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 19th, 2008 25

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

3
  1                   APPEARANCES (CONT'D)
  2  Paul Cavalluzzo      (np) )     Ontario Crown Attorneys'
  3                                   Association
  4  
  5  Mara Greene               )     Criminal Lawyers'
  6  Breese Davies        (np)  )    Association
  7  Joseph Di Luca       (np) )
  8  Jeffery Manishen      (np) )
  9  
 10  James Lockyer        (np) )     William Mullins-Johnson, 
 11  Alison Craig               )    Sherry Sherret-Robinson and
 12  Phillip Campbell     (np) )     seven unnamed persons
 13  
 14  Peter Wardle              )     Affected Families Group
 15  Julie Kirkpatrick          )
 16  Daniel Bernstein     (np) )
 17  
 18  Louis Sokolov             )     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          (np)   )
 13  Kim Twohig                 )
 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 CROWN, DEFENCE AND THE COURT PANEL: 3 MICHAEL CODE 4 BRUCE MACFARLANE 5 MARLYS EDWARDH 6 PAUL LINDSAY 7 PAUL MCDERMOTT 8 9 Questioned by Mr. Mark Sandler 10 10 Questioned by Ms. Mara Greene 127 11 Questioned by Ms. Suzan Fraser 131 12 13 CHALLENGES ASSOCIATED WITH DEFENDING PEDIATRIC FORENSIC 14 PATHOLOGY CASES UNDER LEGAL AID PANEL: 15 MICHAEL CODE 16 MARLYS EDWARDH 17 NYE THOMAS 18 ROB BUCHANAN 19 PAUL MCDERMOTT 20 21 Questioned by Mr. Mark Sandler 136 22 Questioned by Ms. Suzan Fraser 178 23 Questioned by Ms. Jackie Esmonde 182 24 25 Certificate of transcript 186

1 --- Upon commencing at 9:33 a.m. 2 3 MR. REGISTRAR: All rise. Please be 4 seated. 5 COMMISSIONER STEPHEN GOUDGE: Good 6 morning. 7 MR. MARK SANDLER: Good morning. 8 COMMISSIONER STEPHEN GOUDGE: Mr. 9 Sandler...? 10 MR. MARK SANDLER: Well, good morning, 11 everyone. This roundtable is entitled, "Crown, Defence, 12 and the Court" and we're going to be exploring this 13 morning a number of issues that are of importance to 14 those who participate in the crim -- criminal justice 15 system. 16 We have a distinguished panel this 17 morning. I should say, Commissioner, at the outset that 18 Professor Chris Sherrin, who's paper has been provided as 19 part of the materials for this panel, will not be 20 participating today due to pneumonia so we wish him a 21 speedy recovery. And -- and I know that the panellists 22 and the Commissioner have reviewed his paper and will 23 inform our discussion. 24 What is contemplated this morning, 25 Commissioner, is that the panel as presently constituted

1 will field some questions from you and from me until our 2 normal morning break at 12:15. We'll leave -- we'll 3 leave fifteen (15) minutes from about 12:00 to 12:15 for 4 questions from counsel for other parties. 5 And then this afternoon we will 6 reconstitute our panel, the defence counsel shall remain, 7 we'll excuse our two (2) Crown counsel, and added to the 8 panel will be be two (2) representatives of Legal Aid 9 Ontario who will speak together with the other counsel on 10 the panel to some of the challenges of defending these 11 cases as -- as they may be legal aid related. 12 So if I might introduce our panel this 13 morning, I'll start, Commissioner, at your far left with 14 Professor Michael Code. Mr. Code is an Assistant 15 Professor at the Faculty of Law, University of Toronto, 16 where he teaches evidence, criminal law, criminal 17 procedure, and ethics. 18 He has worked, of course, as defence 19 counsel, as Crown counsel, and as Assistant Deputy 20 Attorney General in this province. He has also acted as 21 counsel to various public entities, such as the Ontario 22 Securities Commission, the RCMP, the Special 23 Investigations Unit, the Manitoba Ministry of the 24 Attorney General, the Ontario Court Judge's Association, 25 Federal Minister of Justice, and most recently as counsel

1 to the Driskell Inquiry. Welcome, Professor Code. 2 Immediately beside him is Bruce 3 MacFarlane. Bruce is currently on a secondment from 4 Manitoba Justice as a professional affiliate, faculty of 5 law at the University of Manitoba, where he teaches about 6 wrongful convictions and also researches and writes on 7 criminal law subjects including wrongful convictions. 8 Mr. MacFarlane is a former Deputy Attorney 9 General for the Province of Manitoba. He has held 10 previous appointments as the Assistant Deputy Attorney 11 General Criminal Law for Canada, Director of the Federal 12 Department of Justice in the Province of Alberta, and 13 Director of Legal Services for the RCMP. Welcome, Mr. 14 MacFarlane. 15 DR. BRUCE MACFARLANE: Thank you. 16 MR. MARK SANDLER: Next is Marlys 17 Edwardh. Ms. Edwardh is a senior partner with the firm 18 Ruby & Edwardh, practising criminal, constitutional, and 19 administrative law. 20 She has also served as counsel on a number 21 of commissions of Inquiry. She is currently the Vice 22 President of the Canadian Civil Liberties Association, a 23 fellow and Advice Chair of the American College of Trial 24 Lawyers, and a Special Advisor to the Association in 25 Defence of the Wrongly Convicted. Good morning again,

1 Ms. Edwardh. 2 Beside her is Mr. McDermott. Paul 3 McDermott is an Assistant Crown Attorney with the 4 Ministry of the Attorney General. Since his call to the 5 Bar, he has practised in the downtown Toronto Crown 6 attorneys office. He has been an instructor in advocacy 7 at the Bar Admission Course, and a frequent lecturer at 8 the continuing education programs, the Law Society of 9 Upper Canada, the Canadian Bar Association, the Ontario 10 Bar Association, the Ontario Crown Attorneys Association, 11 and the Intensive Trial Advocacy Course at Osgoode Hall 12 Law School. 13 He is the co-author of, "Sentencing: The 14 Practitioner's Guide", a text on the law of sentencing 15 for Criminal Code offenses. And I should note, in 16 addition to what we have noted here is that he has 17 prosecuted many, many -- too many to count, homicide 18 cases in this jurisdiction. Good morning and welcome, 19 Mr. McDermott. 20 And finally not -- not but -- last but not 21 least is Paul Lindsay. Mr. Lindsay is an Assistant 22 Deputy Attorney General for Ontario. He completed his 23 articles, first with the Crown Law Office Criminal, and 24 subsequently held the positions of Crown Counsel, Senior 25 Counsel, Deputy Director, and Director of the Crown Law

1 Office Criminal. 2 He obtained his BA, his LLB, and his 3 Master in Law is from the University of Toronto, and as I 4 tell anyone who will listen to me, he also has many 5 notable successes as Crown Counsel, most of them against 6 me. Welcome to you all. 7 8 CROWN, DEFENCE AND THE COURT PANEL: 9 10 MICHAEL CODE 11 BRUCE MACFARLANE 12 MARLYS EDWARDH 13 PAUL LINDSAY 14 PAUL MCDERMOTT 15 16 QUESTIONED BY MR. MARK SANDLER: 17 MR. MARK SANDLER: Well, if I can start 18 off with -- with an area that has been raised by a number 19 of individuals who have either testified, or participated 20 in roundtables at this Inquiry, and that is should 21 counsel, either Crown or defence, who do these very 22 difficult pediatric forensic pathology cases have 23 specialised training? 24 And perhaps I'll ask from the perspective 25 of the Crown first, and turn to Mr. Lindsay.

1 MR. PAUL LINDSAY: Thank you, Mark. I 2 think the short answer is yes. The -- from the Crown's 3 perspective, we -- we have a number of things that we do 4 to try to keep Crowns up to date, and ready and able to 5 deal with the many challenges that our justice system 6 faces. 7 Maybe I can just give you a bit of a 8 description to give you some context. 9 MR. MARK SANDLER: Please do. 10 MR. PAUL LINDSAY: We have five (5) or 11 six (6) things that we do that assist in our education. 12 I should say at the outset that we're -- 13 the Ministry partners up with the Ontario Crown Attorneys 14 Association in our education, So that this is the 15 Association that represents each of our almost a thousand 16 (1,000) Crowns now. And I can say that it's an excellent 17 partnership that we have with them, and we're pleased to 18 do that with them. 19 We have -- every year we have a Spring 20 conference. It's a kind of a plannery kind of 21 educational event, where all Crowns are invited. We 22 usually get about six (6) to seven hundred (700) Crowns, 23 so it provides a real good opportunity to take an 24 educational training message to all Crowns. 25 In the fall we have regional fall

1 conferences, where each region, or combinations of 2 regions, have more focussed educational opportunities. 3 And then thirdly, and very importantly, we 4 have a Crown Summer school, where on any number of topics 5 from the most basic to the most advanced, in smaller 6 groups, Crowns are given training. And certainly insofar 7 as this issue is concerned, training in pediatric child 8 homi -- child homicide cases and others, we have a 9 homicide course. 10 I think, Paul, you're -- you've been 11 active in that over a number of years, I believe. 12 MR. PAUL MCDERMOTT: Yes. 13 MR. PAUL LINDSAY: Where certainly we 14 would expect that anyone who's going to do a homicide at 15 one point in their career should take the homicide 16 course, and certainly we'd be looking to, hopefully this 17 summer, deal with some of the pediatric pathological 18 issues. 19 We have CLD Net, which is a -- which is a 20 web based internet where we are able to have papers, 21 discussions, updates, what have you, that we -- we will 22 now be able to use that for the purpose of educating. 23 And certainly our new initiative, the -- the Criminal Law 24 Division Child Homicide Resource Team, which were -- I 25 think was mentioned earlier in the -- in these

1 proceedings, perhaps by Mr. Gilkinson -- 2 MR. MARK SANDLER: Yes. 3 MR. PAUL LINDSAY: -- and perhaps by John 4 Ayre when he testified, I believe last week -- 5 MR. MARK SANDLER: Hm-mm. 6 MR. PAUL LINDSAY: -- will be comprised 7 of nine (9) people, one (1) a chair, who I -- I can 8 indicate will be John Ayre, he'll be our first Chair; and 9 eight (8) senior counsel from each region, six (6) from 10 the regions and one (1) from the Crown Office Criminal, 11 which is the Appeals and Special Prosecutions Branch, and 12 one (1) from our Policy Branch. 13 And one (1) of their functions will be to 14 obtain and receive specialised training and education; 15 seek out educational opportunities throughout Canada and 16 -- and beyond, and then impart that to the rest of the 17 division. We see them as leaders in education and other 18 things, as well. 19 So those are the -- the six (6) kind of 20 things that we can do and intend to pursue in -- in the 21 months following the -- the publication of the -- of the 22 report in this matter. 23 MR. MARK SANDLER: All right. 24 COMMISSIONER STEPHEN GOUDGE: Can I just 25 ask you little bit, Mr. Lindsay, about how targeted the

1 education could become in your vision of it? I mean, I'm 2 thinking of whether it could be targeted at elevating the 3 specific knowledge of Crowns about the science of 4 forensic pathology as it applies to pediatric cases, you 5 know, so that the Crowns are -- I mean we've had several 6 episodes in the evidence we've heard where Crowns 7 developed an instinctive sense of concern. But it's 8 instinctive as opposed -- 9 MR. PAUL LINDSAY: Right. 10 COMMISSIONER STEPHEN GOUDGE: -- to 11 educated, and one wonders whether it is feasible or 12 realistic to think of targeted education, either web 13 based or as part of your annual lectures, sort of devoted 14 to what forensic pathology is about and what sound 15 forensic pathology methods constitute and so on. 16 I mean is that realistic? 17 MR. PAUL LINDSAY: Absolutely. And 18 indeed we do that in any number of areas and -- 19 COMMISSIONER STEPHEN GOUDGE: Like what? 20 I mean, would you do it in sexual assaults, for example? 21 MR. PAUL LINDSAY: Yes, absolutely sexual 22 assaults. We've had focussed educational advance dealing 23 with domestic violence -- 24 COMMISSIONER STEPHEN GOUDGE: Right. 25 MR. PAUL LINDSAY: -- wrongful

1 convictions -- 2 COMMISSIONER STEPHEN GOUDGE: Right. 3 MR. PAUL LINDSAY: -- any number of -- 4 any number of -- of focussed forms of education. 5 COMMISSIONER STEPHEN GOUDGE: Right. 6 MR. PAUL LINDSAY: And at -- certainly 7 with the our -- a multilateral approach that we're able 8 to take we'll be able to focus it and target it to the 9 appropriate groups within the division. 10 COMMISSIONER STEPHEN GOUDGE: Right. Or 11 even make it available on the web -- 12 MR. PAUL LINDSAY: Absolutely. 13 COMMISSIONER STEPHEN GOUDGE: -- so that 14 a Crown's assigned one (1) of the cases. And fortunately 15 they're not huge numbers, but -- 16 MR. PAUL LINDSAY: Right. 17 COMMISSIONER STEPHEN GOUDGE: -- they're 18 very difficult, obviously. 19 MR. PAUL LINDSAY: Absolutely. So 20 there's that and plus our new initiative obliges every 21 Crown who has carriage of one (1) of these kinds of cases 22 to consult with our new committee -- 23 COMMISSIONER STEPHEN GOUDGE: Yes. 24 MR. PAUL LINDSAY: -- notice that's a 25 mandatory requirement, that they consult. And I fully

1 expect -- and they're required to -- will be required to 2 consult at every stage from the Crown's initial reception 3 of the file, right till the end, up to the appeal -- 4 COMMISSIONER STEPHEN GOUDGE: Right. 5 MR. PAUL LINDSAY: -- should there be 6 one. 7 COMMISSIONER STEPHEN GOUDGE: Right. 8 MR. PAUL LINDSAY: And certainly I would 9 expect that the -- the committee would be able to conduct 10 a bit of an assessment, as to whether or not the Crown or 11 Crowns on the case might need a bit of extra help, in 12 terms of training and education. 13 COMMISSIONER STEPHEN GOUDGE: Right. 14 That's helpful, thank you. 15 16 CONTINUED BY MR. MARK SANDLER: 17 MR. MARK SANDLER: Mr. McDermott, just 18 following up on what Mr. Lindsay has said, I -- I believe 19 you were actually on the committee that generated the -- 20 the initiatives that we've been talking about here. 21 Am I right? 22 MR. PAUL MCDERMOTT: I was, yes. 23 MR. MARK SANDLER: And could you explain 24 to the Commissioner that the kinds of input or 25 involvement that you anticipate when a Crown who has one

1 (1) of these cases contacts the committee? 2 MR. PAUL MCDERMOTT: Well, the -- the 3 nature of litigation, civil or criminal, as you know, and 4 -- and the Commissioner does, you -- you have a sort of 5 voyeuristic role in different sciences and different -- 6 it's one (1) of the interesting parts being a litigation 7 lawyer. 8 And -- and this is one (1) of them, that - 9 - that we've identified as being a difficult science, and 10 -- and difficult to understand. And that's why we've 11 tried to concentrate on education, because the -- we -- 12 we don't see it as that there will be a necessary pre- 13 condition that -- that we have to fly in a prosecutor 14 who's been educated in all these things to Kenora -- 15 COMMISSIONER STEPHEN GOUDGE: Right. 16 MR. PAUL MCDERMOTT: -- if there's -- if 17 there unfortunately is a death there. But what we set up 18 -- what we're trying to set up is a network, such that 19 very easily if a -- if a homicide like this happens in 20 Sarnia or Kenora, or somewhere like that, there's an 21 immediate and -- and -- obl -- obligatory network to go 22 to, starting with Mr. Ayre and the people around the 23 province. 24 And we've -- we've tried to focus on 25 education -- and I'm sure that Mr. Ayre will be receiving

1 even more education, the conferences that Mr. Lindsay's 2 spoken about -- so that -- that all of the education and 3 the research that Professor MacFarlane and Professor 4 Sherrin have done can be concentrated through Mr. Ayre to 5 these people, so that -- that there's a network to go 6 immediately to if the police come to you looking for 7 advice about whether a charge should be laid, or if it's 8 after that, the charge has been laid and -- and you be in 9 your prosecution. 10 COMMISSIONER STEPHEN GOUDGE: Right. 11 MR. PAUL MCDERMOTT: So the -- the idea 12 that everybody's relearning around the province, every 13 time a -- a case like this occurs is what we're trying to 14 avoid. 15 16 CONTINUED BY MR. MARK SANDLER: 17 MR. MARK SANDLER: And I noted from -- 18 from the initiatives, that -- that Item 6 -- and we don't 19 -- needn't put it on the screen -- but reflects that: 20 "The criminal law division will direct 21 local Crowns to engage their local 22 police agencies to encourage pre-charge 23 consultation with the police and 24 relevant experts in all child homicide 25 cases, accepting only those matters

1 where public safety concerns are 2 engaged." 3 Now as I read that, recognizing that it's 4 the police decision whether to lay charges, and the 5 Crown's position to give advice when asked, this seems to 6 contemplate an enhanced role for Crown counsel in the 7 pre-charge screening of cases, as to whether they should 8 proceed to charges in -- in these cases. 9 Am I right as to that? 10 MR. PAUL MCDERMOTT: Yes. And again, I 11 think it's -- going back to what I -- I'm tethered to, is 12 education. If the police want the benefit of our 13 education, and the knowledge that -- that Mr. Ayre has 14 that he's passing on through this committee in the 15 charging stage, then -- the we're anxious to -- to 16 assist. Again, as -- as you said, it's entirely up to 17 them whether they come to us or not. 18 And it may be easier in smaller towns when 19 there's a -- when there's a case like this and -- and 20 there are less police officers, less Crowns, for this to 21 -- to begin with. But even in Toronto we -- we have a 22 ongoing relationship with the Toronto homicide where we 23 attend their case conferences, and they know who to call 24 in Toronto at the various region -- regions in -- in 25 Toronto to -- if they want pre-charge advice.

1 MR. MARK SANDLER: Right. So -- so the 2 flip side of -- of this initiative might well be a 3 recommendation from the Commissioner that police forces 4 be encouraged on their side to consult pre-charge on 5 these kinds of cases with -- with the Crowns -- 6 MR. PAUL MCDERMOTT: Yes. 7 MR. MARK SANDLER: Okay. Ms. Edwardh -- 8 COMMISSIONER STEPHEN GOUDGE: Can I just 9 ask before you turn to the defence side of this, Mr. 10 Sandler, has your educational system reached a level of 11 sophistication, Mr. McDermott, where for example, in this 12 kind of area, you have some consultants that you can go 13 to as the science changes? 14 I mean, obviously, one of the things we've 15 heard a lot about, to take shaken baby, is that the 16 science has changed over time, and obviously education to 17 be effective, has to keep in step with that? 18 MR. PAUL MCDERMOTT: It isn't as 19 structured as we would have wanted, I don't think -- 20 COMMISSIONER STEPHEN GOUDGE: Yes. 21 MR. PAUL MCDERMOTT: -- Justice Goudge, 22 but I think that's what we're aiming towards. 23 COMMISSIONER STEPHEN GOUDGE: Right. 24 MR. PAUL MCDERMOTT: And -- and in the 25 past, and this is the -- the purpose of -- of what we

1 really tried to concentrate on, is that there's a 2 definitive place to go for this -- 3 COMMISSIONER STEPHEN GOUDGE: Right. 4 MR. PAUL MCDERMOTT: -- education -- 5 COMMISSIONER STEPHEN GOUDGE: Right, 6 including -- 7 MR. PAUL MCDERMOTT: -- rather than -- 8 COMMISSIONER STEPHEN GOUDGE: -- that 9 theory of -- 10 MR. PAUL MCDERMOTT: -- anecdotal. 11 Someone says, I know this -- 12 COMMISSIONER STEPHEN GOUDGE: Right. 13 MR. PAUL MCDERMOTT: -- guy in Lond -- 14 that did a case like this, and I'll pick up the phone. 15 COMMISSIONER STEPHEN GOUDGE: Right. 16 MR. PAUL MCDERMOTT: That -- we're -- 17 that's what we're trying to avoid. 18 COMMISSIONER STEPHEN GOUDGE: Right. 19 MR. PAUL MCDERMOTT: But I -- I can say 20 that in other areas where -- where the prosecution itself 21 involves the science that you've -- you just happen to 22 get, because that's your brief, like child pornography -- 23 COMMISSIONER STEPHEN GOUDGE: Right. 24 MR. PAUL MCDERMOTT: -- it is very 25 difficult to prove the various computer aspects of it --

1 most people don't know -- 2 COMMISSIONER STEPHEN GOUDGE: Right. 3 MR. PAUL MCDERMOTT: -- and the Ministry 4 set up a specialized group of lawyers -- 5 COMMISSIONER STEPHEN GOUDGE: Right. 6 MR. PAUL MCDERMOTT: -- concentrating on 7 that, going to education conferences -- 8 COMMISSIONER STEPHEN GOUDGE: Right. 9 MR. PAUL MCDERMOTT: -- and so that's the 10 sort of focus that we're trying to do when the -- when an 11 aspect of your case itself is very difficult. 12 COMMISSIONER STEPHEN GOUDGE: Right. But 13 it clearly would be possible in an area of focussing on a 14 science that is changing, to build the change element of 15 it into the education? 16 MR. PAUL MCDERMOTT: Yes, sir. 17 18 CONTINUED BY MR. MARK SANDLER: 19 MR. MARK SANDLER: All right. Ms. 20 Edwardh, I want to ask you about this issue from two (2) 21 perspectives. One (1) to comment -- any comments that 22 you might have about the initiative that you've heard 23 described this morning, and second of all, should there 24 be specialized training for defence counsel who do this 25 kind of work?

1 MS. MARLYS EDWARDH: Obviously there sho 2 -- should be some specialized training available. I 3 mean, the Defence Bar does not have access to a singular 4 institution like the Crowns office, where we can go to. 5 You have the Criminal Lawyers Association. 6 You have the Law Society Continuing Education, and other 7 various continuing education programs. 8 None of them, I think, meet the targeted 9 goal that Justice Goudge just referred to. They tend not 10 to be, you know, three (3), or four (4), or two (2) days 11 of intensive evaluation of an area of science. 12 So I think the defence is at a 13 disadvantage in organizing access to specialized 14 education. And it always raises the question, for me, is 15 if there is this huge area that you need education in, 16 and you have to educate both sides of the Bar, in order 17 to get good results, then I think there has to be some 18 combining of resources. 19 So I would turn now to the suggestion, 20 maybe there has to be a joint defence and Crown 21 educational. Maybe it has to be run through the 22 Coroner's Office. 23 But if you're going to get the in-depth 24 understanding of both the science of the matter, and then 25 the changes that are evolving, you can't deliver that to

1 the defence -- 2 COMMISSIONER STEPHEN GOUDGE: Right. 3 MS. MARLYS EDWARDH: -- because we're 4 scattered in small law firms. Some people are sole 5 practitioners. 6 There has to be a way of bringing it in -- 7 COMMISSIONER STEPHEN GOUDGE: Yes. 8 MS. MARLYS EDWARDH: -- and maybe the 9 other way is to make sure that after a program is done 10 every two (2) years, or something like that, it's all on 11 the web. 12 COMMISSIONER STEPHEN GOUDGE: Yes. The 13 web is a terrific institution -- 14 MS. MARLYS EDWARDH: Yeah. 15 COMMISSIONER STEPHEN GOUDGE: -- for 16 this, isn't it? 17 MS. MARLYS EDWARDH: And they -- yes, I 18 think it's very important. 19 COMMISSIONER STEPHEN GOUDGE: Yes. 20 MS. MARLYS EDWARDH: Because as it 21 stands, I don't know whether we've had a single 22 continuing legal education program in the defence bar, 23 focussing on pediatric pathology -- 24 COMMISSIONER STEPHEN GOUDGE: Right. 25 MS. MARLYS EDWARDH: -- that I can recall

1 at this moment. 2 So our education in scientific matters, 3 and our scientific literacy, comes from our own 4 backgrounds and our study. Then when you're confronted 5 with a case, you necessarily have to take yourself to the 6 library, consult with an expert. 7 COMMISSIONER STEPHEN GOUDGE: Right. 8 MS. MARLYS EDWARDH: You even have 9 trouble in this city getting adequate library resources. 10 So it's always a challenge, as a member of 11 the defence bar, to access a sufficient basis of 12 information so you can evaluate what's coming from the 13 other side. 14 COMMISSIONER STEPHEN GOUDGE: Are there 15 any joint study areas now where you would -- there would 16 be education sessions delivered to both Crown and 17 defence? 18 MR. PAUL MCDERMOTT: Criminal law -- the 19 Law Society of Upper Canada, or the Ontario Bar 20 Association. 21 MS. MARLYS EDWARDH: Yeah. 22 COMMISSIONER STEPHEN GOUDGE: Those are 23 the only vehicles? 24 MR. PAUL MCDERMOTT: I think the 25 Federation of Law Society Supports --

1 COMMISSIONER STEPHEN GOUDGE: Right. 2 MR. PAUL MCDERMOTT: -- has a very -- 3 COMMISSIONER STEPHEN GOUDGE: Is there 4 anything, in principle, wrong with thinking about an 5 educational package -- let's leave it web-based for the 6 moment -- on the science of pediatric forensic pathology 7 that would be available to Crowns and to defence who 8 happen to get these cases? 9 MR. PAUL LINDSAY: No, nothing. 10 MR. PAUL MCDERMOTT: No. 11 MS. MARLYS EDWARDH: I think it's very 12 important. Let me then comment on the initiative. 13 As I read the initiative, and it's pretty 14 sketchy at this stage, what it does is create an ongoing 15 review of a individual prosecution as it goes through the 16 system. 17 And the one (1) important thing that I 18 don't see contemplated here is the right of the defence 19 to access that if they see an issue. 20 And without in any way pointing fingers, 21 from time-to-time it happens that you have a case where 22 you feel that Crown counsel is not making the right 23 judgements; not making them about the science of the 24 matter; does -- has lost sight of what a reasonable 25 prospect of conviction really means.

1 And I think this process should also be 2 open to defence counsel and not be viewed as threatening 3 to the prosecuting counsel. 4 So that if you have a disagreement, you 5 can take it to some senior prosecutors, and it will be 6 dealt with up the chain. 7 8 CONTINUED BY MR. MARK SANDLER: 9 MR. MARK SANDLER: So just stopping there 10 for a moment. Mr. Lindsay, I know that the committee 11 that we're talking about here was modelled by analogy on 12 the committee that was established to deal with jailhouse 13 informants in the aftermath of the Miranda Inquiry. 14 The defence has access to that committee, 15 as I understand it, to make submissions. What do you 16 think about Ms. Edwardh's suggestion in the context of 17 this committee? 18 MR. PAUL LINDSAY: I see no impediment 19 whatsoever. I mean, we do get from time to time, up the 20 chain as it were, requests from the defence bar to look 21 at a -- a particular case, and certainly this is no 22 different. 23 MR. MARK SANDLER: Okay. 24 MS. MARLYS EDWARDH: May I just make one 25 (1) comment.

1 If it is an invited -- I mean, I know that 2 if I'm having a serious problem after thirty-two (32) 3 years of practice, I can pick up the telephone, and I can 4 ask Senior Crown to assist in a review if I think it is 5 justified. 6 I think that young defence lawyers are 7 much more intimidated, so unless there is an express 8 route in and they are comfortable reaching out through 9 that process, they won't do it, and we want to encourage 10 them to do so in appropriate cases. 11 MR. MARK SANDLER: Okay. I interrupted 12 you. You were -- you were going to continue on, so 13 please do. 14 MS. MARLYS EDWARDH: I think I've -- I 15 think I've said all I can remember of -- 16 MR. MARK SANDLER: All right. Well, then 17 I'll ask the pointed question -- 18 MS. MARLYS EDWARDH: Okay, go ahead. 19 MR. MARK SANDLER: -- which is, I also 20 asked you about the role of defence counsel, is -- is 21 there anything else that you wanted to say about -- about 22 the training that should be given to defence counsel and 23 the interplay with Legal Aid? 24 I know we're going to have Legal Aid -- 25 MS. MARLYS EDWARDH: Right.

1 MR. MARK SANDLER: -- representation a 2 little bit later in the piece. 3 MS. MARLYS EDWARDH: Well, let -- if I -- 4 this is a -- this will take me longer than one (1) 5 minute. I think -- I don't want to just talk about 6 defence counsel for a moment. 7 I think law schools fail everyone in the 8 Province of Ontario because they do not have curricula 9 that are designed to deliver scientific literacy, and I 10 think -- and that is a big issue. 11 I gather Ottawa U has now got something 12 going that may assist, but we tend to come to the Bar 13 without any training in science, or most of us do -- we 14 come out of the social sciences -- and I think that's a 15 big problem. 16 I don't think that I want this specialized 17 training aspect to be converted into a requirement that I 18 have to be a specialist under the Law Society or that 19 Legal Aid is competent to -- to become the -- the group 20 that defines a panel who can do serious cases. 21 And I say that because when we set up the 22 Legal -- Legal Aid system a long time ago, we did it on a 23 fundamental premise that the client would choose the 24 lawyer. 25 Now, what do you -- what you want,

1 perhaps, is a system where Legal Aid will authorize a 2 certificate and maybe even go so far as to suggest -- to 3 suggest it's a complex case, maybe senior counsel should 4 be on board or you need junior counsel, but we set-up 5 this whole system so it wasn't -- so individuals could 6 access the lawyers of their choice. 7 And my experience with the Specialization 8 Program -- I'm sorry to say this, Mark -- I -- I know 9 you're on the Committee -- I'm at the Law Society -- is 10 it doesn't do anything; it's not good enough. 11 It isn't -- it's like QC's were, you 12 know. We got rid of QC's. 13 COMMISSIONER STEPHEN GOUDGE: Hey, wait a 14 minute -- 15 MS. MARLYS EDWARDH: Sorry about that. 16 It's a guarantee of competence, and that's -- if we're 17 looking for guarantees of competence, we're not going to 18 find them, I think, easily. 19 20 CONTINUED BY MR. MARK SANDLER: 21 MR. MARK SANDLER: Okay. Mr. 22 MacFarlane...? 23 DR. BRUCE MACFARLANE: Thank you. I have 24 comments on both the question of training and on the -- 25 the new initiative of -- of the Ministry. With respect

1 to the question of training, it seems to me that the area 2 that we're talking about, pediatric forensic pathology, 3 is qualitatively different from ma -- many other areas 4 that the lawyers are involved in. It is inexact, it is 5 difficult, and it is constantly evolving and changing -- 6 the sands are shifting. 7 So it seems to me, for all of those 8 reasons, that training is critically important, and I 9 would suggest training on two (2) separate levels. And I 10 think maybe this is what's contemplated by the Ministry; 11 ongoing training for lawyers through annual conferences 12 and -- and things of that sort, but as well, specific 13 training on individual cases. 14 I think that's really very important 15 because I suspect that some of the Ministry lawyers that 16 are assigned a case may never have -- or their level of 17 experience will be not significant, so I think that the 18 Committee has to act as a double-check to make sure that 19 there's sufficient training on an individual case. 20 On the question of training generally, I 21 should say that I -- I come from Manitoba where there is 22 a well-established joint-training program as a result of 23 the Sophonow Inquiry that was recommended by Commissioner 24 Cory, and both the defence community and the Crown 25 community jointly organized, set the curriculum, and

1 invite the guest speakers. 2 It's incredibly popular. It's been very 3 well received by both the Crown and the defence. The 4 judiciary are invited, as well, and the police are 5 invited, as well. There's usually about two hundred and 6 fifty (250) persons that attend it. It's a three (3) day 7 course, and it appears to be a -- a permanent feature of 8 the legal landscape in Manitoba. 9 So I would -- I would suggest that that's 10 a -- a prototype that could be looked at in other 11 provinces of -- ask to join -- 12 COMMISSIONER STEPHEN GOUDGE: Who runs 13 it, Professor MacFarlane? 14 DR. BRUCE MACFARLANE: It's a -- there is 15 a fee for attendance -- 16 COMMISSIONER STEPHEN GOUDGE: So it's 17 pay-as-you-go? 18 DR. BRUCE MACFARLANE: It's pay-as-you- 19 go. And the -- there's fundraising. The organizers are 20 actively involved in fundraising, so -- and in fact -- 21 COMMISSIONER STEPHEN GOUDGE: With 22 foundations and -- 23 DR. BRUCE MACFARLANE: Yes, that's right. 24 COMMISSIONER STEPHEN GOUDGE: Right. 25 DR. BRUCE MACFARLANE: And in kind --

1 COMMISSIONER STEPHEN GOUDGE: Law support 2 and stuff like that? 3 DR. BRUCE MACFARLANE: Yes. And 4 generally speaking, there's a profit that's made at the 5 end of the year, and the money goes somewhere as a result 6 of consultation with the Crown and defence. 7 So that's worked out very, very well. And 8 I would urge consideration of that. On the question of 9 the Ministry's initiative, I think, at the outset, I -- I 10 should say I think it's a good -- I think it's a very, 11 very good initiative. 12 I think it's been well thought-out, based 13 on -- on the brief summary. But I have a couple of 14 comments. I think it's important that the Committee case 15 manage individual cases, on an ongoing basis. 16 In other words, not just go once, have a - 17 - have a discussion, and then the Committee's no longer 18 involved. I think it has to be an ongoing process of 19 central case management. 20 Secondly, I think that it -- the Committee 21 ought to be involved in all issues associated with the 22 case; all of the key issues, including issues of what the 23 charge should be, and what -- whether or not Crown 24 counsel is perhaps overshooting on the charges; things of 25 that sort to bring fresh eyes to the process.

1 And thirdly, in terms of access by counsel 2 for an accused person, I think that that's important. 3 And I would -- I would expect that the Defence Bar would 4 be -- would exercise some restraint and not go to the 5 Committee on every single issue and try to overshoot the 6 -- the Crown attorney handling the case. 7 But to ensure that there's no difficulty 8 in along the -- along the line suggested by Ms. Edwardh, 9 I think that the access by the Defence Bar ought to be 10 confirmed in the policy framework that's ultimately 11 prepared. 12 And I would urge that it be published. 13 14 CONTINUED BY MR. MARK SANDLER: 15 MR. MARK SANDLER: Okay. Professor Code, 16 any comments on what you've heard so far? 17 DR. MICHAEL CODE: I -- I agree with our 18 two (2) colleagues from the Crown Bar. I think the -- 19 the Crown initiatives sound excellent, and -- and I agree 20 with everything that Marlys and Bruce said about joint 21 education. 22 So I have got nothing to add there. The - 23 - the one (1) point I -- I would underline a little more 24 strongly than what anybody has said to date, is that -- 25 the whole question of competence in the Defence Bar.

1 These cases strike me as being uniquely 2 challenging our ethical duties of competence. And there 3 is a very, very important ethical rule, that you cannot 4 take on a case you're not competent to conduct. 5 It's -- it's contrary to the most 6 fundamental rule of professionalism, and these cases, as 7 I understand them, and having had very little to do with 8 them, the -- the -- the pathology -- the forensic 9 pathology is the central piece of Crown evidence in these 10 cases. 11 There's very little other evidence in the 12 case other than the forensic science evidence from the 13 pathologist. And unless you are strongly qualified to 14 cope with that evidence, you are not competent to take on 15 that case. 16 And I -- I cannot see why Legal Aid and 17 the Law Society would not insist on that as a -- as a -- 18 a minimum ethical duty; that the Defence Bar ought not to 19 be taking on these cases unless they are trained in this 20 particular area. 21 The -- you know, I -- I appreciate Marlys' 22 concern that -- that you -- lawyers are not good at 23 science, and -- and I'm sure not good at science. And we 24 all know there's only two (2) or three (3) leading 25 members of the Bar who are well known for being very good

1 at -- at scientific issues. 2 But -- and so we take on cases where there 3 is some forensic science somewhere in the case, or some 4 aspect of scientific evidence, but it's -- it's not the 5 most prominent evidence in the case, and so you get up to 6 speed on it and conduct a -- a reasonable cross- 7 examination. 8 In the Air India Trial, for example, 9 there's -- there is this extraordinarily complex stress 10 fracture engineering science evidence that the Crown 11 relied on to locate exactly where the bomb was in the 12 fuselage of the aircraft which was an important piece of 13 evidence, but it was one (1) piece of evidence in a huge 14 circumstantial mosaic. 15 In these cases where the science is the 16 sole evidence, I don't think defence lawyers should be 17 taking on these cases and I don't think Legal Aid should 18 be paying them, unless they are highly qualified in this 19 particular area of -- of forensic science. 20 I -- I just don't think they meet the 21 ethical threshold of competence. 22 MR. MARK SANDLER: All right. 23 COMMISSIONER STEPHEN GOUDGE: Before that 24 -- there is a right of reply here, what is the role of 25 the law schools in this, Professor Code? I am intrigued

1 with Ms. Edwardh's suggestion, because there is no 2 teaching currently in any law schools I know about, about 3 familiarity with the scientific method, with basic 4 medical research techniques, that sort of thing. 5 Isn't that a gap? 6 DR. MICHAEL CODE: Well, the -- but -- 7 but you could say that about virtually every area of 8 science. I mean, there -- there's so much -- 9 COMMISSIONER STEPHEN GOUDGE: Yes, maybe 10 too broad a waterfront to think of covering in any way at 11 law schools, but surely -- 12 DR. MICHAEL CODE: There's so -- there's 13 so many forms of scientific evidence come -- 14 COMMISSIONER STEPHEN GOUDGE: Yes. 15 DR. MICHAEL CODE: -- coming into 16 criminal cases now. I mean, the -- the stress fracture 17 science relating to where bombs are located -- 18 COMMISSIONER STEPHEN GOUDGE: Right. 19 DR. MICHAEL CODE: -- in terrorist 20 attacks on aircraft, there's only about three (3), or 21 four (4) experts in the world who've developed this 22 science. So are we -- should that now be taught at law 23 schools so that we can train terrorists lawyers for 24 future bombings of aircraft. 25 COMMISSIONER STEPHEN GOUDGE: Is it

1 unrealistic to think of training in basic scientific 2 research techniques that may be common to a variety of 3 specialized areas of science? 4 DR. MICHAEL CODE: I -- I know Professor 5 Roach has got some ideas on this, and he and I have -- 6 have talked about it. 7 COMMISSIONER STEPHEN GOUDGE: Right. 8 DR. MICHAEL CODE: I've -- I've only been 9 a Professor for a short time, so I -- I'm hesitant to 10 comment on curriculum issues at this early stage in my 11 academic career. But Professor Roach might be a better 12 one to put that question to. 13 14 CONTINUED BY MR. MARK SANDLER: 15 MR. MARK SANDLER: We could end your 16 career this morning. Ms. Edwardh wanted to comment. 17 MS. MARLYS EDWARDH: Yeah. I don't think 18 there is any doubt that you could create a course in law 19 school that took an overview of a discussion about what 20 is science; what is scientific methodology. And even if 21 you understood some of the debate about -- there are 22 different views of what the scientific method is, but you 23 talk about it, you learn about it, then you look at what 24 is evidence; what is evidence based medicine? 25 How do you -- so you -- you could -- you

1 could take four (4) areas, right. You could do evidence 2 based medicine. You could do reconstruction, so people 3 interested in acc -- 4 COMMISSIONER STEPHEN GOUDGE: Accident 5 reconstruction. 6 MS. MARLYS EDWARDH: -- yeah, accident 7 reconstruction. You could do ballistics. And then you - 8 - you know, and then you might want to take one (1) area 9 that we thought was as good as gold, and show how -- 10 COMMISSIONER STEPHEN GOUDGE: Like DNA, 11 or something. 12 MS. MARLYS EDWARDH: -- or, well you 13 might do DNA, but then I'd want to do something like 14 fingerprints. 15 COMMISSIONER STEPHEN GOUDGE: Right. 16 MS. MARLYS EDWARDH: And I would like to 17 look at why it came to pass, for example, that a lawyer 18 was arrested in Seattle for the Madrid train bombing, 19 when in fact three (3) senior FBI fingerprint analysts 20 all identified him as the person who was involved in the 21 bombing. How does that happen? 22 So I actually believe you could create a 23 grade course, and I spoke about five (5) years ago to the 24 Centre of Forensic Science, and I said to Mr. Lucas at 25 the time, would you support those units? And the problem

1 was, there wasn't enough interest in the law school. And 2 I -- I actually pitched it to Osgoode at that time, and 3 for reasons that I can't explain, it didn't fit. 4 But I think that this growing problem 5 requires recognition that you could develop some 6 expertise and literacy. Of course, Michael is also 7 correct that you're -- you're going to find areas of 8 science that are so unique to a particular case that 9 you've got to really start all over. 10 But at the same time, if you have some 11 literacy, and I think you need basic literacy in 12 scientific matters, then you can begin to look at those 13 new areas. 14 So I don't want to end Michael's law 15 school career right now, but -- 16 DR. MICHAEL CODE: Well, I mean -- I -- 17 for sure you could create an upper year seminar in expert 18 opinion evidence, you could call it, and the scientific 19 method. And -- and you could -- you could develop a 20 curriculum along the lines you suggested and it'd be a 21 fabulous course. 22 But it -- it's going to be nothing more 23 than an upper year seminar that twenty (20), twenty-five 24 (25) students will take once a year, and -- and that'd be 25 fabulous. And you'd get Marlys and Alan Gold to come and

1 teach it, since they're the only two (2) members of the 2 Defence Bar who understand science at all, and I'm sure 3 it'd be a -- be a great course. 4 But I don't think that trumps the ethical 5 duty of competence, that if -- if you're a defence lawyer 6 who suddenly gets one (1) of these shaken baby cases, and 7 you're not particularly strong in science, as the vast 8 majority of defence lawyers are not, and you haven't 9 taken the internet training course that we're going to 10 develop, and you -- you just -- you are not competent to 11 take on that case, and I think the Commission should have 12 the courage to say that. 13 The ethical duty of competence is not 14 policed in this Province. The Law Soc -- where has there 15 ever been a Law Society case where somebody was 16 disciplined for incompetence? It does not happen. It's 17 -- it's there in the rules of professional conduct, and 18 it's completely unenforced. 19 MR. MARK SANDLER: Mr. McDermott, when I 20 introduced you, I referred to the fact that you've done 21 many, many homicide cases over the years. 22 You made the point, in a very respectful 23 way when we spoke yesterday, about the different profile 24 of the defence counsel that do homicide cases. 25 Could you tell the Commissioner about

1 that? 2 MR. PAUL MCDERMOTT: Well, let me just 3 jump in on what Michael and -- and Marlys said, if could, 4 Mark. You -- I think the emphasis should be on what 5 Professor MacFarlane is saying in education because we 6 all remember third year law school, and when you start 7 your first homicide case, you're a long way, in time and 8 place, from third year law school. 9 And I didn't do one (1) for five (5) or 10 six (6) years and I think that's most -- hopefully most 11 defence lawyers, you -- you work your way up and the -- 12 the science course would be interesting if there is any 13 interest, as Professor Code says. 14 But the -- the continuing education 15 through something along the model of Professor MacFarlane 16 is going to be much more practical and realistic because 17 you're seven (7) or eight (8) years old, or ten (10) 18 maybe, and you're -- you've started your practice and re 19 -- the -- the law school is a nice idea, but -- but I 20 think the continuing education is the way to go. 21 We did speak yesterday and -- and as in 22 the twenty-two (22) years that I was mentioning that I've 23 done it, the -- the face of the people doing long 24 homicide trials on the Defence Bar is changing. 25 And I don't know how to put it other more

1 bluntly than they're just -- I -- there seems to be less 2 interest in -- in the senior members of the Bar to do a 3 long difficult tri -- first -- first a long voir dire 4 before the trial even starts, and then a long trial on a 5 Legal Aid first degree murder which a lot of these cases 6 are. 7 The cases have dramatically increased in 8 length over the years and many of them appear -- it's 9 none of my business -- but it -- it seems apparent that 10 the -- the client's often on Legal Aid, and I'm sure it's 11 very difficult on the defence lawyer's practice. 12 And the -- Marlys and -- and Michael can 13 weigh in as much as I can, but I think that you've seen 14 over the years the -- the level of seniority and it's an 15 adversarial business and I don't want to get into the 16 level of competence, I -- I don't think it's for me to 17 say here and now -- but the -- the face has changed over 18 the years, for sure, on a lot of these long, long cases. 19 And as I think Mr. Lindsay mentioned 20 yesterday, we have many more multiple accused sorts of 21 cases too, that -- that in -- you just have to have more 22 lawyers, and so the face of the -- the defence lawyers 23 change. 24 MR. MARK SANDLER: Okay. 25 MR. PAUL MCDERMOTT: And they say the

1 same about the Crown. 2 MR. MARK SANDLER: We'll revisit that 3 issue perhaps on this afternoon's panel when we talk 4 about some of the challenges of doing these cases on 5 Legal Aid. 6 Mr. Lindsay, I'm going to turn to another 7 topic, if I may, that has figured prominently at this 8 Inquiry, and for want of a better term, it's been 9 labelled "reciprocal disclosure". 10 And what the Commissioner has heard is 11 literally a plea from all of the forensic pathologists 12 who have testified here or participated in roundtables as 13 to the desirability of knowing what it is that the 14 pathologist retained by the other side has to say in 15 advance of the Preliminary Hearing or trial as in forming 16 their opinions, as giving them an opportunity to address 17 concerns that have been raised or modifying them 18 appropriately. 19 We'll talk about mandatory reciprocal 20 disclosure in a moment, but can you make the case for the 21 importance of disclosure to the Crown at an earliest 22 opportunity of what the defence experts have to say? 23 MR. PAUL LINDSAY: I'll try. The -- in 24 our idealized world, and I appreciate that reality is 25 sometimes very different than -- that what we'd like to

1 think our Justice System should be, but in an idealized 2 world, an expert should be an independent person. 3 The notion that there are hired guns, 4 whether it be for the Crown or the defence, from my point 5 of view, is inconsistent with a notion of why the Court 6 relies upon the expertise of somebody who has specialized 7 knowledge. So I start from the premise that, and again I 8 appreciate that, you know, other's experience and the 9 experience of our justice system may well be different. 10 But I start from the premise that what we should be 11 aiming for are experts who are in fact independent and 12 aren't hired guns for any side. 13 The -- from the -- the Crown's point of 14 view, the -- the last thing in the world that the Crown 15 would want, for any number of good and sufficient 16 reasons, is to proceed with a case that it shouldn't be 17 proceeding with. 18 We have a -- a -- we impose upon Crown's a 19 dual -- a dual responsibility when screening a case. And 20 -- and of course the screening occurs, at the very least, 21 after the charge is laid, and throughout the -- 22 throughout the complete life of the case; from the bail 23 hearing; to a preliminary inquiry, if that takes place; 24 to the trial; to an appeal, if that takes place. And 25 it's this, that unless there's a reasonable prospect of

1 conviction, the Crown must, and it's mandatory, must 2 withdraw the charge. 3 Secondly, even if there is a reasonable 4 prospect of conviction, there -- there must be no public 5 interest reason for not continuing with the case. And 6 certainly the exchange of information, both ways -- of 7 course the Crown has a legal obligation to disclose it's 8 case, the defence, not so. 9 But certainly from the Crown's point of 10 view, the earlier that the Crown receives independent 11 information that may be different then the information 12 that the police has gathered, or that the Crown has 13 gathered, the earlier in that process the better it be; 14 for the case, and for the public interest for the 15 accused, and for our justice system. 16 So if I'm the Crown, I'd be -- the last 17 thing in the world I want is to receive a report from the 18 defence after the Crown has closed its case, that shows 19 that we're -- we're off the mark. I mean, what good is 20 that? So the earlier that the Crown can get the contrary 21 evidence, the better. Because I don't know any Crowns 22 who -- and I hope we don't have any, who in the face of 23 demonstrable evidence that the Crown can't meet its case, 24 would continue with the case. 25 So from our point of view, the earlier the

1 better. 2 If -- if -- focussing for a moment on the 3 -- the quality of the expert evidence, and the -- and an 4 ongoing practice perhaps of -- of defence counsel in 5 providing all of the expert evidence that they've 6 gathered, to me that's an important issue. 7 If -- if the defence provides the Crown 8 with a report that casts significant doubt on the Crown's 9 case, I'd certainly as a Crown feel much more comfortable 10 knowing that -- that this isn't the -- this isn't the 11 fifth opinion that -- that the defence has obtained; 12 that -- that if other opinions were obtained previously, 13 that I'd be shown those as well. It would give me 14 greater comfort to know that -- that I'm being given 15 everything that the def -- the defence can properly 16 provide to me, including other opinions that they've 17 obtained. 18 I know this is a difficult thing for 19 defence counsel to do, but if what we're talking about is 20 trying to have a system where we -- where we all have 21 confidence in the -- in the process, it seems to me that 22 to the extent that the Crown can have greater comfort in 23 receiving opinions from the defence, all the better. 24 And certainly if there's a -- a rule, 25 leaving aside any constitutional issues that might arise

1 from it, because I'm not -- I don't think that -- that 2 was your question at this point, Mr. Sandler, but 3 certainly if the practice is for the defence to provide 4 their expert opinions to the Crown at it -- the earliest 5 point in time, and as -- in as fulsome a way as possible, 6 that will prove -- provide greater confidence to the 7 Crown, and I dare say to the public, to rely upon those 8 opinions. 9 So that's kind of in short, or I guess, 10 not so short, but in a roundabout way my -- my views on - 11 - on that. 12 COMMISSIONER STEPHEN GOUDGE: One of the 13 discussions we had with -- I think, Mr. Gilkinson when he 14 was here, Mr. Lindsay, arises from the defence concern 15 that was articulated, I've forgotten by whom, that if we 16 do have this kind of early mutual disclosure, the result 17 will be for the Crown to go out, in effect Cooper up its 18 case. 19 And, so there was discussion of, is there 20 any feasible way in effect of the Crown freezing its 21 case, prior to mutual disclosure? This is all before a 22 trial, okay? And I do not know whether in the public 23 interest the Crown would feel that that was something 24 they could do. 25 MR. PAUL MCDERMOTT: And -- and the other

1 thing, Justice Goudge, is you wonder if, from -- from the 2 defence, they'd be cautious about the -- the inferential 3 way that happens, even if there's no -- we don't hire a 4 sec -- a third expert, a Cooper up as you say, but if -- 5 if the Crown starts tailoring its case, or its ideas of 6 how to prosecute, would be a concern from the defence. 7 I mean, if we got a third expert, that 8 would all be on the record. You'd see the first expert's 9 opinion -- 10 COMMISSIONER STEPHEN GOUDGE: Right, 11 right. 12 MR. PAUL MCDERMOTT: -- the defence, and 13 then -- then -- 14 COMMISSIONER STEPHEN GOUDGE: Right. 15 MR. PAUL MCDERMOTT: -- the Crown's 16 number 2. I can say anecdotally, that doesn't happen, 17 but, you know, I -- I can understand the suspicion. 18 But it -- it doesn't usually happen. The 19 most common area that we see is psychiatric evidence. 20 COMMISSIONER STEPHEN GOUDGE: Right. 21 MR. PAUL MCDERMOTT: If there's a concern 22 that the -- the accused has had a significant psychiatric 23 background, the defence gets their own psychiatrist, and 24 then they decide at what point in the proceedings they 25 show it to the Crown, and say, Look, here's a reputable,

1 well-known psychiatrist who says he fits the criteria of 2 Section 16. 3 In the vast majority of those cases, well, 4 the Crown has its own remand, has the accused observed, 5 and assessed, and then we don't hire -- we -- we don't 6 try and Cooper up our case, I don't think, anecdotally I 7 can say based on the defence psychiatrist, but it's -- 8 it's eventually up to the defence about what stage in the 9 proceeding they're going to show their hand on that. 10 COMMISSIONER STEPHEN GOUDGE: Right. But 11 whether the after-the-fact of mutual disclosure results 12 in a third expert, Mr. McDermott, or an inferential 13 shoring up of the questioning of the original expert, is 14 it -- I guess what I am interested in is sort of as a 15 question in principle, would the Crown feel that some 16 kind of affective freezing, which would catch the 17 inferential, as well as the subsequent expert, affective 18 freezing is something that the Crown can do faced with 19 mutual disclosure, or whether the Crown would say we have 20 a duty to prosecute as best we can? 21 MR. PAUL LINDSAY: I think it depends on 22 the circumstances, and of course in other context, it 23 does happen. For example, it does happen from time to 24 time that -- that the Crown and the defence are engaged 25 in -- in plea discussions.

1 COMMISSIONER STEPHEN GOUDGE: Right. 2 MR. PAUL LINDSAY: And it does happen 3 from time to time that the defence proffers up the 4 accused to provide a statement to the police that's 5 deemed to be an induced statement, such that the Crown 6 and the police could never use that against the accused-- 7 COMMISSIONER STEPHEN GOUDGE: Right. 8 MR. PAUL LINDSAY: -- while the -- the 9 Crown is assessing the -- the validity of -- of the 10 proffer. So it does happen, and I wouldn't exclude the 11 possibility of it happening in appropriate cases in this 12 context. 13 14 CONTINUED BY MR. MARK SANDLER: 15 MR. MARK SANDLER: Ms. Edwardh, when this 16 discussion has taken place amongst the forensic 17 pathologists, they've invited consideration of mandated 18 reciprocal disclosure. 19 You've heard the case made by Crown 20 counsel, or the desirability from their perspective, in 21 appropriate cases, of the defence tendering up the 22 experts that they've -- that they've consulted. But 23 some have suggested that it should go further, and 24 parallel what we see exists in other jurisdictions, 25 namely mandated reciprocal disclosure early in the

1 proceedings, and not merely at the end of the Crown's 2 case, which is the current regime in Ontario. 3 What do you say about that? 4 MS. MARLYS EDWARDH: Let me make one (1) 5 observation. Every lawyer I know who I would consider to 6 be a competent criminal defence counsel, feels very 7 comfortable making a decision, depending tactically on 8 where it is appropriate to make, to go into Crown 9 counsel's office and say, This is what I'd like to tell 10 you now, and this is what I think you should do. And you 11 make that decision based on what the evidence is, who the 12 Crown is, who the expert is that the Crown has. 13 We do that every day. It narrows the 14 issues, it can resolve cases, and that is not a -- I 15 think a problem for any criminal defence counsel to 16 contemplate, and it is a daily event in our Courts. 17 Mandatory reciprocal disclosure is very 18 different and I suppose, simply put, we have a system 19 where I all ready have to now give the Crown, in advance, 20 a curriculum vitae and a name of a wit -- a name of a 21 potential expert. But to require anything else before 22 the Crown closes its case, I think raises very profound 23 and significant constitutional issues. 24 I may have an expert or two (2) or three 25 (3) that I have no intention of using unless certain

1 things happen in the course of the trial. If I'm 2 required to hand over to Crown counsel, my package of 3 expert evidence that I haven't even decided I'm going to 4 use, the significance of that -- and I want to just put 5 it in, I think, the light I see it -- is to compel the 6 defence to breach or abrogate solicitor-client privilege. 7 These experts are retained by me, and they 8 fall under the umbrella of my privilege. And for me, 9 that is the most serious intrusion into the defence 10 brief. And I've thought a lot about why this proposal 11 has come up at the Inquiry, and I'd like to put another 12 proposal for your consideration. 13 I see what has happened as we have a 14 catastrophe with pediatric pathology, and the tendency is 15 to shift -- to shift the resolution, if I can call it 16 that, of the problem by what I consider compromising the 17 essential features of what a criminal defence is about. 18 And I see this as compromising them. What 19 has to happen is there has to be a way to fix the 20 systemic flaws so that these kind of errors or problems 21 are controlled at the state level, in the pathologist's 22 office. And I would urge all of you to give some thought 23 to this as a possibility. 24 Rather than trying to force defence 25 pathologists to speak to Crown pathologists or breach the

1 list or client privilege, we could have a system in 2 suspicious child deaths that requires number 1) that Dr. 3 Pollanen's guidelines be actually rules. 4 So that every post-mortem that is done in 5 such circumstances has an -- there's an obligation that 6 it be fully reviewable. In other words, you won't have 7 people standing up and saying, Oh, yeah, but I saw it, 8 and then discounting the second observer. 9 You can do this today. It is quite clear 10 that it is nonsense to suggest that the -- the first 11 post-mortem is significantly superior. So if we make an 12 appropriate record and can make it -- and I would put 13 together the pathologists in one room and say, Come to a 14 consensus as to what must be done to make a fully 15 reviewable post-mortem. 16 So once we've got that established, then I 17 think what there should be is a double-blind second post- 18 mortem in every case. And double-blind -- the only thing 19 the pathologist would know was that this fell within a 20 suspicious death; wouldn't know the findings, wouldn't 21 know anything else about what was concluded. 22 And then if you had radical -- radically 23 different conclusions arising from the second 24 examination, you've got a very serious problem. If the 25 conclusions are mutually supportive and confirming, then

1 one can, at least, have confidence that there's enough of 2 the science in the matter that when you come to 3 interpretation -- well, no, there's enough science in the 4 matter that you can then reasonably come to an 5 interpretation and it's confirmed. 6 I don't know why this double-blind 7 approach, which is the foundation of science in some 8 respects, shouldn't be rooted in the system of, you know, 9 pediatric pathology and not then do anything by 10 compromising the defence. 11 I think it would make a huge difference. 12 I think we'd see changes. I think people would be more 13 circumspect in their conclusions. And we would begin to 14 understand what is the limits of the science. 15 MR. MARK SANDLER: Okay. 16 MS. MARYS EDWARDH: So that's my simple 17 view of what should be done. 18 COMMISSIONER STEPHEN GOUDGE: Two things 19 are said to us in support of the assertion of early 20 mutual disclosure, recognizing that the other suggestions 21 you made might well be done as well; that is obviously 22 there are a variety of possible ways to address these 23 issues. 24 But one (1) of them is, the scientists 25 themselves say, We would love to discuss our opinions as

1 early as possible with contrary opinions. That's what we 2 do when we are back in the autopsy suite. And if there 3 are contrary opinions, the best way to quote scientific 4 truth is an early discussion with views that may be 5 different. 6 So, the search, by the scientist, for 7 truth is put to us as one (1) desirable objective of 8 mutual disclosure, and as Mr. Sandler said, they really 9 would really like it. I mean everybody said, Gee, we'd 10 like it; every scientist and every pathologist. 11 The second reason is, by some lawyers, the 12 Civil Justice System seems to be moving to mandatory 13 disclosure if you look at Justice Osborne's report, for 14 example, you know. 15 At a time when truth-seeking in the Civil 16 Justice System seems to be pursued this way, does it make 17 sense for the criminal justice system not to stay in 18 step? 19 MS. MARLYS EDWARDH: Well -- 20 COMMISSIONER STEPHEN GOUDGE: In other 21 words, mandatory disclosure marketed as we get better 22 truth results in the Civil Justice System, why not in the 23 Criminal Justice System? 24 MS. MARLYS EDWARDH: I would love it if 25 one (1) of us on this panel were a social psychologist.

1 I have done cases where meetings have occurred and where 2 opinions have changed. 3 Sometimes in one (1) of the more dramatic 4 occasions has occurred, an opinion of a Crown witness, a 5 scientist, the favoured the defence disappeared. Now, I 6 know Paul made the observation that he doesn't think 7 there is a fixing-up of cases. 8 Intuitively, it is so human. You go to a 9 meeting, and the pathologist would say, Okay, you've 10 omitted consideration of B and C. 11 COMMISSIONER STEPHEN GOUDGE: Right. 12 MS. MARLYS EDWARDH: The first thing the 13 pathologist is going to do is, what is the true 14 significance of B and C. 15 COMMISSIONER STEPHEN GOUDGE: Right. 16 MS. MARLYS EDWARDH: You put that 17 pathologist on the stand, the first thing he's going to 18 say is, Yes, and I didn't consider B and C, but now have 19 concluded that it's irrelevant to consider B and C for 20 the following seven (7) reasons. 21 COMMISSIONER STEPHEN GOUDGE: Right. 22 MS. MARLYS EDWARDH: And then the defence 23 pathologist testifies, and he tries to -- or she tries to 24 stress B and C. 25 COMMISSIONER STEPHEN GOUDGE: Right.

1 MS. MARLYS EDWARDH: I don't think it is 2 possible to not have this process used against the 3 accused -- 4 COMMISSIONER STEPHEN GOUDGE: Right. 5 MS. MARLYS EDWARDH: -- in a criminal 6 trial. And it won't surprise you if I say the model of 7 civil decision-making or judgments in civil cases is one 8 (1) that I would not import into the Criminal Justice 9 System. 10 COMMISSIONER STEPHEN GOUDGE: And as 11 you've hinted earlier, there are -- I mean, on the other 12 side of the legal debate that was put to us, is there are 13 all kind of charter issues that -- 14 MS. MARLYS EDWARDH: Absolutely. 15 COMMISSIONER STEPHEN GOUDGE: -- surround 16 that, you know, the right to silence, et cetera, so it's 17 not easy. 18 19 CONTINUED BY MR. MARK SANDLER: 20 MR. MARK SANDLER: Professor Code, where 21 do you stand on this issue? 22 DR. MICHAEL CODE: I'm -- I'm 23 substantially in Marlys' corner, but I -- I guess I would 24 be clear at the outset that I think there are two (2) 25 fundamentally different kinds of cases, and -- and we

1 need to distinguish between those two (2) fundamentally 2 different kinds of cases because we can go a fair 3 distance towards what the forensic pathologists want, if 4 we draw a clear line between cases where you are -- you 5 have a strong powerful defence that you're competent -- 6 confident of and you think you've got an arguable 7 position to persuade the Crown to -- to withdraw the 8 charge. 9 And my understanding of the kinds of cases 10 that this Inquiry has been studying, many, if not all of 11 them, fall into that first class of cases; that -- cases 12 that should never have been prosecuted or, at least, they 13 certainly -- the charge that was before the Court -- 14 Court ought not to have been prosecuted. 15 So if you've fully investigated your brief 16 and you fear -- feel that you've got evidence in your 17 brief which -- which will often include expert opinions 18 and also witness statements, but marshalling the defence 19 case, you think you've got a persuasive argument that the 20 Crown ought to withdraw this charge, that it's not a 21 prosecutable case. 22 My practice was always to go to the Crown 23 with it at as early as stage as I could, certainly well 24 before any trial date was approaching, and to make a 25 clean breast of the defence brief with the Crown.

1 And -- and certainly as Paul said, you do 2 -- you don't hold back the warts. You try to win the 3 Crown's confidence by saying, Look, I've got a few 4 problems here. Here they are, but my assessment of the 5 overall case is that you're not going to win this trial. 6 I'm going to win it and here's how I'm going to win it, 7 and -- and make full reciprocal disclosure of the defence 8 case, in the hopes that you will save your client the -- 9 the terrible trauma of a public criminal trial. 10 So I think you can walk a fair distance 11 with these forensic pathologists who want everybody to 12 share and be open, and reciprocal, and nice with each 13 other at the pre-trial stage, by distinguishing between 14 whether you've got that kind of a case where you 15 fundamentally believe that you can persuade the Crown to 16 withdraw. 17 And that requires early defence 18 preparation, the defence have got to do their work long 19 before trial, and it requires good relations between the 20 Crown and the Defence Bar. You've got -- have a high 21 degree of professionalism and civility in the Bar, where 22 the Crown and the defence trust each other and talk to 23 each other. 24 And we could -- we could go at some length 25 about that atmosphere or environment of professionalism

1 that we need to have in the Bar to encourage those kinds 2 of relations between the Crown and defence. 3 But I certainly often did that. Indeed, 4 you -- I've see you've had Brian Gilkinson here before 5 you. I remember doing a case with Brian where we did 6 exactly that, where I sat down with him and -- and gave 7 him the whole defence brief and we had a very sensible 8 resolution of that case. 9 But there's a second classification -- 10 you've got to distinguish these -- where Marlys is 11 absolutely right: If -- if you don't have that degree of 12 confidence in your case that you can talk the Crown out 13 of -- out of proceeding, if -- if it's a triable case 14 that can go to trial, that should go to trial, and you're 15 -- you're not satisfied that you can talk the Crown out 16 of it by making full reciprocal disclosure, then, in my 17 view, in that second class of case -- which I don't think 18 are the cases that are necessarily before this Inquiry -- 19 but in those cases, mandatory pre-trial disclosure, in my 20 question, would unquestionably violate Section 7 of the 21 Charter. 22 It's a -- it's a clear-cut violation of 23 the case-to-meet principle and of -- of self- 24 incrimination principles, because as soon as you disclose 25 everything to the Crown, it's useable. It's all useable.

1 There's no -- there's no privilege or protection that 2 attaches to reciprocal disclosure to the Crown, so you've 3 essentially handed over a full brief of -- you've handed 4 the defence case to the Crown. 5 And particularly in the context of 6 experts, the way to instruct an expert is you give the 7 expert a hypothetical set of facts. You -- you write 8 them a letter and you -- the first page of your letter 9 is, I want you to assume the following facts. And the 10 hypothetical facts that you put to your expert, when 11 you're seeking his or her opinion, is the defence case. 12 So by disclosing your expert to the Crown, 13 you are, by definition, disclosing the defence case to 14 the Crown at a stage when the Crown hasn't even called 15 its first witness yet, so you're -- you're flatly turning 16 the case-to-meet principle on its head. And the Supreme 17 Court of Canada has told us many, many times that the 18 case-to-meet principle is the single-most important 19 organizing principle in the criminal law. 20 So I don't think you want to take on 21 violating the single-most important organizing principle 22 in the criminal law. 23 MR. MARK SANDLER: Professor MacFarlane, 24 when reciprocal disclosure has been talked about at this 25 Inquiry, it's often been coupled with a discussion about

1 a process that has been described as concurrent 2 disclosure or hot tub process, where -- which encourages, 3 sometimes at the direction of the court, the experts from 4 each side to get together and discuss their points of 5 agreement or differences, in England, generating 6 potentially, based upon an otherwise confidential 7 meeting; a list of points of agreement and points of 8 departure. 9 What do you think about that process and 10 what has been said by your fellow panellists on 11 reciprocal disclosure? 12 DR. BRUCE MACFARLANE: Well, I start off 13 with some contextual features that I think are important. 14 In the Stinchcombe case itself, Justice Sopinka alluded 15 to the prospect of the court considering at some point 16 mutual disclosure, not arriving at a conclusion on that, 17 but alluding to it. 18 And in the Morin public inquiry, 19 Commissioner Kaufman recommended reciprocal disclosure, 20 and at that stage of jurisprudence, expressed the view 21 that there is no constitutional impediment, and that 22 might need to be reconsidered. So that's the -- the 23 contextual information that I think needs to be taken 24 into account. 25 In terms of the approach to the issue of

1 disclosure, it seems to me that the Supreme Court in 2 recent years, on at least three (3) occasions, has 3 emphasized a couple of things: First of all, the 4 importance of the truth-seeking principle in criminal 5 trials, and secondly, the need to ensure that whatever 6 steps we take are more likely to result in an accurate 7 outcome as opposed to some form of inaccurate or 8 miscarriage of justice in one (1) way or another. 9 So with that -- with tha -- again, with 10 that backdrop in mind, it seems to me that I would 11 encourage steps that allow the truth-seeking process to 12 be enhanced either through mutual disclosure or through 13 meetings of experts in advance. It seems to me that that 14 will serve the Criminal Justice System well in terms of 15 truth-seeking, and as well, in terms of reducing the 16 number of issues and in -- in some cases, potentially 17 eliminating the need for a trial. 18 I -- I'm not sure that I agree with Mr. 19 Lindsay in terms of the scope of mutual disclosure on the 20 defence side. It seems to me that it ought to be 21 confined to those experts that the Crown -- that the -- 22 I'm sorry -- the defence actually intends to rely on, as 23 opposed to all of the reports that have been sought. 24 It seems to me that the latter proposition 25 might inhibit the defence from seeking expert views, and

1 -- and I don't think that's in anyone's interest, 2 including the Criminal Justice System and the public. So 3 on both fronts, in terms of mutual disclosure and the 4 meeting of -- of witnesses in advance, I would be very 5 encouraging of that process. 6 MR. MARK SANDLER: All right. Professor, 7 Code, I'll come back to you. I'll move the other way 8 along the table this time. We heard from some of the 9 experts who have testified at this Inquiry that -- 10 leaving aside the issue of reciprocal disclosure, 11 assuming that the present regime remained in place -- 12 that it's very much the exception that when they testify 13 for the prosecution, that defence counsel approaches them 14 in advance of the case -- very much the exception. 15 And we heard from several of the experts 16 that they're more than willing to meet with the defence 17 and articulate what it is that they have to say and the 18 limitations upon their opinions, if any. 19 Is there any good reason why the defence 20 bar should not be approaching experts who will be 21 testifying for the prosecution with a view to discovering 22 what they have to say and any limitations upon their 23 evidence? 24 DR. MICHAEL CODE: I can't -- I mean, it 25 would be a very exceptional situation where you would not

1 want to sit down and interview a witness if you had the 2 opportunity to do that. I mean, I can -- there -- there 3 are a few witnesses you want to stay away from; usually 4 unsavoury witnesses or witnesses who you know are firmly 5 against you and who are just going to use the interview 6 as an opportunity to prepare for their cross-examination. 7 But assuming you've got a professional 8 witness who's neither unsavoury nor entrenched in their 9 views so -- so deeply that they're -- they're going to 10 use the interview as -- as an opportunity to discover 11 you, I -- I would think that the vast -- vast majority of 12 witnesses, you would benefit tremendously from -- from 13 having a wit -- a witness interview in advance. 14 And certainly the -- the norm, in my 15 practice, has always been to try to interview witnesses 16 in advance, if I could. Indeed, counsel resist allowing 17 their witnesses to be cross-examined by the other side or 18 interviewed by the other side, whether it's the Crown or 19 the defence. 20 Again, in the Air India trial, we -- we 21 would disclose witness statements of defence witnesses, 22 in advance to the Crown, in advance of calling them so as 23 to avoid adjournments. And then we'd find the -- the 24 police visiting our witnesses the next morning and -- 25 along with the Crown and doing their interview in

1 advance, which always made you uncomfortable, but it's -- 2 it's the price you pay for thorough preparation. 3 So, no, I can't imagine why you wouldn't. 4 I mean, unless there's a good reason, an articulated 5 reason, why they didn't interview them, then I -- I 6 think you've got a problem of competence again. 7 MR. MARK SANDLER: All right. Ms. 8 Edwardh, what do you say about that? 9 MS. MARYS EDWARDH: I share the view 10 expressed by Michael. After the Marshall Inquiry, one 11 (1) of the criticisms that was placed on the record about 12 the competence of defence counsel in Junior Marshall's 13 case, was that they had not interviewed defence witnesses 14 or Crown witnesses. 15 I cannot conceive, actually, of a single 16 reason why you would not interview the pathologist who 17 was testifying for the Crown. I have never done a case 18 where there was a pathologist who testified, that I 19 didn't interview those pathologists. So I'm staggered by 20 the suggestion that defence counsel aren't knocking at 21 the door. 22 Certainly, I'm unaware that pathologists 23 are unwilling; I think they are in fact willing to be 24 interviewed. And I have never been involved in a case 25 where Crown counsel has had any objection to defence

1 counsel interviewing a pathologist. So to me, it's just 2 staggering that defence counsel aren't doing this, if 3 that's the case. 4 MR. MARK SANDLER: Okay. Let me turn 5 over on the Crown's side. And some of the things that we 6 heard from the forensic pathologist is that -- is that on 7 the eve of trial, or very shortly before the trial, they 8 might meet with Crown counsel and for the first time be 9 presented with a series of hypotheticals that really 10 demand more attention than simply than can be given the 11 night before. Or they might be shown a series of knives 12 and say, Which -- which is the one (1) that did the dirty 13 deed here, very shortly before the preliminary hearing or 14 trial commenced. 15 So I'm interesting in asking you, Mr. 16 McDermott, first: If that is a practice of some Crown 17 counsel, namely, having those kinds of discussions on -- 18 on the eve of trial with the forensic pathologist, is 19 there any way that we can address that? 20 MR. PAUL MCDERMOTT: Well, change the 21 nature of most litigation lawyers. I mean, they -- they 22 turn to a case, they -- they're on the eve of trial, they 23 look at their brief and say, I've never shown that knife 24 to the pathologist, then I'd better run up to Grosvenor 25 as fast as I can and disclose the police officer's notes

1 that night. 2 I mean, if -- you try to avoid it but 3 sometimes you can't. The -- the -- that's one (1) issue; 4 I don't know how you mandate that except, you know, best 5 practices, and we try not to do that. And generally 6 speaking, not championing the cause of preliminary 7 inquiries from my side, but -- but the preliminary 8 inquiry often takes care of that, because you often do it 9 before the preliminary inquiry. From the defence 10 perspective, it's sometimes not -- not overly helpful 11 either, because it's the day before the witness is to be 12 sworn. 13 I mean, I don't know how you mandate 14 better -- better practice by a law -- litigation lawyer 15 to get to his witness early and disclose it early. It's 16 -- it's -- you're criticized by judges for doing it for 17 sure, because the defence doesn't have time to respond. 18 I think we try to avoid it because we're getting the 19 brief faster these days in cases like this because of 20 electronic disclosure and I think we've -- we've cut down 21 on that sort of last minute thing. But I don't -- I 22 don't know how you do anything about it. 23 But I should say, just in joining Michael 24 and Marlys, the -- the approach from the defence -- again 25 I don't know why I keep speaking anecdotally; I guess

1 just because I count of the case is -- is it's all got to 2 do with the confidence of the defence lawyer. And when I 3 do a case against a very senior lawyer who does a lot of 4 homicide trials, I've found -- again, now I'm going to 5 your first point -- they sometimes have spoken to the 6 pathologist before I have, and about the very issue I'm 7 going to speak to the pathologist about. 8 And then when I speak to the defence 9 lawyer on the phone, he says to me, I hear you were 10 calling the pathologist about how long it takes to 11 suffocate somebody. And I said, I hear you were calling 12 them too about that. And we've all gone straight to the 13 pathologist who is happy to speak to anybody and normally 14 says, he or she says, I'm going to tell the defence or 15 the Crown what we're talking about. And they -- again, 16 depending on your confidence level, you say, I knew you 17 were going to do that. 18 And there's no mystery here and there's no 19 -- you don't get to whisper to the witness and then hope 20 that it just goes through the stand and nobody notices 21 that you had this conversation. But the vast majority of 22 cases the defence don't do that, and I have no idea why. 23 MR. MARK SANDLER: And just stopping 24 there because there's an important point to be made here 25 and that is that: Do you have any difficulty, as Crown

1 counsel, with the fact that the pathologist, who you're 2 going to be calling, is speaking to the defence counsel? 3 And do you have any difficulty with the 4 fact that whoever speaks to the pathologist, the 5 pathologist reports back on the substance of -- of the 6 discussions that take place? 7 MR. PAUL MCDERMOTT: Well, a couple of -- 8 absolutely not. And secondly, it doesn't matter; the 9 pathologist doesn't care what I -- what I say. 10 If I say -- I can't lean over the say, 11 Would you mind not telling Mr. Code that we discussed 12 that it only takes this long. I mean, it's -- this is 13 ridiculous that they should be approached in that way as 14 though the Crown was going to enjoy some confidence with 15 a professional witness. It's absurd and it just doesn't 16 occur. 17 And as I said, the more confident the more 18 --unfortunately, the more senior the defence lawyer, they 19 know exactly what I am going to ask them and they ask 20 them, if I do happen to get there first, Did Mr. 21 McDermott ask you this question: How long does it take 22 to -- to suffocate someone, and he says that's all he was 23 interested in, because it goes to intent to kill, and 24 that's what he's interested in for his charge. 25 So they asked the exact question, and they

1 want to know when and where I asked it, and -- and often 2 to check about whether I had a witness there who 3 disclosed it properly, and the -- the doctor's report is 4 faithful with the police officer's note, and the 5 disclosure, and it's all fair game and should be done. 6 MR. MARK SANDLER: Okay. Mr. Lindsay, 7 another question that -- or issue that was raised by the 8 forensic pathologists, and -- and by Crown counsel who 9 were involved in some of these cases, and -- and that is 10 that from the Crown counsel's perspective, they expressed 11 some concern, at times, about shifting opinions being 12 obtained from a forensic pathologist. 13 And -- and leaving aside whether these 14 truly represented a shift in opinion as opposed to a very 15 nuanced area in which the opinions were dependent upon 16 the information that was being provided to them, what 17 that generated is a practice on the part of, at least, 18 one (1) Crown counsel, Ms. Regimbal, who testified here, 19 to reduce her questions post-report of post-mortem 20 examination to writing. 21 She sends the questions in writing to the 22 pathologist, and she wants a response in writing from the 23 pathologist. 24 And -- and we've heard from a number of -- 25 we've heard both from Crown counsel, and from the

1 forensic path -- pathologists that that would represent a 2 best practice, particularly given the nuanced difficult 3 area in which they're operating. 4 What do you say about that? 5 MR. PAUL LINDSAY: I think it's an 6 excellent idea. It would -- it would -- I mean, much in 7 the same vein as, you know, a defence counsel puts in 8 writing the hyoptheticals upon which they're asking the 9 opin -- the expert to proffer their opinion, it -- it 10 makes a lot of sense to -- to do this all in writing, if 11 appropriate. 12 It should always be appropriate. You 13 shouldn't -- you shouldn't ever be afraid to put in 14 writing that which, you know, that which you don't want 15 anyone to know about. 16 I mean, there -- there shouldn't be any -- 17 there shouldn't be any ambiguity in the -- in -- in the 18 request to the -- to the expert. 19 And again, I think it's all consistent 20 with the notion that good experts are independent, and 21 they shouldn't be -- they shouldn't be swayed one (1) way 22 or the other by -- by personal relationships they may 23 have with the defence on the one (1) hand, or the Crown 24 on the other. 25 So putting things in writing, I think, is

1 an excellent best practice. 2 MR. MARK SANDLER: Okay. Now I'm going 3 to ask all of you the -- this question, and that arises 4 again out of some of the testimony that we've heard from 5 forensic pathologists at this Inquiry. 6 We've heard about the importance of an 7 evidence-based approach to pathology, and as part of the 8 evidence-based culture that has been urged upon the 9 Commissioner, is a recognition that in many of these 10 cases the best answer for the pathologist is, I don't 11 know, or undetermined, or I can't help you on that issue. 12 But what we've heard from, at least, some 13 of the forensic pathologists who have testified here, is 14 that at times, they feel buffeted or pushed, or pulled in 15 directions by the Justice System which wants greater 16 certainty, which wants them to weigh in, one (1) way or 17 the other. 18 And, so the question that I have for you 19 is, if that's the way forensic pathologists are thinking, 20 if that is their concern about being pushed and pulled 21 where they don't want to go, how do you see as 22 participants in the Criminal Justice System, you can 23 address that concern? 24 Why don't I start in the middle, with Ms. 25 Edwardh.

1 MS. MARLYS EDWARDH: I think every expert 2 witness testifying at a trial where his or her evidence 3 is contested feels pulled and buffeted. 4 And they have to be anchored in their 5 standards of expertise and professionalism to know how to 6 resist suggestions, or the pushes and pulls that are 7 inevitably going to be there from either Crown or the 8 defence. 9 So, I mean, to -- to some extent, this is 10 a question first of all of saying, How do you train a 11 body of experts who appear in Courts so that they feel 12 comfortable and strong in looking at both sides, and 13 saying, I'm not going there. 14 I mean, I've seen different experts 15 approach it differently. For example, I have worked with 16 forensic psychiatrists who have become so defensive about 17 being pushed around that they will never share a draft of 18 a report; even if they know that all counsel is going to 19 do with a draft is to say, Could I ask you also to 20 address the following four (4) areas because you've left 21 them out. 22 I mean, and it's not rewriting a report 23 and not asking them to go to a different place, so people 24 have looked to different mechanisms to protect themselves 25 from the adversarial process and a degree to which we

1 push them around. 2 So I think we need to have a little 3 respect about when they draw those lines because they are 4 drawing very important lines when they say, I can't go 5 beyond this, and they need to have the commitment to 6 their own expertise and professionalism to absolutely 7 refuse to go where they ought not go, and by "ought not" 8 I mean, go beyond their competence or their area of 9 expertise in giving opinion evidence. 10 So, I mean, I -- I think the move to 11 evidence-based pathology or medicine may be -- and we 12 have to remember it's new, I mean we can track it to the 13 early '80's -- may be the most important movement in -- 14 in pediatric pathology and other pathology or in medicine 15 as it appears in our courtroom. 16 And so I think we have to do everything we 17 can to encourage evidence-based medicine as a practice, 18 as a form of practice, so we don't have experts 19 testifying when they're asked, And what's your authority 20 for that, they don't say, Well, it's my authority, 21 because that's a non-answer. 22 So, whatever we can do to encourage 23 evidence-based medicine to come forward, I think we ought 24 to do it. 25 MR. MARK SANDLER: Professor

1 MacFarlane...? 2 COMMISSIONER STEPHEN GOUDGE: Sorry, Mr. 3 Sandler. 4 You talked at one (1) point in your 5 thoughts, Ms. Edwardh, about those in the system, counsel 6 and the system having a little respect for when the 7 expert reaches the limit of -- 8 MS. MARLYS EDWARDH: Mm-hm. 9 COMMISSIONER STEPHEN GOUDGE: -- their 10 comfort zone. How do we build that in because there is 11 an inherent tension that we heard articulated forcefully 12 by the scientists, -- 13 MS. MARLYS EDWARDH: Yes. 14 COMMISSIONER STEPHEN GOUDGE: -- by the 15 pathologists, whereas Mr. Sandler says, their ultimate 16 level of uncertainty about the diagnosis, cause of death, 17 was put under scrutiny, naturally as part of the 18 adversary process, but there's a tension there as counsel 19 drive the specialist to say something the specialist is 20 unwilling to say. 21 And you hint that there are 22 responsibilities on both sides of that conversation. How 23 do we get at the responsibility on counsel's side? I 24 mean is it simply a matter of education, because 25 ultimately every counsel wants as definitive an opinion

1 on their side of the ledger as they can get. That's the 2 way the adversary system works, so there's a built-in 3 institutional bias against permitting the unascertained 4 answer. 5 MS. MARLYS EDWARDH: Yeah, I don't 6 disagree with that observation at all, and I don't know 7 how to police that boundary. I personally believe it's 8 an ethical boundary, and it's ethical in the sense that 9 to push the expert over the line is to push the expert 10 into giving evidence that you know has no reliability and 11 is, you know, just -- 12 COMMISSIONER STEPHEN GOUDGE: Or seems 13 dogmatic -- 14 MS. MARLYS EDWARDH: Yes. 15 COMMISSIONER STEPHEN GOUDGE: -- to use a 16 phrase that we have heard time and again throughout this. 17 MS. MARLYS EDWARDH: So I would expect 18 that it is a -- the only way to police it is through the 19 standards of the Bar and their own professionalism. 20 I don't think you can put someone in -- in 21 our office to make sure that when we, you know, take an 22 expert through the evidence that we propose to educe, 23 that we don't push them around too much, but you need 24 both sides to recognize that that process has a fragility 25 and if you go beyond it, you're going to put bad evidence

1 before the Court. 2 COMMISSIONER STEPHEN GOUDGE: There may 3 be a role for the judiciary in this, I suppose. 4 MS. MARLYS EDWARDH: Of course. 5 6 CONTINUED BY MR. MARK SANDLER: 7 MR. MARK SANDLER: Professor MacFarlane, 8 your comments? 9 DR. BRUCE MACFARLANE: Thank you. I 10 think that the question you posed is a -- is an excellent 11 one (1) because it deals with the intersection between 12 the Legal System and the Criminal Justice System on the 13 one (1) hand and forensic pathology and sciences on the 14 other. 15 And as I mentioned earlier and as others 16 have said, forensic pathology is an inec -- inexact 17 science, whereas the Criminal Justice System seeks that 18 certainty. It -- you talk in terms of an event on a 19 particular day at a certain time, the verdict is either 20 guilty or not guilty. It's very, very precise, and the 21 two (2) just simply don't mesh very well. 22 I think that that's -- that's the first 23 point. The second point is that I think that we're 24 dealing with a human tendency on the part of the witness, 25 as well, and that is a tendency to want to help. And the

1 expert witnesses that I have dealt with want to help both 2 the system and more seriously, want to help the party 3 that's calling them, and that's where the danger starts 4 to arrive. 5 But there is this -- and sometimes that 6 can even go to the logical extreme, and that is an 7 alignment with that side and we've seen that in -- in 8 Canada, and the UK, and elsewhere. 9 I think that in terms of restraint we need 10 to look at restraint and restraining features on both 11 sides, that is the witness and counsel. Because I think, 12 unless there are some restraining features, we will 13 continue to see this problem, because it's a natural 14 tendency on -- on both parts. 15 What are the restraining features? On the 16 witness side, I think that a good practical outcome from 17 this Inquiry would be to make it clear that experts in 18 this area need to know the limits to which they can go, 19 and have to draw the line when they reach the limits. 20 And that has to be understood as part of 21 the culture, it has to be part of the education process 22 in -- in -- and governing bodies have to understand that 23 as well. So setting limits, understanding them, and 24 drawing the line is important on the witness side. 25 On the counsel side, I see two (2)

1 restraining mechanisms: The first is through -- and it's 2 already been eluded to, education, ongoing education, and 3 secondly, I think -- and -- and, Mr. Commissioner, you 4 eluded to this, the judiciary do play an important role 5 here, and both of those restraining mechanisms are 6 important. 7 MR. MARK SANDLER: All right. Professor 8 Code...? 9 DR. MICHAEL CODE: I -- I don't have much 10 to add. I agree with the previous comments. The -- I -- 11 I do think that the adversarial system is inherently 12 competitive and lawyers will just have this innate 13 tendency to want to get opinions that help their cause, 14 and so they do push -- push witnesses to try to get them 15 to give favourable opinions. 16 An opinion that's inconclusive is no use 17 to anybody in an adversarial contest that doesn't adver - 18 - advance one side or the other. So there -- I think 19 there's always going to be a conte -- attention, a kind 20 of a natural attention between the ideals of science, 21 which are evidence based, and are based on validation and 22 testing and verification, and the -- the -- the 23 inherently competitive nature of the adversarial system. 24 So the best protection is to, as Bruce 25 says, to build a culture in the scientific community that

1 they are not part of the adversarial process; that they 2 are independent of it, and that they are committed to the 3 ideals of science. 4 And certainly in -- we -- we've seen this 5 in a number of -- in previous inquiries; the Morin 6 Inquiry , and the Driskell Inquiry being the two (2) 7 chief ones where scientific witnesses testified to 8 conclusions that were utterly without any scientific or 9 evidence based foundation. 10 In the -- in the Driskell Inquiry, the 11 hair and fibre evidence, the -- the RMCP Crime Lab in -- 12 in Winnipeg testified that he -- he looked into a 13 microscope and he saw two (2) hairs and they looked the 14 same to him. And -- and -- and then he gets into the 15 witness box and starts giving statements, but -- 16 ostensibly, scientific statements about how rare it would 17 be to find two (2) such matches in -- in the general 18 populous, without any possible evidence based science on 19 which to -- to base those pronouncements. They were -- 20 they were coming off the top of his head. 21 And you worry that scientific witnesses 22 have been co-opted by one side or the other to give 23 helpful opinions without any scientific basis whatsoever. 24 And certainly if witnesses start doing that in the middle 25 of a trial, the judiciary has got to put a stop to it and

1 -- and immediately insist that there be a proper 2 scientific basis for opinion -- opinions about 3 probabilities, and try and limit the witness to simply 4 testifying to what he or she observed under the 5 microscope, and not starting to give opinion -- opinions 6 about probabilities or likelihoods that -- conclusions 7 that can be drawn from -- from what he or she observed in 8 the microscope. 9 So I -- I think there always will be a 10 tension, and I -- I think we've got to -- we've got to 11 try and encourage the scientific community to be 12 independent of the adversarial process. And we've got to 13 encourage judges to put a stop to these ostensibly 14 scientific opinions that have no scientific basis at all. 15 MR. MARK SANDLER: I'm going to come back 16 to the judicial role in the context of admissibility in a 17 few moments, but if I can turn to you, Mr. McDermott, and 18 I'm going to put a little twist on the -- on the same 19 question that's been asked. 20 We had the one (1) case, just by way of 21 illustration, where the pathologist who testified would 22 have to have said that the mechanism of death -- cause 23 and mechanism of death was undetermined; could not 24 exclude a mechanism that the Crown supported; could not 25 exclude a natural mechanism that would be exculpatory.

84
  1  And we saw when that pathologist was examined by Crown
  2  counsel; after that basic opinion was given, there were
  3  questions being put to the pathologist:  Well, is your
  4  opinion consistent with suffocation?  Is it consistent
  5  with smothering?  
  6                 And -- and the concern that's been
  7  expressed here is that -- is that that had the potential
  8  of leaving a misleading impression with -- with the jury
  9  or the trier of fact by the way the questions were --
 10  were packaged.  
 11                 So I'd be interested in -- in what you do
 12  in a scenario or what you think should be done in a
 13  scenario where the expert is unable to exclude both
 14  exculpatory and inculpatory inferences, how the Crown
 15  should deal with that, and how training should address
 16  the issue that you've heard described.  It's a long
 17  question.
 18                 MR. PAUL MCDERMOTT:   It is.  The -- the
 19  hypothetical is difficult to -- to respond to with any
 20  degree of specificity, but let me -- 
 21                 MR. MARK SANDLER:.   Sure.
 22                 MR. PAUL MCDERMOTT:.   -- let me do it
 23  generally speaking, and that is, obviously, if there's no
 24  actus reus, if there's no crime, we're under a very
 25  strict obligation not to prosecute the case.  But -- but

1 if there's something that's undermined, if there's other 2 evidence, for example, that would support the Crown's 3 hypothesis, I don't think that, as Justice Goudge said, 4 you can -- you can -- you can do away with a natural 5 conflict between a litigation lawyer attempting to 6 examine and then have it subject to cross-examination, an 7 expert's opinion, and then put other parts of -- of your 8 case to that particular expert. 9 It may be -- and I appreciate in some of 10 the cases the Commission's looked at, this isn't the best 11 parallel, but it may be that the -- the fact that the 12 pathologist says "undetermined" isn't the end of the 13 case. There's other evidence on which you'll examine the 14 witness, and you'll ask them to be first put specifically 15 into their opinion and then potentially in a hypothetical 16 the significance of that evidence. 17 So it doesn't -- you're -- I don't see 18 that you're obligated to stop, once you're past the 19 threshold of being able to prosecute ethically, of 20 attempting to put your case to your witness. But to do 21 it professionally and -- and such that it advances the 22 true finding function, you need to have that education 23 and -- and just as much -- I think it's been repeated all 24 the way down -- the disclosure aspect of it. 25 So that if -- if we've made attempts

1 before to see the witness prior to the proceedings in 2 court and put these -- because these wouldn't have been 3 novel ideas. What about this? What about that? You say 4 undetermined, but I've got these other six things in my 5 case. Isn't this -- doesn't this factor, doesn't this 6 factor -- and the defence is going to say, Look, this is 7 a Crown simply attempting to advance their case through 8 the witness. And I don't think it's untrue. 9 But if it's all disclosed and if the -- if 10 the witness has -- is capable of giving an honest, 11 educated answer, then I don't see the difficulty with it. 12 And I don't -- I don't want to -- I don't want to 13 dismantle entirely the adversarial system. It does a 14 pretty good job sometimes of getting at unsavoury 15 witnesses, difficult issues, through full disclosure by 16 the Crown and full cross-examination by the defence. 17 Sometimes it works pretty well. 18 COMMISSIONER STEPHEN GOUDGE: Take the 19 phrase, "consistent with," Mr. McDermott -- we've had a 20 lot of talk here about the need to avoid using that kind 21 of language by the pathologist in the pathologist's 22 written opinion. 23 Is it appropriate to task counsel with 24 avoiding using the same kinds of phrases when inviting 25 the pathologist to answer in cross-examination or

1 evidence in-chief? 2 In other words, is this a responsibility; 3 that is, the avoidance of this kind of language that may 4 be open to ambiguity? Is tasking counsel with avoiding 5 it an appropriate thing, or should this be left entirely 6 to the scientist to avoid it, both in the report and in 7 answering? 8 MR. PAUL MCDERMOTT: Or the judiciary. 9 COMMISSIONER STEPHEN GOUDGE: Or the 10 judiciary. 11 MR. PAUL MCDERMOTT: So who's the police 12 on the Crown -- 13 COMMISSIONER STEPHEN GOUDGE: Or does 14 everybody have a professional obligation to share -- 15 MR. PAUL MCDERMOTT: I think that's the 16 answer. 17 COMMISSIONER STEPHEN GOUDGE: -- in 18 avoiding that language? 19 MR. PAUL MCDERMOTT: If we -- if we're 20 educated properly that this is not an appropriate way to 21 examine a science, those particular semantics -- 22 COMMISSIONER STEPHEN GOUDGE: Right. 23 MR. PAUL MCDERMOTT: -- and that it 24 should be avoided based on a real understanding of the 25 sciences, then that's the first part of a --

1 COMMISSIONER STEPHEN GOUDGE: Right. 2 MR. PAUL MCDERMOTT: -- of the governor 3 on the Crown. And then next one, perhaps the Crown 4 doesn't agree and the Crown goes ahead and then the 5 pathologist won't agree, because there's the governor on 6 them. 7 But the next -- we go to the next step. 8 Then the judge jumps in and says, Stop that, this isn't 9 appropriate in this -- because of the defence objection 10 or the judiciary's in your -- so I think there -- there 11 are enough checks and balances potentially -- 12 COMMISSIONER STEPHEN GOUDGE: But it is 13 legitimate to educate counsel, both -- on both sides, 14 Crown and defence. 15 MR. PAUL MCDERMOTT: Before the question 16 is even asked. 17 COMMISSIONER STEPHEN GOUDGE: Yes. 18 MR. PAUL MCDERMOTT: Yes. 19 MR. MARK SANDLER: All right. 20 COMMISSIONER STEPHEN GOUDGE: Mr. 21 Sandler, is your plan to go to 12:15 or are you going 22 to -- 23 MR. MARK SANDLER: No, no, I'm going to 24 take the break in about five minutes, if I may. 25 COMMISSIONER STEPHEN GOUDGE: Okay.

1 2 CONTINUED BY MR. MARK SANDLER: 3 MR. MARK SANDLER: Mr. Lindsay, did you 4 want to add to -- to this discussion? 5 MR. PAUL LINDSAY: I'll just make this 6 one (1) comment. We did as a division, Criminal Law 7 Division, try to address this following the Morin Inquiry 8 and we -- 9 COMMISSIONER STEPHEN GOUDGE: Yes, I'd be 10 interested to hear about that. 11 MR. PAUL LINDSAY: -- and certainly we -- 12 we promulgated a -- a -- actually, it ended up being a 13 joint memorandum from the Criminal Law Division on the 14 one hand and the Centre of Forensic Sciences on the 15 other, dealing with this very problem, about how do you 16 put appropriate limits on the -- on the kinds of things 17 that experts -- scientific experts -- can say. 18 And so I just make reference to our 19 policy, and the most refreshed version of it is a March 20 21st, 2005, one (1) pager, which is the policy from the 21 Attorney General, and I'll just read the relevant 22 section, if I might: 23 "The ultimate objective of the Crown in 24 putting forward scientific evidence is 25 to ensure that such evidence is

1 presented to the court with no more and 2 no less than its legitimate force and 3 effect. The scientist should inform 4 Crown counsel of any limitations on the 5 inferences that can reliably -- that 6 can be reliably drawn from such 7 evidence and Crown counsel must make 8 every effort to ensure that those 9 limitations are fully impressed upon 10 the trier of fact. 11 As in all matters, Crown counsel should 12 be guided by the general duty to see 13 that justice is done in the 14 circumstances of the particular case." 15 So that's the Attorney General's kind of 16 overall policy direction and following that, there's a 17 practice memorandum. I don't know if you have them all. 18 I think we -- 19 MR. MARK SANDLER: We do. 20 MR. PAUL LINDSAY: So I just recommend -- 21 I won't go through it all, but I'd recommend you have a 22 look at it, if you thought it important. It's Practice 23 Memorandum 2006, number 7 which again, was a Practice 24 Memorandum that was prepared by the Criminal Law Division 25 in consultation with the Centre of Forensic Sciences, but

1 it applies to all -- all scientific evidence in any 2 event. 3 And I think what it does is it makes the 4 point that the Crown certainly has an obligation, as do 5 the scientists, to ensure that the evidence is pushed up 6 to but no further than its legitimate limit. 7 And we try to impress that upon all 8 Crowns. And from my point of view, I think it's our duty 9 to do that. But as others have said, the Defence Bar has 10 a duty as well. And certainly, ultimately, it's the 11 court that will make the judgment call on the 12 admissibility of the line of questioning. 13 14 CONTINUED BY MR. MARK SANDLER: 15 MR. MARK SANDLER: So -- so just closing 16 the loop on that particular issue. 17 If the Commissioner were to identify 18 certain limitations on forensic pathology that are 19 presently misunderstood in the criminal justice system, 20 or language that should be avoided, you could see -- you 21 could see the Ministry, for example, preparing, perhaps 22 in consultation either with the Chief Coroner's Office or 23 with the Chief Medical -- Chief Pathologist of the 24 Province, a memorandum that would form part of 25 distribution to all Crown counsel and part of the

1 educative process. 2 MR. PAUL LINDSAY: Absolutely. 3 MR. MARK SANDLER: Am I right as to that? 4 MR. PAUL LINDSAY: Absolutely. And 5 that's what we did following the Morin Inquiry. But my 6 view is that the present Memorandum, more or less, covers 7 most of the points anyway, but it may be that it needs a 8 little more flushing out, perhaps. 9 MR. PAUL MCDERMOTT: Let me just add, Mr. 10 Sandler. There was the history of word of "match" in 11 DNA, which has changed and evolved. It's very similar to 12 what you're talking about. 13 When DNA first started, we -- they said "a 14 match." And it was a very inviting word to the Crown, 15 obviously, because you had a match between your case and 16 the accused. 17 And in the genesis of the change in the 18 language of that, which the scientists were uncomfortable 19 with, which the court was uncomfortable with, is -- is a 20 parallel that might -- might be instructive because it's 21 -- they have changed the language entirely about DNA 22 being consistent with. They don't use that. It's -- 23 it's a long expression about the likelihood of a random 24 match of an unrelated individual. 25 But -- but they've changed it to -- to

1 better put into play at least for the trier of fact to 2 determine that issue, rather than the scientist, and -- 3 and the examiner. 4 MR. MARK SANDLER: Okay. Why don't we 5 take our morning break, Commissioner -- 6 COMMISSIONER STEPHEN GOUDGE: Sure. 7 MR. MARK SANDLER: -- now, if we may? 8 COMMISSIONER STEPHEN GOUDGE: Lets 9 adjourn then for fifteen (15) minutes. 10 11 --- Upon recessing at 11:16 a.m. 12 --- Upon resuming at 11:34 a.m. 13 14 THE REGISTRAR: All rise. 15 COMMISSIONER STEPHEN GOUDGE: Please sit 16 down. 17 Mr. Sandler...? 18 19 CONTINUED BY MR. MARK SANDLER: 20 MR. MARK SANDLER: Ms. Edwardh wanted to 21 make a comment about what was said immediately before the 22 break. 23 MS. MARLYS EDWARDH: I don't know the 24 transcript that you were describing, of someone adducing 25 evidence leaving the impression that "consistent with" is

1 affirmative proof, because that's obviously what the 2 trier would conclude. 3 But I do want to say this, I think we 4 should have trial judges ensure that by the time a person 5 has called the evidence of an expert, whether of 6 pediatric pathology or otherwise, the limits of the 7 opinion are now clear on the record. 8 So if -- I mean, "consistent with" only 9 means not inconsistent with. It is not affirmative proof 10 of anything. So it does seem to me that the obligation 11 on, first of all, the person adducing the evidence, and 12 then the Court, is to ensure that the trier clearly 13 understands what the limits are. 14 COMMISSIONER STEPHEN GOUDGE: Should 15 defence counsel be able to cross-examine in that language 16 if it suits? 17 I mean, should it be an obligation on 18 everybody and every player in the system, Ms. Edwardh, to 19 avoid this kind of slippery language? 20 MS. MARLYS EDWARDH: Well I want to -- I 21 want to make this observation. A number of years ago, I 22 sat at the Morin Inquiry, where a panel of three (3) 23 asserted that the word "consistent with" had been 24 abolished from the forensic vocabulary. 25 COMMISSIONER STEPHEN GOUDGE: Right.

95
  1                 MS. MARLYS EDWARDH:   That's about, what a
  2  decade ago, Mark?
  3                 So let -- let me put it this way:  To the
  4  extent that that slippery slope gets inserted into
  5  language where -- and the trier is going to be confused,
  6  it is incumbent, I think, to drive home to both sides
  7  they have to adduce the limits of the opinion, and a
  8  trial judge has to be make very clear --
  9                 COMMISSIONER STEPHEN GOUDGE:   Right.
 10                 MS. MARLYS EDWARDH:   -- that the trier
 11  understands exactly that this language means nothing.
 12                 COMMISSIONER STEPHEN GOUDGE:   Right.  The
 13  ultimate governor, as Mr. McDermott would call it, is the
 14  trial judge.
 15                 MS. MARLYS EDWARDH:   Absolutely.
 16                 DR. MICHAEL CODE:   If I -- if I could
 17  just quickly respond to that.  It would be hard to
 18  prevent the defence from asking that kind of very, very
 19  broad question in cross-examination, but I would think a
 20  wise trial judge would immediately caution the defence
 21  that if they're going to frame their question in that
 22  kind of language, they're opening up re-examination to
 23  the Crown to re-examine in exactly the same language, and
 24  put the alternative hypothesis to the expert.
 25                 So it would be a very unwise question for

1 the defence to open up. 2 3 CONTINUED BY MR. MARK SANDLER: 4 MR. MARK SANDLER: All right. Lets move 5 to -- to a more difficult area, if that's possible, and 6 that's admissibility. 7 On Friday, we had a panel that included 8 Professor Edmond, who's here today, who described, or cha 9 -- or championed a -- a position in his paper, which I 10 know you've had an opportunity to see, for more explicit 11 recognition of demonstrable reliability as a precondition 12 for the admissibility of scientific evidence, including 13 forensic pathology. 14 And we heard from some of the members of 15 the panel that -- that voir dires, whether called Daubert 16 in the United States, or -- or Mohan's in Canada, are 17 underutilised in dealing with some of the limitations 18 upon forensic pathology evidence. 19 So I want to put a scenario to you, and -- 20 and ask you to comment upon what Professor Edmond said in 21 the context of this scenario, and that's this: 22 The forensic pathologist prepares a report 23 for the Crown and in the report comes to the conclusion 24 that in his or her opinion the child was shaken to death. 25 And we'll talk about what should be in

1 that report a little bit later in the piece, but lets 2 assume that Crown counsel through -- through the 3 education that Mr. Lindsay and Mr. McDermott has 4 described, is well aware of the fact that this is a 5 controversial area on which forensic pathologists 6 disagree. 7 And lets assume that the defence has also 8 partaken in educational programming, to the extent that 9 the defence is well aware of the fact that Shaken Baby 10 Syndrome remains a controversial area in forensic 11 pathology and that it can be argued that the state of 12 science as such, that no reliable opinion can be 13 expressed that this baby died of shaking. 14 The Crown doesn't necessarily agree, and 15 certainly the forensic pathologist who has been consulted 16 to give evidence for the Crown has said that although 17 there is this controversy, he or she feels confident that 18 -- that an opinion can be expressed that this is a 19 shaking case, notwithstanding the existence of the 20 controversy. 21 So the question is: How should the 22 defence approach the issue of admissibility of that 23 evidence and are there currently tools in place that 24 enable that reliability, the reliability of that opinion 25 to be gauged?

1 Ms. Edwardh, I'll start with you. 2 MS. MARLYS EDWARDH: The answer is I 3 think, yes, there are tools. They are not as well 4 developed as the ought to be. I have always taken the 5 view that imbedded in Mohan is the notion of reliability, 6 and that if one wished one could take aim at trying to 7 establish that there was not sufficient reliability 8 hiding under necessity and relevance, to justify the 9 decision to have the evidence adduced before the trier of 10 fact. 11 I think it should be clearer and more 12 upfront as it is in the approach we are now instructed to 13 take with respect to novel evidence. My general 14 perception is that with novel evidence you can have a 15 clear wack at, or the Crown has to educe proof of 16 reliability and has to meet some threshold before the 17 evidence is admissible. 18 Under Mohan the burden would shift to the 19 defence and I don't think that actually assists the 20 system. I think it should be, if challenged, the Crown 21 should be able to show why this is a reliable conclusion. 22 So I would put reliability at the 23 forefront of any challenge and I believe it should be 24 something that the Crown should be able to establish 25 before the evidence is ever heard in a -- in voir -- in a

1 voir dire context. 2 But one (1) of the problems, I just want 3 to flip back a little bit, it's easy to do that with what 4 we traditionally see as science, but you don't -- you 5 don't have to go far into our jurisprudence to look at a 6 case called Markwart in the Supreme Court of Canada, 7 where the fact that there were a group of doctors all 8 opining and giving opinion evidence on matters which they 9 had almost minimal expertise. You had one (1) doctor 10 opining on burns who -- who had no expertise in burns. 11 You had another doctor opining on the psychological 12 aspects of an abused child. 13 We have tended to defer to -- what I'm 14 really trying to say is we tended to defer to medicine 15 without subjecting it to as much scrutiny as other areas. 16 So I think we need now to stop doing that and to firmly 17 put the trial Judge as gatekeeper into the role of making 18 sure that what is heard meets whatever we want to call as 19 reliable, in that it can be shown to be reliable. So 20 that's my comment. 21 COMMISSIONER STEPHEN GOUDGE: Is it right 22 to think of this way, Ms. Edwardh, that reliability has 23 come into play, perhaps rather more in areas of science 24 that get the label novel, as opposed to particular 25 applications of traditional science in a particular case?

100

1 And we just don't think of, is this 2 application or is this opinion within the well known and 3 accepted science of forensic pathology. Is it reliable? 4 It seems to me, from my perspective, 5 that's been a general approach that has been taken, which 6 results in medical opinions as individual opinions, not 7 getting tested against reliability because the science 8 itself is accepted as not novel science. 9 Is that a fair analysis? 10 MS. MARLYS EDWARDH: Yes. 11 COMMISSIONER STEPHEN GOUDGE: And you see 12 some scope for checking the individual application of the 13 generally accepted science against a standard of 14 reliability. 15 MS. MARLYS EDWARDH: Well, I think what 16 we need to do is pull out from Mohan and be clearer that 17 it includes reliability. And that if there is a 18 challenge put on the table, that the particularly -- the 19 particular opinion, although it is pulled from a 20 recognized body of, you know, not novel science, is 21 subject to challenge. It should be subject to challenge. 22 And I have no doubt that it will be a 23 difficult challenge for many defence counsel to make, 24 because it presumes you understand evidence-based 25 medicine. It presumes you can take evidence-based

101

1 medicine and test the conclusions that are being put 2 forward by the particular expert. 3 But it -- I believe it must be done. I 4 think it's a logical extension of where we have gone with 5 science. 6 COMMISSIONER STEPHEN GOUDGE: I'd be 7 interested to hear everybody comment on this. I mean, 8 for me, this is an interesting area. 9 10 CONTINUED BY MR. MARK SANDLER: 11 MR. MARK SANDLER: Mr. McDermott...? 12 MR. PAUL MCDERMOTT: I think that 13 Professor Edmond, while advocating a new semantics or a 14 new test, acknowledges that the aspect of reliability is 15 embedded in some of the Mohan principles. 16 Because it isn't -- it isn't necessary if 17 it isn't reliable. If it isn't relevant, it isn't 18 reliable. So there is -- there is an aspect of the 19 reliability test within Mohan already. 20 And -- and the -- one (1) of the dangers I 21 think that -- that has to be acknowledged, and -- and 22 considered is the extent to which some of these decisions 23 are taken away from the trier of fact though, in this -- 24 in this model potentially. 25 And that is that -- that you have --

102

1 accepting that the -- the evidence is -- is -- passes the 2 -- what the Mohan test has presently formed, that a -- a 3 consideration of a patch work reliability of expert 4 opinion is -- is encroaching on the area that has been 5 traditionally reserved for the trier of fact. 6 And -- and whether or not the demonstrator 7 of rel -- reliability does that, I -- I leave for others. 8 But -- but I -- I see a potential for an encroachment on 9 -- on an area that has been left for -- for the trier of 10 fact in these cases. 11 And the -- the judges have not -- the 12 judges -- now they have the prejudicial probative. They 13 do weigh evidence before it goes to the jury, certainly. 14 But -- but they're -- they're careful, historically, to - 15 - to not -- not be -- the gatekeeper function doesn't 16 prevent evidence going to the jury for their ultimate 17 determination of its reliability. 18 MR. MARK SANDLER: All right. Mr. 19 Lindsay...? 20 MR. PAUL LINDSEY: Well, not 21 surprisingly, I agree with Mr. McDermott. The -- I 22 suppose one (1) of the issues that I would have is -- is 23 it appropriate to have a different test for the 24 admissibility of evidence led by the Crown versus the 25 defence?

103

1 And I would suggest that generally 2 speaking, the answer to that is no. Leaving aside 3 special cases like voluntariness of confessions, which 4 has its own history and its own -- its own set of rules, 5 I don't think that in our system you can have a properly 6 -- a different test for the admissibility of evidence 7 whether it's tendered by the Crown or -- or the defence. 8 And certainly if you look at the -- the 9 shoe being on the other foot, where for example, in a 10 section 16 issue where the onus shifts to the -- to the 11 defence to show on a balance of probability that the 12 accused isn't -- was not criminally responsible, I'm not 13 sure that -- I'm not sure that those who argue in favour 14 of demonstrable reliability would -- would say it should 15 apply. 16 So, I mean, that's one (1) problem. The - 17 - the other problem is this, that if you have a situation 18 where there are two (2) schools of thought, both equally 19 perhaps -- 20 COMMISSIONER STEPHEN GOUDGE: Defensible. 21 MR. PAUL LINDSEY: -- defensible, then 22 the classic way that our justice system -- that our rules 23 of evidence deal with that is by leaving it to the trier 24 of fact and not to exclude the evidence at the outset, 25 subject, of course, to the -- the probative value versus

104

1 prejudicial effect test, that anerts (phonetic) to the 2 benefit of every accused. 3 So that the -- it seems to me that 4 reliability is inherent in the -- in the -- in the Mohan 5 and the cases that follow analysis. But once you raise 6 it to a level of demonstrable reliability, where, for 7 example, you may have different schools of thought, it 8 seems to me it has to be left to the trier of fact. And 9 we trust triers of fact to -- to make the most difficult 10 decisions in our -- in our -- in our system. 11 And what's key though, is that the triers 12 of fact -- or the trier of fact, if it's a judge alone, 13 is aware of the inherent problems with -- with the two 14 (2) schools of thought, but provided that there is in the 15 scientific community, a consensus of one (1) sort or 16 another. 17 And it seems to me that you shouldn't take 18 it away from the trier of fact. You should leave it to 19 the trier of fact, with the appropriate direction from 20 the trial judge as to how they can deal with the 21 evidence. 22 And certainly in the -- in the criminal 23 law context, when the onus of proof is on the Crown -- or 24 the burden of proof is on the Crown, I think that should 25 sort out many of the -- many of the issues.

105

1 COMMISSIONER STEPHEN GOUDGE: So I take 2 it you wouldn't disagree, Mr. Lindsay, with having a 3 reliability threshold that just oughtn't to be set so 4 high as to take away from the trier a choice between two 5 (2) defensible theories? 6 MR. PAUL LINDSAY: Correct. Yes, sir. 7 8 CONTINUED BY MR. MARK SANDLER: 9 MR. MARK SANDLER: All right. Professor 10 Code...? 11 DR. MICHAEL CODE: I agree with much of 12 what's been said. 13 I think Commissioner Goudge's point is 14 very well taken that the -- the reliability tests -- and 15 I agree with Marlys, that there are reliability tests 16 already embedded in Mohan. They're there; they're just - 17 - they just haven't been teased out as distinctly as they 18 might be. 19 And -- and that the biggest challenge now 20 is not so much with novel science. Novel science seems 21 to have been well -- well-looked after in the 22 jurisprudence and has been -- has been essentially 23 subjected to the Daubert criteria in this country which 24 are very exigent reliability tests. 25 The problem is more established science

106

1 being applied in novel ways or established science being 2 asked to draw new inferences that they necessarily 3 haven't -- they haven't necessarily tested or applied. 4 So I think what has to happen here is 5 we've got to remember that -- that Mohan is common law. 6 This is judge-made law and like all common law, it's 7 incremental. And as we become more experienced in this 8 area and we see what the difficulties are in the forensic 9 science community, we've got to develop and evolve the 10 jurisprudence. 11 So whereas, realiabiity analysis was 12 somewhat under the surface in -- in Mohan. And Professor 13 Edmond's paper is very helpful in showing how, you know, 14 Justice Sopinka kind of disguised his reliability 15 analysis. He -- he situates it under relevance, and he 16 also situates it under necessity. It doesn't really have 17 a proper home in the Mohan -- the formal Mohan criteria. 18 Relevance is not about reliability, and 19 necessity is not about reliability. They are -- they are 20 independent legal terms of art; that we know what they 21 mean. And so reliability has got to be pulled out and 22 given a separate life of its own, it seems to me, based 23 on the learning that has evolved since Mohan. 24 And you don't have to look much farther 25 than -- than the Driskell Inquiry. There's -- there was

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1 a very, very helpful panel discussion at the Driskell 2 Inquiry, and I would recommend it to you, where six (6) 3 forensic scientists all who -- who testified in various 4 areas of forensic science were all pulled together into a 5 panel to talk about whether forensic scientists apply the 6 Daubert criteria or not. Or do they just get up there 7 and give their opinions based on -- on whatever the 8 culture in their office happens to be at any particular 9 moment. 10 Do they really insist on -- on peer review 11 and double-blind testing and all the reliability tests 12 that -- that have been established in -- in -- in the 13 Daubert jurisprudence. 14 And it's quite clear they don't. And they 15 -- and they were very frank, these experts, in 16 acknowledging that forensic sciences is -- is almost like 17 a -- sort of a cowboy frontier area of science where 18 they're not following the scientific method. They're not 19 insisting on proper validation of their work before they 20 -- they spout these opinions in courtrooms. 21 And so the -- the -- if you read that -- 22 that panel discussion, it will send a chill up your 23 spine; that we're allowing these people to testify 24 without insisting on strict scientific validity before 25 they're allowed to give an opinion.

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  1                 It's got to be remembered that opinions
  2  are an exceptional form of evidence in the common law. 
  3  And so we develop strict admissibility criteria before we
  4  allow people to come in and usurp the function of the
  5  jury by giving opinion evidence.
  6                 So I think there's got to be a rigorous
  7  application of -- I wouldn't even call it reliability,
  8  I'd call it scientific validity.  Are -- are these
  9  opinions that some expert is proposing to give to usurp
 10  the normal function of the trier of fact, do they have
 11  scientific validity, and they should be -- they should be
 12  held to the burden of establishing the scientific
 13  validity of their opinions before they're allowed to make
 14  them.
 15                 MR. MARK SANDLER:   Well --
 16                 COMMISSIONER STEPHEN GOUDGE:   Is it of
 17  any concern, Professor Code, I mean, now I think of the
 18  traditional area of science and the expert from that area
 19  being called, the first step -- really the only step --
 20  is the qualification of the expert, training experience,
 21  et cetera.
 22                 Beyond that, if the field is well known,
 23  the evidence begins.  There will be on the thesis that
 24  we're discussing now, a voir dire in virtually every
 25  case, albeit within traditional areas of science, about

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1 the methods used by that particular scientist, albeit 2 within the realm of well-known science. Is that 3 practical impact of concern to you? 4 DR. MICHAEL CODE: No, I -- it -- because 5 what -- what happens on the voir dire in those areas of 6 established science whereas you say, it's pretty quick 7 and -- and simple, is this an established science and are 8 you an expert in that field; is what -- what a good judge 9 and a good Crown or whoever's leading the evidence of 10 this defence evidence will do is they will tell the judge 11 what the scope of the opinion is that they seek to elicit 12 from the expert. 13 The expert can't make the -- the judge 14 can't make a decision on admissibility until he or she is 15 told, Here's the opinion I'm seeking to elicit. 16 COMMISSIONER STEPHEN GOUDGE: But won't 17 this debate get into the methodology used to yield the 18 opinion? 19 DR. MICHAEL CODE: But the issue is, is 20 that opinion that the -- that the Crown or the defence is 21 seeking to elicit from this expert, within the 22 acknowledged field of scientifically valid opinion that 23 has been established, or are what we really doing, what 24 you posited in your question, seeking the -- asking the 25 expert to draw an inference from tried and tested

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1 observations, I looked under the microscope and I saw X 2 in the tissue -- tissue sample, it ta -- I saw bleeding, 3 or bruising, or petechia, or whatever, and -- and what 4 conclusion do you draw from that. 5 And the issue is whether these conclusions 6 that they're drawing from that are within the 7 acknowledged field of scientific expertise. So I think 8 the -- the proponent of the -- of the witness, who's got 9 to make it very clear at the admissibility stage what the 10 opinion is that they are seeking and whether that opinion 11 that they are seeking is within the established field of 12 scientific validity that has come to be accepted with 13 this expert. 14 I mean again, the -- the hair and fibre 15 evidence in Driskell and Morin is a classic illustration 16 of this, that the -- the expert gets on the stand and 17 says, I looked under a microscope and I looked at these 18 two (2) hairs, and they are microscopically similar to 19 me, and that was an established body of expertise at that 20 time that forensic scientists traditionally gave, and 21 there was no vetting of it at the admissibility stage. 22 But then what they do once they get on to 23 the stand is they give a second opinion. 24 COMMISSIONER STEPHEN GOUDGE: Right. 25 DR. MICHAEL CODE: They are not just

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1 giving an opinion about their observations under the 2 microscope. They're giving an opinion about the 3 likelihood of that hair actually coming from that 4 deceased's body based on propositions about the -- the 5 numerical frequency of that hair occurring in the general 6 populous which is something they know nothing about. 7 COMMISSIONER STEPHEN GOUDGE: Right. 8 DR. MICHAEL CODE: It has never been 9 tested scientifically. 10 COMMISSIONER STEPHEN GOUDGE: Right. 11 DR. MICHAEL CODE: It's based entirely on 12 hunch and guesswork, and the rough culture of the office, 13 so if -- if the Crown, in -- in Driskell, had been very 14 clear at the admissibility stage, that I am seeking an 15 opinion not just about visual microscopic similarity when 16 I look at these two (2) hairs, but about the likelihood 17 of -- of that being a match for the deceased, and 18 probabilities of -- of coincidental matches in the 19 general population, the judge would have been able to put 20 a stop to it at that stage and say, No, you're not 21 eliciting that second opinion unless you can establish 22 it's scientific validity. 23 24 CONTINUED BY MR. MARK SANDLER: 25 MR. MARK SANDLER: Well, just -- just

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1 following up on what you've just said for a moment, 2 Professor Code, is what you're saying any different than 3 suggesting that forensic pathology should now, perhaps in 4 the light of some of the evidence that -- that's been 5 developed here, be subjected to the same analysis that 6 novel science should be subjected to? 7 DR. MICHAEL CODE: Yes, if -- if what 8 established science is seeking to do is to give opinions 9 that go beyond the scope of the scientific established 10 validity of the profession that -- that have not been 11 properly tested and -- and subjected to double-blind 12 studies or peer review in the normal Daubert way. 13 MR. MARK SANDLER: All right. Professor 14 MacFarlane...? 15 DR. BRUCE MACFARLANE: I agree with much 16 of what has already been said, so I can confine my 17 comments to two (2) quick points. First of all, I am not 18 as sure that reliability is embedded in -- in Mohan, 19 either on the basis of necessity or reliability. 20 And my concern -- not so much concern, but 21 my query on that arises primarily from the Trochym 22 decision, in particular the descending judgment of 23 Justices Bastarache, Abella, and Rothstein, where they 24 note that it might be appropriate to extend reliability 25 to establish discipline. So at least in their mind it

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1 appears that they were assuming that it didn't apply -- 2 reliability did not apply to establish disciplines. 3 So that's the first point. I'm not as -- 4 I'm not as sure about it being embedded. 5 And secondly, it -- 6 MR. MARK SANDLER: Or sufficiently 7 embedded. 8 DR. BRUCE MACFARLANE: Or sufficiently 9 embedded. 10 Secondly, it seems to me that there ought 11 to be a reliability test of some sort. I'm not sure of 12 the level or height of that test. I don't think that it 13 should be a terribly high test, but I think that it 14 should be included in the assessment of the admissibility 15 of the evidence. 16 MR. MARK SANDLER: All right. 17 DR. MICHAEL CODE: Mark, if I could just 18 intervene, I should be clear that I agree with Bruce. It 19 is not as clear as it should be but the -- again, this is 20 common law incrementalism. Justice Sopinka was writing a 21 new judgment in which the courts were starting to get 22 stricter about the admissibility of opinion evidence. 23 Opinion evidence had got a little bit 24 loose and out of control in the 1980s. There was too 25 much opinion evidence being given, and Justice Sopinka

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1 was clearly trying to reign it in, in setting some new 2 thresholds. 3 But very clearly, under both relevance and 4 necessity, which are two of his major headings, he 5 discusses reliability. And then at the end of his 6 judgment, there's this funny little sentence where he 7 talks about the threshold criteria of reliability. Well 8 -- and you go back to his original framework and it's not 9 one of the threshold tests, but he clearly saw it as 10 being embedded in relevance and necessity. 11 So what needs to happen now from a common 12 law incrementalism approach is a court needs to come back 13 at it again and say, Here's the next step in the 14 evolution of the common law. We need to be very clear 15 that scientific validity is always one (1) of the 16 thresholds. That's what is inherent in the general 17 principles. And our experience with inquiries like -- 18 like Kaufman, Lesage and Goudge, is that this is an area 19 where we need to be much clearer than we were. 20 MR. MARK SANDLER: Okay. Mr. McDermott, 21 let's assume that -- that there was a spirited debate at 22 the -- at the voir dire on the admissibility of this 23 evidence and -- and the Crown prevailed, and the trial 24 judge ruled that the evidence will be heard by the jury. 25 And then defence counsel says, All right,

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1 if you're going to hear that evidence, it's fine. But 2 you heard that this is definitely an interpretive science 3 as -- as opposed to a science that attracts any level of 4 certainty. And you know, Your Honour, based upon various 5 inquiries that have been held and the jurisprudence, that 6 there's always a concern about juries regarding science 7 as infallible and -- and giving it -- giving it a weight 8 that it may not deserve. 9 So I'm urging upon you, trial judge, a 10 special instruction to be given in these kinds of cases 11 to the jury, that emphasizes that -- that science is not 12 infallible, there's; there's an inclination based upon 13 history to -- to regard it as infallible when it may not 14 deserve that kind of weight. One should appreciate its 15 limitations very, very carefully. One should recognize 16 that it's not susceptible to any level of -- of 17 certainty. 18 And the judge turns to you and says, How 19 do you feel about that kind of instruction being given in 20 the case? 21 MR. PAUL MCDERMOTT: Well, I'll steal Dr. 22 Pollanen's nomenclature. I think it's an evidence-based 23 charge to the jury and then that is that the -- if I call 24 a Vetrovec witness, I can hardly say at the end, really - 25 - well, you do -- I guess it depends on where the line

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1 is, but if it's a clear Vetrovec witness with a long 2 criminal record, that's not come -- that's not going to 3 be buried during the trial, and neither is the 4 controversy in the science. 5 And so it doesn't send in the Crown, I 6 don't think, to object when -- when the evidence will be 7 before the jury, whether it's in-chief or cross, or as -- 8 as Professor Code says, the risk you take in -- in your - 9 - your adversary having the next word. If the Crown 10 takes the view that I'm not -- I'm going to skirt around 11 this issue and hopefully nobody's going to raise the idea 12 that this was controversial, Mr. Code's going to raise 13 it, and if the defence tries to do something equally 14 unwise, it's going to be fixed in re-examination. 15 So I don't -- I don't see that the -- any 16 resistance by the Crown, when there's a patent truth in 17 the evidence that there is a real controversy here, that 18 the jury should be told that. And no -- I draw the 19 Vetrovec because if the -- if the -- if he's a cohort, 20 and it just so happens your case rests on the guy, and 21 he's got a long, long criminal record, it's -- you don't 22 -- you don't pretend like he doesn't have that in chief. 23 It -- it -- you try and do the best you 24 can to put it in the proper context, to allay the cross- 25 examination that's coming and the charge from the judge.

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1 I don't see any difference here. 2 MR. MARK SANDLER: All right. I -- I 3 should say that there are a lot more question that I 4 have, and could be asked, but I've reached the limits of 5 -- of the time permitted to me. 6 So I want to ask each of you, if you 7 would, to reflect upon whether you wish to make any 8 recommendations or suggestions to the Commissioner to 9 inform his report, and I'll start with you, Mr. Lindsay, 10 if I may. 11 MR. PAUL LINDSAY: I -- I don't have any 12 specific recommendations, Mr. Commissioner. We've -- the 13 Ministry certainly very much looks forward to your -- to 14 your -- your recommendations. 15 Certainly we'd be very interested in any 16 thoughts you might have on the -- on the -- the 17 initiatives that we've -- we've started down the road on, 18 and if there are any suggestions for improving those, 19 making them more effective, certainly would be very 20 interested in hearing about that. 21 COMMISSIONER STEPHEN GOUDGE: Thanks, Mr. 22 Lindsay. 23 24 CONTINUED BY MR. MARK SANDLER: 25 MR. MARK SANDLER: Mr. McDermott...?

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1 MR. PAUL MCDERMOTT: I don't -- as Mr. 2 Sandler pointed out, I was on the group that came up with 3 the initiatives. 4 We -- we had a spirited debate about many 5 of the issues, and -- and we hope that -- that they're -- 6 they assist the Commissioner. 7 I have nothing to add, other than the 8 proposals we've tried to come up with prior to, and 9 during, the -- the hearings. 10 MR. MARK SANDLER: Ms. Edwardh? 11 MS. MARLYS EDWARDH: I think I've all -- 12 already got my foot in the door in what I feel very 13 strongly about, and that of course, Mr. Commissioner, the 14 -- was the two (2) pronged requirement that there be a 15 scientific consensus for what constituted a reviewable 16 post-mortem, and that in every single case where there is 17 a suspicious death dealing with pediatric pathology, that 18 there be as close to a double-blind examination with 19 independent conclusions available. 20 MR. MARK SANDLER: Professor 21 MacFarlane...? 22 DR. BRUCE MACFARLANE: Aside from the 23 points that I made during the course of my testimony, I 24 don't have anything further. 25 I will have some further points to provide

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1 to you, Mr. Commissioner, on Thursday on another panel. 2 COMMISSIONER STEPHEN GOUDGE: Thanks, Mr. 3 MacFarlane. 4 5 CONTINUED BY MR. MARK SANDLER: 6 MR. MARK SANDLER: Professor Code? 7 DR. MICHAEL CODE: Two (2) points. First 8 of all, the -- I'd -- I'd encourage the Commission to 9 build on the work of Commissioners Kaufman and Lesage, in 10 Morin and -- and Driskell. 11 That there -- the -- there is a real 12 problem here we've got in the forensic science community; 13 that they -- that they have not been subjected to the 14 general rigours of the scientific method as to the degree 15 they should be, and we've seen it over and over again in 16 these wrongful convictions inquiries, and it's got to be 17 driven home to the forensic science community that we 18 expect high standards of scientific validity from them, 19 just as we do in medicine, and drugs, and any other area 20 of -- of science. 21 And secondly, I have always believed that 22 the criminal justice system works best when the 23 adversarial people in the field, who are involved in the 24 competitive business of litigating, are subject to 25 oversight from senior man -- managers who are more

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1 neutral and detached, and more experienced, and who watch 2 over the justice system, and they are accountable, as 3 managers, for the mistakes that get made by the -- by the 4 -- the people in the field who are -- are in the cauldron 5 of the trial -- trial room where mistakes do get made in 6 the -- in the heat of battle. 7 And I would strongly suggest that you look 8 carefully at management oversight, and -- and have there 9 been failures of management oversight in these cases. 10 MR. MARK SANDLER: All right. Thank 11 you -- 12 COMMISSIONER STEPHEN GOUDGE: Before 13 turning to other counsel, Mr. Sandler, let me just ask a 14 couple of precise questions about suggestions that have 15 been made to us, and see if any of the five (5) of you 16 have any thoughts that you would be willing to share. 17 The first is, the scientists make no bones 18 about saying quite openly that this area of forensic 19 pathology is, at least in the hard cases, an interpretive 20 science. 21 That is, it is an uncertain science. In a 22 case like a forensic -- a pediatric forensic death, which 23 are the hardest cases that the discipline faces, would it 24 be wise to encourage, or perhaps even require, that the 25 formal expert report, the post-mortem report, actually

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1 contains a boilerplate to recite the uncertainty in the 2 science? 3 The second question is, if the uncertainty 4 arises in the area, for example, that Mr. Sandler put to 5 you in his hypothetical; that is within this area of 6 interpretive science, there is a specific well-known area 7 of controversy, shaken baby, would it also be wise to 8 either encourage or mandate that the expert report elude 9 to both sides of the controversy and then locate the 10 opinion within the controversy? 11 Or is that to require too much? Should 12 that simply be left to the adversary process? 13 Anybody want to -- Ms. Edwardh...? 14 MS. MARLYS EDWARDH: Yeah, I mean, it 15 seems that what you're asking is the simple question. 16 When the opinion has to be qualified because of the 17 nature of what it is or it, in fact, is part of a very 18 real and substantial controversy -- 19 COMMISSIONER STEPHEN GOUDGE: Right. 20 MS. MARLYS EDWARDH: -- well, it seems to 21 me, one would expect a competent professional expert to 22 so qualify that opinion in their report, so it would 23 convey to everyone that there were limits to the opinion. 24 And I mean I want to just underline one 25 (1) other thing. In our approach to science and what is

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1 science, we have always said whether it was generally 2 accepted within the scientific community from the old Fry 3 test to its inclusion in Daubert. 4 COMMISSIONER STEPHEN GOUDGE: Right. 5 MS. MARLYS EDWARDH: That's a relevant 6 matter. So, if it's not generally accepted and there is 7 a real and probable dispute, surely a competent expert 8 would want to put it out front. 9 COMMISSIONER STEPHEN GOUDGE: Okay. 10 Either Mr. Lindsay or Mr. McDermott have any thoughts on 11 that? 12 MR. PAUL MCDERMOTT: I -- I think that -- 13 I guess it's sort of what -- what Marlys said, it -- it's 14 really up to the expert -- 15 COMMISSIONER STEPHEN GOUDGE: Right. 16 MR. PAUL MCDERMOTT: -- because they -- 17 it's what I -- I said earlier. We, only as litigators, 18 get in -- we -- we become educated on an certain level 19 and the -- there's a real danger in advocacy of 20 pretending like you know more than the expert is -- it's 21 when you can potentially really not do a good job as a 22 litigator. 23 So whether or not the -- there's 24 sufficient uncertainty, as you said, or sufficient 25 controversy for both those points to be put in, I think

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1 we'd have to leave it for the scientists. 2 I -- think that there -- there's certainly 3 -- there'll be admissibility issues in -- in that you 4 could imagine, once they're included because if you get a 5 shaken baby case where they're sure. They say there's 6 uncertainty in the science, they acknowledge that, but 7 they say, Not in this case. 8 COMMISSIONER STEPHEN GOUDGE: Right. 9 MR. PAUL MCDERMOTT: I mean, surely the 10 defence isn't going to allow the Crown to say, Well, 11 there's -- this is a very controversial area, sir, but 12 boy, my case is not even close to that. 13 COMMISSIONER STEPHEN GOUDGE: Right. 14 MR. PAUL MCDERMOTT: And then -- and so 15 the -- there are real issues that arise when -- when the 16 lawyers themselves opine about what a science should -- 17 COMMISSIONER STEPHEN GOUDGE: Right. 18 MR. PAUL MCDERMOTT: -- should put in. 19 COMMISSIONER STEPHEN GOUDGE: Right, 20 that's helpful. 21 MR. PAUL LINDSAY: And -- 22 COMMISSIONER STEPHEN GOUDGE: Sorry, Mr. 23 Lindsay. 24 MR. PAUL LINDSAY: I -- if I could just 25 throw in my two (2) cents' worth, as well. It seems to

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1 me that the report should contain any legit -- any 2 limitations on the strength of the opinion, however 3 that's done, whether it's because of a controversy in -- 4 in the scientific community or uncertainty in the 5 science. 6 It seems to me that the report should 7 contain any limitations on the strength of the -- of the 8 opinion. Certainly the Crown wants to know that before 9 important decisions are made, and I assume that defence 10 would like to see that, as well. 11 And that would work both ways, of course, 12 you know, because as I say -- 13 COMMISSIONER STEPHEN GOUDGE: Right. 14 MR. PAUL LINDSAY: -- I think it's 15 important that, you know, that we encourage a climate of 16 professionalism amo -- and I'm not suggesting there isn't 17 -- but we should continue to encourage a climate of 18 professionalism amongst our -- our -- the, you know, 19 scientific community, that they're not -- they're not to 20 be -- they're not to be anything but independent opinion 21 givers. 22 COMMISSIONER STEPHEN GOUDGE: Right. 23 Professor MacFarlane...? 24 DR. BRUCE MACFARLANE: It seems to me 25 that the inclusion of a boilerplate clause like that is -

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1 - is going in the wrong direction, and I say that for 2 this reason, that one (1) of the outcomes that I would 3 hope would emerge from this Inquiry is an understanding 4 on the part of individual forensic pathologists of the 5 need to understand and express and confirm the 6 limitations on their own, as a matter of professional 7 responsibility. 8 COMMISSIONER STEPHEN GOUDGE: Right. 9 DR. BRUCE MACFARLANE: I wouldn't want to 10 see a discussion between a lawyer where the lawyer says, 11 Well, where did this come from, what's -- what's this all 12 about, this -- this particular clause. 13 And the forensic pathologist says, Well, 14 yeah, I got to put that in -- 15 COMMISSIONER STEPHEN GOUDGE: Right. 16 DR. BRUCE MACFARLANE: -- but here's -- 17 here's what I really think. 18 COMMISSIONER STEPHEN GOUDGE: Right. 19 DR. BRUCE MACFARLANE: I think that the - 20 - I think that the -- the qualifications -- 21 COMMISSIONER STEPHEN GOUDGE: Good point. 22 DR. BRUCE MACFARLANE: -- the caveat 23 should spring from the heart. 24 COMMISSIONER STEPHEN GOUDGE: Right. And 25 that's essentially what Mr. Lindsay said, you know.

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1 Where the scientist has a concern; that should be 2 articulated as opposed to boilerplate adopted from Dianne 3 Durham (phonetic) in effect? 4 DR. BRUCE MACFARLANE: Exactly. 5 MS. MARLYS EDWARDH: Justice Goudge told 6 me so. 7 COMMISSIONER STEPHEN GOUDGE: Yeah. 8 Professor Code, anything to add? 9 DR. MICHAEL CODE: I don't think so. I 10 mean, if -- if the jurisprudence evolves in the way -- 11 the way we've suggested, that the four (4) Daubert 12 reliability criteria become firmly imbedded in the common 13 law as requirements of scientific validity, for 14 scientific opinion evidence, then the -- the scientific 15 community will become sensitized to this. 16 And as -- as Paul McDermott put it, you 17 can -- you should be able to expect that any self- 18 respecting scientist is going to want to say, Look, this 19 is a controversial area; it's not widely accepted. There 20 -- there are going to be issues with the fourth Daubert 21 criteria and put that up front in his or her opinion. 22 COMMISSIONER STEPHEN GOUDGE: That's 23 helpful. Thank you. Thanks, Mr. Sandler. 24 MR. MARK SANDLER: Not at all. I got to 25 ask, through you, the questions I didn't have time to

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1 ask. So I'm very grateful. 2 Ms. Greene...? 3 4 QUESTIONED BY MS. MARA GREENE: 5 MS. MARA GREENE: Hi, good afternoon. My 6 name is Mara Greene and I'm counsel for the Criminal 7 Lawyers' Association. 8 And there's one (1) area in particular 9 that I'd like to deal with, and I'll start with Ms. 10 Edwardh and then put it to the rest of the panel sort of 11 one-by-one. 12 And we've heard evidence throughout this 13 Inquiry about offers for guilty pleas being made that are 14 so good that persons charged can't refuse them in cases 15 where the Crowns are starting to have some concerns about 16 their case. 17 In particular, situations where people are 18 charged with murder, first or second, and then offered 19 deals to lesser offences, be it infanticide or 20 manslaughter or criminal negligence, to nominal time in 21 custody, if at all. 22 And there's been some concern that what 23 happens that people who are not guilty may still take 24 these deals because of the certainty of conclusion 25 associated with them and the risk of not taking them.

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1 And what I'd like to sort of come out of 2 this Inquiry is some process to ensure that that's not 3 happening. 4 And I'm wondering, Ms. Edwardh, if you can 5 speak to whether or not you agree with this 6 recommendation: That when such an offer is made that 7 there be a process in place where the lawyer can approach 8 either a senior Crown or a panel and have them approve 9 the deal or look at the case for a reasonable prospect of 10 conviction. 11 MS. MARLYS EDWARDH: I would very much 12 agree with that proposal. And that was one (1) of the 13 reasons that I asked the question in respect of the 14 initiative: Was the initiative open to defence counsel? 15 Because I would assume that the group of 16 senior Crown counsel who are supervising the case would 17 be open to review any such proposed plea bargain. 18 I mean, at the end of the day, an 19 extortionist plea bargain is just that. People will look 20 at their lawyers and say, All right, you want written 21 instructions for me to get a year? Fine, I'll give them 22 to you, because in lieu of serving, you know, a life 23 sentence, two (2) less a day is not something that anyone 24 can resist. 25 So, I mean, I know what our ethics are.

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1 Our ethics are very clear, we can't plead them guilty. 2 But all the lawyer has to do is say, Okay, write it out 3 and sign it, and then it's in your file, and that's what 4 is happening in these cases. 5 So you need a forum to go forward to 6 senior Crown counsel and say you're very troubled by the 7 plea; offer that you want, in fact, a review undertaken 8 because you think that the reason it's on the table is 9 because they can't get a conviction in the first place. 10 MS. MARA GREENE: Thank you. Mr. 11 McDermott, the initiatives that have been put forward by 12 the Crown attorneys, does this process fit into that 13 initiative? 14 MR. PAUL MCDERMOTT: I think it -- 15 MS. MARA GREENE: Or could it? 16 MR. PAUL MCDERMOTT: I think it does, in 17 addition to what's already in place about the -- the 18 Crown having an obligation to review its case 19 continually. 20 What -- what the process also gives the 21 Crown is access to the -- the sort of education that 22 would perhaps inform them that they don't have a second- 23 degree or first-degree murder in that case. 24 And so that then -- then that would bring 25 them back to their obligation to continually assess

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1 whether or not they have a first or second-degree murder 2 because the -- part of your question is that it's being 3 used as this overwhelming consequence that -- that forces 4 a plea to something that -- that they shouldn't be 5 pleading guilty to. 6 But -- but we hope that if this ongoing 7 process works that the -- the first or second isn't on 8 the table anymore, to be used as such, if there's no 9 legitimate basis for it being there. 10 MS. MARA GREENE: I appreciate that, but 11 you wouldn't have a problem with the lawyers going to 12 that Committee to say, In light of this deal, can you 13 please consider the reasonable possible of conviction to 14 have an independent view of that case? 15 MR. PAUL MCDERMOTT: No. I -- I think 16 Mr. Lindsay indicated earlier that -- that access to -- 17 to the Committee, and the resources of it from the 18 defence in this situation, that he's not opposed to that. 19 MS. MARA GREENE: Thank you. Mr. 20 Lindsay, is that... 21 MR. PAUL LINDSEY: Yes, certainly -- you 22 know, as I think I indicated earlier, I mean, it's the 23 kind of thing that happens even without a Committee. 24 Sometimes, you know, defence counsel will approach the 25 Crown attorney directly because they're -- they're having

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1 perhaps an issue with the -- the assistant on the case. 2 And certainly, you know, if the -- the 3 Committee is doing it's work, it's continually working 4 with the -- the Crowns on the case to assist them in 5 assessing reasonable prospect of conviction. 6 I mean, these things, assuming they arise 7 at all, arise because somebody hasn't done an appropriate 8 assessment of reasonable prospect of conviction. And 9 it's my hope that -- and I don't know to the extent that 10 it happens, if at all, but certainly -- our policy is 11 clear, Crown has a -- from day one, an on -- on-going 12 obligation to assess the reasonable prospect of 13 conviction. 14 After all, the police lay the charge. We 15 then have the obligation to review it, and that continues 16 to the end of the case. And certainly I would expect 17 that that is one (1) of the issues that the Committee 18 will be discussing with counsel. 19 MS. MARA GREENE: Thank you, I have no 20 further questions. 21 COMMISSIONER STEPHEN GOUDGE: Thanks, Ms. 22 Greene. 23 MR. MARK SANDLER: Ms. Fraser...? 24 25 QUESTIONED BY MS. SUZAN FRASER:

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1 MS. SUZAN FRASER: Good afternoon. My 2 name is Sue Fraser, and I'm here on behalf of an 3 organization called Defence for Children International 4 which is an organization focussed on promoting the rights 5 of children. 6 And one (1) of the issues I've been 7 raising with some of the panellists have been the 8 parallels in child protection proceedings. 9 And so I had a question about the 10 education of counsel both on the Crown and defence side, 11 and the parallel for that on a cro -- child protection 12 proceeding because what we have seen in these cases, is 13 that sometimes the child protection proceedings proceed 14 sort of in concert or in parallel to the proceedings, and 15 sometimes the consequences of those proceedings -- 16 children being adopted out -- are much more long lasting 17 than the effects of the criminal prosecution. 18 So my question is a very simple one with 19 that background is -- is would there be anything that 20 would deter initiative -- all right, can you see any 21 detriment to an initiative that would involve both 22 lawyers doing child protection work, and Children's Aid 23 lawyers who are doing -- who are prosecuting Children's 24 Aid proceeding where there's an underlying homicide or -- 25 or suspected homicide, of being involved in a -- a sort

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1 of joint education initiative? 2 If that were to be a recommendation of the 3 Commission, is there any reason why you wouldn't include 4 lawyers practicing in the parallel forum in understanding 5 that evidence? And I'm thinking about under -- the sort 6 of raising the scientific literacy in the other parallel 7 proceeding. 8 Ms. Edwardh...? 9 MS. MARLYS EDWARDH: There's something 10 wrong with being in the middle here. Of course, the 11 answer has to be no. I mean, to the extent that the same 12 issues are engaged, and to the extent that the same 13 problems in understanding the evidence could exist, I 14 can't see what an -- where there would be an impediment 15 to access to education and training -- I can't see any 16 reason to argue for an impediment. 17 MS. SUZAN FRASER: Anyone else? 18 MR. PAUL MCDERMOTT: Certainly from the 19 Crown's point of view, we would agree. 20 MS. SUZAN FRASER: All right. Thanks. 21 That -- just a simple point, thank you. 22 COMMISSIONER STEPHEN GOUDGE: Thanks, Ms. 23 Fraser. 24 MR. MARK SANDLER: Commissioner, that 25 completes the questioning of this roundtable as

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1 constituted. As I indicated at the beginning of the day, 2 we'll be asking Ms. Edwardh and Professor Code to remain 3 for this afternoon's roundtable. 4 And I do want to thank Mr. Lindsay, Mr. 5 McDermott, and Professor MacFarlane for their valuable 6 contribution to this roundtable, and we'll look forward 7 to seeing Ms. Edwardh and Professor Code this afternoon. 8 COMMISSIONER STEPHEN GOUDGE: Yes. Let 9 me on behalf of everybody, echo the thanks Mr. Sandler's 10 given to all five (5) of you. It's been very helpful. 11 So let's adjourn now for an hour and 12 fifteen (15) minutes. 13 14 --- Upon recessing at 12:23 p.m. 15 --- Upon resuming at 1:44 p.m. 16 17 THE REGISTRAR: All rise. Please be 18 seated. 19 COMMISSIONER STEPHEN GOUDGE: Mr. 20 Sandler...? 21 MR. MARK SANDLER: Good afternoon, 22 Commissioner. 23 This afternoon we're going to be talking 24 about some of the challenges associated with defending 25 pediatric forensic pathology cases under Legal Aid. And

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1 we have the benefit not only of returning Professor Code 2 and Ms. Edwardh, but two (2) new panellists who I'll now 3 introduce. 4 Mr. Thomas is the Director of Strategic 5 Research at Legal Aid Ontario. Between 2004 and 2007, he 6 was the Director of Policy and Research for the Ipperwash 7 Inquiry, where he led the Inquiry's Policy Development 8 process. Prior to the Inquiry, he was Legal Aid 9 Ontario's first Policy Director and was responsible for 10 Legal Aid and justice system policy development, business 11 and strategic planning, Federal/provincial relations in 12 establishing a number of pilot projects. 13 He has a Master's of Law from New York 14 University, an LLB from Queen's University, and his 15 Bachelor of Arts from the University of Toronto. 16 Good afternoon, Mr. Thomas. 17 We're also joined by Rob Buchanan, who is 18 Legal Aid Ontario's Vice President for the GTA Region. 19 He went to law school at the University of Windsor and 20 was called to the Bar in 1980. 21 He joined Legal Aid in 1983 where he 22 conducted settlement conferences, acted as Family Court 23 duty counsel and criminal duty counsel, developed 24 policies, trained interviewers and managed departments 25 before becoming the Toronto area Director in 1993.

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1 Mr. Buchanan also co-initiated and 2 developed the Big Case Management Program. He was on the 3 executive of the Area Directors' Association until 2001 4 and it was in December of 2001 he became the Vice 5 President, Client Legal Services at the provincial 6 office. 7 Good afternoon, Mr. Buchanan. 8 MR. ROB BUCHANAN: Good afternoon. 9 MR. MARK SANDLER: Thank you for coming. 10 11 CHALLENGES ASSOCIATED WITH DEFENDING PEDIATRIC FORENSIC 12 PATHOLOGY CASES UNDER LEGAL AID PANEL: 13 14 MICHAEL CODE 15 MARLYS EDWARDH 16 NYE THOMAS 17 ROB BUCHANAN 18 19 QUESTIONED BY MR. MARK SANDLER: 20 MR. MARK SANDLER: Well, I'm going to, as 21 promised, discuss some of the challenges of defending 22 cases on Legal Aid. Before doing that I wish to 23 acknowledge Professor Sherrin's research paper "Defending 24 a Pediatric Death Case: Problems and Solutions" which 25 addresses some of the issues in this area, and respecting

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1 which he makes certain recommendations. 2 So if I can turn to you, Mr. Buchanan, 3 first. One (1) of the issues that has been raised here -- 4 and we had a bit of a spirited discussion about it in 5 your absence this morning -- is whether or not Legal Aid 6 should impose any competency preconditions for defence 7 counsel who will be defended these complex and difficult 8 pediatric death cases. 9 What are your views? 10 MR. ROB BUCHANAN: Well, we've had that 11 debate ourselves of course. 12 We have recently, in October, established 13 a panel of standards for those cases, and we call it 14 "Extremely Serious Criminal Cases Panel" and we have put 15 some restrictions on who can take those cases. So we've 16 gone down -- we have gone down that road. 17 We're finding that as with any panel of 18 standards when you develop them, they're perhaps -- you 19 start them out to test, because you also don't want to 20 discourage good lawyers from taking those cases. 21 And so we're actually in the process of 22 reviewing them already, but we've made that determination 23 that the consequences to the accused are -- are so 24 serious that we feel that there should be a minimum level 25 of qualification for those cases.

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1 MR. MARK SANDLER: And could you just 2 explain to the Commissioner two (2) things: What makes 3 it an extremely serious case within the criteria that 4 you've described, and second of all, what are the 5 conditions that you have established for people members 6 of that panel? 7 MR. ROB BUCHANAN: Sure. Murders, 8 dangerous offender applications, any -- any charge with a 9 minimum, mandatory minimum of four (4) years, and also 10 the new terrorist provisions are what's included in it. 11 The standards that we've set now are five (5) years of 12 continuous criminal practice or an equivalent. So if you 13 had mixed practice you would have to do say eight (8) to 14 ten (10). 15 We ask that you've done a hundred (100) -- 16 a hundred (100) days of contested trial or contested 17 prelim. And I'm just -- also that you've acted as 18 counsel, co-counsel or junior counsel on at least one (1) 19 jury trial; that you've conducted a minimum of five (5) 20 voir dires with issues of similar fact, statements, 21 hearsay, and/or expert evidence; and that you've 22 conducted a minimum of five (5) contested charter 23 applications. 24 MR. MARK SANDLER: All right. And -- and 25 what are the implications of being -- of taking a case

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1 that is so designated? What does it mean, practically 2 speaking? 3 MR. ROB BUCHANAN: Well practically it 4 means that you -- you can take the case. If -- if you're 5 -- if you're not on this panel, you wouldn't be allowed 6 to accept such a pa -- a case, as of October. 7 MR. MARK SANDLER: All right. Mr. 8 Thomas, from a policy perspective, what do you say about 9 the larger question that I raised, namely should Legal 10 Aid be more active in setting minimum competency 11 standards for defence counsel who are doing these kinds 12 of cases? 13 MR. NYE THOMAS: Essentially our view, 14 and my personal view, is that we should. Legal Aid 15 Ontario, as with most other major legal aid programs 16 across the world, are moving towards establishing quality 17 standards for all of its service providers. 18 The premise -- I mean the -- the rationale 19 for this is that, you know, we're a client service 20 organization, we're spending public money, therefore we 21 have an obligation to warrant at least a minimum standard 22 of quality of the people who -- who provide the service 23 on our and on client's behalf. 24 That standard that Rob is talking about is 25 just the latest of eight (8) panel standards we have

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1 across all of our areas, including family, criminal, 2 refugee law, for Duty Counsel. And in fact, they're 3 generally -- I mean generally well received by the Bar as 4 a way to ensure that the people who are doing work in 5 those specific areas, as I say, have the competency 6 requirements to do it. 7 It's a way to, as I said -- maybe to sort 8 of simply put it, it's a way to ensure that the pool of 9 people who accept Legal Aid certificates, you know, are 10 capable of doing the job. You know, there have been 11 situations in the past, not often but -- but common 12 enough, where you will have, you know, say a family 13 lawyer accepting a -- a criminal certificate, with the 14 result being very poor for the client, and for the system 15 as a whole. 16 So the quality standards are a way to try 17 to minimize that risk. They aren't perfect, but it's a 18 way of minimizing the risk that -- that an unqualified 19 lawyer will be providing services to a client on a 20 complicated case. 21 MR. MARK SANDLER: All right. 22 COMMISSIONER STEPHEN GOUDGE: What is the 23 tariff implication, Mr. Thomas, for that? 24 MR. NYE THOMAS: It's -- there are no -- 25 COMMISSIONER STEPHEN GOUDGE: There is no

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1 tariff implication? 2 MR. NYE THOMAS: -- there's no -- there's 3 no, I guess, bonus for being a member of this panel. 4 Essentially what -- what the panel standard -- say the 5 basic criminal panel, they say that in order to accept a 6 criminal certificate, you have to have met the criterion 7 in that standard. 8 So, too, for the extremely serious 9 criminal panel. In order to accept a certificate for 10 what we designate as an extremely serious criminal case, 11 you have to have met the panel standards. If you don't 12 meet the standards, you can't accept a certificate for -- 13 for that -- for that case. 14 COMMISSIONER STEPHEN GOUDGE: Are you 15 going to monitor the uptake rates? 16 MR. NYE THOMAS: Yeah, yeah. It -- it 17 just -- 18 COMMISSIONER STEPHEN GOUDGE: It is 19 probably too early to tell whether these have any impact 20 on the uptake rates. 21 MR. NYE THOMAS: It's pretty early. It's 22 just since October. 23 COMMISSIONER STEPHEN GOUDGE: What about 24 the other panel qualifications? Are they of longer 25 standing?

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1 MR. NYE THOMAS: They're of longer 2 standing. 3 COMMISSIONER STEPHEN GOUDGE: Any impact 4 on the uptake rates there? 5 MR. NYE THOMAS: Yeah. Actually what -- 6 what the panel standards have tended to do is to -- 7 they've tended to cull our panellists. So -- so in the 8 past, a lawyer may have said just -- you know, almost 9 automatically put themselves down on the criminal panel, 10 the family panel, maybe the immigration panel. What the 11 panel standards really forced counsel to do is to, you 12 know, look at their own qualifications; see if they meet 13 the standards. 14 And in fact what has resulted in is a -- a 15 better list. A more live active qualified list of people 16 to do family work, criminal work, refugee work, whatever 17 the case may be. 18 We have not found that -- that -- this is 19 -- this is anecdotal; you can't prove this empirically -- 20 but our experience in managing the -- in developing and 21 managing the panel standards is that lawyers typically 22 tend to like them, because they have seen other lawyers 23 who they did not believe were qualified do say criminal 24 work. 25 So the panel standards in fact serve to --

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1 to eliminate some of the -- the part timers, or -- or 2 people who may not have been qualified. 3 COMMISSIONER STEPHEN GOUDGE: Okay. 4 Thanks. 5 6 CONTINUED BY MR. MARK SANDLER: 7 MR. MARK SANDLER: Professor Code, you've 8 heard what the conditions are to make your way onto this 9 panel. You raised concerns that we really aren't 10 addressing competency adequately. 11 Does this do the job for you? 12 DR. MICHAEL CODE: No. The -- the 13 criteria are a beginning, but they're -- they're 14 completely inadequate in my view. 15 I mean, I -- I -- many, many incompetent, 16 and unprofessional lawyers would make it through those 17 criteria without any difficulty at all. 18 In fact, probably the more incompetent and 19 the more unprofessional they are the more likely they've 20 conducted end -- endless amounts of useless motions or 21 overly -- overly long trials that should have been much 22 shorter and more focussed, so the criteria are not 23 getting at the right issues, but it's beginning. 24 I -- I like the idea. I like the fact 25 that we're moving towards a restricted panel or an

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1 enhanced panel for major complex cases for two (2) 2 reasons. First of all, because, as I said this morning, 3 it's an ethical obligation; you shouldn't be taking on 4 these cases unless you're -- you're competent to handle 5 them. 6 And as the law becomes more complex in 7 criminal procedure, criminal law has been extremely 8 complex. The standards of competency have gone up and 9 we've got to become much more concerned about whether 10 people have the ethical ability to take on complex 11 lengthy criminal cases. 12 So -- so that that's the simple primary 13 reason for taking this approach. But the secondary 14 reason, and I'm sure we'll get to this later, I don't 15 want to pre-empt where you're -- you're going, but once 16 you've got a restricted panel or an enhanced panel, or 17 whatever you're going to call it, then you can start 18 addressing the problems of under- funding in the system 19 which have led to the senior lawyers in the system simply 20 fleeing from Legal Aid practice. 21 And we all know that when -- when you and 22 I and Marlys started practice, junior lawyers did not do 23 murder cases; they learned their craft first from the 24 senior lawyers and then they did murder cases ten (10) 25 years into their career once they were competent to do

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1 them. 2 And we've got now the reversal. The 3 senior competent lawyers in the Bar are not doing the 4 senior -- the -- the complex cases; and junior lawyers 5 who are not yet ready to do them are doing them. 6 So with a restricted panel you can -- 7 you've got the vehicle for significant infusion of new 8 funding that will draw the competent senior members of 9 the Bar back into doing these cases and will eliminate 10 the incompetent and the unprofessional members of the Bar 11 who shouldn't be doing them. 12 So we achieve a whole bunch of beneficial 13 knock-on effects by going down this path. And I think 14 what Legal Aid has done is a beginning, but it's very 15 much a modest first step. 16 MR. MARK SANDLER: All right, Ms. 17 Edwardh, recognizing your reticence about Legal Aid 18 getting into the business of certifying competence, what 19 do you say about this? 20 MS. MARLYS EDWARDH: I draw from what has 21 been said that even if a client were to say, regardless 22 of this panel, we want to do -- we want this particular 23 lawyer to do this case, the answer would be, no, they 24 wouldn't get a certificate if they didn't fit within the 25 criteria. So all homicide cases fall within this panel.

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1 Well, then, assuming Legal Aid is taking - 2 - taken on this function, then the next logical question 3 seems to me, and I'm not going to dispute the fact that 4 it's -- it should do this, it kind of goes against the 5 face of the initial construction of the plan, trying to 6 preserve the autonomy of individual accused to bring 7 their certificate to lawyer of choice; I mean, that was 8 fundamental to how we conceived of the operation of Legal 9 Aid. 10 But I guess then the next question is, is 11 it realistic to assume that this opens up now an 12 opportunity for an infusion of funding. 13 Does this mean that within this category, 14 in order to stop the flight of even mid-level, let alone 15 senior members of the Bar, is there going to be a new 16 budget for this category of case? 17 Is that budget going to be a nine dollar 18 ($9) increment to a hundred and one dollars ($101) an 19 hour or is it going to be something that would allow you 20 to do a four (4) month case? So you have to toss this 21 back for this to have any meaning. 22 MR. MARK SANDLER: All right. 23 And, Mr. Buchanan, I know the topic of 24 funding is rarely raised in the context of Legal Aid, but 25 -- but, of course, we raise it here in the context of

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1 these difficult cases. 2 And what we've heard from some of the 3 senior practitioners who have come here is that there is 4 a different profile of the kinds of lawyers that are 5 doing homicide cases, and you've heard that opinion 6 expressed here. 7 And one (1) of the reasons that has -- 8 that has been cited, perhaps the most prominent reason, 9 is the unwillingness of senior counsel to be engaged in 10 these cases given the tariff, the hourly rate, and -- and 11 given the length of time that these cases consume. 12 Any ideas as to how one might approach 13 that quandary? 14 MR. ROB BUCHANAN: Well, I should perhaps 15 offer a bit of a contrary opinion, in that there are 16 actually the same lawyers that have been taking Legal Aid 17 for the last fifteen (15) years have really not taken 18 flight; they may do slightly less. 19 But there -- there's a bit of urban myth 20 that -- that goes with that, because I -- I'm always told 21 that this great lawyer and that great lawyer is not 22 taking Legal Aid. And when I do go and look, they're 23 actually doing a few cases, or they're doing some. 24 So I'm not sure -- we may have lost them 25 doing the bulk of their practices as Legal Aid, but the -

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1 - the same people that Michael refers to are still 2 actually doing cases on Legal Aid. They may be selecting 3 the cases that they're doing, but they are still doing 4 them. 5 So, I -- I just wanted to be clear that 6 there are very, very senior capable lawyers who will 7 still do those cases on Legal Aid. 8 I'm not suggesting that's because they 9 think that the tariff is -- is -- is of an amount that 10 would cover the same funds that they get from private 11 practice; I believe it's because they have an interest in 12 doing this kind of work and they find these cases 13 fascinating. 14 MR. MARK SANDLER: All right. 15 Well just following up with that, Mr. 16 Thomas. Whether one sees senior counsel doing less of 17 this work or -- or none of this work, funding has been 18 identified as -- as a major issue for the Defence Bar in 19 -- in taking on these complex cases. 20 If you ruled the world and -- and could 21 urge upon the Commissioner a recommendation to address 22 that issue, what might it be? 23 MR. NYE THOMAS: I think I would say -- 24 I'd give a two (2) part answer, and it's -- it's 25 qualified. The first part is to say, that -- you know,

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1 LAO has always said that the tariff is -- is not 2 sufficient. I mean, we've said this for a number of 3 times. It's below market rates. It should be increased. 4 But that statement alone in the absence of two (2) other 5 components is not -- not enough. 6 The first issue that LAO is proposing -- 7 the first, sort of idea that LAO is proposing right now, 8 is actually tariff reform. As many of you may know, and 9 as the Commissioner will certainly know, the tariff is 10 now governed by the Legal Aid regulation. So it's set by 11 the provincial government. 12 LAO is now proposing that the tariff 13 essentially be deregulated, such that LAO itself 14 establish the rules, the hourly rates, the hourly 15 allocations; all the -- all the decisions within -- 16 within the tariff. 17 If that occurs, if the tariff -- if 18 control of the tariff isn't -- is given to Legal Aid, 19 that would give us a lot more flexibility to -- to 20 innovate in a number of different ways. Of about how -- 21 how counsel are compensated, including potentially this 22 Tier 4 idea which we've talked about, and some people 23 have talked about. The idea of establishing a special 24 tariff, a really high tariff for the most serious matters 25 for the -- for the most qualified -- most qualified

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1 counsel. 2 All that is by way of back drop. 3 Important sort of context to the funding issue, which is 4 to say that in the long run if you want to fund a better 5 tariff, you need to -- you need more money. 6 There's -- there's -- there's a simple 7 equation to that. A higher tariff in the absence of -- 8 in the absence of funding, in the context of a capped 9 budget, simply means you have to take from one pocket to 10 put into the other. And for the benefit of the entire 11 system, that's not -- that's not -- that's not always the 12 best way to -- to plan your system. 13 MR. MARK SANDLER: All right. I'll come 14 back to you, Mr. Buchanan, and ask -- and ask this 15 question: Let's assume that Legal Aid is funding a 16 pediatric forensic death case, and the prosecution has -- 17 has marshalled in support of its case one (1) or more 18 pathologists who will be testifying. Defence counsel 19 approaches Legal Aid with a view to obtaining 20 authorization for one (1) or more defence pathologists to 21 perform a variety of roles. To provide expert advice, 22 potentially to write a report, potentially to testify in 23 court, and potentially to attend court while the Crown 24 pathologist is testifying. 25 Could you first provide the Commissioner

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1 with a little bit of an overview of how Legal Aid 2 approaches the allocation of hours or tariffs when the 3 defence makes that kind of request? 4 MR. ROB BUCHANAN: Well initially the -- 5 the defence lawyer can obtain four (4) hours of 6 essentially the -- the pathologist's time to -- to 7 discuss the case with him. And that's just as of right, 8 there's no request for that. 9 But usually in any case of that type, 10 counsel would approach the case manager at Legal Aid 11 Ontario and those are usually the area directors. I, in 12 fact, used to do a lot of those. And the discussion 13 would take at that point. 14 They -- they would use the initial four 15 (4) hours to see if there is an issue, I suppose, and at 16 that point, they would make a more informed request to us 17 of the amount of hours that they thought would be 18 required. 19 I would say, almost invariably, the 20 request is for one (1). I've had cases where they 21 request for additional, but usually the request is for 22 one (1). The hours can be -- again, depending on the 23 issues at stake, they can request anywhere from ten (10) 24 to say twenty (20) or thirty (30). And there's a 25 discussion that takes place at that point as to what it

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1 should be. 2 Generally, those -- that request is 3 accepted. I mean, there may be some discussion about the 4 hours but usually a figure is reached, usually by 5 consensus, as to what -- what the expert can have for the 6 case. 7 And there are additional rates if the 8 expert subsequently testifies at the trial. 9 But those would -- say be approved by the 10 case manager, and if there were requests for additional 11 they would be considered and sometimes accepted. 12 I actually did a little survey of the 13 people who did the tests and nobody could -- could recall 14 saying no completely to a request for an additional one 15 (1); but there are very few requests. 16 I, in one (1) case, did authorize three 17 (3) and they were quite -- in the circumstances were 18 quite -- it appeared to be appropriate, it was a very 19 senior counsel who made the request, and we did. But 20 that's very rare. 21 MR. MARK SANDLER: Well, just -- 22 COMMISSIONER STEPHEN GOUDGE: Can -- 23 sorry, Mr. Sandler. Mr. Buchanan, the rates for the 24 experts are in the tariff? They're regulated. 25 MR. ROB BUCHANAN: They're -- well,

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1 they're not in the tariff. 2 COMMISSIONER STEPHEN GOUDGE: Are they 3 not? 4 MR. ROB BUCHANAN: No -- 5 MS. MARLYS EDWARDH: No. 6 MR. ROB BUCHANAN: -- they're not. No. 7 COMMISSIONER STEPHEN GOUDGE: Who sets 8 them? 9 MR. NYE THOMAS: LAO. 10 MR. ROB BUCHANAN: We set it. 11 MR. NYE THOMAS: It's actually one (1) of 12 the few areas of discretion we have. We set the rates. 13 COMMISSIONER STEPHEN GOUDGE: Okay. And 14 what's the history on revising them? 15 MR. NYE THOMAS: Mm -- 16 17 CONTINUED BY MR. MARK SANDLER: 18 MR. MARK SANDLER: They're one hundred 19 dollars ($100) an hour right now. 20 MR. NYE THOMAS: They're one hundred 21 dollars ($100) an hour. The pathologist's rate is one 22 (1) of several rates we have for medical experts. I 23 think the highest is for psychiatrists at a hundred and 24 nineteen dollars ($119) an hour. Followed by 25 psychologists at a hundred and five dollars ($105) an

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1 hour. 2 We have experts for -- we have rates for 3 all sorts of family law experts. There's a bit of a -- 4 COMMISSIONER STEPHEN GOUDGE: Right. 5 MR. NYE THOMAS: -- bit of a -- 6 COMMISSIONER STEPHEN GOUDGE: Right. 7 MR. NYE THOMAS: Because it's not -- 8 there's a list. 9 COMMISSIONER STEPHEN GOUDGE: A) how are 10 they set; and B) what's the history of adjustment? 11 I mean, have the adjustments been as rare 12 as they've been to the tariff itself? 13 MR. NYE THOMAS: The first answer is we 14 set them. 15 COMMISSIONER STEPHEN GOUDGE: Yeah. 16 MR. NYE THOMAS: And the second answer 17 is -- 18 COMMISSIONER STEPHEN GOUDGE: But based 19 on -- 20 MR. NYE THOMAS: Based on -- 21 COMMISSIONER STEPHEN GOUDGE: -- 22 marketplace views of what the experts would charge to a 23 client of modest means or something? 24 MR. NYE THOMAS: It's -- I can't speak 25 specifically to -- to how these are set; I can tell

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1 generally how they -- 2 COMMISSIONER STEPHEN GOUDGE: Right. 3 MR. NYE THOMAS: -- how they probably 4 were set. And this -- this is just speculation because I 5 wasn't involved. 6 Typically, you do a survey of what the 7 market rates are. You would look to see what -- how many 8 people you are able to get for the rates that you pay. 9 So in order to judge the need. You know, are you -- 10 irrespective of what people's markets rates are, does 11 Legal Aid have the ability to attract people even at a 12 below market rate. 13 COMMISSIONER STEPHEN GOUDGE: Right. 14 MR. NYE THOMAS: Then you would gauge how 15 many times you need that -- an expert like that in order 16 to do an analysis of the total costs -- 17 COMMISSIONER STEPHEN GOUDGE: Right. 18 MR. NYE THOMAS: -- of raising -- of 19 increasing -- 20 COMMISSIONER STEPHEN GOUDGE: Right. 21 MR. NYE THOMAS: -- the tariff rate. The 22 -- the compensation rate. 23 COMMISSIONER STEPHEN GOUDGE: And if I 24 look back over the last fifteen (15) years, would I see 25 regular increments in...?

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1 MR. NYE THOMAS: Some, perhaps not 2 regular. Some. 3 COMMISSIONER STEPHEN GOUDGE: How would 4 it compare to the increases in the tariff? 5 MR. NYE THOMAS: I sus -- well, the 6 tariff has gone up a number of times in the last couple 7 of years. I suspect -- 8 COMMISSIONER STEPHEN GOUDGE: Prior to 9 that there was a long gap -- 10 MR. NYE THOMAS: Yeah. Yes, certainly. 11 COMMISSIONER STEPHEN GOUDGE: -- where it 12 didn't go up at all. 13 MR. NYE THOMAS: Certainly. I don't 14 know. I can find out for you. I don't know. 15 MR. ROB BUCHANAN: I know it -- 16 COMMISSIONER STEPHEN GOUDGE: I just 17 wondered whether the mechanism of self -- self- 18 determination results in a more responsive timeline. 19 MR. NYE THOMAS: Yeah. 20 MR. ROB BUCHANAN: I think it's stayed at 21 ninety (90) for some period of time; it was ninety (90) 22 for most of the period that I was doing the case 23 management. 24 COMMISSIONER STEPHEN GOUDGE: Which would 25 have been what?

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1 MR. ROB BUCHANAN: It would have been 2 about an eight (8) year period. I believe it was about 3 three (3) years ago that it was moved up to a hundred 4 (100). 5 COMMISSIONER STEPHEN GOUDGE: Okay. 6 MR. ROB BUCHANAN: I -- I could be wrong, 7 it could be four (4). But we could get that information. 8 COMMISSIONER STEPHEN GOUDGE: Right. 9 10 CONTINUED BY MR. MARK SANDLER: 11 MR. MARK SANDLER: The defence counsel 12 that have appeared here, and I haven't asked this 13 question of the two (2) that we have present today, have 14 suggested a number of difficulties with what we've just 15 described. 16 They describe difficulties in securing a 17 defence pathologist who has any interest in -- in working 18 on a case that'll involve any significant commitment of 19 hours for a hundred dollars ($100) an hour. 20 And they've also described some concern 21 about -- about the fact that they're only entitled, as of 22 right, to four hours, as opposed to the more extended 23 discretionary increase that's available. 24 The question that I have is: Are those 25 valid concerns in your mind, first of all? And second of

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1 all, as forensic pathology and the controversies around 2 it have become front and centre in this province, do you 3 think there's a -- there may be a different culture 4 within Legal Aid about the extent to which additional 5 hours or additional tariffs might -- might be conferred 6 on defence pathologists? 7 MR. ROB BUCHANAN: Well, there certainly 8 was on the ground. I -- had the events that led to this 9 Inquiry not taken place, I -- I don't think I would have 10 authorized three pathologists in that individual case. 11 There certainly was a revisiting of -- of those requests 12 in the sense that Legal Aid is -- of course, gets its 13 information second and third-hand from the counsel that 14 appear before us, so. 15 We're not in the trial court so we don't - 16 - we don't know when perhaps an expert witness has been 17 subject to judicial criticism. So we -- we tend to find 18 out when counsel come to us on the next case and say, 19 Well, you know, did you know this? It's the crux of the 20 case. 21 At that point, Legal Aid did liberalize 22 its -- its determination of hours and who gets those. 23 MR. MARK SANDLER: All right. Mr. 24 Thomas, what about the -- the one hundred dollars ($100) 25 for pathologists? As I say, not surprising to you, I'm

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1 sure, but the forensic pathologists who have come here 2 have -- have indicated that that is one (1) significant 3 barrier to being involved in defence pathology work. 4 MR. NYE THOMAS: What about it? 5 MR. MARK SANDLER: What about it. 6 MR. NYE THOMAS: What about it? Well, I 7 mean if -- from our perspective, I mean, as I said, we -- 8 we regulate -- we set the hourly rates for medical 9 experts. In the scheme of things, the experts we pay 10 for, forensic pathologists are a smaller piece of the 11 pie, if I can put it that way. 12 So any consideration of raising the one 13 hundred dollars ($100) an hour for forensic pathologists 14 has to be considered in the context of what we pay our 15 other experts; has to be in the context of an analysis of 16 what the financial pressure will be of an increased rate, 17 and an analysis of whether or not raising it to "X" 18 amount of dollars an hour will, in fact, achieve the 19 intended result. 20 It may be the case that you have to 21 increase it quite significantly in order to get those 22 pathologists to -- to do work for Legal Aid. 23 But simply it's -- you know, it's a 24 financial analysis that we have to do in the context of 25 identifying the potential cost, potential demand, and its

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1 impact on how we compensate other medical experts. 2 MR. MARK SANDLER: Ms. Edwardh, any 3 comments about any of this? 4 MS. MARLYS EDWARDH: I don't want this 5 to, in any way, shape, or form, seem like a criticism of 6 Legal Aid Ontario, but I bet that if we started out -- I 7 started to practice in 1976. And if I were to ask the 8 question: Comparing Legal Aid in 1976 to Legal Aid in 9 2006, the hourly rate, how much do you suppose it's gone 10 up? 11 MR. ROB BUCHANAN: About 15 percent. 12 MS. MARLYS EDWARDH: 15 percent? 13 MR. ROB BUCHANAN: Mm-hm. 14 MS. MARLYS EDWARDH: Okay. So that's 15 15 percent. Now, if I were to ask you -- I don't think you 16 guys have this answer -- if I worked at the office of the 17 Crown and I looked at the increment in judicial salaries, 18 there is no question in my mind that the defence bar is 19 deliberately the poorer brother in this business, period. 20 They can't solve the problem. 21 And, you know, I look here at the efforts 22 to try and build competency, the Criminal Lawyer's 23 Association isn't going to educate the Bar in the 24 standards of scientific literacy. I mean, it's just not 25 going to happen without some funding of a system where

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1 institutions value the role of the defence. And that's 2 not what happen -- that's not what's happened. 3 MR. MARK SANDLER: All right. 4 COMMISSIONER STEPHEN GOUDGE: On the -- 5 sorry, Professor Cord, before you respond to the same 6 question, on the question of education, a question I 7 wanted to ask you when we were on that subject at the 8 beginning of the panel was, does Legal Aid have any 9 facility through its research branch to provide 10 educational components in specific kinds of cases? 11 That is, is it feasible in -- to have as 12 an adjunct to your expert panel proposition, for example, 13 an education scheme on the internet related to forensic 14 pathology? 15 MR. ROB BUCHANAN: Well there are -- LAO 16 Law, which is our research facility, does have materials. 17 They've actually got one (1) of the largest fact 18 databases in the world, which was all donated by counsel, 19 who, in fact, provided that. So -- 20 COMMISSIONER STEPHEN GOUDGE: Right. 21 MR. ROB BUCHANAN: -- so there -- there 22 would be some -- some of those involving some of these 23 topics. 24 They also have materials that they've 25 prepared on specific issues. I don't -- don't know that

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1 many of those would really be in the -- specific legal 2 issues, yes. 3 Terms of actually doing training, that -- 4 that hasn't been their function. 5 COMMISSIONER STEPHEN GOUDGE: I see. 6 MR. ROB BUCHANAN: Legal Aid has done 7 some training. We're fairly new in -- in doing it. 8 We've done some for younger criminal lawyers, for 9 example, on basics, and again, it's with volunteers who 10 have -- from the Bar, the judiciary, and the Crown, who 11 have provided their training resources. 12 MR. NYE THOMAS: Actually, not through 13 LAO Law, but through our Quality Services Office, we've 14 run -- we have all sort -- all kinds of online -- not 15 online, but essentially training resources available on 16 DVDs for dealing with clients who may have mental health 17 issues, or a number of other -- other practice -- 18 assistance programs. 19 That's not quite the right phrase, but 20 programs to help -- help educate members of the Bar, 21 either in specific areas of the law, or on specific -- 22 dealing with -- with clients with particular needs; those 23 sorts of things. 24 COMMISSIONER STEPHEN GOUDGE: Could you 25 adapt that to forensic pathology, that is, could you have

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1 a DVD on forensic pathology? Is that -- would that fit 2 with the kinds of things you have now? 3 MR. ROB BUCHANAN: It -- it might fit. 4 The -- the difficulty we would run into is we -- we're 5 able to get the volunteers if it's lawyers training 6 lawyers. I -- I -- 7 COMMISSIONER STEPHEN GOUDGE: Right. 8 MR. ROB BUCHANAN: -- I'm not sure that 9 we would really have the connections to get the -- 10 COMMISSIONER STEPHEN GOUDGE: Right. 11 MR. ROB BUCHANAN: -- the pathologists. 12 We -- 13 COMMISSIONER STEPHEN GOUDGE: Right. 14 MR. ROB BUCHANAN: -- we do focus our 15 training to -- to areas that we don't think would be 16 covered by law society training, but that would be unique 17 to Legal Aid practitioners. 18 And as I say, it's relatively in its 19 infancy. 20 COMMISSIONER STEPHEN GOUDGE: Right. 21 22 CONTINUED BY MR. MARK SANDLER: 23 MR. MARK SANDLER: Professor Code...? 24 DR. MICHAEL CODE: Just briefly, Mr. 25 Sandler, to -- to echo what Marlys said. The -- that we

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1 have seen dramatic increases in funding in three (3) out 2 of four (4) segments of the criminal justice system in 3 the last twenty (20), or thirty (30) years. 4 The judiciary -- judicial salaries, Crown 5 salaries, and police salaries, and all three (3) of those 6 segments of the justice system have binding arbitration 7 for their -- their compensation. 8 And in all three (3) of those segments, 9 the argument has been made successfully that we cannot 10 attract competent people to take on these -- these very 11 important professional positions in the justice system 12 unless we pay them appropriately. 13 And in the judicial context, that -- that 14 principle has acquired a constitutional status. So the - 15 - the affect of binding arbitration, and the -- the 16 argument about attracting competence has -- has left the 17 -- the criminal defence as the one (1) leg in the four 18 (4) legs of the chair that has -- has unfortunately been 19 badly left behind, while the other three (3) have raced 20 ahead and have succeeded in attracting competent people 21 at the expense of funding to the defence bar. 22 So I -- I think it's been a disgrace the 23 way the funding of criminal defence has been beggared in 24 the last twenty/thirty (20/30) years. And -- and that 25 it's simply a function of the fact that there's no

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  1  binding arbitration for -- for def -- defence salaries.
  2                 And I -- I challenge Mr. Buchanan, who
  3  says that senior members of the Bar still do Legal Aid,
  4  to demonstrate that that's anything more than the
  5  occasional appeal.
  6                 I mean, the senior members of the Bar will
  7  take on a one (1) day/two (2) day appeal in the Court of
  8  Appeal on Legal Aid, but they will not take on a lengthy
  9  criminal trial.
 10                 And the -- in -- in the old days, when
 11  Marlys started practicing in 1976, a murder trial was a
 12  week; two (2) weeks at the worse.  So senior members of
 13  the Bar could take -- take it on without any great loss
 14  to their practice.  
 15                 Or indeed, in the old days, in the stories
 16  we always heard about -- about Dubin and Martin
 17  (phonetic), is they'd do them for free, before there was
 18  Legal Aid.  But -- but those trials were short trials. 
 19  These are now very long, very complex trials, and our
 20  experience is the senior members of the Bar will not take
 21  on long complex cases because it's  -- it's just not
 22  affordable anymore.  
 23                 And yet, we -- we have public sector
 24  retainers in a number of areas where senior members of
 25  the Bar will take on public sector work for retainers in

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1 the two hundred (200) to two hundred and fifty dollar 2 ($250) range. Public inquiries is a good example. 3 The use of -- of prosecutors in special 4 prosecutions is a good example. The use of amicus in 5 unrepresented accused cases is a good example. And the - 6 - the Fisher Order is another good example. 7 In those four (4) instances, you do see 8 senior members of the Bar taking on long complex cases, 9 and it's simply because the retainer is about double -- 10 more than double -- what the Legal Aid tariff is. It's 11 usually in the two hundred (200) to two hundred and fifty 12 ($250) range. 13 So the -- the evidence is there, plain and 14 simple, it seems to me, that -- that we must move in this 15 area not only to satisfy ethical obligations, but to get 16 the best lawyers back into these cases. 17 MR. MARK SANDLER: Mr. -- Mr. Thomas...? 18 MR. NYE THOMAS: I was just going to say 19 on -- on the issue of Legal Aid funding, there is yet 20 another review of Legal Aid in the Province being led by 21 Professor Michael Trebilcock at U of T. 22 We expect that -- and he has said that the 23 issue of funding for Legal Aid is one (1) of the issues 24 he's going to address as will be one (1) of the issues of 25 -- of tariff compensation.

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1 His report is expected shortly. I'm not 2 quite sure when, but shortly, so that is likely to add to 3 the mix and -- and to -- to perhaps start some more 4 conversation on it and the level of the tariff. 5 MR. MARK SANDLER: Now, Mr. Buchanan, 6 when -- when I was asking you about the practice for 7 defence pathologists I made reference to an allowance for 8 the defence pathologist to attend Court to hear the 9 testimony of the Crown pathologist. 10 We've actually heard both from 11 pathologists and from the defence bar that -- that that 12 is an invaluable process, both -- both to assist the 13 defence counsel in framing the cross-examination and -- 14 and being informed on -- on where to go, and second of 15 all, to keep the Crown pathologist, at times, honest, 16 simply by the presence of the defence pathologist. 17 Professor Sherrin, in his paper, suggests 18 that -- that Legal Aid confirmed that it only rarely 19 grants funding for this aspect explaining that it expects 20 the pathologist's assessment to be based on hypotheticals 21 provided through disclosure and transcripts. 22 Is there some opportunity for Legal Aid to 23 -- to evaluate or reevaluate in light of that evidence 24 the need for the defence pathologist to physically attend 25 during the Crown evidence?

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1 MR. ROB BUCHANAN: I think there is. 2 That certainly there -- there -- the number of cases 3 where it has been authorized have been frankly very few. 4 It has been done on so -- on -- on some significant 5 recent cases, but I think it is an area that given some 6 of the material that I've read coming out of this -- this 7 Inquiry, that it is something that we should revisit. 8 MR. MARK SANDLER: All right. And -- and 9 I -- I want to stay with you for a moment, if I may, Mr. 10 Buchanan, and -- and raise one (1) other issue with you, 11 and that is the authorization of multiple defence counsel 12 to defend these cases. 13 One can see the value of -- of having two 14 (2) counsel on -- on these cases both in terms of the 15 defence and also in terms of the educative value for 16 future cases. 17 What is the practice of Legal Aid in that 18 regard? Has it changed most recently? And -- and where 19 do you see this going in light of some of the evidence 20 that has been heard at this Inquiry? 21 MR. ROB BUCHANAN: Well, it's changed to 22 the extent that we did go through a period, and it was 23 due to the fiscal situation we're in where we were 24 reluctant to authorize junior counsel. We -- we would 25 often at trial, but not at the preliminary inquiry.

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1 One of the decisions that we had to make 2 when we set up the -- the panel standards that we did was 3 the one (1) that you mentioned. How are we going to 4 ensure that young lawyers will come along and can do 5 those cases in the future? 6 We didn't want to just create a closed 7 shop of -- of senior lawyers at this point, so we did 8 agree that we would be more liberal with the use of 9 junior counsel in particular. 10 Now, many -- many large cases do, in fact, 11 have co-counsel. We would be -- for the trial, we -- we 12 would be less -- depending on the -- the size of the case 13 that the defence counsel had to meet, we -- we generally 14 would figure that a senior counsel with -- with the 15 assistance of a junior counsel would be enough to meet 16 the case. 17 But there -- there certainly have been 18 numerous cases where we have in fact authorized two (2) 19 senior counsel. Some were -- we've -- rare ones where we 20 have had two (2) senior counsel and a junior counsel, but 21 it -- it would depend strictly on the nature of the case 22 that counsel had to meet. 23 MR. MARK SANDLER: All right. 24 What I want to do in -- in closing this 25 portion of -- of my questioning, is simply note the four

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1 (4) proposals that Professor Sherrin has made in his 2 paper that directly concern Legal Aid. 3 And then I'm going to ask you to each 4 comment either on Professor Sherrin's proposals, or any 5 additional recommendations that would urge upon the 6 Commissioner. He proposes in Proposal 11: 7 "That Legal Aid Ontario should increase 8 the hourly rate paid to pathologists to 9 a rate closer to the rates commonly 10 charged to private clients. And that 11 the Government of Ontario should 12 provide Legal Aid with funding for this 13 purpose." 14 In Proposal 12 he suggests that: 15 "In compelling circumstances such as 16 where pathology evidence is critical to 17 a case and seriously in dispute, the 18 pathology issues are expects -- 19 especially complex, or preliminary 20 hearing transcript of the Crown 21 pathologist testimony is not available, 22 Legal Ontario should be open to 23 providing funding for the defence 24 pathologist to attend court and assist 25 defence counsel during the time when

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1 the pathologist is testifying. [And 2 again,] that the Government should 3 provide Legal Aid with funding for that 4 purpose." 5 Proposal 13: 6 "Defence counsel should ensure that 7 retained pathologists are fully 8 informed of the terms of any Legal Aid 9 funding authorization, and that 10 pathologist accounts are submitted and 11 paid out promptly. Legal Aid should 12 ensure that all funding terms are 13 communicated clearly to defence counsel 14 in a format that counsel can easily 15 pass on to the retained expert." 16 And finally: 17 "That Legal Aid Ontario, perhaps in 18 conjunction with the Criminal Lawyers 19 Association, should commission a study 20 to ascertain the experiences of defence 21 counsel in obtaining funding for the 22 services of pathologists and the actual 23 practises of Legal Aid officials in 24 responding to requests for such 25 funding."

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1 And I won't ask you to repeat comments 2 that you've already made, but I invite you to make any 3 additional comments that you would like to make either in 4 connection with those proposals or any others. 5 Mr. Buchanan, we'll start with you. 6 MR. ROB BUCHANAN: Well I was actually 7 going to have Mr. Thomas answer that. 8 MR. MARK SANDLER: All right. All you 9 have to do is hold out your hand, and -- Mr. Thomas, over 10 to you first, sir. 11 MR. NYE THOMAS: Sure. Well we had 12 talked about some of the issues around increasing the 13 hourly rate for pathologists. 14 MR. MARK SANDLER: We have. 15 MR. NYE THOMAS: On recommendation 12: 16 Are we open to providing funding for defence counsels to 17 attend in court? Yes, we're certainly open to it. 18 Number 13, LAO to ensure that funding 19 terms are communicated to defence counsel in a format 20 that's easily accessible to the expert. I mean, we deal 21 with the defence lawyer; we send them a letter specifying 22 what the terms of our funding are. 23 If that is not clear, we'll certainly do 24 our best to make it more clear if -- if experts are 25 unaware of the -- the terms of their retainer.

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1 And then finally regarding the study to 2 look at the issue of funding for defence pathologists; we 3 agree with that as well. 4 COMMISSIONER STEPHEN GOUDGE: Can I just 5 ask, Mr. Thomas? 6 One (1) of the issues that we heard about 7 through some of the cases that we've looked at over the 8 last two (2) or three (3) months is the difficulty of 9 getting defence assistance in an expert world that is 10 very thinly populated in Ontario. 11 MR. NYE THOMAS: Yeah. 12 COMMISSIONER STEPHEN GOUDGE: Okay. And 13 this is turning increasingly into a scientific community 14 that is global. 15 Does Legal Aid have any barriers against 16 expertise from out of province or even offshore? 17 MR. NYE THOMAS: No. And, in fact, in 18 the past -- 19 COMMISSIONER STEPHEN GOUDGE: What 20 happens if I as defence counsel say I've got a terrific 21 pathologist I want to retain, he's from Australia? 22 MR. NYE THOMAS: Yeah. I mean, our 23 presumption and our preference is to have a local expert 24 for -- 25 COMMISSIONER STEPHEN GOUDGE: What would

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1 I have to do to -- 2 MR. NYE THOMAS: Essentially you have to 3 prove why this expert, say, from offshore, a different 4 province, from the States, is the person that you need. 5 And in fact in the past, it doesn't happen 6 a lot, but in the past we've brought in people from BC, 7 from England, from New Zealand, and compensated them 8 according -- appropriately, to ensure that they're able 9 to -- to do the job that -- for which they were retained. 10 It doesn't happen a lot, but there's 11 certainly -- we certainly have the discretion to do that 12 and have done so in the past. 13 MR. MARK SANDLER: Well, just following 14 up on -- on the Commissioner's question. 15 We've heard from several forensic 16 pathologists that -- that there is a certain reticence to 17 provide defence testimony at times in cases where the 18 Crown pathologist has been retained through the Chief 19 Coroner's Office. 20 So again, I guess the question that I 21 would pose is: Do you see, in light of the evidence at 22 this Inquiry, that there -- that there may be a greater 23 willingness on the part of Legal Aid to -- to consider 24 the use of out-of-province experts having regard to that 25 dynamic?

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1 MR. NYE THOMAS: Yes. 2 MR. MARK SANDLER: All right. 3 Now, Mr. Thomas, you also had indicated to 4 me that -- that you might have some comments on -- 5 MR. NYE THOMAS: Oh. 6 MR. MARK SANDLER: -- on the 7 recommendations beyond -- 8 MR. NYE THOMAS: Just -- just very 9 briefly. 10 There were a couple of other 11 recommendations in Professor Sherrin's report that we 12 wanted to offer our support for. 13 They are recommendations 3 and 4 about 14 continuing legal education for lawyers and forensic 15 pathology. 16 There's recommendation 6 and 7, which 17 essentially talk about access to pathologists -- forensic 18 pathologists for defence counsel across the province. 19 And then finally, recommendation 9 which 20 was the recommendation, I believe, to the Office of the 21 Chief Coroner, to develop an active list of -- of 22 forensic pathologists who are willing to -- to work for 23 the defence. 24 We support all those whole-heartedly and 25 if asked, we will assist in any way we can.

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1 MR. MARK SANDLER: All right. Thank you. 2 Ms. Edwardh...? 3 MS. MARLYS EDWARDH: The notion of an 4 active list is interesting. And I guess it would be my 5 preference, because of not wanting to have the list that 6 either you're part or somehow you're discounted and not 7 as authoritative as an expert. I think Legal Aid should 8 seek and obtain the resources to -- to A) have active 9 lists in various areas of expertise. 10 You guys already pay for the transcripts 11 of these experts. So we have preliminary inquiries, we 12 have trials, we have appeals. If there are -- there 13 should be some way to capture a huge resource which is 14 the lawyers who work with you, to gather together 15 information on experts, to pool it, to send in 16 evaluations. 17 And there's no reason why the Legal Aid 18 research -- the current research is really devoted and 19 does a good job at helping you understand legal issues, 20 but it's never conceived of itself as potentially a -- a 21 tactical pool of information that allows you to actually 22 litigate better, with factual matters, and it could do 23 that. 24 So I can go into organizations in the 25 United States, and I can pick up the phone and say, Could

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  1  I -- do you have any legal briefs or evidentiary records
  2  pertaining to this matter, and I can find some
  3  information.  And we have this wonderful potential tool
  4  that's available, and we don't have an institution of the
  5  Defence Bar.  
  6                 The best we can do is to try and develop
  7  the capacities of Legal Aid Ontario and to make it
  8  accessible to anyone who works with the plan.
  9                 MR. MARK SANDLER:   All right.
 10                 MS. MARLYS EDWARDH:   So I'd rather they
 11  had the panel.
 12                 MR. MARK SANDLER:   Professor Code...?
 13                 DR. MICHAEL CODE:   I think 12, 13 and 14
 14  are common sense.  The only one (1) I would dissent from
 15  is number 11, because the way Professor Sherrin has
 16  framed it is that pathologists should be paid the same
 17  rate that they charge their private clients, and I don't
 18  think that's right.
 19                 The -- there's a very fine tradition in
 20  the Bar that when you're being retained on taxpayer's
 21  dollars, if you are a species of public servant and
 22  you're doing your public service duty to the proper
 23  administration of justice, and you discount your fees, as
 24  I -- in my experience is the most senior members of the
 25  Bar will act in long, complex matters for a fee in the

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1 range of two (2) hundred (200) to two hundred and fifty 2 (250) an hour, which is often a half or a third of what 3 they would charge a private client. 4 So I don't see why pathologists wouldn't 5 do the same. So if they -- 6 MR. MARK SANDLER: I should just say, in 7 fairness to Professor Sherrin, I think -- I think he was 8 suggesting that the rate move closer to the rates 9 commonly charged and not parallel them precisely. But -- 10 but your point is well taken. 11 DR. MICHAEL CODE: He does says -- say 12 closer, but I -- I would say it should still be a 13 substantially discounted fee. 14 MR. MARK SANDLER: All right. Thank you 15 very much. We have time for a couple of questions from 16 counsel for the parties. 17 Ms. Fraser...? 18 19 QUESTIONED BY MS. SUZAN FRASER: 20 MS. SUZAN FRASER: Just -- I'm here on 21 behalf of an organization called Defence for Children 22 International. My name is Sue Fraser. And I'm 23 interested in some of the sort of parallel child 24 protection issues. 25 Mr. Buchanan, I'm wondering if you can

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1 just comment. You've talked a little bit about the 2 hourly rate of lawyers. That's sort of one (1) aspect of 3 the financial constraints of Legal Aid Ontario. 4 I'm wondering if you can also talk about 5 the eligibility criteria in terms of the barriers that 6 people would face in actually qualifying for a 7 certificate from Legal Aid, and I'm also interested in 8 terms of the constraints that are imposed. 9 I'm going to restrict my question to 10 family law matters in terms of access -- sorry, custody 11 proceedings. I -- I don't know if you can comment on 12 those things. 13 MR. ROB BUCHANAN: Well the -- one (1) of 14 the -- one (1) of the differences between the criminal 15 portion of Legal Aid and the family portion is that there 16 -- there isn't a big case management process in place for 17 the family law. 18 And, in fact, there are certainly portions 19 of this Province where you would have greater difficulty 20 -- if you assume that a child suffered an injury, and was 21 charged by the police, and also Children's Aid 22 authorities were involved, you might have a harder time 23 getting a very capable lawyer to do that trial. That 24 wouldn't be true everywhere in the Province. 25 The difficulties in terms of -- and the --

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1 the reason largely for that is economic; that it's much 2 easier in a family law practice to build a private 3 practice, so it -- it's harder for Legal Aid to retain a 4 family law lawyer -- senior family law lawyers. 5 In terms of the financial eligibility, 6 it's a similar test to the -- the criminal test, although 7 the -- the difference being that, of course the majority 8 of criminal clients for Legal Aid Ontario would be single 9 persons, and the majority of family clients for Legal Aid 10 would be, in fact, families. 11 We tend to represent the women when 12 there's been a breakup in a relationship. 13 MS. SUZAN FRASER: All right. So in 14 terms of what the actual financial -- a single person 15 seeking Legal Aid, what would be the cut-off in terms of 16 their income? 17 MR. ROB BUCHANAN: The cut-offs are very 18 low. I -- I don't actually have them with -- I do have 19 them with me. 20 They are for family size one (1), $13,000 21 net annual income. They -- they're very modest. 22 MS. SUZAN FRASER: So if you were to make 23 $15,000 a year, and you're a single person seeking Legal 24 Aid, you would not qualify? 25 MR. ROB BUCHANAN: Well, you wouldn't

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1 qualify for Legal Aid without contribution. You might be 2 asked to make a payment agreement. 3 MS. SUZAN FRASER: All right, all right. 4 And then just in terms of -- and Mr. Thomas might be able 5 to answer this question better. 6 In terms of the number of hours that would 7 be allocated to counsel on a -- on a custody proceeding 8 under Legal Aid's guidelines? 9 MR. NYE THOMAS: Mr. Buchanan would be 10 able to answer that one better. 11 MS. SUZAN FRASER: Okay. Okay. 12 MR. ROB BUCHANAN: It would -- it differs 13 between a Child and Family Services case, of course, and 14 a straight custody between two (2) parents. 15 There's basically -- there are graduated 16 hourly hours there, so it would be -- off the top of my 17 head it would be -- if something went to trial, you'd get 18 four (4) hours preparation for a day, and fifteen (15) 19 hours more preparation, but as you know, family law takes 20 a while to get to trial. 21 There are many -- many steps before then, 22 and I think we have a maximum of about fifty (50) hours 23 that could be achieved prior to that. 24 MS. SUZAN FRASER: All right. And then 25 just in terms of the expert rate. We talked about the

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1 rate for pathologists. That hundred dollar ($100) an 2 hour rate, that's also the same rate that you use for 3 general practitioners, as I understand. 4 Just looking online at the tariff manual, 5 it seems that psychiatrists seem to somehow luck out at a 6 hundred and nineteen dollars ($119) an hour, but that -- 7 other med -- there's no delineation between the other 8 medical professionals? 9 MR. ROB BUCHANAN: I believe that's 10 correct, except for psychologists. 11 MS. SUZAN FRASER: All right. Okay. 12 Thanks. Those are my questions. 13 MR. MARK SANDLER: Ms. Esmonde...? 14 15 QUESTIONED BY MS. JACKIE ESMONDE: 16 MS. JACKIE ESMONDE: Good afternoon. My 17 name is Jackie Esmonde. I'm one (1) of the lawyers 18 representing a coalition of Aboriginal Legal Services of 19 Toronto, and Nishnawbe Aski-Nation. 20 My questions relate to education for the 21 Defence Bar, and I'll address them first to those of you 22 from the Legal Aid. 23 And just as a bit -- background to my 24 question, some of the roundtables and some of the papers 25 that we have before this Commission have raised issues of

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1 bias that can enter into the criminal justice system in 2 different ways: socio -- socioeconomic issues, access to 3 defence experts, and so on. And I'm sure you're aware 4 there's been considerable study over the years that has 5 raised the issue of the over representation of Aboriginal 6 people in the criminal justice system. That's not news 7 to you. 8 So I raise that because it raises another 9 layer of complexity in terms of the education of defence 10 counsel in these kinds of cases; when you have an 11 Aboriginal accused person who is charged in a pediatric 12 death and the complexity that raises, in terms of 13 ensuring the defence counsel are able to defend those 14 cases. There are studies that show that defence counsel 15 spend, for example, fewer hours with Aboriginal accused 16 than they do with other types of accused. You're aware 17 of tho -- that kind of study? 18 So with that kind of background, I know 19 one (1) issue that has -- one (1) strategy that has, I 20 believe, been discussed with you is the idea of attaching 21 flyers, informational flyers, to certificates. For 22 example, where there's an Aboriginal accused, a flyer 23 discussing Gladue and the principles of Gladue. Or you 24 could have a flyer discussing the availability of defence 25 experts in a pediatric death case.

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1 Is that -- is that something that's being 2 considered at Legal Aid or you think could be one (1) 3 small piece of the education puzzle? It's certainly not 4 a complete -- 5 MR. NYE THOMAS: Yeah. It's -- we're 6 actually developing Aboriginal strategy right now -- 7 MS. JACKIE ESMONDE: Mm-hm. 8 MR. NYE THOMAS: -- which is certainly a 9 work-in-progress. We'll certainly take back the idea of 10 doing more education around these kinds of cases. I 11 don't know -- I just don't know whether it's specifically 12 part of the strategy right now, though I'll certainly -- 13 certainly take it back and raise it with the people who 14 are responsible for developing it. 15 MS. JACKIE ESMONDE: I'm familiar with 16 the Refugee Panel, that there's requirement that to stay 17 on the Panel you have to engage every year in continuing 18 the legal education on refugee issues and that Legal Aid 19 actually provides -- I believe it's even a day-long free 20 continual education -- continuing legal education. 21 Is that something that is part of all of 22 the panels? Is it part of the panel we've been 23 discussing today? 24 MR. ROB BUCHANAN: It is part of all of 25 the panels. We don't necessarily always provide it.

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1 We've tried; that's the areas that we have tried to, so 2 we provided in-family. The refugee is easy for us to 3 provide because we have a Refugee Law Office, a staff 4 office, which has considerable expertise in there. But 5 again, we rely on the private Bar to provide the actual 6 training. 7 So I believe all of the standards have 8 training associated with them. This one is new, although 9 we're assuming these are senior counsel who are getting 10 training as we go. 11 MS. JACKIE ESMONDE: I see. I just 12 wanted to give an opportunity to the other members of the 13 panel, if you had any comment? 14 DR. MICHAEL CODE: Nothing to add for me. 15 MS. JACKIE ESMONDE: Okay. Thank you. 16 MR. MARK SANDLER: I believe that 17 completes our questions for this roundtable. 18 I want to thank all of the participants 19 and I'm very grateful to you all. And in particular, I 20 want to thank Mr. Buchanan and Mr. Thomas who were 21 invited on very short notice and accommodated us, so 22 we're very grateful for all four (4) of you, and I make 23 those additional comments. Thank you. 24 COMMISSIONER STEPHEN GOUDGE: Yes, thank 25 you very much to the two (2) of you, and thanks again to

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1 Professor Code and Ms. Edwardh. It was very helpful. 2 So we'll rise now until 9:30 tomorrow 3 morning. 4 5 --- Upon adjourning at 2:43 p.m. 6 7 8 Certified Correct, 9 10 11 12 ____________________ 13 Rolanda Lokey, Ms. 14 15 16 17 18 19 20 21 22 23 24 25