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

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

3
  1                   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          )
 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

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

1 TABLE OF CONTENTS Page No. 2 3 THE BEST PRACTICES OF PEDIATRIC FORENSIC PATHOLOGY IN A 4 PARTICULAR CASE PANEL: 5 DAVID CHIASSON 6 MICHAEL POLLANEN 7 STEPHEN CORDNER 8 CHRISTOPHER MILROY 9 10 Questions by Mr. Mark Sandler 7 11 12 13 Certificate of transcript 207 14 15 16 17 18 19 20 21 22 23 24 25

1 --- Upon commencing at 9:31 a.m. 2 3 THE REGISTRAR: All rise. 4 COMMISSIONER STEPHEN GOUDGE: Please sit 5 down. Good morning. 6 Mr. Sandler...? 7 MR. MARK SANDLER: Yes, good morning, 8 Commissioner. Commissioner, this morning we have a panel 9 entitled "The Best Practices of Pediatric Forensic 10 Pathology in a Particular Case". 11 And the idea here is to cover some topics 12 that will not be covered in other roundtables, but 13 there's no bright line between some of the topics that 14 I'll be raising with the panellists this morning and -- 15 and those that will be raised in other panels, 16 particularly tomorrow's, on effective communication. 17 Our four (4) panellists are well known to 18 you, Commissioner, so I do not intend to elaborate upon 19 their background, other than to introduce them as Dr. 20 Pollanen, Dr. Chiasson, and Dr. Milroy, and Dr. Cordner. 21 For good behaviour we've moved Dr. 22 Pollanen closer -- closer to me. But otherwise -- other 23 than the configuration, you're well familiar with each of 24 our participants. 25

1 THE BEST PRACTICES OF PEDIATRIC FORENSIC PATHOLOGY IN A 2 PARTICULAR CASE PANEL: 3 4 DAVID CHIASSON 5 MICHAEL POLLANEN 6 STEPHEN CORDNER 7 CHRISTOPHER MILROY 8 9 CONTINUED BY MR. MARK SANDLER: 10 MR. MARK SANDLER: So if I may just start 11 right in, gentlemen, and -- and I want to start with some 12 of the activities that surround the forensic 13 pathologist's role in the death investigation. 14 We heard in a panel the other day, that -- 15 that there'd be some value to some transparency in the 16 kind of information that police officers communicate to 17 the forensic pathologist, prior to the commencement of 18 the autopsy. 19 And -- and you may have heard some of my 20 questions that were directed to senior police officers 21 and Crown attorney, Mr. Ayre, about whether we could 22 facilitate that transparency by reducing that intake 23 information to writing. 24 Dr. Ranson had made the Commissioner 25 familiar with a -- with a form that might be used to --

1 to help in -- in making that process more transparent. 2 Dr. Pollanen, make the case for why that intake 3 information should not be confined to a written synopsis 4 or outline by the officers? 5 DR. MICHAEL POLLANEN: Well there -- 6 there are two (2) dimensions to obtaining the pre-autopsy 7 information or history from the coroner or police 8 investigators, or fire marshal or SIU investigators that 9 all flow into the autopsy room. 10 The -- the two (2) dimensions are: a 11 passive dimension, where information is brought to the 12 pathologist by the investigating entity. And the 13 pathologist, as I've described before, listens to that 14 information and then exercises a process called 15 filtration -- I've called it filtration -- where, 16 basically you -- you take out the noise, and you take the 17 stuff that you're interested in, or that you might think 18 is useful to your task. That's one (1) dimension. 19 The other dimension is something more 20 classical that doctors are trained to do, and that is to 21 actually take a history. So, for example, the -- the 22 other dimension is actually -- actually asking police 23 about certain things. For example, what was the position 24 of the body at the scene, if there aren't digital 25 photographs? What other features might be present based

1 upon historical information that you're given? Or, upon 2 external examination of the body other things might 3 become apparent that raise questions to the police 4 officer. 5 So there's the -- both this passive and -- 6 and active component. So simply writing something down 7 doesn't capture all elements. 8 MR. MARK SANDLER: All right. So what 9 you'd urge upon the Commissioner of -- as I hear what 10 you're saying, is that we might improve the transparency 11 of the process by ensuring that -- that the information 12 that's relevant to the forensic pathologist is recorded 13 in some way. 14 We might facilitate the transmittal of 15 information through some written assistance, but the 16 bottom line is that there has -- one has to continue to 17 accommodate a process where questions and answers can be 18 asked, and -- and the information isn't frozen the moment 19 the officer's walk in the door? 20 DR. MICHAEL POLLANEN: Right. And there 21 are two (2) -- there are two (2) important aspects of 22 that. The first is, that information flow will occur 23 right up until the courtroom steps, so all of our 24 processes have to be flexible enough to accommodate 25 information transfer during that time. That provides,

1 you know, obligations on the Crown for disclosure, and 2 therefore the pathologist has a document thing, so that's 3 an important dimension. 4 The other important dimension is when 5 you're standing in the -- in the PM room and you're -- 6 you're obtaining this information through these two (2) 7 active and passive mechanisms, you need to record it in 8 your PM report. 9 So what I -- what I typically do now, is I 10 get that information -- sometimes it assists me to write 11 it on a chalkboard in a time line, and then I just simply 12 dictate immediately into the PM report, the history. 13 MR. MARK SANDLER: All right. Dr. 14 Milroy, what do you do, and what -- what input would you 15 like to have on this question? 16 DR. CHRISTOPHER MILROY: Well I agree 17 that we -- we do occasionally get police bringing in a 18 written summary for us, if they have time. A lot of our 19 suspicious deaths in England are done what I would call 20 very hot; you know, they may be within a few hours of 21 death. We -- we have somewhat impatient police and they 22 don't wait till the morning, so we often autopsy in the 23 evening, for example. 24 MR. MARK SANDLER: They do wait until the 25 death, I take it.

1 DR. CHRISTOPHER MILROY: Not always. 2 Occasionally they phone us and say, We've got someone on 3 a ventilator, they're going to die; can you do an 4 autopsy? And I say, Well, just let them first -- but... 5 MR. MARK SANDLER: I thought it was an 6 unproblematic question. 7 DR. CHRISTOPHER MILROY: Yeah. No, no, 8 it's something -- they act -- it's very bizarre, 9 actually, that they sometimes are a bit -- bit keen. 10 There is -- seriously, there is -- there 11 is a dynamic process that's going on often in these 12 cases. A flow of information may change. A little 13 anecdote: Recently I had a case where they said, Well, 14 we've got a history of raised voices, the person 15 identified it as a specific person, they heard a bang; 16 the child is then dead. 17 Half an hour later, just as we're about to 18 start, they say, Oh, we've now got a piece of history 19 that the voice that was heard cannot possibly have been 20 in the house at the time the other witness is saying it. 21 So if they had merely given us a 22 typewritten script and that was all you were confined to, 23 you would be left with an inappropriate history. 24 And I think that the other thing -- so -- 25 so you've got to have -- if they send me a typewritten

1 summary, I also interrogate them and add to it, in terms 2 of other pieces of information that I think are relevant. 3 And then if things go on after the autopsy, I want that 4 information too, but I want it in writing so that we've 5 got a record of what they have given to me and I can then 6 respond to the questions raised by that new history. 7 And as Michael said, it goes on up to 8 trial. If -- if information changes, the defence put 9 forward another hypothesis, we should -- we should answer 10 it before we get in the witness box. 11 MR. MARK SANDLER: all right. And I'm 12 going to come back to -- 13 DR. CHRISTOPHER MILROY: Yeah. 14 MR. MARK SANDLER: -- that issue with Dr. 15 Chiasson in a moment, but I'm going to turn to Dr. 16 Cordner for a moment. 17 What would you like to say about the issue 18 we're dealing with now, namely, the intake information 19 before the commencement of the autopsy? 20 DR. STEPHEN CORDNER: Well, look, I think 21 it's been captured -- captured already. 22 I mean, there is usually quite a dynamic 23 interchange between the relevant investigators and the 24 pathologist around the time of the autopsy, but it 25 usually drops off pretty sharply after the autopsy. And

1 there may be no communication for the months and years 2 between the autopsy and whatever hearing follows, and 3 then perhaps a flurry of activity in the -- in the days 4 before the hearing. 5 And it's that gap in between that there 6 probably should be a high level of concentration on 7 keeping the pathologist in tune with how the issues are 8 developing. 9 MR. MARK SANDLER: All right. Well, Dr. 10 Chiasson, you heard what Dr. Cordner just said about 11 keeping the forensic pathologist in tune with what's 12 happening. 13 Is that the practice, in your experience? 14 DR. DAVID CHIASSON: No. The practice 15 is, as I think Dr. -- Professor Cordner has been saying, 16 is that, in fact, there is a sharp decline after the 17 post-mortem examination, of communication with the police 18 and/or with Crown -- Crown counsel, even in cases where 19 there are charges that have been laid. 20 The usual scenario is you really don't 21 hear anything until the pre -- just before the 22 preliminary hearing: We want to meet with you then to 23 discuss what issues, and then you're put in this format; 24 the hypotheticals that -- that you might have to -- to 25 deal with, and -- and you carry on into a preliminary

1 hearing. 2 But relatively, in most cases -- unless 3 there is some specific pathology issue. If you -- and 4 this probably happens more in the pediatric realm. I 5 have a number of messages at my desk back -- you know, 6 what's the follow-up? Because I've left them with, you 7 know, a "pending further tests" evaluation. Well, then 8 the police will get back to you before you report often 9 to see, Okay, what's happening here, you know, where 10 we're at. 11 But certainly, in most cases where you do 12 have a cause of death at the end of the autopsy, you 13 don't hear back from the police or Crown. 14 MR. MARK SANDLER: All right. Well, that 15 raises two (2) questions. The first is this: What I 16 hear you saying is that sometimes the hypotheticals 17 associated with the cases may be presented to you for the 18 very first time very shortly before you're testifying, 19 either at the preliminary inquiry or -- or trial. 20 Am I right? 21 DR. DAVID CHIASSON: That's correct, yes. 22 MR. MARK SANDLER: Is that an adequate 23 way for a forensic pathologist to be dealing with 24 hypotheticals? 25 DR. DAVID CHIASSON: Well, it all

1 depends, I mean I think there are cases where the 2 hypotheticals are -- are relatively easy to deal with; 3 you're talking about a shooting and it's a question of, 4 well, could the shooter have been such and such a 5 distance in a -- or in such and such a place at the time 6 that the shooting occurred. 7 I mean, the -- there are -- there are 8 those -- those straightforward hypotheticals, but I think 9 the ones that would concern me as a forensic pathologist, 10 and I'm sure most of my colleagues, are those 11 hypotheticals that deal with the facts around -- you 12 know, relating to the cause of death. You know, is this 13 due to a fall down stairs? Is this head injury in an 14 infant due to a fall downstairs, or is it as a result of 15 some shaking mechanism, or -- or whatever? 16 And then you start talking about 17 hypotheticals in areas that are quite complex; that I 18 don't think is an appropriate way for -- you know, you -- 19 you put it to the pathologist, he's giving an answer in 20 an informal setting in the pre-preliminary hearing and -- 21 and it would be in those circumstances where -- and 22 especially if they're proceeding it on -- the Crown's 23 proceeding on based on -- on the answers, that that 24 should be a more formalized process. 25 MR. MARK SANDLER: All right, so, Dr.

1 Pollanen, let's say you're faced with that situation, the 2 Crown, or for that matter the defence, approaches you, 3 you are the witness who will be testifying as part of the 4 Crown's case as to cause or mechanism of death, do you 5 want the hypotheticals in writing, do you want the 6 information that -- that you're going to be asked about 7 to inform your opinion to be reduced to writing, and more 8 importantly are you prepared to respond in writing? 9 DR. MICHAEL POLLANEN: Well, I think Dr. 10 Chiasson summarised it by saying that there are some 11 hypotheticals that we're well used to, and we have sort 12 of standard responses to some of those issues because 13 they are in fact predictable. 14 But when you start getting into complex 15 scenarios -- and I'll give you some sort of concrete 16 examples -- if you have a stabbing and you're on the eve 17 of the preliminary inquiry or trial; Doctor, we'd like to 18 meet with you, and it's a half an hour before the case is 19 to be heard and they show you five (5) knives and say 20 which one is it. 21 Well, that's the sort of thing that 22 provides us with great difficulty. And there's often a 23 tension that develops because the -- the witness wants to 24 be helpful to the Court to provide an answer, however, 25 you know, that might require quite a lot of study with

1 dimensions and looking at weapons and wounds, et cetera, 2 so there -- there is sort of a tension that develops. 3 And partly that's an educational issue because the -- the 4 lawyers involved may not realise that it's not something 5 that we can immediately pull out of the hat; it means -- 6 it does require some analysis. 7 The -- where it's probably more important 8 are in those small percentage of critical cases where 9 certain contextual features of the case go to how the 10 pathology is interpreted: the example of shaking versus 11 impact; is the impact inflicted or accidental fall down 12 stairs, this type of thing. Those types of questions 13 cannot be lobbed in the first instance at a preliminary 14 inquiry. 15 They may require detailed review of 16 witness statements. It may take a review of the 17 configuration of the scene. It may require going to the 18 scene. So the -- the pathologist really does need to 19 have a heads up on that and given the proper foundation 20 upon which to give an opinion. 21 And this also raises the issue of how 22 active a pathologist should be in their -- in their own 23 case management, and that's -- then you get into a bit of 24 thorny issue because, as I've indicated before, you want 25 to preserve the independent nature of being an expert

1 witness, as opposed to getting too much involved in the 2 advocacy elements of the case. So you do not want to 3 give the impression to others in the criminal justice 4 system that the pathologist is becoming too intimately 5 involved in obtaining information for their -- for their 6 work. This is -- 7 COMMISSIONER STEPHEN GOUDGE: It's a 8 tough conundrum, Dr. Pollanen, isn't it because really 9 what you're all saying is information flow is a dynamic 10 process; there's an initial acquisition and then an 11 ongoing investigation and you may or may not get 12 information out of the ongoing investigation, some of 13 which may be critical to a reassessment of your original 14 report. 15 What's the best practice? I mean, you 16 know, you say quite rightly, Well we'd prefer it if the 17 police were omniscient and told us when something 18 relevant to our work came up after the original 19 information exchange. 20 Is that a burden the police can bare 21 properly? I mean, what's the best practice for that, 22 because we've obviously seen circumstances, we've 23 listened about circumstances where just that issue has 24 arisen, and then you have a last minute discussion of 25 facts that are new?

1 DR. MICHAEL POLLANEN: Well if I can just 2 sort of start off on that one. I think that the case 3 conferencing provides that option. That -- it's an 4 opportunity to get people in the room, and to update the 5 pathologist on how things are proceeding in the 6 investigation. 7 COMMISSIONER STEPHEN GOUDGE: So should 8 there be some form, at least in difficult cases, of 9 intermittent case conferences as the case proceeds to the 10 courtroom to ensure that those involved are fully 11 informed? 12 I mean, how to get over the conundrum of 13 the police don't really know what's relevant, and yet 14 they have the information that the pathologist would like 15 to have. 16 DR. DAVID CHIASSON: Well, I -- I would 17 agree that the -- with Michael, that certainly the case 18 conference does provide a format. And I think the nice 19 thing about a case conference, if you can do it on -- on 20 a -- it's part of your protocol, a regular activity, it - 21 - it doesn't -- the police are not -- don't have to 22 really think too much about, Well, is this piece of 23 information relevant to the pathologist, because it's 24 very difficult. It puts them into a difficult position, 25 because they're accumulating a vast amount of

1 information, and you know, trying to sort out what is 2 particularly interesting to a pathologist is -- is 3 difficult unless you're a pathologist. 4 So I think that the case conference 5 provides that form. One of the things that the Coroner's 6 Office, certainly earlier on, were -- were trying to 7 argue, you need a case conference very quickly. And -- 8 and there are cases where certainly an early case 9 conference might -- might be a benefit, but often times 10 you're waiting. You're waiting for your neuropathologist 11 to look at the brain. You're waiting for some 12 preliminary -- 13 COMMISSIONER STEPHEN GOUDGE: Right. 14 DR. DAVID CHIASSON: -- toxicology 15 reports to assist you. 16 So I think you have to be a little 17 flexible as to when the case conference takes place, and 18 your suggestion that there may be a need for further case 19 conferencing is -- is a good one. But that could be sort 20 of done -- you have your case conference, and part of the 21 decision making of that may be, Okay, we may have to meet 22 again to discuss further. 23 But to -- to also get back to -- to Dr. 24 Pollanen's point about how active the pathologist -- the 25 forensic pathologist should be in these cases, is a bit

1 of a -- a conundrum situation, because you do not want to 2 see -- be seen as part of the prosecutorial system. 3 The Quincy phenomena I think is -- Quincy 4 I think is a perfect model of the -- the active medical 5 examiner in that -- in that case, and would basically 6 take over the investigation from -- from a whole bunch -- 7 COMMISSIONER STEPHEN GOUDGE: Right. 8 DR. DAVID CHIASSON: -- of different 9 points of view. I mean, that's an exaggeration, but it 10 does it does show -- there is a danger -- 11 COMMISSIONER STEPHEN GOUDGE: Right. 12 DR. DAVID CHIASSON: -- certainly to -- 13 for a forensic pathologist to become overly involved. 14 And -- and really then become part of a tunnel vision 15 scenario. 16 17 CONTINUED BY MR. MARK SANDLER: 18 MR. MARK SANDLER: Now -- 19 COMMISSIONER STEPHEN GOUDGE: With the 20 tension that all four (4) of you have eluded to, and that 21 is if you're presented with five (5) knives sitting in 22 the witness stand, it's a tough answer? 23 DR. CHRISTOPHER MILROY: Yeah. I think 24 that there is some -- there's got to be some happy medium 25 here, because there are clearly areas of expertise that

1 the forensic pathologist does not have, that he is aware 2 would be of relevance even to questions posed to him in 3 the witness box. 4 So, for example, there was -- there's one 5 (1) -- one (1) -- if you think there's a bite mark on a 6 child, you as a -- a forensic pathologist are duty bound 7 to say, You need to have an odontologist. 8 COMMISSIONER STEPHEN GOUDGE: Right. 9 DR. CHRISTOPHER MILROY: Can't expect the 10 police to know that, I don't think. 11 COMMISSIONER STEPHEN GOUDGE: Right. 12 Well that's the conundrum here. The police are the 13 gather's of the information without the skill, 14 understandably, to know everything that's relevant to the 15 expert that's going to be asked to assist the court. 16 DR. CHRISTOPHER MILROY: And they -- you 17 know, and -- and if there is a skeletal survey 18 performed, then -- you know, you say, You've got to get a 19 -- a radiologist, and an appropriate radiologist; not 20 just any old radiologist, but one who's used to looking 21 at children and -- and boney injury in children, and so 22 on and so forth. 23 I mean, sometimes these pick up other 24 things. I -- it may -- it may show that there is growth 25 retardation on the X-ray. You can pick that up on X-

1 rays. 2 COMMISSIONER STEPHEN GOUDGE: Right. 3 DR. CHRISTOPHER MILROY: You'll say what 4 you -- if that's there, do you want to talk about that or 5 do you need to go and get a clinician -- 6 MR. MARK SANDLER: Right. 7 DR. CHRISTOPHER MILROY: -- to talk about 8 potential illnesses that the child may have had to 9 account for that or has the child been deliberately 10 neglected? So I -- I -- there's no question in my mind 11 that the pathologist must case manage their case, but 12 against that is, you don't want to try and run the 13 police's case. 14 MR. MARK SANDLER: So, ju -- just 15 following up on that, because some good ideas are coming 16 out in the -- in -- in the course of the discussion as to 17 how -- how one might address some of these issues, but 18 just going back to one (1) of the issues that I raised 19 right at the outset. 20 Let's leave aside the accumulation of 21 information from the police, and we've -- we've talked 22 about ways in which one can ensure that that information 23 flows to you. Case managing and taking the initiative in 24 a way that's not incompatible with being an advocate is 25 one (1) of them. Case conferencing is another that

1 you've described. An active questioning and answering as 2 opposed to the mere pass of receipt of information is 3 another concept that's been talked about. 4 But let's assume that -- that it's the 5 Crown that wants the answers to certain questions from 6 his or her perspective as the case approaches. 7 Dr. Milroy, you heard what Dr. Chiasson 8 said about having to respond to some of these questions 9 on -- on the eve of preliminary inquiry or -- or trial. 10 How is that issue dealt with in -- in your jurisdiction? 11 Are there these exchanges where 12 supplementary opinions or responses to hypotheticals are 13 being put to you, and if so, are they done in writing and 14 are they responded to in writing? 15 DR. CHRISTOPHER MILROY: Yes, I insist 16 that they are -- anything is given to me in writing. And 17 it -- it may be in the early days if, for example, you 18 have a case -- you have interviews with admissions of 19 what has happened, I will say to the police, Well, you -- 20 if you want to me to answer whether that admission is 21 compatible with the pathology, you're going to have to 22 give me those -- and I always hate saying this -- those 23 interview transcripts -- because I don't like wading 24 through interview transcripts but we do -- and I'd say, 25 Provide me a case summary, which is the case as it is

1 being presented for the -- to go to Court. 2 We don't have preliminary hearings anymore 3 in England, or committals. They have been removed, so 4 the first time we ever give evidence will be in the -- 5 will be in the trial. 6 We very commonly meet with the trial 7 lawyers before -- some time before -- and they will often 8 say, We would like you to provide an additional statement 9 in this area just to cover everything, because everything 10 essentially has got to be in writing. 11 And we couldn't go into Court without 12 having conclusions in our reports; that -- we would just 13 be told that you're giving undisclosed evidence and this 14 is inadmissible, so there is a process of -- of putting 15 hypotheticals. 16 Not always, it has to be said; sometimes 17 the defence does spring things upon you in the witness 18 box. It's a different challenge, but... I had a 19 colleague who actually said, Well, I just can't answer 20 that. You'll have to let me break overnight to think 21 about it. 22 It was a big murder trial. And the Judge 23 said, Yes, I'll -- I'll allow that, for you to consider 24 it. And there -- there aren't many pathologists who are 25 brave enough, or expert witnesses, to say, I need time to

1 consider that. Can we stop and let me go away and think 2 about it? 3 MR. MARK SANDLER: That's the entirely 4 appropriate response -- 5 DR. CHRISTOPHER MILROY: But it is. 6 MR. MARK SANDLER: -- to a difficult 7 question. 8 DR. CHRISTOPHER MILROY: It is the 9 entirely appropriate -- 10 COMMISSIONER STEPHEN GOUDGE: It would 11 be, from your perspective, clearly the best practice. 12 DR. CHRISTOPHER MILROY: Yes, you 13 shouldn't do it on the hoof. If, you know, this was -- 14 which is what -- 15 COMMISSIONER STEPHEN GOUDGE: How about 16 on the fly? 17 DR. CHRISTOPHER MILROY: Well -- well, we 18 just don't. 19 20 CONTINUED BY MR. MARK SANDLER: 21 MR. MARK SANDLER: You'll have to modify 22 your idioms. That's a candidate -- 23 DR. CHRISTOPHER MILROY: I know -- I 24 know, I've been told, but that's -- but I've got to learn 25 to stop speaking English, but -- but I mean, it is -- it

1 is a rare event. There aren't many of us -- I mean I've 2 certainly had a paper given to me, Please consider this - 3 - this piece of literature, and I said, Well, I -- I have 4 not seen it before. I've got to have time to read it. 5 And the Judge said, Fine, you've got 6 fifteen (15) minutes, which was generous for him, but 7 that is the response, so you really -- what this all 8 boils down to is you need to have time to consider 9 hypotheticals to give your best evidence for the Court. 10 And if you're giving it, first off, when 11 you first consider it in the witness box, there is a 12 strong likelihood that you will not be giving the optimal 13 evidence. 14 MR. MARK SANDLER: And -- and I -- and I 15 take it what you're also saying is that there should be a 16 culture within the courtroom that -- that permits you to 17 have that opportunity to consider the hypotheticals in a 18 scientific way, in a reasoned way, and in a timely way, 19 together with any literature that's being put to you. 20 DR. CHRISTOPHER MILROY: Yeah, and it's 21 not -- I mean, I've got a number of cases where I've had 22 more than one (1) conference with the lawyers, you know, 23 the --in a very -- I have to say I think this is the most 24 prepared I've ever been in any -- the lawyers here have 25 been absolutely fantastic in their preparation. That

1 degree of detail is rare, it has to be said, but it does 2 happen occasionally. 3 MR. MARK SANDLER: Dr. Cordner...? 4 DR. STEPHEN CORDNER: Yes, I was struck 5 by Chris' -- Professor Milroy's comment about a colleague 6 who felt comfortable enough to actually ask for some time 7 to consider something. And I agree entirely that that 8 would be the mark of a very experienced expert witness. 9 There would be lots of experts who wouldn't feel that 10 that was something they could do in the -- in the heat of 11 a courtroom. 12 And that goes back, I think, to a really 13 important attribute or characteristic or cultural aspect 14 of -- of the system which is, I think traditionally 15 experts have acted too passively, generally speaking, in 16 the adversarial system, and so we haven't sort of acted 17 strongly enough in -- in defence of our own disciplines, 18 and we have just accepted the system or the structure 19 that -- passively that we've been put in. 20 So I just would like to make the point 21 that I think there is -- there is something in here about 22 -- we need to be a bit more active about making sure that 23 our disciplines are properly represented in the court, 24 not just answering the questions as they're put to us and 25 when they're put to us. I just -- not a big point, but

1 just something -- 2 COMMISSIONER STEPHEN GOUDGE: No, it's an 3 important -- 4 DR. STEPHEN CORDNER:. -- I thought I 5 should say. 6 COMMISSIONER STEPHEN GOUDGE: It's an 7 important thing for us to hear. 8 9 CONTINUED BY MR. MARK SANDLER: 10 MR. MARK SANDLER: All right. 11 DR. CHRISTOPHER MILROY: I'm just going 12 to say I once had a colleague who stayed in the witness 13 box at the end of his evidence, and the judge said, Yes, 14 what is it? And he said, Well, I took an oath to tell 15 the truth, the whole truth, and nothing but the truth, 16 and it hasn't come out yet, and I think I've got to add 17 one (1) thing to my evidence. He's an expert witness. 18 And again, that takes a bit of bravery as well. 19 MR. MARK SANDLER: Yeah. All right. So, 20 Dr. Pollanen, over to you for -- for a moment. One of 21 the other pieces of information that forensic 22 pathologists can -- can consider in forming his or her 23 opinion is that which is acquired at the site. 24 Is there a culture in Ontario generally of 25 going to the site on the part of the forensic

1 pathologist, and can we make any improvements in that 2 regard? 3 MR. MICHAEL POLLANEN: There is -- there 4 is a variable culture about going to the scene. For 5 example, in Hamilton it's -- it's sort of a classical 6 practice that's been going for many years; in other parts 7 of the Province, particularly in Toronto, a very poorly 8 developed practice. 9 And I think this basically comes down to 10 two (2) things. The first is that the whole culture of 11 forensic pathology has been, in Ontario, that the 12 pathologist is in the autopsy room and, you know, is -- 13 that's where they do their -- the majority of their work, 14 and then occasionally they'll go to court. That's been 15 sort of the way things have -- have flown through the 16 system. 17 And the -- this is in contrast to a 18 forensic pathology service with the discipline of 19 forensic pathology defining its own priorities about 20 what's important, what -- what constitutes effective 21 engagement of the forensic pathologist in a case. And 22 it's very clear that the effective engagement of the 23 forensic pathologist begins at the beginning, which is 24 the scene. 25 So the -- the capacity or the philosophy

1 for forensic pathology service delivery has to include 2 the forensic pathology service identifying its own 3 priorities about what's important; and that includes a 4 case management attitude that extends from the scene to 5 the courtroom, as opposed to saying, you know, we're 6 empowered by a warrant for autopsy, the autopsy is 7 something that happens in the autopsy room, and then sort 8 of viewing our -- our job in that way. 9 So I think that -- that that's something 10 that will evolve over time in Ontario, and particularly 11 in Toronto. The -- and there is a practical sort of 12 corollary to that, and that has been that we're a fee- 13 for-service -- service provision system for the most 14 part, and that means that if you're going to pay a 15 pathologist to do -- to do an autopsy and they're fee- 16 for-service pathologists, you have to pay them to go to 17 the scene. 18 And, you know, without identifying that as 19 a priority and having funds to be disbursed in priority 20 areas, you can't really provide that compensation or the 21 financial incentive to go to the scene, so that's 22 slightly different from -- from full-time employees 23 situation, like the three (3) FTEs in the -- in the 24 Toronto Unit. 25 We, you know, frequently go to scenes; not

1 as frequently as, for example, they -- they do in 2 Melbourne, but, you know, I frequently do go to scenes 3 and -- and the other pathologists have been to scenes, as 4 well. 5 COMMISSIONER STEPHEN GOUDGE: All right. 6 Could you write a best practice for when it was best to 7 go to the scene, Dr. Pollanen? I mean, would you say -- 8 I mean take hypo -- a possibility, all criminally 9 suspicious pediatric deaths. 10 DR. MICHAEL POLLANEN: You -- you -- 11 COMMISSIONER STEPHEN GOUDGE: Is that 12 too -- 13 DR. MICHAEL POLLANEN: There is. 14 COMMISSIONER STEPHEN GOUDGE: Is that too 15 bold a rule or --- 16 DR. MICHAEL POLLANEN: There is actually 17 a protocol in existence. It's -- it's a memo that was 18 sent out a few years back about what type of scenes we 19 would like to go to. 20 It was -- it was, essentially, for 21 Toronto -- 22 COMMISSIONER STEPHEN GOUDGE: Right. 23 DR. MICHAEL POLLANEN: -- because of the 24 difficulties in providing service across the -- the 25 Province for scene attendance, but Toronto is something

1 that I think we could -- we could accomplish. 2 COMMISSIONER STEPHEN GOUDGE: Right. 3 DR. MICHAEL POLLANEN: And -- and I must 4 admit, the -- there has been a great chorus of support in 5 the policing community for that. It was a little bit of 6 a new thing for them initially -- 7 COMMISSIONER STEPHEN GOUDGE: Right. 8 DR. MICHAEL POLLANEN: -- but there's 9 been great support for that, and that's largely because 10 it, from their point of view, provides expert engagement 11 very early on in the process. You have to appreciate 12 that, you know, it's 2 o'clock in the morning. 13 The police are -- are maximally engaged in 14 an extremely difficult task. They want as much front-end 15 loading help as they can get, so the pathologist showing 16 interest, engagement at the scene, giving advice, making 17 observations, you know, contributes a lot to the -- to 18 the development of good working relationships, and 19 collection of evidence, and all these positive things. 20 COMMISSIONER STEPHEN GOUDGE: Is there 21 any duplication with the site visit of the coroner? 22 DR. MICHAEL POLLANEN: Well, it's for 23 different purposes, essentially. The -- the pathologist 24 -- the best way to view a pathologist's attendance at the 25 scene is -- is the -- it's the starting point of the

1 autopsy. 2 I think I talked, in the first week, about 3 the five -- steps -- 4 COMMISSIONER STEPHEN GOUDGE: Right. 5 DR. MICHAEL POLLANEN: -- of the 6 medicolegal autopsy. 7 COMMISSIONER STEPHEN GOUDGE: Right. 8 DR. MICHAEL POLLANEN: The first one (1) 9 is the scene, so -- so many people go to the scene and 10 they do various things at the scene. A coroner has a 11 role at the scene, but when the pathologist goes to the 12 scene, it's the start of the autopsy. 13 COMMISSIONER STEPHEN GOUDGE: Right. 14 15 CONTINUED BY MR. MARK SANDLER: 16 MR. MARK SANDLER: All right. Dr. 17 Cordner, Dr. Pollanen made reference to the practice in 18 Melbourne. What is the practice about site attendances? 19 DR. STEPHEN CORDNER: Well, it's -- it 20 works very well, in fact. The -- any case that the 21 homicide squad is involved with, which is essentially all 22 homicides plus some highly suspicious deaths, more or 23 less within an hour of the homicide squad becoming 24 engaged in a matter, there will be a conversation between 25 the chief homicide squad investigator and the forensic

1 pathologist. 2 That will be a conversation about what's 3 happening, logistics, where this incident is, who's going 4 there, what time they're going to get there, and what 5 sort of a contribution do you think the pathologist could 6 make, and -- and I would think in 80 to 90 percent of 7 cases the pathologist will attend the scene. 8 We probably don't attend as often as we 9 should when -- and as is often the case, I think, with 10 children, the -- and babies. There's often -- the 11 deceased is no longer at the scene, having been picked up 12 by ambulance and taken to hospital is usually the 13 circumstance, so -- 14 COMMISSIONER STEPHEN GOUDGE: Does that 15 dramatically diminish on what the pathologist can learn 16 at the scene, as -- 17 DR. STEPHEN CORDNER: Well, I think it -- 18 COMMISSIONER STEPHEN GOUDGE: -- if one 19 could say a rule of thumb for that? 20 DR. STEPHEN CORDNER: It does. It does a 21 little, but when I say, we probably should attend more 22 often, even when the body is not there as I'm saying, 23 there is still a very large amount to learn -- 24 COMMISSIONER STEPHEN GOUDGE: Right. 25 DR. STEPHEN CORDNER: -- even in the

1 absence of the body, provided the scene's in, you know, 2 basically the same -- 3 COMMISSIONER STEPHEN GOUDGE: Right. 4 DR. STEPHEN CORDNER: -- situation that 5 it was when whatever event occurred. And as Dr. Pollanen 6 said, that's when the autopsy starts, and, in fact, the 7 autopsy might actually start at the scene. 8 There may be swabs. You may actually 9 think it's a good idea to preserve the clothing by 10 removing it -- removing them at the -- 11 MR. MARK SANDLER: Right at the scene. 12 DR. STEPHEN CORDNER: -- the scene. 13 That's increasingly the case in these DNA sensitive days. 14 You may take observations. You may take swabs, you know, 15 to preserve in the best possible way, possible biological 16 specimens and samples. 17 You may need to do that if, for example, 18 you thought it was important to take a -- some sort of 19 temperature with -- I personally hardly ever do, but I 20 mean that -- so it is more than just a passing comment 21 that the autopsy might start; not, obviously incisions. 22 But the -- what -- what a lot of people, I 23 think, don't sufficiently appreciate is that the whole 24 exercise, the whole point of the autopsy, apart from 25 producing a cause of death, is to try and recreate what

1 happened back at the scene. 2 And so if the pathologist is lacking in 3 some three (3) dimensional concept of what the scene is 4 like, the pathologist is, generally speaking, hampered in 5 being able to put together the observations made at the 6 autopsy: How might that to happen to him? Could have 7 hit their head on the corner of that table, or on the 8 floor or the wall, and there was a blood smear there, you 9 know -- not a blood smear expert, not a blood splatter 10 expert. 11 But you know you've got enough information 12 about the confirmation of the scene and the objects 13 within it and other aspects of it to be -- for the whole 14 exercise to be much more valuable. 15 16 CONTINUED BY MR. MARK SANDLER: 17 MR. MARK SANDLER: Okay. Dr. Milroy, if 18 we'd focus on pediatric cases, what, in your view, is the 19 value, if anything, of the site attendance, and what is 20 the practice in England and Wales? 21 DR. CHRISTOPHER MILROY: Well, the 22 practice is variable. It's certainly -- I -- I have in 23 the last -- well, the beginning of the -- of the year, 24 did precisely what Stephen has just described in a young 25 person found dead.

1 We started the process of taking swabs, 2 looking at clothing. We very regularly do that now 3 because of blood pattern analysis. If you move the body, 4 it changes it, so -- and, in fact, in that case, I, 5 having looked at this, and the police were sort of 6 saying, Oh, do you need, you know, do you need to take 7 the body to the morgue? I said, No, we've got, you know, 8 plenty of time. 9 There's other things that you need to do. 10 In fact, there was a fingerprint possibly on -- on the 11 body that we spent twenty-four (24) hours trying to 12 enhance at the scene, because of the potential for losing 13 it if we had moved the body. 14 So you -- the scene can be absolutely 15 vital. Now with pediatric deaths, it is often different 16 because the body has been taken to hospital. The scene 17 may no longer exist if -- if somebody has been in 18 hospital five (5) or six (6) days. 19 But equally, there may be, if it's -- you 20 know, there's a question of, is it a short fall? It -- 21 it would certainly be best practice to go and look at 22 where the fall is alleged to have happened. 23 I can't say that that's always the case. 24 There is also -- I mean, in the protocols for the 25 investigation of Sudden Infant Death, there is a proposal

1 that a consultant pediatrician goes and looks at the -- 2 the death scene. 3 I personally think that that's wrong, 4 because these people have no training in scene 5 investigation whatsoever, and it actually would be more 6 appropriate if the pathologist went. 7 And what some surveys have shown, for 8 example, taking a doll and asking the parent to say where 9 the child was found in the cot, you often find that -- 10 crib, I give you the North American term -- that, in 11 fact, you've probably -- you may well have an asphyxial 12 death, inverted commas -- an airway obstruction death 13 because of the position that the child was in, that 14 wouldn't have been evident from the post-mortem 15 examination, and wouldn't have been evident if a 16 reconstruction of the scene hadn't taken place. 17 So although we don't always do it, I think 18 that best practice would dictate that where you have a 19 young child dead, and it's either a crib death or it's 20 more suspicious than that, a scene examination could well 21 give you the answer that you will not find just from the 22 post-mortem examination itself. 23 MR. MARK SANDLER: All right. Dr. 24 Pollanen, I know you wanted to add something? 25 DR. MICHAEL POLLANEN: Well just sort of

1 some local context with my experience in this very 2 important issue, this new dimension that's been mentioned 3 here about scene attendance, which is evidence 4 collection. 5 This is extremely important, and in the 6 past, there's been this view that the body was virginal 7 territory relative to police involvement at the scene; 8 that it needed to be put into a body bag, whisked away to 9 the morgue, and the pathologist would deal with all the 10 things there. 11 And that is, in fact, we now know, in the 12 post-DNA age, the incorrect approach, because what 13 happens when you put a body in the fridge, everything 14 condenses in the body bag. You may lose very important 15 material on the surface of the body. 16 So, for example, I can just -- I can 17 recall a fairly recent case where somebody is bound with 18 duct tape and, really, the -- one of the most critical 19 issues in that circumstance is whether or not there -- 20 there's a fingerprint on the duct -- duct tape. 21 Well, you wouldn't put that person in a -- 22 in a body bag and remove them to the mortuary, because 23 you're losing your opportunity to get the best evidence. 24 So you remove the duct tape at the scene. So the 25 pathologist needs to be there, see how the duct tape is

1 lying, collaborate with the police in -- in taking the 2 duct tape off in a fashion that optimally preserves it 3 for fingerprint analysis, or DNA analysis, if the person 4 has torn it with their teeth, as it were. 5 These are all things that need to be done 6 at the scene in the 21st century, and that's where the 7 pathologist needs to engage the police officer. 8 Clothing is an extremely important issue 9 sometimes. I remember a multiple death scene in a -- in 10 a hotel; three (3) dead people, and the question was 11 who's the assailant, if there's -- if there's an 12 assailant among them was, essentially, a trace evidence 13 question. Well, that's not going to be adjudicated well 14 by shipping everybody off to the morgue. It's going to 15 be collecting all the trace -- individuating trace 16 evidence at the scene, which takes -- means taking the 17 clothing off there, et cetera. 18 So there are all these new dimensions. 19 And I have to tell you that the police, particularly the 20 -- the police in Toronto and -- and the OPP, have very 21 open minds to this type of development of new techniques 22 in scene management. And -- and the forensic pathologist 23 can form a very effective partnership in dealing with 24 those issues at the scene because the police have a very 25 progressive view of evidence collection.

1 And this -- just to let you know, we've 2 talked about how the scene is sort of the physical 3 nucleus of the forensic evidence and then you get 4 radiating parts from it. You have the autopsy, which I 5 sometimes explain as just sort of a special extension of 6 the scene investigation done by a forensic pathologist. 7 Then you get the forensic biologist that may be involved 8 from some elements of the scene, and all the radiating 9 lines that come out of it. That's often a very 10 profitable way of looking at it. 11 And that also means that, in effective 12 scene management, other people may come to the scene; 13 blood spatter experts, DNA experts, et cetera. 14 MR. MARK SANDLER: Okay. Dr. Chiasson, I 15 mean, the case is being made for the value of -- of 16 attending the scene, but we know that, for example, your 17 unit will receive cases that originate in Timmins and 18 various locations that are quite remote. 19 How does one reconcile what we've just 20 heard with the practical realities of the geographic 21 areas that -- that you're servicing? 22 DR. DAVID CHIASSON: Well, I think just 23 to step back a little bit, you know, we're talking about 24 ideal practices, and ideal practices requires ideal 25 resources. And -- and that, I think, needs to be -- I

1 know it's self-evident, but needs to be stated again and 2 again. 3 And just to go back to the late '90s, when 4 I had a full-time staff at the Coroner's Office, one of 5 the initiatives that we were working on at that time was, 6 in fact, to have these full-time staff pathologists 7 attend scenes on a regular basis. And I think we recall 8 that that never ensued because we lost -- in that case, 9 the human resources. 10 In terms of issues, yeah, it's time- 11 consuming to go to a scene, and scenes are often in the 12 middle of the night. And those of us in pathology, I 13 mean if we really wanted to stay up all night, we would 14 have gone into obstetrics. 15 I mean, you know, and -- and yes, it's 16 important, and we -- we have to be prepared to do that, 17 but we also have to be prepared to do that in the 18 context, okay, well the next day -- if you're -- if 19 you're gone to the scene in the middle of the night, and 20 it can take a number of hours -- and this is even in -- 21 in the city of Toronto -- obviously if you're talking 22 about a scene outside of the city, you're adding time and 23 -- time. 24 So you're gonna -- you're gonna be on- 25 call, if you will, and working -- the next day you do the

1 autopsy, you know, there's the -- especially those of us 2 that are -- are getting on in years, sleep remains an 3 important issue. So at some point you're going to have 4 to stop and break, and that means somebody else needs to 5 take up the slack. 6 So it -- it keeps coming back, and back, 7 and back, to the importance of having proper human 8 resources to -- to carry out this thing. 9 And -- and yes, obviously if you've -- if 10 you've got an important scene in Timmins, I would -- I 11 would welcome -- I would -- I would welcome to have the 12 opportunity, to have the time, to have the capability to 13 say, Okay, we've got an interesting scene, hop -- hop on 14 a plane and -- and go to Timmins. That would -- that -- 15 you know, as a forensic pathologist, that -- that -- 16 there's interest there, it -- it's a -- it would broaden 17 my practice, which I'll admit is -- doesn't include very 18 much scene examination. 19 In the practical world that we're now 20 living in, one of the big, I think, advances has been 21 digital photography. And so that now if there is a 22 sudden infant death in -- in Timmins, the police are now 23 coming down all the way to Toronto with the body, and 24 they come with their digital scene. 25 And the one (1) thing, and I think it has

1 really been a progressive step within the coroner's 2 system, and police, is that the investigation is -- you 3 get scene photos; you see what's inside the fridge of 4 these individuals, as far as looking for evidence of baby 5 food; they go through the entire house; you got scen -- 6 views of the bathroom. 7 I agree, it's not the same thing as being 8 there, but it's -- it's certainly a lot better than not 9 having any context, any visual context of what's going 10 on. So I think digital photography and digital -- has 11 been very important. 12 The other thing, and I think looking at 13 the pediatric point of view, is that coroners in -- in 14 terms of adult homicides, have tended, over the years, to 15 play a relatively limited role in the scene evaluation. 16 I think -- I think that's been a -- stated in fact by the 17 coroners; is that usually when it was a homicide, that 18 the coroner's job would be to sort of pronounce death, 19 and -- and stay out of the way. 20 I'm -- I'm sure some of my coroner 21 colleagues are -- are ready to strangle me for saying it, 22 but I think the reality of the situation is they -- they 23 weren't a very proactive force in homicide cases. 24 In the pediatric cases, what I sense is 25 that because they're not homicides from the word go, and

1 because a -- a system and protocol has -- has evolved, 2 not only as far as the responsibilities of the police at 3 the scene, but also the responsibilities of the -- of the 4 medical coroner, is that they do take an active role in 5 terms of evaluation of the scene. So again, not as good 6 as being there, but at least you have a set of -- of 7 medical, death investigative eyes in place to -- to help 8 evaluate. 9 So having said all that, I mean, added 10 value for the pathologist, the forensic pathologist to 11 attend death scenes in infants and -- and small children, 12 it's -- I think in a select number of cases that that's 13 true. I think though as -- as -- I don't feel overly 14 handicapped in the vast majority of cases that I do where 15 I don't attend the scene. 16 MR. MARK SANDLER: All right. One (1) 17 last question in this area, and I'll direct it to Dr 18 Pollanen. Is there a -- is there a substitute for those 19 circumstances in which you can't attend the scene for -- 20 that -- that doesn't currently exist? 21 For example, is there some opening for the 22 police at the scene, to reach a forensic pathologist to 23 get some advice in how they might conduct their work 24 prior to their attending at the morgue? 25 DR. MICHAEL POLLANEN: Yes.

1 MR. MARK SANDLER: Do you see that as a 2 possible alternative? 3 DR. MICHAEL POLLANEN: Yes. And -- and 4 there are different forms of that that are in variable 5 practice. Sometimes it's a simple conversation over the 6 telephone -- can be very useful. And in fact in many 7 circumstances, that's the -- the best input the 8 pathologist can give, as opposed to going to the scene, 9 because of digital photography. 10 Digital photography is fantastic. You 11 know, it clearly is a very good adjunct to the first step 12 of the post-mortem. 13 So telephone conversation -- what we have 14 occasionally now, which is very helpful, is the police 15 will go to the scene, obtain some digital images, and 16 then email them, so we'll actually get a view of the 17 scene in the first instance, and then we can discuss with 18 the officers, you know, what type of interaction is -- is 19 best. 20 You know, for example, if it's a scene up 21 north, you know, we can talk with the investigators based 22 upon looking at some digital photograph. Now, the police 23 are selecting what they're sending you, so there is 24 always sort of whether or not the -- the information is 25 representative, but for the most part, the police are

1 very good at, you know, assessing the situation and 2 providing that information. 3 MR. MARK SANDLER: Okay. Let's move from 4 there to the autopsy -- 5 DR. DAVID CHIASSON: Can I -- 6 MR. MARK SANDLER: Sorry. 7 DR. DAVID CHIASSON: Can I just add one 8 (1) thing that's important, Mr. Sandler, and that's the 9 concept that, in fact -- and this particularly applies to 10 pediatric autopsies -- that, in fact, you do the autopsy 11 first and then you attend the scene because a lot of 12 times with the sudden infant deaths, they're -- they 13 don't come with a big -- you know, this is a real 14 suspicious death -- 15 COMMISSIONER STEPHEN GOUDGE: Right. 16 DR. DAVID CHIASSON: -- as opposed to a 17 crib/cot death setting. So, because of that, unlike most 18 homicides -- most homicides are -- are much more defined 19 from the word go. Because the pediatric cases aren't 20 defined, it isn't -- it's often not until you do the 21 autopsy they say, Hey, we've got a problem here. 22 In the vast majority of cases, my 23 experience, is the police do secure the scene until after 24 the post-mortem examination, and if there is -- something 25 comes up, then -- then there probably -- it's -- it's

1 going to be added value and -- 2 COMMISSIONER STEPHEN GOUDGE: Right. 3 DR. DAVID CHIASSON: -- relatively 4 efficient use of the added value in those settings. 5 MR. MARK SANDLER: Okay. 6 COMMISSIONER STEPHEN GOUDGE: Let me just 7 go back for a moment, sorry, Mr. Sandler, to the intake 8 information that we began this morning talking about. Is 9 the best practice -- I take all of you to say the best 10 practice is to have as much in writing as possible. 11 Is that a fair generalization? 12 DR. CHRISTOPHER MILROY: Well, you -- you 13 write it down. 14 COMMISSIONER STEPHEN GOUDGE: Yes. 15 DR. CHRISTOPHER MILROY: Yes, but -- but 16 I think what -- what was being proposed was the police 17 come with a -- with a two (2) paragraph -- 18 COMMISSIONER STEPHEN GOUDGE: Right. 19 DR. CHRISTOPHER MILROY: That is 20 insufficient. But I always write down what the police 21 tell me, and also when I interact with them with the 22 questions -- 23 COMMISSIONER STEPHEN GOUDGE: Thereafter. 24 DR. CHRISTOPHER MILROY: -- thereafter. 25 Well, if I say -- they -- they say, All right, this is

1 the situation, you know, we've got a man on the scene 2 stabbed in the street, and -- and I will then ask, Well, 3 you know, could he have fallen on something, what was his 4 known medical history, and I'm -- I am adding things. 5 COMMISSIONER STEPHEN GOUDGE: So a better 6 way to put it, the obliga -- the best practice is that 7 it's the pathologist's role to ensure that there's 8 memorializing of the intake information. 9 DR. CHRISTOPHER MILROY: That's my 10 opinion. 11 DR. STEPHEN CORDNER: Yes, and it 12 probably doesn't happen as well as it should. 13 DR. DAVID CHIASSON: Well, and I -- I 14 think the problem is is, you know, how much writing is 15 the pathologist going to be doing. I know Dr. Pollanen 16 likes to dictate everything. 17 I'm a note taker, and unlike lawyers 18 that's been -- seems to be all their time writing notes 19 on everything, a pathologist, I would just assume pay 20 attention to the speaker and getting the information and 21 doing the -- and I think this concept of history taking, 22 it's not only what the police tell you, it's the 23 questions you ask; that I think is a -- is a very real 24 contrast and I think most of us certainly would do that. 25 How much of that note taking, though, and

1 how much of it actually gets into the report; that, I 2 think is -- is going to variable practice. 3 COMMISSIONER STEPHEN GOUDGE: What's the 4 best practice? 5 DR. DAVID CHIASSON: Well, the best 6 practice -- I mean again, I -- I keep coming back to 7 what's practical. I -- I think having a long, you know - 8 - everything the police tell me -- the vast majority of 9 what the police tell me is not going -- it's going to be 10 filtered out, so I -- I think, yes, you need to hone in 11 on -- on what, in most cases, is the relatively few key 12 points about the information. 13 COMMISSIONER STEPHEN GOUDGE: Filtering 14 out the irrelevance. 15 DR. DAVID CHIASSON: Filtering out the 16 vast majority of what you hear because the job -- 17 COMMISSIONER STEPHEN GOUDGE: Would you 18 all do that or would you all -- or would others of you 19 tend to write down everything and then do filtering? 20 DR. CHRISTOPHER MILROY: I'll list two 21 (2) things: One (1) is, yes, we filter out what -- 22 what's the product left in my reports normally? It's 23 about half a page to three quarters (3/4s) of a page. 24 COMMISSIONER STEPHEN GOUDGE: Of your 25 reports come from notes that you've taken at the time of

1 the history -- 2 DR. CHRISTOPHER MILROY: Yeah. 3 COMMISSIONER STEPHEN GOUDGE: -- taking. 4 DR. CHRISTOPHER MILROY: Yeah, I mean -- 5 COMMISSIONER STEPHEN GOUDGE: Are those 6 notes recording as fully as you can or do you filter out 7 that stage? 8 DR. CHRISTOPHER MILROY: You can filter a 9 little because they may -- they may say something that 10 you feel that shouldn't necessarily go in the report at 11 that stage. 12 If, for example, they -- they say 13 something -- well, you know, if they put some hearsay, 14 We've got some intelligence that he's a child abuser -- 15 COMMISSIONER STEPHEN GOUDGE: Right. 16 DR. CHRISTOPHER MILROY: -- I'm going to 17 probably filter that out because that's -- it's very 18 hearsay evidence and they said, Well, it's on our 19 intelligence database, but we don't have any -- any 20 positive proof of it. He's not convicted of anything. 21 COMMISSIONER STEPHEN GOUDGE: So you 22 wouldn't put that even your notes, let alone in your 23 report. 24 DR. CHRISTOPHER MILROY: I -- I might put 25 it in my notes, but I almost certainly would leave it out

1 of my report. 2 COMMISSIONER STEPHEN GOUDGE: Sounds like 3 there's a very best practice? What do you say, Dr. 4 Cordner? 5 DR. STEPHEN CORDNER: Well, because 6 it's -- 7 DR. CHRISTOPHER MILROY: But my notes 8 just as they are of course discloseable. 9 COMMISSIONER STEPHEN GOUDGE: Sure. I 10 mean that -- 11 DR. STEPHEN CORDNER: That's important. 12 I mean, I think all of us, anything we've got is kept in 13 the files, so there's no question that I don't think any 14 of us would ever throw any bit of paper upon which is 15 written something related to the case. So that's, I 16 would have thought, a fundamental. 17 But for us, we're rung up within an hour. 18 We're on the way to scene. We meet -- we meet the police 19 at the scene. Things are developing around us -- 20 COMMISSIONER STEPHEN GOUDGE: Right. 21 DR. STEPHEN CORDNER: -- as -- as they 22 will, so there's not sort of one (1) occasion where -- 23 sort of a -- 24 COMMISSIONER STEPHEN GOUDGE: It's a 25 dynamic process?

1 DR. STEPHEN CORDNER: Yes, it's a dynamic 2 process. So perhaps there are two (2) elements, two (2) 3 points, where a sort of a summary position is best 4 provided. One (1) is before you're actually into the 5 scene. So you've arrived at the scene and by then 6 usually some hours have passed and there is some sort of 7 story, so that's a time when a coherent account of the 8 situation as it appears to be -- 9 DR. CHRISTOPHER MILROY: As it's -- 10 DR. STEPHEN CORDNER: -- is provided and 11 -- and should be properly accounted for. And the other 12 time is by the time the autopsy starts, things will have 13 developed a bit further and there should be, I believe, 14 another more or less formal interview, conversation, 15 between the relevant investigator -- 16 COMMISSIONER STEPHEN GOUDGE: And what 17 would you memorialize out of that? 18 DR. STEPHEN CORDNER: Well, I -- I have 19 to say that my practice isn't up to scratch and I should 20 memorialize more than I do. 21 COMMISSIONER STEPHEN GOUDGE: All right. 22 What about you, Dr. Pollanen? 23 DR. MICHAEL POLLANEN: Well, I think -- I 24 think we're sort of a little bit looking at two (2) 25 different objectives here. We're looking at what is the

1 medical objective -- 2 COMMISSIONER STEPHEN GOUDGE: Right. 3 DR. MICHAEL POLLANEN: -- for recording 4 information -- 5 COMMISSIONER STEPHEN GOUDGE: Right. 6 DR. MICHAEL POLLANEN: -- to make your 7 ultimate conclusion independently reviewable and 8 supported in context. 9 COMMISSIONER STEPHEN GOUDGE: Right. 10 DR. MICHAEL POLLANEN: That's -- that's 11 what our objective is. 12 COMMISSIONER STEPHEN GOUDGE: Right. 13 DR. MICHAEL POLLANEN: The other 14 objective that's -- I sort of detect in -- in the way the 15 questions are coming is, can we -- can we find some 16 record of what the police might be biassing you with or 17 telling you about? 18 MARK SANDLER: Transparency. 19 COMMISSIONER STEPHEN GOUDGE: Mm-hm. I 20 mean we've obviously seen examples in the evidence -- 21 DR. MICHAEL POLLANEN: Right. 22 COMMISSIONER STEPHEN GOUDGE: -- that 23 we've taken over the last ten (10) weeks of note taking; 24 that seems to have what one might on a superficial level 25 say extraneous material provided by the police that does

1 get into the notes and then the issue was there a skew as 2 a result arising? 3 DR. MICHAEL POLLANEN: Right. And I 4 think -- I think the best way of approaching that from my 5 point of view is, you know, if you're -- if you're a 6 sufficiently trained forensic pathologist and you are 7 practising in an adequate, evidence-based framework then 8 what we put in our pre-autopsy information or the history 9 is what we rely on to make our opinions. 10 I think that has to be the answer. It 11 cannot be -- 12 COMMISSIONER STEPHEN GOUDGE: So your 13 notes that precede the preparation of your report would 14 be only that? 15 DR. MICHAEL POLLANEN: Correct. 16 COMMISSIONER STEPHEN GOUDGE: So you 17 would screen and never record information that you 18 determined initially was not going to be important for 19 the preparation of your opinion? 20 DR. MICHAEL POLLANEN: Well, my practice 21 is if I screen it out, it's not relevant to -- 22 COMMISSIONER STEPHEN GOUDGE: Right. 23 DR. MICHAEL POLLANEN: -- my task of 24 being a pathologist functioning in an evidence-based 25 framework seeking the truth.

1 COMMISSIONER STEPHEN GOUDGE: Okay. 2 3 CONTINUED BY MR. MARK SANDLER: 4 MR. MARK SANDLER: Well, just stopping 5 there for a moment because -- because I suggest there 6 might be some confusion around this issue that -- that 7 perhaps we should address. 8 I mean there's two (2) different functions 9 that are taking place in this sense as well, is there 10 not? Police are giving the information at the outset. 11 You haven't conducted the autopsy yet. You may not know 12 which information there will ultimately inform your 13 opinion, so you might be far more inclusive in taking 14 down information from the police on the initial intake 15 than you will be in what makes its way into the report, 16 because what I hear you saying is that the report's 17 content should be informed by what you regard as relevant 18 to the formation of your opinion. 19 DR. MICHAEL POLLANEN: Right. And -- 20 MR. MARK SANDLER: Isn't that a fair 21 dichotomy? Shouldn't there be a difference between the 22 notes that you take on intake and the extent to which 23 they ultimately make their way into the report? 24 DR. MICHAEL POLLANEN: I understand your 25 point. I think we're -- it's very abstract. You know,

1 we're being very abstract here. I think that for the 2 most part pathologists who are functioning in the manner 3 that we're describing on this panel pretty much know what 4 needs to be filtered out at the beginning. 5 You know, I think that that's part of 6 being a forensic pathologist. That's part of what -- you 7 know, that's -- we're imbedded in that -- in that 8 approach. 9 But, you're right, I mean there mig -- 10 there might be bits of information that do become 11 relevant at some point in time to re -- to your opinion 12 that you would add if you -- if you got it later. 13 My -- my practice has been lately, and you 14 know, frankly, this is evolving for me over the course of 15 -- over time, in recent time, too -- 16 MR. MARK SANDLER: Two more roundtables, 17 it may evolve again. 18 DR. MICHAEL POLLANEN: Yes, precisely. I 19 -- I dictate -- essentially we're go -- we're going 20 through, and the police are telling me and we're asking 21 questions, and as the information flows, I dictate a 22 paragraph. We stop, we go through some more, I dictate 23 another paragraph; that's -- that's mechanically how it's 24 going. 25 MR. MARK SANDLER: But is all of that

1 going to make its way into your ultimate report? 2 DR. MICHAEL POLLANEN: Well, if it's 3 dictated, it's in my report. 4 MR. MARK SANDLER: Okay. And -- and I 5 think I have a sense that Dr. Chiasson takes a different 6 approach, am I right? 7 DR. DAVID CHIASSON: Yes. And I guess 8 I'm not evolving as rapidly or as -- as Dr. Pollanen -- 9 it may be an age thing -- but I think it's very important 10 that the information be gathered and -- and noted in your 11 notes. 12 But I think going into the report, because 13 as -- as you've indicated, I think, very clearly, is that 14 going into a PM, there's all sorts of information that 15 may well be very irrelevant once you do the autopsy and 16 find out he had a heart attack and has ruptured his -- 17 his myocardium, and it could be a suspicious death 18 beforehand. 19 So all of this information, I think you 20 should take it in, but I -- pri -- personally, I don't 21 incorporate a pre-autopsy summary of -- of circumstantial 22 information. I have, in -- in my summary part of the 23 report, a part that addresses circumstantial information. 24 Some of it may have been pre-autopsy 25 information. Some of it comes from the coroner's

1 warrant. Some of it it comes in the form of a formal 2 police report that's been provided. And I take what I 3 think is important and relevant to my -- eventually 4 addressing the issue of cause of death, and -- and that's 5 -- that was my approach and -- and remains my -- my 6 approach. 7 And I -- I think that by putting in too 8 much information, certainly in the report of a pre- 9 autopsy nature, I -- I think it's time consuming, and I - 10 - I don't know that it adds anything, and I think could 11 cause a lot of confusion because the information is going 12 to -- in all likelihood, in not many cases, going to 13 change, so then you have some information here, then 14 you've got to later on in your report say, Okay, well, 15 this now -- information has now changed. 16 And all of this information changing or 17 not changing may still, you know, be irrelevant to what 18 the ultimate job is in terms of arriving at that cause of 19 death conclusion. 20 COMMISSIONER STEPHEN GOUDGE: I hear you 21 all saying, although it results in different degrees of 22 full recording of intake information, the intake 23 information I record in my notes excludes information 24 that I am given that I can form a judgment on in the 25 beginning will not be the basis for my conclusion.

1 DR. STEPHEN CORDNER: No, well, I -- I 2 mean, I will write down more or less a summary of what 3 I'm told without making any judgment that -- 4 COMMISSIONER STEPHEN GOUDGE: So you 5 would write down information that you would have a fairly 6 good sense would be part. 7 DR. STEPHEN CORDNER: Yes. 8 COMMISSIONER STEPHEN GOUDGE: Well, then 9 I wasn't right. 10 DR. STEPHEN CORDNER: Well, I -- 11 COMMISSIONER STEPHEN GOUDGE: Because I 12 mean there are the two (2) objectives. There is the 13 objective of recording information that you can then put 14 into your thought process to produce your opinion, and 15 the objective of recording everything, so that there is 16 complete and utter transparency about what you've been 17 told so that it can be tested against the proposition, 18 Were you told anything that skewed your investigation 19 direction. 20 DR. MICHAEL POLLANEN: Well, maybe the 21 answer to that is providing -- doing both. In other 22 words, the pathologist providing a filtered view of -- of 23 what information is required for their conclusions and 24 the police providing some written document at the outset. 25 That -- that is essentially documenting in an unfiltered

1 form all the information that's coming to the pathologist 2 and is a discloseable document. 3 4 CONTINUED BY MR. MARK SANDLER: 5 MR. MARK SANDLER: All right. 6 DR. CHRISTOPHER MILROY: I have to say, 7 I've never been challenged on the history and we've 8 always had a history in our -- 9 COMMISSIONER STEPHEN GOUDGE: Well, we've 10 had a number of instances -- 11 DR. CHRISTOPHER MILROY: Yeah. 12 COMMISSIONER STEPHEN GOUDGE: -- Dr. 13 Milroy, where there were things in the notes taken on 14 intake which then create these flags, did this produce 15 a -- 16 DR. CHRISTOPHER MILROY: Yeah. 17 COMMISSIONER STEPHEN GOUDGE: -- was this 18 a directional impetus for the pathologist's 19 investigation. 20 DR. CHRISTOPHER MILROY: Well, I fully 21 understand that, and of course, I'm aware of one (1) case 22 where an issue of when a piece of information was learned 23 that was fundamental to the -- to the opinions given. 24 And if -- what I was going to say was if I get a piece of 25 additional information after the post-mortem, then I add

1 that in as additional information given on whatever date 2 it was, but before the completion of my report. 3 So I -- I do think -- I think you have to 4 put something in, because otherwise there -- there is no 5 context in which -- 6 COMMISSIONER STEPHEN GOUDGE: Right. 7 DR. CHRISTOPHER MILROY: -- you're -- in 8 which you're doing the examination. 9 COMMISSIONER STEPHEN GOUDGE: Right. 10 DR. MICHAEL POLLANEN: Just one (1) point 11 on this, because we're sort of getting long on the tooth 12 here, but, I think, David has made a very good point in 13 all of this too, and that is that the report actually has 14 to be finished at some point in time. 15 COMMISSIONER STEPHEN GOUDGE: Right. 16 DR. MICHAEL POLLANEN: Like, I mean, we 17 do actually have to produce a product, and this is a lot 18 of -- of time and effort, and if we -- if we increase and 19 we do all -- all the things that we're talking about, 20 which are very laudatory, it will reduce the amount of 21 work -- 22 COMMISSIONER STEPHEN GOUDGE: Yes, 23 there's clearly a practical dimension to all this that 24 has to be kept in mind. I think that's very valid. 25 DR. MICHAEL POLLANEN: Yes.

1 2 CONTINUED BY MR. MARK SANDLER: 3 MR. MARK SANDLER: All right. I think 4 we'll move from this topic; the Commissioner's taken 5 extensive notes there. 6 COMMISSIONER STEPHEN GOUDGE: Yes, I 7 filtered nothing. 8 DR. STEPHEN CORDNER: I haven't seen him 9 turn the page. 10 11 CONTINUED BY MR. MARK SANDLER: 12 MR. MARK SANDLER: Let's -- let's move to 13 the autopsy itself, and very briefly, deal with two (2) 14 issues that have been raised during the course of this 15 Inquiry. The first is defence autopsies. 16 We've heard from Dr. Milroy what the 17 practice is in England. Dr. Chiasson, is there any 18 appetite here in Ontario, or should there be, for 19 institutionalized defence autopsies? 20 DR. DAVID CHIASSON: Well, I -- I keep 21 coming back to a resource issue here. We are struggling, 22 very severely, with the issue of resourcing the 23 pathologist to do an original coroner's autopsy. 24 And -- and I mean, I think that it's -- 25 it's going to be many years down the road before we would

1 even have the resources to -- to talk about defence 2 autopsies being performed. 3 I've been involved in a -- in a number of 4 cases over the years where -- where a -- another 5 pathologist has subsequently come and done a second 6 autopsy, and certainly, I think that that's -- the 7 Coroner's Office has always been very cooperative and -- 8 and facilitating, and provided pathologists assistance in 9 order to carry out these procedures. 10 I think Dr. Butt, for example, I know has 11 done a number of second autopsies from a defence 12 perspective. I mean, I think, that should be available, 13 but as a -- as a sort of ongoing routine type of 14 practice, I don't think it's -- it's feasible. 15 And -- and frankly, I -- I don't see the 16 value -- that -- that it really has a lot of added value. 17 In part, I mean, what you want is your autopsies up front 18 are done by appropriately trained qualified individuals; 19 credible forensic pathologists. 20 And that -- you know, that's the primary 21 thing. And that has -- has -- certainly Dr. Pollanen has 22 been working towards is to have whatever information 23 you're basing your diagnosis on are reviewable. 24 So -- so down the road another pathologist 25 can come and -- and see where you're coming from. I

1 think that -- and I -- I think some of my colleagues 2 raised this yesterday -- I think there should be, 3 certainly, opportunities for defence pathologists not so 4 much to do a second autopsy arguably, but to -- to speak 5 to the -- the original pathologist and -- and maybe part 6 of the discussion would be, Is -- is -- is there added 7 value to doing a second autopsy? 8 And there certainly -- and I'm aware of 9 discussions along those lines where once the defence 10 pathologist has spoken to the original pathologist, made 11 sure everything that he wanted done -- he thought was 12 appropriately -- was done -- was in fact -- and reassured 13 of that. 14 That -- that I think that the original 15 pathologist -- the coroner's pathologist -- should be 16 very amenable to -- to that sort of interaction. 17 MR. MARK SANDLER: And just briefly, 18 assuming that -- there's all kinds of practical issues 19 wound up in this -- but assuming that there is a defence 20 pathologist in a -- at a time reasonably contemporaneous 21 with the first autopsy, is there -- is there any 22 impediment to a defence pathologist, at least, attending 23 the aut -- the initial autopsy that's being performed by 24 you? 25 DR. DAVID CHIASSON: That -- that -- that

1 has happened very rarely, in the exception there's been a 2 second post-mortem examination and exhumation type 3 situation where it had a second pathologist present. 4 There's no -- I don't think there should 5 be any impediment to having another pathologist. I mean, 6 it's rather uncommon that individuals are charged that 7 quickly. 8 MR. MARK SANDLER: Right. 9 DR. DAVID CHIASSON: You know, defence 10 lawyers are found, and -- and a defence pathologist is 11 found especially, but there is no -- I personally, as 12 long as it's clear that I'm doing the post-mortem 13 examination, it's my procedure and you're there to have 14 another pathologist as an observer and to provide input, 15 I personally wouldn't have any objection. I don't think 16 that there's any basis for objecting to that sort of a 17 situation. 18 MR. MARK SANDLER: All right. 19 Dr. Cordner, should there be any appetite 20 in Ontario for the videotaping or audiotaping of 21 autopsies? Is there any value added, that you see, in 22 that respect? 23 DR. STEPHEN CORDNER: Well, perhaps I 24 could just comment briefly on what Dr. Chiasson -- 25 MR. MARK SANDLER: Sure.

1 DR. STEPHEN CORDNER: -- said before, 2 specifically addressing that question. I think the 3 emphasis these days on reviewability of an autopsy is a - 4 - means that there is less need for a second autopsy or 5 for the body to be kept, to be available for second 6 autopsy. 7 Secondly, I think the -- it's quite 8 extraordinary the way the practice has developed in 9 England in particular, where the bodies are kept for 10 months and months. I mean, I'm just amazed the community 11 hasn't seriously objected to that. 12 Thirdly, the value of the second autopsy 13 is entirely -- almost entirely -- the conversation that 14 the two pathologists will have before, during, and after 15 it. And that's the key. 16 More important than videoing and -- and 17 audiotaping is, I think -- I can't see why it wouldn't be 18 mandated that the pathologists actually are required to 19 have a conversation to clarify what the pathology issues 20 are; to agree everything that can be agreed; to be clear 21 about what isn't agreed; to concentrate on that, to sort 22 that out as much as you can before you get to hearings 23 and trials. And that, it seems to me, would be doing a 24 substantial service to the clarity of the -- of the final 25 -- of the final trial.

1 MR. MARK SANDLER: All right. 2 Dr. Pollanen, before we take our mid- 3 morning break, do you want to comment on either of the 4 features that I've put, the defence autopsy or the 5 videotaping or audiotaping of autopsies? 6 MR. MICHAEL POLLANEN: Well, I agree. I 7 think the main point in -- in -- what we're interested in 8 is a quality result flowing to the Criminal Justice 9 System. That's what we're interested in. And if you can 10 provide reviewability, proper frameworks, all of those 11 characteristics that we've talked about in the first 12 instance, at the time of the first autopsy, there's 13 minimal need for a defence autopsy. 14 That's not to say that, in certain 15 circumstances, the defence would not benefit from having 16 a second defence post-mortem, but I think those are -- 17 are not general concepts. Those are maybe in specific 18 cases. 19 I think also the same applies to the whole 20 videotaping exercise. If you have appropriately 21 documented the relevant information at the first post- 22 mortem through digital photographs, histology, 23 description, other forms of documentation, there is 24 limited need for -- for videotaping. 25 Videotaping is -- is a great inhibition to

1 the work environment. People feel uncomfortable and -- 2 and it really doesn't -- I don't think it -- it fosters 3 the best work actually in the post-mortem room when 4 you're being videotaped. 5 MR. MARK SANDLER: Okay. Well, we're 6 going to take, if we may, Commissioner, our mid-morning 7 break and then the questions are going to get really 8 hard. 9 COMMISSIONER STEPHEN GOUDGE: Sure. 10 We'll adjourn then for fifteen (15) minutes. 11 12 --- Upon recessing at 10:45 a.m. 13 --- Upon resuming at 11:03 a.m. 14 15 THE REGISTRAR: All rise. 16 COMMISSIONER STEPHEN GOUDGE: Please sit 17 down. 18 Mr. Sandler...? 19 20 CONTINUED BY MR. MARK SANDLER: 21 MR. MARK SANDLER: Thank you, 22 Commissioner. We're going to turn to report writing, if 23 we may. And let's start with a fairly straight-forward 24 proposition and see -- see where it takes us. 25 We've heard evidence at this Inquiry as to

1 the form of reports of post-mortem examination that were 2 done in the cases under review. And we've heard from a 3 number of witnesses, including several who are on this 4 roundtable, that -- that a preferable form for a report 5 of post-mortem examination should include, at a minimum, 6 a history -- and we discussed the history already, and 7 also some explanation for the ultimate opinion, namely 8 cause of death or mechanism of death. 9 And is there anyone who -- who descents 10 from the view that -- that there should be an explanation 11 generally -- and I'm going to ask Dr. Chiasson whether 12 this is a general rule -- but that generally in difficult 13 cases, and particularly pediatric cases, the report of 14 post-mortem examination should not only express an 15 opinion, but also set out an explanation for why that 16 opinion has been reached? 17 Any decentres to that view? All right. 18 DR. STEPHEN CORDNER: The only -- only 19 qualifier is that it's clear to the pathologist and it 20 usually is in complex pediatric cases, because there will 21 have been some interaction between the investigators and 22 the pathologist because the investigators won't know 23 where to go unless they share some of the issues with the 24 pathologist. 25 So -- but it has to be clear to the

1 pathologist what the issues are, because otherwise the 2 pathologist is writing speculative comments not informed 3 by what the specific questions are that need to be 4 addressed in that case. 5 So, the only thing I would say is, yes, 6 there should be a discussion in -- you know, articulating 7 the contribution the pathologist can make to conclude in 8 what the circumstances might have been in the particular 9 case, but to do that they need to know what the 10 controversies are within those circumstances. 11 MR. MARK SANDLER: Okay. And I'm going 12 to come back to that issue in a moment, but just -- just 13 on this very narrow point that I've raised with you, 14 namely in a difficult case articulating an explanation 15 for why you have arrived at a cause or mechanism of 16 death, should the explanation be fulsome in each and 17 every case or should there be exceptions, Dr. Chiasson? 18 DR. DAVID CHIASSON: I mean, there are 19 many deaths, and -- and this more applies to the adult 20 situation where the homicides -- where the cause of death 21 is self- evident. I mean, the cause of death is evident 22 at the scene to the police officer, to the junior police 23 officer. I mean, you know, somebody's been shot or 24 whatever. 25 In those kinds of situations, you know, my

1 discussion about the cause of death is -- is very 2 minimal. I may then discuss other issues, close range 3 firing or -- or some other potentially relevant forensic 4 pathology matter. But as far as the cause of death, in 5 those cases minimal discussion I think is necessary and I 6 provide a minimal discussion as to the cause of death. 7 However, in those situations, and 8 certainly in -- in the case of many pediatric deaths, 9 cause of death is a -- is a difficult issue and if one is 10 rendering an opinion, or if one is rendering an opinion 11 that you don't have an anatomic or toxicological cause of 12 death, it behoves the pathologist to provide a discussion 13 about the -- his reasoning as to why he's reached the 14 conclusion that -- that he's reached. 15 MR. MARK SANDLER: All right. Dr. 16 Pollanen, you heard what Dr. Cordner said, namely that 17 you can't always discuss the issues that might be thrown 18 up by the case when you don't know what are the 19 contentious issues that are being raised by the parties. 20 How do you adjust -- how do you adjust 21 that in -- in report writing? 22 DR. MICHAEL POLLANEN: Well, in -- in the 23 first instance the -- the framework to write the report 24 is the evidence based framework. So, in other words, 25 what you want to do is you want to provide the reader of

1 the report the database upon which your opinion is -- is 2 generated. So that includes your observations, it 3 includes the -- the logic or the rationale which links 4 those observations through to your opinion, so -- 5 COMMISSIONER STEPHEN GOUDGE: Your 6 reasoning process. 7 DR. MICHAEL POLLANEN: The reasoning has 8 to be spelled out. Now, if you've been shot through the 9 brain -- 10 COMMISSIONER STEPHEN GOUDGE: That can be 11 recited in a sentence? 12 DR. MICHAEL POLLANEN: Exactly. But if 13 you're dealing with, you know, a very controversial area 14 in forensic pathology it may require a mini-literature 15 review, this sort of balancing act, sort of, in the text 16 about what the possibilities are in differential 17 diagnosis, and how the evidence apportions out on the 18 different differential possibilities. 19 20 CONTINUED BY MR. MARK SANDLER: 21 MR. MARK SANDLER: And I'm going to come 22 back to the controversial case in -- in a moment, so 23 we'll part that thought for a moment. 24 DR. MICHAEL POLLANEN: So -- so basically 25 that's what you do in the first instance. And we

1 recognize that there will be limits to what the 2 pathologist can identify as an issue to write about -- 3 MR. MARK SANDLER: Mm-hm. 4 DR. MICHAEL POLLANEN: -- in the first 5 instance. So I think you do your best. There are some 6 predictable issues that you -- you know will be -- you 7 will be asked for, and I think you do your best to 8 identify those and -- and address those but, at some 9 point in time, if new issues emerge, after you've 10 completed your report, then essentially you -- there are 11 two (2) pathways. You either then give a supplementary 12 autopsy report or you write a consultation report based 13 upon some additional information that is outside of your 14 post-mortem report. 15 COMMISSIONER STEPHEN GOUDGE: That may 16 address a specific issue in a specific case that isn't 17 cause of death; for example, time of infliction of fatal 18 injury? 19 DR. MICHAEL POLLANEN: Or time of death 20 or something like that, yes. 21 COMMISSIONER STEPHEN GOUDGE: Or time of 22 death. 23 DR. MICHAEL POLLANEN: Yes. Where -- 24 where, in fact, what the autopsy report is functioning in 25 -- in that circumstance is part of the evidence-base to

1 generate a new professional conclusion. 2 COMMISSIONER STEPHEN GOUDGE: Right. 3 4 CONTINUED BY MR. MARK SANDLER: 5 MR. MARK SANDLER: Now, time of 6 infliction of injuries is -- is kind of important because 7 we heard that that was the issue in the Jenna case and 8 without going back through the pathology in -- in Jenna, 9 would you have included in the -- in the Jenna case, a 10 discussion of time of infliction of injury at first 11 instance? 12 And if so, was that because it was an 13 issue that was apparent right from the outset, or would 14 you -- would you defer writing an opinion or including an 15 opinion on time of infliction of injuries until the 16 issues in the criminal process had crystallized? 17 DR. MICHAEL POLLANEN: That's a difficult 18 one in the first instance. What -- what I probably would 19 have done, in that circumstance, is say that there are 20 abdominal injuries and they are of two (2) different 21 ages. One is recent, one is healing and I would describe 22 which is recent and which is healing. Then I would -- 23 would have attempted to give an explanation for the 24 mechanism of injury for both of those injuries. 25 But beyond that, I probably would not go

1 into a big, long analysis of relative timing because for 2 that to be at all meaningful, you need more information. 3 You need a proposed timeline, and then you need to see 4 how the pathology adds to your understanding about the 5 proposed timeline. 6 MR. MARK SANDLER: Okay. Dr. Milroy, the 7 police attend at your -- at your autopsy, and they give 8 you the history which includes a history of the caregiver 9 as to how the events occurred. You conduct the autopsy. 10 You prepare your report. 11 Will you address the history that was 12 given by the caregiver as a matter of course in your 13 report of post-mortem examination? 14 DR. CHRISTOPHER MILROY: If I've been 15 given that, yes. 16 MR. MARK SANDLER: And you'll do that 17 from the outset? 18 DR. CHRISTOPHER MILROY: If I've been 19 given that at the start, yeah. If -- if, in this case, 20 they have said, We have evidence of, if you like, sole 21 charge of the child for a few hours, then that is 22 something that I would address. What I probably would 23 say to them now is, Look, can you send me the case 24 summary so that I've got in writing from you what is the 25 outline of the case at this juncture. They -- the

1 police -- the police have to prepare a case summary for - 2 - for charge. 3 If we are in a more complex area, then 4 there may be much more discussion -- case conferences -- 5 at this juncture -- even discussions with a -- with a 6 lawyer, as to whether to -- to lay charges, and so on. 7 But I certainly would consider, in the first instance, 8 giving some general views but I would probably be asking 9 for more information as well at that -- at that time but 10 would certainly, at some stage, address the timing issue. 11 MR. MARK SANDLER: And would you address 12 the various differential diagnoses that could arise in 13 the case? 14 DR. CHRISTOPHER MILROY: Yes, if there's 15 differential diagnoses, then you've got to put those in 16 and differential timings, you've got to put those in. 17 MR. MARK SANDLER: All right. And, Dr. 18 Chiasson, what -- what I've heard so far, from -- from 19 your fellow panellists, is that in the complex cases they 20 provide some explanation for the cause of death or 21 mechanism of death. If some of the other issues are 22 self-evident or so inextricably interwoven with -- with 23 the work that's being done at autopsy, those might be 24 included, as well. 25 As well, if the -- if the history or

1 information given by the police raises some obvious 2 issues, those might be addressed in the post-mortem 3 report, but a number of the issues that could arise in 4 the trial might deferred to a consultation report, or a 5 supplementary report when -- when more information is 6 available. 7 Would that accord with -- with your 8 approach? 9 DR. DAVID CHIASSON: Well, my approach, I 10 think is -- is one (1) of being perhaps less inclusive in 11 terms of the PM report. I -- I keep coming back to the 12 PM report and I -- I try to keep that as a relatively 13 isolated document addressing the cause of death issue. 14 So clearly if you -- if you have a cause 15 of death that isn't obvious from -- from your findings 16 and needs discussion, that -- that fulsome discussion 17 needs to take place within the context of the report. 18 Other issues -- and -- and it's not to say 19 that I -- I wouldn't render, as suggested by Dr. 20 Pollanen, for example, that these injuries are -- are 21 recent in nature and -- and give some kind of definition 22 of what I mean by -- by recent and -- versus healing, for 23 example. But to say, okay, there's -- there's evidence 24 of two (2) caregivers in different time periods, et 25 cetera, I -- I personally would not include that in my

1 report of post-mortem examination. I -- I see that as 2 being a separate and distinct activity, if you will. 3 And as suggested by Professor Milroy, it's 4 where you -- you want the -- the documented information, 5 the statements or -- or whatever, police investigative 6 information, that you want in a formalized form, and in 7 the request being made with -- with specific questions 8 being asked and -- and addressed, as opposed to trying to 9 decide what might be the relevant questions. 10 Even though you may have a sense of what 11 the issues are, I -- I personally would -- would prefer 12 that this be laid out in a more formalized form outside 13 of the report of the post-mortem examination. 14 So from that point of view I would 15 probably -- my practice is -- is somewhat different than 16 -- than my colleagues here. 17 MR. MARK SANDLER: All right. 18 Acknowledging the -- the differences that -- that have 19 been articulated so far, what I hear is a certain 20 commonality to -- to what you've said, and -- and that is 21 that -- that these issues should be addressed in some 22 form in writing at some point in time, as opposed to 23 being revealed for the first time in testimony given at 24 trial. 25 Does everybody agree with that?

1 DR. STEPHEN CORDNER: Yes. 2 MR. MARK SANDLER: Dr. Cordner, in the 3 paper that you prepared for this Inquiry you set out an 4 analytical approach that might be adopted by the forensic 5 pathologist through a series of questions to -- 6 ultimately to inform the opinion in the case. 7 Could -- could you briefly just set out 8 what the questions are as -- as you see them, and -- and 9 I'm going to ask some followup questions arising out of 10 that. 11 DR. STEPHEN CORDNER: Perhaps just as 12 prelude to doing that, just to say I'm sure the 13 Commission realizes these cases and these complex -- 14 particularly the complex pediatric forensic pathology 15 cases, are I think the hardest cases we deal with. 16 Okay. So we're dealing with the very hard 17 end, and -- and complex, and difficult end of -- of 18 forensic pathology, so that means that how I proceed or 19 we proceed is going to be pretty dependent upon the 20 particulars of individual cases. But it might also mean, 21 this -- this complexity, that perhaps we should try and 22 impose a bit more uniformity on -- on the what, on the 23 output. 24 And Dr. Pollanen has emphasised, not only 25 here but in things he's written, the importance of an

1 evidence based approach. And so all that's been done in 2 chapter 5 of the limits and controversy paper has been to 3 try and put into some boxes some of the questions that 4 try to encompass the evidence based approach, to, I think 5 it probably got -- more general application than -- than 6 pediatric forensic pathology. 7 But to certainly try and pick up those, 8 and then -- then -- they're actually written thinking 9 they might inform lawyers because, I think, if advocate 10 barristers started asking questions along these lines, 11 then forensic pathology would probably start to 12 accommodate that approach if it was -- if they are 13 regularly confronted with a particular approach from -- 14 from advocates. 15 But it's fairly simple. I mean, there are 16 ten (10) questions -- I don't know that it's worth 17 reading them out -- but they go through the -- 18 MR. MARK SANDLER: Not everyone has it, 19 so maybe you'd just take literally a minute and read them 20 out -- them out, if you could? 21 DR. STEPHEN CORDNER: It's -- it's 22 entitled, "A Structure for Evaluating the Case." So: 23 "Question 1: What is the cause of 24 death? 25 Question 2: What are the key physical

1 signs found at autopsy in this case? 2 Question 3: How did the physical 3 signs, found at autopsy in this case, 4 lead you to your conclusion about the 5 cause of death?" 6 And where -- I think, you know, that just 7 really stating what's already been said. 8 "How did you ascertain that these 9 features were present? 10 Are the described features verifiable? 11 Are the findings beyond the scope of 12 the individual pathologist? If so, who 13 else or what else is being relied upon? 14 Is there a clear chain of custody in 15 relation to samples sent for special 16 testing?" 17 7th Question: 18 "Are the observed signs due to natural 19 disease or injury? 20 8. Are the observed signs of injury 21 due to intentional harm in this 22 instance? 23 9. How certain are you, as a 24 pathologist in this case, that the 25 observed signs of injury are due to

1 intentional harm in this instance? 2 10. Have the features of this case 3 ever been described in the literature 4 as being non-intentional? 5 11. Is the evidence, the search-base 6 relied on in this case, unequivocal and 7 definitive? 8 12. Would your peers come to the same 9 conclusion based on the observed 10 physical sign depicted at autopsy? 11 So -- and I have to say, I have never 12 written a report based on that; that is, you know, I've 13 said it before, but that's the value of this sort of 14 process, that it helps the evolution of the discipline 15 generally. 16 MR. MARK SANDLER: And -- and I won't 17 take you to -- to your commentary, but for each of the 18 questions, or a number of the questions you provided some 19 commentary. So that, for example, in Item 10: 20 "Have the features of this case ever 21 been described in the literature as 22 being non-intentional?" 23 And you've put under commentary: 24 "Could this be an exceptional case? 25 What are the exceptions? Discuss and

1 describe the rarity, and how ancillary 2 or supporting data is used?" 3 Dr. Pollanen, are these the kinds of 4 questions that should engage the forensic pathologist in 5 dealing with -- with his or her job? 6 DR. MICHAEL POLLANEN: Yes, I believe so. 7 I'd just like to make one (1) addition to number 7. I 8 would say: 9 "Are the observed signs due to natural 10 disease or injury, or artifacts?" 11 Because that's one (1) of the -- one (1) 12 of the recurring themes in -- in this Inquiry. 13 I believe this really is a sketch of how 14 you achieve the evidence-based approach. The evidence- 15 based approach is a larger framework. And this sort of 16 provides, you know, point-by-point cues as to how one (1) 17 might obtain a -- sort of a critical view of the data 18 set, and how one (1) might investigate the validity of 19 the conclusions that come from the evidence-based 20 approach. 21 So I -- I think this is -- this is a good 22 way of -- of looking at these issues. Recognizing that - 23 - may not be applicable in -- in all twelve (12) 24 questions in each case, and some of the questions can be 25 answered very quickly and definitively.

1 But it -- it does sort of form a 2 foundation for that approach. 3 MR. MARK SANDLER: The -- the follow -- 4 COMMISSIONER STEPHEN GOUDGE: It 5 emphasizes two (2) things it seems to me, Dr. Pollanen. 6 One (1) is, there's a clear recitation of the facts or 7 findings from autopsy that are used as the basis to 8 reason to a conclusion. 9 And secondly, it emphasizes that the 10 reasoning has to be outlined. 11 DR. MICHAEL POLLANEN: Yes, and I -- I 12 would say -- 13 COMMISSIONER STEPHEN GOUDGE: Aren't 14 those the heart of evidence-based pathology? 15 DR. MICHAEL POLLANEN: Yes. Precisely in 16 fact, yes. Those two (2) different limbs. And I would 17 say -- I would further say that this really provides, in 18 sort of in another language, a cognitive structure, of 19 how we achieve this; not a bad thing to perhaps pull out 20 in a -- one (1) of these very tough cases, and sort of go 21 through this analysis at the end of producing your PM 22 report, as sort of the final check before you give it to 23 a colleague for peer review; or might, in fact, form the 24 basis of a -- of a model as to how a colleague might peer 25 review your case.

1 COMMISSIONER STEPHEN GOUDGE: So this is 2 a pre-cursor, Dr. Cordner, to what I suspect is a 3 lengthier generic discussion we will have this morning, 4 but in one (1) of the questions, question 9, you have 5 used the phrase, "How certain are you?" 6 DR. STEPHEN CORDNER: Yes. 7 COMMISSIONER STEPHEN GOUDGE: Why would 8 you not put that in other questions as well? How certain 9 are you that observed signs are due to natural disease or 10 injury? 11 DR. STEPHEN CORDNER: Mm-hm. 12 COMMISSIONER STEPHEN GOUDGE: That is the 13 -- is that a theme that you would have in your head all 14 the way through when -- 15 DR. STEPHEN CORDNER: Yes. 16 COMMISSIONER STEPHEN GOUDGE: -- 17 answering each of these questions? 18 DR. STEPHEN CORDNER: Yes. I would, and 19 I didn't want to do all the lawyer's work for them. 20 MR. MARK SANDLER: I think, Commissioner, 21 Dr. -- Dr. Cordner is -- is being quite humble. This is 22 a work -- a continuing work in progress -- 23 COMMISSIONER STEPHEN GOUDGE: And it is 24 enormously useful work in progress, but clearly this 25 whole generic challenge describing how certain you are or

1 firmness of answer of each of these questions is vital 2 for the professional, and it is clearly vital for, at 3 least, the Criminal Justice System's consumption of this 4 product. 5 And so I am interested that particularly, 6 in terms of obviously a critical question for the Justice 7 System, that is intentional harm. You do put in a 8 certainty question, and I just wondered whether that was 9 deliberate or whether it was something that was implicit 10 in the other questions that are clearly important to go 11 into the report? 12 DR. STEPHEN CORDNER: If I could just 13 follow-up too because these are the hardest cases for 14 forensic pathology. Heaven knows how they must feel for 15 the barrister who's confronted with one of these and 16 might be the one in -- in the entire professional career. 17 So I think if we're thinking about how -- 18 how does a criminal barrister go about -- 19 COMMISSIONER STEPHEN GOUDGE: Right. 20 DR. STEPHEN CORDNER: -- getting their 21 mind around these things -- 22 COMMISSIONER STEPHEN GOUDGE: Right. 23 DR. STEPHEN CORDNER: -- that the 24 discipline that is the relative expertise in the case, 25 struggles with.

1 COMMISSIONER STEPHEN GOUDGE: Yes. I 2 mean, it just -- to lay out one (1) of the questions that 3 I would really like the views of each of you on, at some 4 stage, Mr. Sandler, how -- whether you are conscious in 5 answering these questions in the preparation of your 6 report about how you are coming to the conclusion of 7 relative certainty or firmness of view, and what drives 8 you to that. 9 And whether, if you can articulate that, 10 that set of reasons that drive you to a certain level of 11 firmness, that ought to be articulated. And let me set 12 it in the context of many of the reports that we have 13 seen that have been the subject of evidence, where there 14 is a statement of cause of death with absolutely no 15 qualifications or assertion of anything less than 16 absolute certainty, although it may well be that it is 17 written by an author who has considerably less than full 18 certainty. 19 And that communication silence causes a 20 difficulty. And so I would just be interested in the 21 comments of each of you as to whether part of the thought 22 process in addressing these questions is, Here is my 23 answer. Let me just think to myself, how firm am I about 24 that answer? 25 DR. CHRISTOPHER MILROY: Well, I think

1 that -- I mean, where you have the thing that just says, 2 "Cause of Death." It's interesting, if you look, for 3 example, at the so-called Shaken Baby Syndrome, there 4 would be many people that would just put head injury and 5 say, I'm a 100 percent confident that it's a head injury. 6 There would be others that would -- and 7 then -- say, Well then are you confident that the 8 mechanism that brought about the head injury is Shaken 9 Baby Syndrome? And they they'd -- they may say, Well, I 10 agree that there are exceptions. In which case, why have 11 you put head injury because by putting injury, you are 12 implying, in once sense, infliction; either -- well, 13 accidental or some -- or intentional. 14 Whereas some people may say, Well, there 15 might be exceptions that cause Shaken Baby Syndrome that 16 are not -- that are natural disease process. There are 17 people -- there -- certainly there is -- there is an 18 argument for that. How strong it is, is a -- is a 19 separate debate. And I think that it is -- it is the 20 hardest thing for a pathologist, in the witness box, to 21 place a certainty sometimes, not always, sometimes it's - 22 - you know, it's -- 23 COMMISSIONER STEPHEN GOUDGE: And we've 24 had a discussion with a number of you earlier when you 25 were here about the challenge of that, Dr. Milroy, and

1 how misleading it could be, for example, to try to put in 2 quantitative terms, the level of certainty, because that 3 takes it to a level of certainty precision that is not 4 warranted in the pathologist mind. I understand that -- 5 DR. CHRISTOPHER MILROY: And there's also 6 a separate issue as to -- I suppose, but it's tied up 7 with it -- I've been asked, Can you be sure beyond 8 reasonable doubt about your -- 9 COMMISSIONER STEPHEN GOUDGE: You could 10 use a variety of linguistic hurdles to get over it. 11 DR. CHRISTOPHER MILROY: And that of 12 course is a legal term, it's not a -- it's not really a 13 medical term. 14 COMMISSIONER STEPHEN GOUDGE: But 15 clearly, each of you as professionals has some internal 16 thought process that enables you to address Dr. Cordner's 17 question 9: How certain are you? You know, that question 18 is there because pathologists doing best practice in 19 preparing a report are able to answer it. 20 And what I'd like you to unpack a little, 21 is how you go through the thought process of answering 22 the certainty question there, and test it against the 23 other questions and see whether we can do the same thing. 24 DR. CHRISTOPHER MILROY: Well in -- I was 25 just going to say, in recent cases where I've had the so-

1 called Shaken Baby Syndrome, I have layed out, if you 2 like, the conventional view. But I have also given in my 3 report, the alternative view. 4 And I have not actually always said, And I 5 favour A over B, because there is an argument -- I'll lay 6 out what the -- what the argument is, and the jury can 7 then ultimately decide whether they accept it based on 8 the entirety of the evidence. 9 COMMISSIONER STEPHEN GOUDGE: Dr. 10 Cordner...? 11 DR. STEPHEN CORDNER: Even though I put 12 the question there, the way I would answer that question 13 is like this, and I'd be interested to know whether -- 14 you know, what the response would be to the answer. 15 The -- my answer would be, in my opinion, 16 because of the number and distribution of the injuries in 17 this particular case, these injuries are the result of an 18 assault. 19 COMMISSIONER STEPHEN GOUDGE: I hear that 20 as a non-scientist; as given the factors I've just 21 recited, I am certain the result is X. 22 Do you mean you -- 23 DR. STEPHEN CORDNER: I'm saying in my 24 opinion -- I'm just saying, in my opinion -- 25 COMMISSIONER STEPHEN GOUDGE: Does that

1 mean you're certain? 2 DR. STEPHEN CORDNER: Look, I'm very -- 3 I'm very comfortable; I go to sleep easily; I'm not going 4 to be worried about it; I'm -- but I -- because it's not 5 a factual statement. I think -- I think of 100 percent 6 certainty as a factual statement. 7 COMMISSIONER STEPHEN GOUDGE: Was the 8 light red or green? Maybe that's not even certain. 9 MR. MARK SANDLER: Well, Dr. -- 10 COMMISSIONER STEPHEN GOUDGE: Dr. 11 Pollanen -- 12 13 CONTINUED BY MR. MARK SANDLER: 14 MR. MARK SANDLER: Sorry, just -- just 15 before Dr. Pollanen goes, just to make the point, Dr. 16 Cordner, so you -- you testify and you say, In my 17 opinion, X. And the defence counsel stands up and says, 18 All right, you've expressed your opinion, does that mean 19 in your opinion X is probable? 20 What would you say? 21 DR. STEPHEN CORDNER: Clearly, I believe 22 I'm right. 23 MR. MARK SANDLER: So the answer -- so 24 the answer to my question, is what? 25 DR. STEPHEN CORDNER: Well, I believe I'm

1 right. I believe I have solid grounds for coming to the 2 conclusion that I've just expressed, which in this case 3 is that this child has been assaulted. 4 MR. MARK SANDLER: And if I went further 5 and said that I hear what you're saying, Dr. Corner, is 6 that because it's your opinion, it -- it's at least 7 probable that it occurred; is it certain that it 8 occurred? 9 DR. STEPHEN CORDNER: Well, look, I think 10 you're trying to elevate this into a different paradigm. 11 You're trying to make me state a fact where you are 12 relying on opinion. 13 If we knew this as a fact we wouldn't be 14 talking about it. I mean, it's a -- I'm very comfortable 15 with the view and I think most of my colleagues in these 16 circumstances are -- you know, would come to the same 17 view. I'm not troubled at all -- 18 MR. MARK SANDLER: Right. 19 DR. STEPHEN CORDNER: -- by the view that 20 -- that this child was assaulted. 21 COMMISSIONER STEPHEN GOUDGE: I guess I 22 read into the way you phrased question 9 in your -- 23 DR. STEPHEN CORDNER: Mm-hm. 24 COMMISSIONER STEPHEN GOUDGE: -- in your 25 paradigm questions, Dr. Cordner, the implicit assertion

1 that there could be ranges of certainty, and what was 2 being sought there was where in the range of certainty 3 this particular -- 4 DR. STEPHEN CORDNER: Well it -- 5 COMMISSIONER STEPHEN GOUDGE: -- set of 6 facts -- 7 DR. STEPHEN CORDNER: -- because in a -- 8 in a particular case it might be, Well look -- you know, 9 I think that assault is a very serious possibility in 10 this case, but I'm not sure that we can rule out the 11 possibility of two (2) falls. 12 Now if there were two (2) falls in 13 contemplation here, I don't know if you -- 14 COMMISSIONER STEPHEN GOUDGE: Right. 15 DR. STEPHEN CORDNER: -- but if there 16 were two (2) falls in contemplation here -- 17 COMMISSIONER STEPHEN GOUDGE: Right. 18 DR. STEPHEN CORDNER: -- well then I'd 19 have to seriously question -- 20 COMMISSIONER STEPHEN GOUDGE: Right. 21 DR. STEPHEN CORDNER: -- my conclusion 22 that it's an assault. So that throws it back to you -- 23 COMMISSIONER STEPHEN GOUDGE: Right. 24 DR. STEPHEN CORDNER: -- as to whether 25 you -- you know, how you deal with that possibility.

1 COMMISSIONER STEPHEN GOUDGE: Dr. 2 Pollanen, how do you address this problem, because it 3 really is a conundrum? 4 I mean, I can understand the scientist 5 says, I'm doing my very best to give an opinion. The 6 risk is that the lay consumer -- the Justice System -- 7 will hear it in a way that carries a level of certainty, 8 to use Dr. Cordner's implicit scale, that perhaps, is 9 less than fully intended. 10 DR. MICHAEL POLLANEN: I mean, this is 11 the -- this -- in -- this problem is seen in -- in 12 variation throughout many aspects of evidence -- 13 pathologist evidence, and medical evidence, and 14 scientific evidence. 15 I mean, the closely linked problem is the 16 -- is the linguistic problems of -- of ultimately when 17 you answer the question that you're asking, then how do 18 you actually form words to communicate it -- 19 COMMISSIONER STEPHEN GOUDGE: Right. 20 DR. MICHAEL POLLANEN: -- using language 21 like "consistent with", et cetera. 22 COMMISSIONER STEPHEN GOUDGE: Right. 23 Just to give you my own sort of thought framework here. 24 I sort of have, you know, over the course of these months 25 kind of started to think of it in two (2) compartments.

1 One (1) is how does the scientist come to a level of 2 certainty, and secondly, having got there, how is that 3 articulated most clearly. 4 DR. MICHAEL POLLANEN: Right, and you 5 know I think, and I'd like to -- this is sort of a little 6 bit of an experiment here, but I would like to suggest 7 this, that -- let's take the shaken babies out of the 8 picture, let's take the -- 9 COMMISSIONER STEPHEN GOUDGE: Right. 10 DR. MICHAEL POLLANEN: -- child abuse 11 because it's -- these are all -- they're -- they're 12 complicated for matters other than the -- 13 COMMISSIONER STEPHEN GOUDGE: Right. 14 DR. MICHAEL POLLANEN: -- the issue that 15 we're talking about. I go back to the skeleton, where 16 somebody is stabbed in the chest -- 17 COMMISSIONER STEPHEN GOUDGE: Right. 18 DR. MICHAEL POLLANEN: -- and the body is 19 fresh and there's a -- there's a stab wound over the 20 heart. It passes through a rib, and you -- it passes 21 through the left ventricle and you have cardiac 22 tamponade. 23 There is -- every pathologist on this 24 panel would give the cause of death; stab wound of chest, 25 penetrating heart, or whatever lingo. But then you take

1 the same body, and you put it in northern Ontario, and it 2 decomposes down to a skeleton and all you have is a nick 3 on the rib, so you have no skin, you have no organs, you 4 have no -- 5 COMMISSIONER STEPHEN GOUDGE: Blood. 6 DR. MICHAEL POLLANEN: -- blood. You 7 have a nick on the rib. So in this circumstance, the 8 pathologist then has to say, and -- and reconstructs in 9 their mind, The nick on the rib is along a wound path 10 that is potentially fatal and, in this context, does that 11 potentiality rise to one (1), a stab wound of chest, and 12 I would like to know what Stephen says about that. 13 COMMISSIONER STEPHEN GOUDGE: No, but 14 that's the paradigm you put to us earlier, and I thought 15 when you said it, it was very -- for me, it helped. How 16 does one -- because clearly you would say, and I think 17 you did say, there's a different level of certainty or 18 degree of certainty, to use Dr. Cordner's scale, between 19 those two (2) cases. 20 Is that right, Dr. Cordner? 21 DR. STEPHEN CORDNER: And I think -- I 22 mean that -- that's a classic situation and -- and you -- 23 my -- I don't think I can and I don't think any of my 24 colleagues in Victoria would -- would say anything other 25 than something like unascertained in a -- in a man with a

1 incised nick on the anterior left fifth rib. 2 Something -- something like that would 3 indicate that you've found something of potentiality, but 4 without giving it specificity in terms of necessarily 5 causing a death. 6 So -- and to -- people want certainty, 7 people search for certainty, but we all have to live with 8 a little bit of uncertainty. 9 COMMISSIONER STEPHEN GOUDGE: Yes, I 10 guess what I'm trying to focus on is the degree to which 11 the Criminal Justice System will misunderstand the 12 intended level of firmness of view because it does seem 13 to me that that's clearly a risk that we've seen in a 14 number of the cases that we've had here; whether it 15 transpired or not, who knows, but it clearly is something 16 that one has to concern oneself with in terms of public 17 confidence in the system. 18 DR. MICHAEL POLLANEN: I think the best 19 you can do in this -- in this area is recognize that it's 20 an issue, you give your best view, and then you have to 21 discuss, in -- in the body of your report, how you've 22 concluded the view that you -- you've given. 23 And if there -- if it's a circumstance 24 where the communication of the certainty of that view is 25 -- is predictably problematic, then -- then you -- then

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1 the pathologist has a -- has a role or a duty to inject 2 some type of balance into the report. 3 COMMISSIONER STEPHEN GOUDGE: What does 4 that mean in practice? When you say "balance", does that 5 mean some -- 6 DR. MICHAEL POLLANEN: The downside. 7 COMMISSIONER STEPHEN GOUDGE: -- kind of 8 description that will diminish the perception of 9 certainty? 10 DR. MICHAEL POLLANEN: Yes, or provide 11 reasonable alternatives based upon principled arguments. 12 So, for example, if the -- if the pathologist in the 13 skeleton said, I give the cause of death as stab wound of 14 chest, then --- then the -- the balance that needs to be 15 achieved in the discussion is, Well, you know, we're 16 working in this -- in this paradigm that we're 17 approaching this case. 18 The -- the detractors to the conclusion 19 are the absence of this, the absence of that, and you're 20 putting a lot of weight on the presence of a specific 21 finding. 22 Or if the pathologist chose to give the 23 cause of death as unascertained, you would then have to - 24 - to put the -- put another type of balance in the report 25 saying, Well, you know, this is not a negative autopsy.

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1 There is a -- a very important potentially -- potentially 2 lethal finding here, which in the context of the greater 3 case, which might include, you know, a knife, attains a 4 great significance. 5 COMMISSIONER STEPHEN GOUDGE: Dr. -- 6 DR. STEPHEN CORDNER: You might think 7 that this is a bit precis, but I might say in a 8 particular case, in my opinion because of the number and 9 distribution of injuries in this case, this child has 10 been assaulted. I might even add to that, Look, I can't 11 actually conceive of how this child could have got these 12 injuries in a single simple fall. 13 And then you might say, Well, that's 14 certainty, for heaven's sake. And then I'd say, Well, 15 you know, it -- but I'm not -- I may not be able to 16 conceive some things. I may say, You'd probably think -- 17 Ah, you're splitting hairs and you just want a little bit 18 of, you know, wriggle room. Well, yes, I do want just a 19 little bit of wriggle room. 20 And -- and so I'm not going to say that 21 it's a fact that this child's been assaulted becau -- 22 COMMISSIONER STEPHEN GOUDGE: But it is 23 important that you say that, is it not? 24 DR. STEPHEN CORDNER: Well, and there'll 25 be some cases where I might say that. There'll be some

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1 cases where I won't say. I'm not goin -- if I thought 2 that it wasn't a fact or that if I thought that was the 3 important thing to say, I would say it, but -- 4 COMMISSIONER STEPHEN GOUDGE: Yes. I 5 guess -- 6 DR. STEPHEN CORDNER: -- I'm just trying 7 to tell you -- I'm just trying to sort of indicate that 8 even if you say, I can't conceive of how this would be a 9 single simply fall, none of us -- but we -- we all see 10 things that we haven't seen before, so -- and wouldn't 11 have thought could occur. 12 So you have -- I found out and just like 13 to leave a little room for that and then everybody says, 14 bull it -- you know, not good enough or.... 15 DR. CHRISTOPHER MILROY: I mean, one of 16 the -- I -- I do use that term, I cannot conceive of 17 this being any other than, which is, I suppose, giving a 18 great degree of certainty. I -- 19 COMMISSIONER STEPHEN GOUDGE: Well, it is 20 heard as giving a great deal of certainty. 21 DR. CHRISTOPHER MILROY: Yeah. Actually, 22 the -- I did this in an Australian case. That's the only 23 Australian case I've ever done, Steve was involved and 24 the lawyer then just said, Well, think man, think. 25 DR. STEPHEN CORDNER: In the -- in the

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1 circumstances, a very good question, I might add. 2 DR. CHRISTOPHER MILROY: Which is of 3 course the answer, the lawyer's answer to that. But -- 4 but clearly we do -- we do express in -- we do in that 5 sort of -- you are saying, Well, look, I've never met 6 this situation, but life is -- we don't have all the 7 answers and there may be alternatives that -- but, you 8 know, someone else has really got to come up with them. 9 COMMISSIONER STEPHEN GOUDGE: I hear each 10 of you saying, in slightly different ways, that if the 11 facts and the reasoning from the facts take you to 12 something you can articulate as, In my opinion cause of 13 death is..., that is about as good as it gets from the 14 scientist's perspective. 15 Elements of doubt creep in through the use 16 of there may be alternative explanations or there might 17 be alternative explanations. Here is what they might be. 18 Here is why I either accept them as possible or dismiss 19 them. 20 Is that the way you go about in your 21 thought process addressing this question of firmness of 22 view? Is -- or am I -- I think you all just do it, and 23 you know it when you do it? Dr. Chiasson, how do you 24 come to fix on the firmness of your ultimate diagnosis? 25 DR. DAVID CHIASSON: Well, I think one

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1 (1) of the things I originally testified of on this -- 2 this notion that -- that forensic pathology is -- is a 3 science in -- in a pure sense of the word. 4 It -- it's a branch of medicine, and as 5 such there are inherent in -- uncertainties. As -- as 6 Professor suggested, just because, you know, you haven't 7 heard of anything, or an alternative explanation, or you 8 haven't seen this before, as forensic pathologists we 9 deal with things we haven't seen before fairly commonly, 10 and so it's all -- there's always a degree of 11 uncertainty. 12 You know, my own practice is that if -- my 13 opinion, and I keep coming back to that and -- and this 14 is my opinion and I'm -- I'm very glad -- I know there's 15 been criticisms of the Coroner's Acts Form 12 or 14, 16 whatever it is, for the post-mortem examination, but the 17 bottom line does -- does specify, in my opinion, the 18 cause of death is... 19 And when -- I certainly try to educate 20 Crown attorneys and whoever else will -- will listen to 21 me. I mean part of it is, okay, you've got your 22 findings, your facts, if you will, but ultimately cause 23 of death and the ascribing of cause of death is -- is an 24 opinion and therefore is -- there's -- there's a 25 multitude of possibilities.

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1 And if I'm going to render an opinion on 2 the bottom line, at least, at the very least, I'm doing 3 it on a balance of probabilities, this is the best thing 4 of -- of the number of possibilities that I -- that I 5 feel on the balance is -- is the most likely explanation 6 for the death. 7 And we do that not only in the difficult 8 cases, we do that in the -- in the simple cases or maybe 9 not so simple cases where there's -- but it's not 10 criminally relevant, so -- so you develop your practice. 11 I think now -- and one (1) thing, I have 12 evolved a little bit over the years -- is that in fact I 13 am putting more of a descriptors or more qualification 14 about opinions that aren't -- you know, if I'm clear -- 15 if it's a gunshot wound to the head -- 16 COMMISSIONER STEPHEN GOUDGE: Yes, you're 17 going to be more on the balance of probabilities on that. 18 DR. DAVID CHIASSON: I'm not going to go 19 on about that. You know, I'm not going to say, Well, 20 this is 100 percent possibility, you know, certainty in 21 this case. I -- I just say, you know, These are the 22 findings, this is my opinion in cause of death, and -- 23 and leave it at that. 24 Obviously, though, if in all these other 25 situations of -- of asphyxial death -- and I must say I'm

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1 glad to see Professor Milroy hasn't completely gotten rid 2 of that from his vocabulary, even though he puts it in -- 3 in -- 4 DR. CHRISTOPHER MILROY: Well, we put -- 5 DR. DAVID CHIASSON: -- comments, though. 6 You know, when you're discussing that you -- you -- there 7 has to be a discussion, and I -- I like the way Professor 8 Cordner has -- has sort of said, you know, because of the 9 multiplicity of injuries, you know, this -- this thought 10 that I can't conceive of a reasonable alternative 11 possibility, I think that's the kind of thing that I'm 12 working into my -- my summaries now that I didn't before. 13 The other comment I would make is that I 14 think it's important in part of the education process, 15 the Crown attorneys and -- and defence counsel realize 16 that just because a pathologist has, you know, got a 17 bottom line of blunt force head injuries, that that does 18 not mean it's a 100 percent; I mean I -- I think that's 19 got to get out there. 20 I mean, this is a two (2) way street, is 21 that the -- 22 COMMISSIONER STEPHEN GOUDGE: Absolutely, 23 and we're going to have a roundtable devoted to how the 24 consumer can assist in getting the accurate communication 25 of the pathologist's view. Because you're absolutely

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1 right, I think there's an obligation on the system to do 2 better. 3 DR. STEPHEN CORDNER: Can I just say, and 4 -- and I do think there are a lot of pathologists who 5 think, Oh, my cause of death is something like balance of 6 probability. I think -- I personally think that should 7 not be part of any of the thinking of a pathologist in 8 concluding a cause of death. 9 The cause -- in my opinion the cause of 10 death is whatever a true statement is, in other words, 11 the -- the true statement that builds into it any 12 uncertainty. So I can't see myself writing a cause of 13 death which is a 51 percenter, how she got 49 percent 14 of -- 15 COMMISSIONER STEPHEN GOUDGE: But you 16 would resist me trying to locate you anywhere on a scale 17 of one (1) to a hundred (100), wouldn't you? 18 DR. STEPHEN CORDNER: And -- and I'm just 19 talking now about in my opinion the cause of death is 20 when a blah, blah... 21 COMMISSIONER STEPHEN GOUDGE: Okay. 22 DR. STEPHEN CORDNER: What is on that top 23 line is a -- as far as I'm concerned, a true statement. 24 It's not -- I haven't -- I've tried to encapsulate in 25 that statement -- and sometimes it runs two (2) -- two

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1 (2) or three (3) lines, so -- because I think this is -- 2 this is, you know, one (1) of the key deliverables, one 3 (1) of the key consumables, of the forensic pathologist's 4 work is the cause of death. 5 So I think you have to put a lot of work 6 in to make sure that that statement is a true statement, 7 which means, in my way of thinking, encapsulating any 8 degrees of uncertainty in it, which is -- goes back to 9 the -- 10 COMMISSIONER STEPHEN GOUDGE: By true you 11 mean it accurately reflects -- 12 DR. STEPHEN CORDNER: Yes. Yeah. 13 COMMISSIONER STEPHEN GOUDGE: -- your 14 thought process. 15 DR. STEPHEN CORDNER: My opinion. And 16 that goes back to what Professor Milroy said right at the 17 beginning, that a -- somebody writing Shaken Baby 18 Syndrome and somebody else writing hypoxic-ischemic -- 19 COMMISSIONER STEPHEN GOUDGE: Yes. 20 DR. STEPHEN CORDNER: -- encephalopathy 21 in a baby with a thin smear of subdural hemorrhage and 22 retinal hemorrhages. 23 COMMISSIONER STEPHEN GOUDGE: Right. But 24 when you say the cause of death, as in the report has to 25 be a true statement; that means it reflects accurately

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1 what's gone in your -- 2 DR. STEPHEN CORDNER: And incorporates 3 the uncertainty within a -- 4 COMMISSIONER STEPHEN GOUDGE: As opposed 5 to it is an actual factual assertion of how death 6 happens. 7 DR. STEPHEN CORDNER: Yes. 8 COMMISSIONER STEPHEN GOUDGE: You don't -- 9 DR. MICHAEL POLLANEN: There -- there are 10 two (2) dimensions on that, though. There are two (2) 11 concepts there. The first is, what Professor Cordner is 12 -- is advocating there, is a type of cause of death 13 statement which is descriptive, sort of give -- sort of 14 in the difficult case, we sometimes -- we sometimes give 15 a descriptive cause of death which is more -- it's less 16 causally specific in some circumstances and more, well, 17 demonstrative of the case. That's the first concept. 18 The second concept is that whether we like 19 it or not, these -- all of these determinations do exist 20 on a sliding scale depending on what we're considering. 21 So for -- you can pick -- 22 COMMISSIONER STEPHEN GOUDGE: A sliding 23 scale of firmness or certainty? 24 DR. MICHAEL POLLANEN: -- which varies 25 between practitioners. Given the same certain -- same

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1 controversial case -- 2 COMMISSIONER STEPHEN GOUDGE: Right, 3 right. 4 DR. MICHAEL POLLANEN: -- some people -- 5 COMMISSIONER STEPHEN GOUDGE: Right. 6 DR. MICHAEL POLLANEN: -- are going to 7 say A, some people are going to say B -- 8 COMMISSIONER STEPHEN GOUDGE: Right. 9 DR. MICHAEL POLLANEN: -- they're going 10 to -- they're -- if they're practicing -- 11 COMMISSIONER STEPHEN GOUDGE: But are 12 they each in their own way on a sliding scale of 13 certainty? 14 DR. MICHAEL POLLANEN: Well, they may be, 15 but they certainly are in contrast to one another, do you 16 see what I mean? And -- and -- 17 COMMISSIONER STEPHEN GOUDGE: One (1) 18 could be more certain than another one (1). 19 DR. MICHAEL POLLANEN: Or -- or one (1) 20 is more certain than the other about giving a 1) A bottom 21 line and the other one (1) says I recognize that as 22 reasonable, but for me it doesn't reach my threshold, so 23 I'm going to call it something else. 24 But both pathologists are functioning 25 adequately within a proper framework and essentially will

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1 be communicating about the same thing to the Court, but 2 it will not be encapsulated in language like on the 3 balance of probabilities or beyond a reasonable doubt. 4 DR. CHRISTOPHER MILROY: I was just going 5 to -- I was just going to add what -- what was on the -- 6 and I think it still is on the medical certificates of 7 the cause of death in England, what you certify to the 8 best of my knowledge and belief, and this is what the 9 statement may have. 10 COMMISSIONER STEPHEN GOUDGE: And that 11 gets back to Dr. Cordner -- 12 DR. CHRISTOPHER MILROY: And it gets 13 back -- 14 COMMISSIONER STEPHEN GOUDGE: -- it's a 15 true statement. 16 DR. CHRISTOPHER MILROY: Yeah, but it -- 17 it -- 18 COMMISSIONER STEPHEN GOUDGE: That sort 19 of doesn't solve the basic problem, though, of how 20 certain is the true statement in the mind of the holder 21 of it. 22 DR. CHRISTOPHER MILROY: Indeed, but it - 23 - the -- I think -- I suppose the -- I mean the belief in 24 this case is not supposed to be an article of faith, of 25 course --

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1 COMMISSIONER STEPHEN GOUDGE: Yes, I 2 know -- 3 DR. CHRISTOPHER MILROY: -- but one hopes 4 we do live in evi -- an evidence-base, but you -- it is - 5 - it does I think show up to the -- to the best of my 6 knowledge, and your knowledge, of course, depends on what 7 you have put into the -- to the opinion. 8 9 CONTINUED BY MR. MARK SANDLER: 10 MR. MARK SANDLER: Well, can I -- can I 11 put a scenario here, to put some meat on the bones, and 12 it would just be interesting to see how each of you would 13 deal with -- with this. 14 Let's assume that -- that you have the 15 triad and nothing else. There's no other positive 16 pathology in the case, and you've also been given an 17 explanation or history from the caregiver that 18 incorporates a short fall. 19 All right, Dr. Pollanen, you've got to 20 write a report on that case. What are you going to 21 write? 22 DR. MICHAEL POLLANEN: Well, we're 23 talking hypothetical. 24 MR. MARK SANDLER: We are. 25 DR. MICHAEL POLLANEN: Right. Because --

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1 because cases are very different from this type of 2 discussion that we're talking about -- 3 MR. MARK SANDLER: Of course, and I've -- 4 DR. MICHAEL POLLANEN: We're -- 5 MR. MARK SANDLER: -- oversimplified 6 greatly -- 7 DR. MICHAEL POLLANEN: Right. 8 MR. MARK SANDLER: -- just -- just I'm 9 really interested in -- 10 DR. MICHAEL POLLANEN: We're at the -- 11 MR. MARK SANDLER: -- in the thought 12 process of how you articulate the controversies and the 13 concerns surrounding that case. 14 DR. MICHAEL POLLANEN: Well, I've 15 testified quite a lot about that, so I'll just give a 16 very abbreviated view about it. I would give the cause 17 of death in that circumstance as a descriptive term, I 18 would not say head injury. I would not say Shaken Baby 19 Syndrome. I would give the cause of death descriptively. 20 And I would -- I would then in the 21 opinion -- 22 MR. MARK SANDLER: Could you just explain 23 to the Commissioner what -- what you mean when you say 24 you'd give it "descriptively"? Give us an example of 25 what you might say.

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1 DR. MICHAEL POLLANEN: Subdural 2 hemorrhage and hypoxic-ischemic encephalopathy in an 3 infant with retinal hemorrhages. 4 MR. MARK SANDLER: Okay. 5 DR. MICHAEL POLLANEN: Basically the 6 triad -- 7 MR. MARK SANDLER: Yeah. 8 DR. MICHAEL POLLANEN: I'm just listing 9 the triad. 10 COMMISSIONER STEPHEN GOUDGE: Right. 11 DR. MICHAEL POLLANEN: And -- and -- 12 13 CONTINUED BY MR. MARK SANDLER: 14 MR. MARK SANDLER: You're -- you're 15 reciting the pathology? 16 DR. MICHAEL POLLANEN: I'm reciting the 17 descriptive elements of the pathology. And I'm deferring 18 interpretation of that description into my opinion 19 section. 20 MR. MARK SANDLER: Okay. 21 DR. MICHAEL POLLANEN: And then in the 22 opinion section, I would now essentially describe the 23 collision. The collision between the clinical and 24 anecdotal evidence, and the biomechanical and scientific 25 evidence, basically saying that there is a tension

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1 between the two (2), the tension has not been 2 satisfactorily resolved, in my own understanding of the 3 issues. 4 And -- and I would do probably a longer 5 report than many people would do in such a case. And -- 6 and I would also be mindful to discuss the evidence-base. 7 You know, for example, one thing that you do not want to 8 get into in a -- in a triad case is have any doubt 9 whether or not, for example, there are retinal 10 hemorrhages or there is a subdural. 11 So I mean I would close off those elements 12 of it first, make my opinion reviewable so if another 13 pathologist came along, we're at the same starting point 14 and -- and the only thing -- the only distance we have to 15 travel is -- is interpretation as opposed to observation. 16 So I would situate it like that and then I 17 would describe the collision. I would give my best view 18 of it at this point in time, and -- and then give the 19 cause of death -- 20 MR. MARK SANDLER: And -- 21 COMMISSIONER STEPHEN GOUDGE: By 22 collision you're talking about the controversy in the 23 literature? 24 DR. MICHAEL POLLANEN: Yes. 25 COMMISSIONER STEPHEN GOUDGE: As opposed

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1 to the collision in the specific case? 2 DR. MICHAEL POLLANEN: Right. 3 COMMISSIONER STEPHEN GOUDGE: You would 4 describe the controversy as it now exists? 5 DR. MICHAEL POLLANEN: Right. Yes, I 6 would -- I basically say that, you know, there is a body 7 of medical opinion -- 8 COMMISSIONER STEPHEN GOUDGE: Right. 9 DR. MICHAEL POLLANEN: -- that's 10 credible, it's well recognized, it's anecdotally 11 supported, and it's widely held; that the triad is equal 12 shaking injury. I would say that 'cause that's true. 13 And then I would also say there is a significant body of 14 information that is sceptical about that conclusion. 15 And that in my interpretation, the way I 16 interpret that dichotomy is that the best approach at 17 this juncture is a description of the case situating my 18 opinion within the current state of affairs, recognizing 19 that the state of affairs might be very different when 20 somebody produces a relevant -- 21 COMMISSIONER STEPHEN GOUDGE: Additional 22 fact? 23 DR. MICHAEL POLLANEN: Exactly, yes. 24 25 CONTINUED BY MR. MARK SANDLER:

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1 MR. MARK SANDLER: And -- and let's 2 assume that you're going to deal in some way with the 3 history of the short fall. How would you deal with that? 4 DR. MICHAEL POLLANEN: Well, the last 5 time I -- I dealt with that, I went to the scene 'cause I 6 wanted to see what the surfaces were; how high they were. 7 So I probably -- I would probably start with a dictation 8 of the scene, and then I would talk about other -- you 9 see the point there being is I want to ground it in 10 something. 11 MR. MARK SANDLER: Right. 12 DR. MICHAEL POLLANEN: And then I would - 13 - I would go -- and it might be digital photographs. I 14 mean, the reason I went to that scene, it was a very 15 convenient scene to go to; but ground it in some fact- 16 base of the case and then describe its significance. 17 If it was a well-developed history of the 18 fall and there was ancillary information that was 19 important, such as there was a -- a depression in the 20 wall where a head might have been slammed or some -- 21 something like this, then I would discuss those facts in 22 the context of the case. 23 Clearly, if the short fall scenario was 24 given, I would discuss why or why -- why there is not a 25 bruise and could that be -- can you see a -- a contact

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1 injury of the head in a short fall without a bruise and 2 yet the -- the impact as being lethal. I would discuss, 3 as best I could, that issue. 4 MR. MARK SANDLER: And back to language 5 for a moment, let's assume that at the end of all that 6 investigative work and analytical process, you were of 7 the view that the short fall is highly unlikely to 8 explain the injuries in this case, but cannot be 9 excluded. 10 How -- how would you articulate that? 11 DR. DAVID CHIASSON: I thought Mr. 12 Sandler did a pretty good job of articulating. 13 DR. MICHAEL POLLANEN: I'm just -- I 14 mean, that's the point. I mean, you said "highly likely" 15 that you cannot exclude. That's -- that's actually 16 probably the language I would have used. 17 MR. MARK SANDLER: Is that the language? 18 DR. MICHAEL POLLANEN: Yeah. I mean, if 19 I felt that were true, that's what I would say. 20 MR. MARK SANDLER: Oh, of course, yeah. 21 Two (2) other questions for you and then I'm going to ask 22 very similar questions right down -- right down the 23 table. 24 Dr. Pollanen, let's assume that on that 25 very case, another forensic pathologist in Ontario looks

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1 at everything you've looked at, discusses it with you 2 fully, but is a member of a school of thought that would 3 put that person on the other end of the spectrum. 4 You might describe that person as a -- as 5 a proponent, or a stronger proponent of a -- of a shaking 6 theory, what have you, all right -- and issues a report 7 that says, In my opinion, this is a shaken baby. Should 8 those two (2) reports co-exist in the Ontario system, or 9 should there be some way of reconciling them, or should 10 there be some way of alerting the Criminal Justice System 11 to that dichotomy, if witness 1 is testifying in the case 12 as opposed to witness 2, or witness 1 and 2? 13 DR. MICHAEL POLLANEN: Well, I mean, I -- 14 I strongly believe that the -- the court needs to be 15 informed by all relevant views. So -- so the whole scope 16 of expert opinion on these controversial issues need to 17 be given to the trier of fact. 18 I mean, that's the whole point. In a case 19 where you have a controversy, then -- and the -- the 20 trier of fact is put into a sit -- into a situation of 21 trying to make sense of controversial medical evidence, 22 they need to be aware of that controversy, and therefore, 23 if there are two (2) opposing views, that it's extremely 24 beneficial that those are -- are put forward. 25 MR. MARK SANDLER: So the follow-up

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1 question is, that the other pathologist who works at a 2 hospital -- or for that matter, in Dr. Chiasson's Unit -- 3 drafts up a report and says, This in unequivocally a 4 shaking case. 5 No discussion of the literature, no 6 discussion of the -- of the controversy, and that person 7 says, In -- in my opinion, and it is my opinion, I'm very 8 comfortable, based upon my own review of the literature 9 and the state of pathology, saying that this is a shaken 10 case. 11 That report crosses your desk. What do 12 you do with the report? 13 DR. MICHAEL POLLANEN: Well, it would go 14 through our peer review system. 15 MR. MARK SANDLER: Okay. It's gone 16 through the peer review system, and what's the feedback 17 on that report? 18 DR. MICHAEL POLLANEN: You're asking very 19 tough questions, Mr. Sandler. 20 MR. MARK SANDLER: I told you they'd get 21 harder after the break. 22 DR. MICHAEL POLLANEN: Well, the -- what 23 I would do is I would -- I would ask for a case 24 conference in that case because I think there needs -- 25 there would need to be some discussion.

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1 But I'm going to assume that -- that the 2 position is firmly held. 3 MR. MARK SANDLER: Right. 4 DR. MICHAEL POLLANEN: And that there -- 5 that further con -- professional consultation, 6 collaboration, et cetera, is still -- results in a 7 polarization. Well, then I would have to say, According 8 to our current peer review, that I did not agree with the 9 cause of death. 10 COMMISSIONER STEPHEN GOUDGE: Would it be 11 best practice, Dr. Pollanen, for that report -- even 12 though the view was firmly held, perhaps after a case 13 conference -- for the report, at least, to acknowledge 14 the controversy? 15 Even -- that is, you answered Mr. Sandler 16 by saying, I would describe both sides of the 17 controversy, and then simply give a descriptive cause of 18 death. A colleague could legitimately describe the 19 controversy, and then say, I view -- my own position is I 20 accept the triad in this case as cause of death, shaken 21 baby. 22 At least, would best practice be where 23 there is a clearly well-understood area of controversy 24 for the report, whether it concludes as you did or as my 25 hypothetical did, at least, acknowledges that the

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1 controversy exists? 2 DR. MICHAEL POLLANEN: I -- I agree. I 3 think that's highly -- that's a very good approach. 4 That's -- in my view, would be best practice. But to -- 5 just to follow your question, is that -- I have -- I 6 would not, in my circumstance, say to the pathologist, 7 you must. 8 COMMISSIONER STEPHEN GOUDGE: Yes. 9 DR. MICHAEL POLLANEN: I mean, clearly -- 10 COMMISSIONER STEPHEN GOUDGE: You must 11 change your cause of death finding. 12 DR. MICHAEL POLLANEN: Yeah, clearly they 13 -- they are the witness, they did the post-mortem, they 14 have -- 15 COMMISSIONER STEPHEN GOUDGE: They're 16 entitled to their independent opinion. 17 DR. MICHAEL POLLANEN: And -- and that's 18 a healthy thing. 19 COMMISSIONER STEPHEN GOUDGE: Yes. 20 DR. MICHAEL POLLANEN: That's a very 21 healthy thing. 22 COMMISSIONER STEPHEN GOUDGE: Right. 23 DR. MICHAEL POLLANEN: And -- and -- we 24 should not be, for example, trying to influence 25 alterations of reports in any way. But in that

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1 circumstance what I would do, is I would -- I would write 2 another view. 3 COMMISSIONER STEPHEN GOUDGE: And you 4 would also, I assume, say best practice is for you to add 5 to your report the existence of the controversy? 6 DR. MICHAEL POLLANEN: Yes. Yes. And -- 7 and they would -- what I'm saying is that they would be 8 available to accept or reject that advice that -- that I 9 would give them. You know, I would suggest that they -- 10 COMMISSIONER STEPHEN GOUDGE: I see. 11 DR. MICHAEL POLLANEN: -- I would say -- 12 COMMISSIONER STEPHEN GOUDGE: So it would 13 not just be you'd give them advice about what your view 14 was on the ultimate cause of death, but they would be 15 free to reject your advice about the desirability of 16 putting in the existence of the controversy? 17 DR. MICHAEL POLLANEN: Yeah, I mean, it's 18 their report. They're the -- they're the med -- medical 19 expert going to court. They have to do what they think 20 is right and proper in their report 21 COMMISSIONER STEPHEN GOUDGE: But why 22 wouldn't -- why wouldn't a best practice include 23 elucidating or describing a controversy every bit as much 24 as you are prepared to have best practice include 25 recitation of the autopsy findings and the reasoning for

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1 -- I mean, everybody says, Yes, that is good practice. 2 DR. MICHAEL POLLANEN: It is best 3 practice. 4 COMMISSIONER STEPHEN GOUDGE: Why 5 wouldn't you say it is best practice to include the 6 existence of the controversy as well? 7 DR. MICHAEL POLLANEN: It is best 8 practice, but what I'm saying is that we don't have -- 9 nobody can make another pathologist or shouldn't attempt 10 to make another pathologist to change their report into - 11 - into something that they're not comfortable with doing. 12 You can suggest the person does that, but 13 you can't -- you can't make them do it. 14 15 CONTINUED BY MR. MARK SANDLER: 16 MR. MARK SANDLER: But, Dr. Pollanen, 17 again to take this one (1) step further, you've got 18 employees working for you at the morgue? 19 DR. MICHAEL POLLANEN: Mm-hm. 20 MR. MARK SANDLER: And if one (1) of 21 those employees would prepare a report that set out this 22 is a shaking case with no acknowledgement of the 23 controversy that exists, are -- aren't you differently 24 situated in terms of one of your employees than you would 25 be if it were one of the employees at the hospital

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1 working for Dr. Chiasson? 2 DR. MICHAEL POLLANEN: Well -- 3 MR. MARK SANDLER: I guess -- 4 DR. MICHAEL POLLANEN: I guess -- 5 MR. MARK SANDLER: Let me just ask you 6 another way, which -- which in essence is, is there -- is 7 there any stage at which you're entitled to say, You work 8 for me; this is not an acceptable way in which to prepare 9 a post-mortem report without acknowledging, at least, the 10 controversy. It -- it won't go out in that form. 11 DR. MICHAEL POLLANEN: You know, I -- I 12 have trouble with that, frankly, because I think we have 13 to be very careful not to interfere with other people's 14 professionalism. If -- if they hold a view that we think 15 is incorrect, it's -- it's really up to them to be 16 incorrect if they want to be. 17 COMMISSIONER STEPHEN GOUDGE: So the best 18 practice is nothing more than hortatory? 19 DR. MICHAEL POLLANEN: Yes, I -- well, I 20 think that -- what we need to -- in that circumstance -- 21 I just want to come to the conclusion of what I would do 22 in that circumstance. If -- if there was complete 23 polarization, that there -- and there was no 24 satisfaction, there was no resolution -- this is a highly 25 artificial circumstance because it's hard to imagine that

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1 actually occurring, but in any event, if it did, I would 2 simply provide the balance by writing a -- a separate 3 report. 4 And I would make sure that the report then 5 -- whenever the PM report went to the Criminal Justice 6 System, for example, that the other report would go 7 balancing it off. But I -- I think, ultimately, would be 8 improper for any pathologist, essentially, in an employer 9 -- employee/employer relationship to say, I'm the boss. 10 I trump your judgment. 11 I -- I don't think that's -- I think 12 that's -- that gets into a very slippery slope because 13 then you're essentially -- it's becoming an autocratic- 14 type process where you're essentially changing people's 15 views on -- based upon what your view is which might not 16 be correct in some circumstances, for example, and 17 certainly it just doesn't feel right to me. It doesn't 18 feel proper to me. 19 20 CONTINUED BY MR. MARK SANDLER: 21 MR. MARK SANDLER: Dr. Cordner, what do 22 you say about this? 23 DR. STEPHEN CORDNER: Well, look this is 24 a -- ultimately, if there is poor professional 25 performance by a member of the organization that is going

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1 to reflect upon the organization, not only on the 2 individual. So the organization's got to do something 3 about that. 4 And in reflecting on the organization, 5 will reflect upon the leadership of the organization, 6 individually because the organization's professional 7 values will reflect the values of the later, but also 8 reflect the values of the group. 9 So the organization has to respond to poor 10 professional performance by one of its members. So the 11 response would have to be, Well, we have to get the group 12 together. We have to agree what is acceptable in these 13 circumstances. 14 And in the artificial instance that you've 15 provided, if that person holds out, well then we've got a 16 -- a group view and your view is now very much in the 17 minority. I'm terribly sorry, but I'm -- now the 18 standard for the organization to -- starting to get into 19 -- in this very artificial situation, you'd be starting 20 to get into something that could have disciplinary 21 consequences if that person persists in not conforming to 22 what the standards of the organizations are -- of what 23 the standard of the organization -- are. 24 COMMISSIONER STEPHEN GOUDGE: Is it 25 possible, Dr. Cordner, to distinguish between the

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1 professional judgment necessary to provide the ultimate 2 diagnosis, which I hear all of you saying must be 3 protected, as something that the individual pathologist 4 has the right to conclude in his or her own way. 5 And since we're on report writing, the 6 best practice for what must proceed that, and we've 7 talked about what evidence-based post-mortem reports 8 require, you know, facts, reasoning, and so on. 9 And say, professional independence does 10 not justify a departure from the second, it does provide 11 the individual the right to come to the diagnosis 12 themselves. Is that a feasible distinction? 13 DR. STEPHEN CORDNER: Yeah, I think 14 probably the discipline has work to do to, you know, 15 create a higher level of uniformity on a higher plane on 16 -- along those sort of lines. 17 COMMISSIONER STEPHEN GOUDGE: And you 18 wouldn't see somebody being able to say with legitimacy, 19 Professional independence allows me to say, I'm writing 20 my reports the way I did fifteen (15) years ago. Go take 21 a hike? 22 DR. STEPHEN CORDNER: Well it does, but I 23 mean, that -- that person -- you're going to lose -- lose 24 standing and reputation. 25 COMMISSIONER STEPHEN GOUDGE: Okay.

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1 DR. MICHAEL POLLANEN: Just -- just to 2 close the loop on that, I think Stephen answered the 3 question at a different level then I was answering it on. 4 I was answering it on what I would do if I was the peer 5 reviewer of the -- of the report. 6 And what remedy I -- I thought would be 7 relevant in -- in the report then going to the courts. 8 But clearly if you have a situation where a person is 9 outside of -- of sort of the standard deviation of what 10 we -- what the organization would consider to be, you 11 know, reasonable, then you would have to -- in addition 12 to those indiv -- individual approaches that we've talked 13 about, engage other approaches. There's no question 14 about that. 15 But I -- but I come back to the -- you 16 know, the very sort of specific example that you've 17 given, and that is that we cannot be in a -- in a 18 circumstance where any one (1) person says, You're wrong, 19 and substitute my view. That -- that cannot occur. 20 21 CONTINUED BY MR. MARK SANDLER: 22 MR. MARK SANDLER: On the merits? 23 COMMISSIONER STEPHEN GOUDGE: No, he 24 says -- 25 MR. MARK SANDLER: On the merits as

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1 opposed to the report writing? 2 DR. MICHAEL POLLANEN: Correct. Yeah. I 3 mean it's got -- these -- these people -- 4 COMMISSIONER STEPHEN GOUDGE: Let me 5 spell it out. Could you say, You're wrong for not 6 including the findings at autopsy in your report? 7 DR. MICHAEL POLLANEN: Well, I mean, 8 that's a mistake, you see. That's -- that's -- 9 COMMISSIONER STEPHEN GOUDGE: Well why 10 couldn't I as a pathologist working with you say, Too 11 bad, I don't think I'm wrong. I'm just going to recite 12 cause of death, no facts? 13 DR. MICHAEL POLLANEN: Well, I mean, the 14 -- I guess the bottom line is that if you have a stab 15 wound in the chest, and the person hasn't -- hasn't 16 described the stab wound to the chest, but gives the 17 cause of death as a stab wound to the chest, I mean, you 18 know, that's simply such -- it falls beneath any lev -- 19 acceptable level of -- of reporting that on the face of 20 it, it would -- even on a clerical level would be 21 unacceptable. 22 COMMISSIONER STEPHEN GOUDGE: Right. 23 DR. MICHAEL POLLANEN: We're talking 24 about something that -- very different here. We're 25 talking about interpretation in the grey zone and how to

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1 deal with those issues. 2 COMMISSIONER STEPHEN GOUDGE: Yes, and 3 clearly professional independence needs protection there. 4 DR. MICHAEL POLLANEN: Yes. 5 6 CONTINUED BY MR. MARK SANDLER: 7 MR. MARK SANDLER: Dr. Chiasson, you 8 haven't been asked to comment on this. Do you want to 9 add to this discussion? 10 DR. DAVID CHIASSON: Well, I think that 11 there -- there -- just the comment on the issue, I -- I 12 agree with Michael completely in the issue of the 13 individual pathologist. And having been in the same -- 14 same role and position, I think it's very important that 15 one respects that a pathologist is entitled to his 16 opinion whether you agree with it or not. 17 The issue though as far as following a 18 certain protocol, I mean, I -- I think certainly if a 19 pathologist is my employee, and I have a set of 20 guidelines, I expect them to do an autopsy as per this 21 protocol. And to include as part of this protocol, that 22 there's issues about -- or there's ways in which to word 23 your -- your report, and guidelines into that. 24 And -- and the pathologist wasn't 25 following that, I think it's a different issue from

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1 ultimately rendering an opinion that you might disa -- 2 disagree with. So I think that -- 3 COMMISSIONER STEPHEN GOUDGE: Yes, those 4 are -- I mean I put it to you as a potential to seem -- 5 it does seem to me those are two (2) quite different 6 things. 7 DR. DAVID CHIASSON: They are, I think, 8 quite two (2) -- two (2) different things, and I think 9 there's -- there's much more of a employer/employee 10 dealing with that -- Listen, you know, I expect that 11 things are going to be done this way. 12 If -- if at the end of the day, after 13 saying there's controversy about Shaken Baby Syndrome, he 14 concludes that it's Shaken Baby Syndrome -- 15 COMMISSIONER STEPHEN GOUDGE: Fair 16 enough. 17 DR. DAVID CHIASSON: Fair enough. But at 18 least he's got -- 19 COMMISSIONER STEPHEN GOUDGE: Right. 20 DR. DAVID CHIASSON: So I think you would 21 have a little more weight to -- to bear on -- on that -- 22 COMMISSIONER STEPHEN GOUDGE: Right. 23 DR. DAVID CHIASSON: -- particular issue. 24 25 CONTINUED BY MR. MARK SANDLER:

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1 MR. MARK SANDLER: Well, Dr. Chiasson, 2 just while we're on that, if there's some scope in the 3 employer/employee relationship to say that your report or 4 your conduct of the autopsy falls outside of the 5 protocols, then in my view, govern your work, what about 6 the situation where Dr. Pollanen is not the employer of 7 those who work within your Unit, how -- how do you get 8 that same accountability for your employees than he has 9 for his employees? 10 DR. DAVID CHIASSON: Well, I -- I think 11 that's a challenge, but I think that -- I mean the -- the 12 relationship between the Coroner's Office and -- and the 13 Unit is governed by a document, a contract, that includes 14 an appendix that it addresses -- perhaps not as 15 adequately as it should -- the roles and responsibilities 16 of the Director of the Unit, for example. 17 And I think that, you know, we need to 18 look at that contract and -- and to ensure that, you 19 know, 1) the Chief Forensic Pathologist is -- is named in 20 the contract which is not the current situation, and that 21 the -- the roles and responsibilities and -- and 22 accountability to the Chief Forensic Pathologist is, in 23 fact, put into that -- that contract in a very clear way. 24 And I would find then that, yes, there -- 25 there would be -- you know, I'm accountable to -- as the

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1 Director to -- and -- and all my people working under me 2 would be accountable, ultimately, to the Chief Forensic 3 Pathologist in such and such matters, which I think would 4 give him, at least, some clout as far as coming back and 5 saying, Listen, you know, you're not -- again, you know, 6 these are -- as -- as being part of a Unit, you know, I'm 7 expected to follow guidelines -- criminally suspicious 8 guidelines, et cetera. 9 And if I'm not following those guidelines, 10 then I think he has certainly a leverage to come and say, 11 Listen, you know, this isn't working out and -- and go 12 from there. 13 MR. MARK SANDLER: So your ideas create 14 in effect the contractual proxy for the employer/employee 15 relationship. 16 DR. DAVID CHIASSON: If you -- yeah, I 17 mean I'm not a lawyer and don't -- don't understand 18 nuances in that -- 19 COMMISSIONER STEPHEN GOUDGE: But just to 20 -- just -- 21 DR. DAVID CHIASSON: -- but I think, you 22 know -- 23 COMMISSIONER STEPHEN GOUDGE: You've been 24 in both positions, both Dr. Pollanen's position and now 25 as Director of one (1) of the Units, Dr. Chiasson, and as

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1 a matter of fairness, leave aside what lawyers and -- 2 might be up to, does it make sense that part of the 3 contractual relationship between each of the Units and 4 the Chief Coroner's Office be that the pathologists in 5 the Unit will comply with the guidelines that are set out 6 by the Chief Forensic Pathologist? 7 DR. DAVID CHIASSON: Yes, as -- as the 8 guide -- and the guidelines are meant to be guidelines, 9 but -- 10 COMMISSIONER STEPHEN GOUDGE: Yes, yes, 11 fair enough. 12 DR. DAVID CHIASSON: -- you know, you 13 need -- 14 COMMISSIONER STEPHEN GOUDGE: Fair 15 enough. 16 DR. DAVID CHIASSON: -- some -- some 17 flexibility -- 18 COMMISSIONER STEPHEN GOUDGE: But as a 19 way of producing some approximation of uniformity in the 20 Forensic Pathology System in Ontario, is the vehicle to 21 get there the contractual relationship between the Chief 22 Coroner's Office and the Units? 23 DR. DAVID CHIASSON: I -- I think that's 24 what's evident to me at -- at the present time -- 25 COMMISSIONER STEPHEN GOUDGE: What do you

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1 say about that, Dr. Pollanen? 2 DR. MICHAEL POLLANEN: I think that's -- 3 that's one (1) part of it. 4 COMMISSIONER STEPHEN GOUDGE: Yes. 5 DR. MICHAEL POLLANEN: I think the other 6 part will be the Registry. 7 COMMISSIONER STEPHEN GOUDGE: Right, 8 right. 9 DR. MICHAEL POLLANEN: Because the -- 10 because I -- I imagine that the Registry, and perhaps 11 Chris will tell us about the Home Office arrangements, 12 but -- but it may be something like an MOU between the 13 individual pathologist or some statement that -- that 14 pathologists that are -- that are on the Registry -- 15 COMMISSIONER STEPHEN GOUDGE: Part of 16 being on the Registry involves the guidelines and 17 adherence to them? 18 DR. MICHAEL POLLANEN: Correct, yes. 19 COMMISSIONER STEPHEN GOUDGE: Is that the 20 way the Home Office works, Chris? 21 DR. CHRISTOPHER MILROY: Yeah, you are -- 22 you are -- 23 COMMISSIONER STEPHEN GOUDGE: Is there an 24 actual contractual arrangement? 25 DR. CHRISTOPHER MILROY: That's a very

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1 interesting question, and the answer is no because the -- 2 the Home Office say very specifically they do not employ 3 people and the do not determine how people are employed, 4 and therefore, there cannot be a direct contractual 5 relationship. But it's sort of -- the understanding is 6 if you're on the Home Office list, you have to comply 7 with the regulations and guidelines, and than if you fail 8 to comply with those, then you can be subject to 9 discipline. 10 COMMISSIONER STEPHEN GOUDGE: In the Home 11 Office process. 12 DR. CHRISTOPHER MILROY: In -- in the 13 Home Office process, which is ultimately to be removed 14 from the -- 15 COMMISSIONER STEPHEN GOUDGE: Right. 16 DR. CHRISTOPHER MILROY: -- Home Office 17 list -- 18 COMMISSIONER STEPHEN GOUDGE: Right. 19 DR. CHRISTOPHER MILROY: -- which 20 effectively terminates your ability to work as a forensic 21 pathologist. 22 COMMISSIONER STEPHEN GOUDGE: Right. 23 24 CONTINUED BY MR. MARK SANDLER: 25 MR. MARK SANDLER: I think, Dr. Cordner,

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1 you wanted to have the last word before lunch? 2 DR. STEPHEN CORDNER: Well, just very, 3 very briefly, Mr. Sandler. Just to say, you used the 4 word "contractual proxy." And I think proxy's generally 5 are second best. 6 And so I'll just throw in there just that 7 actually the best arrangement is to have unification of 8 the particular function, and -- and the most direct 9 possible relationships to ensure the standards, the 10 proxy's along the lines of communication, and -- and 11 weaker. 12 MR. MARK SANDLER: All right. 13 Commissioner, we'll probably take our remaining hour and 14 fifteen (15) minutes to solve all of our problems at this 15 Inquiry, but this would be a convenient time to break. 16 COMMISSIONER STEPHEN GOUDGE: Okay. We 17 will adjourn then for an hour and fifteen (15) minutes. 18 Thank you. That was a very interesting morning. 19 20 --- Upon recessing at 12:20 p.m. 21 --- Upon resuming at 1:40 p.m. 22 23 THE REGISTRAR: All rise. 24 COMMISSIONER STEPHEN GOUDGE: Please sit 25 down.

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1 Mr. Sandler...? 2 3 CONTINUED BY MR. MARK SANDLER: 4 MR. MARK SANDLER: Thank you, 5 Commissioner. 6 Dr. Chiasson, before our lunchbreak, I 7 asked Dr. Pollanen how he would address a situation in 8 which the triad was present and -- and nothing else with 9 a history of a short fall. 10 Could you describe what your approach 11 would be in the writing up of a report relevant to that 12 scenario. 13 DR. DAVID CHIASSON: Well, in the 14 situation at the Hospital for Sick Children part of the 15 process -- and I think just to raise that -- would be -- 16 would involve the pediatric neuropathologist. Certainly, 17 the brain would be examined formally by them and a report 18 prepared by them. 19 And -- and how they word their -- their 20 findings and their conclusions as to the specific 21 neuropathology findings, they -- they would not address 22 cause of death, but they do give you neuropathologic 23 diagnosis. You have to be able to -- to work with -- 24 within the context of -- of that. 25 In such cases -- and -- and the usual

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1 situation is that there's a period of survival in -- in 2 such infants. They make to hospital, they survive it, 3 and then they have hypoxic-ischemic encephalopathy. 4 I -- I think Michael when he suggested a 5 diagnosis, started off with subdural hemorrhage hypoxic- 6 ischemic encephalopathy in a child with -- or infant with 7 petechial hemorrhages in -- in the eyes, retinal 8 hemorrhages, I -- I would turn it around and say hypoxic- 9 ischemic encephalopathy is -- is number one. And I -- I 10 think -- because we're not dying of the subdural 11 hemorrhage, it's a finding and -- if you will. 12 So that -- that I think is -- is the crux 13 of the cause of death statement, if you will, a 14 descriptive terminology. 15 And then, you know, the backtrack into the 16 body of the report and the summary would be a discussion 17 of the -- of the significance, potential mechanisms of 18 the -- of the findings incorporating the circumstantial 19 information that may be available at that time. 20 I, unlike Dr. Pollanen -- I -- I think if 21 you've -- if you've looked at our reports, he -- he would 22 have much more elaborate discussion about the -- the 23 findings and the conclusion. I -- I tend to be more 24 minimalistic, would suggest something along the lines of 25 that, you know, this has been described in -- in so-

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1 called Shaken Baby Syndrome that's a diagnostic 2 consideration, but -- but this is an area of controversy, 3 and -- and the specific mechanism at play here is -- is 4 unclear. Make a comment that if it is a short fall 5 potential scenario that there is no evidence of an impact 6 as one might often expect in a short fall causing a head 7 injury, but kind of leaving it as a little -- certainly a 8 bit up in the air in terms of the -- of the discussion. 9 So fairly similar to what Michael has 10 basically elaborated, a little more abbreviated. 11 MR. MARK SANDLER: Okay. Dr. Milroy...? 12 DR. CHRISTOPHER MILROY: This is going to 13 be very easy. I essentially do what Michael does. 14 MR. MARK SANDLER: All right. Dr. 15 Cordner...? 16 DR. STEPHEN CORDNER: I don't think I've 17 got anything more substantial to add, either. I think 18 issues have been canvassed. I think that, you know, to - 19 - to put it very briefly, I think the expectations on the 20 discipline are increasing, the world is more complex and 21 the demands of forensic pathology generally are -- are 22 more, so the discipline has to accommodate the 23 expectations that are increasingly put upon it. 24 MR. MARK SANDLER: All right. 25 COMMISSIONER STEPHEN GOUDGE: Do you

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1 agree with referencing the dispute; the existence of -- 2 DR. STEPHEN CORDNER: Yes. And -- and I 3 -- and an explication -- 4 COMMISSIONER STEPHEN GOUDGE: Right. 5 DR. STEPHEN CORDNER: -- of the -- of the 6 implications and -- 7 COMMISSIONER STEPHEN GOUDGE: Right. 8 DR. STEPHEN CORDNER: -- and -- and I 9 think getting as much of the issues and the aspects of it 10 in writing, so that the -- everybody's got an opportunity 11 to consider these things before the actual -- 12 COMMISSIONER STEPHEN GOUDGE: Right. 13 DR. STEPHEN CORDNER: -- dialogue stands 14 in front of a jury. 15 DR. CHRISTOPHER MILROY: I was going say, 16 it's actually not -- we've had -- we've had comments 17 before about statements, but I mean is says in our -- our 18 -- that's meaning the home office, the Royal College of 19 Pathologist, guidelines that I have to follow in the UK 20 and it says: 21 "The reasoning underlying why where 22 findings are susceptible or alternative 23 explanations, one (1) explanation is 24 favoured." 25 And that would be I think a classic --

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1 this is a classic case where you should lay out the 2 reasonings both ways. 3 COMMISSIONER STEPHEN GOUDGE: Part of 4 that is saying why other alternatives have been -- has 5 been dismissed. 6 DR. CHRISTOPHER MILROY: Yeah, because I 7 mean you can -- obviously you can have every -- what is - 8 - when is something a reasonable body of opinion. You 9 know, some theories start off as crank theories but 10 they're shown to be -- 11 COMMISSIONER STEPHEN GOUDGE: Right. 12 DR. CHRISTOPHER MILROY: -- to have more 13 validity and others have not. 14 15 CONTINUED BY MR. MARK SANDLER: 16 MR. MARK SANDLER: All right. Well, just 17 staying with you for a moment, Dr. Milroy, let's -- let's 18 move away from the situation where the pathology is 19 controversial, but that the findings available to you may 20 not, in your view, permit you to be unequivocal in your 21 opinion. 22 And without taking you to the specific 23 cases that we reviewed, you'll recall that there was one 24 (1) in particular in which you expressed the opinion when 25 you testified some time ago that -- that there was that

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1 you -- you felt that it was highly probable that the 2 circumstances reflected either abuse or non-accidental 3 injury, but you could not exclude the remote possibility 4 of another explanation that had been raised. 5 How do you articulate that in a report? 6 DR. CHRISTOPHER MILROY: Yes, I think I 7 said strong possibility, didn't I, in that case, but 8 there were other ones that couldn't be excluded on the 9 pathology. Well, I think you just have to try and lay 10 out in terms of what you favour, and those that -- 11 alternative explanations you -- you do have to give some 12 likelihood to. 13 MR. MARK SANDLER: Well, that -- that 14 raises the -- 15 DR. CHRISTOPHER MILROY: And -- 16 MR. MARK SANDLER: -- next question -- 17 DR. CHRISTOPHER MILROY: Yeah. 18 MR. MARK SANDLER: -- because in -- 19 explicit in that response is that there is some scale 20 that is being applied, whether it's characterised as 21 possibilities, probabilities, high probabilities, or some 22 degree of certainty. 23 And how do you -- how do you grade? 24 DR. CHRISTOPHER MILROY: Well, I mean I 25 think there are -- there is a -- there is a sort of

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1 difficulty in this in that -- I mean, you be -- and it's 2 this: If you take the population and you do an 3 epidemiological -- you use epidemiological data, if you 4 use epidemiological data on short falls, as an example, 5 the epidemiological data does not support, should we say 6 falls from waist height causing serious injury, but there 7 are individual cases, anecdotal cases, where that 8 happens. 9 And the problem is, of course, in the 10 criminal justice system, you're not trying the 11 population, you're trying that one (1) case. And 12 therefore you can say, Well, the -- the population based 13 studies do not support this, but the individual case 14 studies do, and how can I differentiate between the two 15 (2)? I can't. 16 And I -- I don't think it's for the 17 pathologist then to do more than that. 18 MR. MARK SANDLER: Well, when you say 19 it's not for the pathologist to do more than that, so 20 take us to your thought processes here. You're -- you're 21 thinking precisely along those lines and then you're 22 thinking through how that's going to inform your opinion 23 at the -- at the end of the piece. 24 So what's the thought process and -- and 25 how does that get disgorged onto the written piece of

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1 paper or in court? 2 DR. CHRISTOPHER MILROY: Well I think 3 that it -- it is as we've said, you -- you have all of 4 your -- your data from the post-mortem examination and 5 the surrounding work, and then you have to just lay out 6 in your conclusions, short falls, as an example. 7 The population I'd say -- it -- I've 8 actually said it in a report, epidemiological data does 9 not support short falls causing injury. However, there 10 are anec -- there are individual cases where this has 11 happened, so it's -- it's not -- on a -- on a -- on a 12 population base, it is unlikely, or very unlikely one 13 might use the term, that a short fall could, however, I 14 can't exclude it on an individual case. 15 And it is this difficulty of -- you know, 16 a lot of research is done on populations, but you're 17 focussing down on the individual case. And there may be 18 other circumstantial data. We -- a single stab wound to 19 the chest just -- if that's all you have, it doesn't 20 differentiate whether it's homicide, suicide, or 21 accident. You have to then have other -- and I can't -- 22 if you said to me on a population base is it more likely 23 to be homicide, suicide, or accident? The answer is it's 24 more likely to be homicide. 25 We see far more homicides caused by knives

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1 than we do suicides or accidents. But in this individual 2 case, does the pathology allow me to put weight on any 3 one (1) of those three (3) possibilities? The answer is 4 no. 5 MR. MARK SANDLER: Well, Dr. Pollanen, 6 you've heard what Dr. Milroy has had to say, here's the 7 question: If -- if you agree that -- that there's some 8 internal process that goes on in your mind that grades in 9 some way the likelihood of the various potential 10 diagnosis in the case, can those grades be standardized? 11 Should they be standardized? Or is the 12 answer simply to make the though processes as transparent 13 as possible through greater disclosure? 14 DR. MICHAEL POLLANEN: The latter. I 15 mean, essentially I don't think they can be standardized. 16 MR. MARK SANDLER: Why not? 17 DR. MICHAEL POLLANEN: Because we have -- 18 if you -- if you take the -- the two (2) concepts that 19 have been tossed out already, which is first, balance of 20 probabilities; and second, you know, high degree of 21 medical certainty, or beyond a reasonable doubt; there 22 will be different views about how that -- how those 23 things are to be interpreted by different people. 24 And those views will be -- because we have 25 different internal standards to some extent, and

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1 therefore, how can we establish that, you know, David, 2 Chris and -- and Stephen are at the balance of 3 probabilities is the same as mine? 4 So there's -- it's this in sort of cross- 5 practitioner consistency that I don't think we could ever 6 get to. But here's the other dimension, and I -- I 7 always take it back to surgical pathology, which is where 8 most of us came from in the first instance. 9 And that is that if you -- if you go to a 10 -- a surgeon with a tumour, the tumour will be biopsied, 11 and the pathologist will give a diagnosis on that biopsy. 12 And you know, in many circumstances the issue is, is it 13 cancer or not, and the standard that's applied in -- in 14 surgical pathology is a threshold. It meets the standard 15 for being called cancer or it doesn't. 16 We don't say, you know, on the balance of 17 probabilities, this is cancer, because people -- the 18 person then is going to get radical surgery or 19 chemotherapy or radiation. 20 It's a totally unacceptable view from a -- 21 from a -- practising pathology in a medical paradigm. So 22 we -- we all tend to start with sort of a -- with a 23 threshold approach, do you know what I mean? There -- 24 there is a -- 25 COMMISSIONER STEPHEN GOUDGE: Is that

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1 transportable to pathology? 2 DR. MICHAEL POLLANEN: To forensic 3 pathology. Well I think that's the way I do it actually, 4 because these -- these concepts of balance of 5 probability and all of these other ways of sort of 6 degrading something from 100 percent, I just don't know 7 what they mean. I mean, I have -- I think I know what -- 8 COMMISSIONER STEPHEN GOUDGE: Fair 9 enough, but isn't there a different rational in clinical 10 medicine for the approach you articulate? That is, in 11 clinical medicine you're out to treat the patient, so you 12 treat the most likely thing, whatever the level of 13 certainty. 14 DR. MICHAEL POLLANEN: You have -- 15 COMMISSIONER STEPHEN GOUDGE: It might be 16 30 percent. 17 DR. MICHAEL POLLANEN: Well, in -- 18 COMMISSIONER STEPHEN GOUDGE: But if it's 19 the most likely thing, you're going to treat it. 20 DR. MICHAEL POLLANEN: No. In fact, no, 21 because what -- what's happening is, the pathologist is 22 saying, this is what the pathology can deliver, and then 23 basically the clinician is saying, well, you know, the 24 biopsy wasn't good enough, but the radiologist said it 25 looks like a tumour, so I'm going to get -- I'm going to

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1 go ahead anyway, but -- 2 COMMISSIONER STEPHEN GOUDGE: But the 3 ultimate oncologist or the clinical front end of the 4 system isn't worried about getting to any level of 5 certainty to convict, but is merely worried about, I want 6 to ensure that this patient doesn't die of something that 7 has some degree of likelihood. 8 DR. MICHAEL POLLANEN: No, I -- 9 COMMISSIONER STEPHEN GOUDGE: Or am I 10 wrong about that? 11 DR. MICHAEL POLLANEN: No, I think it's 12 not as simple as that, largely because you don't want to 13 excise a leg if you don't to, either -- 14 COMMISSIONER STEPHEN GOUDGE: Right. 15 DR. MICHAEL POLLANEN: -- or give 16 somebody, you know, toxic chemotherapy that wipes out 17 their bone marrow if they don't need it. So there's a 18 balance along those lines, as well. 19 So the -- the way I think about it is, the 20 way -- the way I personally feel that I'm best able to 21 deal with this issue is through this diagnostic threshold 22 concept because I don't -- I don't think I can put a lot 23 of meaning into those other words. And -- and, you know, 24 perhaps that's a failing on my part because -- 25 COMMISSIONER STEPHEN GOUDGE: No, no.

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1 DR. MICHAEL POLLANEN: -- I find it very 2 difficult, and so what I do is I say it meets the 3 threshold or it doesn't meet the threshold, but I can't 4 tell you exactly what that threshold is. I can't 5 guarantee that the other reasonable forensic pathologists 6 hold the shi -- same threshold, and depending on the 7 issue that -- that we have, the threshold might be 8 different, so thi -- this is the problem. 9 Now, having said that, it's not all that 10 bad because there is this body, this corpus of knowledge, 11 called forensic pathology and it does actually give us a 12 common base to work from, a common framework, and then I 13 go back to the importance of the evidence based approach. 14 Because another way of saying all of this 15 is that because this is such a problem, this level of 16 certainty issue and how we communicate it, that 17 bifurcation, because this is such a problem, what it -- 18 what it really implies, one (1) of its strong 19 implications is a very good, sound, reliable framework -- 20 COMMISSIONER STEPHEN GOUDGE: All right. 21 DR. MICHAEL POLLANEN: -- upon which to 22 function. 23 COMMISSIONER STEPHEN GOUDGE: Right. 24 MR. MARK SANDLER: So -- so -- 25 COMMISSIONER STEPHEN GOUDGE: Can I just

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1 ask, Mr. Sandler -- 2 MR. MARK SANDLER: Sure. 3 COMMISSIONER STEPHEN GOUDGE: -- do the 4 other three (3) of you agree with the analysis Dr. 5 Pollanen just recited? 6 DR. STEPHEN CORDNER: Well, I -- I find 7 myself thinking of a couple of different things in 8 relation, because you mentioned, you know, something that 9 was happening in a clinical paradigm -- 10 COMMISSIONER STEPHEN GOUDGE: Right. 11 DR. STEPHEN CORDNER: -- as -- as 12 distinct to the pathology one, and it's a little bit off 13 the point. So -- but I think it's actually an important 14 consideration, particularly in relation to pediatric 15 forensic pathology, which is for the clinician in the 16 hospital confronted with a possibly abused child, the 17 worst outcome for the clinician is to be associated with 18 sending that child back into an environment where they 19 might be abused again. 20 COMMISSIONER STEPHEN GOUDGE: Right. 21 DR. STEPHEN CORDNER: And that's a 22 completely different issue. Fortunately, I'm not 23 confronted with that issue. I feel relieved that I'm not 24 confronted with that issue. For us the worst outcome is 25 that we could be associated with a wrong conviction,

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1 which is a complete mirror image of the two (2). 2 And -- and I think that actually informs a 3 slightly different -- well, not a slightly different, 4 quite a different emphasis on the potential you 5 mentioned; you want to treat the thing that's most 6 serious to make sure it doesn't happen, which is to 7 prevent the child going home to have an adverse -- 8 adverse conclusion about all of the findings that might 9 add up to child abuse. Whereas the approach of the 10 forensic pathologist, leaving aside one (1) moment any 11 possible association with the child protection -- 12 COMMISSIONER STEPHEN GOUDGE: Right, 13 right. 14 DR. STEPHEN CORDNER: -- framework, the 15 forensic pathologist says we've been talking about all 16 morning, how do we introduce and deal with the 17 uncertainty. 18 COMMISSIONER STEPHEN GOUDGE: Yes. 19 DR. STEPHEN CORDNER: So that we're 20 coming at it from -- and I think that actually informs 21 one (1) aspect of how a clinician looks at a potential 22 shaken baby versus me. See, I -- 23 COMMISSIONER STEPHEN GOUDGE: That might 24 just be a difference in where the threshold is in the 25 gradations of certainty though. The clinician might

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1 require less to reach what Dr. Pollanen would call that 2 clinician's threshold. 3 Is that a fair way to look at the 4 distinction between the two paradigms? 5 DR. STEPHEN CORDNER: I suppose that I'm 6 -- I'm just trying to think. 7 Yes, I think it -- a bit of -- I actually 8 think it -- it -- it influences us -- influences the two 9 (2) groups existentially in some -- 10 COMMISSIONER STEPHEN GOUDGE: Right. 11 DR. STEPHEN CORDNER: -- way more -- more 12 than that. But, for example, I'm sure -- I know that we 13 pathologists far more often see scalp bruises in -- in 14 this triad situation. The clinicians, relatively, you 15 know, don't see scalp bruises anywhere near as often. 16 So I find -- I find myself talking about 17 the triad relatively unusually. I mean, I think the 18 triad, actually, in forensic pathology is not a very 19 common situation. I -- I can use -- we can usually find, 20 if it is an abused child, some -- some bruises. But I 21 mean that's -- we're getting off the -- off the -- 22 COMMISSIONER STEPHEN GOUDGE: Yes, I just 23 want to follow-up on this because I was intrigued by Dr. 24 Pollanen's articulation, because part of the concern, 25 obviously we've seen in the cases we've heard about over

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1 the last ten (10) weeks is the capacity for the 2 misunderstanding by the justice system of what is said by 3 the pathologist. 4 But if the paradigm that was described is 5 what is actually going on in the best practice head of a 6 pathologist, would it make sense to try to articulate 7 that in the report itself, so that it reduced the chance 8 of the ultimate diagnosis being misunderstood, and having 9 attached to it, let me use the awful phrase, "a level of 10 certainty", that might not be part of the thought process 11 of the pathologist? 12 Does that make any sense? 13 DR. STEPHEN CORDNER: Can I just -- about 14 the level of certainty, I -- another way in which I 15 sometimes get involved with level of certainty is to say 16 -- is to turn it around the other way. If you are 17 looking to forensic pathology to provide you with the 18 definitive answer about whether inflicted injury has 19 occurred in this case, then I don't think forensic 20 pathology is up to that task. 21 And that might be how I would phrase it. 22 You may -- you will need to go and make that 23 determination, from an evaluation of the circumstances 24 and that's your function. So that -- that -- 25 COMMISSIONER STEPHEN GOUDGE: Dr.

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1 Chiasson...? 2 DR. DAVID CHIASSON: Yeah, I'm nodding 3 very much, and to -- and to try to tie, I think, a few 4 strands that I'm hearing, you know, I think it's a bit 5 unfair to ask the forensic pathologist to somehow, you 6 know, articulate a degree of certainty in something that 7 -- that really, as I think is evident in -- in this kind 8 of artifactual scenario, is really -- it's -- it's not 9 possible. And -- 10 COMMISSIONER STEPHEN GOUDGE: It's not 11 possible. And I hear Dr. Pollanen's paradigm to say, I 12 don't even really approach it in terms of trying to find 13 that degree of certainty; I approach it in terms of 14 trying to find, what he refers to and what you refer to 15 as a threshold. 16 DR. CHRISTOPHER MILROY: I think the 17 other thing that you've got to -- 18 COMMISSIONER STEPHEN GOUDGE: Sorry, Dr. 19 Chiasson, I didn't mean to cut you off, because I did cut 20 you off. 21 DR. DAVID CHIASSON: Sorry. Well, that's 22 fine, Mr. Commissioner. But just to tie in, I mean, to 23 get back to Dr. Milroy's example of the stab wound, you 24 know, the pathologist sees a stab wound; it could be 25 homicide, suicide, accident. Obviously, you know, the

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1 circumstantial information is going to play a critical 2 role in -- in the ultimate determination in the 3 investigation. And it's the same thing with the -- with 4 the child death. 5 Mr. Sandler's example here, and he -- I 6 know he did it simply to be simple, but no triad case is 7 as simplistic as we've got -- 8 COMMISSIONER STEPHEN GOUDGE: No case is 9 that -- 10 DR. DAVID CHIASSON: We got a history of 11 a fall down stairs -- 12 COMMISSIONER STEPHEN GOUDGE: That's it. 13 DR. DAVID CHIASSON: -- and we've got the 14 triad, and -- and, you know, report. 15 COMMISSIONER STEPHEN GOUDGE: Right. 16 DR. DAVID CHIASSON: Because there is an 17 entire investigation process; there's medical history -- 18 COMMISSIONER STEPHEN GOUDGE: Right. 19 DR. DAVID CHIASSON: -- that is going on 20 in the background. And just like the stab wound, you 21 know, we can tell you it's a stab wound; we can tell you 22 what the neuropathology findings are, in terms of the 23 triad; but, you know, to put it together you really got 24 to go back to the investigative point. 25 And it's the same thing, to get back to

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1 Dr. Pollanen and -- and the clinical perimeters. He made 2 reference to the fact that the biopsy may not be 3 completely satisfactory, in terms of establishing a -- a 4 definitive diagnosis of cancer -- and this is something 5 very relevant to pediatric pathology in -- and -- and may 6 require major surgery or major chemotherapy. But there 7 are other modalities. There are other forms of medical 8 investigation, and, you know, there's evidence-based 9 medicine -- 10 COMMISSIONER STEPHEN GOUDGE: Right. 11 DR. DAVID CHIASSON: -- to back up that. 12 So you need to take all of that into consideration. 13 DR. MICHAEL POLLANEN: Where this becomes 14 -- I say, there's another issue that's sort of been 15 tacitly worked into the issue that we've been discussing 16 here, that we've all sort of tacitly assumed as being 17 part of the problem, but it's actually slightly separate, 18 and that is we're actually talking about not only the 19 uncertainty issues of a -- of a -- of the pathologist in 20 all of these diagnostic related issues, but when they are 21 very tightly coupled to the ultimate issue. 22 That's -- that's where the problem arise, 23 because -- 24 COMMISSIONER STEPHEN GOUDGE: Right. 25 DR. MICHAEL POLLANEN: -- there are lots

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1 of circumstances in forensic pathology where -- 2 COMMISSIONER STEPHEN GOUDGE: Where this 3 isn't that important? 4 DR. MICHAEL POLLANEN: Yeah, this is sort 5 of an interesting academic -- 6 COMMISSIONER STEPHEN GOUDGE: No, 7 absolutely. I mean the premise of this is, this is a 8 pediatric forensic death where the pathology is, if not 9 everything, very close to everything. 10 DR. MICHAEL POLLANEN: But -- but then 11 the issue that comes to the pathologist is, when you're - 12 - when you're then -- you say, Oh, ha ha, it's -- it's -- 13 this is the ultimate issue. What happens then is the 14 pathologist has an additional source of external 15 pressure. 16 And where we feel this pressure, it 17 particularly is in the shaken babies, or in those 18 borderline cases where practically the Crown and the 19 police have decided not to go to prosecution, but almost 20 certainly there will be a child protection intervention. 21 And that puts -- I mean, I have one (1) of 22 these cases right now, and this -- this is the worst 23 circumstance for the pathologist to be in, because -- I 24 hate to go back to these terms, but -- because the 25 criminal burden is not met. But clearly at some lower

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1 threshold of interpretation beyond the medical evidence 2 there may be, you know, some other court may find the 3 information valuable enough or relevant enough to 4 apprehend children and that -- that is another important 5 dimension. 6 7 CONTINUED BY MR. MARK SANDLER: 8 MR. MARK SANDLER: Okay. 9 DR. CHRISTOPHER MILROY: I was just gonna 10 just say that -- I mean, it -- it -- well two (2) things. 11 One (1) is of course that the difference between clinical 12 thinking and pathology thinking is that in forensic 13 pathology you have -- you have the dead person and you're 14 working backwards, and the clin -- clinicians are seeing 15 someone alive and trying to work forward. 16 So that -- there is -- there is a great 17 difference. I mean, it's most, I think, exhibited by 18 toxicology. Post-mortem toxicology interpretation is 19 entirely different to clinical toxicology interpretation, 20 just because the -- for reasons we don't need to go into 21 -- and you can just extrapolate one (1) to the other. 22 So that -- that, I think does affect our 23 thinking that we're -- we're working in a different 24 direction. 25 But the other thing I was going to say in

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1 response to Michael's thing is that the only time I'm 2 ever really asked about -- about certainty is in family 3 proceedings, where of course the -- in child care 4 proceedings, they've only got to get over the threshold 5 of probability. 6 But it still raises a question to me: Are 7 you asking me to talk about a probability on a population 8 base? Yeah, sure, on a population base, this child's been 9 abused. But are you saying on this single one (1) 10 individual case? That's a different question. 11 12 CONTINUED BY MR. MARK SANDLER: 13 MR. MARK SANDLER: All right. You -- 14 you've wrestled with the difficulties associated with 15 grades of certainty or grades of confidence. I want to 16 ask you a little bit about some phrases that have popped 17 up in the course of this Inquiry, and the extent to which 18 they should and should not be used. 19 Consistent with, is -- is a phrase that 20 was testified to by Dr. Milroy at some length, and he 21 made the point that -- that if a pathologist were to say 22 that the pathology is consistent, for example, with 23 manual strangulation, or other non-accidental causes of 24 death, that has the potential of misleading the trier of 25 fact, and leaving the inference that the connection

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1 between the pathology and the named cause of death is -- 2 is stronger than it really is. 3 Is there anybody that wants to advocate in 4 favour of the use of the phrase, "consistent with"? 5 DR. STEPHEN CORDNER: Well advocacy might 6 be putting it a bit high. 7 MR. MARK SANDLER: All right. 8 DR. STEPHEN CORDNER: But I do -- 9 MR. MARK SANDLER: Because you're not an 10 advocate. 11 DR. STEPHEN CORDNER: No, no, I'm not an 12 advocate, but I do have to confess to -- 13 DR. CHRISTOPHER MILROY: You -- 14 DR. STEPHEN CORDNER: -- using -- 15 DR. CHRISTOPHER MILROY: -- that low. 16 DR. STEPHEN CORDNER: -- to using the -- 17 using the phrase "consistent with". And I do appreciate 18 that has a very particular connotation in this -- in this 19 province. 20 But I find myself using "consistent with", 21 and I find myself thinking -- but I wouldn't use it in 22 such a high level situation as homicide or -- or 23 suspicious death. But I do use it, for example, 24 consistent with hanging; I'd use it, for example. 25 Hanging, in almost every case of hanging

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1 you can't actually tell that the person was alive when 2 they hanged themselves, okay, because there are no -- 3 there's a -- there's a parchment abrasion around the 4 front of the neck, which could have -- which could be a 5 post-mortem abrasion. There's usually no bruises in the 6 underlying structures, including the subcutaneous 7 tissues. 8 And I've had a particular case where, in a 9 particular case is the per -- the person who was found 10 hanging had high levels of drugs onboard, so you could 11 say, Well, that sort of supports the suicide contention, 12 but they included drugs of abuse. 13 And seven (7) or eight (8) years later the 14 son, who was not living in the house where the father 15 was, who's clearly been thinking about this ever since, 16 he says, actually I think -- I think the -- that my dad 17 died of drug abuse, and the other people in the house put 18 him into a hanging position to divert any sort of police 19 attention to the behaviour of the -- the drug abusing 20 behaviour of the other people in the household, because I 21 don't think my dad would have ever committed suicide. 22 Now, what do you say about that as a 23 forensic pathologist? Well, I'd say there's nothing in 24 the forensic pathology that allows me to say that what 25 you propose is -- is wrong. Now, the cause of death in

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1 the particular case that was given is hanging; it was 2 like every other hanging. 3 So provided you are clear in your report 4 about you mean by "consistent with", and when I use it I 5 hope I'm clear about saying when I say consistent with 6 hanging, I think, you know, this gets back to our 7 question about, you know, I really of sort of think it's 8 probably a hanging, but -- but it -- it means it could be 9 consistent with something else. 10 It's trying to say in my -- in my opinion, 11 the cause of death is consistent with hanging, is a true 12 statement as far as I'm concerned. 13 DR. MICHAEL POLLANEN: Yeah, the -- the 14 problem -- 15 MR. MARK SANDLER: Sorry. 16 DR. STEPHEN CORDNER: It's a true 17 statement and -- and it does imply that it could be 18 consistent with something else. I've got to indicate 19 somewhere that there -- there are other things. I may 20 not to discuss the possibility in every single hanging 21 that it's possible that this person may have been dead 22 when they were hanging. I was -- 23 MR. MARK SANDLER: Sorry. 24 DR. STEPHEN CORDNER: Dr. Pollanen's 25 looking very askance at me, but I may not --

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1 MR. MARK SANDLER: Dr. Pollanen, why are 2 you looking askance? 3 DR. MICHAEL POLLANEN: Well, because -- 4 because this actually points out a very inconsistent 5 practice in forensic pathology, because the -- one (1) of 6 the most common scenarios in -- in the western world, and 7 certainly in forensic practice, is people dying of stable 8 heart disease, ischemic heart disease. 9 And in fact, what you're doing at autopsy 10 in those circumstances is identifying a potentially fatal 11 condition, and saying that in the circumstances of the 12 death there's nothing that contradicts the potentiality 13 of it being the cause of death and therefore we give the 14 cause of death as ischemic heart disease. 15 But to be entirely consistent with what 16 Stephen has told us, we should be saying "consistent with 17 ischemic heart disease". But then if we say to ourselves 18 that that's the standard in which we operate, that the 19 potentials that we cannot demonstrate truly as being 20 actuals have to be given as consistent with, then, you 21 know, the majority of our reports would go out as 22 consistent with. 23 So at some point in time you have to sort 24 of take it on the chin and say, you know, this is a 25 hanging; this is ischemic heart disease. And -- and

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1 having said that, the majority of the time when those 2 circumstances arise they're usually not criminal, and 3 that's probably why if you did it one (1) way or the 4 other way it wouldn't really matter. 5 MR. MARK SANDLER: Well, Dr. Pollanen, 6 just following up on what was said there, if you agree -- 7 and I'll put the if on it because you haven't weighed in 8 on this -- if you agree that the word "consistent with" 9 or the phrase "consistent with" brings with it a level of 10 ambiguity because some interpret it as meaning no more 11 than "may or may not be the case", others interpret it as 12 representing a higher level of confidence in the 13 relationship. 14 So if the term's misleading, why do 15 doctors ever have to use it at all? In other words, is 16 there not more transparent language that can be used to 17 communicate precisely what it is that's meant? Or it 18 just so imbedded in the medical lexicon that we can't 19 avoid it? 20 DR. DAVID CHIASSON: I don't know if it's 21 so much imbedded in the medical lexicon; it's imbedded in 22 the Court lexicon, because I spend a lot of time in Court 23 trying to avoid answering question, Well doctors, is this 24 consistent with blah, blah, blah? I -- I get this very 25 regularly, and I have to go --

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1 MR. MARK SANDLER: Right. 2 DR. DAVID CHIASSON: -- back and say, 3 Well, you know, since Kaufman we -- we don't like to use 4 the term -- 5 MR. MARK SANDLER: And the Centre of 6 Forensic Sciences people can resist it by saying that 7 term is now fallen into disuse as a result of those 8 recommendations. 9 So would you welcome that happening here? 10 DR. DAVID CHIASSON: Yes, I -- I think 11 the use of the term "consistent" is -- it's just got a 12 bad -- bad history. And I mean to be fair to -- to Dr. 13 Cordner, I -- sometimes in the body of my report will use 14 the term; it's -- it's hard really to completely avoid 15 it, but I will not put it down as cause of death 16 statement. The hangings I -- I call hangings; coronary 17 disease is coronary artery disease or coronary artery 18 diseases. 19 So it's -- you know, it's hard to use -- 20 "in keeping with" is -- is one (1) of my favourite 21 alternatives with -- you -- you know how -- it's part of 22 the -- the way you avoid that, but -- but I'm trying more 23 and more to say, you know, "this is the most likely", 24 which is what to me -- the way I really translate 25 "consistent with".

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1 MR. MARK SANDLER: Well -- well, two (2) 2 points arising out of that. The first is that if -- if 3 you mean by consistent no more or less than, it may be 4 the case, it may not be the case without weighing in, 5 then one could simply say that? 6 DR. DAVID CHIASSON: Yes. And that -- 7 that's to me is unascertained if -- or undetermined, 8 whatever terminology you want to use -- 9 MR. MARK SANDLER: All right. 10 DR. DAVID CHIASSON: -- if it's -- 11 MR. MARK SANDLER: Right. And -- 12 DR. DAVID CHIASSON: -- if you're 13 balancing it at that level. 14 MR. MARK SANDLER: And if one favours one 15 alternative to another then one could simply -- 16 DR. DAVID CHIASSON: Put out that -- 17 MR. MARK SANDLER: -- reflect -- reflect 18 that. 19 DR. DAVID CHIASSON: -- put out that 20 alternative. 21 MR. MARK SANDLER: Well, let me ask you 22 something that goes to the role of an expert and -- and 23 not really about consistent with. But let's say you're 24 being examined by the prosecutor and -- and your view is 25 unascertained. And the prosecutor's asking you a series

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1 of questions, and says, All right, Dr. Chiasson, you've 2 articulated your findings here. Are your finding 3 consistent with smothering? Are they consistent with 4 suffocation? 5 And you know that the rationale behind 6 the questions is perhaps to leave the impression -- and I 7 don't say in any malevolent way -- but to leave 8 impression that your opinion is much stronger than that 9 which you hold. 10 What's your duty to ensure that your 11 evidence is not misunderstood? How do you deal with 12 that? 13 DR. DAVID CHIASSON: Well, that's not an 14 uncommon situation, although the smothering example may 15 be relatively uncommon. But, no, exactly you put it out 16 there that yeah it's -- smothering is a possibility; the 17 -- the autopsy findings are -- are in keeping -- there I 18 go -- are in keeping with the possibility of smothering. 19 MR. MARK SANDLER: Don't exclude that 20 possibility. 21 DR. DAVID CHIASSON: They're not excluded 22 by the possibility of smothering. We know that infants 23 can be smothered and there are no pathologic findings, 24 which is essentially what we have here. I would not -- 25 you know, the -- the thing that you don't want to do

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1 there is say, Yes, they're consistent with smothering, 2 period. 3 MR. MARK SANDLER: Right. 4 DR. DAVID CHIASSON: That's -- that's -- 5 that is, I think, inappropriate, so you have got 6 elaborate on your answer. 7 MR. MARK SANDLER: So -- so one (1) of 8 the answers is that if we -- if we don't avoid the term 9 of the use consistent with, or if it forms part of the 10 questioning process, one could provide an explanation 11 that at least ensures that it's not being misinterpreted 12 by the trier of fact? 13 Dr. Milroy, what is the obligation of the 14 expert when you're concerned that your evidence is being 15 relied upon for more than its legitimate purpose, and you 16 -- and you get that sense from the way the case is coming 17 out or the way is questioning is developing? 18 DR. CHRISTOPHER MILROY: Well, I -- this 19 is -- actually goes back to my colleague who's still in 20 the witness box and so I really do think I need to 21 elaborate more. It's a very brave person who does that, 22 I have to say. 23 But I do think the use of -- you have to 24 say, I think -- I -- I don't -- you know, you say, I 25 don't want to mislead the court on my evidence. I must

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1 point out that, you know -- I mean, consistent with 2 smothering you would say smothering is one (1) possible 3 explanation for the path -- for the -- for the absence of 4 findings, but there are others. 5 I mean, otherwise you could just sign that 6 every SIDS death as consistent with smothering and it 7 would be, but you have -- 8 MR. DAVID CHIASSON: It doesn't help. 9 DR. CHRISTOPHER MILROY: It wouldn't 10 help. So you could -- you could put -- so I think that 11 you do have an obligation if you feel that the Court -- 12 if your -- your questioning -- and again, this is -- this 13 is a -- a legal cul -- it's a matter of legal culture and 14 jurisdiction. 15 But if a lawyer says to me, I want you to 16 answer this question "yes" or "no", I immediately got my 17 backup, because it's quite likely that I will not be able 18 to answer that question "yes" or "no", or I will answer 19 it, "correct, yes or no". 20 MR. MARK SANDLER: Unless the question 21 is, are you a forensic pathologist. 22 DR. CHRISTOPHER MILROY: Pathologist. I 23 might say, "yes and no". On the one hand and on the 24 other -- one in keeping with -- yes, I use in keep -- I 25 was told by a lawyer that -- don't use "consistent with",

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1 use "in keeping with", that's a better phrase. 2 But I mean -- but I think -- I do think 3 that, you know, there is a -- those sorts of questions 4 you answer this question "yes" or "no" and then you get a 5 big hypothetical put to you, you might -- be able to say, 6 well, I just can't answer it in those terms, and if you 7 want -- you know, and to answer it would -- would -- 8 could create a false impression. 9 MR. MARK SANDLER: Okay. Dr. 10 Chiasson...? 11 DR. DAVID CHIASSON: I -- I just want to 12 comment that in -- in Ontario where judges don't wear 13 wigs and everybody else doesn't seem to wear wigs, 14 either, I don't find -- I don't -- I don't think the 15 Courts are perhaps as intimidating as they may be in -- 16 in the English system. I've had no issues with -- if I 17 want to elaborate on my opinion. 18 And, no, defence counsel will sometimes 19 try to cut you off, but almost invariably the -- the -- 20 His Honour will say, No, let the doctor, you know, finish 21 his answer. I -- I've never been -- I've never had 22 issues or problems, you know, elaborating on any opinion 23 that I -- 24 MR. MARK SANDLER: Okay. 25 DR. STEPHEN CORDNER: -- was rendering.

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1 MR. MARK SANDLER: Dr. Cordner...? 2 DR. STEPHEN CORDNER: Yes, look, every 3 time an expert witness gets into the witness box his or 4 her reputation is on the line. Now, unless the judge is 5 looking after the interest of the witness, really it's 6 left to the witness themselves to look after their own 7 interests, so I think there's a -- there's an issue. 8 And to the extent in any particular court 9 a witness doesn't feel comfortable, then you'd have -- 10 the judge was making the environment as comfortable as 11 possible for the witness to discharge their professional 12 obligations to represent their discipline as well as they 13 can. 14 MR. MARK SANDLER: All right. Dr. 15 Pollanen, can I ask you about the word "suspicion"? You 16 conduct an autopsy, the cause of death is unascertained, 17 it's an undifferentiated diagnosis, there's really 18 nothing in the pathology, the police speak to you about 19 the various possibilities that exist in the case; you 20 can't exclude smothering, for example, for the reasons 21 that Dr. Chiasson has articulated. And the police say, 22 Well, you know, there's another child in the home, we're 23 concerned about that child's safety, we have a reporting 24 obligation based upon reasonable grounds to suspect; so 25 suspect is part of the legal lexicon.

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1 Do you suspect foul play in this case? 2 Will you embark on that discussion? And to what extent, 3 if you will, will that discussion be embarked upon at a 4 trial? In other words, is there a distinction? 5 DR. MICHAEL POLLANEN: Wow, that's a -- 6 that's quite a hypothetical case you've created there. 7 Before I -- before I tell you specifically about that, I 8 just wanted to make two (2) quick points about this whole 9 "consistent with" scenario. 10 The first one, as a general rule is 11 "consistent with" -- the problem of "consistent with" can 12 only be really solved in language, in my view, in one (1) 13 of two (2) ways: you either adopt the language of 14 exclusion, which is from the Kaufman report, or you 15 develop a synonym or a euphemism. 16 We've heard "in keeping with", "compatible 17 with", "consistent with", so there's really -- 18 MR. MARK SANDLER: A non-misleading 19 synonym. 20 DR. MICHAEL POLLANEN: Correct. So 21 basically, tho -- those are the only two (2) sort of 22 roots, linguistic devices, to get out of the "consistent 23 with" problem. 24 But your -- your question is something 25 different now. You're saying you essentially have a

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1 negative autopsy in a circumstance where there is 2 potential child protection issues and the -- you're being 3 asked to give a professional view about a level of 4 suspicion. I mean, it's -- this is the same problem as 5 we've been discussing all the way along, just in a 6 different language. 7 MR. MARK SANDLER: Right. 8 DR. MICHAEL POLLANEN: Because it 9 basically comes down to how certain are you that a 10 negative autopsy reasonably excludes, you know, child 11 abuse or some other event, and the -- I think we just 12 basically have to go through the same rationale. 13 We have to say this is the differential 14 diagnosis in a neg -- in a negative autopsy in these 15 circumstances. This is the scope and limits of what the 16 -- the discipline of forensic pathology has to offer you. 17 And the cause of death is unascertained, and certain 18 things cannot be excluded, but you are going to need 19 additional information to determine anything in a more 20 definite way. 21 MR. MARK SANDLER: Let me just change the 22 scenario a little bit. Lets assume that there is -- 23 there are some -- it's not a completely negative autopsy, 24 there -- there are -- there is some pathology that exists 25 in the case.

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1 Would you ever be in a position to 2 articulate a suspicion on your part that falls short of 3 an ability to express an opinion other than undetermined? 4 DR. MICHAEL POLLANEN: Yes. I can think 5 of a scenario where you have a negative autopsy, but you 6 have an otherwise classical pattern of healing injuries 7 in which the -- it's very reasonable to conclude that 8 this is a case of child abuse. 9 MR. MARK SANDLER: In effect it's a 10 circumstantial case, based upon -- 11 DR. MICHAEL POLLANEN: Based upon -- 12 MR. MARK SANDLER: -- the existence of 13 healing injuries? 14 DR. MICHAEL POLLANEN: Correct, yes. And 15 of course the -- the case would need to be fleshed out a 16 lot more than that, but -- but the medical evidence would 17 provide a -- a factual foundation for the diagnosis or 18 the more general consideration of child abuse. 19 So in that circumstance if you -- if it 20 fell into classical patterns of what is recognized in 21 forensic pathology as injury constellations associated 22 with child abuse, then the answer is fairly easy. From 23 the pathologist point of view you would say, I can't 24 explain the -- the cause of death, but there's clear 25 evidence of abuse.

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1 And in fact there's a case in the -- in 2 the -- well, there are more than one (1) -- but there's 3 one (1) particular case in -- in this series where that 4 is in fact the issue. 5 But, you know, you can pervert this 6 example further by -- by reducing the number of rib 7 fractures and making them asymmetrical and -- so now you 8 have -- and then you can -- you can reduce the level of 9 certainty by just changing the fact pattern, and you'll 10 end up in the same place as we were in your first 11 example. 12 MR. MARK SANDLER: If -- if the police 13 were to say in the -- in the first example that you gave, 14 you know, classic -- you say there's classic signs of -- 15 normally associated or traditionally associated with 16 abuse here, although no evidence that it -- either no 17 evidence or did not relate to death, I can't explain the 18 death; and then the police ask the next question: 19 Putting the old injuries together with the negative 20 autopsy -- the otherwise negative autopsy, do you suspect 21 that abuse played a part in the death of this child? 22 What do you say to the police? 23 DR. MICHAEL POLLANEN: That's a very, 24 very difficult question. I mean, this -- and I'm 25 thinking about the case in particular that -- that is

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1 before this Inquiry where that comes through. And the 2 way I dealt with the issue in that case, is I basically 3 said that the cause of death must be unascertained. We 4 must give the cause of death as unascertained. 5 But the -- the problem with it is when -- 6 if you look at the word "unascertained", that equally 7 applies to a SIDS type death with a negative autopsy as 8 it does to multiple healing rib fracture with a negative 9 -- otherwise negative autopsy. So the -- the label 10 "unascertained" doesn't capture -- perhaps unascertained 11 in -- in an infant with multiple healing rib fractures -- 12 but then it seems like you're over-egging the pudding, 13 because you don't really mean to communicate that. 14 What you mean to say is that it's 15 unascertained, but... 16 But perhaps that "but" is better put up in 17 the -- in the opinion section, because you don't want the 18 reader to actually confuse the concepts. 19 MR. MARK SANDLER: Okay. 20 DR. MICHAEL POLLANEN: So -- but -- but I 21 have to admit, that's an extremely difficult scenario, 22 because on the other hand, it very well might be a 23 smothering and -- 24 MR. MARK SANDLER: All right. 25 DR. MICHAEL POLLANEN: -- this is just

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1 the final episode of abuse. But -- but the pathology 2 just doesn't get you there. 3 MR. MARK SANDLER: Dr. Chiasson...? 4 DR. DAVID CHIASSON: Well, I had a real 5 life case a few years ago where it was a somewhat similar 6 scenario, in that: sudden expected death; infant with 7 multiple healing fractures, abusive in -- in appearance; 8 who had some small abrasions about the mouth and nose. 9 And, you know, the issue of smothering is even liver -- 10 if that's a word -- 11 MR. MARK SANDLER: More pronounced. 12 DR. DAVID CHIASSON: More pronounced, 13 thank you -- than -- than even what the scenario you're 14 describing. I ended up rendering a -- a conclusion of 15 definitive -- and this is our Ontario terminology: 16 "No definitive anatomic or 17 toxicological cause of death [asterix] 18 see comment." 19 And it's -- and I think it's -- it's, if 20 you will, "unascertained, see comment"; that -- you got 21 to go back up to that and I think that's where you 22 discuss the -- and -- and in this case I said -- even 23 though we don't have that, the possibility of -- of 24 smothering, given these other injuries, deserve serious 25 consideration or some other similar kind of flagging

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1 euphemism, I think is -- is important. 2 This case was never criminally prosecuted. 3 And -- and subsequently, I think, yeah, there was a child 4 protection proceeding where I eventually testified -- one 5 (1) of the few times I've actually testified at a 6 proceedings -- and the -- the judge in that case was very 7 much, Well, doctor, now you've had a little more 8 experience, you know. 9 He was trying to push me, you know, on 10 this whole issue of smothering given -- Listen, you know, 11 I have this infant with serious previous injuries, you 12 know, what's the likelihood? I said, Well, you know, 13 this is -- this is of serious concern, this is -- is it 14 possible that the abrasions are due to resuscitative 15 efforts or some other explanation. I can't completely 16 exclude that possibility. 17 But to go beyond, you know, suspicious -- 18 and that case was clearly suspicious and -- and to flag 19 it that way, I think is -- is quite difficult. I may -- 20 I may have been over-conservative. 21 MR. MARK SANDLER: All right. Dr. 22 Cordner, if your views of the case amount to no more than 23 suspicion, but nonetheless suspicion exists -- 24 DR. STEPHEN CORDNER: Mm-hm. Mm-hm. 25 MR. MARK SANDLER: -- for the reasons

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1 that Dr. Pollanen and Dr. Chiasson articulated, should 2 that ever make its way into courtroom testimony, in your 3 view? 4 DR. STEPHEN CORDNER: Well, if it does, 5 it will be presumably because some other channel of 6 inquiry has produced sufficient basis for some sort of -- 7 if we're talking about a criminal prosecution -- to -- to 8 take place. If it -- if there's an inquest, I will 9 answer the questions as they're put to me. 10 The child would -- the four (4) month old 11 baby found dead in the cot in the morning, with some 12 healing fractured ribs and perhaps a healing metathaseal 13 (phonetic) fracture around the knee or the ankle is, on 14 those facts, who has died with some healing injuries, 15 unascertained cause of death. 16 The pathologist can't say that that child 17 died of any inflicted injury. There'll be a whole lot of 18 activity over here about whether you can conclude on the 19 basis of those injuries if there has been abuse in the 20 past and they'll be child protection things that happen, 21 but forensic pathology can't help you about whether 22 inflicted injury played any part at all in the -- in the 23 actual death. 24 MR. MARK SANDLER: Dr. Milroy...? 25 DR. CHRISTOPHER MILROY: Well, I have

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1 faced this. I think, you know, we deal with this old -- 2 old injuries. You know, the classic one is you have a 3 couple of -- you know, a few rib frac -- old healing rib 4 fractures in a child that's it -- you know, otherwise 5 found dead in circumstances that would normally be called 6 a cot death, and you just have to lay out the 7 possibilities in the -- in the autopsy report and call 8 them unascertained. 9 And if you are called -- for example, I -- 10 I don't think -- recollection I haven't been called to a 11 childcare hearing in that situation -- that they may have 12 felt that they just have enough evidence on the child 13 abuse to deal with the childcare issues. But if you did 14 get called to give evidence you would have to go through 15 the same process. 16 Well, the pathology does not tell you one 17 (1) -- either whether this is a cot death, crib death, 18 SIDS or whether it has been smothered. It is just -- 19 there is no weight to place on either of those from the 20 pathology. If the -- if the tribunal chose to say, Well, 21 the -- with the -- with rib fracture, we're happy that 22 this was more likely than not a intent of deliberate 23 smothering; that's almost their business, but the pathol 24 -- as long as the pathologist has said, I can't help you 25 on that because -- you know, I remember my old boss used

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1 to lecture, these are the findings that you see in SIDS, 2 and he listed them. 3 And then he said, Now I'm going to go on 4 to the findings in smothering, see previous slide. And 5 that's the point. We -- we cannot differentiate the two 6 (2); that's -- that's the reality. 7 And people have done studies saying, Well, 8 there's maybe a small percentage of -- of so-called SIDS 9 are -- actually have intentional upper area obstruction. 10 We as pathologists don't know that and we just can't 11 provide any evidence one way or the other. 12 DR. STEPHEN CORDNER: And then the 13 pressure really comes on the pathology system when that 14 family has a second similar death. 15 MR. MARK SANDLER: Dr. Cordner, I'll ask 16 you, does the state of forensic pathology ever permit the 17 use of statistical percentages? 18 DR. STEPHEN CORDNER: Well, I think we -- 19 we've probably dealt with that -- 20 DR. CHRISTOPHER MILROY: 86 percent of 21 the time. 22 DR. STEPHEN CORDNER: We -- we've 23 discussed that in -- in relation to the epidemiological 24 discussion and that -- well, the -- the short fall case 25 is a perfect example of where there's stat -- the weight

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1 of statistical evidence is -- and -- and the statistics 2 are very important, but we know of the anecdotal cases 3 and how do you balance those two (2) bits of knowledge? 4 They're both knowledge. 5 How do you bring both of those bits of 6 knowledge to be in a particular case? 7 And when it gets hard like that our role 8 is to point out the different bits of relevant knowledge 9 and the people who have to make the decisions can make 10 the decisions. 11 MR. MARK SANDLER: All right. And just - 12 - I want to ask several miscellaneous questions that 13 don't arise as a result of the conversation that we're 14 now having. 15 Dr. Pollanen, yesterday Dr. Cordner 16 described the existence of a quality assurance committees 17 within -- within the Victorian Institute, and I just 18 wanted to ask you whether or not the Quality Assurance 19 Committee is a concept now known in Ontario? 20 Do you think it's a good -- I'm -- I'm 21 sure -- you heard what Dr. Cordner had to say about it -- 22 is it a good idea to adopt here? 23 DR. MICHAEL POLLANEN: Yes, I think so. 24 I think that we'd have to sort of think about what the 25 specific mechanics of -- of his committee, in terms of

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1 what it does, et cetera, but I think the -- the point 2 being that some coordinated and dedicated effort within 3 the organisation along those lines, as opposed to adding 4 those duties onto preexisting individuals, you know, 5 that's an -- that's an important aspect. 6 MR. MARK SANDLER: Okay. And the second 7 question that I wanted to ask you about -- again arising 8 out of what Dr. Cordner had to say yesterday wa -- was 9 this, I asked you several roundtables ago about 10 accreditation through, as described by Dr. Hanzlick, 11 through the National Association of Medical Examiners. 12 And I believe you had indicated to the Commissioner that 13 -- that you couldn't meet, at this point, the criteria 14 for -- for accreditation. 15 First of all, could you explain to the 16 Commissioner why, in your view, you couldn't meet those 17 accreditation standards at present. 18 And second of all, Dr. Cordner yesterday 19 described a multifaceted accreditation process that -- 20 that the Victorian Institute is subject to that had three 21 (3) -- three (3) facets, and I know we've talked about 22 this. 23 Could you indicate the extent to which 24 those accreditation processes might have application to 25 your units.

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1 DR. MICHAEL POLLANEN: So I think the -- 2 the first issue is the -- the name accreditation. And 3 the -- the nane -- name accreditation is, in the fist 4 instance, determined by the institution taking 5 preformatted checklists and then essentially going 6 through your -- your facility and determining how you 7 would do in an inspection. 8 And we just would not -- we would have no 9 chance of passing such an inspection at this point. 10 COMMISSIONER STEPHEN GOUDGE: And is that 11 because of the physical plant? 12 DR. MICHAEL POLLANEN: And it would be 13 largely related to physical plants -- 14 COMMISSIONER STEPHEN GOUDGE: What else? 15 DR. MICHAEL POLLANEN: Well, it would 16 have to do with some of -- of the organizational 17 structures, which may not be barriers to accreditation. 18 If -- after discussion with the -- with the main Board, 19 for example, the -- technically the -- the toxicology lab 20 is supposed to be within the remit of the -- of the Chief 21 Medical Examiner or the Chief Forensic Pathologist, but 22 in our circumstance that's not the case. 23 But I don't think it would be a barrier -- 24 COMMISSIONER STEPHEN GOUDGE: Right. 25 DR. MICHAEL POLLANEN: -- to -- to

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1 certification, because they're an accredited laboratory-- 2 COMMISSIONER STEPHEN GOUDGE: Right. 3 DR. MICHAEL POLLANEN: -- for example. 4 So -- so there are sort of individual peculiarities which 5 on the list right now would get a "no", but in -- in all 6 likelihood would be viewed by -- by name as just being, 7 you know, that's a local difference. 8 COMMISSIONER STEPHEN GOUDGE: Local 9 adaptation? 10 DR. MICHAEL POLLANEN: Exactly. So that 11 it would be princ -- it would be principally physical 12 plant. 13 And then the -- the second part of your 14 question was other forms of accreditation, or other 15 quality assurance mechanisms. And there is an 16 organization in Ontario called QMPLS and I -- I hope you 17 don't ask me what the pseudonym -- 18 COMMISSIONER STEPHEN GOUDGE: The 19 acronym. 20 DR. MICHAEL POLLANEN: -- that stands 21 for. But it's -- it's actually it's a laboratory manage 22 -- quality assessment program for clinical hospital 23 pathology laboratories and -- and that is at least an 24 organization that could potentially accredit us. And 25 that -- that has two (2) interesting facets to it.

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1 First of all, if you use QMPLS as a 2 standard, all the regional units would qualify. And in 3 fact, our QMPLS accredited, because they're of course in 4 hospitals, which must have that accreditation. 5 So when I discussed this initially with 6 QMPLS, they basically said, Well we have no provision for 7 such a -- an accreditation in a forensic labor -- 8 laboratory setting like ours, perhaps you'd like to make 9 one (1) and we could work together to sort that out. 10 So that's a -- that's certainly a 11 possibility. So those would be the two (2) -- the two 12 (2) major mechanisms, I think. 13 With the -- with the new complex coming 14 online, I think the goal would be name accreditation, and 15 certainly during the planning phase, we were very mindful 16 of the check list. 17 COMMISSIONER STEPHEN GOUDGE: I see. 18 Who's the sponsor of the second accreditation mechanism? 19 DR. MICHAEL POLLANEN: It's a -- well 20 it's actually an Ontario laboratory quality organization. 21 COMMISSIONER STEPHEN GOUDGE: Is it set 22 up by hospital laboratories collectively? 23 DR. MICHAEL POLLANEN: It's a -- it's an 24 independent arm's length body that has as it's sole 25 function, accrediting laboratories.

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1 COMMISSIONER STEPHEN GOUDGE: And they'd 2 be very largely in hospitals? 3 DR. MICHAEL POLLANEN: Yes. Yeah. 4 Private laboratories as well, for example. 5 COMMISSIONER STEPHEN GOUDGE: Right. 6 DR. MICHAEL POLLANEN: You know, there 7 are several private medical laboratories around. 8 COMMISSIONER STEPHEN GOUDGE: Right. 9 Okay. 10 11 CONTINUED BY MR. MARK SANDLER: 12 MR. MARK SANDLER: All right. Now I'm 13 going to ask each of you a -- a question that -- that 14 some of you have already weighed in on, whether in 15 writing or in testimony. 16 You're faced with one (1) of the many 17 scenarios that -- that I've put to you earlier today. 18 Lets take Dr. Pollanen's scenario with a negative 19 autopsy, but with some historical fractures that might 20 traditionally be associated with abuse. And you've 21 learned that as a result of X-rays before you picked up 22 the scalpel and commenced the autopsy. 23 How would you describe for your fellow 24 pathologists here or around the work, the proper attitude 25 with which to approach that case? Think dirty? Think

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1 truth? Think heightened index of suspicion? 2 Dr. Cordner...? 3 DR. STEPHEN CORDNER: Well, it's not, you 4 know -- think -- I don't think there's any issue there. 5 I think that particular circumstance means that clearly 6 in a properly trained forensic pathologist's mind the -- 7 the possibility of abuse is raised. Serious attention 8 needs to be paid to that possibility. 9 In that particular circumstance I would be 10 onto the telephone before the commencement of the autopsy 11 to the homicide squad to say, Look, I think -- you know, 12 you -- you need to be alert to this case. There needs to 13 be some -- this is not a straightforward SIDS case, we 14 can tell that now. 15 It would probably need to be -- you'd need 16 to satisfy yourselves that the police side of the 17 investigation is being handled accurately. And I think 18 we should have the police photographer down here and you 19 might even like to be in attendance. 20 So that -- but I just see that as part of 21 the same attitude that is brought to every case. I don't 22 sort of see attitude in approaching cases, sort of, in an 23 overall sense shifting. So I'd just -- 24 COMMISSIONER STEPHEN GOUDGE: So you 25 would characterize that as "think truth" --

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1 DR. STEPHEN CORDNER: Yes. 2 COMMISSIONER STEPHEN GOUDGE: -- just as 3 you would in every other case? 4 DR. STEPHEN CORDNER: Yeah, yeah. 5 6 CONTINUED BY MR. MARK SANDLER: 7 MR. MARK SANDLER: Think truth, though 8 the particular circumstances the case invite concerns. 9 DR. STEPHEN CORDNER: Well, they clearly 10 -- they clearly send you off down a different path than - 11 - than if the excise what you had been exposed to before 12 the autopsy, in circumstances where it was otherwise SIDS 13 disclosed no fractures. 14 MR. MARK SANDLER: All right. Dr. 15 Milroy, you don't have the -- the healing fractures, you 16 just have a SIDS presentation, and you're advising a -- a 17 fellow about your experience here in Ontario, testifying 18 at the inquiry. And that fellow -- she asks you the 19 question: How should I approach the case -- think dirty, 20 think truth, think heightened level of suspicion -- in 21 these cases? Help me out. 22 What do you tell her? 23 DR. CHRISTOPHER MILROY: Well, the -- the 24 think dirty approach was -- was around in England in the 25 early 1990s. I haven't heard it used in -- in the UK for

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1 a decade now I think, which is a good thing because I 2 think the concept of think dirty is just wrong. 3 And I would just say to her or him, Be 4 mindful that when you're presented with a dead child, 5 anything is possible until you have completed your 6 examination. So you must be thorough and comprehensive 7 not only on -- I mean -- I mean, as an example, actually 8 if you've got the most obvious triad case, do you still 9 bother doing all the other investigations? 10 Do you bother doing the microbiology? My 11 counsel will -- through experience, you've got to do 12 everything because, you know, you may find that the kid's 13 got meningitis. Having done the -- you know, you 14 suddenly find you've done the histology and oh, I didn't 15 take any -- and you've got -- you've got inflammation on 16 the -- on the histology, but you haven't bothered to take 17 any swabs. 18 So it's a bit like people that don't 19 bother investing histology because they think the 20 toxicology will get them out of the trouble when they've 21 got the negative autopsy. And then the toxicology comes 22 back negative and then they go, Blast, I didn't take it. 23 So what I -- you know, what might have excluded other 24 natural diseases. 25 So that's a very shortsighted approach.

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1 And so the -- that the approach is you've got to do 2 everything. That's why you have to have a very 3 systematic approach. It's not thinking dirty, it's just 4 being very objective. 5 Because in these cases -- of all -- he 6 just heard, Yeah, you're going to sign these out probably 7 as Sudden Infant Death Syndrome ,if all the circumstances 8 are right. For all you know, the second child comes 9 along, that one also dies. And I'm looking at Stephen 10 because I know he's had this exact problem. And then the 11 third one dies. 12 Now, are you now dealing with a serial 13 smotherer or are you dealing with a genetic disorder in 14 the family that you have yet to identify. And if you, in 15 the third one, say, Well, the previous two (2), so it's 16 obviously smothering, I won't bother doing the 17 investigations, then you are thinking dirty and you're 18 thinking very foolishly. 19 MR. MARK SANDLER: All right. Dr. 20 Chiasson, a young doctor accompanies you to the autopsy, 21 the police come in, in essence it's a SIDS presentation, 22 based upon what you've heard up until this point in time, 23 but they also tell you that -- they tell you in the 24 presence of the young doctor that -- that the neighbours 25 have reflected that this caregiver has a history of

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1 abusing the other children in the family. 2 Is there any advice that you'd impart to 3 the young doctor in -- in how to deal with that kind of 4 information and whether it could colour the approach to 5 the autopsy? 6 DR. DAVID CHIASSON: Well, are you 7 speaking of a trainee? 8 MR. MARK SANDLER: Exactly right. 9 DR. DAVID CHIASSON: This is obviously a 10 case where as the supervising pathologist that I would -- 11 I would be there and present and -- and closely 12 monitoring the -- the work that's going to take place. I 13 think, you know, the first thing is you -- you need to 14 think, period, that, you know, take the -- take your 15 findings and -- and deal with them as -- as you see them. 16 And I think very importantly, the point 17 Dr. Milroy just made, I think you need a standard 18 protocol. You need to be doing all the investigations 19 which cover not only the potential for this being a 20 criminally suspicious death or a homicide, by doing the 21 X-rays, et cetera, but at the same time the possibility 22 that you're dealing with something infectious, something 23 metabolic. Just because they have even broken bones, 24 healing broken bones, doesn't mean they haven't died of 25 some natural disease.

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1 So I think it's very important that -- 2 that you have in place the protocols and that the -- your 3 -- your trainee is -- is going to follow that and you 4 would very -- go through the whole process of -- of this 5 with him or her. 6 MR. MARK SANDLER: All right. Dr. 7 Pollanen, as I do in all of the roundtables, I'm going to 8 invite each of the panellists to provide any 9 recommendations or suggestions to the Commissioner that 10 have not already been captured either in other 11 roundtables, or in the commentary that has been made 12 today, do you have any other comments that you'd like to 13 make? 14 DR. MICHAEL POLLANEN: Well, I think the 15 -- if we sort of just deal with the issues that we've 16 talked about today, I think that the single most 17 profitable framework within which to work is the evidence 18 based framework. And I think that has got to be realised 19 at a cultural level throughout the -- the forensic 20 pathology service in Ontario, which is a challenge 21 through continuing education mechanisms. 22 I think also we have to educate the 23 consumers of our product, that is the autopsy report 24 going out to where it goes to, to understand the -- the 25 nature of our conclusions and how we get to them, and we

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1 do that through education and through writing more 2 fulsome opinions within -- within our reports. 3 And something that hasn't been captured in 4 -- in our discussions here, because we've been given very 5 specific scenarios around borderline cases of smothering, 6 and triad, et cetera, and that is to -- to advocate once 7 again for the -- the major issue here is the growth of 8 knowledge. And we can talk about how we can develop 9 language to describe all of these issues, but the only 10 way we're going to ultimately escape from these things is 11 through growing the knowledge, doing research, 12 identifying experimental paradigms, to really get at the 13 answers to some of these questions. 14 They're very difficult questions. They've 15 been with us for a long time. But one (1) of the ways 16 we're going to move forward is through also developing 17 research agendas along these questions. 18 COMMISSIONER STEPHEN GOUDGE: All right. 19 Let me just ask you, Dr. Pollanen, and you, Dr. Chiasson, 20 a couple of sort of Ontario focussed questions before we 21 carry on with the basic recommendations for which I'm 22 very grateful. 23 We talked a lot earlier this week, both on 24 panels you were both on and ones you weren't, about the 25 importance of the collegial atmosphere as a quality

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1 assurance mechanism. Just as a matter of practicality, 2 we've talked as well in the Ontario context about 3 telepathology, okay. 4 How realistic is it to think of that as a 5 contributing vehicle to this atmosphere? 6 And let me raise particularly, we had you 7 describe, Dr. Pollanen, what goes on every morning at the 8 autopsy suite at the Chief Coroner's Office, would it be 9 feasible to have those interested from the other units 10 around Ontario share in that by way of telepathology? 11 Is that a feasible or useful thought? 12 DR. MICHAEL POLLANEN: Yes, I believe so. 13 I think that, you know, there -- there are practicalities 14 in how -- how seamlessly you could do that every day and 15 have -- 16 COMMISSIONER STEPHEN GOUDGE: Right, 17 right. 18 DR. MICHAEL POLLANEN: -- you know, 100 19 percent -- 20 COMMISSIONER STEPHEN GOUDGE: And whether 21 it would be worth doing, depending on the caseload, et 22 cetera. 23 DR. MICHAEL POLLANEN: Exactly, but -- 24 but I think that that's an important way of -- of linking 25 us all together looking at interesting issues. I mean, I

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1 think there'd need to be some work and we'd have to get 2 buy-in for it because -- 3 COMMISSIONER STEPHEN GOUDGE: Right. 4 DR. MICHAEL POLLANEN: -- it would be -- 5 you would be according -- coordinating a large number of 6 people in multiple institutions at 8:30 in the morning; 7 it's -- it's not an easy task. 8 COMMISSIONER STEPHEN GOUDGE: Right. And 9 we talked a little, Dr. Chiasson, about the issue of 10 doing that with your unit and the other pathologists and 11 so on. I talked to Dr. Taylor and I think with you about 12 that. 13 DR. DAVID CHIASSON: Yes, in fact, I 14 mean, I think we're now at the hospital devising our own 15 telepath system to actually communicate between the OR 16 for example and the pathology department. 17 COMMISSIONER STEPHEN GOUDGE: Right. 18 DR. DAVID CHIASSON: And I'm sure this 19 has -- 20 COMMISSIONER STEPHEN GOUDGE: And that 21 has a video capacity, I take it? 22 DR. DAVID CHIASSON: Yes. And I'm sure 23 this could be expanded. I -- I think the value for the - 24 - the units outside the Toronto unit would be in fact 25 when you do have a --

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1 COMMISSIONER STEPHEN GOUDGE: A tough 2 case. 3 DR. DAVID CHIASSON: -- case to -- to 4 present it -- 5 COMMISSIONER STEPHEN GOUDGE: Yes. 6 DR. DAVID CHIASSON: -- back to -- to the 7 assembled expertise at the Coroner's Office. 8 COMMISSIONER STEPHEN GOUDGE: Okay. 9 Second Ontario focussed question, and we dealt with this 10 with Dr. Cordner the other day, and that is where you 11 have in, let's say a criminally suspicious case, a second 12 set of pathology eyes looking at the report before it 13 goes out. 14 The standard here is not do I agree, but 15 is it reasonable? Ontario standard, do I agree? 16 DR. MICHAEL POLLANEN: Well, the -- I can 17 tell you the history behind that. The Ontario standard 18 was first is the conclusion reviewable and reasonable. 19 COMMISSIONER STEPHEN GOUDGE: Right. 20 DR. MICHAEL POLLANEN: Those are the two 21 (2) questions, initially. 22 COMMISSIONER STEPHEN GOUDGE: Right, 23 right. 24 DR. MICHAEL POLLANEN: Then when we went 25 through a process of producing the second edition of the

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1 guidelines, brought all the pathologists around the table 2 from all the regions -- 3 COMMISSIONER STEPHEN GOUDGE: This is 4 last October? 5 DR. MICHAEL POLLANEN: Yes. And I asked 6 them: Is this sufficient? And the -- the consensus was 7 they wanted more when they went to court. 8 COMMISSIONER STEPHEN GOUDGE: They wanted 9 more scrutiny? 10 DR. MICHAEL POLLANEN: They wanted more - 11 - yeah, they wanted more scrutiny in the peer review to 12 the level of agree. 13 COMMISSIONER STEPHEN GOUDGE: Okay. 14 DR. MICHAEL POLLANEN: So that -- that 15 was something that the group came with. 16 COMMISSIONER STEPHEN GOUDGE: And 17 clearly, therefore, didn't feel it was an extra 18 unbearable burden in resources? 19 DR. MICHAEL POLLANEN: Well, I can tell 20 you that it is -- it has turned out to be quite a 21 resource intensive exercise. 22 COMMISSIONER STEPHEN GOUDGE: Sort of 23 easier said than done? 24 DR. MICHAEL POLLANEN: Yes. I -- I don't 25 think we actually initially realized how much more effort

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1 was in -- was in -- 2 COMMISSIONER STEPHEN GOUDGE: How is it 3 rolling out in practice? 4 DR. MICHAEL POLLANEN: Well, let's put it 5 this way, we will -- we will need to -- to devote more 6 resources to it than we initially thought and it will 7 have an impact on the numbers of pathologists and number 8 of cases that they do. I mean, functionally what's 9 happened is that we have to disseminate more of the 10 reviews more widely across the Province. 11 COMMISSIONER STEPHEN GOUDGE: To get them 12 done? 13 DR. MICHAEL POLLANEN: To get them done. 14 And in fact, it's not actually a bad thing because it's a 15 peer review process -- 16 COMMISSIONER STEPHEN GOUDGE: Right. 17 DR. MICHAEL POLLANEN: -- as a opposed 18 to a paramatel (phonetic), you know, process. So it's 19 probably not a bag thing, but it is a considerable 20 workload. 21 COMMISSIONER STEPHEN GOUDGE: Yes. And 22 then just to tie up the basic attitude problem, because 23 as all of you know we heard a great deal about think 24 dirty, I hear all of you saying think truth is the 25 objective, that think truth has to be responsive to the

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1 facts and circumstances of a particular case. 2 And I take it none of you have any 3 concern with that basic attitude about any enhanced risk 4 of missing cases of criminal acts for kids. The 5 motivation which at least some say was the thoroughly 6 commendable motivation behind the think dirty in the 7 first place, fair enough? 8 DR. MICHAEL POLLANEN: Correct, yes. 9 DR. CHRISTOPHER MILROY: Yes. 10 COMMISSIONER STEPHEN GOUDGE: Let the 11 record show everybody nods. Thanks, Mr. Sandler. 12 13 CONTINUED BY MR. MARK SANDLER: 14 MR. MARK SANDLER: Dr. -- Dr. Chiasson, 15 did you -- did you want to say anything else? 16 DR. DAVID CHIASSON: Well, very briefly 17 and -- and just to tag onto what Michael's saying about 18 the -- the need for research activities. I'll reiterate 19 what I said the other day. I haven't really spoken very 20 much about the unit at -- at Sick Kids today; I'm -- I'm 21 restraining myself. 22 But to -- to come back to this data, this 23 -- this massive data that is present in the library at - 24 - at the hospital and the terms of reports that have 25 been gathered over the years, complete with full sets of

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1 slides and photographs, that this a resource which would 2 -- is just waiting to be -- to be mined. 3 In -- more in terms of today's 4 discussions, I -- I think the -- the one (1) think that 5 -- that I would see as being a practical and a real 6 value would be to push this initiative that Crown 7 attorneys -- when they are in -- in those relatively 8 rare cases that cause of death; there are issues 9 revolving around that; that they are controversial 10 issues; that these can be broached in a more formal way 11 prior to any form of testimony. 12 If they've got issues, they've got 13 questions that need to be addressed, that the place to 14 do that is really up front, not at the preliminary 15 hearing, you know, after a -- a brief meeting 16 beforehand. 17 So to -- to sort of encourage, and again, 18 I'm not -- I'm not -- and I'm not hoping that every time 19 I -- I have to go testify at a homicide that -- trial, 20 that I'm going to have to do some -- some additional 21 report. I'm talking about those select cases where 22 there are definite issues revolving around cause of 23 death, or whatever circumstantial information hypothesis 24 in -- in that the pathology is able to speak to. 25 MR. MARK SANDLER: Thank you. Dr.

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1 Milroy, anything to add? 2 DR. CHRISTOPHER MILROY: I think that 3 the first thing is that -- I think you need a -- a 4 structure to work in that allows for forensic pathology 5 to be in at the beginning. As Stephen -- as Dr. Cordner 6 has said, you know, they get calls within an hour or so 7 of the homicide squad getting involved, and I do think 8 it's important that the forensic pathologist are very 9 much in the loop at the start. 10 And through the -- I also think that 11 through the Office of the Chief Forensic Pathologist or 12 the Off -- that -- who actually does an autopsy is one 13 (1) of the things that again, there should be forensic 14 pathology input. If not, it's a decision of the 15 forensic pathologist. I appreciate that the coroner 16 signs the warrant, but the experts, in actually doing 17 it, we -- we know whether this is a case we should be 18 doing, or whether we should hand it on to a -- a 19 pediatric pathologist or a general adult pathologist. 20 So I think that that -- I think that that 21 institutional structure where you use your forensic 22 pathologist and you get -- is important so that we can 23 be in at the scenes. And I would also echo that early 24 meetings with lawyers where there are going to be 25 prosecutions are very important.

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1 MR. MARK SANDLER: Dr. Cordner...? 2 DR. STEPHEN CORDNER: Yes, look, I think 3 the Commissioners has heard this, but since this is the 4 last comment I think I'll -- I'll say it again: I think 5 people don't quite understand how tiny forensic 6 pathology is; surrounded by a massive health system, a 7 massive justice system; very easily -- very easy for 8 forensic pathology to slip into a backwater, be 9 forgotten, disregarded, until like something like this 10 happens. 11 Forensic pathology need to be gathered 12 together into a coherent framework, an institutional 13 framework; it needs to be nurtured; it has to be 14 protected. And the more you concentrate, I believe, on 15 the -- on the framework and the institution, the less 16 you have to worry about the detail. And the detail 17 should be left to a competent institution with a 18 organizational framework to do -- pick up the detail. 19 And that should pick up quality, that 20 should pick up how you allocate the cases, and how you 21 deal with the millions of issues that have been raised 22 in an inquiry like this. 23 MR. MARK SANDLER: Thank you very much. 24 Commissioner, those are my questions. I understand that 25 other counsel do not have questions. I should point up

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1 that three (3) of our four (4) panellists, Dr. Chiasson, 2 Dr. Milroy, and Dr. Cordner have completed their 3 participation in the roundtables for the next few weeks. 4 We'll be calling upon Dr. Pollanen again. 5 So I do want to extend our thank you's to 6 -- to those three (3) in particular, as well as Dr. 7 Pollanen for your extraordinary assistance throughout 8 this week. It's very much appreciated. 9 COMMISSIONER STEPHEN GOUDGE: Yes. I 10 echo that. We've had world class help. This will get 11 us as close to getting it right as I hope anybody could, 12 so we're enormously grateful to you. Thank you very 13 much. 14 DR. DAVID CHIASSON: Thank you. 15 DR. CHRISTOPHER MILROY: Thank you for 16 having us. 17 COMMISSIONER STEPHEN GOUDGE: We'll 18 adjourn then until 9:30 tomorrow. 19 20 --- Upon adjourning at 3:02 p.m. 21 22 23 24 25

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