance structure in an 9 ideal situation, and then we could take questions until 10 1:00; or we can break now and reconvene at our usual 11 time. 12 COMMISSIONER STEPHEN GOUDGE: I am going 13 to do this democratically. Shall we go on? 14 Everybody seems content to go on? Let's 15 all -- 16 MS. LINDA ROTHSTEIN: I think we can do 17 this by 1:00. 18 COMMISSIONER STEPHEN GOUDGE: Let's go 19 on. 20 MS. LINDA ROTHSTEIN: All right. 21 COMMISSIONER STEPHEN GOUDGE: It may 22 shorten the questions. 23 24 CONTINUED BY MS. LINDA ROTHSTEIN: 25 MS. LINDA ROTHSTEIN: So -- so gentlemen,
1471 still on the issue of organizational design, I want to 2 start with you, Dr. Prime, to tell us a little bit about 3 your experience with the -- the Advisory Committee, the 4 Advisory Board to the Centre of Forensic Sciences, which 5 was again, part of Justice Kaufman's series of 6 recommendations; get you to give us a sense of who 7 populates that committee; how it works; the extent to 8 which it does get actually down into policy-making; I 9 know that wasn't the original conception, but whether it 10 does. 11 But before we get to all of that. One (1) 12 of the interesting things I noted when I went back to 13 Kaufman's recommendations is that he recommended that 14 that Advisory Board be created by statute. 15 Did that ever happen? 16 DR. RAY PRIME: No, the Advisory Board -- 17 we call it an "Advisory Committee" and it wasn't created 18 under statute, and the Centre of Forensic Sciences does 19 not have any statutes otherwise in govern it. 20 I should just put in a plug I think right 21 here, that we were very proud to come out of the Kaufman 22 experiences and be able to implement about thirty-one 23 (31) out of the thirty-three (33) recommendations that -- 24 that touched on the Centre of Forensic Sciences. 25 And -- and one (1) of the things that we
1481 were or are endeavouring to do was to make sure that 2 where we couldn't meet the wording of the -- the 3 recommendation, we certainly were able to address the 4 spirit of the recommendation. 5 So I think the -- the thinking behind this 6 particular committee was if we had in any way gone to the 7 Government to ask them to set up a body which would have 8 -- be able to impose conditions on the Government that 9 they may not be willing to accept, that might jeopardize 10 where we might have gone with the rest of the 11 recommendations. 12 So part of the strategy that we took was 13 to be as reasonable as we could in going forward with the 14 -- the recommendations. And it was agreed by everyone, 15 and -- and Commissioner Kaufman has also been 16 complimentary in the fact that we have done as much as we 17 could in terms of -- of accepting these recommendations. 18 So our means of dealing with this was to 19 create a -- a committee that has some very powerful 20 critics on the committee. We had two (2) members of the 21 Defence Bar who were part of the team in the Kaufman 22 Commission from the defence side, and they represent the 23 Criminal Lawyer's Association. 24 We have a wide range of other members. 25 Some of them are actually here in the room today. We
1491 have some of our clients on the Committee. We have 2 police officers, we have Crown attorneys, and we have one 3 (1) retired judge. 4 MS. LINDA ROTHSTEIN: Who's that? 5 DR. RAY PRIME: Justice Ferguson. 6 MS. LINDA ROTHSTEIN: Mm-hm. 7 DR. RAY PRIME: And we have some members 8 of the forensic science community at large, and even -- 9 even one (1) from another province. So we -- we have 10 made it a fairly large committee, and a committee that 11 has a wide range of understanding of forensic science and 12 the requirements of -- of the community. 13 The Committee has a very general mandate, 14 and that is to provide advice to the Centre of Forensic 15 Sciences, and we do that by reporting to them on the 16 activities that we are engaged in during the year. We 17 have some specific things such as the reports on the 18 quality management system, and reports from any 19 complaints and problem areas that are reported to the 20 committee. 21 And we introduce policies. If we have any 22 policy that's new or significantly revised, we will take 23 that to the committee as well. Certainly right after 24 Kaufman when a lot of the work was being done to create 25 policies like this binder that I have in front of me
1501 here, that did involve a lot of work and it did involve 2 us sending out lots of draft material to the Committee. 3 We met on a much more frequent basis. I 4 think we were rem -- meeting regularly, four (4) times a 5 year for the first few years of the existence of the 6 Committee. Since then we've managed to be able to do it 7 with -- with two (2) meetings a year and -- and we have 8 the option of -- of meeting more frequently if necessary. 9 MS. LINDA ROTHSTEIN: So, Dr. Prime, 10 would you say that in fact the committee has gotten 11 involved in policy making, at least to some degree? 12 DR. RAY PRIME: They have, yes. 13 MS. LINDA ROTHSTEIN: Okay. And what are 14 your thoughts about that? 15 DR. RAY PRIME: Well, I think it's very - 16 - very constructive. There are occasions where they give 17 us suggestions on where we do need to develop policy. 18 And -- and they -- they don't create it, but we have -- 19 we have the staff within the Centre that -- that generate 20 the policies and we circulate that to the committee 21 members and we have discussion at the -- the meetings, 22 and we incorporate any feedback that we get from them. 23 MS. LINDA ROTHSTEIN: Professor Sossin, 24 over to you. You've had a chance to look at Tab 17 which 25 is the Office of the Chief Coroner's proposal for some
1511 reorganization. And I believe you also had the 2 opportunity to review the transcript of our roundtable -- 3 DR. LORNE SOSSIN: Yes. 4 MS. LINDA ROTHSTEIN: -- yesterday. And 5 I just want to throw it open to -- to tell us what your - 6 - what issues you think that model might rise -- might 7 create from a system design point of view, with the 8 overall goal being accountability, as you've described 9 it. 10 DR. LORNE SOSSIN: Well, I think there's 11 a number of features that are quite constructive in it 12 and consistent with what we see as a successful model, at 13 least from my point of view, in -- in Victoria and what 14 came out of my earlier research for the Commission as 15 well, and that is moving to a board of some kind. 16 It can be called a council. It can be 17 called a commission itself, or a -- and agency. I would 18 probably suggest that the need for independence in death 19 investigations makes it probably more consistent with 20 being a freestanding agency; a body that lies outside of 21 a -- a direct reporting structure to government, although 22 all of our independent bodies ultimately have a Minister 23 responsible, and are subject to all sorts of public 24 accountability measures. So independence is always a -- 25 a relative term in the business of institutional design
1521 in the public sector. 2 I -- I think that the nature of the 3 advisory committee you've been hearing about is terrific 4 and important, but not necessarily in the nature of 5 governance. 6 In other words, it's a way of including 7 stakeholders; it's a way of having a sounding board for 8 policies and procedures; it's getting advice on 9 priorities; and I think it -- from what I've heard, it's 10 been used to very good effect. But I think we should 11 distinguish those kinds of advisory committees which may 12 also be advantageous in an office of a -- a coroner, and 13 there is already different advisory structures, formal 14 and informal, that exist from governance. 15 Governance, in other words, in the sense 16 of -- and this was discussed in the session yesterday, 17 who is answerable, or who is accountable for the system. 18 And we now have a statute that puts the Office of the 19 Chief Coroner in that role, and I think there is much to 20 suggest that that answerability probably resides more 21 appropriately in a board or council, on which you would 22 have a Chief Coroner, and probably a Chief Forensic 23 Pathologist, as ex officio members. You may have the 24 Director of the Forensic Sciences Institution. You may 25 have others that -- that seem part of the same system,
1531 and I -- I think there are lots of different ways to 2 approach the modalities. You could have a justice sector 3 representation, other medical professionals, or lay 4 people; members of the public. 5 The idea of that structure, though, would 6 be to both create a buffer between the operational side 7 of death investigations, and government, which I -- I see 8 as critical to any notion of independence in the 9 institutional sense; and also to allow for a way out of 10 the dilemma, or dilemmas that we've seen. One (1) 11 dilemma is what if a Chief Forensic Pathologist and a 12 Chief Coroner differ on important matters? How does this 13 get resolved? 14 I think having a Board or council provides 15 a coherent way, both to bring those concerns forward, 16 have them resolved in a way that is accountable. And 17 then also if you have these other facets -- we've talked 18 about support for a complaints process, quality 19 management, an accountability office that is obtaining, 20 gathering, distilling, and analysing data. 21 In many of these cases, you will want to 22 have a body outside simply the Chief Coroner able to 23 receive, and respond to that kind of material, some of 24 which may in fact reflect on that Chief Coroner in -- in 25 the current setup, where that office is responsible for
1541 so much of what we've listed as accountability, from the 2 guidelines ultimately all the way through to oversight. 3 So much of that now resides in the office 4 that it gives the appearance that -- that there -- there 5 is no ability for that office itself to be subject to 6 independent, and outside scrutiny. 7 The Board model, and many of us are 8 familiar with this from corporate governance outside the 9 public section, allows for so many of these other 10 opportunities; for other bodies to have reporting to the 11 Board, for the Board to have reporting to government and 12 to the public, and I think it just opens up a lot of 13 salutary avenues with only one (1) possible downside 14 risk, and that is do we loose a sense of individual 15 answerability in -- in the sense of a hierarchy that we 16 now have. 17 And I think there are ways to ensure that 18 we don't loose that; that the Chief Forensic Pathologist 19 remains the voice for all of forensic pathology in 20 Ontario. And this idea of an office that comes out of 21 that model I think is -- is very positive, and that the 22 Chief Coroner in a coronial system remains where the buck 23 stops, in terms of a whole range of operational matters. 24 And that is also as it ought to be in this system. 25 So I think generally there's much I would
1551 suggest is exactly the right approach in that model, but 2 when you look at, for example, where the Chief Forensic 3 Pathologist is in that reporting structure, it doesn't 4 seem to fit with much of the other dimensions we've been 5 hearing, which is the need to have parallel structures. 6 And of course parallel structures raises 7 the question of how do you provide an overarching 8 framework, or resolve areas where the two (2) spheres 9 just don't see an issue in the same way; that's where the 10 counsel or Board model I think would come in. 11 COMMISSIONER STEPHEN GOUDGE: And I just 12 ask you a couple of things related to the counsel, or 13 board, or commission dimension of it, Professor Sossin? 14 DR. LORNE SOSSIN: Mm-hm. 15 COMMISSIONER STEPHEN GOUDGE: One (1) of 16 the things that was discussed yesterday -- well, let me 17 start with the point you made; that is it does provide an 18 independence, a demonstrated independence from 19 government? 20 Give me an analogy in an existing 21 government agency that has a Board that doesn't report to 22 a Minister, but through a Minister, if there's any 23 distinction between those two (2), and I've always 24 assumed there was, although I was never sure what it was. 25 DR. LORNE SOSSIN: Well, there -- there
1561 is. For example, all of the parliamentary offices that 2 we have -- this would include auditor general, the body 3 that runs the elections process; the Ombudsman; there's a 4 number of bodies that are parliamentary offices -- they 5 still need a minister for purposes of budgeting and for 6 purposes of having a structure of ministerial 7 responsibility, but there is no interference in any of 8 the day-to-day operations or any of the policies or 9 procedures from that ministerial level. 10 I think the concern in death 11 investigations -- there's two (2) concerns, one (1) of 12 which you heard yesterday which is which ministry? 13 There's some logic that would suggest it ought not to be 14 the same ministry as governing correctional services, for 15 example, given that deaths in custody is one (1) of the 16 key and most sensitive areas of -- of operation. Or not 17 be the same ministry as running the police. 18 The Attorney General has been raised. Is 19 there a concern with it being the same ministry that runs 20 Crown prosecutors? It might be a concern, but we've got 21 such a bedrock of prosecutorial independence in our 22 system, probably not the same concern. Health and long 23 term care has come up, as well. 24 So there's the which ministry, and then 25 there is, what if that ministry going --
1571 COMMISSIONER STEPHEN GOUDGE: What I was 2 focussing on was the relationship between the ministry 3 and the board/commission. 4 DR. LORNE SOSSIN: Yeah. And I think the 5 -- the role of the ministry in that context -- and here 6 the analogy I think is the Attorney General is Chief Law 7 Officer of the Province to act as a champion of, for 8 example, Court administration within the cabinet table. 9 No one's going to say putting more 10 resources into Courts is a door knocking political winner 11 of an issue, but the administration of justice simply has 12 to be a priority up against roads, hospitals, and 13 schools. 14 The Minister is there not to say this is 15 my sphere and I run it the way I want; the Minister is 16 there to say this is an independent sphere, I am the 17 guardian, or I exercise the stewardship functions over it 18 within government to make sure it has -- 19 COMMISSIONER STEPHEN GOUDGE: With no 20 policy dimension? 21 DR. LORNE SOSSIN: I think the only 22 policy dimension would be consistency with broader 23 governmental accountability measures, so that if there 24 procurement policies, if there are policies around human 25 resources --
1581 COMMISSIONER STEPHEN GOUDGE: So if the 2 Attorney General wants to unify the Courts; can't do it? 3 DR. LORNE SOSSIN: I think the Attorney 4 Ge -- well, we've had an Attorney General who had -- 5 COMMISSIONER STEPHEN GOUDGE: That's why 6 I ask. 7 DR. LORNE SOSSIN: Force of personality 8 can get a lot done, but -- but I think ultimately what it 9 means is that this can be a push but not a pull. In 10 other words, it can be a catalyst for reform in the 11 public interest, but ultimately it has to be around a 12 conceptual buy-in by the parties -- 13 COMMISSIONER STEPHEN GOUDGE: Okay. 14 DR. LORNE SOSSIN: -- so no one I think 15 could dictate to a Chief Forensic Pathologist and a Chief 16 Coroner that you all should be in Hamilton or -- or 17 somewhere else, but I think it can be, we need a review 18 of where you should be to capture the optimal 19 effectiveness of death investigations and we're going to 20 sponsor that review, get recommendations, bring you all 21 around a table and figure out how to do it; that I think 22 is an appropriate role and I think the devil will always 23 be in the details. 24 COMMISSIONER STEPHEN GOUDGE: Okay. The 25 second question about the board, as we had a discussion,
1591 a very interesting discussion, yesterday about various 2 alternatives, ways of populating that board. 3 Take two (2) extremes: complete 4 independence from the death investigation system, 5 stakeholder involvement in the death investigation 6 system. The hybrid of those two (2) in your view? 7 DR. LORNE SOSSIN: Yeah. 8 COMMISSIONER STEPHEN GOUDGE: One or the 9 other? How do you see those being balanced? 10 DR. LORNE SOSSIN: You know it's a 11 critical question and my -- my sense is that you want the 12 death investigation community to have a vote but not a 13 veto in that Board; in other words, to be able to feed 14 both to and from the Board the realities, and concerns, 15 and issues from the different death investigation 16 communities -- and here I'm principally thinking the 17 coroners and pathologists, but it could be others -- and 18 an ability to ensure that the decision of a council, or 19 board, or commission is not simply a product of the force 20 of will of any particular individual involved, and it 21 does have a broader-based nature. 22 COMMISSIONER STEPHEN GOUDGE: Thanks. 23 Thanks, Ms. Rothstein. 24 25 CONTINUED BY MS. LINDA ROTHSTEIN:
1601 MS. LINDA ROTHSTEIN: In the -- in time 2 remaining, I was going to ask each of our other 3 panellists, Dr. Prime, Dr. Cordner, Dr. Ranson for two 4 (2) minutes if you want to respond. I know it's not a 5 lot of time, but any issues, any insights that you want 6 to offer would be great. 7 DR. RAY PRIME: Just on -- on Professor 8 Sossin's last point where he talked about the Board of 9 Governance being similar to a Board of Directors, I 10 think, for a corporation. 11 I don't know much about big business, but 12 it seems to me that that governing board would have some 13 kind of a common interest in -- in -- and a common bond. 14 And I think one (1) of the things that I see with my 15 committee is that there are differences -- they're very 16 polar differences -- between what the people are bringing 17 to the table. 18 And that we have advocates that are used 19 to meeting each other in the courtroom; we have 20 investigators. I think you'd be looking at a very 21 different composition for the board if you were going to 22 choose that model, and you wouldn't be getting the -- the 23 feedback from your stakeholder group. 24 MS. LINDA ROTHSTEIN: Dr. Cordner...? 25 COMMISSIONER STEPHEN GOUDGE: So you --
1611 you would say if you were to have a board, Dr. Prime, 2 that you might not make it up as fully of the end-users 3 as your Advisory Committee is made up? 4 DR. RAY PRIME: I think you'd have to 5 think about whether you would want those end-users. And 6 also, I think you'd want to look at the balance because 7 in -- in fairness, we do have -- we have two (2) people 8 from the defence community who you might say would be on 9 one (1) side; they would certainly tell you that the rest 10 of the members on the -- on the committee are on the 11 other side. 12 So you -- 13 COMMISSIONER STEPHEN GOUDGE: Right. 14 DR. RAY PRIME: So you'd really want to 15 look carefully about how that balanced so there's no -- 16 COMMISSIONER STEPHEN GOUDGE: Now, you 17 have a direct report to ADM; is that right? 18 DR. RAY PRIME: That's correct, yes. 19 COMMISSIONER STEPHEN GOUDGE: Does that 20 present independence issues for you? 21 DR. RAY PRIME: Not generally. Certainly 22 we report through the ADM to the Deputy Minister, and we 23 don't report to the police side of the Ministry. And 24 that's a -- that's a separate reporting stream. 25 COMMISSIONER STEPHEN GOUDGE: Do you have
1621 your own ADM? 2 DR. RAY PRIME: We have -- we have an ADM 3 for -- they keep changing the name, but it's Public 4 Safety right now, so. 5 COMMISSIONER STEPHEN GOUDGE: But that 6 excludes the policing function? 7 DR. RAY PRIME: It's separate from the 8 policing function. 9 COMMISSIONER STEPHEN GOUDGE: Right. 10 DR. RAY PRIME: And my understanding of 11 the history of the -- the Ministry is that it was set up 12 specifically to remove the Centre of Forensic Sciences 13 and the investigators from the -- the police 14 investigator, I should say, from the prosecutorial 15 stream. 16 So it's an interesting irony that -- that 17 we're starting to consider now whether it should be going 18 back to something that it might have been thirty (30) 19 years ago. 20 COMMISSIONER STEPHEN GOUDGE: Right. 21 22 CONTINUED BY MS. LINDA ROTHSTEIN: 23 MS. LINDA ROTHSTEIN: Dr. Cordner...? 24 DR. STEPHEN CORDNER: Commissioner, for 25 us in Victoria, I think any strength that the Institute
1631 has been able to bring to the discipline of forensic 2 pathology ties directly to the fact that we're a 3 statutory authority, corporate body, can be sued, we can 4 sue, we can own property; and we have a -- a Board. 5 And that Board looks after the statutory 6 authority in its corporate business sense and holds me 7 accountable for the day-to-day operations of the content 8 of delivering a forensic -- forensic pathology service. 9 The Board has an executive and finance 10 sub-committee; an ethics sub-committee; a sub-committee 11 that looks after a couple of specific things, a tissue 12 bank and the National Coroner's Information System. 13 The coroner who's on the Board chairs the 14 National Coroner's Information System. It's just a 15 beautiful arrangement. 16 The coroner can complain to the Board 17 about me if he wants to. So that's another way the 18 coroner can direct me in relation to specific 19 investigations and can complain about me to the Board, 20 more generally. 21 So I think -- and I had that view within 22 days of starting my job in 1987, and I remain of that 23 view today. I think we would be seriously weakened in 24 terms of being able to provide an independent forensic 25 pathology service to a whole range of stakeholders but
1641 mostly importantly the Justice System, if we had 2 arrangements that were less independent; sort of part of 3 a government department or more diffuse rather than very 4 well-circumscribed. 5 COMMISSIONER STEPHEN GOUDGE: I was just 6 looking in the material. I know I have seen it a number 7 of times, for the make-up of your Board. And my 8 recollection is that there are a number of Ministry 9 representatives. 10 DR. STEPHEN CORDNER: Yes. 11 COMMISSIONER STEPHEN GOUDGE: There's the 12 Judicial representative. Just remind us of who the other 13 constituencies are that are represented on your Board. 14 DR. STEPHEN CORDNER: The Attorney 15 General has two (2) representatives -- 16 COMMISSIONER STEPHEN GOUDGE: Yes. 17 DR. STEPHEN CORDNER: -- One (1) of whom 18 must be a pathologist. 19 COMMISSIONER STEPHEN GOUDGE: Right. 20 DR. STEPHEN CORDNER: The Attorney 21 General also appoints the chairperson. 22 COMMISSIONER STEPHEN GOUDGE: Right. 23 DR. STEPHEN CORDNER: The two (2) medical 24 schools in Victoria, the Dean of each of the medical 25 schools, or the council of the Universities -- but it's
1651 always been the dean of the two medical schools; police, 2 the Ministry of Police; Ministry of Health; Community 3 Services; Women's Affairs; the Chief Commissioner, 4 independent of the Ministry, also has a representative. 5 The Chief Justice has a representative and then the -- 6 the state coroner and the director ex officio. 7 COMMISSIONER STEPHEN GOUDGE: Right. 8 Right. You don't have anything like the makeup that Dr. 9 Prime described, of the advisory committee that would 10 have to deal with -- 11 DR. STEPHEN CORDNER: Well, we have 12 various stakeholder committees for different services. 13 So we have a forensic pathology stakeholder committee 14 and -- 15 COMMISSIONER STEPHEN GOUDGE: I see. But 16 they're advisory committees? 17 DR. STEPHEN CORDNER: Yes. Yeah. 18 COMMISSIONER STEPHEN GOUDGE: Okay, 19 thanks. 20 21 CONTINUED BY MS. LINDA ROTHSTEIN: 22 MS. LINDA ROTHSTEIN: Dr. Ranson, any 23 wrap-up? 24 DR. DAVID RANSON: I would like to -- on 25 to two (2) main areas, really, just briefly. One (1) is
1661 to sort of endorse the -- what Professor Sossin's been 2 saying, and -- and in particular say, you know, our -- 3 our council is -- doesn't have a direct report to a 4 Minister, but the Attorney General is responsible for 5 tabling the report of the Institute to Parliament. 6 And that is that -- exactly, I think, the 7 framework you were talking about; about guardianship, if 8 you like, of the -- of the statutory authority. And I 9 think that's very important. 10 I would say that I think our Board is 11 hybrid, in the sense it's not totally made up of all 12 stakeholders. There are some people who are there who 13 are not -- who would be pretty remote stakeholders in 14 death investigation, but important stakeholders in other 15 aspects perhaps of what we do, including particularly the 16 academic and -- and research side. 17 So I'm -- and I would endorse what 18 Professor Cordner has said about the -- the fantastic 19 ability to have this Board as an incredibly important 20 buffer, both between ourselves and government, but also 21 as a buffer in between our individual stakeholders. 22 They both can -- the stakeholders can act 23 in concert, but they can also sort out potential 24 differences of prioritization of what we should be doing 25 between themselves as -- as stakeholders in the -- in the
1671 Institute. 2 The other thing I wanted to specifically-- 3 COMMISSIONER STEPHEN GOUDGE: Just let me 4 stop you there, Dr. Ranson. The Board reports to or 5 through a Minister? That is what's -- 6 DR. DAVID RANSON: The report -- 7 DR. STEPHEN CORDNER: The only -- the 8 only reporting is we provide an annual report to the 9 Attorney General who tables it in Parliament. There's no 10 other -- we don't -- 11 COMMISSIONER STEPHEN GOUDGE: How's your 12 budget allocation made? 13 DR. STEPHEN CORDNER: Well, it comes 14 through the Attorney General, and so we deal -- I deal -- 15 I have a specific person in the department who is 16 responsible for the departments statutory agencies, of 17 which we are one (1). 18 COMMISSIONER STEPHEN GOUDGE: And do you 19 go to that person with an annual envelope request? 20 DR. STEPHEN CORDNER: We meet with that 21 person at least every two (2) months. And in recent 22 times it's been very much more regularly. 23 COMMISSIONER STEPHEN GOUDGE: All right. 24 So the only relationship between the elected people in 25 Victoria, and your institution is the budgetary one?
1681 There's no policy relationship? 2 DR. DAVID RANSON: No, except in the 3 sense that as -- as I think Professor Sossin mentioned, 4 if government policy was to move towards a particular 5 direction, then obviously the statutory authorities would 6 say, this is how the government as the -- from the whole 7 of the state is now considering working in respect of 8 human resources, or a general policy of -- 9 COMMISSIONER STEPHEN GOUDGE: A general 10 policy for example -- 11 DR. DAVID RANSON: -- but not -- 12 COMMISSIONER STEPHEN GOUDGE: -- of 13 moving some services out of the provincial capital to 14 other centres, as -- 15 DR. DAVID RANSON: That's right. 16 COMMISSIONER STEPHEN GOUDGE: -- as has 17 been our policy in Ontario? 18 DR. DAVID RANSON: That's right. Exactly 19 the same sort of thing. 20 COMMISSIONER STEPHEN GOUDGE: You would 21 subject yourselves to that? 22 DR. DAVID RANSON: We would be taking -- 23 COMMISSIONER STEPHEN GOUDGE: Probably 24 some screaming I know, given what you've said, but -- 25 DR. DAVID RANSON: Yes.
1691 COMMISSIONER STEPHEN GOUDGE: -- that 2 sort of broad across the board government -- 3 DR. DAVID RANSON: That's right. 4 COMMISSIONER STEPHEN GOUDGE: -- policy? 5 DR. DAVID RANSON: But -- but not one 6 that was specifically allocated to where we should be 7 putting our efforts in particular case work or service 8 work. 9 The other general area I just wanted to 10 comment on was the linkage between the -- the council and 11 quality management which I think is -- is very important. 12 The way it's structured, and -- and Professor Cordner 13 described the council to you -- the Institute has 14 leadership group which comprises the head of the major 15 services, but also comprises our legal policy officer, 16 who's our in-house lawyer -- lawyer, if you like, and 17 also our quality manager. 18 And any member of the Insti -- group is 19 encouraged to attend the council meetings and indeed many 20 of their reports through the director make their way into 21 the council papers. 22 This means that the -- the general 23 overview reporting of quality, what's been happening, 24 what's -- as a general summary is included within council 25 papers and council members take an interest in and
1701 respond to issues of quality that the institute is 2 providing them with information on. 3 So there's a direct feedback loop between 4 the quality management, and the -- and the council. 5 Whilst that takes place in a -- in a more formal sense 6 with the Director presenting that, it's important to 7 recognize that the -- the quality manager, as any member 8 of the leadership group, has a very open communication 9 with counsel. 10 And I think that's a fairly -- that's a -- 11 that's an encouraged communication. Just also say that 12 the quality manager has a number of other 13 responsibilities. 14 In other words, it's not the 15 responsibility directly to counsel, it's through the 16 Director, but the quality manager, as linkage with 17 Occupational Health and Safety, has some specific 18 statutory responsibilities under that legislation. And 19 also with respect to other accreditation bodies who 20 provide us with accreditation, those bodies themselves 21 expect the quality manager to be directly responsible for 22 quality of services, and effectively tells that quality 23 manager you can shut them down if you think they're not 24 right. 25 Obviously that's done very -- quite in
1711 conjunction with the -- the leadership and the Director, 2 but there are some specific statutory responsibilities, 3 and accreditation responsibilities that lie on the 4 quality manager. 5 I see that as being within the 6 organization, responsible through the Director to the -- 7 to the Board, but having some special individual 8 responsibilities beyond that. 9 COMMISSIONER STEPHEN GOUDGE: Thanks. 10 MS. LINDA ROTHSTEIN: That's it, 11 Commissioner. My colleagues may have some questions. 12 COMMISSIONER STEPHEN GOUDGE: Questions? 13 Ms. Fraser...? 14 15 QUESTIONED BY MS. SUZAN FRASER: 16 MS. SUZAN FRASER: My name is Suzan 17 Fraser, and I'm here on behalf of an organization called 18 Defence for Children International, which is a children's 19 rights organization. 20 And, Dr. Cordner and Dr. Ranson, I just 21 have a question for you, because I understand that both 22 New South Wales and Victoria have child death review 23 teams, and we've had some discussion here about a -- a 24 pediatric death review process here. 25 And I understand that in Victoria, the
1721 consultative council in obstetrics and pediatrics do some 2 of the work, but that there's a separate Victorian child 3 death review team which reviews deaths of children who 4 die in the Victorian Child Protection Service. 5 Is that right? 6 DR. DAVID RANSON: That's right. 7 MS. SUZAN FRASER: All right. 8 DR. DAVID RANSON: That's essentially, 9 right. 10 MS. SUZAN FRASER: And my understanding 11 is that committee -- and I'm interested in the sort of 12 second committee -- doesn't express an opinion about 13 either the factors in the death about culpability, but 14 the deaths actually get reviewed? 15 DR. DAVID RANSON: I -- I'm least 16 familiar with that committee, unfortunately. 17 We actually -- the -- the group from the 18 Obstetric and Pediatric Death Committee, we have 19 representative -- one (1) of our pathologists is on that 20 committee, and takes a very active part in the 21 discussions in relation to the management of those -- of 22 those children, and so on. 23 But we don't, I believe, have any formal 24 representation on the DHS committee -- 25 MS. SUZAN FRASER: All right.
1731 DR. DAVID RANSON: -- which deals with 2 who -- the children who've been in care. There is a very 3 interesting relationship between coroners -- 4 MS. SUZAN FRASER: Yes. 5 DR. DAVID RANSON: -- and that committee, 6 and it has been held at least on one (1) occasion by a 7 coroner that they would not seek the results, or 8 deliberations, of that committee on the grounds that if 9 that was used in an open inquest process, that could 10 impair the work of that committee. 11 But it's, I suppose, that -- that the 12 avenue for that disclosure is not closed. It's simply a 13 -- a policy understanding between the coroner and that 14 committee. That's my understanding of it. 15 MS. SUZAN FRASER: So is it seen to -- 16 it's seen to be for the benefit of the coroner that the 17 coroner doesn't participate in this? 18 I'm just interested in the rationale for 19 having that review vest outside of the coronial system, 20 so to speak. 21 DR. DAVID RANSON: I suppose that review 22 really would be the Department of Human Services actually 23 having a committee that would review its own 24 responsibilities with respect to its child protection 25 services, and a child dying within those services.
1741 So I -- I would see that group, as far as 2 I can tell, to be very much an internal departmental 3 group that is actually trying to get a broader oversight 4 of what's happened in respect of one (1) of its own 5 children -- own child care related deaths. 6 It does not, however, interfere with, or 7 restrict the coroner in any way, in the coroner's open 8 investigation of any child dying in care. 9 The relationship between the coroner and 10 that committee, I think, is one (1) of -- as I said, it's 11 a -- there is a bit of a policy issue about exchange of 12 information, but I don't believe that that policy closes 13 the door to the coroner actually insisting on getting 14 that information in any particular case. 15 MS. SUZAN FRASER: All right. And I had 16 understood that commi -- that Death Review Committee to 17 be independent of the people providing the child 18 protection services. 19 DR. DAVID RANSON: Yes, my understanding 20 is that -- that it's a departmental -- I understand it to 21 be a departmental committee and I would have to go back 22 and just check -- 23 MS. SUZAN FRASER: All right. 24 DR. DAVID RANSON: -- this a little bit, 25 but of my understanding is they try to bring in, you
1751 know, the relevant outside people to advise them on how 2 they have been conducting their work with respect to the 3 -- the children in care. 4 MS. SUZAN FRASER: All right, thank you. 5 And, Professor Sossin, you talked a little in your paper 6 about the Paediatric Death Review Committee, and my 7 client has been critical, to a certain degree, of that 8 committee where it -- reviewing the deaths of children 9 who have died in the care of the State; in foster care or 10 where they're actually in the care of the state, because 11 some of the membership of the Paediatric Death Review 12 Committee comes -- comes, as my client would put it, from 13 the child protection establishment, for lack of a better 14 expression. 15 Do you see there being some sort of 16 validity to that concern, in terms of the ability to 17 which that committee can provide oversight, as you've 18 described in your paper? 19 DR. LORNE SOSSIN: Well, I think one (1) 20 of the challenges of the Paediatric Death Review 21 Committee is it actually takes on a number of different 22 functions. It -- it has that oversight role, but it also 23 has elements of it that I would suggest are consistent 24 with quality assurance or quality management, and it will 25 seek to feed back in many cases some views or
1761 perspectives coming out of its review; for example, into 2 guidelines that child welfare authorities will adopt. 3 And -- and so I think for those purposes 4 it -- it makes sense to have child protection officers or 5 -- or people representative and knowledgeable of those 6 views involved. 7 If one looks at it at -- as an oversight 8 body, then I think you're always in a position of some 9 concern if the people exercising oversight functions look 10 too closely associated with or are in fact the same 11 people or part of the same structure that you're seeking 12 an independent view on. 13 So it may be that we -- I mean the PDRC in 14 many ways exhibits some of the aspirations that I've 15 suggested: it tries to be multi disciplinary; it tries to 16 take a look at the team approach and not the individual 17 approach. So I -- I think there is lots to take from the 18 PDRC experience that's quite important and beneficial. 19 But if you look at it as you've suggested, 20 from the perspective of oversight, I think those 21 deficiencies could well have some substance and we may 22 just be asking this body to do too much or need some 23 subcommittees or other mechanisms within it to deal more 24 specifically with oversight. And I think all of those 25 are possible without discarding the institution or
1771 without discrediting the really positive work that it 2 does in these other contexts within the system. 3 And the Deaths Under Five Committee, you 4 know, one could say some analogous things about it having 5 this shared mandate to do a few different things in the 6 system, not the least of which is simply provide a 7 regular opportunity for people to come together and 8 exchange views and information, and I -- I would hate to 9 see that lost, even though I -- I take the concerns and I 10 think they're worth exploring. 11 MS. SUZAN FRASER: Thank you. Thank you 12 very much. 13 COMMISSIONER STEPHEN GOUDGE: Thanks, Ms. 14 Fraser. 15 I think Ms. Esmonde? 16 17 QUESTIONED BY MS. JACKIE ESMONDE: 18 MS. JACKIE ESMONDE: Good afternoon. I'm 19 going to ask you some questions on behalf of my clients, 20 the Aboriginal Legal Services of Toronto and Nishnawbe- 21 Aski Nation. 22 And I'm interested in following up on some 23 of the ways in which lay or public views can be 24 incorporated into the governance structure. Now, 25 obviously I'm coming at this from the perspective of our
1781 clients who are Aboriginal leadership in communities. 2 First of all, if we can speak about the 3 board concept, Professor Sossin, that you raised in your 4 testimo -- sorry, in your -- your comments earlier. You 5 had raised the -- the possibility of having public 6 representation on the Board. 7 I take it there can -- you'd agree with me 8 there's some benefit in terms of public perception when 9 you have external stakeholders who are involved in the 10 Board, from an accountability and oversight -- 11 DR. LORNE SOSSIN: Yeah. 12 MS. JACKIE ESMONDE: -- perspective? 13 DR. LORNE SOSSIN: No, I think it's -- 14 it's a really important point, and -- and it speaks a 15 little bit to this question that Dr. Prime had addressed, 16 because I think there are really two (2) different 17 functions served by an advisory committee and a 18 governance board, and I -- and I actually don't think 19 that they're mutually exclusive. I think in a truly 20 forward looking progressive system, they might in fact be 21 both necessary and complimentary. 22 I think you need to have governance 23 functions that are not able to be captured by particular 24 interests within a death investigation process. And for 25 that reason, whether it's representatives of a -- of a
1791 Chief Justice or ensuring that a certain number of 2 members are lay members. You can achieve that sense of a 3 broad-based board that will have to function by consensus 4 in a number of ways. And I wouldn't exclude, for 5 example, someone who is coming from that perspective, 6 especially where we do have these regional issues. 7 And so you may say -- 8 MS. JACKIE ESMONDE: Mm-hm. 9 DR. LORNE SOSSIN: -- that Board would 10 have to have representation from the north or from the 11 different regions that we've divided up the coronial 12 system into at a minimum. 13 The second issue, though, is stakeholder 14 involvement as a sounding board and as a part of the 15 feedback into and out of the process. And that's where I 16 think NGOs, advocacy groups -- it could be Legal Aid 17 clinics; it could be people who are representative of a 18 family organizations. There's a number of groups that I 19 think one would want to see around a table, and when 20 there's a new policy or a concern that's being expressed, 21 have those views around and be able to disseminate a 22 position to those communities. 23 And I think the only concern I would have 24 is if these two (2) get conflated -- 25 MS. JACKIE ESMONDE: Mm-hm.
1801 DR. LORNE SOSSIN: -- and what a -- 2 really what I would suggest: Advisory Committee 3 functions become located in the Board or vice-versa. 4 But I do think that they're both important 5 and I think we -- sometimes people will use a particular 6 organization as a proxy for something else. So a 7 regional view will of course devolve differently when 8 there's a community that is disproportionately 9 represented in a particular region, and so I think that 10 needs to be thought out carefully. 11 MS. JACKIE ESMONDE: You mentioned the 12 issue of regional differences. There's also -- I don't 13 know how much you followed some of the evidence that 14 we've had at the Inquiry, with respect to some of the 15 unique features of Aboriginal communities and their 16 relationship with the Coroner's Office. 17 Is that a perspective that you see as 18 being useful? Not simply regional differences but also 19 community differences in the death investigation process. 20 DR. LORNE SOSSIN: No, I do. And I think 21 that speaks to the ability of a board, for example, to be 22 able to advance a public interest that would include 23 responsiveness to communities without having to put that 24 function within a single office that is both operational 25 and meant to be engaged in outreach with communities, and
1811 to be responsive to particular community concerns. 2 I think a board is much better able to be 3 a part of that process, whether by having advisory 4 committees or other outreach offices. And another 5 element in my research has been a family support centre 6 as part of the functions of a death investigation system. 7 And we've seen initiatives in the UK in this regard. 8 And one can imagine that office having a 9 special interest in outreach to Aboriginal communities 10 and to ensuring a sensitivity to customs, practices and 11 traditions in the way in which death investigations are 12 conducted in those communities. 13 MS. JACKIE ESMONDE: Just one (1) final 14 area. One (1) of the models I'm most familiar with is 15 the Toronto Police Services Board, which has some of the 16 features that you've talked about. And -- and I may 17 direct this actually to Dr. Ranson and Dr. Cordner, in 18 terms of how your Council works. 19 The Toronto Police Services Board here has 20 monthly meetings, they are open to the public, anybody 21 can attend and raise concerns about policy. 22 Is that a feature that is part of the 23 Council? 24 DR. STEPHEN CORDNER: No, it isn't. Our 25 Council meets at least three (3) monthly -- generally,
1821 three (3) monthly, sometimes more frequently. 2 We did on one (1) occasion have an annual 3 general meeting and -- to have it as a public meeting, 4 but we didn't -- we didn't pursue that other than on the 5 -- on the one (1) occasion. 6 So it's a governance board; it's running 7 the organization; it's receiving lots of important 8 information about the operations of the organization. So 9 I'm not sure that it's really the type of thing that 10 people would expect to operate in a public -- in a public 11 forum even though, you know, the broad results of what it 12 -- of what it does is available in the public domain. 13 DR. DAVID RANSON: It is in that sense a 14 sort of board of directors and it obviously has its 15 report -- or annual report presented to Parliament as a 16 public document and is widely available. 17 The -- the Council has a variety of boards 18 and sub-committees that report to it, which do engage and 19 have other people on them. In the past, we've certainly 20 have had lay membership of some of those advisory board 21 through to Council and they would have made their views 22 known. 23 Some of these operational groups with the 24 Institute -- within the Institute, the forensic 25 pathology, sort of client-services groups, have -- have
1831 incorporated undertakers and we have an Aboriginal legal 2 ser -- a funeral service, as well as a legal service, and 3 so on. 4 And our Attorney General is certainly very 5 prominent in supporting the lay membership of variety of 6 committees and organizations. So that's something that's 7 -- that's very positive. 8 So there are quite a few avenues by which 9 community groups can express, and get their viewpoints 10 through to the Board, but the Board itself is very much a 11 board of directors running the business, and I think that 12 makes it slightly different from a sort of a broad 13 community advisory board. 14 MS. JACKIE ESMONDE: Okay. Professor 15 Sossin, I -- just following up on that, at -- the Toronto 16 Police Services Board Model, is that something that you - 17 - is that a feature that you saw as part of the Board 18 that you've described to us today -- 19 DR. LORNE SOSSIN: Well -- 20 MS. ALISON CRAIG: -- and in your paper 21 as well? 22 DR. LORNE SOSSIN: -- well what's 23 interesting about the police analogy is it's also a 24 setting where because of the intensity of the -- the work 25 being undertaken, we actually see multiple, and in some
1841 ways overlapping, accountability mechanisms. 2 So to look at the Police Services Board, 3 one might also need to consider the civilian complaints 4 apparatus, the special investigations unit, internal 5 discipline, and ministerial accountability. And in fact, 6 you could look at all of these as interlocking pieces of 7 accountability; some of which are by their nature 8 confidential and -- and private; some of which happen in 9 a transparent way. 10 And I think that model is not a bad one to 11 bring to death investigations. You might say there needs 12 to be some fora that are public, that are accessible. 13 There may also need to be some kinds of decision making 14 that is properly confidential, and there will, of course, 15 be a range of privacy concerns throughout a death 16 investigation process. 17 There may need to be a complaint 18 mechanism, but also other forms. Disciplinary, and -- 19 and otherwise of -- of oversight. 20 So I think the -- while I wouldn't say the 21 Board model and the police services could be transposed 22 into this framework, I think that approach to how we look 23 at accountability in -- in the police bears a lot of 24 similarity to how we might want to build in different 25 mechanisms.
1851 And then the concern really becomes from 2 the standpoint of the concerned effected person: Is 3 there enough gatekeeping and coordination that they're 4 not stuck in a maze of where to go and what to do if they 5 have concerns, or want to get perspectives brought to 6 bear. 7 But there's clear single points of 8 contact, or single offices, that will do this support, in 9 steering through all of the different mechanisms. 10 And I think that's really critical in -- 11 in moving to a more service oriented approach to death 12 investigations in the future. 13 MS. JACKIE ESMONDE: Okay. Thank you. 14 Thank you very much for your comments today. 15 COMMISSIONER STEPHEN GOUDGE: Oh, my 16 goodness. 17 MS. ALISON CRAIG: I'll be brief. 18 COMMISSIONER STEPHEN GOUDGE: Very brief 19 -- very -- one (1) question, okay. 20 21 QUESTIONED BY MS. ALISON CRAIG: 22 MS. ALISON CRAIG: Thank you, 23 Commissioner. I will be brief. 24 Good afternoon, gentlemen. My name is 25 Alison Craig, and I'm here on behalf of nine (9)
1861 individuals who were convicted of crimes in which Dr. 2 Smith was involved. 3 And just following up on that, I was going 4 to pull up Dr. Pollanen's memo. We don't need to, but he 5 wrote a memo where he reviews ten (10) systemic issues, 6 one (1) of them is quality assurance, and he outlines 7 three (3) phases of the justice system where quality 8 assurance is important: the investigator phase, the 9 judicial phase, and then the post-conviction phase. 10 And he points out that currently there's 11 no formal mechanism to obtain a post-conviction pathology 12 review. And, so that's what I'm interested in. 13 And I don't know if you're familiar or 14 not, the United Kingdom has the Criminal Cases Review 15 Commission, which is an independent body governed by 16 statute -- implemented by statute, but an independent 17 body -- 18 COMMISSIONER STEPHEN GOUDGE: Yes, we are 19 going to have a whole panel on this, Ms. Craig. 20 21 CONTINUED BY MS. ALISON CRAIG: 22 MS. ALISON CRAIG: Yes, okay. I -- I'm 23 just -- my question is in relation to quality assurance. 24 Do you see that as an effective way, at 25 the post-conviction phase, to ensure quality assurance,
1871 or alternatively are there -- are there better ways to do 2 it? 3 DR. DAVID RANSON: I suppose I could say 4 -- the simple and rather glib answer is -- is it's a bit 5 late. I mean, the quality assurance should be part of a 6 continuous process from the beginning. Right -- and I 7 knew it was going to be glib. 8 But I think it's an important point that 9 the -- that quality assurance takes place at every 10 stage. That's not to say that I don't believe that such 11 a -- a group doesn't provide a level of quality 12 assurance, because clearly it does. But I think it's -- 13 it's part of a continuum, and I think that's perhaps been 14 very well picked out by Dr. Pollanen when he has 15 described those various phases. 16 Certainly we don't have that sort of 17 statutory type sort of body, although we have a number of 18 very active groups, in terms of wrongful conviction, who 19 do engage us, and do talk to us from time to time, and 20 who we do assist, because we see ourselves as being open 21 and approachable by any party in any situation. 22 DR. STEPHEN CORDNER: Australia need to 23 Criminal Cases Review Commission. 24 MR. DAVID RANSON: It's probably right. 25 MS. ALISON CRAIG: Thank you.
1881 DR. LORNE SOSSIN: I'd simply say in 2 response to the first somewhat glib comment, there's 3 another one -- 4 MS. ALISON CRAIG: Mm-hm. 5 DR. LORNE SOSSIN: -- which is it's never 6 too late. And I think quality assurance is only one (1) 7 of the many reasons why there would need to be some post- 8 conviction mechanism. And we've seen in this Province, 9 whether it's the recent Truscott proceedings or many 10 others, that there is no time limited sense of injustice. 11 And so I think it doesn't necessarily mean 12 that that precise system works here but I'd say the 13 current system which does depend on ministerial decision- 14 making, doesn't seem to comport with the rest of the 15 things we've said about what a coherent and accountable 16 system would look like. For example, having that 17 independence from what might be a range of other concerns 18 that could affect a Minister's decision. 19 So whether a body that makes 20 recommendations to a Minister or some other process would 21 seem to fit much more organically in the rest of the 22 concerns around models that you've been hearing this 23 morning. 24 MS. ALISON CRAIG: All right. Thank you. 25 COMMISSIONER STEPHEN GOUDGE: Thanks, Ms.
1891 Craig. 2 DR. RAY PRIME: Could I just make a 3 comment on that? Because from a scientific perspective, 4 I think we do have other means of bringing review to some 5 of these cases. 6 And if you -- you are asking how do we do 7 that from science or from pathology, certainly the Centre 8 of Forensic Sciences has been approached on a number of 9 occasions to assist in trying to reveal whether or not 10 science can help to repair a wrongful conviction. And 11 we've been able to do that by, again, a cooperative 12 approach with -- with counsel. 13 MS. ALISON CRAIG: Thanks you. 14 COMMISSIONER STEPHEN GOUDGE: Thanks, Ms. 15 Craig. 16 Last question to you, Ms. Silver. 17 18 QUESTIONED BY MS. CAROLYN SILVER: 19 MS. CAROLYN SILVER: I'm Carolyn Silver, 20 I represent the College of Physicians and Surgeons. 21 Just a quick question for you, Dr. 22 Cordner. 23 You were discussing with Ms. Rothstein the 24 fact that the licensing body in your jurisdiction is able 25 to deal with concerns about forensic pathologists and you
1901 discussed a case. 2 My question is: If, in the course of 3 doing a review, you find that a forensic pathologist is 4 not meeting the standard of practice, would you notify 5 your regulatory body? 6 DR. STEPHEN CORDNER: I would, but I have 7 -- as I mentioned in my paper, I've never come across a 8 case where I felt the standard of practice was such that 9 I felt any ethical or professional obligation to blow the 10 whistle. 11 MS. CAROLYN SILVER: But if you came 12 across that case you would notify the regulatory body? 13 DR. STEPHEN CORDNER: Yes, and that would 14 be -- well, there's two (2) issues. You're talking about 15 individual cases. I quite often get asked by people, Oh 16 you must have know that so-and-so was incompetent; why 17 didn't you do something about it? 18 And my usual answer is, and I think it's a 19 fair answer is, Well, look, I don't know enough in detail 20 about a sufficient number of cases to come to a 21 conclusion that a particular individual is incompetent. 22 Now, it might be the performance in a 23 single case might actually mean that that's a reasonable 24 conclusion and I've never had the experience of that in a 25 single case.
1911 MS. CAROLYN SILVER: But you're saying if 2 you reached that -- 3 DR. STEPHEN CORDNER: Yeah. 4 MS. CAROLYN SILVER: -- conclusion, 5 ultimately you would notify the licensing body? 6 DR. STEPHEN CORDNER: Yeah. I'd have an 7 obligation to do so, yes. 8 MS. CAROLYN SILVER: Okay. Thank you. 9 COMMISSIONER STEPHEN GOUDGE: Thanks, Ms. 10 Silver. 11 Ms. Rothstein...? 12 MS. LINDA ROTHSTEIN: I just wanted to 13 thank all of our panellists very, very much for a very 14 interesting morning. As you can see, you've been held 15 over because of the very great interest of everyone in 16 this room in everything that you've had to tell us. 17 So thank you all. 18 COMMISSIONER STEPHEN GOUDGE: Let me on 19 behalf of all us, thank you all. This morning's 20 discussion really at the ground level of how within a 21 forensic service you can build in these essential 22 devices. And quality assurance and accountability is 23 obviously an important part of our work and so the 24 discussion has been very fruitful. 25 Thank you Dr. Prime for coming. You,
1921 Professor Sossin. The other two (2) are season ticket 2 holders here. 3 So thank you. We will adjourn now till 4 9:30 tomorrow morning. 5 6 --- Upon adjourning at 1:14 p.m. 7 8 9 10 11 Certified Correct, 12 13 14 15 16 ____________________ 17 Roland Lokey, Ms. 18 19 20 21 22 23 24 25