11 2 3 THE INQUIRY INTO PEDIATRIC FORENSIC 4 PATHOLOGY IN ONTARIO 5 6 7 8 ******************** 9 10 11 BEFORE: THE HONOURABLE JUSTICE STEPHEN GOUDGE, 12 COMMISSIONER 13 14 15 16 Held at: 17 Offices of the Inquiry 18 180 Dundas Street West, 22nd Floor 19 Toronto, Ontario 20 21 22 ******************** 23 24 February 21st, 2008 25
21 Appearances 2 Linda Rothstein ) Commission Counsel 3 Mark Sandler ) 4 Robert Centa ) 5 Jennifer McAleer ) 6 Johnathan Shime (np) ) 7 Ava Arbuck (np) ) 8 Tina Lie (np) ) 9 Maryth Yachnin (np) ) 10 Robyn Trask (np) ) 11 Sara Westreich (np) ) 12 Jill Presser (np) ) 13 14 Brian Gover ) Office of the Chief Coroner 15 Luisa Ritacca ) for Ontario 16 Teja Rachamalla (np) ) 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 )
31 APPEARANCES (CONT'D) 2 Paul Cavalluzzo (np) ) Ontario Crown Attorneys' 3 Association 4 5 Mara Greene (np) ) Criminal Lawyers' 6 Breese Davies (np) ) Association 7 Joseph Di Luca (np) ) 8 Jeffery Manishen (np) ) 9 10 James Lockyer ) William Mullins-Johnson, 11 Alison Craig ) Sherry Sherret-Robinson and 12 Phillip Campbell (np) ) seven unnamed persons 13 14 Peter Wardle (np) ) Affected Families Group 15 Julie Kirkpatrick ) 16 Daniel Bernstein (np) ) 17 18 Louis Sokolov ) Association in Defence of 19 Vanora Simpson (np) ) the Wrongly Convicted 20 Elizabeth Widner (np) ) 21 Paul Copeland (np) ) 22 23 24 25
41 APPEARANCES (cont'd) 2 Jackie Esmonde ) Aboriginal Legal Services 3 Kimberly Murray (np) ) of Toronto and Nishnawbe 4 Sheila Cuthbertson (np) ) Aski-Nation 5 Julian Falconer (np) ) 6 7 Suzan Fraser ) Defence for Children 8 ) International - Canada 9 10 William Manuel (np) ) Ministry of the Attorney 11 Heather Mackay (np) ) General for Ontario 12 Erin Rizok (np) ) 13 Kim Twohig (np) ) 14 Chantelle Blom (np) ) 15 16 Natasha Egan (np) ) College of Physicians and 17 Carolyn Silver (np) ) Surgeons 18 19 Michael Lomer (np) ) For Marco Trotta 20 Jaki Freeman (np) ) 21 22 Emily R. McKernan (np) ) Glenn Paul Taylor 23 24 25
51 TABLE OF CONTENTS Page No. 2 3 PEDIATRIC FORENSIC PATHOLOGY AND POTENTIAL WRONGFUL 4 CONVICTIONS PANEL: 5 MICHAEL POLLANEN 6 KERRY SCULLION 7 ALASTAIR MACGREGOR 8 BRUCE MACFARLANE 9 MARY NETHERY 10 11 Questioned by Mr. Mark Sandler 9 12 Questioned by Ms. Luisa Ritacca 106 13 Questioned by Mr. James Lockyer 108 14 Continued Questions by Mr. Mark Sandler 129 15 16 PEDIATRIC FORENSIC PATHOLOGY AND POTENTIAL CHILD ABUSE PANEL: 17 NICHOLAS BALA 18 AGNES SAMLER 19 JANE FITZGERALD 20 ANDREW KOSTER 21 22 Questioned by Ms. Linda Rothstein 135 23 Questioned by Ms. Suzan Fraser 249 24 25 Certificate of transcript 269
61 --- Upon commencing at 9:33 a.m. 2 3 THE REGISTRAR: All rise. 4 COMMISSIONER STEPHEN GOUDGE: Sit down 5 please. 6 Mr. Sandler...? 7 MR. MARK SANDLER: Good morning, 8 Commissioner. This morning we are going to be dealing 9 with the topic of pediatric forensic pathology, and 10 potential wrongful convictions. And we have a very 11 distinguished panel yet again to assist you, 12 Commissioner, this morning, and if I can introduce them 13 to you. 14 To your far left is Dr. Michael Pollanen. 15 I'm sure that you remember that he's the Chief Forensic 16 Pathologist for the Province of Ontario. He has assisted 17 us many times in the course of the Inquiry and we're 18 grateful for his participation on this panel as well. 19 Beside him is Mr. Kerry Scullion. Mr. 20 Scullion is general counsel and Director of the Criminal 21 Convictions Review Group in the Department of Justice in 22 Ottawa. He's also a sessional lecturer at the Faculty of 23 Common Law University of Ottawa, where he teaches a 24 course on wrongful convictions. 25 He previously practised as a criminal
71 defence counsel and is a past member of the Executive 2 Committee of the Criminal Lawyers Association of Ottawa. 3 Welcome, Mr. Scullion. 4 MR. KERRY SCULLION: Thank you very much. 5 MR. MARK SANDLER: And immediately to Mr. 6 Scullion's left is Mr. Alastair MacGregor. Mr. MacGregor 7 is the Deputy Chair of the Criminal Cases Review 8 Commission of England, Wales, and Northern Ireland. He 9 has been responsible for coordinating the work of the 10 Commission in connection with cases associated with the 11 Attorney General's review of infant death cases and has 12 played an active role in a number of those cases. 13 I know that he also served at one (1) 14 point as acting Chair of the Criminal Cases Review 15 Commission for some five (5) months, if I remember 16 correctly. He was called to the bar in England in 1974, 17 and became a Queen's counsel, a designation no longer 18 available to those of us here in Ontario, in 1994. 19 Welcome, Mr. MacGregor. 20 Immediately to Mr. MacGregor's left is 21 Bruce MacFarlane. Bruce MacFarlane has participated in 22 the work of this Inquiry to date, so I simply reiterate 23 that he's currently on secondment from Manitoba Justice 24 as a Professional Affiliate Faculty of Law at the 25 University of Manitoba, where he teaches about wrongful
81 convictions, amongst other things. 2 He's the former Deputy Attorney General 3 for the Province of Manitoba, and you're all ready well 4 familiar with Mr. MacFarlane's work. So welcome again, 5 Mr. MacFarlane. 6 DR. BRUCE MACFARLANE: Good morning. 7 MR. MARK SANDLER: And last but not 8 least, Mary Nethery. Ms. Nethery is the Director and 9 executive lead on justice modernisation in the criminal 10 law division, Ministry of the Attorney General. She is 11 also a member of Heads of Prosecution Committee and 12 Prevention of Miscarriages of Justice, and a member of 13 the Ontario Criminal Conviction Review Committee. She's 14 been a presenter at Crown conferences, as well as for 15 police services, the Children's Aid Society, and 16 Healthcare Professionals. Good morning, and thank you 17 for joining us, Ms. Nethery. 18 MS. MARY NETHERY: Good morning. 19 20 PEDIATRIC FORENSIC PATHOLOGY AND POTENTIAL WRONGFUL 21 CONVICTIONS PANEL: 22 23 MICHAEL POLLANEN 24 KERRY SCULLION 25 ALASTAIR MACGREGOR
91 BRUCE MACFARLANE 2 MARY NETHERY 3 4 QUESTIONED BY MR. MARK SANDLER: 5 MR. MARK SANDLER: What I want to do at 6 the outset is -- is probe several of our panellists on 7 some of the work they do to provide some context for the 8 discussion that will follow. 9 So if I could turn first to Mr. MacGregor. 10 Mr. MacGregor, could you provide the Commissioner with a 11 snapshot of -- of the work of the Criminal Case -- Cases 12 Review Commission in your jurisdiction, and most 13 particularly how it interfaced with the Attorney 14 General's Review or the Goldsmith Review that the 15 Commissioner has heard much about in the course of these 16 proceedings. 17 MR. ALASTAIR MACGREGOR: Surely. Well, 18 the Commission is an independent body with responsibility 19 for looking into alleged miscarriages of justice and if 20 it considers it appropriate, referring those convictions 21 back to the Court of Appeal. If the matter has already 22 been to the Court of Appeal, we are the only way to get 23 back there. Equally, if we send it to the Court of 24 Appeal, the Court of Appeal has to hear the matter even 25 if it might otherwise have been reluctant to do so.
101 Our test is whether we believe that 2 there's a reasonable possibility that the Court of Appeal 3 will quash the conviction if we refer it back. Generally 4 that reasonable possibility has to arise from new 5 evidence or argument, but in exceptional circumstances we 6 can refer even without that. Equally, in exceptional 7 circumstances we can refer a case to the Court of Appeal 8 even if there has been no previous appeal. 9 When the Goldsmith Review took place, it 10 identified, I think, thirty-one (31) cases which gave 11 rise to concern. Some of those were cases where there 12 had been no previous appeal, and in relation to those, 13 some of those identified simply made an application to 14 the Court of Appeal. Others had already appealed, and 15 therefore applied to us. 16 Now of the thirty-one (31) which had been 17 identified by the Attorney as giving rise to concern, 18 four (4), I think, who had not previously appealed, 19 applied straight to the Court of Appeal for leave. I 20 think three (3) got it. And -- and three (3) had already 21 applied to the Criminal Cases Review Commission, and 22 another four (4) did so in the light of the Attorney's 23 review. Of those we referred two (2), and one (1) had 24 their convictions quashed. 25 So, so far as the Attorney's review is
111 concerned, it generated for us four (4) applications 2 which might otherwise not have been made to us. I should 3 point out that of course we had over the years looked 4 into a number of cases connected with infant death, 5 entirely unconnected with the Attorney's review -- I 6 think eighteen (18) in all -- including one of them, 7 Sally Clark, which triggered the great concern about 8 infant death cases in the UK. 9 So we treated the Attorney's cases in very 10 much the same way we treated any evidence. We obtained 11 the court files, the Crown prosecution files, police 12 files, and usually defence files. We instruct, if we 13 think it relevant, another expert to advise us, and then 14 we form our own view as to whether or not we think 15 there's a real possibility that if we refer the case 16 back, the Court of Appeal will allow the appeal. 17 I should mention that although we were 18 consulted in relation to the Attorney's review, we felt 19 it was appropriate for us not actually to take an active 20 part in it since some of those cases might be coming back 21 to us for review, but we did advise as to some of the 22 procedures that were followed. 23 MR. MARK SANDLER: All right. Now we're 24 going to come back to the Criminal Cases Review 25 Commission shortly, but if I can turn to Mr. Scullion;
121 and could you outline for the Commissioner, the processes 2 available in Canada that -- that you regulate and -- and 3 how a forensic pathology case such as the case -- cases 4 are under review here might be dealt with by your group? 5 MR. KERRY SCULLION: Well we're the 6 sector in the Department of Justice that reviews 7 applications from those who believe they've been 8 wrongfully convicted under the Minister's powers; they're 9 outlined in section 696.1 and following. 10 The Minister, upon a review, has the 11 authority to either refer a case to the Court of Appeal, 12 such as the English model, and also has the authority to 13 order a new trial in certain cases, essentially quashing 14 the conviction and ordering a new trial. Our sector that 15 -- deals exclusively on that, we don't -- we don't do 16 anything else. 17 As far as this Commission is concerned, 18 one (1) of the -- the one (1) case that came to us was 19 the Mullins-Johnson Case which is a matter that was 20 referred to the Court of Appeal by the Minister after -- 21 after review. 22 As to how -- are you talking about a 23 specific number of cases, or just one (1)? Are you 24 talking about a group of cases, as how we might handle 25 them?
131 MR. MARK SANDLER: Just typically, how 2 they might be handled. 3 MR. KERRY SCULLION: Well, normally, it's 4 -- if it's an application process. An applicant would 5 apply, would forward to us the transcripts of his trial, 6 the appellate material, and the reason for the 7 application; in other words, what is -- as in the English 8 model, our model requires something new and significant 9 and that's required to be filed. And we would review 10 that type of material. 11 In one (1) case I just mentioned, 12 obviously the new and significant material was the new 13 reports, the new pathology evidence that had been 14 submitted to the Minister in that other case, so that -- 15 so we would examine that. 16 We -- we could, in certain circumstances, 17 retain the services of a pathologist to give us -- to 18 give the Minister an opinion. We've done that in other 19 aspects -- not in this particular case because we had 20 that when the application was submitted. 21 A lot of things depend on who submitted 22 the application. There's an organization that's well- 23 known here and represented here, who -- AIDWYC, and when 24 they submit an application, they would normally submit 25 anything and everything they have, with the new
141 information, the new and significant information, and 2 that would normally come with the application. Other 3 applications are -- are less complete, so that would 4 require us to do more work in those circumstances. 5 MR. MARK SANDLER: Okay. Now, I'm going 6 to come back to -- I'm -- I'm going to come back to both 7 of your processes a little bit later on and -- and -- in 8 connection with the Criminal Cases Review Commission in 9 Great Britain. We'll see what lessons can be learned for 10 -- from the treatment of those cases for us here in 11 Ontario and, as well, we can examine how -- how the 12 processes described by Mr. Scullion may best be utilized 13 to address potential wrongful convictions in pediatric 14 forensic pathology cases. 15 I should indicate, as you know, 16 Commissioner, that -- that the questions in this panel 17 have been carefully framed to address those issues. We 18 don't intend to ask these panellists today to comment on 19 whether the current legislative regime in Canada should 20 be changed or replaced with a model such as the CCRC. 21 Some issue has been raised as to whether you have 22 jurisdiction, as part of a provincial mandate, to make 23 recommendations in that area. 24 And as we'll be indicating to counsel, we 25 certainly will invite written submissions on -- on those
151 issues to you, should -- should any of the counsel for 2 parties here have an interest in pursuing recommendations 3 along those lines with you. 4 So if I can turn to Ms. Nethery for a 5 moment. When I introduced you, I meant -- made reference 6 to the fact that you're a member of the Heads of 7 Prosecution Committee and Prevention of Miscarriages of 8 Justice and a member of the Ontario Criminal Conviction 9 Review Committee. 10 Could you describe for the Commissioner 11 what those are all about -- 12 MS. MARY NETHERY: Yes. 13 MR. MARK SANDLER: -- because they will 14 inform our discussion today as well. 15 MS. MARY NETHERY: Okay. Thank you. In 16 terms of the Heads of Prosecution Committee, there is a 17 federal/provincial/territorial process that exists in 18 Canada at various levels, which includes the ministerial 19 level where ministers meet, a deputy level where deputies 20 meet, and then at the Heads of Prosecution, which are all 21 of the people who are the heads of various prosecution 22 services across Canada, meet regularly to discuss issues 23 of -- of common interest. That particular group set up a 24 working group on the prevention of wrongful convictions 25 and that is what I was and am a member of.
161 The group was set up in the fall of 2002 2 and it was formed in response to a number of high profile 3 wrongful conviction cases across the country, including 4 the David Milgaard case in Saskatchewan, Thomas Sophonow 5 in Manitoba, and the Guy Paul Morin case, of course, in 6 Ontario. 7 Ontario played a significant role in this 8 particular group which had a mandate to, and has a 9 mandate to, develop a list of best practices to help both 10 prosecutors and police better understand the causes of 11 wrongful conviction and make recommendations in terms of 12 policies and protocols and education to guard against 13 future miscarriages of justice. So the focus of this 14 particular group is a pro-active, preventative aspect 15 focussed on prosecution and police practices and 16 policies. 17 So the group prepared a report, which I 18 think has been circulated to some people here, entitled 19 "The Report on the Prevention of Miscarriages of Justice: 20 FPT [which is federal/provincial/territorial] Heads of 21 Prosecution Committee Working Group." 22 The report was done in -- com -- completed 23 in January of 2005 and was taken to the Justice Ministers 24 meeting, i.e., the -- all of the Justice Ministers from 25 across Canada, where they approved the recommendations in
171 the report. 2 The -- the recommendations in the report, 3 a I say, have to do with different policies and 4 procedures for prosecution services and for police. The 5 report has been widely disseminated within Canada. 6 Ontario has reviewed the report and I -- I'm happy to say 7 that I think almost all, if not all, of the 8 recommendations have been implemented in Ontario and 9 either had been implemented before the report or 10 following the report, because we've -- we've monitored 11 the issue very carefully, particularly since the Guy Paul 12 Morin case. 13 MR. MARK SANDLER: All right. We'll come 14 back to some of the issues identified, or recommendations 15 identified, in the report perhaps a little bit later in 16 the piece. 17 And again, simply by way of introduction 18 at this point, Mr. MacFarlane, you had involvement as 19 well in -- in the report that's described by Ms. Nethery, 20 am I right? 21 DR. BRUCE MACFARLANE: Yes, I did. 22 MR. MARK SANDLER: And -- and could you 23 describe what that involvement was? 24 DR. MARK SANDLER: Well, it was 25 involvement at a couple of different levels. I -- at the
181 time that the report was commissioned, I was the Deputy 2 Attorney General for the Province of Manitoba and was the 3 co-chair of the Deputy's counsel. So the -- the report 4 came back at various stay -- stages to Deputies for 5 review and comment and ultimately came to the table of 6 Deputies, was approved and -- and we directed -- directed 7 that it go to the table of Ministers of Justice for their 8 consideration and hopefully their approval, which 9 ultimately did happen. 10 So the -- my role was that of co-chair of 11 the Deputy's process to -- to monitor, to review, and 12 ultimately to approve of the report. 13 The report also refers to a document that 14 I prepared in my role as Deputy Attorney General 15 concerning wrongful convictions, so the report tracked 16 many of the recommendations that I have made in my own 17 paper. So I had two (2) separate involvements in the 18 reports. 19 I should add, as well, that it -- it 20 probably is the first time that I can think of, perhaps 21 in the commonwealth, where this type of report has been 22 attempted and completed because it involved all 23 jurisdictions, all provinces, all territories, it was 24 approved at all levels, and also brought in the policing 25 community, the Canadian Association of Chiefs of Police
191 were involved in -- I think that's probably one (1) of 2 the first times that the police have been a part of this 3 process. It was thought that that was really important 4 because many of the recommendations are directed to 5 policing practices, so the policing community embra -- 6 embrace this document, as well. 7 It has been reviewed publically in the 8 Criminal Law Quarterly by a scholar, and essentially he 9 said that it's -- it's an extremely good document. So it 10 was in my view quite a contribution to the understanding 11 of the causes and the cures for wrongful conviction. 12 MR. MARK SANDLER: And -- and we will 13 talk about some of the implementation challenges 14 associated with -- with come of those recommendations a 15 little bit later. 16 The last introductory piece that I want to 17 ask you about, Mr. MacFarlane, is that you were also 18 involved in your role as Deputy Attorney General in the 19 creation of a Forensic Review Committee within the 20 Government of Manitoba. And we're going to be looking at 21 a number of models in -- in the questions that follow. 22 The questions get harder, I promise you. But we're going 23 to be looking at some of the models that might be adopted 24 to address some of the challenges identified at this 25 Inquiry.
201 But can you just describe for the 2 Commissioner what that Forensic Review Committee was all 3 about, what it was mandated to do, and what in fact it 4 did do. 5 DR. BRUCE MACFARLANE: In Manitoba it 6 became apparent to us that a certain type of evidence 7 that previously had been relied upon by the Crown and by 8 the police regularly, namely hair microscopy evidence, 9 was increasingly in doubt in terms of its accuracy, and 10 the DNA had effectively taken it over. 11 And in at least two (2) cases in Manitoba 12 where we did a double-check on the accuracy of the 13 original evidence, which is based on hair microscopy 14 evidence, the DNA showed that the evidence was either 15 misleading or it was wrong, and that greatly concerned my 16 department and me in my role at the time. 17 So a decision was taken to establish a 18 review committee; it had no legislative foundation. To 19 the best of my knowledge, it had not been tried before in 20 Canada, but we thought it best to set up an independent 21 review mechanism to rea -- in essence, reach back and 22 look at a whole bunch of cases to see if there were 23 problems in any of those cases. 24 So it was a double-check, it was an audit, 25 it was a -- it was a -- a review -- a review of previous
211 cases. We thought it important to have it independent 2 from government, or at least largely independent from 3 government, because the department had an interest in the 4 cases, having prosecuted all of them. 5 So it was thought that we should set up a 6 -- an advisory committee consisting of a number of 7 different people; multidisciplinary in nature, including 8 the Assistant Deputy Attorney General for the province, a 9 senior Crown attorney, a defence lawyer who is appointed 10 by the Association in Defence of the Wrongfully 11 Convicted, a representative from the Royal Canadian 12 Mounted Police, and the Winnipeg police service, and 13 scientists from the University of Manitoba who was 14 unconnected to any law enforcement agency. 15 Their mandate was to review all of the 16 cases of culpable homicide that have been -- been 17 prosecuted in the province during the preceding fifteen 18 (15) years, in which microscopic hair comparison evidence 19 had been tendered and relied upon. Where the accused had 20 pleaded not guilty at trial, asserting factual innocence, 21 but was found guilty, and had appealed the conviction to 22 the Court of Appeal, still asserting factual innocence, 23 and that appeal was dismissed. 24 And the Committee was asked to consider a 25 number of things: First of all, the nature of the
221 evidence that was tendered in the context of the trial 2 record. Whether with the benefit of current scientific 3 expertise, the conclusions tendered by the Crown at the 4 trial were incorrect or overstated. 5 Thirdly, the extent to which the Crown had 6 relied upon that evidence to prove the case. Similarly, 7 any comments that were made by the trial judge concerning 8 the probative value or weight to be given to the 9 evidence. And finally, any other factors that may assist 10 in whether a miscarriage of justice had occurred. 11 The overall mandate of the Committee was 12 to consider whether there was a reas -- a reasonable 13 basis to believe that by virtue of this evidence that any 14 miscarriages of justice may have occurred in the 15 province. 16 So in that sense it was a pro-active body. 17 It was not responding to an allegation of a miscarriage 18 of justice, but in essence was looking to see if any had 19 occurred and had not been raised. The Committee had -- 20 was given one (1) year to review all of these cases and 21 report back to me. 22 The -- the Committee then set about to 23 determine what the inventory of cases was. But before I 24 go into that, I should comment on the -- the publication 25 of this initiative. It was thought that rather than
231 simply doing it in -- privately, that the public ought to 2 know that this review is taking place. 3 So a formal announce -- announcement was 4 made of the -- the establishment of the Committee and the 5 type of work it was going to be doing. And before that 6 announcement was made, it was thought as well that we 7 should be consulting with AIDWYC, and in particular, Mr. 8 Lockyer, to -- to obtain his views on the initiative. 9 We did do that. Mr. Lockyer was 10 supportive. If I recall correctly, he consulted with 11 some of his colleagues in the United States within the 12 Innocence Project, and he got back to me and said that 13 AID -- AIDWYC was supportive of the initiative and would 14 publically support it. And in fact, Mr. Lockyer was at 15 the public announcement in my office. 16 So that was -- we thought it very helpful 17 to have support from the private sector, and in 18 particular from AIDWYC. 19 The Committee then set about doing its 20 work, and given the terms of reference, developed an 21 inventory of cases. Initially, approximately a hundred 22 and fifty (150) some odd cases were identified, and then 23 the criteria were applied, and bit by bit the cases were 24 reduced by the Committee to two (2) of concern. 25 There's a report, I should add, that's on
241 the Manitoba Justice website that sets out all the 2 details, so I won't go into all the details. 3 But the Committee reported back to me that 4 there was two (2) cases of concern to them, one (1) in 5 particular, a case by the name of Kyle Unger. 6 It was evident from the report to me that 7 that one was being highlighted as a -- an area of great 8 concern. The Court of Appeal in affirming conviction in 9 the case of Mr. Unger specifically noted, and relied 10 upon, the evidence in question. 11 After conferring within the department, it 12 was thought that there was sufficient concern about the 13 case concerning Mr. Unger, that we relayed our concerns 14 to Mr. Lockyer and to AIDWYC, and indicated that we would 15 be prepared to support any application that was made 16 under Section 696. 17 Shortly after that, Mr. Lockyer and AIDWYC 18 did make applica -- application under section 696 of the 19 Criminal Code, and within a short period of time, I 20 believe it was about a week after the application was 21 made, the Attorney General of Manitoba wrote to the 22 Federal Minister, indicating his support for the 23 application, and in fact went further, and recommended 24 that the case be referred back to the Court of Appeal for 25 reconsideration.
251 The second case was of a different sort, 2 because there was a -- a large body of other types of 3 evidence inculpating the accused, so Manitoba Justice 4 sent the case out for an independent review of the case, 5 and I believe that the issue is still pending. I'm not 6 sure of the present status, because I -- I left the 7 department as that was taking place. 8 MR. MARK SANDLER: Okay. 9 DR. BRUCE MACFARLANE: Our -- our -- 10 sorry? 11 MR. MARK SANDLER: No, no, that's all 12 right. I'm going to come back to how that might be 13 applied in the context of some of the issues that we're 14 dealing with, in a moment. 15 What I intend to now do, after some of the 16 discussion of some of the mechanisms that have been 17 employed in the justice system, here and elsewhere, put a 18 series of scenarios to you to invite some consideration 19 to how we might deal with them, and what recommendations 20 our Commissioner might make in those regard. 21 So I -- I want to talk about the one-off 22 kinds of situations. I want to talk about a situation 23 where a particular pathologist has been identified as 24 engaging in -- in problematic work. And I want to talk 25 about scenarios in which the science has changed, which
261 invites reconsideration as to whether or not anyone's 2 been wrongly convicted. 3 So lets start with the one-off situation, 4 and I'll turn -- turn to Dr. Pollanen, for a moment. 5 You get a call from -- as the Chief 6 Forensic Pathologist, from -- from a lawyer who acts for 7 an individual who has been convicted of murder. And -- 8 and you are advised -- you know nothing about the case. 9 It wasn't a case that you originally did. You are 10 advised that forensic pathology figured prominently in 11 the conviction. 12 And the lawyer says, Dr. Pollanen, I have 13 a lot of confidence in you, or in your group, I'd like 14 you to review this case. I think this man may have been 15 wrongly convicted on the basis of the forensic pathology, 16 and his appeal remedies have been exhausted. 17 What do you say to that person? 18 DR. MICHAEL POLLANEN: Well just -- just 19 by way of sort of situating this, I think I've indicated 20 throughout my testimony at this Inquiry that the -- the 21 fundamental principle upon which forensic pathology is 22 based is a search for the truth, and that process needs 23 to be embedded within a competent system of, you know, 24 criminal justice system, where the pathologist 25 contributes information, and opinions to that system.
271 So with that premise, the forensic 2 pathologist that's confronted with that issue needs to 3 give a proportional response. And what that means in our 4 current context is not entirely clear, because there is 5 no codified procedure on what to do in that circumstance 6 so it essentially would come down to an exercise in 7 discretion. And given the -- the gravity of that 8 situation, it would require further investigation. 9 So the -- I think the forensic pathologist 10 would be -- have to -- would be in a position where, you 11 know, some of the issues would need to be canvassed, 12 discussed with other members of the department, and then 13 come to a view, a discretionary view, on how to proceed. 14 MR. MARK SANDLER: All right. Have -- 15 have you been faced with this scenario before? 16 DR. MICHAEL POLLANEN: Yes. 17 MR. MARK SANDLER: And -- and what did 18 you do? 19 DR. MICHAEL POLLANEN: Well, in the -- if 20 -- if we differentiate scenarios that have touched this 21 Inquiry from -- 22 MR. MARK SANDLER: Right. 23 DR. MICHAEL POLLANEN: -- scenarios 24 outside of the Inquiry -- perhaps I'll tell you about the 25 scenarios outside of the Inquiry.
281 MR. MARK SANDLER: I'd prefer that for 2 now. 3 DR. MICHAEL POLLANEN: So they're in -- 4 in one (1) circumstance a case was before the Court of 5 Appeal, an amicus curiae was appointed, and there was a 6 request from that representative to have the case 7 reviewed. I felt, and as did the Chief Coroner, that 8 that was an appropriate thing to do. So that case was 9 then reviewed for the amicus curiae and that report 10 subsequently went to the Court of Appeal. 11 MR. MARK SANDLER: And just stopping 12 there for a moment, that's a little easier scenario, I 13 think you would acknowledge, given the fact that's almost 14 tantamount to getting a request from the Court. I -- the 15 dynamic's a little different than -- than the one (1) 16 that I put, I take it. 17 DR. MICHAEL POLLANEN: Yes, that -- that 18 exercise in discretion is easier, clearly. 19 MR. MARK SANDLER: All right. Go ahead, 20 if you would. 21 DR. MICHAEL POLLANEN: So other than that 22 there have been very few additional requests. There have 23 been requests from AIDWYC outside of what we would 24 properly consider cases within this group, before this 25 Inquiry. And again, that's ultimately resulted in
291 exercising discretion on to what extent a review would be 2 done or could be done, based upon factors specific to the 3 case. In those circumstances how we've managed them in 4 the past has been a collaboration between the Chief 5 Forensic Pathologist and the Chief Coroner trying to come 6 to a view as to what the best approach is. 7 I would say that we would benefit from 8 having specific policy procedure or codified practice on 9 how to deal with cases like that. And I'm thinking 10 specifically about harmonising practices between the 11 Centre of Forensic Science and our organisation where 12 similar criteria or decision making processes can be 13 engaged to determine if post conviction testing or review 14 is -- is performed. 15 MR. MARK SANDLER: What do you see your 16 responsibility or role in contacting the Crown as part of 17 the discretionary decision making process in those kinds 18 of cases that have engaged the criminal justice system? 19 Has that been done and -- and do you see 20 that as an appropriate part of the protocol, or -- help 21 me out as to that? 22 DR. MICHAEL POLLANEN: Well, I think we 23 have to recognise that pathologists can be involved in -- 24 in -- through two (2) separate mechanisms. We're now 25 talking about engagement of government pathologists,
301 pathologists employed by the State, whereas other 2 pathologists can be requested to give an opinion, for 3 example, for the defence in a post conviction scenario. 4 So there -- that circumstance where the -- 5 for example, if I'm involved in a post conviction review 6 outside the province I would not necessarily communicate 7 with the state apparatus, but in our scenario we 8 typically would discuss the case or obtain information 9 from the Crown. And that is part of, in my view, 10 developing a more fulsome picture of the case, additional 11 information. 12 MR. MARK SANDLER: Okay, two (2) other 13 questions arising out of it. The first is, let's assume 14 in my scenario that one (1) of the three (3) employees 15 that work directly under you represented the pathology 16 that was done in the case, would that change the 17 response, as opposed to it being -- having been done in - 18 - in the Hamilton Unit or -- or somewhere else? 19 DR. MICHAEL POLLANEN: No, and the point 20 here being that in -- in terms of logical consistency, in 21 -- in '95, 1995, we decided -- the organization decided 22 that we were going to change our response to forensic 23 pathology. Prior to '95 we -- what the Forensic 24 Pathology Service offered was individual autopsies 25 performed under a warrant for post-mortem examination.
311 After '95, when we started reviewing autopsy reports we 2 tacitly took ownership of monitoring the quality of that 3 work. 4 So essentially the how -- how the autopsy 5 was performed or where it was performed within our system 6 becomes less important because we've accepted a level of 7 responsibility or a level of -- of review of quality for 8 the product. 9 MR. MARK SANDLER: Okay. And when you 10 say that you'd welcome a protocol in place, does that 11 reflect in part not only some uncertainty as to the 12 process to be engaged, but -- but who's going to pay for 13 the process and some of the resource issues that would be 14 associated with it? 15 DR. MICHAEL POLLANEN: Yes, clearly. I 16 think there -- there are many issues there. I mean, the 17 first is you want to -- to treat these requests 18 consistently and not rely upon different people's 19 discretion or thresholds for -- for making reviews or 20 responding. 21 And the second is, it is resource 22 intensive. Some -- some of these cases require weeks and 23 weeks of work, additional testing, literature reviews. 24 They can be quite labour intensive so there is -- there 25 is a significant consideration in terms of workforce --
321 MR. MARK SANDLER: Okay. 2 DR. MICHAEL POLLANEN: -- that needs to 3 be factored in. 4 MR. MARK SANDLER: All right. Ms. 5 Nethery, let's assume that -- that the chief forensic 6 pathologist of the province has received that kind of 7 phone call and -- and he wants to get the input of the 8 Ministry on the review process. 9 First of all, is there anything in place 10 that would tell him who he should be speaking to who 11 would have some special expertise or ability to respond? 12 And second of all, what should the Crown's response be 13 when Dr. Pollanen raises that issue with the Crown? 14 MS. MARY NETHERY: Okay. To answer your 15 first question, and -- there is a special process in 16 place now that I think -- and I think Dr. Pollanen is -- 17 is aware of it, and it's called the Ontario Criminal 18 Conviction Review Committee. And I'm sorry, you may have 19 asked me about this before and I -- I forgot to answer, I 20 was so focussed on the Heads of Prosecution. But just -- 21 MR. MARK SANDLER: Now's your chance. 22 MS. MARY NETHERY: Now's my chance. 23 Thank you. In May of 2006, then-Attorney General Michael 24 Bryant announced the establishment of the Ontario 25 Criminal Conviction Review Committee, which is intended
331 to provide leadership and act as a resource for Crowns 2 across the province in the prevention of wrongful 3 conviction. 4 The committee is composed of six senior 5 Crown counsel. I'm -- I am one of them. Some of them 6 are from the Crown Law Office Criminal, which is our 7 appellate group, and as well we have trial Crowns on the 8 committee. We're also advised by the Honourable Patrick 9 LeSage, former Chief Justice of the Ontario Supreme Court 10 of Justice. 11 The role of the committee is to review 12 criminal convictions where there is an allegation of a 13 potential miscarriage of justice, and then provide 14 guidance to -- to the Crowns who are dealing with the 15 cases. So we -- we're also developing educational and 16 policy programs aimed at preventing miscarriages of 17 justice and developing protocols and best practices for 18 dealing with these cases. 19 So that, you know, to answer the question, 20 there is a process in place. Dr. Pollanen, I think, 21 should call the committee. The committee can then refer 22 the matter to the Crown Law Office Criminal if that's 23 appropriate, because that group looks after the six 24 ninety-six point one (696.1) review cases. And I think 25 we talked about the appellate -- our routes being
341 exhausted in this case and that would usually be the -- 2 one (1) of the places to go in that kind of a situation. 3 The Crown would -- of course, the group, 4 the committee, and the Crown who was assigned to the case 5 would want to know some of the information from Dr. 6 Pollanen about the concerns that have been raised, 7 because I assume he's calling us because there are some 8 concerns about potentially faulty pathology or changes in 9 the science, which we would want to know about. 10 Make some -- give some advice to the Crown 11 and give some advice to Dr. Pollanen as to -- to how to 12 proceed. Refer the matter potentially to the six ninety- 13 six point one (696.1) review committee. Make disclosure 14 to defence counsel of anything that we are aware of. So 15 there is that process in place. 16 And in terms of developing protocols and 17 best practices with the Office of the Chief Coroner and 18 the Chief Forensic Pathologist, we do have protocols with 19 the Centre of Forensic Sciences about how we deal with 20 their cases, and we'd -- we'd certainly be pleased to 21 enter into that kind of discussion with -- with the other 22 groups as well. 23 MR. MARK SANDLER: Because you can see 24 all the issues that might be raised: What is the 25 threshold for -- for review, and -- and the resource
351 issues, and -- and all of that. 2 MS. MARY NETHERY: Exactly. 3 MR. MARK SANDLER: Okay. And do you 4 agree with him that there should be some analogy or 5 parallel between the protocols for the Centre of Forensic 6 Sciences and for forensic pathology? Does that make 7 sense to you? 8 MS. MARY NETHERY: That makes -- that 9 makes a considerable amount of sense to me, yes. 10 Absolutely. 11 MR. MARK SANDLER: Okay. 12 MS. MARY NETHERY: And -- and we -- we're 13 certainly open and cooperative in -- in that area, and I 14 think -- and particularly with this new committee, which 15 gives us a venue to look at some of these issues. 16 MR. MARK SANDLER: All right. Mr. 17 Scullion, let's assume that the lawyer for -- for this 18 party gets on the phone to you first, in -- instead of to 19 Dr. Pollanen, and says, You know, I've got some real 20 concerns about the forensic pathology that was given in 21 this case. 22 Perhaps it's based upon something I've 23 read on the internet. Perhaps it's based upon what I've 24 seen in other judicial decisions that have come down the 25 pipe.
361 I've got resource issues in -- in 2 addressing the pathology. Can you help me out here? 3 Do you see it as your role to -- to take 4 more of an initiative in -- in obtaining the pathology, 5 or investigating what is said, or -- or is the onus truly 6 on the applicant, within your structure, to put together 7 the evidence upon which he or she relies? 8 MR. KERRY SCULLION: Well, we have to be 9 careful that we -- we don't provide advice to people. 10 That's the -- that's one (1) aspect of -- of your 11 question. 12 But certainly if somebody were to phone up 13 with that type of issue, you know, we would point him to 14 the application process. 15 We would explain to him what -- what we 16 require. Depending on the jurisdiction, where the 17 individual is calling from, there may be a necessity that 18 he exhaust his remedies within the -- the Court system. 19 Some provinces take the position that if 20 the case hasn't gone to the Supreme Court of Canada, the 21 Minister has no jurisdiction. Other provinces take the 22 position that if it's gone to the Court of Appeal, we're 23 satisfied that the Minister can review a case after that. 24 So that's the first question, and -- so 25 let's assume for the sake of argument, he -- this
371 gentleman, or person, has gone to the Supreme Court of 2 Canada. We would -- we would point him to the -- to the 3 application process, and yes, if -- if it's a matter that 4 we could do some testing, we would do that type of 5 testing. We would ask him to -- to, you know, file the 6 material, the -- the transcripts, his trial materials, 7 and stuff like that, and -- and review the case. 8 And if it's a case of resources, we have 9 resources where we can request professional opinions -- 10 expert opinions -- have expert testing done, forensic 11 testing done. 12 So there's a lot of -- of variables in -- 13 in your question, but -- 14 MR. MARK SANDLER: Mm-hm. 15 MR. KERRY SCULLION: -- it's not 16 impossible for us to -- for our sector to -- to take on 17 that type of case and -- and provide the funding for the 18 testing. 19 MR. MARK SANDLER: Mr. MacGregor, the -- 20 the same lawyer, who's a little confused about his 21 jurisdiction, calls you, and -- and says, How are you -- 22 How can you help me out in this scenario? I don't have a 23 forensic pathologist as of yet. I have concerns based 24 upon what I've read, and -- and my nagging doubts about 25 the case based upon my prior involvement.
381 What should I do? 2 MR. ALASTAIR MACGREGOR: Well, assuming 3 that -- that he was able to explain to us what the nature 4 of the concerns were, and they were not obviously 5 frivolous, I think our natural reaction would be to 6 investigate. That might not mean that we rush straight 7 off to get an expert report, but we would certainly 8 accept an application under those circumstances and we 9 might well do so even in circumstances where there's been 10 no previous appeal. 11 It would seem -- I think we generally take 12 the view it's -- it's often rather pointless to tell 13 someone to go off to make an obviously doomed application 14 with no information at all. 15 It's just so that we can qualify to make 16 an application to us. 17 MR. MARK SANDLER: All right. 18 COMMISSIONER STEPHEN GOUDGE: Can I ask, 19 Mr. MacGregor, do you have a threshold before you will 20 accept a case and investigate it yourselves? 21 You talked about "obviously not 22 frivolous". Is that -- 23 MR. ALASTAIR MACGREGOR: Well, we -- we-- 24 COMMISSIONER STEPHEN GOUDGE: -- is there 25 any legally articulated threshold?
391 MR. ALASTAIR MACGREGOR: There isn't 2 really, no. We do screen each case as it comes in. 3 COMMISSIONER STEPHEN GOUDGE: Right. 4 MR. ALASTAIR MACGREGOR: There are some 5 of which we take the view there are clearly no reviewable 6 grounds, and perhaps all that is being done is repeating 7 grounds that have all ready being dealt with by the Court 8 of Appeal -- 9 COMMISSIONER STEPHEN GOUDGE: Right. 10 MR. ALASTAIR MACGREGOR: -- with no new 11 element there at all. But part of the difficulty is, of 12 course, that one can't actually rely on applicants to 13 know what is relevant, or to know what information there 14 is out there. 15 And, so it's -- it is difficult to make 16 that decision. But resources require us, at least to 17 some extent, to say, Well, this one (1) we think is worth 18 investigating. This one (1) is not. 19 COMMISSIONER STEPHEN GOUDGE: What do you 20 apply to do that? 21 MR. ALASTAIR MACGREGOR: I think we apply 22 common sense, but exercised on a very generous basis to 23 the applicant. 24 Unless it is, or appears to be, 25 transparently clear that they are -- they are raising
401 nothing, and there's nothing having looked at the summing 2 up, and -- and the papers, there's nothing that strikes 3 us as -- as giving rise to concern. 4 COMMISSIONER STEPHEN GOUDGE: Right. And 5 then I take it you would devote resources to see if the 6 case rose to the level of reasonable possibility -- 7 MR. ALASTAIR MACGREGOR: Oh absolutely, 8 and we would -- in those circumstances, assuming that 9 there was some reason to believe that there was a problem 10 with the pathology evidence, we would almost certainly 11 seek our own report on that. And then one of the -- 12 COMMISSIONER STEPHEN GOUDGE: What is 13 your case volume per year? 14 MR. ALASTAIR MACGREGOR: About a thousand 15 (1,000) a year. And we -- 16 COMMISSIONER STEPHEN GOUDGE: A thousand 17 (1,000) that you are devoting resources to to see if they 18 -- 19 MR. ALASTAIR MACGREGOR: A thousand 20 (1,000) -- a thousand (1,000) -- a thousand (1,000) that 21 we receive a number -- 22 COMMISSIONER STEPHEN GOUDGE: How many 23 would you consider active in the sense of we are now 24 going about the business of seeing whether when we gather 25 the information pro-actively, it rises to the reasonable
411 possibility of quashing level? 2 MR. ALASTAIR MACGREGOR: Well, it's very 3 difficult to say, because I mean sometimes, as it were, 4 the issues are purely legal ones that we may pick up -- 5 COMMISSIONER STEPHEN GOUDGE: Right. 6 MR. ALASTAIR MACGREGOR: -- and sometimes 7 they will direct us to a specific issue and say this is 8 really where the problem lies, and one may or may not 9 decide to investigate it depending on -- but a -- a 10 substantial proportion do receive investigation. 11 They all receive investigation to at least 12 the extent of getting the court file, reading the summing 13 up. In sex cases we tend to get applications to criminal 14 cases review commission. We may do a search on whether 15 or not the complainants had other problems, that kind of 16 thing. 17 COMMISSIONER STEPHEN GOUDGE: Right. 18 Right. Can I just ask Mr. MacGregor one (1) more 19 question -- 20 MR. MARK SANDLER: Sure. 21 COMMISSIONER STEPHEN GOUDGE: -- Mr. 22 Sandler? It goes back to Goldsmith. When Goldsmith did 23 the original review -- 24 MR. ALASTAIR MACGREGOR: Yeah. 25 COMMISSIONER STEPHEN GOUDGE: -- what
421 would the threshold have been that had to be met before 2 the case was identified as troubling? That is, how were 3 the thirty-one (31) identified? 4 MR. ALASTAIR MACGREGOR: Well, it's 5 problematic. They -- there were, I think, three (3) that 6 they identified as being absolutely pure tennings 7 (phonetic) which would -- they'd been -- where there was 8 really directly opposed evidence -- 9 COMMISSIONER STEPHEN GOUDGE: Right. 10 MR. ALASTAIR MACGREGOR: -- from one side 11 or other and really nothing else -- 12 COMMISSIONER STEPHEN GOUDGE: Right. 13 MR. ALASTAIR MACGREGOR: -- to point the 14 way. Beyond that the decisions clearly were heavily 15 influenced by what was the other evidence; how important 16 was the pathology or whatever. 17 COMMISSIONER STEPHEN GOUDGE: Right. 18 MR. ALASTAIR MACGREGOR: How strong was 19 the other evidence. As to precisely how they identified 20 those thirty-one (31), it's -- it's hard to be sure. 21 COMMISSIONER STEPHEN GOUDGE: A little 22 murky? 23 MR. ALASTAIR MACGREGOR: A little murky, 24 yes, but -- 25 COMMISSIONER STEPHEN GOUDGE: It was done
431 in-house essentially? 2 MR. ALASTAIR MACGREGOR: It was done -- 3 well it was the CPS very largely with, I think, there 4 were police involvement, I think there was law society 5 involvement, and we gave some advice as to the sort of 6 documents that they might like to get. I mean, they -- 7 the entire exercise started, you may recall, as a result 8 of a pathologist at the Sally Clark trial -- 9 COMMISSIONER STEPHEN GOUDGE: Right. 10 MR. ALASTAIR MACGREGOR: -- who it became 11 apparent had not disclosed information -- 12 COMMISSIONER STEPHEN GOUDGE: Right. 13 MR. ALASTAIR MACGREGOR: -- an infection 14 because he didn't think it was relevant. And that then 15 triggered the Attorney to order an investigation into all 16 previous cases in which he'd testified, lest there be a - 17 - a risk, and then that was overtaken by Cannings and -- 18 COMMISSIONER STEPHEN GOUDGE: Right. 19 MR. ALASTAIR MACGREGOR: -- so on. 20 COMMISSIONER STEPHEN GOUDGE: Right. 21 Thanks. Thanks, Mr. MacGregor. 22 23 CONTINUED BY MR. MARK SANDLER: 24 MR. MARK SANDLER: All right. Lets leave 25 the scenario for a moment, and we'll probably revisit it
441 in another context, but I'm -- I'm going to come back to 2 Dr. Pollanen. 3 Recently, as a matter of fact January the 4 31st of 2008, in a -- in a case entitled State of 5 Wisconsin and -- and Edmunds, the Appellate Court set 6 aside a conviction that was based in part upon -- or in 7 large measure upon the pathology. And in doing so, 8 wrestled with the very difficult issue of the shifting 9 forensic pathology state of knowledge, from some level of 10 confidence or certainty to grey murkiness. And it has 11 certain parallels to some of the cases -- or at least one 12 (1) case under consideration here. 13 Without talking about the case here, could 14 you just tell the Commissioner, literally very briefly, 15 because I know you're familiar with the case, what the 16 pathology was, and what was the issue that attracted the 17 fresh evidence application? 18 DR. MICHAEL POLLANEN: Well, my 19 understanding of the case, essentially is as you put it. 20 It was a -- it was a triad case where the -- the issue 21 that was ult -- how it was ultimately framed was whether 22 the nature of the controversy regarding the specificity 23 of the triad ultimately constituted fresh evidence. 24 In other words, instead of providing 25 additional testing in -- in a -- in a forensic setting,
451 did the -- did the growth of knowledge issue amount to 2 something that requires re-examination of the case in the 3 legal sense. I think the other issue was closely linked 4 with that timing, specifically timing as inferred by the 5 presence or absence of a lucid interval after punitive 6 injury. 7 So that -- that is of -- I think that's 8 the dimension there and it really represents the 9 fundamental issue. That case really encapsulates the 10 fundamental issue with the shaken baby spectrum -- the 11 infant head injury spectrum -- to what extent does a 12 qualitative shift in -- in the medical knowledge 13 precipitate definitive action? 14 And I just want to make one (1) point here 15 just in -- on comparison because it comes to some of the 16 heart of the issues with regard to these types of post- 17 conviction reviews. 18 If you look at the Manitoba experience 19 with hair -- comparison hair, microscopy versus 20 mitochondrial DNA. In that scenario, what the science is 21 offering is a gold standard comparison. 22 So it was a double-check based upon 23 improved scientific understanding that did reach not a 24 murky level, but a definitive level. 25 COMMISSIONER STEPHEN GOUDGE: Back to our
461 certainty discussion. 2 DR. MICHAEL POLLANEN: Exactly. And -- 3 and the -- if you were to sort of draw a straightforward 4 comparison with hair microscopy, the shaken baby issue 5 does not have a one/one (1/1) correspondence because the 6 -- the state of the medical knowledge does not offer any 7 type of gold standard review, and this is further 8 complicated by the fact that that answer may come in the 9 future. 10 So -- so there -- the issues are, in fact, 11 somewhat parallel, but in fact, even more complicated 12 from a scientific point of view. 13 14 CONTINUED BY MR. MARK SANDLER: 15 MR. MARK SANDLER: All right. So let's 16 take our Wisconsin model, and we know that the Appellate 17 Court in that case felt that the fresh evidence as to 18 where the science has moved -- not from certainty to 19 another certainty, but from some level of confidence or 20 certainty to murkiness -- justified to setting aside of 21 the conviction. 22 So the question that I'm going to raise 23 with the entire panel is: Let's assume that same 24 scenario in your respective jurisdictions and here in 25 Ontario. There is evidence that is now available that
471 suggests that the confidence with which forensic 2 pathologists testified about certain cases is no longer 3 justified. The forensic pathologists do not have the 4 definitive answer, but we now have a significant level of 5 murkiness, to use Dr. Pollanen's phraseology, about it. 6 So I'm going to start with Dr. Pollanen 7 and then move down the table. How does one now deal, in 8 your mind, with the subset of cases that has been created 9 as a result of the shift of science? 10 DR. MICHAEL POLLANEN: Well, I've 11 struggled with that and tried to develop some type of 12 framework upon which to think about it from a forensic 13 pathologist perspective, and I can tell you the -- the 14 best that I've come up with. 15 And that is essentially this; that there 16 are three (3) issues from my point of view. There are 17 scientific issues. There are policy issues -- public 18 policy or inter-ministerial policy issues. And then 19 there are issues related to advocacy -- legal processes. 20 And from a forensic pathologist point of 21 view, I think that the no fly zone has to be advocacy. I 22 think that the forensic pathologist -- whatever process 23 it is ultimately engaged by whatever authority -- the 24 forensic pathologist can -- must remain above the fray, 25 as it were, cannot be involved in advocating for specific
481 cases, must maintain the usual relationship that the 2 expert has with the criminal justice system. 3 So, whatever decisions are made by the 4 state or by other players need to respect the -- the 5 boundaries that delimit the role of the expert witness. 6 I think that's a very important concept because once that 7 barrier is breached, all is lost because then you -- then 8 you make doubt on all the other legitimate areas, such as 9 the science and -- and some of the policy decisions. 10 So if you -- if we take that out of the 11 equation, where the forensic pathologist is not involved 12 in that part of it, you're left with their involvement 13 with the science and the policy. 14 And I think our primary role is that of 15 providing advice to the criminal justice system about the 16 science; providing the scientific context in which the 17 debate exists; maybe doing additional testing if that's 18 necessary; providing advice, for example, engaging other 19 forms of scientific analysis such as bio-mechanics; I 20 think that's where the -- the main role of the forensic 21 pathology community and the forensic pathologist lies 22 within these cases. 23 The second role is really in the -- in the 24 policy area. And the way I see that is something more 25 specific to pathologists that work for the state, so, for
491 example, the Chief Forensic Pathologist. And what I mean 2 by that is that if there is some type of decision-making 3 process that occurs within government, that would be best 4 informed by some type of multi-disciplinary approach. 5 And one (1) of the significant players in 6 that analysis or that process of -- of discovery would be 7 the forensic pathologist because we have something to 8 contribute in the general discussion on the matter. And 9 I -- and I differentiate that from advocacy because I 10 suggest that that's more of a consultative role. 11 So that's -- that's sort of where -- where 12 -- the way I see it and how the forensic pathologists 13 should be involved. 14 MR. MARK SANDLER:. So -- 15 COMMISSIONER STEPHEN GOUDGE: One (1) of 16 the challenges, Dr. Pollanen, that we have heard a great 17 deal about -- and obviously this morning is not the time 18 to get back into it -- is that from one perspective, one 19 could say the science, as it relates to shaken baby, has 20 moved from a consensus of the triad is the indicator to a 21 world of uncertainty. But there are, in the controversy 22 of today, pathologists that say the triad is still 23 enough. 24 DR. MICHAEL POLLANEN: Correct. 25 COMMISSIONER STEPHEN GOUDGE: So it isn't
501 that there is a scientific consensus. Indeed, several of 2 your colleagues have said to us, One (1) of the things 3 that we pathologists have to do is get our act together 4 and see if we can come up with where is the science 5 today. 6 So it isn't as clear as the science has 7 moved from point 1 to point 2. The science has moved 8 from point 1 to point 2, 3, 4, take your pick. 9 DR. MICHAEL POLLANEN: Exactly. And I 10 think that's the point. The point is that the 11 controversy -- we know there's a controversy. But if you 12 ask different forensic pathologists or different forensic 13 pediatricians or ophthalmologists, et cetera, different 14 people will have a different view about the level of 15 controversy. Some people will read the literature and 16 say there is no controversy, but they'll hold, you know, 17 polar opinions. So that -- that is the struggle. 18 COMMISSIONER STEPHEN GOUDGE: A 19 complicating factor -- 20 DR. MICHAEL POLLANEN: It is. 21 COMMISSIONER STEPHEN GOUDGE: -- may be 22 the best we can do at the moment. 23 DR. MICHAEL POLLANEN: That's correct, 24 yes. 25
511 CONTINUED BY MR. MARK SANDLER: 2 MR. MARK SANDLER: So -- so just 3 following up on -- on what the Commissioner's asked you, 4 the controversies, as we've heard, in forensic pathology, 5 are not confined to shaken baby, of course. Dr. Cordner, 6 in his paper and you, in your testimony have outlined a 7 number of controversies that -- that exist, where -- 8 where reconsideration may be given to previously accepted 9 positions advocated or articulated by forensic 10 pathologists. 11 So would you see the -- on the model that 12 you describe, would you see the Commissioner articulating 13 those subsets of cases that should be examined by a group 14 of stakeholders as you've described, or would you see 15 that as the role of -- of the stakeholders? 16 DR. MICHAEL POLLANEN: That's a very 17 difficult question. 18 MR. MARK SANDLER: You say that to me a 19 lot, I find. 20 DR. MICHAEL POLLANEN: Yes. 21 COMMISSIONER STEPHEN GOUDGE: I'd prefer 22 you pick the stakeholder. 23 DR. MICHAEL POLLANEN: Yes. 24 Well, I think that again it comes back to 25 this issue of how is the pathologist best situated to
521 help? I think the pathologist is best situated to help 2 inform the discussion, inform the discourse, as opposed 3 to really deciding who should make the ultimate decision 4 about the nature of it. So I can see a lot of merit with 5 -- with that being accomplished within a 6 multidisciplinary environment. I think that's probably 7 the best -- the best venue for it. 8 I -- I come back to the -- to the issue, 9 however, that if -- you don't have to scratch the surface 10 very much to realize that there are growth of issues in 11 forensic pathology generally. And that's a good thing 12 because that's -- it proves that we're a progressive 13 discipline and -- and in a way it's hopefully scientific, 14 because progress can be measured using scientific 15 criteria. So it -- this is a positive thing. It's a 16 good thing. It must continue. 17 Just one (1) other sort of view on that 18 point that might be relevant, and it's coming back to 19 comments made by some of my colleagues, Dr. Rao, and Dr. 20 Shkrum, and that is that I think there is -- would be 21 value in a professional consensus building process that's 22 -- that's extra judicial and extra legal, as it were, 23 generated by forensic pathologists. 24 And there's a -- there's a model for this 25 where, for example, in -- in various diseases they
531 produce a consortia of experts which meet in a -- in a 2 neutral setting, and they bring experts -- expert minds 3 together, and they essentially decide some of these very 4 thorny issues, partially by consensus, but also through 5 professional debate. And I think that's something that, 6 for example, a university based organization dealing with 7 multidisciplinary concepts in forensic work could 8 facilitate. 9 MR. MARK SANDLER: Okay. So such a 10 consort -- consortia, even though it would be 11 extrajudicial, could help inform the -- the committee, or 12 -- of stakeholders that you've described, that should 13 wrestle with these issues. 14 DR. MICHAEL POLLANEN: Correct. And -- 15 and the point being there is that you -- you have all of 16 these -- these resources that are available, for example, 17 in the knowledge sector, and the -- in the University 18 sector, that, you know, can be coordinated in a -- in a 19 meaningful way, and provide advice. And that should be 20 done. 21 MR. MARK SANDLER: All right. Mr. 22 MacFarlane, I'll turn to you, because what I hear, and 23 maybe I'm wrong, from Dr. Pollanen is not dissimilar to 24 the kind of mechanism that you set up in Manitoba to deal 25 with a very specific issue that had arisen on hair and
541 fibre microscopy. 2 So do you see some lessons to be learned 3 from the model in Manitoba being applied to -- to the 4 issue that I've raised here, namely the changing science 5 in forensic pathology? 6 DR. BRUCE MACFARLANE: I believe that 7 there are parallels. The decision from Wisconsin, I 8 think, raises profound issues. 9 But I -- in terms of the model described 10 by Dr. Pollanen, I think that there might need to be an 11 earlier step and a -- a step that wasn't taken in the 12 Manitoba experience, because it wasn't necessary, because 13 the -- the Manitoba re -- review was very specific. It 14 was relatively easy to define the scope. 15 But I think in this scenario, there has to 16 be an earlier step, which in essence is scoping out the 17 exercise. And my thought would be to have a 18 multidisciplinary type group, which could include 19 forensic pathologists, the Crown, perhaps the police, 20 perhaps the defence, to define the scope of the exercise. 21 I think it -- it needs to be 22 multidisciplinary, and the result could be to conclude 23 that, for instance, it ought to be confined to shaken 24 baby cases where the defendant is still in prison. That 25 would be one (1) way to -- to define a scope. There
551 might be other ways to do it as well. 2 MR. MARK SANDLER: Or at least prioritize 3 those -- 4 DR. BRUCE MACFARLANE: Yes. 5 MR. MARK SANDLER: -- cases. 6 DR. BRUCE MACFARLANE: And it seems to 7 me, as we did in Manitoba, we actually had two (2) waves. 8 The one (1) that I described was the first wave, then 9 there was a second review which enlarged the exercise. 10 And I think that that could be done in this as well. 11 So it seems to me that you need to develop 12 a priority area based on the examination by the 13 multidisciplinary group. And then as well, once that 14 group has completed its task, to seek from it a 15 recommendation on whether there should be a second wave, 16 and if so, then the nature of that. 17 So it -- it could end up being a process 18 that goes on, either consecutively or concurrently, but I 19 think it would be important to scope out the exercise 20 first. 21 MR. MARK SANDLER: All right. 22 COMMISSIONER STEPHEN GOUDGE: Could I ask 23 you a bit, Professor MacFarlane, about the Manitoba 24 experience? 25 I mean you start off with what you've
561 described as a hundred and fifty (150) homicide 2 conviction cases, where hair microscopy had been a part 3 of the Crown's case. You said "relied on". 4 DR. BRUCE MACFARLANE: Yes. The init -- 5 COMMISSIONER STEPHEN GOUDGE: That's -- 6 sorry? 7 DR. BRUCE MACFARLANE: -- the initial -- 8 sorry. The details are in the -- in the report on the 9 net, so I'm going by recollection right now. But the 10 initial inventory was quite expansive, and on a review 11 there were some cases that didn't involve that type of 12 evidence. 13 COMMISSIONER STEPHEN GOUDGE: Yes. 14 DR. BRUCE MACFARLANE: So bit by bit 15 through the application of the criteria the numbers were 16 reduced and further reduced. 17 COMMISSIONER STEPHEN GOUDGE: Yes, at 18 some point judgment calls would have had to be made about 19 how important, in a case where hair microscopy had been 20 tendered, that was in the overall prosecution. 21 DR. BRUCE MACFARLANE: Yes. And they -- 22 the committee was -- 23 COMMISSIONER STEPHEN GOUDGE: How was 24 that done? 25 DR. BRUCE MACFARLANE: The committee
571 retrieved the transcripts of the trial proceedings -- 2 COMMISSIONER STEPHEN GOUDGE: No, I was 3 thinking of what sort of standard -- 4 DR. BRUCE MACFARLANE: Oh. 5 COMMISSIONER STEPHEN GOUDGE: -- did you 6 use? 7 DR. BRUCE MACFARLANE: The -- 8 COMMISSIONER STEPHEN GOUDGE: Was is it 9 Palmer (phonetic) type standard, that is, had the hair 10 microscopy been as we know it to be today, the result 11 might have been different or was it -- there was no other 12 circumstantial evidence before the case got into your 13 troubled category? I mean, how did you do that? 14 DR. BRUCE MACFARLANE: I was not on the 15 committee, the committee reported to me and my -- 16 COMMISSIONER STEPHEN GOUDGE: Right, 17 right. 18 DR. BRUCE MACFARLANE: -- and the report 19 doesn't outline -- outline the details of that, so I -- 20 I'm not sure I can answer that. My best understanding 21 was that the Court -- the committee looked to the 22 comments of Crown counsel and the trial Judge and made an 23 assessment on what role that evidence played in the trial 24 in context. 25 COMMISSIONER STEPHEN GOUDGE: And it
581 would be something relatively flexible, like did it seem 2 to play an important role in the conviction? 3 DR. BRUCE MACFARLANE: Yes, and I know 4 from speaking to the committee chair that with respect to 5 that one (1) case that I referred to, they were quite 6 troubled by the fact that the Court of Appeal had relied 7 upon it in affirming conviction. 8 COMMISSIONER STEPHEN GOUDGE: Right. 9 MR. MARK SANDLER: Thank -- 10 COMMISSIONER STEPHEN GOUDGE: Right. So 11 a case where it was a minor part of the prosecution and 12 there were many other pieces of circumstantial evidence 13 didn't get into the troubled category? 14 DR. BRUCE MACFARLANE: That's correct. 15 MR. MARK SANDLER: Are you -- 16 COMMISSIONER STEPHEN GOUDGE: Okay. 17 Thanks, Mr. Sandler. 18 19 CONTINUED BY MR. MARK SANDLER: 20 MR. MARK SANDLER: Mr. McGregor, two (2) 21 questions. First of all, do you feel there are any 22 lessons that you've learned in Great Britain that can 23 inform this question that I'm asking? And -- and second 24 of all, an argument could be made by some that this 25 scenario simply should be dealt with by having the
591 applicant, if the applicant feels aggrieved, avail 2 himself or herself of the processes that exist in order 3 to seek relief. 4 I'd be interested first in your response 5 to that position that I've just articulated, and second, 6 any lessons that you think help inform this discussion. 7 MR. ALASTAIR MACGREGOR: Well, it seems 8 to me that if the -- the State has reason to -- to 9 suspect that as a result of evidence it has called, 10 people may have been wrongly convicted of serious 11 offences, the State has an obligation to address that. 12 And that effectively means it has to take 13 some steps, it seems to me, to identify cases which may 14 fall into that category of -- of a wrongful conviction, 15 and, as it were, the ones that give concern. And once 16 it's identified those to at least notify the convicted 17 people so that they can take further steps. We can 18 discuss further what those further steps might be. 19 MR. MARK SANDLER: And just stopping 20 there -- and just stopping there for a moment. If -- if 21 we take the Wisconsin scenario I guess the argument could 22 also be made that -- that the person convicted may not be 23 well situated to know about the development in science. 24 MR. ALASTAIR MACGREGOR: Absolutely. I 25 don't think you can trust the, as it were, those who have
601 been involved to be alert to developments in recent neuro 2 -- neurological thinking, or even to concerns that have 3 been expressed publically. 4 I think it is -- there would have to -- 5 not only to, as it were, be aware of those things, they 6 would then have to work out that actually this might be 7 relevant to what had happened to them. They might then 8 presume -- they have to decide, well, I better go and see 9 a lawyer and see whether it does make any -- there are so 10 many barriers that have be got over, it seems to me that 11 it would be difficult to say that -- oh though you could 12 just leave it to people to -- to come forward and say 13 also -- you would have a real risk of missing some 14 deserving cases. 15 COMMISSIONER STEPHEN GOUDGE: That's 16 Goldsmith? I mean, you would say Goldsmith discharged 17 that State duty. 18 MR. ALASTAIR MACGREGOR: Abs -- 19 absolutely. 20 COMMISSIONER STEPHEN GOUDGE: And then we 21 come to, how did Goldsmith decide that the in in-basket 22 there were a certain number of, quote, "troubling cases" 23 that should go to your committee and you and I discuss 24 that and we find it's very murky. The -- 25 MR. ALASTAIR MACGREGOR: It is -- it is
611 very murky and one has to -- but -- but essentially it 2 has to be being generous in almost the -- the way you put 3 it yourself, sir, you know: did this appear to play a 4 significant part; taking a generous view from the point 5 of view of the -- of the applicant. 6 COMMISSIONER STEPHEN GOUDGE: And then 7 leave it up to the -- 8 MR. ALASTAIR MACGREGOR: And then -- 9 COMMISSIONER STEPHEN GOUDGE: -- 10 institutions in place, such as, in your case, your 11 institution -- 12 MR. ALASTAIR MACGREGOR: That's right. 13 COMMISSIONER STEPHEN GOUDGE: -- in this 14 case, Mr. Scullion's six ninety-six (696). 15 MR. ALASTAIR MACGREGOR: Absolutely. And 16 indeed we've had a number of applications based entirely 17 on this shaken baby dispute and one (1) we referred, 18 which was one (1) of the cases dealt with in the Harris 19 judgment folder, began on the basis it had become murky; 20 what had previously seemed clear. 21 COMMISSIONER STEPHEN GOUDGE: Those come 22 to you because the applicant knocks on your door, not 23 because the state says, Please look at this. 24 MR. ALASTAIR MACGREGOR: Usually they do, 25 although --
621 COMMISSIONER STEPHEN GOUDGE: Yes. 2 MR. ALASTAIR MACGREGOR: -- as it were, 3 some came to us as a result of what -- 4 COMMISSIONER STEPHEN GOUDGE: Of what -- 5 MR. ALASTAIR MACGREGOR: -- what Tony had 6 done, yes. 7 COMMISSIONER STEPHEN GOUDGE: Correct. 8 MR. ALASTAIR MACGREGOR: And others, we 9 have taken the view, Well, yes, it did play some part, 10 but there was such overwhelming other evidence, cigarette 11 burns or -- 12 COMMISSIONER STEPHEN GOUDGE: Right. 13 MR. ALASTAIR MACGREGOR: -- bruising or 14 whatever -- 15 COMMISSIONER STEPHEN GOUDGE: Right. 16 MR. ALASTAIR MACGREGOR: -- that made it 17 -- made it clear. 18 19 CONTINUED BY MR. MARK SANDLER: 20 MR. MARK SANDLER: There's another point 21 that -- that should -- should be made here that -- that I 22 know we spoke about yesterday, so -- so I'll -- I'll 23 pursue with you. 24 Acknowledging your opinion that -- that 25 the state has some obligation to, at least, notify
631 potentially affected individuals convicted of the change 2 in the science or the issues of concern that could prompt 3 reconsideration of their cases, you'd also say, as I 4 understand it, that -- that the applicant has to have a 5 significant role to play in whether the case should go 6 ahead. 7 Perhaps you could explain your thinking in 8 that regard. 9 MR. ALASTAIR MACGREGOR: Well, 10 absolutely. I mean, one (1) of the striking things about 11 the thirty-one (31) cases identified by the attorney is, 12 I think, fewer than half actually took the matter 13 anywhere. 14 MR. MARK SANDLER: Right. 15 MR. ALASTAIR MACGREGOR: Some went 16 straight to Court of Appeal, and some came to us. 17 MR. MARK SANDLER: Yeah, I was quite 18 surprised at the number. 19 MR. ALASTAIR MACGREGOR: The bulk appear 20 to have decided, for whatever reason -- maybe that some 21 were not able to be contacted. Others may have, as it 22 were, felt that, I know there wasn't a miscarriage of 23 justice so I'm not going to pursue it. I mean they -- 24 COMMISSIONER STEPHEN GOUDGE: I've got 25 your numbers. Thirty-one (31) were identified. Four (4)
641 of those sought leave. Four (4), in addition, applied to 2 you that had not already done so, and presumably the only 3 other category is the three (3) who were in the process 4 of applying -- 5 MR. ALASTAIR MACGREGOR: Absolutely. 6 COMMISSIONER STEPHEN GOUDGE: -- to you, 7 and then everybody else chose not to do anything. 8 MR. ALASTAIR MACGREGOR: That's right. 9 Whether they did it because, well, they weren't at all 10 troubled by their own conviction, or whether they did it 11 because, as must be a real possibility, this was the 12 nightmare experience of their lives, which they had now 13 put behind them and the last thing they wanted to do was 14 to -- to get up and relive it, particularly where there 15 may have been, as it were, a general sentence or -- or 16 whatever. 17 18 CONTINUED BY MR. MARK SANDLER: 19 MR. MARK SANDLER: But you'd say, But 20 they have that option. 21 MR. ALASTAIR MACGREGOR: They must have - 22 - it seems to me that they must have that right; that it 23 is a question of notifying them and then saying to them, 24 Well, do you wish to pursue it? 25 MR. MARK SANDLER: Mr. Scullion, when --
651 when you look at your processes for a moment, let's 2 assume again that -- that there's a growing consensus of 3 -- I'll try to overcome some of the hurdles identified in 4 -- in our evidence -- a growing consensus that science 5 has moved and that -- and that that movement may have 6 significant implications for a number of convictions in 7 the system. 8 Under your processes, individual 9 applicants bring application. Is there some way that one 10 can do a better job of marrying up multiple applications 11 so that each applicant doesn't have to revisit the 12 changing science; put together the applications including 13 all of the changing science, and present it for review to 14 the Minister? 15 MR. KERRY SCULLION: There is a way. I'm 16 not saying it would be easy. I mean, we're -- we're 17 based on an application-based system. There is some 18 precedent for something what you're suggesting. 19 Justice Ratushny did the self-defence 20 review after the Lavallee case, where she visited -- 21 again, people had to apply -- women had to apply who'd 22 been imprisoned for homicide cases involving partners. 23 The Minister appointed her to conduct that type of 24 review. There is the authority, in the legislation, for 25 the Minister to appoint an agent who could just do these
661 types of cases. 2 I guess it would also depend, I guess, on 3 -- on the type of review that was conducted firstly, by 4 whatever mechanism is set up, as to how extensive that 5 was. I mean, did all -- were all the facts gone into in 6 that type of review and now we're just dealing with this 7 murky case? 8 And -- and in that respect, it could be 9 done that way. It's very much a -- 10 MR. MARK SANDLER: So just stopping 11 there -- 12 MR. KERRY SCULLION: Yeah. 13 MR. MARK SANDLER: -- you're 14 contemplating a situation, for example, where, as here, 15 there's been extensive review of a number of cases done 16 by a group of pathologists retained by the Chief Coroner. 17 There's been a public inquiry that's taken place where 18 evidence has been marshalled in relation to a number of 19 the cases, so -- 20 MR. KERRY SCULLION: We -- we wouldn't 21 reinvent the wheel there. I mean you'd have the -- you'd 22 have the -- the record. You'd have the -- you know, 23 you'd have cross-examination. You'd have examination of 24 witnesses. You couldn't get a better record in that type 25 of scenario. Certainly that would make it a lot easier
671 for us. 2 I was more talking about, sort of like a 3 paper review, like the Goldsmith case where cases were 4 referred in -- in that way. But certainly in -- in an 5 inquiry type review, we make things much easier. 6 And it's also much simpler when there's 7 consensus, when there's -- when both sides or both 8 parties are saying, Well, this is the type of case 9 Minister -- because it's very much the Minister puts 10 cases back into the system. That -- that's what our 11 process is designed to do, not findings of innocence or 12 guilt. 13 It's very much designed to put a case back 14 in the system, and if you have both parties saying, This 15 is a case that calls for being put back into the system, 16 that makes it very simple. But that's not always the 17 case. 18 MR. MARK SANDLER: No, in the scenario 19 that I've put, raises significant issues, because one 20 could see the parties being very much apart as to what 21 the implications are of the changing science, or whether 22 indeed they even share a consensus as to the extent to 23 which the science has changed. 24 MR. KERRY SCULLION: Correct. 25 MR. MARK SANDLER: So I -- I guess what
681 I'm asking is could -- could you envisage some mechanism 2 being applied within the group where each of the 3 individual applicants could rely upon the evidence 4 marshalled by another one for example, on -- on points of 5 commonality between their applications? 6 COMMISSIONER STEPHEN GOUDGE: Take hair 7 microscopy. The science has moved. 8 MR. KERRY SCULLION: Well, that's fine, 9 and that's that -- we could do that fairly simply. But 10 when we're talking about these murky cases, again, which 11 cause everybody problems -- 12 COMMISSIONER STEPHEN GOUDGE: Right. 13 MR. KERRY SCULLION: -- by the sounds of 14 discussion here. 15 COMMISSIONER STEPHEN GOUDGE: Right. 16 MR. KERRY SCULLION: But again, if you're 17 -- if you're -- if the process is designed to get that 18 before somebody else to make the decision, the trier of 19 fact, or a Court of Appeal -- 20 COMMISSIONER STEPHEN GOUDGE: Right. 21 MR. KERRY SCULLION: -- the Minister has 22 the authority to request an opinion of the Court of 23 Appeal. So yes, the -- there are simpler ways than 24 having to go through each and every case if there is -- 25 if there is significant new evidence and -- and -- or
691 information and in my mind, a move from a black and white 2 to a murky situation, we -- we all know how important 3 expert evidence is before trier's of fact. 4 So we have to assume that had a 5 significant impact in the findings of guilt, or I'm 6 somewhat pretty confident we can. So I think it would be 7 in everybody's interest, certainly in the Minister's 8 interest, to get that case back before somebody to make 9 the ultimate decision. 10 11 CONTINUED BY MR. MARK SANDLER: 12 MR. MARK SANDLER: All right. 13 MR. KERRY SCULLION: And we could 14 facilitate that. 15 MR. MARK SANDLER: Ms. Nethery, I want to 16 ask you about this Wisconsin scenario, and leave aside 17 the next scenario which I'll take you to, which is a 18 scenario such as that presented here, namely a particular 19 forensic pathologist has -- has -- work has raised 20 concerns that have prompted review and -- and an inquiry. 21 MS. MARY NETHERY: Mm-hm. 22 MR. MARK SANDLER: In the Wisconsin 23 setting, can you provide us any insight as to how, from 24 the Crown's perspective, that might be dealt with? 25 MS. MARY NETHERY: Well, I guess it's
701 trite to say it's a difficult scenario for all of us, 2 because we'd like to see that certainty of having the DNA 3 evidence in the example of the hair microscopy. 4 But, I mean, it seems to me that, you 5 know, we would have to look at each case based on it's 6 unique individual circumstances, legal and factual. And 7 you know, perhaps look at them according to certain 8 criteria; not just was there the triad present, but was 9 the issue of the uncertainty in the science reviewed in 10 the trial process, for example, fully; such that that was 11 before the trier of fact. 12 And as I understand it that the -- you 13 know, the science is moving so quickly that -- that there 14 may actually, at this point, be fresh evidence on it, I 15 don't know. Was there other evidence pointing to guilt? 16 And that's one (1) of the things we look at. 17 Is there inculpatory statements? Are 18 there eyewitness statements? Is there evidence of past - 19 - past abuse, such as fractured ribs and so on? So 20 really one would have to -- I mean, I suppose specific 21 criteria would have to be developed to look at the cases, 22 because not every -- not every conviction relating to a 23 Shaken Baby Syndrome is unsafe. 24 So I think -- you know, that's the kind of 25 analysis that I think we would undertake. And I think
711 like most people in the system right now, we, in our 2 Ministry, are just educating ourselves on the issue. 3 So for example, we've had Dr. Pollanen 4 come to us and make a presentation on some of these 5 issues so that we would begin to understand them, so that 6 we can develop some sort of a position about how to deal 7 with them, but -- I mean certainly, you know, we worked 8 with the Office of the Chief Coroner of Ontario before on 9 reviews. 10 We're open to working with all the 11 parties; the Chief Coroner, the pathologist, the Defence 12 Bar, to -- to come up with a -- an appropriate way to 13 deal with these cases. 14 COMMISSIONER STEPHEN GOUDGE: Can I ask 15 you, Ms. Nethery, a little about your committee? 16 Does it require, before you consider a 17 case, that the individual have gone all the way through 18 the system? 19 MS. MARY NETHERY: Oh, no. In fact -- 20 no, not at all. In fact -- 21 COMMISSIONER STEPHEN GOUDGE: So after 22 trial, you would take a look at the case if it came 23 forward? 24 MS. MARY NETHERY: Yes, absolutely. 25 Because part of our role is to advise Appellate counsel,
721 and the Crown -- 2 COMMISSIONER STEPHEN GOUDGE: I see. 3 MS. MARY NETHERY: -- law office 4 criminal, yes. 5 COMMISSIONER STEPHEN GOUDGE: Okay. 6 Thanks. 7 8 CONTINUED BY MR. MARK SANDLER: 9 MR. MARK SANDLER: So just -- just 10 following up on -- on this area for a moment. 11 Do you find attractive Dr. Pollanen's 12 anticipated approach, or Professor Mar -- MacFarlane's 13 anticipated approach that -- that recognizing some of the 14 difficulties, and identifying the subsets of cases that 15 might attract special scrutiny at this point, that a 16 committee of -- of stakeholders be set up to 17 specifically wrestle with that issue, and -- and come up 18 with advice as to what subset of cases should be the 19 subject of special scrutiny, and how that special 20 scrutiny would take place? 21 Does that make sense to you? 22 MS. MARY NETHERY: Well, I think these 23 are good examples of options that could be -- that could 24 be considered for a potential review. 25 There may be some other good options. I
731 don't pretend to have all the answers. I mean, obviously 2 this is a very thorny area. 3 But we'd certainly be willing to -- we're 4 open and cooperative, in terms of looking at any of those 5 potential options, and others as well, in terms of a way 6 to deal with this issue. 7 MR. MARK SANDLER: All right. If I can 8 just shift from -- from that scenario for -- for a 9 moment, and -- and look at one (1) that has presented 10 itself here. 11 And that is that, as you know, and -- and 12 I'll direct this question first to you, Ms. Nethery, 13 moving now the other way down our -- down our table. 14 We have a scenario where concerns have 15 been expressed about the work of a particular forensic 16 pathologist, resulting in a review of the -- of the case 17 -- of the -- some of the cases in which he was involved; 18 a decision made by a group of five (5) forensic 19 pathologists that the concerns were justified in a number 20 of cases; and a public inquiry that explored some of the 21 systemic issues surrounding -- surrounding those cases, 22 using them as -- as illustrative. 23 Can't imagine what I'm referring to, but 24 the -- the hypothetical is -- isn't terribly different 25 than what has been presented here.
741 So the question arises is that the -- that 2 the accused -- and I don't want to talk about the 3 individual accused in -- in the cases -- 4 MS. MARY NETHERY: Yes. 5 MR. MARK SANDLER: -- under consideration 6 here. I want to -- I really want to try to keep it 7 systemic. 8 But -- but one (1) of the issues that 9 comes up is -- is the remedies that are available for 10 those persons who had been convicted of -- on cases in 11 which the forensic pathologist figured prominently. 12 And -- and it might be the subject of a 13 696.1 application if the appellate remedies had been 14 exhausted, or it might be the subject of an application 15 to extend time within which to appeal. 16 And as I understand it, under the current 17 -- under the current regime on an application to extend 18 for time to appeal, each of these applications is dealt 19 with in -- in a certain -- in a certain way, and -- and 20 unique to -- to each of the individual cases. 21 Do you see some scope for -- for the Crown 22 taking a position on the extension of time within which 23 to appeal that recognizes that systemic work that's been 24 done, and that review process that has been done, into 25 the work of the individual pathologist?
751 MS. MARY NETHERY: Thank you. Yes, I do. 2 And the Ministry wants to expedite those cases where 3 there is this potential fresh evidence; for example, 4 evidence from eminent forensic pathologists presented at 5 this Inquiry, that pathology evidence presented at trial 6 was faulty, or potentially that the science has changed. 7 So we would be willing to set up an 8 expedited process for dealing with the extension of time 9 to appeal. We would work with the Defence Bar, and the - 10 - the Ontario Court of Appeal to develop that process. 11 We expect that the process would apply to 12 most of the cases. It may be sort of a group application 13 based on some of the evidence that's been presented here. 14 So in order to expedite these things and 15 so that the real isn't, should there be an extension of 16 the process for time to appeal, the real issues would be 17 the merits of the case argued in the Court of Appeal. 18 And would expend our time and energy on that issue, I 19 think both from the defence and the Crowns side. So 20 that -- 21 COMMISSIONER STEPHEN GOUDGE: That would 22 make sense to me, Ms. Nethery. So I take it the focus 23 would be that kind of working group to set up an 24 expedited process to get at whether -- the fresh evidence 25 hearing in front of the Court of Appeal really.
761 MS. MARY NETHERY: Yes, that -- that's 2 right. I mean I'm -- I'm saying that, you know, we're 3 quite willing to do that to set up that expedited 4 process. I do understand there can be some significant 5 time and energy spent on the issue of just extending the 6 time to appeal, the real -- before you get to the heart 7 of the matter. 8 So -- so we would certainly work with the 9 Defence Bar and the Ontario Court of Appeal to set up 10 that kind of a process. Now, we expect that the process 11 would apply to most of the cases that counsel has 12 mentioned. However, as Ministers of Justice we do have a 13 role to ensure that justice is done in individual cases 14 and there may be individual cases where we would not 15 agree to that process. I expect that would be rare, if - 16 - if any. 17 18 CONTINUED BY MR. MARK SANDLER: 19 MR. MARK SANDLER: But the idea as I hear 20 it is -- is a recognition that -- that where the 21 pathology -- where serious issues have been raised in the 22 pathology by a review committee of the sort that -- that 23 we've heard about here, that the focus be on the merits 24 of the case in the Court of Appeal as opposed to on the 25 extension of time within which to appeal, that's what I'm
771 hearing you say. 2 MS. MARY NETHERY: Yes, that's exactly 3 right. I mean I think the idea is to make the system 4 more efficient and effective in dealing with these cases. 5 MR. MARK SANDLER: Okay. If that would 6 be a convenient time, Commissioner, for our morning 7 break. 8 COMMISSIONER STEPHEN GOUDGE: Yes, we 9 don't we then rise for fifteen (15) minutes. 10 11 --- Upon recessing at 10:58 a.m. 12 --- Upon resuming at 11:15 a.m. 13 14 THE REGISTRAR: All rise. 15 COMMISSIONER STEPHEN GOUDGE: Please sit 16 down. 17 Mr. Sander...? 18 19 CONTINUED BY MR. MARK SANDLER: 20 MR. MARK SANDLER: Yes, thank you, 21 Commissioner. Ms. Nethery, just when we left the -- when 22 we left our episode you were -- you were speaking about 23 some of the issues that -- that would arise in the 24 scenario I present and -- and one (1) of the questions 25 that's been put to me to -- to ask you, which I think is
781 a fair one, we ha -- we have one (1) instance here at the 2 Inquiry of a provincial offences matter as opposed to the 3 conventional indictable cases that -- that represent the 4 lion's share of what we're dealing with here. 5 Do you see the point of entry being the -- 6 the same for those who have an issue about wrongful 7 conviction and want to approach your committee, whether 8 it's a provincial offences matter, a summary conviction 9 matter, or indeed, as the vast majority of cases we've 10 been dealing with, are indictable matters? 11 MS. MARY NETHERY: Yes, I mean, you know, 12 our focus if, of course, on the homicide cases, but we'd 13 be glad to be the point of entry for an allegation of 14 wrongful conviction relating to a summary conviction or 15 provincial offence cases. 16 I mean, that's -- but part of our Minister 17 of Justice role, to make sure that -- to deal with 18 wrongful convictions or allegations of wrongful 19 convictions. 20 MR. MARK SANDLER: All right, thank you. 21 Professor MacFarlane, I'll pose the same question to you. 22 And you've heard what Ms. Nethery has said about -- about 23 how one might expedite the process for -- for dealing 24 with matters to make their way into the Court of Appeal, 25 any other suggestions on your part as to how you feel the
791 situation could be dealt with in the scenario presented, 2 namely concerns expressed about an individual pathologist 3 and the cases to which -- on which that pathologist has 4 worked? 5 DR. BRUCE MACFARLANE: Thank you. It 6 seems to me that the operative principles here are 7 firstly that Crown counsel is assuming that Minister of 8 Justice role and is acting in the public interest. 9 Accepting that principle, it seems to me 10 not unlike what Mary Nethery has just outlined, that the 11 Crown ought to agree to leave being granted so that the 12 case can go back into the Court system, and ought to pra 13 -- participate in a process that would allow the case to 14 be expedited -- I think it's -- and that would be done in 15 consultation with the Court, of course -- so that the 16 case can be considered on it's merits in a -- with 17 dispatch. 18 It seems to me that where significant 19 issue has been raised, it's critically important that the 20 Crown act, and be seen as acting swiftly in those 21 circumstances. 22 So that would be the process that I would 23 recommend, not unlike what Ms. Nethery has just outlined. 24 MR. MARK SANDLER: All right. I'm going 25 to skip to the -- to Mr. Scullion for a moment. Mr.
801 MacGregor, you look relieved. 2 MR. ALASTAIR MACGREGOR: Yeah. 3 MR. MARK SANDLER: Mr. Scullion, I'm 4 presenting this scenario, where there might be a number 5 of cases in the system. And -- and as -- as you've 6 heard, on the cases that we've been reviewing, the vast 7 majority of them raise issues in the Court of Appeal, as 8 opposed to issues where six ninety six point one (696.1) 9 would be immediately resorted to. But you have dealt 10 with the Mullins-Johnson case to date, and there is 11 another case potentially that could make your way -- make 12 their way here as one (1) of the cases that have been 13 identified at this Inquiry. 14 Lets assume that there were -- that there 15 were a number of cases that -- that could only be dealt 16 with through the six ninety-six (696) process. 17 You eluded to this a little bit earlier in 18 connection with another answer, but do you see some sort 19 of expedited, or enhanced process that might exist for 20 those accused persons having regard to the reviews that 21 have already taken place, or an inquiry that may have 22 already taken place? 23 MR. KERRY SCULLION: Yeah. I -- I think 24 there is a -- a mechanism for that. And Mr. MacFarlane 25 spoke to the -- to the hair review out in -- in Manitoba,
811 where two (2) cases were referred to us from Manitoba - 2 both cases he discussed -- and with a recommendation from 3 the Attorney General of Manitoba that the Minister grant 4 a remedy. The remedy in question here was a referral to 5 the Court of Appeal. 6 And one (1) of the issues actually in both 7 cases that came up was that the applicant, and -- and 8 which he's perfectly entitled to do, and in fact probably 9 made the right decision in at least the first case -- 10 decided that I don't want a referral to the Court of 11 Appeal. I want a new trial, because I think this is so 12 egregious an error here, and such a miscarriage of 13 justice, it -- I mean, with all the benefits of going for 14 a new trial were the onus is now, you know, back -- back 15 on the State, as opposed to the applicant, where it's 16 different in the Court of Appeal. 17 So barring that type of scenario, where 18 you have, in fact, the applicant saying -- and -- and -- 19 because the Attorney Generals, for the most part, will 20 always say referral to the Court of Appeal. It's very 21 unusual that they will say we think the Minister should 22 grant a remedy and we think it should be a new trial. So 23 formally normally it's yes, we agree it should be a 24 remedy, but it should be to the Court of Appeal. 25 So if we had that type of mechanism, or
821 that type of agreement, and I mentioned it earlier, if 2 there was a consensus, that makes things faster. Now let 3 me go back then. If we're dealing with these types of 4 cases, like this type of scenario that your going -- that 5 you're talking about here, I mean, consent may not be all 6 that important. I mean -- and there's various stages in 7 our process. 8 And one (1) of the other things that have 9 happened in -- in the past is that when we have moved 10 from our preliminary assessment, which is our screening 11 mechanism, to the investigative stage, the -- a number of 12 cases that people have been granted bail on the basis of 13 the Minister moving to that investigative stage. So it - 14 - it at least gets the person out of custody, or has at 15 least in -- in four (4) cases. So there's -- there's 16 that mechanism in place as well, that could -- we could 17 speed up a process of moving to the investigation. 18 So the short answer is, you know, on -- on 19 a consensus basis, there's a lot could -- that can be 20 done, and a lot can be done ex -- you know, 21 expeditiously. If it's not on a consensus basis, not on 22 agreement basis, it may take a little longer, but it may 23 not necessarily extend the time frame, you know, 24 extensively. 25 Because as I've said, if you've got a case
831 coming from out of this Inquiry, where a lot of the work 2 has all ready been done, it's a matter of -- of reading 3 it, probably very little more investigation than that to 4 determine if this is a case that should go back 5 somewhere. 6 MR. MARK SANDLER: Okay. Dr. Pollanen, 7 I'm going to change the topic a little bit, and as you 8 know, I -- I've been very mindful of -- of not getting 9 into the individual cases here, but the evidence at our 10 Inquiry has raised another issue of systemic importance, 11 and that is that we've heard that the Chief Coroner's 12 office decided that -- that a review would be conducted 13 of certain cases of Dr. Smith's for -- for the period of 14 time 1991, and following, right? 15 DR. MICHAEL POLLANEN: Correct, yes. 16 MR. MARK SANDLER: And the issue that 17 arises is, to what extent should the system, when 18 concerns have been raised that are found to have some 19 validity, look at all of the cases that the forens -- 20 that forensic pathologist has been involved in over the 21 years? And if so, how does one engage in that process? 22 DR. MICHAEL POLLANEN: Well, I think we 23 have to clarify what "all" means because, as -- as we 24 know, forensic pathologists do a lot of autopsies, and 25 most of those autopsies never enter the criminal justice
841 system. So I think you're referring to cases of homicide 2 and, more specifically, likely cases where there is a 3 conviction, or another relevant judicial process like 4 apprehension of children through child protection 5 proceedings, et cetera. So I think, first of all, we 6 have to define the scope. 7 And second, you said "the system," and 8 then we have to identify what part of the system would be 9 responsible for such a review. 10 And then we would have to identify what 11 would be adequate criteria to precipitate that review. 12 In the -- in the Sally Clark experience, it was material 13 non-disclosure, that is what was sufficient to 14 precipitate a generalized review. 15 In -- in my own view, I think that the -- 16 what might be considered part of the criteria would be 17 repeated fundamental errors, not simply differences of 18 opinion between experts, but fundamental errors very 19 close to the core of forensic pathology. And I'm 20 thinking about things like non-disclosure. I'm thinking 21 about straight-forward misinterpretations, mistakes that 22 can be reviewed and demonstrated to be false. 23 These are the types of things that would 24 precipitate a review. And -- and I believe if you -- if 25 you found those types of things in cases, then those
851 would be a reasonable basis to review. 2 MR. MARK SANDLER: All right. Now, I am 3 going to ask you about one (1) aspect that -- that could 4 be said to be evidence as opposed to pure policy, and 5 that is that, what has been the model that you've adopted 6 to-date to deal with the cases pre-2001 that Dr. Smith 7 was involved in? 8 DR. MICHAEL POLLANEN: So I think pre- 9 1991. 10 MR. MARK SANDLER: '91, I'm sorry. 11 DR. MICHAEL POLLANEN: They're -- so in 12 the interval between 1981 and 1991, there are additional 13 cases. And the -- this actually derives from the last 14 participation of the subcommittee of the Forensic 15 Services Advisory Committee that was tasked with creating 16 the -- the review. 17 And the decision was that the Ministry of 18 the Attorney General and AIDWYC would work together to 19 identify those individuals in that relevant time period 20 that wished to have their cases reviewed. But it would 21 not be a summative or comprehensive review in the manner 22 that we prepared for post-'91 cases. 23 COMMISSIONER STEPHEN GOUDGE: Those 24 individuals where Dr. Smith had been the pathologist? 25 DR. MICHAEL POLLANEN: Correct, yes.
861 COMMISSIONER STEPHEN GOUDGE: Where there 2 had been, was it at some point criminal suspicion or a 3 conviction? 4 DR. MICHAEL POLLANEN: I think it was 5 conviction. 6 COMMISSIONER STEPHEN GOUDGE: Okay. 7 DR. MICHAEL POLLANEN: And it was 8 basically those two (2) parties were to identify the 9 people that wished to have their case reviewed. 10 COMMISSIONER STEPHEN GOUDGE: So the 11 universe you start with is those cases, '81 to '91, where 12 Dr. Smith was the pathologist where a conviction had 13 resulted? 14 DR. MICHAEL POLLANEN: Correct. 15 COMMISSIONER STEPHEN GOUDGE: Then the 16 second slice was did the individuals involved want their 17 case reviewed> 18 DR. MICHAEL POLLANEN: Yes. 19 COMMISSIONER STEPHEN GOUDGE: Where is it 20 at now? 21 DR. MICHAEL POLLANEN: That's a matter 22 between the Ministry of the Attorney General and AIDWYC. 23 COMMISSIONER STEPHEN GOUDGE: All right. 24 25 CONTINUED BY MR. MARK SANDLER:
871 MR. MARK SANDLER: Okay. 2 MS. MARY NETHERY: Mark? 3 MR. MARK SANDLER: Ms. Nethery, did you 4 want to add to that? 5 MS. MARY NETHERY: I -- I was just going 6 to say, my understanding is that the review is still 7 ongoing. 8 COMMISSIONER STEPHEN GOUDGE: Yeah. 9 We're not looking for work, Ms. -- 10 MS. MARY NETHERY: No. 11 12 CONTINUED BY MR. MARK SANDLER: 13 MR. MARK SANDLER: I'm going to shift 14 topics, if I may. And earlier on, Professor MacFarlane, 15 there was reference to the Report on the Prevention of 16 Miscarriages of Justice that had been prepared by the 17 working group of Federal/Provincial/Territorial Heads of 18 Prosecution Committee, and -- and there's a fairly 19 extensive -- fairly extensive recommendations that are 20 made in that report that address forensic evidence and 21 expert testimony. 22 And -- and if I could ask you and Ms. 23 Nethery perhaps, to assist us on some of the features of 24 -- of what is contained in that report. And -- and 25 you'll see these referred to, Commissioner, at roman
881 numeral VI of the report. 2 MS. MARY NETHERY: Roman numeral VI. 3 MR. MARK SANDLER: And -- and I'm mindful 4 of what Ms. Nethery said a little bit earlier on, which 5 is -- which is the acceptance that -- that has greeted 6 this -- this report. 7 I'm really interested in some of the 8 implementation issues that -- that could arise. We see 9 under Item 1 that prosecutors should receive training on 10 expert witnesses, and -- and that has been the subject of 11 extensive discussion at a prior roundtable. 12 But if you go to 2, it says: 13 "The Heads of Prosecution Committee 14 should consider the feasability of 15 establishing a national central 16 repository to catalogue and track 17 amongst others, case law, newsletters 18 and articles, reliability of current 19 techniques, the latest developments and 20 advancements in specific fields of 21 expertise, sources of literature and 22 study guides, directories of 23 professional organizations from across 24 the country, including criteria for the 25 qualifications of specific experts,
891 prosecutions policies and teaching 2 aides." 3 Can either of you assist in the extent to 4 which that national central repository to catalogue and 5 track those items is in the works, or has taken place? 6 Do either of you know? 7 DR. BRUCE MACFARLANE: I'm sorry, I don't 8 have any current information on that, so I'm not -- I -- 9 I do know that Attorney's General adopted the report, and 10 I know that a number of individual provinces have 11 committed to implementation. 12 But in terms of individual recommendations 13 and their status, I -- I can't provide information on 14 that. 15 MS. MARY NETHERY: I think in regard to 16 this particular one relating to the Heads of Prosecution 17 Committee, I think it was felt that it just isn't -- I 18 mean, it's considered -- the recommendation is the Heads 19 of Prosecution should consider the feasibility of 20 establishing a national central repository. 21 And I think, at this point in time, it -- 22 it's been felt that it isn't feasible on a web-based 23 basis. However, the way that it is feasible and the way 24 that it is handled, is through the working group which 25 prepared this report, in which carries on its work now
901 and provides some of this information to our Crown. 2 So for example, the -- the current head of 3 this working group routinely sends out emails with 4 articles, newspaper clippings, you know, when -- whenever 5 Professor MacFarlane writes another paper, we receive a 6 copy of that, usually in advance. 7 So that those things are made available 8 to, I think, each prosecution service across -- across 9 the country, and then it's up to -- to us, as the members 10 of the Committee, to disseminate it. 11 So I think that's the way it's been 12 handled. It's maybe not quite as -- what should I say -- 13 it's not the Cadillac version, it's -- it's more of a -- 14 a good working Chevrolet version of -- of this. 15 MR. MARK SANDLER: All right. What I'm 16 interested in asking you about is this, Ms. Nethery, just 17 following up on that, we've heard about the more recent 18 initiative from the Ministry of the Attorney General to 19 have a -- a committee of seasoned prosecutors with 20 expertise in pediatric death cases providing advice and 21 guidance to the prosecutors across the province. 22 And -- and what I'm interested in is do 23 you see what's currently going on with the working group 24 as providing some sort of a model for also the 25 dissemination of the latest developments and advancements
911 in forensic pathology, because we haven't heard a lot 2 about that happening right now within -- within the 3 Ministry. 4 MS. MARY NETHERY: Right. I'm sorry, are 5 you referring to the -- the Child Homicide Team in 6 Ontario as being -- 7 MR. MARK SANDLER: Yes. 8 MS. MARY NETHERY: -- potent -- yes, 9 absolutely. Absolutely. Part of the -- the Child Hom -- 10 the Ontario Child Homicide Team -- part of their mandate 11 is to be educated themselves on the issues relating to 12 forensic pathology and then provide education to Crowns 13 around Ontario. 14 So that -- and that's a very specific area 15 of concern because obviously that's not our area of 16 expertise. We're lawyers, and yet certainly law and 17 science intersect and particularly, we've seen it here in 18 this -- in this particular Inquiry, so that's -- that's a 19 very significant part of the work of that new committee. 20 MR. MARK SANDLER: All right, so -- so 21 for example, you made reference to the fact that the -- 22 that the working group had received a presentation from 23 Dr. Pollanen on some of the challenges associated with 24 shaken baby. 25 And what I'm hearing you say is that as
921 part of this new initiative, you could see that kind of 2 presentation also being provided to the committee of 3 child death prosecutors and a mechanism arrived at that 4 that kind of information could be disseminated to the 5 prosecutors who are involved in those kinds of cases. Do 6 you I have that right? 7 MS. MARY NETHERY: Oh, yes, absolutely. 8 And in fact, I think if you -- if you look at the various 9 recommendations, part of this is not only to do 10 presentations to Crowns, but also to have a web-based 11 application which will have all the current case law, 12 articles, references available for the Crowns who are 13 doing those cases. 14 And then, of course, because there's a 15 requirement that whenever a Crown is assigned to one (1) 16 of these cases, say in Sarnia or London, Ontario, 17 something like that, that that Crown must immediately 18 contact the -- the child homicide team. 19 A member of the team is assigned to assist 20 that particular Crown and provide them with the -- the 21 sort of expertise and -- and assistance. 22 MR. MARK SANDLER: Okay. 23 MS. MARY NETHERY: And may -- may 24 actually be a second chair on the prosecution, as well. 25 MR. MARK SANDLER: All right. And -- and
931 the last question I want to direct to you on -- on the 2 report is this, that Professor MacFarlane talked about 3 joint educational sessions involving Crown and defence 4 counsel at a prior roundtable, and -- and he reflected 5 the fact that, in Manitoba, that's become part of the 6 culture, so to speak. 7 And -- and we actually see in this report 8 that -- that there's a actually a fair bit said about 9 joint educational sessions involving the Crowns, police 10 and defence, and forensic science -- and scientists. 11 And -- and there may not be, up until this 12 point in time, and I'll ask you to comment, the same 13 culture of joint programming -- institutionalized joint 14 programming -- involving Crowns, defence, and forensic 15 sciences -- scientists in Ontario. Do you see an 16 enhanced role for that kind of joint education here? 17 MS. MARY NETHERY: Yes, absolutely. And 18 I think -- I think that was mentioned in Paul Lindsay's 19 presentation, as well. 20 We did do joint education, post the Morin 21 Inquiry, with Defence Bar, forensic scientists, legal 22 aid, and Crowns. I think the judiciary were invited. 23 There were four (4) session in the -- in the fall of -- I 24 think it was the fall of 1998, and they were very well 25 received, but all of the issues relating to things such
941 as tunnel vision and other issues relating to the 2 prevention of -- of wrongful convictions. 3 And I think that sort of -- it's that sort 4 of thing, as well as some of the Manitoba conferences 5 which I've had the privilege of attending and which are 6 excellent, that it's those sorts of examples that we 7 should be -- we should be building on in -- in terms of 8 the area that's being discussed in this Inquiry. 9 MR. MARK SANDLER: And, Dr. Pollanen, I 10 had the pleasure of attending one (1) of your educational 11 sessions that talked about some of the challenges for 12 forensic pathologists giving evidence in -- in Court; how 13 it might be given, how it might not be given, what the 14 content of a report should be and -- and how the 15 interface between the forensic pathologists and the 16 counsel should be -- should be dealt with. 17 And you had Crown counsel and defence 18 counsel participating in your sessions. 19 Do you see a role for you and your office 20 in opening up that kind of educational programming for -- 21 for wider access by the defence and by Crown counsel? Is 22 there any impediment to doing that? 23 DR. MICHAEL POLLANEN: There currently is 24 impediment to do that, and -- and that is -- is 25 essentially resources -- time -- and that's why I
951 actually think the -- the best way to protect that, as a 2 priority, is through linking with the University and 3 essentially linking together the Faculty of Medicine and 4 the Faculty of Law and using that vehicle as a way to -- 5 to potentiate common educational programs. 6 I think we have to -- to recognize that in 7 the Office the Chief Coroner or the Forensic Pathology 8 Service, we have -- our resources are for cases that are 9 currently before the Courts and -- and routine work 10 related to death investigation. And while we support, 11 and participate, and generate educational activities, it 12 is -- it is part of a -- part of the University's role to 13 also support and foster that. 14 And I think that one (1) of the best, or 15 most effective ways of the forensic pathology community 16 doing that is actually through the University, as opposed 17 to only through our office. 18 MR. MARK SANDLER: All right. Mr. 19 MacGregor, I want to ask you something that's a little 20 bit off -- off topic to what we've earlier discussed. 21 And -- and that is that let's assume that 22 as a result of -- of the work of your commission, you've 23 identified cases that -- that raise concerns about the 24 work of a forensic pathologist, all right. 25 Some of those cases you may refer to the
961 Court by reason of that very concern. Others you may say 2 that -- that although there was concern about the 3 evidence given by the forensic pathologist, it didn't 4 figure prominently in the ultimate determination of guilt 5 or innocence, or there are other factors that would 6 inform your decision not to refer. 7 MR. ALASTAIR MACGREGOR: Yes. 8 MR. MARK SANDLER: But the concerns may 9 remain, nonetheless. So I guess the question is, do you 10 see any role for the Commission in taking any affirmative 11 steps to address the larger systemic issue that might be 12 raised by the work of the forensic pathologist or 13 pathologists, who you've examined in the course of your 14 inquiries? 15 MR. ALASTAIR MACGREGOR: I think there 16 have been occasions when we've drawn the attention of the 17 relevant professional body to concerns we've had about a 18 particular expert. 19 I -- I think -- the one (1) I'm thinking 20 of I think was -- was in -- in the medical field, but 21 we've also certainly done it in -- in other areas. 22 We've alerted others to the concerns we've 23 found. So yes, I think there is, although I'm not sure 24 that we are the primary source of whistle-blowing. 25 But it seems to me that anyone in the
971 system who identifies what appears to be a systemic 2 problem has some responsibility not simply to sit on it. 3 MR. MARK SANDLER: All right. Mr. 4 Scullion, I'll ask the same question of you. 5 Applications are brought to -- to your group. 6 They may raise concerns about the work of 7 experts in the system, regardless of whether ultimately 8 the application succeeds or fails. 9 Do you see any role for your group in 10 taking any further steps to address what might pose 11 problems for other cases in the system? 12 MR. KERRY SCULLION: Well, as you know, 13 we're a Federal body, and all our -- most of our cases 14 come from provincial bodies. 15 So there are aspects of -- of that. How 16 do we -- you know, the jurisdictional thing there, but I 17 -- I think certainly if there's cases that come to us, 18 and may -- may not be -- just be experts. 19 I'll give you an example. There may be 20 certain Crown attorneys where we've seen a number of 21 cases where there are similarities in -- in what has 22 transpired in the case that raises concerns. 23 So -- so it may -- it could be a defence 24 counsel where you see a number of applications coming, 25 where the same defence counsel was defending somebody.
981 So I think in -- in those cases -- 2 MR. MARK SANDLER: Based on competency, 3 for example. 4 MR. KERRY SCULLION: -- yes, exactly. 5 Yes. And, so when we see those types of cases, I think 6 we -- we certainly -- and I don't want to say this the 7 wrong way. 8 It's not we don't pay attention. We 9 certainly pay more attention to what has transpired, or 10 what has gone on, in this particular case because of the 11 history. 12 We have not had the experience that -- 13 that -- we don't have the numbers that -- that the 14 English system has. 15 So we're -- we're not -- I don't think 16 we're quite at a point where we can identify, but 17 certainly certain things such as the ones I've just 18 mentioned, bring it upon us to be more diligent in the 19 work. 20 Dig deeper. Look farther. You know, the 21 -- we've had some past experiences with these 22 individuals, so that raises some red flags more than 23 anything else. 24 But in those particular cases, the matters 25 are being looked at in other forums, so I don't think
991 there would be any role for us at that point in time, or 2 at least the ones we've looked at so far, to do anything 3 further than that. 4 MR. MARK SANDLER: Okay. What I'd like 5 to do is -- is ask each of you whether you want to make 6 any additional comments, other than those that have been 7 made in the course of our discussion thi -- this morning, 8 including any recommendations that you'd urge upon the 9 Commissioner, or in -- in your case, Mr. MacGregor, any 10 additional lessons that you think we could take from your 11 experience in Great Britain. 12 So why don't I start just for the sake of 13 randomness, if nothing else, with Professor MacFarlane. 14 DR. BRUCE MACFARLANE: Thank you. I -- I 15 do have one (1) point that I would like to raise with 16 you, Mr. Commissioner, and it's -- we haven't touched on 17 it at all today. It is dealt with in my paper, so I'll 18 just highlight it. 19 In my review of many of the troublesome 20 cases in the criminal justice system where there's been a 21 -- a wrongful conviction or whatever reason -- the case 22 has gone off the rails -- it's become quite apparent that 23 notions of tunnel vision play a large role, both on the 24 part of investigators and others as part of the stay 25 apparatus.
1001 And there's many reasons why tunnel vision 2 sets in, and it's very much a human tendency. I have put 3 forward in my paper the notion of -- of the development 4 of a contrarian as one (1) of the few techniques to try 5 to counter tunnel vision. 6 And it seems to me that the development of 7 a contrarian is not resource intensive and can involve 8 many different models. But it seems to me that that's 9 something that investigative agencies and others ought to 10 closely look at and adopt. Thank you. 11 COMMISSIONER STEPHEN GOUDGE: That was 12 helpful. 13 14 CONTINUED BY MR. MARK SANDLER: 15 MR. MARK SANDLER: All right. Dr. 16 Pollanen...? 17 DR. MICHAEL POLLANEN: Well I think if 18 you bring it back down to some -- some of the primary 19 issues related to forensic pathology, we see miscarriages 20 of justice and wrongful conviction as an end stage 21 manifestation of a more primary failure earlier on in the 22 -- in the forensic pathology process. 23 And that stems from many of the features 24 of the discipline that we've talked about. But in my 25 view, the most profitable initial starting point is the
1011 evidence-based framework, and proceeding with that on a 2 truth-seeking platform. 3 And I think that that is the most 4 fundamental change or -- or cultural change that needs to 5 occur in the broader global forensic pathology community. 6 COMMISSIONER STEPHEN GOUDGE: Better that 7 than error correction after the fact? 8 DR. MICHAEL POLLANEN: Definitely. 9 10 CONTINUED BY MR. MARK SANDLER: 11 MR. MARK SANDLER: All right. Mr. 12 Scullion...? 13 MR. KERRY SCULLION: I think the only 14 thing that -- that I would add, is that certainly in our 15 experience in dealing with miscarriages of 16 justice/wrongful convictions, we normally see more than 17 one (1) aspect, or just one (1) problem with the case. 18 I have to say it's very common to see two 19 (2) or three (3), whether it be tunnel vision, lack of 20 disclosure, faulty science. So it's not just limited to 21 these one (1) areas. 22 And -- and I guess as you're looking at 23 these cases or future cases, I mean, there -- there may 24 be the -- the pathology evidence, but I think it -- it 25 might be wise to look a little deeper to see if that
1021 pathology evidence or faulty evidence, whatever it may 2 be, may have led to some other things happening, some -- 3 some lack of disclosure, some other things. 4 So I -- I just wouldn't -- if you're going 5 to look at other cases, I don't think -- if I were doing 6 it, I just wouldn't limit myself to be looking at 7 pathology, because there's a pattern in some of these 8 cases where you see there's more things at play. 9 COMMISSIONER STEPHEN GOUDGE: In the same 10 case? 11 MR. KERRY SCULLION: In the same case, 12 yes. Yes. 13 14 CONTINUED BY MR. MARK SANDLER: 15 MR. MARK SANDLER: Ms. Nethery...? 16 MS. MARY NETHERY: Well no, thank you 17 very much for the opportunity, but I think I'll wait for 18 the conclusion for our counsel to make any 19 recommendations from our Ministry's point of view, but 20 thank you. 21 COMMISSIONER STEPHEN GOUDGE: Can I just 22 ask you one (1) detailed question, Ms. Nethery? The 23 Criminal Convictions Committee that was struck two (2) 24 years ago, does it have any window on a role in the 25 Ministry's position in an Ontario 696?
1031 MS. MARY NETHERY: Oh, yes, we do. All - 2 - if there's a 696.1 application in Ontario, those cases 3 are all reviewed by our Committee -- 4 COMMISSIONER STEPHEN GOUDGE: Okay. 5 MS. MARY NETHERY: -- in one (1) way -- 6 in one (1) fashion or another. 7 COMMISSIONER STEPHEN GOUDGE: As part of 8 the Ministry's position in the 696, I assume? 9 MS. MARY NETHERY: Yes, that's right. 10 COMMISSIONER STEPHEN GOUDGE: Thanks. 11 12 CONTINUED BY MR. MARK SANDLER: 13 MR. MARK SANDLER: Mr. MacGregor, the 14 last word to you? 15 MR. ALASTAIR MACGREGOR: I wouldn't 16 presume to make any recommendations, and I suppose the 17 only observation I would make is that it -- it seems to 18 me that the problems that arise in the context of 19 pediatric forensic pathology are but a graphic 20 illustration of similar problems that arise in other 21 areas of expert evidence. 22 And two (2) factors are particularly 23 striking in this kind of evidence. One (1) that evidence 24 in relation to children -- the death of children, whether 25 it be deaths or sexual abuse, or whatever -- deals with
1041 an issue where feelings tend to run fairly high, and I 2 think where there's a risk of a jury being keen to find a 3 culprit. 4 And secondly, it's my perception, and I'm 5 not sure how scientific it is, that particularly in these 6 areas, medical evidence -- expert evidence -- is likely 7 to be treated with considerable respect by juries. 8 The -- it's not a situation, as in other 9 areas of expertise, where juries may be sceptical about 10 voice recognition or facial mapping, whatever. I think 11 there is such real force in medical evidence in these 12 cases that it makes it, as it were, the most graphic and 13 perhaps the most striking area of problems with expert 14 evidence. 15 The only other two (2) points I'd make is 16 it seems to me that key is the duties that were imposed 17 on the expert who gives evidence; that he knows what 18 these duties are, that they are enforced, and that he 19 knows what his duties are in terms of disclosure, that 20 there are other areas that... 21 One -- one (1) problem, for example, with 22 the Shaken Baby Syndrome debate is, as a defence lawyer, 23 you might never have known that there was another side to 24 it. You may have gone to get your own expert who 25 happened to be in the same camp, and you might never had
1051 known, had it not been for an obligation to make proper 2 disclosure. That's all I have to say. 3 MR. MARK SANDLER: So just -- 4 COMMISSIONER STEPHEN GOUDGE: Can I just 5 -- this is a very nebulous question, Mr. MacGregor, but 6 your description of the degree to which, really, the 7 entire justice system accepts medical evidence in a case 8 like this with -- 9 MR. ALASTAIR MACGREGOR: Yeah. 10 COMMISSIONER STEPHEN GOUDGE: -- very 11 little question, how does one build in a reasonable 12 scepticism? 13 MR. ALASTAIR MACGREGOR: I don't know. 14 COMMISSIONER STEPHEN GOUDGE: Or do you 15 immediately go, after describing that, to saying, Well, 16 let's focus on the expert and make sure the expert 17 understands their obligations. Is implicit in that, the 18 system is going to remain accepting no matter what we do, 19 or -- 20 MR. ALASTAIR MACGREGOR: No. 21 COMMISSIONER STEPHEN GOUDGE: -- or can 22 we make changes in the system's attitude as well as the 23 expert's obligation? 24 MR. ALASTAIR MACGREGOR: I don't know 25 that one can. One can certainly, as it were, perhaps
1061 make a difference to the defence's attitude, to do -- 2 that defence counsel are more educated, more willing to 3 challenge than they perhaps have been in the past. 4 Education seems to be an important part of it, not just 5 for the Crown, but actually for the defence as well. 6 COMMISSIONER STEPHEN GOUDGE: Thanks. 7 MR. MARK SANDLER: All right. Thank you 8 very much. Mr. Gover has a question. 9 MR. BRIAN GOVER: Ms. Ritacca. 10 MR. MARK SANDLER: Ms. Ritacca has a 11 question. 12 13 QUESTIONED BY MS. LUISA RITACCA: 14 MS. LUISA RITACCA: Thank you. Thank you, 15 Commissioner. 16 I just have one (1) question, Dr. 17 Pollanen, for you. Mr. Sandler talked to you and asked 18 you questions, on a number of different occasions, about 19 the role of the Chief Forensic Pathologist and the 20 Coroner's Office as a whole in participating in the 21 variety of forms of reviews that -- that we were talking 22 about this morning. 23 And you provided what you said was a 24 "framework" in which you said you thought the forensic 25 pathologist could play a role, and that was in scientific
1071 issues and in public policy issues. 2 I have a very practical question for you, 3 Dr. Pollanen. At present, is the OCCO and the Forensic 4 Pathology Service, within it, equipped -- and I mean 5 financially and in terms of human resources -- to fully 6 participate in any such review? 7 DR. MICHAEL POLLANEN: No. 8 MS. LUISA RITACCA: And can you elaborate 9 on that? 10 DR. MICHAEL POLLANEN: Well, these -- 11 having now traversed some distance on some of these 12 reviews and seen what emerge from them, it's a very 13 resource intensive exercise. And that includes not only 14 professional time but other infrastructural 15 considerations, so it's -- they're not -- they're not 16 trivial undertakings. 17 Individual cases might -- might be simple 18 in -- in specific circumstances, but large-scale 19 retrospective reviews that may involve ancillary testing 20 such as immunohistochemistry, those are very costly and 21 time-consuming procedures. 22 And in the -- in the current context of 23 providing service, essentially you would have to make a 24 decision about how you wanted to expend your resources; 25 whether or not the current case population -- the current
1081 cases before the courts are your priority or 2 retrospective analysis is your priority. 3 So those are -- those are difficult 4 decisions. But as we are currently situated with 5 manpower and resources, it would not be possible to 6 mobilize a significant effort in a major retrospective 7 review. 8 MS. LUISA RITACCA: Thank you, Dr. 9 Pollanen. 10 COMMISSIONER STEPHEN GOUDGE: Thanks, Ms. 11 Ritacca. 12 Ms. Kirkpatrick...? 13 14 (BRIEF PAUSE) 15 16 COMMISSIONER STEPHEN GOUDGE: Okay. Mr. 17 Lockyer...? 18 19 QUESTIONED BY MR. JAMES LOCKYER: 20 MR. JAMES LOCKYER: Ms. Nethery, I want 21 to just ask you a fairly simple question, I hope. As 22 we've heard throughout the Inquiry and -- and again 23 today, the cases in which individuals fell afoul fall 24 into two (2) categories, those in which the -- the person 25 convicted appealed and those in -- in which the -- the
1091 person convicted did not appeal. 2 In the -- in the -- you've spoken today of 3 the latter more than the former. and the barrier there 4 to having the case reheard in the Court of Appeal is the 5 extension of time issue, and you addressed that this 6 morning and I listened carefully and I think I like what 7 I heard. 8 Move to the other category of case where 9 the barrier to getting the case heard in the Court of 10 Appeal is essentially Mr. Scullion, in a sense the six 11 ninety-six (696) process, the process that Mr. Mullins- 12 Johnson had to go through. 13 Is there any reason in principle why your 14 approach to the extension of time cases should be any 15 different in cases where the need is to go through the 16 ministerial review process? 17 MS. MARY NETHERY: Well, I can't say that 18 I've thought that through or reviewed it with my 19 colleagues, but it's certainly something that I would be 20 willing to discuss with them and take up with the -- the 21 Ontario Criminal Conviction Review Committee and the head 22 of the Crown Law Office Criminal. 23 MR. JAMES LOCKYER: Because the parallels 24 are obvious, really. 25 MS. MARY NETHERY: I see some of them --
1101 MR. JAMES LOCKYER: I mean, you've got a 2 barrier to the Court of Appeal -- 3 MS. MARY NETHERY: Yes. 4 MR. JAMES LOCKYER: -- in both cases, it 5 just so happens the barrier is different because of 6 what's happened in the past. 7 MS. MARY NETHERY: I -- I can see the 8 parallels. I think there probably may be some 9 differences and that's why I would want to consult with 10 my colleagues and perhaps have a meeting with my 11 colleagues and you to work that out. 12 MR. JAMES LOCKYER: All right. Thank 13 you. Professor MacFarlane, you in your history used to 14 have, if not the same job, a job pretty close to what Mr. 15 Scullion now does. 16 Back in the early '90s I know you played a 17 significant role in the -- David Milgaard's application 18 to -- to the Minister, for example, and that's really why 19 I'm addressing this question to you. 20 I've had a look at the -- the stats since 21 the creation of the Criminal Cases Review Commission in 22 the UK, and when I looked last week, in the last -- in 23 the ten (10) years of their existence they have made 24 three hundred and eighty (380) applications back to the 25 Court of Appeal in that -- in that ten (10) year period.
1111 Thirty-eight (38) a year in other words, if you take an 2 average. 3 In the case of the ministerial review 4 process that we have here in Canada, in that same ten 5 (10) year period there's been a total of fourteen (14) 6 cases referred back to a Appellate Courts across the 7 country. Now I appreciate we may have, should we say a 8 third of the population of the UK, so you have to take 9 that into account, but obviously there's a massive 10 difference between those two (2) figures. 11 How would you account for it? 12 DR. BRUCE MACFARLANE: I think as with 13 most things there's probably many dimensions and many, 14 many causes; the most immediate one (1) that comes to my 15 mind is the number of applications that are being made. 16 In the UK, as I understand, on an annual basis there's a 17 significant number of applications and significantly less 18 in Canada, so there's -- there's that part of it. 19 And to a certain extent I -- I have to 20 speculate a little bit, but it seems to me that the role 21 that's been played by AIDWYC, for instance, in Canada has 22 been a large role, and to a certain extent AIDWYC has 23 assumed a role that is unparalleled in the UK and might 24 have taken some of the -- of the work itself and -- and 25 played a positive role in almost siphoning off work from
1121 our process. 2 And -- and as well, again, I'm -- I'm 3 speculating a little bit, but I -- there may well be a 4 public confidence issues associated with our process, by 5 virtue of the controversies that arose in the 1990s. So 6 there might be a little bit of a public confidence issue. 7 From my own perspective, I think that the 8 CCRG (sic) has done a -- a good job, but there may well 9 be a residual public confidence issue that needs to be 10 dealt with. 11 MR. JAMES LOCKYER: Mr. MacGregor, Mr. 12 Zellick is your Chair still, is that right? 13 MR. ALASTAIR MACGREGOR: Yes. 14 MR. JAMES LOCKYER: Are -- are you 15 familiar with the article he wrote a -- a couple of years 16 ago in the Manitoba Law Journal? 17 MR. ALASTAIR MACGREGOR: I -- I may have 18 read it -- 19 MR. JAMES LOCKYER: All right. 20 MR. ALASTAIR MACGREGOR: -- but I don't 21 recall it. 22 MR. JAMES LOCKYER: He -- he addressed 23 this issue, and I -- I just want to read a -- a sentence 24 or two (2) from what he said. 25 He said:
1131 "To locate the machinery within central 2 government means simply that the body 3 will never inspire the degree of 4 confidence necessary. The Canadian 5 experience testifies to this. Although 6 the department with the -- within the 7 Federal Ministry of Justice has 8 virtually all the powers necessary for 9 such a review body, operated arm -- 10 arm's length from normal sections 11 within the Ministry, and has a direct 12 line to the Minister, the number of 13 applications for review it receives is 14 so astonishingly small that it can only 15 support the conclusion that its 16 positioning within central government 17 seriously diminishes its standing in 18 the eyes of those who feel they've been 19 wrongly convicted." 20 To what extent do you think -- I don't -- 21 do -- do you agree with that, in short, first of all? 22 MR. ALASTAIR MACGREGOR: I mean, 23 fortunately I agree with the first sentence entirely, and 24 I don't feel I'm really qualified to talk about the rest. 25 MR. JAMES LOCKYER: All right.
1141 MR. ALASTAIR MACGREGOR: Because my 2 familiarity with how the -- the 696 system works is 3 limited. 4 MR. JAMES LOCKYER: Okay, well, Professor 5 Zellick sort of got involved in the Canadian experience, 6 so he had some authority on it. 7 But if we move into what the CCRC has done 8 in the ten (10) years of its existence, is your 9 existence, your powers, your abilities, have they become 10 well known, both across the country, and in particular, 11 potentially to those who believe they have been wrongly 12 convicted? 13 MR. ALASTAIR MACGREGOR: I believe so, 14 yes. 15 MR. JAMES LOCKYER: And how's that come 16 about? 17 MR. ALASTAIR MACGREGOR: Partly by 18 publicity by ourselves. We -- we have information 19 provided at prisons and so on. 20 And partly by the familiarity of the legal 21 profession, with what we do. 22 MR. JAMES LOCKYER: And do you feel that 23 -- that the CCRC has inspired the kind of public 24 confidence that -- that Mr. Zellick was talking about? 25 MR. ALASTAIR MACGREGOR: Well I hope so.
1151 Clear -- clearly we -- we have our critics. There are -- 2 there are campaign groups that feel we don't send enough. 3 MR. JAMES LOCKYER: Yes. 4 MR. ALASTAIR MACGREGOR: Occasionally the 5 Court of Appeal that feels we send too many. 6 MR. JAMES LOCKYER: Yes. What a 7 surprise. 8 MR. ALASTAIR MACGREGOR: But I -- I 9 suspect -- our hit rate is about 70 percent, so our -- 10 our test may be slightly different. The -- I think there 11 is general confidence in the system. 12 MR. JAMES LOCKYER: If we went back to 13 the period of 1967 to nineteen (19) -- sorry, 1987 to 14 1997 -- 15 MR. ALASTAIR MACGREGOR: Yeah. 16 MR. JAMES LOCKYER: -- when you had in 17 the UK a system that's essentially identical to the 18 system that we have now, although you called it a Home 19 Secretary system -- 20 MR. ALASTAIR MACGREGOR: Yes. 21 MR. JAMES LOCKYER: -- as opposed to a 22 Minister of Justice system, and you took that figure of 23 fourteen (14) in the last ten (10) years in Canada, and 24 multiplied it by three (3) to do a sort of a population 25 equivalent, which would give you forty-two (42) as
1161 opposed to three hundred and eighty (380), do you think 2 forty-two (42) might have been closer to what the figure 3 would have been in that ten (10) year period? 4 MR. ALASTAIR MACGREGOR: I -- I'm afraid 5 I really can't answer that one (1). 6 MR. JAMES LOCKYER: Would I be right if - 7 - would I be right in saying that there can really be no 8 question that the number of applications to the Court of 9 Appeal in the last ten (10) years, far exceeds what was 10 going on under the Home Secretary system? 11 MR. ALASTAIR MACGREGOR: That I think is 12 right, yes. 13 MR. JAMES LOCKYER: Yes. Okay. All 14 right. One (1) area that the -- that the panel has not 15 addressed that I want to address is -- is a resourcing 16 area; funding. 17 And I'm going to come back to you, 18 Professor MacFarlane, if I may. A problem that 19 applicants face in the cases that we've been involved 20 with here, pediatric pathology cases particularly, and 21 indeed in all potentially -- in all cases where 22 potentially expert evidence is involved, there has become 23 a huge funding issue for the applicants. 24 Take for example, the SBS, Shaken Baby 25 Syndrome type case. Not surprisingly, just to take the
1171 Wisconsin case, six (6) experts were hired by the -- by 2 the appellant in the Wisconsin case. 3 That would have involved, no doubt, tens 4 of thousands of dollars on the part of the appellant in 5 that case, just as it would here if you were trying to 6 get an exhaustive SBS, Shaken Baby Syndrome, review of a 7 case where you have been wrongly convicted. 8 And not surprisingly, people who have 9 suffered, potentially, from a wrongful conviction in that 10 regard are no where near having the resources to be able 11 to deal with that kind of a problem presented to them. 12 And that takes you to a -- to a discussion 13 with -- with Dr. Pollanen earlier this morning, and I 14 want to ask you this; What do you think is the 15 institutional responsibility there, where the individual 16 has potentially suffered as a result of an institutional 17 problem, and simply does not begin to have the resources 18 to deal with that institutional problem; resources that 19 are just sitting there able to be used by the individual 20 if they were made available to them. 21 DR. BRUCE MACFARLANE: It seems to me 22 that issues of wrongful conviction are special or unique 23 in the sense that if the case can be made out, 24 invariably, not always, but invariably, the case went off 25 the rails by virtue of state conduct.
1181 Sometimes the defence are involved, but 2 it's usually state actors that were responsible. Given 3 that backdrop, and providing that the case rises to an 4 appropriate threshold level -- in other words, there is 5 truly a live issue here -- it seems to me that it ought 6 to be a state responsibility. 7 COMMISSIONER STEPHEN GOUDGE: Whose 8 responsibility is it to raise it to that level? 9 DR. BRUCE MACFARLANE: It's -- my own 10 view is that where there is a live issue that's apparent 11 on the face, that the proceedings ought not to be -- or 12 that the issue ought not to be dealt with in an 13 adversarial way. 14 So it seems to me that, if as a result of 15 the review by a department, and the review by the 16 applicant's counsel, there is a live issue, then that's 17 where the responsibility arises. 18 COMMISSIONER STEPHEN GOUDGE: Would you 19 use the model that Mr. MacGregor uses for his Commission, 20 that is an applicant comes in and says, I say wrongful 21 conviction. And there is an analysis at that stage, he 22 and I discussed, where that threshold was, and it's 23 something higher than a frivolous case, but not nearly 24 the level of reasonable possibility of quashing an 25 appeal.
1191 If it meets the first threshold, then the 2 agency takes over and tests whether it can be developed 3 to the higher level. 4 DR. BRUCE MACFARLANE: I think that 5 that's a viable approach. 6 COMMISSIONER STEPHEN GOUDGE: That's 7 going to put the state in a lot of business cases though, 8 isn't it? I mean there will be a lot of business? 9 DR. BRUCE MACFARLANE: If -- I'm not sure 10 how many cases would -- would rise to that level. And -- 11 but it seems to me that if it rises to that level, given 12 probable state involvement, there ought to be a state 13 response. 14 COMMISSIONER STEPHEN GOUDGE: Sorry, Mr. 15 Lockyer, can I just pursue this a little bit -- 16 MR. JAMES LOCKYER: Oh, sure. 17 COMMISSIONER STEPHEN GOUDGE: -- because 18 obviously this resourcing issue is something that is an 19 issue. But, Mr. MacGregor, you -- go back to your 20 numbers again. 21 You start with an in-basket each year of 22 how many? 23 MR. ALASTAIR MACGREGOR: A thousand 24 (1,000) -- 25 COMMISSIONER STEPHEN GOUDGE: So those
1201 are a thousand (1,000) applications. How many of those 2 when you get to the investigation stage to produce the 3 number that you determine each year should be referred? 4 MR. ALASTAIR MACGREGOR: Well, it's a 5 question of what one means by an investigation? 6 COMMISSIONER STEPHEN GOUDGE: Yes, I 7 suppose it's a spectrum, isn't it? 8 MR. ALASTAIR MACGREGOR: It is. I mean, 9 you know, sometimes, often, it will be sufficient to look 10 at the papers in the case, the summing up and so on. 11 COMMISSIONER STEPHEN GOUDGE: Right. But 12 I take it there would be a number you would look at and 13 say, No matter how we examine this, it does not rise to 14 the level that warrants referral? 15 MR. ALASTAIR MACGREGOR: Absolutely. And 16 we have a duty not to embark on entirely speculative 17 investigations just for the hell of it. 18 COMMISSIONER STEPHEN GOUDGE: Right. But 19 you also have to embark on enough investigations that you 20 can determine whether or not in your proactive address -- 21 MR. ALASTAIR MACGREGOR: Yes. 22 COMMISSIONER STEPHEN GOUDGE: -- it does 23 rise? 24 MR. ALASTAIR MACGREGOR: Yes. 25 COMMISSIONER STEPHEN GOUDGE: And I guess
1211 I'm trying to get at how resource intensive that is is a 2 difficult exercise, because you say to me every case is 3 different. 4 MR. ALASTAIR MACGREGOR: I'm afraid I do. 5 COMMISSIONER STEPHEN GOUDGE: Okay. 6 7 CONTINUED BY MR. JAMES LOCKYER: 8 MR. JAMES LOCKYER: First of all, I want 9 to just carry on with that because a resource -- it may 10 well be that the agreed person wants to use the state 11 resource, and this has come up in -- in the Inquiry. 12 And one (1) of the things, and again, Dr. 13 Pollanen referred to this earlier this morning, and I 14 wanted to hear your comments on it, that he -- one (1) of 15 the things he would do, and does -- indeed does, not 16 would do -- is speak to the Attorney General's Office and 17 obtain their opinion on whether it's -- they think it's 18 appropriate for him to embark on reviewing a case. 19 And I'm not saying that necessarily means 20 he'll -- he'll always comply with their opinion. I'm 21 going to come to Dr. Pollanen after, if I may, if I still 22 have time, but I -- I want to know what you think of that 23 notion of -- of the Chief Pathologist feeling that that 24 should be a step he should take to consult with the Crown 25 when an aggrieved individual says, Look, one (1) of your
1221 pathologists has put me in jail for something I didn't 2 do. 3 DR. BRUCE MACFARLANE: You might need to 4 clarify one (1) particular point because my recollection 5 of the evidence or the -- the comment from Dr. Pollanen 6 was that he sought information as -- as distinct from 7 agreement, so I have a view, but you might need to 8 clarify that. 9 MR. JAMES LOCKYER: We've heard evidence 10 about it earlier and I'm going to come back to Dr. 11 Pollanen. I will come to him on it, but I just want to 12 hear your view on the idea of consulting the Attorney 13 General's Office, in essence, Ms. Nethery, you might say 14 as a figure head -- use her as a figure head -- as to 15 whether or not this should be done. 16 DR. BRUCE MACFARLANE: I guess there's 17 two (2) basic scenarios here. Scenario one (1) involves 18 going to the relevant ministry, and I -- I want to stay 19 away from just Ontario. I'm -- I'm speaking generally, 20 to obtain background information and to put an issue into 21 context. 22 I -- facially I don't see a problem with 23 seeking information that would assist in the making of a 24 decision. If, on the other hand, in scenario two (2), 25 was being sought is a position or agreement, given the
1231 fact that the department was involved in the original 2 prosecution and argued in favour of conviction, there may 3 well be a perceived conflict of interest. 4 MR. JAMES LOCKYER: In what? 5 DR. BRUCE MACFARLANE: In terms of the 6 department providing a position or agreement and then 7 making a decision based on that. I -- I see either an 8 actual conflict or a perceived conflict in seeking that 9 in -- that advice. 10 MR. JAMES LOCKYER: So you -- in other 11 words, you don't think that advice should be sought? 12 DR. BRUCE MACFARLANE: That's right. 13 MR. JAMES LOCKYER: Dr. Pollanen...? 14 DR. MICHAEL POLLANEN: Do you have a 15 specific question, Mr. Lockyer? 16 MR. JAMES LOCKYER: Yes, and what do you 17 -- what do you say to that? I mean, as you know, we've 18 heard evidence before, you've sought advice and that 19 advice has influenced whether or not you will provide an 20 opinion in a case. 21 Now, I mean I'm sure you realize -- I hope 22 you do -- that the -- the seeking of on opinion in a case 23 from you is a compliment to you and so this questioning 24 is designed to make it more likely that you will give the 25 opinion when requested to do so, so do you think you
1241 should continue to contact the Attorney General's Office 2 when a request is made of you to see what their views are 3 on whether you should review a case? 4 DR. MICHAEL POLLANEN: Well, I'd like to 5 think that all forensic pathologists in our system enjoy 6 the same level of respect that has been accorded to me, 7 for example, in some of these cases before this Inquiry, 8 so I -- I don't think this is specific to me. 9 MR. JAMES LOCKYER: Fair enough. 10 DR. MICHAEL POLLANEN: I would say that 11 the fact that we're having this discussion and this issue 12 has come up several times indicates the need for clarity 13 on this point because essentially right now, this is a 14 matter of discretion. 15 And without getting into the -- the 16 various cases where this has come up -- for example, in 17 the Truscott matter -- I found myself in a position where 18 I -- my discretion was to provide some type of or 19 precipitate some type of consensus view on both the Crown 20 and the defence on how the matter shou -- should unfold 21 or proceed. 22 So I -- I'd say that there is a -- an 23 inconstant protocol on how to deal with this issue, and 24 that we would greatly benefit from putting our minds to 25 exactly what the correct way is to proceed.
1251 COMMISSIONER STEPHEN GOUDGE: So to sort 2 of address the question Professor MacFarlane had of what 3 you'd said earlier, I take it if you were now consulted 4 by Mr. Sandler as a hypothetical client saying, I think I 5 was wrongfully convicted, would you please review the 6 pathology, you would want to consult the Crown not just 7 to get information about what they knew about the case, 8 but also to kind of clarify whether you -- you should, as 9 a matter of policy, be doing it? 10 DR. MICHAEL POLLANEN: Well the -- 11 COMMISSIONER STEPHEN GOUDGE: Is that the 12 way you feel the current system is set-up, and therefore 13 would like clarity to see whether that's right or not? 14 DR. MICHAEL POLLANEN: Yes, partially. 15 But the approach that I've taken, when I've been put in 16 that scenario in the past, has tried -- I've tried to 17 precipitate some type of meeting of the minds between the 18 advocates so that the -- so that the pathologist wasn't 19 becoming too integrated into processes that may go to the 20 merits of applications of -- or determinations of 21 miscarriages of justice. 22 COMMISSIONER STEPHEN GOUDGE: Right. 23 DR. MICHAEL POLLANEN: And I'm trying to 24 -- to navigate a very delicate line, but a line that I 25 feel very strongly needs to be drawn.
1261 COMMISSIONER STEPHEN GOUDGE: And you 2 drew that graphically. I mean basically in saying, in 3 the vernacular, I want to stick to my knitting? 4 DR. MICHAEL POLLANEN: Correct. 5 MR. JAMES LOCKYER: I didn't hear, I want 6 to stick to my...? 7 COMMISSIONER STEPHEN GOUDGE: Knitting. 8 Yes, I vastly demean forensic pathology by using that, 9 but I didn't -- 10 MR. JAMES LOCKYER: I think that's very 11 good. I like that. 12 COMMISSIONER STEPHEN GOUDGE: Mr Lockyer, 13 I'm afraid you're going to have to wind up. 14 MR. JAMES LOCKYER: All right. Just -- 15 may I just do one (1) thing with -- ask Mr. Scullion one 16 (1) question? 17 MR. KERRY SCULLION: I thought he was out 18 of time. 19 COMMISSIONER STEPHEN GOUDGE: One (1) 20 question. 21 22 CONTINUED BY MR. JAMES LOCKYER: 23 MR. JAMES LOCKYER: Mr. Scullion, we're 24 going to get recommendations, and we're going to be 25 hearing a lot, I suspect, in -- in the Commissioner's
1271 Report about forensic pathology, especially pediatric 2 forensic pathology and -- and how it can cause 3 miscarriage of justices -- of justice, and has done so in 4 this province. 5 What would you do with that in terms of 6 the rest of that country? 7 MR. KERRY SCULLION: You mean as far as 8 doing some type of inquiry, investigation, on our -- 9 MR. JAMES LOCKYER: Presumably if there's 10 a series of miscarriages of justice resulting from 11 pediatric forensic pathology in Ontario -- 12 MR. KERRY SCULLION: Right. 13 MR. JAMES LOCKYER: -- there's a very 14 good chance the same thing happened in Manitoba, 15 Saskatchewan, or Alberta, BC, Newfoundland, et cetera. 16 MR. KERRY SCULLION: Right. 17 MR. JAMES LOCKYER: But we have no 18 jurisdiction, meaning the Commissioner has no 19 jurisdiction over those provinces. 20 MR. KERRY SCULLION: Well -- well neither 21 do we. But -- 22 MR. JAMES LOCKYER: But you have powers. 23 MR. KERRY SCULLION: I guess the -- the 24 one (1) think that -- that could take place is that -- is 25 that Heads of Prosecution group which Mr. Bindman from
1281 our department sits on. I suppose that's one (1) method 2 of -- of putting that type of information out there. I 3 mean, we -- we can't force the provinces to look into 4 these cases. 5 We don't know which cases are out there 6 obviously in our -- in our sector. We cannot -- we don't 7 have the jurisdiction to force provinces to look at their 8 pediatric homicide cases. 9 MR. JAMES LOCKYER: It's really a 10 question, how pro-active would you be? 11 MR. KERRY SCULLION: Well, and I mean I 12 guess that's about the extent of what we could do, is put 13 the information out there. Obviously this is -- the 14 information coming out of this Inquiry is -- is going to 15 stretch around the country. 16 I could discuss it with Mr. Binman. Is it 17 something we want to discuss with the Deputy Minister 18 that he may want to raise with Deputy Ministers across 19 the country? I mean those -- those are options that are 20 open, I suppose. But other than -- 21 MR. JAMES LOCKYER: You just -- 22 MR. KERRY SCULLION: -- other than that, 23 you know, we don't have a big stick that we can carry 24 around and say, You're going to this, you're going to do 25 that, you're going to do that.
1291 MR. JAMES LOCKYER: Just for the record, 2 Mr. Binman is the Minister's special advisor on wrongful 3 convictions? 4 MR. KERRY SCULLION: He's the Deputy -- 5 he's the departments advisor on wrongful conviction 6 policy, as opposed to the Minister's special advisor -- 7 MR. JAMES LOCKYER: And he's here -- 8 MR. KERRY SCULLION: -- and he's here -- 9 right here, and he's sitting over there. And in fact, 10 had a lot to do with the publishing of this Heads of 11 Prosecutions document that you see before you today, so. 12 MR. JAMES LOCKYER: Thank you, Mr. 13 Commissioner. 14 COMMISSIONER STEPHEN GOUDGE: Thank's Mr. 15 Lockyer. 16 17 CONTINUED QUESTIONS BY MR. MARK SANDLER: 18 MR. MARK SANDLER: Mr. MacGregor, I've 19 just been asked to clarify one (1) point with you. Of 20 the thousand (1,000) cases that you get annually, can you 21 -- can you give the Commissioner some sense of the number 22 of those cases that would be homicides or cases of 23 significant violence? 24 MR. ALASTAIR MACGREGOR: It -- it varies, 25 but a substantial proportion are homicides or cases of
1301 violence. I think the largest proportion are sex 2 offenses. 3 MR. MARK SANDLER: All right. And when 4 you say a substantial portion, can you -- can you 5 guestimate for us? 6 MR. ALASTAIR MACGREGOR: I'll probably 7 get it hopefully wrong. I would have thought 20 percent. 8 MR. MARK SANDLER: Okay. All right. 9 MR. KERRY SCULLION: Just on that note 10 too, Mr. Sandler -- 11 MR. MARK SANDLER: Yes? 12 MR. KERRY SCULLION: -- 20 percent of 13 their cases are sentence reviews, which we don't have -- 14 COMMISSIONER STEPHEN GOUDGE: Right. 15 MR. KERRY SCULLION: -- in -- in our 16 country. But in England they -- the commission 17 sentencing reviews as well -- 18 MR. MARK SANDLER: Okay. 19 MR. KERRY SCULLION: -- which are 20 substantial numbers, I understand. 21 MR. MARK SANDLER: That's right, Mr. 22 MacGregor? 23 MR. ALASTAIR MACGREGOR: I'm not sure 24 whether it is 20 percent, but certainly we do do 25 sentencing reviews, yeah.
1311 MR. MARK SANDLER: Okay. I want to thank 2 all of our panel members for your participation in some 3 very difficult issues to -- today. We're going to have 4 the benefit of Mr. MacGregor's views. He will solve the 5 rest of our problems tomorrow with Mr. Robertson. 6 I'm grateful to the balance of the 7 panellists. I do want to mention that Professor 8 MacFarlane has -- has now served on several roundtables 9 and presented a paper, so we're very grateful for your 10 participation throughout. 11 Dr. Pollanen has participated both as a 12 witness on a number of occasions, and on a number of 13 round tables, and I suggest, Commissioner, that the -- 14 that the strongest systemic thing that we could do is 15 allow him to actually do some work in this province. So 16 we're very, very grateful, Dr. Pollanen, for your 17 assistance throughout the Inquiry, and to all of you for 18 your assistance today. Thank you. 19 COMMISSIONER STEPHEN GOUDGE: Yes. On my 20 own behalf, let me say how interesting I found this 21 morning. So thank you all very much for coming. 22 We'll rise now until 1:30. 23 24 --- Upon recessing at 12:19 p.m. 25 --- Upon resuming at 1:19 p.m.
1321 THE REGISTRAR: All rise. 2 COMMISSIONER STEPHEN GOUDGE: Please sit 3 down. 4 Ms. Rothstein...? 5 MS. LINDA ROTHSTEIN: Good afternoon, 6 Commissioner. I am delighted to welcome our roundtable 7 on pediatric forensic pathology and potential child abuse 8 participants. 9 Closest to me, Commissioner is Ms. Agnes 10 Samler. Ms. Samler is the Provincial Advocate for 11 Children and Youth in Ontario and I -- I will make sure, 12 Commissioner, that at an early stage she tells us about 13 its mandate. 14 She holds a BA in psychology and a masters 15 degree in sociology and criminology, both from U of T. 16 She has been a frontline worker, as he proudly tells us, 17 with youth offenders. she's been a probation officer. 18 she was the Administrator of ThistleTown Regional Centre, 19 a major children's treatment facility. She was the 20 Executive of Community Living Toronto. 21 Ms. Samler is a founding member and recent 22 President of Defence for Children International Canada, 23 which of course, Commissioner, you know is one (1) of our 24 parties with standing. 25 May I say, Ms. Samler, we're very grateful
1331 to you for participating today. 2 MS. AGNES SAMLER: Thank you. 3 MS. LINDA ROTHSTEIN: Next to her is 4 Andrew Koster. Mr. Koster is the Executive Director of 5 Brant Children's Aid Society, and like Ms. Samler, prides 6 himself on having been on the frontlines of child 7 protection and child welfare from the earliest stages of 8 his career. He describes himself, Commissioner, as a CAS 9 lifer; that's his words. 10 Mr. Koster holds a masters of social work. 11 He has thirty-six (36) years of experience with various 12 children aid societies in Ontario. He has written or 13 assisted in curriculum development and provided training 14 for child protection managers and staff under the 15 auspices of the Institute for the Prevention of Child 16 Abuse and the Ontario Association of Children's Aid 17 Societies. 18 He has also provided other training and 19 consultation for various groups, government and child 20 welfare agencies, including -- including preparation of 21 public reports for provincial governments, and 22 involvement in death investigations, death reviews. 23 Welcome, Mr. Koster. 24 MR. ANDREW KOSTER: Thank you. 25 MS. LINDA ROTHSTEIN: Seated beside him
1341 is Ms. Jane Fitzgerald, she is currently the Executive 2 Director of the Children's Aid Society of London and 3 Middlesex. 4 Ms. Fitzgerald -- Fitzgerald holds a BA in 5 political studies from Queens and an SMW from Carleton. 6 She's worked extensively with children and families as a 7 clinician administrator within the children's mental 8 health and child welfare fields. She is also a member of 9 the Board of Directors of the Ontario Association of 10 Children's Aid Societies. And welcome, Ms. Fitzgerald. 11 And finally, Commissioner, Professor 12 Nicholas Bala, who you know was the author of our seminal 13 paper in this area. Professor Bala has been teaching at 14 the Faculty of Law at Queens since 1980; hard to believe, 15 I have to have to say. 16 Professor Bala presently also teaches in 17 the graduate program in family law at Osgoode Hall. His 18 main areas of teaching and research interest are legal 19 issues related to families and children, including such 20 issues as legal responses to child abuse and neglect, 21 youth offending, parental separation and divorce. Much 22 of his research is interdisciplinary and as a result he 23 has collaborated with psychologists, social workers, 24 criminologists, sociologists, and physicians. He is 25 known to all of our panellists.
1351 He is often invited to present on a range 2 of issues to professional education programs, not only 3 for lawyers and mental health professionals, but also for 4 the judiciary. Welcome, Professor Bala. 5 6 PEDIATRIC FORENSIC PATHOLOGY AND POTENTIAL CHILD ABUSE 7 PANEL: 8 9 NICHOLAS BALA 10 AGNES SAMLER 11 JANE FITZGERALD 12 ANDREW KOSTER 13 14 QUESTIONED BY MS. LINDA ROTHSTEIN: 15 MS. LINDA ROTHSTEIN: I am going to start 16 with you, Professor Bala because you've done such a good 17 job in your paper of sketching out the contest in which 18 we have to approach the issues of forensic and child 19 forensic pathology as they relate to the child welfare 20 system. 21 You have assisted us normally in helping 22 to contextualize those issues and provide us with a sense 23 of the way in which child welfare legislation and 24 policies have evolved, shifted, changed, in the last 25 twenty (20) years. And I was wondering if I could start
1361 with you, Professor Bala, to try and sketch out some of 2 those developments. 3 DR. NICHOLAS BALA: Sure. And I should 4 say that the paper which you kindly refer to was co- 5 authored with Nico Trocme, who's a professor of social 6 work at McGill University. And we were ably assisted by 7 a research assistant, Emily Bala. 8 And so the paper does set out the context. 9 And I think there are two (2) aspects of the context of 10 child welfare in relation to the work of the Commission. 11 One (1) is the relationship between the child welfare 12 system, and the coroner's system, and the criminal 13 justice system, and then I'll try to take you through a 14 little bit of the history -- the development of -- of 15 child welfare in the last twenty (20) years in Ontario. 16 The child welfare system has an enormously 17 important role in making decisions about the care of 18 children, and in fact, in some ways one could argue that 19 the most important work, or simply very important work of 20 the coroners system is its relationship to the child 21 welfare system. 22 Obviously we're concerned about what 23 happened to the -- the child who died in the criminal 24 justice system, but there will often be surviving 25 siblings or later born children. The question is what's
1371 going to happen to them. 2 In some ways, though, the child welfare 3 system, from a professional perspective, while very 4 important, it's also a bit at the bottom, if you want, in 5 that there's the hierarchy. That we have the coroners, 6 and the pathologists, and the Crown attorneys, and the 7 police, and then somewhere is the child welfare system, 8 which is in some ways the -- the system that has the most 9 important, and difficult, decisions, and in some ways it 10 has the least resource, and the least prestige. And 11 there are many examples of the -- the -- both the 12 challenges that are faced by those in the child welfare 13 system and their relative lack of resources and status. 14 But they are the ones who are actually out 15 there making decisions, and often they have to make 16 decisions right away. So it's unlike with the coroner, 17 who can say well I have to study this, and the police 18 well we're going to take time. Maybe it'll take two (2) 19 years to decide whether or not to lay a charge, or 20 whatever. They have to make a decision about the child - 21 - the surviving children right away. Initial decisions 22 and then ongoing decision. 23 And they have to continue to work with, at 24 least for a significant period of time, the parents in 25 the face of sometimes a great deal of uncertainty and
1381 stress. So they're in a very difficult, and important 2 position. We can get into some of those issues, and why 3 they -- how they need support. 4 Turning though to your question about the 5 historical development in this area. And the child 6 welfare area in Ontario and North America has undergone a 7 lot of change and I think some of it certainly relates 8 to, my understanding, some of the issues that have gone 9 in the -- in the coroners system as well. 10 If we look back into history, originally 11 the child welfare system, which has a great deal of 12 power, because they have the power, or responsibility, to 13 go into situations where parents may -- are alleged to 14 have abused, or neglected children, and remove them. 15 They have very important state-like powers. 16 Until about 1965, we had very little legal 17 regulation there. There was legislation, but not 18 effective legal control, and -- and a lot of 19 decentralization within Ontario child welfare to local 20 children's aids societies. 21 Starting in 1965, we had the Child Welfare 22 Act enacted that provided a legal framework, and that 23 provided a degree of legal regulation. But it was really 24 in 1984 that we had our present legislation enacted and 25 that's principally when I'll start.
1391 The 1984 Child and Family Services Act, 2 which is still the legislation that we have in effect, 3 that legislation provided a legal framework for the 4 regulation of the activities of Children's Aid Societies. 5 And that legislation was premised on, whenever possible, 6 family preservation, supporting parents to care for their 7 children, reducing the involuntary involvement of the 8 Children's Aid Societies. 9 And as disused in our paper, after that 10 and legislation was enacted, we saw a very significant 11 decline in the number of children in care from the early 12 1980s to about the mid-1990s, and a dramatic -- fairly 13 dramatic drop. 14 In the mid-1990s, there were a -- a number 15 of social and legal developments, political developments, 16 media developments, that resulted in -- in pretty 17 dramatic changes. And so between the nine (9) -- mid- 18 1990s and about 2005, we had a doubling of the number of 19 children in care. 20 Certainly one (1) of the things that was 21 going on in the mid-1990s was a greater recognition of 22 concerns about child abuse and neglect in -- in Ontario, 23 but in other provinces as well. I'm sure your focus is 24 on -- on physical abuse and neglect, but at the same time 25 there was also growing awareness of child sexual abuse,
1401 and there were other issues in -- in that context. 2 In the mid-1990's there were a number of 3 highly publicised child abuse deaths, and one (1) of the 4 unfortunate realities there are -- have been, and likely 5 to some extent will continue to be, children dying of 6 situations of alleged child abuse and neglect, actual 7 child abuse and neglect. Sometimes those cases get a lot 8 of attention, sometimes they don't, they're still going 9 on. 10 But in the mid-1990's they started to get 11 a lot of public attention. There were a number of 12 coroner's inquests that were intended to shed light on 13 that. I think that obviously very desirable, but one (1) 14 of the effects of that was that workers in Children's Aid 15 Societies began to feel under a great deal of public 16 scrutiny, both from the media, in the coroner's inquest. 17 Then we had a case -- a tragic case here 18 in Ontario -- I Toronto, excuse me, where a -- the 19 Heikamp where a very young child starved to death in the 20 case of his mother while under the supervision of the 21 Children's Aid Society, and the worker who was 22 responsible for that case, along with the mother, was 23 criminally charged. 24 Now ultimately she was discharged after a 25 very lengthy preliminary inquiry, but that had tremendous
1411 chilling effect on people in the child welfare field, in 2 that they were concerned, if I'm supervising a case, and 3 something happens to the child, I could be criminally 4 charged as -- and my career ruined and everything else. 5 Together with the media attention and then 6 together with what was going on in the coroner's system, 7 I think was pushing agencies to -- encouraging workers to 8 start to apprehend children who in the -- in previous 9 situations might not have been apprehended and was -- 10 stayed with their parents. 11 Overly and on top of that we had a 12 situation where in the late 1990's under a previous -- 13 under the previous conservative government there were a 14 lot of cuts to the social service system, so that 15 agencies in the past might have been supporting parents 16 so that they could continue to care for their children -- 17 parents who may have been struggling had a lot of 18 difficulties, mental health problems perhaps, emotional 19 difficulties, drug addiction, but could have cared for 20 their children -- those agencies were no long there or 21 had fewer resources. 22 There were cuts in the social welfare -- 23 social assistance, so that parents who in the past might 24 have been able to care for their children, had fewer 25 resources, so there were -- issues of neglect were
1421 increasing. 2 So we had a lot of changes in that context 3 that also played into an increase in the -- in the number 4 of children being apprehended and removed. And 5 undoubtedly many of those children should have been, and 6 it was for their own best interest, but removal of 7 children from parental care comes with enormous social 8 and human costs, obviously for the parents, but often for 9 the children in that they are removed and they end up 10 being placed in a situation where they're in foster care, 11 in a -- in a series of placements that may not be meeting 12 their long term emotional needs. And so we think, well 13 the parents aren't doing a very good job, but perhaps the 14 -- the care that the State can provide may not be very 15 adequate either. 16 So we had very significant change, and 17 then ultimately legal change. So in 2000 the Child and 18 Family Services Act was amended to place a greater 19 emphasis on safety of children and place in physical 20 safety in a paramount position. And as I said, a number 21 of children in care going up. 22 In about 2004, we've again seen that 23 somewhat another set of changes which were ultimately 24 reflected in the most recent legislative changes that 25 came into effect in 2006 and 2007, recognized that
1431 perhaps we had too many children in care, that we had to 2 support parents more, we have to move more towards things 3 like what are called kinship care. 4 So yes, maybe the parents can't care 5 adequate for their children, but perhaps rather than 6 sending them to a stranger in foster care, they should be 7 placed with relatives, grandparents, moving towards open 8 adoption. So say maybe the natural family can't care for 9 the child, but the child should be placed in the 10 situation where he or she will continue to have some kind 11 of contact with the -- with the biological relatives as 12 well. 13 So we seen these shifts over a period of 14 time. Certainly the period though in the -- in the mid- 15 1990's was a -- appeared dramatic change, and while some 16 of the developments then were positive, I think looking 17 back, some of them were problematic. 18 MS. LINDA ROTHSTEIN: Before I get the 19 other panellists to comment on -- on some of the points 20 that you've made, Professor Bala, I thought I'd call on 21 Mr. Koster and Ms. Fitzgerald, to help us all understand 22 a little bit about what the life of a child protection 23 worker is like on the ground: 24 What if feels like, what those challenges 25 are, what their training is in general, and how long
1441 someone undertaking those very difficult frontline duties 2 can be expected to last in that career. 3 Mr. Koster...? 4 MR. ANDREW KOSTER: Well, lets give a bit 5 of a background -- you know, before -- before I actually 6 go into what a worker actually does when they -- when 7 they receive a call and some of -- some of their 8 functions, I agree with Professor Bala in terms of his 9 synopsis on -- on the development here in Ontario. 10 We -- we are quite a complex system. Even 11 today there's a billion dollars -- over a billion dollars 12 spent on the child welfare system. Two (2) agencies -- 13 there's fifty-three (53) agencies; there's five (5) 14 mandated agencies for aboriginal First Nations, primarily 15 in the north. 16 Each of these agencies has their own Board 17 of Directors so there's local jurisdiction. Each of them 18 has to receive standards and act on regulations provided 19 from -- from government. However, each agency, in their 20 own unique community setting, perhaps, interprets things 21 slightly different to meet community needs. 22 For example, the way we respond to an 23 allegation or a request of service may be different from 24 a place like Tikinagan in the north, which may receive a 25 call and then have a fly-in community where they have to
1451 send workers out to -- to a certain First Nation, so 2 every organization is -- is unique to some degree. 3 Another variance in what the functions of 4 a worker might be in a particular agency depend on the 5 amount of local resources that a community would have. 6 For example, some communities have more support services, 7 such as family counselling agencies and child development 8 agencies. Others don't. 9 One (1) rule may be that the smaller the 10 community, the more the -- the Children's Aid worker 11 actually takes on a generic task, besides being the 12 investigator of an allegation or responding to a request 13 for help. 14 I don't want to think -- I don't want the 15 Commission to think that we just deal with allegations. 16 There's a high percentage of people who want help 17 themselves, either family members or parents, and we 18 respond on that level. But a lot of our response depends 19 on whether there are other services to pick up, and so -- 20 so that's -- that's a big issue for us. 21 One (1) of the strongest effects on -- on 22 how we respond to is dependent really on some of the 23 direction from government. We are fortunate to have just 24 gone through what is called the "transformation phase". 25 A secretariate was formed in the Ministry
1461 of Children, and there was a review of all kinds of best 2 practice associated with the function of Children's Aid 3 Societies; everything from how do you respond to 4 allegations of abuse, retaining the paramountcy of child 5 safety, but also now considering much more, the sense of 6 well being and permanence of children; how do we deal 7 with relatives, how do we make kinship care an option, 8 how do we do customary care for aboriginal families. 9 A wide variety of issues have come to the 10 fore, and actually, the secretariate is still working on 11 oth -- other issues. I was fortunate enough to be in 12 there for a period of time and got a chance to see some 13 of the work that was being done. 14 So we -- we come out of a time that's, I 15 think, very positive, very best practice, and it's in 16 that context that a worker now would receive a call at an 17 agency, if I should just go into some of the -- just in 18 general. 19 The -- the person receives a call and it 20 may be very, very limited information, and that's one (1) 21 thing I'd like the Commission to know, is very often we 22 do not know what the specific issues are. 23 And there are a number of situations, too, 24 where the concern that is raised to us in that first 25 telephone contact may be far different from what the real
1471 issues are, but we don't know, we have it as -- it's very 2 scant information. 3 And the worker is then responsible for 4 doing a record check. We check internal records. We 5 also check provincial fast track. We have to see whether 6 anywhere, in Ontario, this particular family had contact 7 with the Children's Aid Society in another jurisdiction 8 or our own. 9 Depending on the responses we get or the 10 information we find, the worker then has to immediately, 11 by standard, talk to his or her supervisor and then 12 decisions are made on how fast the response is going to 13 be or whether the response will be dealt with. 14 There are certain criteria which guide 15 workers to -- as to whether they should respond or not. 16 Although there is a flexibility given if there is a 17 concern in the voice that they pick up or something else 18 in that first call, there is individual discretion still 19 allowed. 20 But basically if there is a legitimate 21 concern or possibility of a child being at risk, then a 22 worker would be assigned. A worker has to go out, visits 23 the family, has to see the child. Depending on the type 24 of allegation, perhaps get medical followup to ensure the 25 -- the child's medical condition.
1481 All this time, the worker is using a set 2 of skills which I think primarily go back to social work. 3 Most of the -- the executive directors, directors of 4 services, and staff in many agencies do hold social work 5 degrees, and follow that -- that body of knowledge, and 6 also follow that Code of Ethics. 7 And one (1) of the -- one (1) of the 8 things that most workers are trained for in -- in their - 9 - in their school learning is to do psychosocial 10 assessments, which is a mixture of trying to find out as 11 much as you can about the person in their situation; find 12 out details on, you know, all family members. 13 And eventually from that, draw some kind 14 of initial understanding of what may be some of the 15 things that need to be worked on, and what the concern 16 for the child might be. 17 So the first worker is often called an 18 intake worker. They can keep that case usually up to 19 about two (2) months. 20 And at that point, a decision is made as 21 to whether they can refer that case out to the community, 22 to a community service, close it off to a Children's Aid, 23 or if there are significant child protection issues, the 24 case is then transferred, in most agencies, to a family 25 service worker, who then can keep that case open for as
1491 long as there are identified child protection needs. 2 Within the structure of a Children's Aid 3 Society, other workers would take children into foster 4 homes, if children had to come into care. 5 So there's a wide variety within that -- 6 the child welfare context, or different roles within for 7 -- for frontline staff, and that would include foster 8 care workers, people who look after foster homes and 9 maintain them, and as I mentioned, the -- well, children 10 services workers who look after children in foster homes. 11 The -- I'm not sure if that answers your 12 question. 13 MS. LINDA ROTHSTEIN: When the first 14 point of contact is either a suspected child abuse team, 15 person, at a hospital, or the police, how quickly do your 16 frontline staff have to work, and how much involvement do 17 they have with the medical profession about those cases? 18 MR. ANDREW KOSTER: I'm sorry. 19 MS. JANE FITZGERALD: Right. I think it 20 -- it -- as Andy Koster has just outlined it, we really 21 take it case-by-case. 22 It really depends on the assessment that's 23 done, when we receive the call, in terms of even how 24 quickly we respond, whether it's within an hour, within a 25 day. All -- we take into account the specific details.
1501 Just -- I just wanted to add something to 2 the -- the context that I think Professor Bala brought to 3 the Commission's attention, 'cause I think it's really 4 important. 5 What you've heard is that we've gone 6 through a lot of change in child welfare in the last 7 fifteen (15) years. 8 And in fact, in about the last probably 9 eight (8) or nine (9) years in Ontario, we've seen a 10 doubling of the number of children in care. 11 And there are -- I think Professor Bala 12 went into some of the reasons behind that. Certainly, I 13 think there was a concern on the part of the field that, 14 as he outlined, individual case workers could, in fact, 15 be charged for the decisions that are made. 16 But I think it actually went beyond that, 17 and in -- in London, along with the University of Western 18 Ontario, with the United Way there, we commissioned 19 research through Professor Alan Leschield, and the title 20 of the report is "Protecting Children Is Everybody's 21 Business." 22 And we asked the questions. Why are the 23 numbers of children in care going up so dramatically? Is 24 it in fact that we have younger, less experienced 25 workers? Is it that people are making more conservative
1511 decisions? 2 And while, in part, that may be the case, 3 what his research told us, having done a review of cases 4 at our agency over a number of years, is, in fact, he was 5 seeing a greater depth of the impact of poverty. 6 We were seeing more complex families, 7 where there were issues of violence, often domestic, as 8 well as drug abuse, but also inter-generational 9 involvement with the Children's Aid Society. 10 So what we often hear on the frontline is, 11 Gee, things seem to be getting worse in the families 12 we're working with, and, in fact, what Professor 13 Leschield's research told us was that is true. 14 We are seeing a greater impact. So when 15 we are looking at a particular family situation, we 16 certainly are doing the assessment as Mr. Koster has 17 outlined, but we're also taking into account what are 18 some of the societal factors that are impacting on that 19 family. Is this a single mom who's very young, who 20 doesn't have any supports, who perhaps, in a single 21 moment has acted without thought to the care of the 22 child? 23 That is a different situation, and the 24 supports we would provide would be customized to that, as 25 opposed to a situation where we've seen ongoing inability
1521 to protect a child in a family. 2 So I think what I would want the 3 Commission to understand is we look at every family in 4 terms of the circumstances, both in terms of our 5 community, but also there individually -- 6 MS. LINDA ROTHSTEIN: Okay, I'm going to 7 stop you there. 8 COMMISSIONER STEPHEN GOUDGE: Can I just 9 ask, Ms. Rothstein, the research is interesting, Ms. 10 Fitzgerald, what was the period of time, '95 to 2005, 11 roughly? 12 MS. JANE FITZGERALD: I believe it 13 actually looked at from -- I'd have to go back and look 14 at it -- '99 to 2003. I think that was the period of 15 time where the exam -- 16 COMMISSIONER STEPHEN GOUDGE: Okay. And 17 in the London catchment area? 18 MS. JANE FITZGERALD: It was in London, 19 exactly. 20 COMMISSIONER STEPHEN GOUDGE: And when 21 you say that it was a doubling of the number of children 22 in care? 23 MS. JANE FITZGERALD: Over that period of 24 time we've seen a doubling of the number of children in 25 care.
1531 COMMISSIONER STEPHEN GOUDGE: And by in 2 care you mean either supervised in the home, supervised 3 with extended family, or actually in foster homes? 4 MS. JANE FITZGERALD: Actually in our 5 care, that's right. 6 COMMISSIONER STEPHEN GOUDGE: Right. 7 8 CONTINUED BY MS. LINDA ROTHSTEIN: 9 MS. LINDA ROTHSTEIN: Okay, so before I 10 get you to answer the question I asked, which I think 11 maybe was a bit early in this, I want to go back over 12 some of these issues, because I know, Professor Bala, you 13 have some views about Ms. Fitzgerald just said, and I 14 know you do as well. 15 So let me factor in one (1) more thing for 16 your consideration, both Professor Bala, and -- and Mr. 17 Koster, which is one (1) of the -- one (1) of terms we've 18 heard about that was a function of the coroner's attempt 19 to try and grapple with some of the increased concerns 20 that Professor Bala has -- has shared with us, that 21 potential abuse of children and indeed child homicide was 22 perhaps not being taken seriously enough, or not being 23 adverted to in enough cases by those charged with that 24 role and responsibility. 25 And the creation of a protocol that was
1541 not only used in the Coroner's Office, but with police, 2 and we understand, Child Welfare Agencies, to "think 3 dirty". That sort of, if I can put it, suggestion. 4 Do -- first of all, Mr. Koster, do you 5 remember that being part of what the OCCO, together with 6 other agencies, used as a way of bringing home the 7 importance of -- of looking carefully at these cases? 8 MR. ANDREW KOSTER: Yes, I remember that, 9 and it happened especially after the Heikamp inquest. 10 There were a series of trainings that took place across 11 the province involving the Coroner's Office and also 12 staff from Children's Aid. And there was a great 13 emphasis on "think dirty" and I think that there was, 14 from our standpoint, negative implications for that. 15 MS. LINDA ROTHSTEIN: Explain what that 16 means? What did it mean to you as -- were you then a 17 manager of a -- of a child protection service? 18 MR. ANDREW KOSTER: Actually I was 19 Executive Director of Children's Aid, I believe -- 20 MS. LINDA ROTHSTEIN: All right. 21 MR. ANDREW KOSTER: -- at that time and 22 the implications for our staff were quite severe. I 23 mean, I'm not talking about everybody, but there was a -- 24 there was a real tone to that as if workers interpreted 25 that to say, Well right off the bat you got to think the
1551 worst or you got to think this. 2 And the fact that it came off an inquest 3 meant that they better think like this, otherwise if 4 something went wrong and a child died, they -- they'd -- 5 they'd really be in for it. 6 MS. LINDA ROTHSTEIN: Okay. 7 MR. ANDREW KOSTER: And -- 8 MS. LINDA ROTHSTEIN: And was that just 9 your frontline staff who -- who perceived the message in 10 that way, or is that something that you also in -- took 11 from this message? 12 MR. ANDREW KOSTER: I think -- I -- I 13 took that message. I was opposed to it. There were a 14 number of other people opposed to it. But it had a -- 15 you know, frontline staff in there being trained in that 16 regard and with the -- with the importance of the 17 Coroner's Office it was taken to be the -- the way it 18 was. And it also fit in at that time to the approach 19 that was being used in child welfare reform, which was a 20 very prescriptive tick box type of approach to 21 investigation, which is now all being changed to much 22 more better -- best practice system. 23 See the -- the thoughts of "think dirty" 24 were also contra to what the beliefs of the social work 25 profession and the code of ethics. A lot of our mem --
1561 our employees also belonged to the College of Social Work 2 and one (1) of the things there is to really approach 3 people in an unbiased way to -- you know, as it would 4 pertain to social work and child protection work, it 5 would be that you always look at the ultimate hypothesis, 6 that you want -- you know, that you look at risk factors 7 which are known to be, you know, detrimental to children. 8 You have to, you know, realize that what parents tell you 9 isn't always the truth. 10 I mean, in other words, you have to have 11 child safety as -- as paramount, but -- but you don't go 12 into a situation with the -- with the understanding that 13 it's probably true, or that there may be a lot more, 14 because it biases the relationship that you have with 15 those parents. 16 And one (1) of the difficulties that I -- 17 I have with that, is that when I look back to being a 18 frontline worker, it was so important to try and build a 19 relationship with many of the people, fully realizing 20 there's some people -- some parents you can't, right? 21 And I'm not talking about that. 22 But you've got to realize that we -- we 23 deal with about fifty thousand (50,000) clients a year in 24 -- in the province, most of those people don't try to 25 kill their kids. Most people are people living in
1571 poverty. Most people are people that don't have some of 2 the luxuries that other people have. 3 And so when you go in there with the 4 authority that you have already as being a child welfare 5 person, and if you have a certain tone to you, it's hard 6 for that person to relate, to want to tell you the things 7 you want to know, so you're very limited on the further 8 assessments that need to be made. It's much better to go 9 in there, and -- and believe me, client's try to read 10 their worker right from the very beginning. I mean, 11 being a frontline worker, and when I ended relationships 12 with clients, you ask them what they thought the first 13 time you came to their door, and you'd be surprised what 14 they're picking up, right. 15 And, so if you have this tone to you, or 16 this feeling that you're above them, and -- or that 17 somehow they're probably doing something -- you know, 18 there's something dirty, to -- to follow that analogy, 19 then they're not going to relate to you. And -- and I 20 keep on thinking of the times where -- when you did have 21 an open mind, when you did talk to people, because they 22 were so desperate for help, they were going to tell you 23 what you needed to know. And sometimes they would tell 24 you the very things that meant that their child had to 25 come into care, and they're telling it to you -- youself,
1581 because they're hoping that you're going to be there to 2 make their situation better in the long run. 3 But if you have that attitude at the 4 beginning, you're not going to find it out, and it 5 becomes very -- the people -- a lot of our clients are 6 all ready marginalised in society. They -- you're 7 further marginalizing them. 8 MS. LINDA ROTHSTEIN: So -- 9 COMMISSIONER STEPHEN GOUDGE: Can I just 10 ask a couple of questions -- 11 MS. LINDA ROTHSTEIN: Sure. 12 COMMISSIONER STEPHEN GOUDGE: -- Ms. 13 Rothstein? 14 The think dirty philosophy, the use of 15 that as a kind of overarching metaphor, I took from 16 something you said, Mr. Koster, that that wasn't just 17 something coming out of the OCCO, it was something that 18 was in effect the approach by those crafting the 19 legislation at the time. 20 Is that right? Or did you perceive it as 21 somebody involved in sort of the trenches, if I can put 22 it that way -- 23 MR. ANDREW KOSTER: Yeah -- 24 COMMISSIONER STEPHEN GOUDGE: -- back 25 then, as something that was really confined to, or
1591 stemming only from the Coroner's Office? 2 MR. ANDREW KOSTER: -- yeah. I thought 3 it was the latter. 4 COMMISSIONER STEPHEN GOUDGE: Okay. 5 MR. ANDREW KOSTER: The legislation was 6 meant to emphasize child safety -- 7 COMMISSIONER STEPHEN GOUDGE: You 8 referred to a tick box approach to legislation. 9 MR. ANDREW FOSTER: Oh, a tick -- a -- 10 that's the -- the standard -- the -- the series of steps 11 that you would have to take when you're investigating, 12 but you -- 13 COMMISSIONER STEPHEN GOUDGE: Yes. Did 14 you somehow see that as in any way driven by, or 15 consistent with, the think dirty philosophy? 16 MR. ANDREW FOSTER: No. I saw that more 17 as a -- in some ways a devaluing of the -- of the 18 expertise of frontline staff, or -- or the 19 professionalism of staff. 20 DR. NICHOLAS BALA: If -- if I could just 21 say -- 22 COMMISSIONER STEPHEN GOUDGE: Sorry, 23 Professor Bala, go ahead. 24 DR. NICHOLAS BALA: -- that I think it -- 25 it -- at least in my view, was not by any means only the
1601 Coroner's Office that was saying it. It was much broader 2 than that, and, so -- and it either influenced certainly 3 the -- the child welfare system in different ways. It 4 was coming in part from the media, and then being 5 reflected back in the media. 6 One (1) of the things that was going on 7 was that it wasn't other professions. So frontline 8 healthcare workers, not just pathologists, but nurses, 9 doctors -- 10 COMMISSIONER STEPHEN GOUDGE: 11 Pediatricians. 12 DR. NICHOLAS BALA: -- teachers, were 13 being told to be more alert to issues of child abuse and 14 neglect. 15 Issues of domestic violence, for example, 16 that had long been regarded as marginal for child 17 welfare, the police began to report to Children's Aid 18 Societies in every case where they were going to a 19 domestic violence situation, saying, This is a potential 20 child welfare case, there may be physical and emotional 21 issues here for the children. 22 And some of that increase in reporting, or 23 perhaps all of it, was socially desirable, but it also 24 had negative implications. And, so we had both positive 25 and negative things happening.
1611 COMMISSIONER STEPHEN GOUDGE: Yes. It's 2 -- the second question I had arising out of the think 3 dirty philosophy that was reflected in the memorandum 4 that has got considerable attention in our hearing, Mr. 5 Koster, was it has been said by some at least that what 6 laid behind that was the premise that there was 7 significant child abuse going undetected, and this was 8 the antidote to that. 9 Now, would that accord with either your 10 own sense of the time, or any empirical work that you 11 know of at the time, or was it more reflective of the 12 kind of media case, or case that -- 13 MR. ANDREW KOSTER: Yeah. 14 COMMISSIONER STEPHEN GOUDGE: -- was 15 covered in the media that Professor Bala has refereed to, 16 or something -- or both? 17 MR. ANDREW KOSTER: Yeah, I think it was 18 -- I think it was -- it was directly related to the 19 Heikamp, where -- where the worker was seen to have, you 20 know, correctly or incorrectly could have been more 21 diligent. 22 COMMISSIONER STEPHEN GOUDGE: But if 23 somebody had asked you the question in the mid-'90s, do 24 we need a more vigilant approach to child abuse because 25 there is a great deal going undetected, and untreated,
1621 undealt with, what would your reaction have been to that 2 assertion? 3 MR. ANDREW KOSTER: Hm-mm. 4 COMMISSIONER STEPHEN GOUDGE: Corresponds 5 to your reality at the time or -- 6 MR. ANDREW KOSTER: Yeah. Yeah, but I'm 7 not sure that "think dirty" was going to make that any 8 better. 9 COMMISSIONER STEPHEN GOUDGE: Fair 10 enough. Maybe it is the -- but if the premise of "think 11 dirty", the launching pad for it -- 12 MR. ANDREW KOSTER: Right. 13 COMMISSIONER STEPHEN GOUDGE: -- was that 14 premise, what would you have said as to its accuracy? 15 MR. ANDREW KOSTER: Yeah, I -- I think 16 from the -- the standpoint of the people who felt that, 17 that that was their way of trying to get at abuse that 18 otherwise you wouldn't think about. You know, so 19 probably he did have a good intention, whether that was 20 the con -- you know -- 21 COMMISSIONER STEPHEN GOUDGE: A good 22 intention. What about the reality? Was there abuse 23 going undetected that shouldn't have been? Or, I mean, 24 this is purely anecdotal, -- 25 MR. ANDREW KOSTER: Yeah.
1631 COMMISSIONER STEPHEN GOUDGE: -- I'm 2 sure, so it may be an unfair question and there may be 3 no -- 4 MR. ANDREW KOSTER: Yeah. 5 COMMISSIONER STEPHEN GOUDGE: -- any -- 6 there be no epidemiology or anything like that. 7 MR. ANDREW KOSTER: Yeah. 8 DR. NICHOLAS BALA: I think that's a very 9 hard -- even today one could say we have cases of child 10 abuse/neglect that are undetected, and we also have 11 people that are falsely brought forward. I think that -- 12 and it's also important to try to separate out the 13 initial reporters so if you want -- before the Children's 14 Aid Society. 15 Are we -- for example, we're educating our 16 teachers and doctors and nurses, the frontline people 17 working with children -- 18 COMMISSIONER STEPHEN GOUDGE: Right. 19 DR. NICHOLAS BALA: -- better to -- are - 20 - are coaches in -- in sporting teams say, be more aware 21 of and be more likely to call the Children's Aid Society. 22 I think that kind of increased public awareness is 23 desirable because there -- you're -- if you want widening 24 of the net, people who, in the past, might have been 25 abusing children without anyone being aware, now children
1641 are more likely to disclose. 2 They're going to get more support. 3 They're not going to be dismissed as liars. 4 COMMISSIONER STEPHEN GOUDGE: Right. 5 DR. NICHOLAS BALA: They're going to be 6 brought forward. 7 COMMISSIONER STEPHEN GOUDGE: Right. 8 DR. NICHOLAS BALA: That's different from 9 the issue of all right, if you are in the system, if you 10 are a child welfare worker, and you are investigating a 11 case, what's going to be your attitude to the parents -- 12 COMMISSIONER STEPHEN GOUDGE: I 13 understand that. What about the underlying reality, 14 though, Professor Bala? If somebody had asked you the 15 question I asked Mr. Koster, mid-'90s, was there 16 undetected child abuse that required somehow -- this may 17 not be the right way, but somehow greater vigilance on 18 the part of society and its various institutions? 19 DR. NICHOLAS BALA: Yes, there was, but 20 there were also -- I mean, there -- we have to be careful 21 because as we widen the net, we also are going to get 22 more false or unfounded and/or in a lot of cases, it's a 23 very grey issue. In other words -- and the death cases - 24 - or perhaps, you'll -- the most clearly could say, Well, 25 did this person kill the child or not?
1651 Sometimes the person didn't kill the 2 child, but they may have contributed to the death in some 3 way. They may have some level of responsibility, perhaps 4 not criminal or they may be inadequate parents in other 5 ways. These are very difficult investigations to carry 6 out, forensically, but also the kind of work that the 7 panel is here is talking about is very stressful. 8 You know, just to come back -- 9 COMMISSIONER STEPHEN GOUDGE: Right. 10 DR. NICHOLAS BALA: -- to one (1) of the 11 questions that was raised. The turnover of child welfare 12 workers in -- in -- 13 COMMISSIONER STEPHEN GOUDGE: The burnout 14 rate, as you -- 15 DR. NICHOLAS BALA: -- the burnout rate 16 is very high, and it's higher than in, for example, the 17 police, you tend to have a much lower turnover rate. In 18 the healthcare system, -- 19 COMMISSIONER STEPHEN GOUDGE: Right. 20 DR. NICHOLAS BALA: -- you have a much 21 lower turnover rate. In the child welfare field, child 22 welfare agencies think they're doing well if they have a 23 5 to 10 percent turnover every year. Some of the 24 agencies will have 20 or 30 percent a year. 25 COMMISSIONER STEPHEN GOUDGE: Right.
1661 DR. NICHOLAS BALA: So if your staff is 2 turning over that quickly and finding it extremely 3 stressful to do this kind of work, you may not be 4 carrying out investigations that as -- or as good as -- 5 as people would like to have done. 6 And that goes back to were we having 7 undetected child abuse in the 1990s? Sure. And we still 8 are today. But the question, how well are -- how much is 9 being reported, and how well are we investigating the 10 cases that are coming in. 11 COMMISSIONER STEPHEN GOUDGE: Right. 12 Okay. Thanks. Thanks, Ms. Rothstein. 13 14 CONTINUED BY MS. LINDA ROTHSTEIN: 15 MS. LINDA ROTHSTEIN: Ms. Fitzgerald, 16 I know that you've given some -- 17 MS. JANE FITZGERALD: Yeah. 18 MS. LINDA ROTHSTEIN: -- thought to these 19 issues, -- 20 MS. JANE FITZGERALD: Yes. 21 MS. LINDA ROTHSTEIN: -- what are your 22 comments? 23 MS. JANE FITZGERALD: I just want to add 24 one (1) more piece of the puzzle, perhaps, to the context 25 at that time. And it wasn't just in Ontario, so I don't
1671 think it's just related to the "think dirty" approach. 2 Across the country, most provinces were 3 introducing risk assessment models. And that was really 4 a -- a new tool in the toolkit for Children's Aid 5 Societies and workers in assessing risk. 6 COMMISSIONER STEPHEN GOUDGE: Right. 7 MS. JANE FITZGERALD: And I think that 8 also played a part in -- perhaps of more of a focus, if 9 you will, on what are the risk factors in families. I 10 don't think that's the same as "think dirty", but I think 11 that -- that we were introducing more stringent tools 12 that we could use that, for example, when I began 13 practising, we didn't have that. 14 It was our -- only our clinical skill. So 15 I think that's -- that also contributed to this. We're 16 now gone through a second round as Andy Koster pointed 17 out in terms of the new transformation agenda coming out 18 of the ministry, where we're looking at honing that even 19 further to ensure we're also addressing the strengths in 20 a family. 21 We're not just looking for the risks. But 22 there definitely -- we went through a period where we 23 focussed, I would say more on the risk factors and how 24 that contributed then to the interpretation of "think 25 dirty", you know, we can speculate.
1681 I know that those who did the training 2 with Dr. Cairns across the province were very careful to 3 say "think dirty" is not a socialwork term, as Andy has 4 pointed out, and it also -- for us, it really is about 5 going in and having a balanced approach. 6 COMMISSIONER STEPHEN GOUDGE: Right. 7 MS. LINDA ROTHSTEIN: Ms. Samler, did you 8 have some comments at this juncture or...? Okay. 9 Because I know, Mr. Koster, you wanted to make another 10 point. 11 MR. ANDREW KOSTER: Thank you. Mr. 12 Commissioner, you asked me about the -- the recording and 13 the check box. A lot of that occurred as a direct result 14 of the series of inquests that were held in the mid- 15 '90's, which showed that it -- well, that some of the 16 findings and recommendations on those separate inquests 17 said that if certain steps had been taken then perhaps in 18 that particular instance -- 19 COMMISSIONER STEPHEN GOUDGE: This would 20 have been caught. 21 MR. ANDREW KOSTER: Yeah, so therefore, 22 the idea was that if you have marked down all those 23 steps, and you make sure that all the workers go through 24 that series of steps then hopefully, we would reduce and 25 then -- and -- but the "think dirty" didn't really come
1691 until after the Heikamp, which -- which was -- you know, 2 which was on top of that. 3 The interesting thing, too, is that when 4 you look at the number -- if that was all the intent to 5 reduce child deaths, I'm not quite sure what the, you 6 know, how successful that was. The number of child 7 deaths of kids associated with Children's Aid Societies 8 from about 2000 to 2005 remained constant, and -- and 9 actually with the same levels they were before any of 10 these changes took place. 11 COMMISSIONER STEPHEN GOUDGE: Right. 12 13 CONTINUED BY MS. LINDA ROTHSTEIN: 14 MS. LINDA ROTHSTEIN: So, Commissioner, 15 just before I actually get back to helping us understand 16 what the challenges are dealing with individual cases, 17 particularly those that interface with medical 18 professionals and the police, I'm going to ask you, Ms. 19 Samler, to add to the -- our understanding of context, 20 broadly described, and what I think all the rest of our 21 panel would herald as a very positive development in this 22 area, which is the creation of the role of the Chief 23 Advocate and indeed, of that independent office which you 24 now occupy. 25 Can you tell the Commissioner about what
1701 the trends were or the developments were that led to the 2 creation of this Office of the Provincial Advocate for 3 children and the importance of it being an independent 4 office? 5 MS. AGNES SAMLER: Okay, the Provincial 6 Advocate for Children and Youth was created in 2007. The 7 Act was passed at that time, and the -- the intent was to 8 create an independent office of the legislature, much 9 like the Ombudsman or the Auditor General, and, in fact, 10 that is the position held today. 11 What the intent was, was to take the 12 office away from a line ministry. So if you think about 13 where the office was lodged in the Ministry of Children 14 and Youth, you had on one (1) hand a Deputy Minister and 15 Minister responsible for an -- and advocate, and an 16 advocate who spoke out about programs that were being 17 delivered in another branch of the same ministry. 18 So -- so you have that really 19 uncomfortable situation where an advocate speaking out 20 might be very critical of decisions that were made by 21 that Deputy Minister and staff in the other part of the 22 Ministry. 23 If -- if you think about that working 24 well, with everybody doing their best to keep the 25 advocate independent, you still have a situation where
1711 conflict of interest is built in. 2 At it's worst, you have a Deputy Minister 3 who can review reports and decide whether or not they 4 should go out or request that the advocate, in fact, 5 change those reports. So that's part of the reason why 6 the independence is critical. 7 The advocate -- the role of the advocate 8 is to provide an independent voice for children and youth 9 in Ontario, and especially focus on kids with special 10 needs and First Nations kids. 11 A second role is to make sure that people, 12 children, families, caregivers are educated about the 13 rights of the child. With that in mind, the principals 14 behind this Act are really the UN convention of the 15 rights of the child, and I'd like to emphasis two (2) 16 parts of that: One (1) is Article 3, which is the best 17 interests of the child, and Article 12, which talks about 18 the voice of the child and the importance of the child 19 being part of any decisions that are made about its 20 future. 21 So that's -- that's basically an overview 22 of the broad role. Within that role, the functions are 23 really to provide advocacy and rights advice to children 24 under the CFSA, Child and Family Services Act, under the 25 Ministry of Correctional Services Act.
1721 Also, under schools for the blind, deaf, 2 special demonstration schools, so kids that were 3 perceived as particularly vulnerable across the province, 4 and that's -- there are two (2) kinds of -- we also are 5 responsible, and this is new, for children in holding 6 cells and children being transported back and forth to 7 Court, so that becomes another additional role for the 8 advocate. 9 And in the case of secure treatment, if a 10 child is taken into secure treatment on an emergency 11 basis, it's the responsibility of the advocate to make 12 sure that child is aware they have a right to a hearing. 13 So those are -- those are kind of 14 basically the functions. There are two (2) kinds of 15 advocacy. One (1) is individual. 16 We receive a number of calls in the office 17 and respond to those. And -- 18 MS. LINDA ROTHSTEIN: Who typically makes 19 those calls? How do individual children find their way 20 to your office? 21 MS. AGNES SAMLER: In most of the 22 facilities, either youth justice, or group homes, so on, 23 there are posters and rights material in those places. 24 I would say, most often, it's kids telling 25 kids. So that's how calls come to the office.
1731 The -- the second thing is systemic 2 advocacy, and that's a broader base. With the individual 3 advocacy, we deal with the kids and the Acts that I spoke 4 about. 5 With the systemic advocacy, it's really 6 any group of children in similar circumstances. And for 7 example, with the safe schools report, we will be working 8 with two (2) schools to look at basically the voices of 9 children, and what their concerns are, and how they might 10 be addressed. 11 So that's -- I do want to talk a little 12 bit more, though, about how this fits with child welfare. 13 And I -- I need to start off by saying, I have the utmost 14 respect for people who work in the Child Welfare system. 15 I just -- they do a -- I think, Jane, you 16 called it the hardest job you ever had was doing 17 frontline work. So I just -- I really need to say that 18 first, and I think there's a lot of wonderful care that 19 goes on. 20 Now let me present the other side, though. 21 In individual cases, we get about thirty-five hundred 22 (3,500) calls in a year. Of those, the bulk are from 23 kids in care. They're -- they're mostly around the child 24 welfare or the youth justice system. 25 Some of those are not particularly
1741 difficult to resolve, but some of them reflect kids in 2 care in horrendous situations. They talk about being 3 held in restraints. They talk about food being withheld 4 or limited for them. 5 They talk about being held in their rooms 6 for unlimited times. They talk about their belongings 7 being removed from the room. 8 So there's -- in those calls, we -- we 9 have a lot of work to do, both individually, so we need 10 to resolve that situation for that child. And sometimes 11 systemically, when it's a group home with -- that 12 continues to have ongoing problems, or a Children's Aid 13 Society where some of the issues are not being addressed. 14 I also -- we also have systemically 15 reviewed Children's Aid Societies. Three (3) Children's 16 Aids Societies; Thunder Bay, Peel, and Toronto. And the 17 results of that, again, reflect lots of really good 18 things that are happening in the child welfare system. 19 But on the other side, kids were asked, 20 Have you ever been in a bad placement? And for more than 21 50 percent of the kids, the answer was yes. More than 50 22 percent of the kids interviewed said yes. 23 And when asked what did that bad placement 24 mean, it meant abuse in some cases. It meant that you 25 were treated disrespectfully. It meant that you didn't
1751 have the same privileges of other kids -- biological kids 2 in the house, if it was a foster home. It talked about 3 restraints in group homes. So for kids -- and this is -- 4 this was done in a fairly systematic way. It's not just 5 going in and chatting with kids. 6 There were questionnaires. They were 7 reviewed, and those are kind -- the kind of findings that 8 were found. 9 The other part was around permanency of 10 placement, and the question around that is that kids were 11 asked had they been moved in the last year. 12 And basically what they said, most were 13 not. So I think 68 percent were not, and the balance 14 said, Yes, we'd been moved in the last year. 15 So a lot of kids were in pretty steady 16 places. The others, though, were asked again then, Well 17 how many times in total have you been moved, and the 18 average was four (4) times. 19 The reason I'm raising this is because 20 when we're talking about child abuse, it's almost as if 21 you can find out that the child's been abused to make a 22 legal case around it, then everything's going to be okay. 23 And I'm just saying to you that it isn't. 24 There's a ton of work to be done once that's -- once the 25 child is -- is brought to a child welfare Court, and even
1761 if found that there was an issue of abuse, there's -- 2 there's a lot of things -- I guess my point is, it isn't 3 always good to remove the child from the home, and say 4 there's child abuse, into care, versus there's child 5 abuse or suspected child abuse and it may be better to 6 leave that child in a family where there's some risk. 7 And just the last point I want to make is 8 part from -- Nick Bala talked about changes, and there 9 were changes that strengthened, I think, the likelihood 10 that children would come into care. Those changes were 11 directed in that way. 12 The -- with those changes, there was one 13 change legally that has troubled me enormously, and it's 14 that once children are taken into care, they have to be 15 made permanent wards of the Children's Aid. They have to 16 be taken into permanent care, if they're -- in one (1) 17 year if they're between zero and six (6) -- 18 MS. LINDA ROTHSTEIN: Yes. 19 MS. AGNES SAMLER: -- and within two (2) 20 years, if they're six (6) years or older. And that -- 21 part of that came out of the work done by Paul Steinhauer 22 and Fraser Mustard, which talked about how important it 23 was for kids to be -- to have stable relationships during 24 that period. 25 What's happened though, the law and -- and
1771 following the law of the Children's Aid Society accept 2 permanency as -- permanency as the placement, so if you 3 can get them into a permanent placement then it's okay, 4 whereas, I think that research talked about relationship. 5 And I find it very hard to think that all 6 kids would fit into these time limitations, and I think 7 that's something we should look at as we look at the 8 history of child welfare, and also, I think it's 9 something that ties the hands of Children's Aid folks a 10 lot, as well, so that's -- I'm going to stop there. 11 MS. LINDA ROTHSTEIN: Okay, that's 12 helpful. Ms. Fitzgerald -- 13 MS. JANE FITZGERALD: Yeah. 14 MS. LINDA ROTHSTEIN: -- you had some 15 comments. 16 MS. JANE FITZGERALD: Sure, I just wanted 17 to add to this, and -- and I think that Ms. Samler has 18 outlined pretty well that there's a lot of serious 19 decisions that are made when we bring a child into care, 20 and the complexity around those decisions cannot be 21 underestimated. 22 To bring to why I think we're here today, 23 in making those decisions, we have to look at what are 24 the -- what are the best interests of the child at that 25 time, and we have to look at their safety. In making a
1781 decision that a child should be in our care, and it -- 2 and that includes, there may have been a homicide within 3 a family, and we're looking at the remaining children. 4 What do we do immediately? 5 We have to rely on not only our own 6 assessment, but also the information we receive from 7 other professionals. 8 MS. LINDA ROTHSTEIN: And that's what I 9 want to explore with you next, if I can -- 10 MS. JANE FITZGERALD: Right, becau -- 11 MS. LINDA ROTHSTEIN: -- is the various 12 other actors in the system who bear a responsibility for 13 both assisting you and indeed, doing parallel work, 14 either to protect the safety of the child or indeed, to 15 prosecute one (1) of the parents. 16 MS. JANE FITZGERALD: Absolutely, and if 17 I can just continue on that because I think the -- 18 someone has mentioned, and it might have been you, 19 Professor Bala, that we have -- we do have protocols in 20 place across the province. They are locally -- 21 MS. LINDA ROTHSTEIN: Can I stop you 22 there? 23 MS. JANE FITZGERALD: Sure. 24 MS. LINDA ROTHSTEIN: Because I want to 25 go through this, if we can --
1791 MS. JANE FITZGERALD: Okay. 2 MS. LINDA ROTHSTEIN: -- with a case 3 example. I think it will help to illustrate the issue, 4 so back to my case, Ms. Fitzgerald, if you don't mind, 5 which is that one (1) of your workers gets a call from a 6 SCAN physician at a hospital saying that either a child 7 has recently died and they suspect the caregiver, or 8 alternatively, that a child is on life support, and they 9 suspect the caregiver and there are other children at 10 home. 11 Walk us through the extent to which your 12 worker would then interface with the physician; what 13 skills they have to understand the medical evidence with 14 which they're presented, and what, if any, 15 recommendations you have about how that communication can 16 work better. 17 MS. JANE FITZGERALD: I can speak about 18 our -- our agency in particular, where I have to say I 19 think we have excellent relationships amongst the various 20 players, but it is relationship-based, not necessarily 21 protocol-based. 22 In that instance, investigations are done 23 jointly by our agency along with the police. In terms of 24 results that may come out of a forensic pathologist or 25 the coroner, quite frankly, those usually come to us
1801 through the police. They do not come through a direct 2 relationship that we have with the Coroner's Office. 3 But again -- 4 MS. LINDA ROTHSTEIN: And why is that, to 5 your knowledge? 6 MS. JANE FITZGERALD: Our protocol -- we 7 have a protocol with the police. Our protocol is not 8 directly with the coroner, and I think that's one (1) of 9 the issues that I would hope that the Commission will 10 look at is, we really have a -- it's -- it's like a three 11 (3) legged stool and all three (3) parties need to be a 12 part of the discussion, and at this point, we usually get 13 the information through the police. 14 We make our determination around any 15 remaining children, in the example you're using, ba -- 16 MS. LINDA ROTHSTEIN: So let me stop 17 there for a moment. So that means, does it not, that 18 your worker, your frontline worker, or indeed the 19 supervisor or anyone else who may be involved, because 20 this is a very complex case, I assume -- 21 MS. JANE FITZGERALD: Mm-hm. 22 MS. LINDA ROTHSTEIN: -- does not have 23 any direct communication with either the physician or the 24 forensic pathologist about their findings? You're 25 hearing about that through the police, is that's -- is
1811 that what you're telling us? 2 MS. JANE FITZGERALD: I'm going to ask 3 you to -- 4 MS. LINDA ROTHSTEIN: Yeah -- 5 MR. ANDREW KOSTER: Yeah, it varies. In 6 some situations you may hear directly from the medical 7 staff. In other cases you may hear directly, you know, 8 from the police. The -- the police would in some 9 jurisdictions believe that because they're running the 10 criminal investigation, the information gets flowed 11 through them. 12 MS. LINDA ROTHSTEIN: Okay. 13 MR. ANDREW KOSTER: So it -- so it would 14 vary. 15 MS. LINDA ROTHSTEIN: Would you have a 16 preference? Would it be better if you were part of -- or 17 able to sit at the table when the police are hearing 18 directly from the forensic pathologist about his or her 19 conclusions? Would that be of any assistance? 20 MR. ANDREW KOSTER: Yes. And I think 21 it's one (1) of the reasons why, if you look at one (1) 22 of the example that I think is on the package here, the 23 protocol with Toronto -- Toronto police, that one (1) 24 calls for -- it's a joint investigation. 25 There's a sharing of information on all
1821 situations of child abuse. And -- and to my mind that 2 includes when a child dies. And there's also those 3 situations too where a child might be technically, you 4 know, not going to survive, but they're still being kept 5 alive on life support systems. 6 We have to worry about the other children 7 in the home. We have to present information before a 8 court. You know, and -- and even though our -- our level 9 of proof is a balance of probabilities test, we still 10 need as much information as we can. 11 So because we have to make some fast 12 decisions and be involved, this -- the more information 13 we get, and the more coordination with the police, even - 14 - I mean, in many jurisdictions like ours, there is that 15 cooperation, but I can tell you, across the province it's 16 intermittent as to whether you get that. 17 And in some jurisdictions it's completely 18 a police investigation and it's very difficult sometimes, 19 because the police are sometimes afraid to pass 20 information on to a Children's Aid Society: Well, 21 suppose they tell the parents, and suppose that 22 jeopardizes our criminal investigation. 23 MS. LINDA ROTHSTEIN: Professor Bala? 24 DR. NICHOLAS BALA: And if I could just 25 add, you can see in our paper discussion about cases
1831 where Children's Aid Society has actually had to litigate 2 against the police to get access to information so that 3 they could carry out their -- the police and the Crown to 4 get access to information in the ongoing criminal 5 investigation so they could carry out an appropriate 6 child protection investigation. 7 And they're saying, we have to make a 8 decision about the child as we're hearing -- within a 9 time -- particular time limit, bring that before a court, 10 obviously share that with the parents, so there's some 11 issues there about disclosure, so we can have a fair 12 hearing. And the police or the Crown -- or the Coroner's 13 Office haven't yet completed their investigation, don't 14 want to release that information, so there are some 15 difficult issues there. 16 By and large the courts, when it's been 17 pressed to the litigation stage, have sided with 18 disclosure of that information to Children's Aid 19 Societies, but ideally you don't want to have two (2) 20 agencies litigating against each other about disclosure 21 of information. 22 You'd like to have a -- a protocol instead 23 of policies in place that would provide for information 24 sharing, and recognize that while the criminal justice 25 system is obviously very important, the future of any
1841 surviving children is at least equally important, and 2 indeed one (1) could argue, you know, maybe even more 3 important. 4 I mean, for better or worse, that child is 5 dead, and you know, we want to hold people accountable, 6 but we also -- we want the best decision made, the 7 fairest decision made for the surviving children. 8 And to go back to your question, 9 Commissioner, you know, the -- the issue isn't "think 10 dirty", it's -- it's "think better", investigate better, 11 have a more balanced and -- and that means one (1) of the 12 aspects as having the best sharing of information 13 possible. 14 COMMISSIONER STEPHEN GOUDGE: We've been 15 told, Professor Bala, that there are a number of local 16 protocols between police and CAS. 17 And that this situation, this information 18 sharing dilemma that you've described, is best solved 19 that way, as opposed to on a provincial basis or on some 20 uniform basis across the Province? 21 DR. NICHOLAS BALA: Well one (1) of the 22 realities is that we have a -- a system in Ontario of, as 23 we've heard, fifty-three (53) Children's Aid Societies 24 with a significant degree of local autonomy about issues 25 to which the provincial government wants to give it
1851 autonomy. 2 And one (1) of the things that has gone on 3 is the -- over the last twenty-five (25) years is greater 4 provincial control, greater provincial standardization 5 about the financial issues and so on, as well as about 6 policy and practice issues. 7 And I think that if something is 8 important, it should be on a province-wide basis. And 9 while there is a need for local implementation, a value 10 to local protocol about certain issues, I think it's 11 appropriate for the provincial government to say, this 12 must be done everywhere in the province. It's important 13 and it has to be -- 14 COMMISSIONER STEPHEN GOUDGE: I'll take 15 this specific issue, a protocol for the exchange of 16 information between the police and the CAS when there is 17 surviving siblings -- 18 DR. NICHOLAS BALA: Yes, our -- and you 19 may be aware -- it comes out a little bit in our paper -- 20 one (1) of the problems is that there are a whole set of 21 complex issues about Children's Aid Society records that 22 are actually right now not legislatively dealt with. So 23 if you -- you know, police have -- for -- for a lot of 24 record keeping in Ontario by government, or quasi- 25 government agencies, there is legislation in place that
1861 regulates it in the Child and Family Services Act for a 2 number of reasons. 3 Part A of the act which deals with records 4 and information sharing has never been proclaimed in 5 force, so we actually have an absence of legislation as 6 there's an ongoing discussion about exact -- and there 7 are, you know, many complex issues there. 8 But this is clearly an -- for the -- and 9 these cases are among the most difficult and challenging 10 that an agency has to deal with. Bearing in mind that 11 the issue that -- cases involving child death are a small 12 fraction of all the cases the CAS are dealing with, so 13 from a point of view of the Coroner's Office it's their 14 core function or even from the point of view of police, a 15 significant portion of their cases involve homicides, 16 many of them. 17 But for the agency, they're only at the 18 tip of -- of their one (1) small kind of case and there 19 are many issues about information sharing that they're 20 going to have to try to deal with. 21 MS. LINDA ROTHSTEIN: Mr. Koster, your 22 comments? 23 MR. ANDREW KOSTER: Yeah, my worry would 24 be, Mr. Commissioner, that if we left it to individual 25 local jurisdictions that we'd be maintaining the sta --
1871 status quo in -- in that some get along really well and 2 there is a sharing of information and others, my 3 colleagues say, you know, don't have that degree of 4 mutual cooperation. And -- but I do believe there needs 5 to be localized tweaking. 6 For example, if you look at our 7 jurisdiction, we have police -- three (3) police forces. 8 We have Six Nations Police, we would have the OPP in 9 rural area of Brantford, and then we would have the 10 Brantford Police Department. So we -- and each of those 11 responses and needs would be slightly different. 12 So there is an individual need to -- and 13 one (1) size does not -- you know is not best for all, 14 but you do need to have some principles, which would have 15 to be maintained by all protocols: must included the 16 following, kind of thing. 17 MS. LINDA ROTHSTEIN: Your view, Ms. 18 Fitzgerald -- 19 MS. JANE FITZGERALD: Yeah, I -- 20 MS. LINDA ROTHSTEIN: -- on that issue? 21 MS. JANE FITZGERALD: And I just wanted 22 to add to what Mr. Koster has said. The other issue for 23 us is joint training because for the protocols to really 24 live, we need to continually revisit them. And I think 25 they found that, for example, in the example you gave
1881 around the Toronto sexual abuse protocol, it is something 2 that has to be revisited, trained on, and have all of the 3 parties resign every few years. 4 So I think that would be the other 5 component that would make it work. 6 MS. LINDA ROTHSTEIN: And I -- I gather 7 from what you've told me, Ms. Fitzgerald, that in your 8 jurisdiction, local police forces, you have more than one 9 (1) that you deal with, don't always interpret and apply 10 the same protocol the same way, you were telling us. 11 MS. JANE FITZGERALD: That is correct. 12 MS. LINDA ROTHSTEIN: So I take it from 13 what you're telling us that that would be enhanced by 14 regularly talking with those forces and training together 15 about how to -- 16 MS. JANE FITZGERALD: Absolutely -- 17 absolutely. And I think it is that joint training that 18 also brings a protocol to life in a community. 19 MS. LINDA ROTHSTEIN: Okay. So when 20 we talk about these cases sometimes being centred to a 21 very large degree on medical evidence, forensic evidence, 22 give us an understanding of the extent to which your 23 staff are able to be critical about the nature and 24 quality of that medical evidence, whether it's forensic 25 pathology or more broadly in the area of clinical
1891 evidence about the potential abuse of children. 2 Ms. Fitzgerald...? 3 MS. JANE FITZGERALD: I -- you know, I -- 4 I think this goes to the heart of one (1) of the 5 questions for -- for the Commissioner to consider, and -- 6 and that is thought in child welfare, as I said earlier, 7 we have to rely on the expert evidence of others in 8 formulating our go-forward path. And it is very clear 9 through this, as you can see, that we have relied very 10 heavily on the advice we've received, and the -- and the 11 expert evidence from the coroner and the pathologist. 12 I don't think that, as a society, we are 13 in a position to question the medical evidence that is 14 put in front of us. We need to be able to rely on the 15 expert advice we receive. 16 A check to that, though, can often be, 17 particularly in a child protection proceeding, when 18 parents have their own counsel and the ability to bring 19 in their own expert witnesses to question some of that 20 evidence. And I think that in child welfare court our 21 experience is that families often do not have access to 22 the kind of legal aid support that enables them to bring 23 in the legal advice they require, and specifically, the 24 expert advice to question it. 25 So first there's having the proper advice,
1901 but secondly, there's that check and balance to ensure 2 that it can be questioned. 3 MS. LINDA ROTHSTEIN: Okay. Professor 4 Bala, you had some comments. 5 DR. NICHOLAS BALA: Yeah, if I could just 6 -- I -- I completely agree that it's not, in my view, 7 realistic to expect a child protection worker to be a 8 meaningful check on information that's coming from a -- a 9 medical professional, but there is an important role in 10 the child protection process, particularly, if there is a 11 conviction in Criminal Court on the standard of proof 12 beyond a reasonable doubt. 13 That's likely going to be determinative of 14 a lot of things in the child protection process, and 15 there may never even be a child protection hearing, or if 16 there is, both as a matter of law and practice, that 17 conviction is -- is determinative of -- of certain kinds 18 of issues. 19 But there are a lot of cases in which 20 there's not going to be that level -- there's not going 21 to be a conviction. There may not even be criminal 22 charges. 23 And then a central set of issues in the 24 child protection process is going to be what was the 25 cause of death; one (1) of the issues. It won't necess -
1911 - it won't be the only one (1), and in fact, one (1) of 2 the hallmarks of the child protection process is that 3 it's much broader, and that evidence that's not 4 admissible, or relevant in a criminal process, will be 5 admissible. 6 As was pointed out though, there has to -- 7 to be an effective check on the view of the opinion of 8 the pathologist, or the Coroner's Office. 9 There has to be an effective advocacy in 10 the child protection process from the point of view of 11 the parents, who would be called parent's counsel. 12 Some people use the word defence counsel, 13 which I think is not appropriate, but does -- it does -- 14 when the essential issue is responsibility for death, 15 that's, in effect, the role of parent's counsel. 16 And our Legal Aid system is often woefully 17 inadequate in the child protection context, in 18 particular. And parents are often having great 19 difficulty getting adequate counsel. 20 Issues about Legal Aid are certainly true 21 in the criminal system. They're even worse in a child 22 protection system. 23 In many parts of Ontario now, it's not 24 possible to find lawyers who will take certificates to do 25 child protection work because of the nature of the -- the
1921 fee schedule and the difficulty of the work. 2 And again this goes back -- it's the other 3 side of the -- the challenges and stress of child 4 protection work for workers, are faced in a different 5 kind of way for parent's counsel. And -- and a lot of 6 lawyers are saying, You know, It's one (1) thing to be a 7 member of the criminal Defence Bar which has certain 8 ethos and the understanding we'll go at, after people in 9 the -- it -- it has a certain set of advocacy with the 10 Legal Aid system. 11 The -- the -- at the bottom of the child - 12 - the Legal Aid totem pole often is the child protection 13 workers. The child protection -- the lawyers who are 14 doing child protection work, actually either for the 15 agency where they're paid much less than Crown 16 prosecutors, or from the parent's side where they -- they 17 often, in effect, are getting less than the people who 18 are doing the defence work. 19 And these are the people involved making 20 the decisions about the future of children. And I 21 don't -- 22 COMMISSIONER STEPHEN GOUDGE: Can I just 23 ask, Ms. Fitzgerald, would most of your frontline workers 24 in a case where there had been a death of a child and 25 surviving siblings, let's assume away the information
1931 block, and assume that the pathology comes to the 2 frontline worker. 3 I infer from what you said that that would 4 almost always come by word of mouth through the police. 5 MS. JANE FITZGERALD: I think in our 6 jurisdiction, in most cases, that would be the case. 7 COMMISSIONER STEPHEN GOUDGE: Would it 8 help if the frontline worker got directly something from 9 the pathologist? The preliminary report? 10 MS. JANE FITZGERALD: Absolutely. As 11 well as probably ability to conference together what 12 those results mean, because I think that's one (1) of the 13 other concerns is that, Are we interpreting this 14 correctly. 15 Because based on what we hear -- 16 COMMISSIONER STEPHEN GOUDGE: That gets 17 you right into we need a little educational background to 18 be able to evaluate it then. 19 MS. JANE FITZGERALD: Yes. 20 COMMISSIONER STEPHEN GOUDGE: You began 21 with the proposition that you just want to be able to 22 accept it. 23 So there is a bit of a -- 24 MS. JANE FITZGERALD: Well -- 25 COMMISSIONER STEPHEN GOUDGE: -- I mean,
1941 take a simple proposition. These cases. The cases we 2 have heard about that involve protection, are cases where 3 the CAS felt they had to move extraordinarily quickly, 4 before the pathology was finalized in most cases. 5 MS. JANE FITZGERALD: Yes. 6 COMMISSIONER STEPHEN GOUDGE: Would a CAS 7 worker have the baseline knowledge to know that, at that 8 stage of life unfolding after the death of a child, the 9 pathologist report was very likely to require further 10 tests, and was almost certainly a tentative preliminary 11 report? 12 MR. ANDREW KOSTER: They probably 13 wouldn't know that. 14 COMMISSIONER STEPHEN GOUDGE: Isn't that 15 a pretty simple thing that might be helpful for them to 16 know? 17 MS. JANE FITZGERALD: Well, certainly, 18 often in the cases that -- that I'm aware of, in our 19 agency, since I became Executive Director, we are often 20 having to make decisions about the remaining children 21 without having the final resolution of the pathology 22 report. 23 COMMISSIONER STEPHEN GOUDGE: Almost 24 always, but -- 25 MS. JANE FITZGERALD: Yes.
1951 COMMISSIONER STEPHEN GOUDGE: -- to act 2 as if it was the final word when it was not, is to act on 3 a false premise? 4 DR. NICHOLAS BALA: If I could suggest, 5 Commissioner, there is a difference -- clearly, knowledge 6 of this preliminary report is very important, but from 7 the point of view of an agency or worker, this is a tiny 8 fraction of their cases, so one could say, -- 9 COMMISSIONER STEPHEN GOUDGE: I 10 understand. 11 DR. NICHOLAS BALA: -- let's have a lot 12 of education about, I think, is not a very efficient use 13 of resource. On the other hand, if -- if they were -- it 14 would be very helpful in each case if they got the 15 document, and if the document stated right on it, this is 16 only a preliminary report, we have a lot more work to do. 17 18 We'd be pleased to meet with you, though, 19 in the interim to explain where we are, where we think we 20 might be going. That to me might be a better way of 21 doing this as opposed to -- 22 COMMISSIONER STEPHEN GOUDGE: It ends up 23 being sort of a resource allocation issue though -- 24 DR. NICHOLAS BALA: Well, it -- it's the 25 education on a case-by-case basis to --
1961 COMMISSIONER STEPHEN GOUDGE: Right. 2 DR. NICHOLAS BALA: -- say, Well, before 3 any worker deals with cases that should have, you know -- 4 COMMISSIONER STEPHEN GOUDGE: No, no, I 5 hear what you say, and it makes a lot of sense. 6 7 CONTINUED BY MS. LINDA ROTHSTEIN: 8 MS. LINDA ROTHSTEIN: Mr. Koster, you had 9 a comment? 10 MR. ANDREW KOSTER: I think it would be 11 helpful, Mr. Commissioner, if there was direct 12 information. If -- if a letter came -- for example, it'd 13 also, I think, really would help the family court judges. 14 And you're one (1) step away from then enabling -- 15 COMMISSIONER STEPHEN GOUDGE: Right. 16 MR. ANDREW KOSTER: -- the -- the 17 pathologist to be able to testify in family court as 18 well. So it's not so indirect -- 19 MS. LINDA ROTHSTEIN: Mm-hm. 20 MR. ANDREW KOSTER: -- information that's 21 arriving. And perhaps, there is a need for pathologists 22 to -- to testify more on some of their reports so that 23 those concerns that you have raised, such as is this 24 preliminary, is there reasonable doubt, and, you know, as 25 to whether it occurred.
1971 You know those kinds of things could 2 actually be flushed out in a family court setting. And I 3 think not just ourselves, but family court judges would 4 say the decisions they have to make, in that context, are 5 equally as important as the decisions that need to be 6 made in criminal court. 7 COMMISSIONER STEPHEN GOUDGE: Thanks. 8 9 CONTINUED BY MS. LINDA ROTHSTEIN: 10 MS. LINDA ROTHSTEIN: Commissioner, might 11 this be the appropriate time to take our afternoon -- 12 COMMISSIONER STEPHEN GOUDGE: Sure. 13 MS. LINDA ROTHSTEIN: -- break? 14 COMMISSIONER STEPHEN GOUDGE: Why do we 15 not then adjourn for fifteen (15) minutes. 16 17 --- Upon recessing at 2:41 p.m. 18 --- Upon resuming at 3:00 p.m. 19 20 THE REGISTRAR: All rise. 21 COMMISSIONER STEPHEN GOUDGE: Please sit 22 down. 23 Ms. Rothstein...? 24 25 CONTINUED BY MS. LINDA ROTHSTEIN:
1981 MS. LINDA ROTHSTEIN: I want to, if I 2 may, panel, continue to work through with you some of the 3 communication issues and education issues that confront 4 your societies in these difficult cases where there's an 5 important role for forensic evidence, either because a 6 child has died or because a child has life-threatening 7 injuries, and there are siblings who need to be 8 considered. 9 And can you just help us, Mr. Koster, in 10 understanding how a difficult decision would be made, by 11 your society, in a case like that about whether or not to 12 actually seek to intervene in respect of the siblings or 13 not? Who would be charged with that decision-making, and 14 to what extent would the society get legal advice from 15 one (1) of its lawyers? 16 MR. ANDREW KOSTER: Most agencies would 17 have their counsel actually present at a -- at the 18 discussions that you're going to have. And if there was 19 a serious injury or death, you know, already in the 20 family, then you'd normally have the worker, the -- the 21 manager of that worker, probably a senior staff, and in 22 some situations, even the Executive Director to be part 23 of the decision making as to where we go next. 24 MS. LINDA ROTHSTEIN: And how closely can 25 we analogize to the role of the Crown attorney? That is
1991 to say, how closely can we analogize between the role of 2 the CAS lawyer and the Crown attorney? Who has the 3 ultimate discretion whether to go to family court or not 4 to intervene with respect to that family? 5 MR. ANDREW KOSTER: It varies -- there's 6 fifty-three (53) agencies, and I -- and I would think 7 that it varies, but in many agencies, in most agencies, 8 the decisions for care are made by the workers and 9 managers. And the lawyer acts on behalf of the client, 10 you know the agency and those workers in that -- in that 11 case. 12 However, the -- the lawyer -- if the 13 lawyer has reason to believe that it's ill-advised or 14 their knowledge, if they have sufficient knowledge on 15 looking at forensic info -- evidence or things like, that 16 they have the right to challenge that in -- in an appeal 17 process that would take place; that they -- they could 18 appeal the initial case work decision to go in a certain 19 direction. So there's usually checks and balances in 20 most agencies on that. 21 MS. LINDA ROTHSTEIN: Professor -- 22 COMMISSIONER STEPHEN GOUDGE: How 23 quickly, Mr. Koster, is the original decision taken? I 24 mean, my sense, based on what we have heard, is that it 25 will be taken virtually instantaneously. That is as soon
2001 as the police report to the CAS that there has been a 2 death of a sibling that is criminally suspicious, the 3 other children are taken immediately? 4 MR. ANDREW KOSTER: Yeah, it would be 5 almost instantaneous because if, for example, I get a 6 call in that regard, or any of my colleagues, it's like, 7 Okay this is number one (1) priority. What are we going 8 to do next? 9 So usually you're making decision as to 10 what you've got to do within -- within minutes. 11 COMMISSIONER STEPHEN GOUDGE: So the 12 temporary decision is made -- 13 MR. ANDREW KOSTER: Yes. 14 COMMISSIONER STEPHEN GOUDGE: -- 15 immediately. 16 MR. ANDREW KOSTER: That's right. 17 COMMISSIONER STEPHEN GOUDGE: Now what is 18 required to make it -- 19 MR. ANDREW KOSTER: In most cases. 20 COMMISSIONER STEPHEN GOUDGE: -- beyond 21 there is a suspicious death of a child? Is that enough? 22 Surviving siblings are immediately taken? 23 MR. ANDREW KOSTER: No, that -- that's 24 not always true. It depends on the individual 25 circumstances of each individual case.
2011 COMMISSIONER STEPHEN GOUDGE: Okay. So 2 it would be a case-by-case analysis? 3 MR. ANDREW KOSTER: Yes. Yes. Hopefully 4 with the most information that there is available. 5 COMMISSIONER STEPHEN GOUDGE: But often 6 very quickly? 7 MR. ANDREW KOSTER: Yes, and then you 8 have to understand, too, that with some of the changes in 9 from -- you know, from the tran -- transformation 10 secretariat, they allow now for kinship care and other 11 options. 12 So sometimes on the short run, you find 13 relatives to make -- you know, to have the -- 14 COMMISSIONER STEPHEN GOUDGE: Right. 15 MR. ANDREW KOSTER: -- initial safety, so 16 you're -- 17 COMMISSIONER STEPHEN GOUDGE: Right. 18 MR. ANDREW KOSTER: -- making, you know, 19 protection applications, other things. You're using 20 other kind of temporary measures until you have had more 21 of an understanding of what's happening. 22 COMMISSIONER STEPHEN GOUDGE: Right, and 23 I think you addressed this, Professor Bala, but I mean, I 24 am interested whether the premise of that is a well 25 understood statistical epidemiological base, that if one
2021 (1) child has been killed in a household, the other 2 children -- the surviving children are at a significantly 3 enhanced risk? 4 I mean -- 5 DR. NICHOLAS BALA: I think the -- the 6 research, although it's not by any means perfect, it does 7 demonstrate that there is a substantially higher risk, 8 and the nature of that risk is very grave. 9 So understandably, the first response is a 10 protective response. And it -- 11 COMMISSIONER STEPHEN GOUDGE: Right. 12 DR. NICHOLAS BALA: -- it would often -- 13 COMMISSIONER STEPHEN GOUDGE: I mean, it 14 conforms to one's instinct, I am going to say -- 15 DR. NICHOLAS BALA: That's right. 16 COMMISSIONER STEPHEN GOUDGE: -- but I 17 have no sense as to whether that is backed up by -- 18 DR. NICHOLAS BALA: And -- and I think -- 19 COMMISSIONER STEPHEN GOUDGE: -- 20 statistical research. 21 DR. NICHOLAS BALA: I'm not sure that we 22 have the research to back it up, but looking at the cases 23 that we looked at, and that are discussed in the report, 24 in most situations, there would be a very quick decision. 25 And of course, that's also subject though
2031 to the parents have a right to be in Court within five 2 (5) days for initial Family Court hearing. 3 COMMISSIONER STEPHEN GOUDGE: Absolutely. 4 DR. NICHOLAS BALA: So it -- but it can 5 be a very quick process, and -- and if the suspicions are 6 significant, it would often be a very quick process. 7 But there are other factors. For example, 8 if the child who died was a newborn infant, and the other 9 children at home are 12 years of age, you might have -- 10 COMMISSIONER STEPHEN GOUDGE: A different 11 story. It may be a different story. 12 DR. NICHOLAS BALA: -- it may be a 13 different story. 14 15 CONTINUED BY MS. LINDA ROTHSTEIN: 16 MS. LINDA ROTHSTEIN: So one (1) of the 17 things that we've looked at when dealing with the 18 criminal justice system is the suggestion that Crown 19 attorneys, or at least some of them, could better deal 20 with these cases where there's a large forensic science 21 component if they received more education to increase 22 their scientific literacy, if I can put it that way, and 23 better assess in some objective way the nature, quality, 24 and persuasiveness of that evidence. 25 How, if at all, would that translate into
2041 your world? How helpful would that be to the lawyers 2 that you instruct, Ms. Fitzgerald? 3 MS. JANE FITZGERALD: I think it would be 4 extremely helpful. I think when we talked earlier about 5 joint training, that joint training extends to our 6 counsel as well. 7 DR. NICHOLAS BALA: And if -- if I could 8 just add, as you may know, there is an organization of 9 counsel of Children's Aid Societies across Ontario. Most 10 of the children -- child protection work in Ontario is 11 done by staff lawyers, and just a very rough guess, maybe 12 about 85 percent. 13 There are some agencies that rely, to a 14 significant extent, on lawyers in private practice, but 15 they would do it -- all -- all their work would go to one 16 (1) or -- one (1) firm, or one (1) set of lawyers. 17 So you have a pretty stable group of 18 lawyers who do child protection work. There's probably 19 more stability among the lawyers than there -- or less 20 turnover than it is among frontline staff, for example, 21 and they are closer to the place where -- and it's a 22 smaller group, more stable, and closer to the forensic 23 cutting edge, which is the ultimate issue is going to be 24 how is this going to be persuasive in a Family Court 25 situation.
2051 So that would be one (1) group that would 2 benefit from education. While there's a lot to be said 3 for local education, it's also a group that comes 4 together a couple of times a year for province-wide 5 education programs. 6 So they're relatively easy to access, and 7 say, Okay that group should be educated more about 8 forensic issues. 9 MS. LINDA ROTHSTEIN: All right. And 10 just tell us a little bit more about the -- those who get 11 involved in that work on a full-time basis. 12 You were telling me yesterday, Professor 13 Bala, about the pay scale for the prosecutorial side, if 14 I could put it that way. 15 DR. NICHOLAS BALA: Well, and -- and 16 that's certainly an issue in this province, that in a 17 number of province in Canada, the lawyers who do child 18 protection work who would take these cases to Family 19 Court are Crown lawyers, and paid on the same pay scale, 20 and part of the same institutional structure as lawyers 21 who are doing prosecution work. 22 In Ontario, they are employees of local 23 agencies and they are paid substantially less, a third to 24 a half less, and of course, one (1) of the problems is, 25 beyond the moral effects, is that it means that those
2061 lawyers, when the gain experience they're often hired 2 away into the Crown system. 3 The enjoy their work, they recognise its 4 social importance and -- but they say, you know, at some 5 point the financial issues because very large and say, 6 you know, I can do very similar work and be paid a great 7 deal more, and so they -- some of them are migrating into 8 the Crown system. And so that's a significant issue 9 among that group of -- of lawyers. 10 MS. LINDA ROTHSTEIN: And can any of you 11 help us understand the extent to which there's a 12 comfortable sharing of information between the Crown 13 attorney on the one (1) hand and the CAS lawyer on the 14 other where the two (2) cases, the criminal case and the 15 CAS case, are proceeding more or less contemporaneously. 16 Do -- do we know if that's a place where 17 there's a comfortable sharing of information about the 18 case or not? 19 MR. ANDREW KOSTER: From my -- from my 20 standpoint it's so infrequent I don't have enough to 21 answer you. 22 MS. LINDA ROTHSTEIN: Okay. Does -- do 23 you have any experience with that, Ms. Fitzgerald? 24 MS. JANE FITZGERALD: Well I can tell you 25 that in preparing for this I held my own small roundtable
2071 and it included the Crown, the head of the Criminal 2 Investigation Division, and our child abuse pediatrician 3 through the local hospital, along with my senior staff, 4 so I would have to say that we do share information. 5 MR. NICHOLAS BALA: I -- I think that one 6 (1) of the things you're hearing is there's a lot of 7 variation across the province, again as there is in other 8 issues, and there is, however, a sense that the -- the 9 Crown has a very different role from the lawyers from 10 Children's Aid Society, so the Crown has an in -- the 11 Crown attorney has an independent role, an independent 12 set if rights and responsibilities. The lawyer for a 13 Children's Aid Society has a client, and I think more 14 often the information sharing goes through the agency, 15 the client, as opposed to the lawyer directly and would 16 be agency to police. 17 MS. LINDA ROTHSTEIN: Okay, that's 18 helpful. So, I want to turn to the sort of -- the 19 ongoing criminal proceedings and as they move forward and 20 ask the question: How does the CAS handle followup to the 21 criminal proceedings? Are individual caseworkers expected 22 to monitor those proceedings? Is there feedback from 23 either the police or the Crown about the outcome of those 24 proceedings? How much do they play a role in Children's 25 Aid Societies continued views of that case?
2081 Can any of you help us with that? 2 MR. ANDREW KOSTER: I think each -- each 3 situation is different. I do know of some workers who 4 every time there was a hearing, a criminal Court hearing, 5 that they would be present at it. But it depends I think 6 on the individual situation -- 7 MS. LINDA ROTHSTEIN: Okay. 8 MR. ANDREW KOSTER: -- especially when 9 they're -- one has direct has direct bearing on some of 10 the plans that need to made for the kids. 11 MS. LINDA ROTHSTEIN: All right. And now 12 I want to turn to something and -- and bring you back 13 into our conversation, if I may, Ms. Samler, which is 14 questions that you raised in your paper, Professor Bala, 15 about how in the event that there is a demonstration that 16 a child has been separated from a family on the basis of 17 flawed pathology evidence, flawed forensic pathology 18 evidence, the system ought to deal with that. What 19 processes it ought to undertake. How individualised 20 those have to be. Who should be in charge of the 21 process, whether it's the CAS that was originally in 22 favour of separating the child from the family and 23 putting that child in care. 24 And I'm going to call on each of you to 25 give us your views of the potential thorny issues that
2091 arise in the face of that situation. 2 Ms. Samler...? 3 MS. AGNES SAMLER: Perhaps I could begin 4 then. I also had the advantage of a roundtable of youth 5 that I spoke to last Thursday to talk about this Inquiry 6 and to talk -- ask them what would be important. 7 One (1) of the things they said was the 8 best interest of the child still needed to be paramount. 9 And -- and we give lip service to that, we say that very 10 quickly, but if you actually look at the Act in the Best 11 Interest section, the voice of the child and the wishes 12 of the child is about ninth on the list of -- of things 13 to be considered. So that best interest is really an 14 important concept and it needs to be made real. 15 The second thing that the kids talked 16 about was openness. They said -- I asked them, Suppose 17 it had been your mom that had been convicted of some -- 18 of the death of your brother and went to prison and you 19 were in an adoptive home? And their response was, I 20 would be so upset if I became and adult and found out 21 that that had happened and I was not told. 22 So they were very clear that openness and 23 transparency was a critical piece if we were going -- if 24 you were going to move forward in terms of dealing with 25 these children and these families.
2101 The third thing is around solutions. We 2 tend to find our solutions in polarized positions, so 3 listen to our language, who has custody of the child, and 4 who won the custody battle. 5 So it's very much as if the child is an 6 object or kind of a property that you win in this debate 7 or discussion. And the -- if we truly put the child in 8 the centre, I could see a scenario of where an adoptive 9 parent might say, I've adopted this child, this is my 10 child, and you don't have any rights any longer to raise 11 issues with me or to take this child away. 12 The biological mom, on the other hand 13 might say, This child was taken from me improperly, and I 14 have a right to have my child back. Maybe we need to ask 15 both of them to stand down and to say, What is important 16 for this child? What are the needs and wishes of the 17 child? What's -- what is the child wanting or needing? 18 And the adoptive parent may say, Yes, I 19 wish this was just my own child and I don't have to think 20 about anything else, but I know for -- for this child, 21 contact with their biological family is really important, 22 so I'll step down from my position of saying, This is my 23 child and -- and step away. 24 And the biological mom might say, My child 25 has been in this family for four (4) years, if I rip him
2111 out of this family, what good is that doing to him? So I 2 need to find a way to have a different role with this 3 child and work together. 4 So I guess what I'm saying is I'd like to 5 see those creative kinds of solutions and that they be 6 worked out with the child in the centre, and in fact 7 asking the adults to be the ones who change their 8 behaviour or change their positions. 9 COMMISSIONER STEPHEN GOUDGE: Would you 10 give the child a voice in the decision about what happens 11 to the child immediately upon a sibling having been 12 killed in suspicious circumstances? 13 MS. AGNES SAMLER: Yeah, I would look at 14 that child, and yes, I would give them a voice. If 15 they -- 16 COMMISSIONER STEPHEN GOUDGE: And if they 17 said, I'd like to stay with my family? 18 MS. AGNES SAMLER: I might say to them, 19 We're worried about you with your family. It would 20 depend, if -- lets say the dad was the person who was 21 charged, I might suggest to that family that dad step 22 away from the family and the rest of the siblings remain, 23 if -- if that was one (1) of the options. 24 I think with the child -- the child 25 doesn't have a veto voice, but if -- if you're saying to
2121 the child, You have a voice, it might be where you go as 2 opposed to I'm going to stay in my family no matter what. 3 So -- 4 COMMISSIONER STEPHEN GOUDGE: So not a 5 voice about everything, but a voice about some things? 6 MS. AGNES SAMLER: Well, I think you have 7 to hear their voice about everything. And then it's like 8 life, you don't always get exactly what you want. But if 9 we don't hear the voice, that's the problem. 10 DR. NICHOLAS BALA: If I could add, I 11 think our legislation makes clear that the child has a 12 right to have a voice to be heard, but not necessarily 13 the right to make the decision. 14 And indeed in the context of the immediate 15 -- one (1) of the things that we know about children is 16 they want typically, relationships to continue. So that 17 means that they've been living with their biological 18 family and one (1) parent is suspected of having killed a 19 sibling, almost always the child -- the other children 20 would say, if they were asked, We want to stay with mom 21 and dad. 22 Typically we're not going to give effect 23 to that, because we're going to say, We believe that 24 there is -- we, the court system, we shall say that 25 there's too much risk there, depending on all those
2131 factors. 2 Conversely, in a lot of these cases -- and 3 to go the -- you know, the question that was asked, and 4 we're sort of flipping back and forth -- if a child has 5 been living with an adoptive family, we have a pretty 6 good sense that in most cases the child is going to say, 7 I want to stay with the adoptive family, if the child has 8 no memory which will -- of the biological family. 9 To take one (1) tragic set of 10 circumstances that's going on now in Argentina, where we 11 had children who were removed at a young age from -- in - 12 - you know, in criminal circumstances, which are 13 different from these, and that the removal was not just a 14 bad -- bad judgment, but in reasonable good faith, but 15 with the intent to destroy that family, kill people, 16 whatever. 17 They were placed with people -- often some 18 of those who were involved in the killing of relatives or 19 whatever, and years later people come back and say, I'm 20 your biological roots, maybe I'm your biological mom 21 because you were with dad or whatever, and the children 22 are largely identifying with their adoptive parents, 23 their psychological parents, which is what we -- which is 24 consistent with what we know about bonding and 25 psychological attachment.
2141 If they've forgotten who their biological 2 relatives are, or never knew them because they were -- 3 they will have -- they will have an interest and want to 4 have contact, and this goes back to the point that Ms. 5 Samler made. 6 If you ask a fifteen (15) year old child 7 or a twenty-five (25) year old, Would you have wanted to 8 know when you were fifteen (15) that you were removed 9 from your parents' care wrongfully, I think the answer 10 is, Yes, I would want to know and maybe I'd want to meet 11 those person -- that person. 12 But you say, Do you think you want to move 13 from where are -- where you've been for the last fourteen 14 and a half (14 1/2) years and go back and live with those 15 people, the answer would typically be no. 16 And that -- and that answer in both those 17 context should be given significant weight, but they 18 aren't different issues. And in one (1) context, the 19 wishes would probably be reinforced by psychological 20 understanding, other case the wishes may reflect, you 21 know, psychological attachment, be contrary to best 22 interest. 23 Even children who've been very much abused 24 by their parents often express the wish to return or more 25 accurately, they -- they express the wish not to be
2151 removed. So a lot of the case where the Children's Aid 2 Society removes the child who's, let's say, three (3), 3 four (4), five (5), six (6) from an abusive home, the 4 child doesn't want to leave, but if you ask the child 5 five (5) years later and they look back, they say, I can 6 remember that environment, I know now -- I now understand 7 why I was removed, and although I have an attachment to 8 those people and might want to have contact with them, I 9 am thankful the Children's Aid Society removed me from 10 that harmful situation. But if you ask me when I was six 11 (6), I would have said I don't want to leave. 12 MS. LINDA ROTHSTEIN: So -- 13 MS. AGNES SAMLER: Could I just -- could 14 I finish the points on that? 15 MS. LINDA ROTHSTEIN: Sure, sure. 16 MS. AGNES SAMLER: Just, I think those 17 are important points, Professor Bala, and I also know 18 that that's something that both of the people from the 19 child welfare -- both Mr. Koster and Ms. Fitzgerald will 20 speak to as well. 21 But as well as having something that's 22 creative and a solution that is individualized for the 23 child, and I -- and I do think it's complex issue, there 24 needs to be some way for it to be flexible, so that if a 25 -- if a wrong decision's made that people are not stuck
2161 with that decision until they're sixteen (16). And I 2 don't mean particularly adoption, but lots of the 3 situations where children find themselves are -- or where 4 they have in fact helped to make a choice do not work out 5 and they need a place to come and to talk about that. 6 And finally, I think there are a lot of 7 little children's aid societies and to suggest that they 8 would all have the same access to resources, I think, is 9 unrealistic. So I think there should be some province- 10 wide group of people who can come together when 11 necessary, and they would have skills like an ability to 12 talk to kids and to pull forward the issues that the 13 child wants to raise. 14 I think there needs to be someone who 15 deals with ethics and values and principles so that that 16 -- whatever decisions are made are made on that kind of 17 basis; a mediator-type skill, so that when you're trying 18 to talk to that adoptive mom or to the -- to the parent, 19 the biological parent, that there's some way to do that. 20 And I -- I just think if there was that kind of a team 21 available to Children's Aid Societies, if required, that 22 that would be important. And I don't think Children's 23 Aid should have to pay for them so that budget doesn't 24 become a -- a condition. 25 I understand perfectly, just from my --
2171 from being the Regional Director for Children's Aid 2 Societies that they have to have access to that, so that 3 budget doesn't become a prohibited factor. And probably 4 you'd need to have the team connected somewhere other 5 than the Children's Aid, so they don't feel any 6 obligation to support the Children's Aid position. 7 I think those are the -- some fo the five 8 (5) points and -- just as they've been supplemented by 9 folks. I think that's really important to have. 10 MS. LINDA ROTHSTEIN: So, Ms. Fitzgerald 11 and -- and Mr. Koster, I want to call on both of you. 12 And it -- it would really be helpful to the Commissioner 13 to hear about both sort of aspects of this issue that 14 have been raised, that is to say the process. 15 I hear Ms. Samler suggesting that the 16 process, in effect, be given over to some form on 17 interdisciplinary advisory group, appropriately 18 populated, getting insight and input from the individual 19 Children's Aid, but I hear her to be suggesting it 20 shouldn't rest with the children's aid society that was 21 originally involved. 22 And sec -- am I right in understand that? 23 MS. AGNES SAMLER: No. I -- I think -- 24 MS. LINDA ROTHSTEIN: Okay. 25 MS. AGNES SAMLER: -- I'm -- I don't
2181 necessarily want to take it away from a children's aid 2 society. They have their job to do. 3 MS. LINDA ROTHSTEIN: Okay. 4 MS. AGNES SAMLER: It's more to say, if 5 you're a little children's aid society in the boonies, 6 you may not have access to those resources. 7 MS. LINDA ROTHSTEIN: Okay. 8 MS. AGNES SAMLER: So it's the resources 9 that need to be available to the Children's Aid Society. 10 MS. LINDA ROTHSTEIN: Okay. And also 11 about the criteria that should be used in coming to the 12 right decision in that process. 13 Ms. Fitzgerald...? 14 MS. JANE FITZGERALD: I thank you for 15 correcting that, Ms. Samler, because of course we cannot 16 hand over our mandate, which is to take into account 17 obviously the best interests of the child and in all -- 18 all of the decisions that we make. 19 Despite what you've heard today about the 20 complexity about child welfare today, it's also a really 21 exciting time to be in this field. And the reason I 22 think it's exciting is because I think for the first time 23 we are really starting to apply what we now understand 24 about what children need and child development to our 25 practice.
2191 And I think, Ms. Samler, you've talked 2 pretty eloquently about the need for children to have a 3 sense of permanency, to have continuity in relationships, 4 where that can be done safely. 5 And a large part of the transformation 6 we're going through in our sector, is how do we bring 7 those concepts now into our practice? We have the 8 ability now through legislation to have open adoption, 9 and that's new in this province. We're working out how 10 that actually is going to happen for all of the adults 11 involved but, you know, the good news is I think some of 12 the principles you talked about, Agnes, in terms of, 13 Let's make -- make sure we've got the child at the centre 14 of these decisions, is certainly a principle that we're 15 all trying to apply although not necessarily perfectly 16 yet. 17 I think we also, a new development is, we 18 have the opportunity to look at children who have been in 19 our care for many years and are permanent wards, and we 20 can reassess whether or not perhaps their parents 21 couldn't care for them when they were two, three, four, 22 safely. But they've also changed and we have the ability 23 to go back and take a look at those families and see 24 whether or not we can do reconnections. 25 We know the best we can do for our kids is
2201 to put them in a place where they have relationships that 2 will continue beyond our care. So if that can be done 3 with biological family, we want to be able to do that. 4 Now a bit of what I'm talking about is futuristic because 5 we're working towards it. 6 In terms of the specific situations where 7 we may have a child who's been adopted, through 8 circumstances that we now find out, in fact, were unfair 9 to the adults involved as well as to the child, it's 10 really difficult without knowing the specifics to make a 11 blanket statement. What I can tell you is that that 12 certainly could be reviewed against: What is in the best 13 interests of that child involving the adults, as you've 14 said, who care about that child? 15 There are opportunities for connections to 16 be made if that's in the best interests of the child with 17 the -- the parents, the lawful parents, agreeing. 18 MS. LINDA ROTHSTEIN: Mr. Koster, just 19 before I call on you again, Professor Bala, do you have 20 any comments? 21 MR. ANDREW KOSTER: Yes. 22 MS. LINDA ROTHSTEIN: Yes. 23 MR. ANDREW KOSTER: The advantage of 24 speaking third is you got a chance to make notes. It's - 25 - what I -- I agree with my fellow speakers, but first
2211 off, best interests of the child would be the first thing 2 I would want to consider and in Child Welfare, we have a 3 saying, "The least damaging alternative", you know, 4 because once this all opens up, it's never going to be a 5 perfect situation perhaps. 6 Second would be that it has to be 7 customized to individual child situations, right? One 8 size will not fit all. Because you do something in one 9 case does not mean to say it would work in another and -- 10 and you have to do, you know, assessments and parenting 11 capacity and a number of other things, know where that 12 child's mental health is, all kinds of other things that 13 make it customized. 14 I like the idea, Agnes, of mediation that 15 if this could be settled by informed parties all acting 16 mature in the best interests of the child, and there's a 17 facilitator to do that than, so be it. 18 The next would be honesty. I don't think 19 any child would want to grow up and then find out when 20 they're an adult that all this had gone on and they 21 weren't told about it, you know. It doesn't sound right 22 to me. I think the parties involved have to be treated 23 with a degree of honesty. 24 MS. LINDA ROTHSTEIN: And -- and are 25 there any decisions or prescriptions that you can give or
2221 is this also case specific about -- 2 MR. ANDREW KOSTER: Yeah. 3 MS. LINDA ROTHSTEIN: -- when that 4 communication is made in relation to the child's age, for 5 example? 6 MR. ANDREW KOSTER: Well, it's age and 7 maturity level, and, you know, it's the same thing when 8 you look at. And I'm saying here that they need a child 9 advocate whether it's your office or whether it's the 10 office of the children's lawyer, you know. Depending on 11 the age and developmental stages of the child, the amount 12 of say they have in the decision, I think, would vary. 13 I mean, I think there's some general 14 guidelines that the office of the children's lawyer would 15 use, for example, as to whether they -- as to when they 16 take the advice of their clients and when they act in the 17 best interests, and I think the same kind of aspects 18 would -- would apply here. 19 Another aspect here would be you'd have to 20 build a degree of counselling; independent counselling 21 for all the parties. It's going to upset their lives, it 22 -- no matter who the parties are. And the other thing is 23 is a sensitivity to social situations that, I think, if 24 there was a child adopted, it's possible that the 25 adoption took place for the child where they may have
2231 gone from a situation of poverty or, you know, people not 2 having too much in their home and things, you know, 3 surviving on a day-to-day basis and now all of a sudden 4 you've got, the child's been placed in a different, 5 perhaps, social level, if you want to -- 6 MS. LINDA ROTHSTEIN: Mm-hm. 7 MR. ANDREW KOSTER: -- if you want to 8 call it like that. When you look at it, that isn't in si 9 -- and, you know, what -- so you can't judge the parent 10 by the fact that the situation -- the situation has 11 improved. 12 So in -- in that regard, because there is 13 the rights of parents and, you know, it's -- it's 14 complicated, but I -- I would hate to think that somebody 15 would say, Well, leave the child where they are because 16 they got more, you know, or it's a better situation for 17 them. 18 It has to be beyond that because it isn't 19 fair to those people, you know, who are poor, and about 20 70 to 80 percent, maybe even higher than that, you know, 21 a percentage of our clients come from poverty. 22 So I mean I -- so it has to be a fair -- 23 there has to be a social fairness. 24 COMMISSIONER STEPHEN GOUDGE: Can I ask, 25 Mr. Koster, this goes back to the sort of kind of
2241 paradigms we've been told about in the cases that have 2 been examined here where there will be the death of a 3 child. It's determined immediately to be criminally 4 suspicious. The Children's Aid gets involved. The 5 surviving siblings are immediately taken into temporary 6 care. 7 And what I'm interested in is how quickly 8 are permanent decisions made thereafter and how much 9 consultation is there between the CAS, and the police, 10 and the Crown as the criminal process is unfolding, 11 because these seem to be cases where the CAS is driven 12 by, there was a criminally suspicious death, the risk too 13 surviving children is too high to leave them in the home, 14 so they're immediately taken away. 15 And then we find out in the cases we've 16 examined, that the underpinning of the criminal 17 prosecution may be fallacious, may not stand up if -- in 18 our case, it was forensic pathology. 19 I presume that the philosophy would be you 20 don't want too many permanent decisions taken until you 21 can see some certainty in the way the criminal process is 22 going to unfold. Am I right about that? 23 MR. ANDREW KOSTER: That's right, 24 although we do have a different level of proof required 25 in Family Court for our decision, which is balance of
2251 probabilities, but they're -- they're -- it is true that 2 we do usually wait for permanent decisions to be made in 3 conjunction with criminal findings. 4 COMMISSIONER STEPHEN GOUDGE: And how 5 does that butt up against the requirement for a decision 6 to be made within a fixed period of time, be it a year or 7 two (2) years? 8 MR. ANDREW KOSTER: Mm-hm. Sometimes 9 there is delays in the Court system, so that helps in 10 that regard, but... 11 COMMISSIONER STEPHEN GOUDGE: You got 12 your own delays, all right. Fight fire with fire. 13 MR. ANDREW KOSTER: That's -- I'm not 14 quite sure, you know, I'm not -- I'm not -- 15 COMMISSIONER STEPHEN GOUDGE: Is that a 16 dilemma? I mean the implicit premise in what I'm putting 17 to you, Mr. Koster, is that fundamental to the decision 18 about care is there was a death caused criminally by a 19 parent -- 20 MR. ANDREW KOSTER: That's right. 21 COMMISSIONER STEPHEN GOUDGE: -- 22 therefore risk to surviving children. If that's 23 demonstrated by the criminal system or by the criminal 24 system on a second look, to be fallacious; if there are 25 permanent decisions, unwindable decisions, closed
2261 adoptions; I understand that they had to open adoptions 2 process is now available, but if there are closed 3 adoption decisions that have already been made, one could 4 say, Gee, they've been made to quickly, and wouldn't it 5 be nice if they had been slowed down a bit. 6 And, you know, I'm just interested in the 7 time line thought process of the care part of this 8 institution. 9 MR. ANDREW KOSTER: That is a -- that's a 10 very difficult question because the hope is that in most 11 situations, the criminal conviction is correct. 12 COMMISSIONER STEPHEN GOUDGE: Absolutely. 13 Oh, oh, absolutely. And in most cases, it is correct. 14 MR. ANDREW KOSTER: Yeah. 15 COMMISSIONER STEPHEN GOUDGE: The cases 16 that come forward here that have the poignancy they do, 17 are cases where it turns out that the original 18 proposition was incorrect. 19 MR. ANDREW KOSTER: Yes. I'm not sure, 20 Mr. Commissioner, I'd have to think about that. 21 COMMISSIONER STEPHEN GOUDGE: Ms. 22 Fitzgerald, do you have -- 23 MS. JANE FITZGERALD: I was going to say, 24 this is a really important question in that you -- you've 25 come out against the -- the dilemma we're faced with all
2271 the time, and that is the timing; the time table for a 2 child growing up against the time table for adult 3 activities to unfold, and it's trying to find our way 4 around that. 5 Certainly we don't ever want to see a 6 child permanently removed from their parents if we can 7 maintain that -- a healthy relationship and that child -- 8 COMMISSIONER STEPHEN GOUDGE: And if the 9 fundamental premise on which the child was originally 10 moved turns -- 11 MS. JANE FITZGERALD: Absolutely. 12 COMMISSIONER STEPHEN GOUDGE: -- out to 13 be erroneous. 14 MS. JANE FITZGERALD: Absolutely. 15 COMMISSIONER STEPHEN GOUDGE: Okay. 16 MS. JANE FITZGERALD: But we are under -- 17 we are under, in our legislation, strict guidelines 18 around the time table. I couldn't answer -- and it would 19 be worth looking into, I think, where that has happened, 20 where they have in fact -- we have had to move to a 21 permanent decision before we actually have the findings 22 of the criminal matter. I don't know the answer to that. 23 COMMISSIONER STEPHEN GOUDGE: Right. 24 DR. NICHOLAS BALA: I mean, if I could 25 say -- and you exactly identified one of the central
2281 dilemmas of the child welfare system that time is never 2 neutral, and the child is growing up. 3 COMMISSIONER STEPHEN GOUDGE: And there 4 are interests why it should not be neutral. 5 DR. NICHOLAS BALA: And -- and -- 6 COMMISSIONER STEPHEN GOUDGE: I 7 understand that. 8 DR. NICHOLAS BALA: And -- and so, you 9 know, the Supreme Court of Canada, in a case called CAS 10 of Toronto and M.C., dealt -- Madam Justice L'Heureux- 11 Dube talked about this very issue and she said -- you 12 know, that wasn't the case. 13 It was a case where the mother had mental 14 health issues at the time of apprehension and by the 15 time, five (5) years later, that the case wound through 16 the court system, she had addressed the mental health 17 issues. But the child had formed a stable attachment 18 with the foster parents who wanted to adopt the child -- 19 didn't want to go back to the mother. 20 And Madam Justice L'Heureux-Dube, with the 21 support of the Children's Aid Society, mental health 22 professionals and the children's lawyer, said the child 23 is going to stay where they are. 24 I mean, that's -- in -- in Canada, by and 25 large we say stability, psychological attachment, best
2291 interests of the child are the dominant factors rather 2 than even if it's unfair to the parents. 3 Now that doesn't mean -- and we're hearing 4 about, I think appropriately, maybe there can be a more 5 sophisticated set of things that can be done about some 6 kind of ongoing contact -- open adoption and so on. 7 But to, you know, to come back perhaps to 8 the question that was asked here about the cases that 9 have already happened to me and you're dealing with, you 10 know, two things of sort of going back and forth between 11 cases that have been, in the past, involving bad forensic 12 judgments and what will we do in the future. 13 In the cases that have been decided in the 14 past, one (1) of the things as was mentioned that's very 15 important is ongoing emotional support as this 16 information is starting to come out to the parents -- 17 biological parents and the children. 18 One (1) of the things we learned from 19 England was, where they had similar cases involving Dr. 20 Meadows, was as soon as the information came out, the 21 Child Welfare System in that country said, Well, it's not 22 our problem anymore. You can just go back home. 23 And we know now that the children who have 24 been returned to their parents, rightly and with their 25 wishes, have had enormous long term emotional impacts in
2301 that they were told, Your parent killed your sibling. 2 That has a certain resonance, Oh, we made a mistake. 3 I mean, that child has been -- has -- 4 going to suffer long term -- and need long term emotional 5 support. All those children are going to need long term 6 emotional support. 7 So when we're honest with them, which we 8 should be, and provide them with information, wherever 9 they are, they're going to need that support. 10 A second set of problems is -- unlike in 11 the criminal context which is difficult enough as it is, 12 but one can say, Well, we can reopen a criminal trial. 13 We'll get -- you know, the Crown may waive the time for 14 the appeal and we can say, let's have an appeal even if 15 it's five (5) or ten (10) years later. 16 We don't have that institutional 17 mechanism. If a child is not placed for adoption, we do 18 -- you can come back and have the status reviewed. 19 COMMISSIONER STEPHEN GOUDGE: Right. 20 DR. NICHOLAS BALA: If the child has been 21 placed for adoption, we -- the legislation specifically-- 22 COMMISSIONER STEPHEN GOUDGE: Right. 23 DR. NICHOLAS BALA: -- precludes the 24 possibility of opening that up. And I think we need to 25 have an institutional mechanism in this province for --
2311 it's not a large number of cases, but each one of those 2 cases is an enormous human -- concerns that were created 3 to a certain extent by the system, if you want, or its 4 interacting systems. 5 And I think we need to have a level of 6 societal confidence at some point in time, not during the 7 life of this commission but in two (2) or three (3) years 8 time, someone is going to report back to the legislature 9 and say, I have been responsible for monitoring the 10 situation, not for making the decisions alone. 11 But I can tell you that these children are 12 now -- that the agencies have actually followed through, 13 that the parents involved have had input into this, and 14 that there have been decisions made in the best interests 15 of the child. 16 Now one (1) possibility would be to enact 17 special legislation to specifically create a new body and 18 that, certainly, would be a possibility. 19 And now -- and I should say, of course, 20 that legislation would have a retrospective element to 21 it, but we do that in family law, unlike in other 22 contexts. We say, You know, we could do that. 23 Another possibility might be to give 24 responsibility to the Provincial Advocate and, say, not 25 to do the services but to say, because she is an officer
2321 of the legislature -- and this is what they did in 2 England, somebody coming back to the legislature and 3 saying, I have actually met with the children and their 4 parents, and I believe that there is a satisfactory 5 resolution here that meets the best interests of the 6 child that are having ongoing support or whatever. 7 But I think -- I would submit that coming 8 out of this process there has to be some confidence that 9 these children are going to actually be looked after, not 10 just a vague assurance from somebody, or could be the 11 Minister is another possibility. 12 But I think that an independent office 13 like the Provincial Advocate is someone who would say, 14 I'm an independent officer here, and I can tell you that 15 I have met these children, and they are being 16 appropriately cared for. 17 COMMISSIONER STEPHEN GOUDGE: But one 18 legal barrier that's mixed into your hypothetical is the 19 closed option finality problem? 20 DR. NICHOLAS BALA: Yes, although, of 21 course the -- the adoption itself can't be set aside 22 directly. But there is a provision of course for the 23 registrar of adoption disclosure to disclose information. 24 So we don't even know at this point if the children who 25 have been adopted are aware of or --
2331 COMMISSIONER STEPHEN GOUDGE: Right. 2 DR. NICHOLAS BALA: -- the adoptive 3 parents are even aware of -- they might think, well I 4 adopted this child, and now all of a sudden they're 5 finding out, my goodness, there's a public inquiry and 6 this -- you know, they may not be aware of -- that these 7 are their -- even their children. 8 So I think somebody has to inform them of 9 the fact, initially, support them, counsel them, and then 10 are -- eventually make best interest decisions. 11 12 CONTINUED BY MS. LINDA ROTHSTEIN: 13 MS. LINDA ROTHSTEIN: I know, Ms. 14 Fitzgerald, you have some comments, but Ms. Samler has 15 been waiting patiently, and it's now been suggested that 16 she undertake perhaps a role. 17 So why don't we hear from you Ms. Samler 18 about your comments previously, and also your reaction to 19 this -- Professor Bala's proposal. 20 MS. AGNES SAMLER: Okay. I think first 21 of all we've talked a lot today about things being 22 individualized for children. I think that's critical. 23 And the second thing is that legislation 24 that says you must do something within this -- these many 25 months, or these many months, is really countered to
2341 that. It does not allow you -- it doesn't allow people 2 who work in the child welfare field to actually choose a 3 solution that is good for that particular child. And I 4 understand the concern about making sure something is 5 done quickly, but the quickly may not be placement or 6 taking you from this home to this home. It may be 7 relationship building. 8 So it isn't -- it isn't impossible for 9 people to have several relationships that are strong and 10 lasting and that may not be adoptive in nature. 11 So it's really just important to move off 12 the -- the legislation and the concepts in that 13 legislation and I think that's what the child welfare 14 system is trying to do in practice as it -- and I think 15 Ms. Fitzgerald spoke about that strongly. But -- so you 16 don't -- you can build relationships, strong permanent 17 relationships around a child, not necessarily being 18 adoptive. They could be kinship placements. they could 19 be continuing with brothers and sisters, siblings. 20 There's lots of things, but it's the 21 relationship that counts to the child, not the placement 22 or not the label that's on it. So I think that's really 23 an important thing to -- to say, and to put across. 24 The other -- 25 MS. LINDA ROTHSTEIN: Do you think that
2351 the provincial advocate could play some kind of a -- lack 2 of a better word, supervisory role or oversight role in 3 reporting out that the processes that are undertaken by 4 individual children's aid societies have been done in a 5 way that is fair to all interested persons -- 6 MS. AGNES SAMLER: I -- I -- 7 MS. LINDA ROTHSTEIN: -- and particularly 8 the children? 9 MS. AGNES SAMLER: Yes, and I -- I think 10 the job of doing it rest with the Children's Aid. So I 11 just really want to be clear about -- I probably said 12 that earlier, but I really want to be clear about that. 13 I think the role of the advocate could be 14 to suggest some ways that that could be supported, so 15 that they can do it well and not each agency has to 16 reinvent the wheel. And I wouldn't see it beyond the 17 role of the advocate to, at the end, take a look and see 18 and to report as to what happened. Not on -- by named 19 individual cases, but more generally about the process 20 and how it worked and how it worked for children. 21 MS. LINDA ROTHSTEIN: And, Ms. 22 Fitzgerald, your comments? 23 MS. JANE FITZGERALD: Sure. I just 24 wanted to just make a few points. First with respect to 25 the recommendation that's been made, I certainly think
2361 it's in -- it's an interesting one to consider, and I 2 think it's something we would probably want to take back 3 to our association and discuss with the Ministry in terms 4 of appropriate roles. 5 At this point I'm not aware of the 6 particular cases and where they reside. I -- and we -- 7 we also are not aware of what actions may have been taken 8 already. So that -- I -- I think I would just say 9 that's something that could go back for further 10 discussion. 11 In terms of the timetable around children, 12 and -- and I know Ms. Samler's aware of this -- the 13 reason those time frames were put in was because we -- we 14 had the problem of children lingering and growing up in 15 Children's Aid Society care, when in fact, if decisions 16 had been made earlier, they would have had probably a, as 17 they like to call it, a forever family. And -- that we 18 knew that for -- in terms of outcomes for children, in 19 most instances if we can move them to a permanent 20 placement, that's better for them in the long run. 21 But having said that, as I -- you know, 22 mentioned earlier, we're now understanding the nuances a 23 little more about what children need. And I think in -- 24 I was thinking about the question you put to us, in terms 25 of how the time frames and the criminal process come
2371 together, and -- and is there a -- a miscarriage or a 2 rush to a decision too early on the Child Welfare side -- 3 I think in reality, a -- we may make a child a Crown 4 ward, a permanent ward, but often in a situation, I'm 5 thinking of the hypothetical here, -- 6 COMMISSIONER STEPHEN GOUDGE: Right. 7 MS. JANE FITZGERALD: -- we would 8 probably do that where there will be -- continue to be 9 access for parents until such time as we really do know 10 what the future holds for those parents and that child. 11 So more and more, we are becoming creative 12 with what we can do to maintain relationships, including 13 the opportunity for foster parents to become guardians 14 and maintain a relationship. A lot of the work we do now 15 in Children's Aid societies is providing access for 16 parents and other family members to children on a pretty 17 regular basis. 18 So I think it's -- it's not an either/or. 19 I think there are customized responses that are put in 20 place. 21 COMMISSIONER STEPHEN GOUDGE: That is 22 helpful, thank you. 23 DR. NICHOLAS BALA: If -- if I could say, 24 I think that we may be moving in the direction of more 25 flexibility. I am certainly aware of cases both in this
2381 study and elsewhere where agencies have not demonstrated 2 that flexibility. But I -- I think they should, but it 3 hasn't always happened. 4 One thing I would perhaps suggest is that 5 a priority should be given in the pathologist system and 6 the coroner system to giving a -- coming to a conclusion 7 in cases where there is a surviving sibling. I mean, 8 there is presumably, and I, you know, some flexibility 9 about which cases are going to get the priority here in 10 terms of -- and that would be -- 11 COMMISSIONER STEPHEN GOUDGE: Yes. 12 DR. NICHOLAS BALA: -- one of the -- 13 could be one of the factors. 14 COMMISSIONER STEPHEN GOUDGE: If one can 15 see any good fortune in any of this, Professor Bala, the 16 number of cases where there are criminally suspicious 17 pediatric deaths in a year in the province is, 18 thankfully, very small, but within them, it may well be 19 that triaging to do the cases first to some form of 20 pathology finality where there are surviving siblings, 21 makes a lot of sense if that is an important piece of the 22 children protection process. 23 MS. JANE FITZGERALD: The other issue, of 24 course, for us not only if there's surviving siblings, 25 but future children.
2391 COMMISSIONER STEPHEN GOUDGE: Subsequent 2 siblings. 3 MS. JANE FITZGERALD: Mm-hm. Exactly. 4 COMMISSIONER STEPHEN GOUDGE: Yes. 5 MS. LINDA ROTHSTEIN: So, I was going to 6 then, in the moments remaining, before I turn it over to 7 my colleagues, call on each of you, and Mr. Sandler's 8 random order actually, to just let the Commissioner know 9 if there is any other comments you have that we haven't 10 given you a proper opportunity to address any issues of 11 that kind. 12 Or if you have some additional 13 recommendations that -- or suggestions -- they don't have 14 to be formal recommendations -- that you would urge upon 15 the Commissioner as a result of your involvement in our 16 Inquiry, starting with you, Mr. Koster. 17 MR. ANDREW KOSTER: Thank you. Thank 18 you. The one thing that I would like to see as a 19 positive recommendation is the -- a clarification on the 20 "think dirty". I understand from earlier -- earlier in - 21 - in the Inquiry that a letter was sent apparently to 22 Chiefs of police indicating that "think dirty" was no 23 longer a way of looking at cases, and that hasn't been 24 something that has gone to Children's Aid societies. 25 And we are an active partner in protocols
2401 with the police, and we would also like that also ended 2 if that's -- if that's possible because of the effect -- 3 negative effect that it has on workers. 4 There's a tremendous fear with a lot of 5 staff, especially after the inquests, and especially 6 after a worker was charged, that if something goes wrong 7 in a case, somehow they're going to be held responsible, 8 and if one of the beliefs that they've held up to this 9 point is that you were expected to "think dirty", there's 10 no way back from that if a child dies, you know, because 11 one of the summations could be, Well, you obviously 12 didn't "think dirty" enough otherwise this wouldn't have 13 happened. 14 And it undermines the very underpinnings 15 of transformation and a strength-based assessment which 16 still has the safety of the child but requires us to be 17 unbiased in our initial approach. 18 COMMISSIONER STEPHEN GOUDGE: Right. 19 MR. ANDREW KOSTER: And so it's extremely 20 important. 21 And also to -- to remember that the number 22 of children who -- who die where there is a contact with 23 Children's Aid societies is very minimal, but each year 24 we deal with about fifty thousand (50,000) clients or, 25 you know, at any one given time, in the system, is fifty
2411 thousand (50,000) client families. 2 In our agency, for example, in one (1) 3 year, just on the intake process we would have eighteen 4 hundred (1,800) referrals for service. We would have 5 five hundred (500) families open for ongoing services, 6 that means over, say, two (2) months in length and four 7 hundred (400) kids in care, and we're just one (1) of 8 fifty-three (53) agencies. 9 And so I think it's really important and 10 would be important for us because it gets back to our 11 Code of Ethics of social work, you know, which calls for 12 people to be treated in a fair and equitable way. 13 COMMISSIONER STEPHEN GOUDGE: Right. 14 MR. ANDREW KOSTER: So that would be the 15 one (1) issue for me. 16 COMMISSIONER STEPHEN GOUDGE: That is 17 helpful, Mr. Koster. Just to make sure I understand, in 18 a formal way did the original "think dirty" memo actually 19 come to the Children's Aid System? 20 Was it formally sent by the Office of the 21 Chief Coroner of Ontario or do you remember? 22 I mean obviously -- 23 MR. ANDREW KOSTER: I -- I don't. 24 COMMISSIONER STEPHEN GOUDGE: -- the 25 ethos of "think dirty" was something that you became well
2421 aware of. 2 DR. NICHOLAS BALA: If I could just say, 3 I believe that Dr. Cairns was speaking at a number of 4 child welfare meetings in Ontario and -- 5 COMMISSIONER STEPHEN GOUDGE: So that 6 would be the vehicle, Professor Bala, that would have -- 7 DR. NICHOLAS BALA: Yes. 8 COMMISSIONER STEPHEN GOUDGE: -- 9 communicated the "think dirty" philosophy? 10 DR. NICHOLAS BALA: Although I may -- 11 yes, more than or as much as the memo itself. It was 12 clearly a message that was being given, in part, by the 13 people in the Office of the Coroners directly to child 14 welfare workers in the -- in the province -- 15 COMMISSIONER STEPHEN GOUDGE: Right. 16 DR. NICHOLAS BALA: -- as well as -- so 17 it was not just a piece of paper. It was, if you want, a 18 slogan that was being directly communicated. 19 COMMISSIONER STEPHEN GOUDGE: Okay, now, 20 the question I then have for your suggestion, Mr. Koster, 21 is how would you see that being implemented? That is how 22 would you see what you assert to be desirable and it 23 seems to make a lot of sense -- 24 MR. ANDREW KOSTER: Yeah. 25 COMMISSIONER STEPHEN GOUDGE: -- the
2431 reversal of that philosophy? How would that be done? 2 MR. ANDREW KOSTER: Well, I think it 3 could be done a number of ways, Mr. Commissioner. I 4 think one (1) way could be a recommendation fro -- from 5 this Commission, but it could also be -- 6 COMMISSIONER STEPHEN GOUDGE: That what? 7 MR. ANDREW KOSTER: The -- that 8 Children's Aid Societies are expected to investigate with 9 an open mind, although the, you know, the -- 10 COMMISSIONER STEPHEN GOUDGE: Would you 11 buy Professor Bala's think thorough? 12 MR. ANDREW KOSTER: Yes, think thorough, 13 yes. 14 MS. JANE FITZGERALD: Think better. 15 COMMISSIONER STEPHEN GOUDGE: Think 16 better. Sorry, do I got that wrong, did you say -- 17 DR. NICHOLAS BALA: I think I said think 18 better, but think thorough is also good. 19 COMMISSIONER STEPHEN GOUDGE: Yes. 20 MR. ANDREW KOSTER: Yeah, there's also 21 alternate hypothesis, you know. There's different ways, 22 you know, that you've got to have an open mind to to 23 looking at things, as well. 24 COMMISSIONER STEPHEN GOUDGE: Okay, 25 thanks, that's helpful.
2441 2 CONTINUED BY MS. LINDA ROTHSTEIN: 3 MS. LINDA ROTHSTEIN: Ms. Samler, some 4 final comments and/or suggestions for the Commissioner? 5 MS. AGNES SAMLER: Yes. With regard to 6 the child welfare system, I'd really like to see the 7 funding formula changed, and -- and it may be underway 8 now, but so that they could do the prevention work and 9 the creative solutions and not have the dollars tied so 10 strictly to the number of children you have in care 11 equals the funding formula that you get. So I think it's 12 really important if -- for the Children's Aid to do its 13 job well to have that piece. 14 And I don't know how to do this, but I 15 wish we had some way to support the Children's Aid 16 Society when there is a negative event because when -- no 17 matter what happens, they are going to be penalized, and 18 that I think leads to a very risk-aversive kind of 19 approach, so that a lot of time of the workers is spent - 20 - maybe even up to 70 percent -- in administrative work 21 and doing reports as opposed to doing the work they 22 really want to do, which is to work closely with 23 children. So those are two (2) for the CAS. 24 And at the Court level, I'd like to see us 25 move away from the adversarial system into a much more
2451 mediation alternative dispute resolution system. And I 2 still thing the forensic pathologist report would be 3 useful in both of those forums. 4 So I -- I don't wish to take it away from 5 that; I think it would be critical to have it, but when 6 we use an adversarial system, we're often dealing with 7 the child as if they were property to be distributed. 8 I think I'll stop there. 9 COMMISSIONER STEPHEN GOUDGE: Thanks, Ms. 10 Samler. 11 12 CONTINUED BY MS. LINDA ROTHSTEIN: 13 MS. LINDA ROTHSTEIN: Ms. Fitzgerald...? 14 MS. JANE FITZGERALD: Well, I certainly 15 agree with some of the comments you just made, 16 particularly around the funding formula, but I'll leave 17 that to others. That -- that wasn't even anything we 18 discussed, so we -- we appreciate the -- the vote of 19 confidence. 20 But I want to begin just by saying how 21 much I appreciate, and I think my colleague, Mr. Koster, 22 does, as well, our being asked to be a part of the 23 Commission because I think, in many ways, what you've 24 done is you brought us up out of the shadows, that, in 25 fact, that we are a partner in this.
2461 And by involving us in this, I -- I think 2 that you've made it very clear that we do need to be a 3 part of the solution that you're going to be hopefully 4 recommending. One (1) of the things that I would hope 5 comes out of this is a recommendation around better 6 coordination and strengthening of the protocols. 7 And that goes back to my comment about 8 we're a three (3) legged stool and it -- I think it's -- 9 we can see through what's occurred through the -- the 10 Commission's testimony so far, perhaps it's not always 11 been balanced. 12 And I think that we're ready and willing 13 to play our part in ensuring the families and children 14 get a fair shake in our system. The other thing that I'd 15 want to mention is something around system learnings, 16 because I think while we may not have very many child 17 homicides involving child welfare in the province, when 18 we do, they have devastating effects and they're not -- 19 the learnings from those and how to handle them properly 20 aren't always shared. And I believe in Professor Bala's 21 report, he talks about a role for system memory and 22 reflection on those learnings. 23 We've gone through a period where I think 24 it's been stated very well by others that child welfare's 25 been beaten up at times about perhaps not thinking
2471 through exactly the repercussions of some of their 2 actions. And certainly 20/20 hindsight, you can -- you 3 can see perhaps where we can learn. 4 That's the approach we'd like to see 5 taken. That it is really about how do we continue to 6 improve the system. Not just to punish and humiliate 7 those who are involved in doing very, very difficult work 8 every day. So those would be the -- the formal comments 9 I'd make. 10 COMMISSIONER STEPHEN GOUDGE: Thanks, Ms. 11 Fitzgerald. 12 13 CONTINUED BY MS. LINDA ROTHSTEIN: 14 MS. LINDA ROTHSTEIN: Professor Bala...? 15 DR. NICHOLAS BALA: I, like the other 16 panellists, welcome the fact that the Commission is 17 looking at the role of Children's Aid societies. 18 Children's Aid societies are too often ignored in -- in 19 this process or they're -- put at the bottom of the heap 20 of -- of agencies/institutions, but they're obviously 21 very important parti -- should be important participants. 22 The issue of institutional memory, 23 systemic memory, and -- and protocols and policies 24 important, to me that speaks to the role of not only 25 individual Children's Aid societies, but of the Ministry
2481 of Children and Youth Services as a partial repository 2 for that, working with Children's Aid societies and 3 working with the Ontario Association of Children's Aid 4 societies developing better policies and protocols around 5 information sharing. 6 I think one (1) of the things that was 7 pointed out in one (1) of the issues here is in 8 situations where there are reasonable suspicions or 9 confirmed establishment that a parent has been 10 responsible for the death of one child, how are other -- 11 how will the medical profession -- if -- if other 12 children are being born subsequently, how is that going 13 to be brought to the attention of the attending 14 physicians and then back to Children's Aid Society. 15 And then the issue -- and you've asked so 16 many good questions, Mr. Commissioner, and very important 17 ones, we should have research. Some of those -- some of 18 that research might be more complex, but some of it could 19 be done relatively simply, even by the Coroner's Office 20 when they're doing their statistics, for example. 21 It would be interesting to know not only 22 how many children have died, but how many of those 23 children have siblings, and do we have any information 24 about that. So research would be another and statistical 25 information would be another aspect.
2491 COMMISSIONER STEPHEN GOUDGE: Thanks, 2 Professor Bala. 3 S. LINDA ROTHSTEIN: Thank you very much. 4 Commissioner, we have questions from Ms. Ritacca, Ms. 5 Crawford, and Ms. Fraser. 6 COMMISSIONER STEPHEN GOUDGE: Ms. 7 Ritacca...? 8 MS. LUISA RITACCA: I have no questions. 9 MS. LINDA ROTHSTEIN: Okay. 10 COMMISSIONER STEPHEN GOUDGE: Thank you. 11 MS. LINDA ROTHSTEIN: Ms. Crawford...? 12 COMMISSIONER STEPHEN GOUDGE: Ms. 13 Crawford...? 14 MS. KATE CRAWFORD: No. 15 COMMISSIONER STEPHEN GOUDGE: Ms. 16 Fraser...? 17 MS. LINDA ROTHSTEIN: Ms. Fraser...? 18 19 QUESTIONED BY MS. SUZAN FRASER: 20 MS. SUZAN FRASER: Good afternoon. I had 21 a chance to introduce myself to each of you, and, Ms. 22 Samler, you and I know each other. 23 MS. AGNES SAMLER: Yes, we do. 24 MS. SUZAN FRASER: While -- so I just 25 wanted to pick up on a -- sort of one (1) of the last
2501 points, which is the protocol and -- and the need for 2 protocols about information sharing. And just -- if 3 there were to be a recommendation about the need to 4 develop protocol, Ms. Fitzgerald, who do you see that 5 being directed to? 6 Is that something -- or, Mr. Koster, feel 7 free to jump in -- as to who should be -- the 8 recommendation be directed at? 9 MR. ANDREW KOSTER: I think it's -- well 10 -- it's -- on a -- it could be directed by the ministry 11 or two ministries -- 12 MS. SUZAN FRASER: Yes. 13 MR. ANDREW KOSTER: -- or the Attorney 14 General -- 15 MS. SUZAN FRASER: Yes. 16 MR. ANDREW KOSTER: -- to -- to have 17 police in certain jurisdictions and Children's Aid 18 societies sit down together to formulate protocols which 19 include a set of principles -- 20 MS. SUZAN FRASER: Right. 21 MR. ANDREW KOSTER: -- that they have 22 that they're dictating. 23 MS. SUZAN FRASER: All right. And so 24 there should probably be an accompanying recommendation 25 to the Ministry for Children and Youth Services and the
2511 Attorney General's office to work together to have some - 2 - to develop those principles for information sharing, is 3 that fair? 4 DR. NICHOLAS BALA: And -- 5 MS. JANE FITZGERALD: Yeah. 6 DR. NICHOLAS BALA: -- and to ensure that 7 the protocols are developed and would keep track of that, 8 that they had been made. Now, I think it's been pointed 9 out, by Ms. Fitzgerald and Mr. Koster, very wisely, is 10 that one thing is having a protocol as a piece of 11 paper, -- 12 MS. SUZAN FRASER: Right. 13 DR. NICHOLAS BALA: -- another thing is 14 having it as a living, breathing document. 15 MS. SUZAN FRASER: Right. 16 DR. NICHOLAS BALA: The value of a 17 protocol, first of all, is a set of guidelines that are 18 to be followed. The making of the protocol, at the local 19 level, is important and making sure that it is kept 20 current and -- and reviewed locally is important, but the 21 Ministry ultimately or Ministries would have the 22 responsibility for ensuring that it's being done, but at 23 a local level. 24 And certain common principles, 25 particularly around the flow of information from the --
2521 and the role of the Coroner's Office and pathologists and 2 the expectations that they would have with individual 3 agencies should be -- there should be a province-wide 4 standard saying, Your protocol must include the following 5 things, and go away and develop and then report back that 6 you've done it. 7 MS. SUZAN FRASER: Okay. And, Professor 8 Bala, you had talked about the sort of question as to 9 whether the criminal law investigation information should 10 trump, and you didn't use the word "trump", but I'm just 11 thinking that there seems to be in -- in some cases a 12 priority on protecting the criminal investigation that 13 might impede the information sharing. 14 I may have misunderstood you. And even 15 the Toronto protocol, which I think is very 16 comprehensive, makes an exclusion in death investigation 17 circumstances that the police may withhold some 18 information. Do you -- what do you think the principles 19 should be underlying the information sharing? 20 DR. NICHOLAS BALA: Well, and there -- 21 there is case law to some extent about this. 22 MS. SUZAN FRASER: Yes. 23 DR. NICHOLAS BALA: And I should say 24 although I -- I didn't cite it here, there's a very good 25 recent paper by the -- by the children's lawyer, the
2531 Office of the Children's Lawyer, Clare Burns. She just 2 wrote a paper on the last that was -- she presented in 3 the last few days at a judicial education program where 4 she reviews the case law and le -- legislation across 5 Canada about sharing of information, particularly when 6 there's a criminal prosecution going on and a child 7 welfare proceeding going ahead. 8 And when cases have come to Court, and of 9 course, the police understand we're saying, We don't want 10 to release information that might possibly prejudice a 11 criminal investigation. When litigation has gone ahead, 12 typically judges have said the child welfare process, if 13 you want to use your word, "trumps", or if you want, 14 another way of saying it, is concern about surviving 15 children will ultimately take priority to the prospect 16 that a guilty person might obtain information that could 17 prejudice a criminal investigation. 18 One (1) of the messages there though, to 19 the criminal justice system is, give these cases 20 priority. So the -- the disclosure information is not, 21 you know, the point was made, we've apprehended the child 22 today, but that doesn't mean that the police have to -- 23 you know, the child's just -- one (1) child is just dead. 24 We may apprehend the sibling today, but that doesn't mean 25 the police have to disclose the information within
2541 twenty-four (24) hours or forty-eight (48) hours. 2 But if you're six (6) months, or eight (8) 3 months, or two (2) years down the road, at some point, 4 the fact that the police have not yet completed their 5 investigation to their full satisfaction does not mean 6 that the information shouldn't be shared with the 7 Children's Aid Society and ultimately, the Family Court, 8 of course, the parents through their counsel. 9 So yes, I think that the -- ultimately, if 10 there -- if there has to be a balancing, then to me, the 11 priority would be placed on the welfare of the surviving 12 children, but there are -- it's not all or nothing. 13 Hopefully there's an appropriate balancing -- an 14 appropriate process. 15 And in fact, in many cases, what actually 16 happens is the Crown counsel, or the Children's Aid 17 counsel and other counsel involved, have sat down and 18 negotiated about disclosure of information which is 19 preferable. 20 In that sense I, you know, share that 21 ideally, most situations are going to be resolved with by 22 a way of mediation if you want. There may well be a role 23 for the Court system there, and certainly in Ontario, we 24 do have legislation. 25 Section 74 of the Child and Family
2551 Services Act gives the Children's Aid Society the right 2 to go to Court to get that information. And judges have 3 ordered police to give it up if they -- if they're not 4 prepared to do that. And I think that that is an 5 appropriate ultimate balancing in my view. 6 MS. SUZAN FRASER: Okay. Go ahead. 7 MR. ANDREW KOSTER: I was going to say 8 that say, for example, in our county, although it isn't 9 actually written out, we do get the information we need 10 to make a prote -- a protection finding. 11 I don't think we ever want to know all the 12 details of a police investigation as to who said what or 13 who might be an informant or -- I don't -- we don't need 14 to know all that, but we need to know, in a timely way, 15 information that's vital to us making the appropriate 16 protection application. 17 MS. SUZAN FRASER: All right. 18 DR. NICHOLAS BALA: And I should say, 19 just and the cases make clear that that -- it's a case- 20 by-case and indeed, document-by-document, it's -- the 21 judges have said if there has to be a choice, the 22 priority is the welfare of the child, but often we can 23 accommodate both, and we have to look at each piece of an 24 -- and if necessary, the judge will look at each 25 document, hopefully counsel can resolve that.
2561 MS. SUZAN FRASER: Okay. I'm going to 2 shift gears just to another issue, if I can, and that's 3 the issue of cases that we don't know about. There's a - 4 - the cases that were reviewed and which became the 5 subject of this Inquiry in terms of -- that led to the -- 6 or a systemic examination were twenty (20) cases, and 7 we've looked at twenty (20) cases between a particular 8 time period, and it may be a recommendation to the 9 Commissioner that there be a further review of cases and 10 indeed, in the period from 1981 to 1991. 11 And so my question is that some of these 12 cases we see being litigated, often we see there being no 13 litigation and there being a consent order. What's the 14 way to determine, you know, looking backwards, where 15 pathology evidence was used to determine where a child 16 protection proceeding might have gone wrong? 17 DR. NICHOLAS BALA: Well, I guess that 18 there has to be someone who is going to be responsible 19 for -- ultimately, for taking the information from those 20 forty (40) files and saying -- someone is going to have 21 to go through and say, Okay, and it's possible the 22 agencies may not even be aware of it in the sense that no 23 one's going through their records, to my knowledge, and 24 saying -- and -- and often that information may not be 25 fully accessible in the sense that now we have full
2571 computer, or more or less full computerization. 2 But if you'd say, in 1982, was Dr. Smith 3 involved? You can't just press a button and know that. 4 Somebody is going to have to look back and say, Okay, 5 here are the cases. And some of the -- and one of the 6 things I should point out, some of these -- the children 7 may now themselves be adults. They may not know what's 8 happening. 9 I think that there has to be some process 10 for someone to go through and say, I have looked with my 11 staff and there were forty (40) cases, and I found all 12 the cases involving children, and I know where all the 13 children are, and I've gone as far as we can and 14 contacted the Children's Aid societies. They've 15 investigated. I've talked to the parents. They now 16 know, and so on. 17 And one possible body would be the 18 Provincial Advocate for Children. It's not necessarily 19 the only one, but I think the -- the people of Ontario 20 and the parents and the children will want to know, at 21 some point in time, yes, somebody's actually gone back, 22 found all these children and can report, obviously not in 23 an identifying way, but that there has been a decision 24 made in the best interests of these children. 25 People are aware of their rights, had
2581 counselling and support and have all the information that 2 they are legally entitled to and -- and there's been 3 appropriate disclosure. 4 MS. SUZAN FRASER: Well, now that that 5 suggestion has been made, Ms. Samler, do you want to 6 respond to that? 7 MS. AGNES SAMLER: Not particularly. The 8 -- the recommendation, however, does the -- I would like 9 to say though, in response to your original question, I 10 think there's an obligation to do that. I don't think 11 it's something we should say: Should we do it or not? I 12 think there's a real obligation to go back, to share 13 information as clearly as possible with people and even 14 if that takes some work and involves some difficulties, I 15 think to not do that would be irresponsible and maybe 16 immoral. 17 So the -- with regard to the second 18 suggestion, I just think that would probably need some 19 more discussion and there may be other bodies and 20 probably deciding something on the spur of the moment on 21 a panel is not a good way to proceed. 22 MS. SUZAN FRASER: All right. All right. 23 Just in terms of the whole -- 24 DR. NICHOLAS BALA: But, by the way, I 25 would certainly echo that it would be, not possibly, it
2591 would clearly be immoral and irresponsible, in my view, 2 not to, and in certain contexts, arguably a violation of 3 the United Nations Convention on the Rights of the Child. 4 There are a lot of -- it's -- I mean, the 5 -- the -- for the sake of the parents who have victimized 6 and the sake of the surviving siblings who will also -- 7 clearly have been victims in this context, this has to be 8 done. How it will be done is another question. 9 MS. AGNES SAMLER: Yeah. 10 DR. NICHOLAS BALA: But I -- I don't 11 think, to me at least, it would not be appropriate to 12 come up to this Inquiry and say, Well, we found out what 13 happened and, you know, it won't happen again and we've 14 taken care of, you know, Dr. Smith or -- and -- and 15 perhaps the criminal -- those who are dealt with, let's 16 say, in the criminal justice of that is obviously very 17 important. 18 But so too are the interests of the 19 parents and -- and the children, and even if the parents 20 themselves have not been involved in this process, I 21 think their children have a right, separate and apart 22 from the interests of the parents, to know what happened. 23 MS. SUZAN FRASER: Even if it's an 24 undertaking where you're reviewing thousands of files for 25 what may be a handful of cases.
2601 DR. NICHOLAS BALA: Well, I don't -- I 2 don't think it's necessarily thousands of file. I mean, 3 to the contrary, it's the -- well, I don't know. And I 4 mean, this is -- obviously I don't understand what the 5 full scope of the Inquiry is, but one might start by 6 saying, This is not looking at every child welfare case 7 that's happening in the province. 8 It's looking at the cases where we have 9 reasonable concerns because of poor forensic, pediatric 10 pathology, which are a finite and presumably known by the 11 Commission staff what -- what they are. 12 MS. SUZAN FRASER: All right. And can 13 you see that, Professor Bala, if -- if there were to be a 14 recommendation to enact legislation for the other issues 15 that you've raised in terms of how to deal with the 16 surviving children that we know about, and -- and making 17 a report to the legislature in the form that you already 18 talked about. 19 Is that something that would naturally fit 20 with that piece, that -- that further review? 21 DR. NICHOLAS BALA: I mean, I'm not sure 22 that I fully understand your question, but obviously, the 23 need is or -- you know, and I -- I -- I understand the 24 reluctance, and in -- in fairness, this -- the -- while 25 my -- our report specifically talks about the need to do
2611 this, it doesn't address the mechanism. 2 It was really in the last few days that 3 well, the Provincial Child Advocate is one (1) -- and if 4 I had to chose an existing body, it might be that, but 5 another neater, more comprehensive is to enact 6 legislation to make clear that this person might well 7 have extraordinary -- or this body or office would have 8 extraordinary powers vis-a-vis the adoption disclosure 9 issues. 10 And to -- to -- to create a special act of 11 the legislature saying, In regard to these cases, arising 12 out of the forensic pathology issues, this office shall 13 have a certain mandate and will be required to report 14 back to the legislature in a certain period of time, and 15 certain set of powers. 16 I mean that would be perhaps -- and 17 another alternative, it may be a neater and -- and 18 clearer one in that giving and having, you know, said, 19 Well, maybe it would be given to the Provincial Child 20 Advocate; that would be the person who would seem to have 21 the -- the mandate now; there are limits to her powers 22 and so on. 23 Maybe having special legislation would be 24 another -- and -- and more comprehensive way to go. 25 COMMISSIONER STEPHEN GOUDGE: Can I ask,
2621 Professor Bala, -- and do you single out -- I don't mean 2 to personalize it, Ms. Samler, but her office, because of 3 its independence? Is that -- is that why you do that as 4 opposed to turning to Ms. Fitzgerald and Mr. Koster and 5 say, Why don't you revisit the case? 6 DR. NICHOLAS BALA: Well, independence is 7 going to be very important because there may be different 8 of opinion. It's mandate, in general, which is working 9 with supervising and independent of its expertise in 10 terms of its staff working with -- with children. 11 So it's a combination of things, and it's 12 mandate to report to the legislature. 13 COMMISSIONER STEPHEN GOUDGE: Okay. 14 MR. ANDREW KOSTER: I'm just going to 15 say, in the -- looking at other cases, would there be -- 16 I mean I would hope there would be some criteria for, you 17 know, for wanting to review certain cases rather than 18 carte blanche every single one, I would hope. 19 20 CONTINUED BY MS. SUZAN FRASER: 21 MS. SUZAN FRASER: Right, but I think the 22 reason I used thousands of cases was simply that we don't 23 yet know of a mechanism to identify when the pathology 24 evidence was used. So in my imagination, I imagined that 25 somebody might have to physically open a file to see if
2631 there was pathology evidence used to make a determination 2 in terms of the child's care. 3 DR. NICHOLAS BALA: I -- 4 MR. ANDREW KOSTER: Jane and I -- 5 DR. NICHOLAS BALA: I thought it would -- 6 could have gone the other way in that you know how many 7 reports Dr. Smith wrote over a period of time, and you 8 could then say, Okay, now we can follow from that. And 9 as opposed -- if you -- if you start in the Children's 10 Aid Societies, you will, at least, initially, be looking 11 at tens of thousands of cases. 12 But I -- that's not where I would 13 presumably think about starting. 14 MR. ANDREW KOSTER: We -- just in support 15 of that, we -- we conferred with some others anticipating 16 this question. And although there may be one (1) agency, 17 for example, that's able to extract information on what 18 cases were, you know, involved with the Dr. Smith, most 19 agencies wouldn't be able to -- to find that. 20 I mean, most files when they're completed 21 get microfiched. 22 COMMISSIONER STEPHEN GOUDGE: Can I just 23 ask a couple of questions? I've assumed, implicitly, I 24 guess, in my own head, that where a child dies and 25 there's no criminal suspicion, that's an irrelevant
2641 circumstance for the care process? 2 It's where it's criminally suspicious that 3 it matters? Am I right about that? 4 MR. ANDREW KOSTER: Yes. 5 COMMISSIONER STEPHEN GOUDGE: And in a 6 case where there was pathology in evidence in a case 7 where it was criminally suspicious, and the pathology was 8 not bad, that is with sound, no problem? 9 MR. ANDREW KOSTER: That's right. 10 COMMISSIONER STEPHEN GOUDGE: So it's the 11 cases where the pathology was bad and there was a 12 criminally suspicious circumstance, that it would matter 13 on a review, I suggest, in your paper? That's the way 14 you approached it? 15 DR. NICHOLAS BALA: Yes. 16 MS. JANE FITZGERALD: So that's when you 17 start narrowing down saying -- 18 COMMISSIONER STEPHEN GOUDGE: Right. 19 MR. JULIAN FALCONER: -- Okay, what are 20 we looking at. 21 22 CONTINUED BY MS. SUZAN FRASER: 23 MS. SUZAN FRASER: Okay. And just in 24 terms of the process of which children are notified, or 25 children who are maybe now adults, or approaching
2651 adulthood, I think, just in terms of framing it, I think 2 what you're suggesting is that there be some process by 3 which children can make contact with their parents, but 4 that uni -- reunification is not necessarily -- as in 5 physical reunification is not necessarily going to be 6 feasible in -- in many of these cases, or if any at all? 7 MS. JANE FITZGERALD: I think like 8 everything else we've talked about, it would have to be 9 on a case-by-case basis looking at the best interest of 10 the individuals involved. 11 MS. SUZAN FRASER: So would it be fair to 12 describe it as a process of reconciliation or -- just in 13 terms of framing a recommendation, I'm looking for your 14 assistance as -- as to what's the best way to describe 15 it. And I've, in my head, thought of it as 16 reconciliation, not necessarily reunification. 17 So I don't know if you find that language 18 helpful. Maybe it doesn't -- maybe it doesn't help to 19 put a label to it. 20 DR. NICHOLAS BALA: I mean, one (1) of 21 the things would be restoring a relationship that meets 22 the best interests of the child, so to me, the focus is 23 on the child, not on the rights of the parents, although 24 that's not insignificant. And best interests, 25 individualized decision making, and a relationship not --
2661 you know, it could -- there could be a case where 2 reunification is appropriate. You know, some of these 3 people may be into late adolescence, early adulthood and 4 they're not going to have -- you know, in anybody's 5 custody, as it were. 6 MS. SUZAN FRASER: Right. But they might 7 want to know who a sibling is -- 8 DR. NICHOLAS BALA: They -- 9 MS. SUZAN FRASER: -- or they might want 10 to know -- 11 DR. NICHOLAS BALA: They would clearly 12 want -- at least, they would have the right to know who 13 their siblings are. And, indeed, you know, one (1) of 14 the questions on that context is, if they are adults you 15 may have a different set of issues which, of course, 16 we've now gone through with the litigation about adoption 17 disclosure. 18 But we've had some priority placed on the 19 -- there's some constitutional issues there about 20 privacy, who has a right to know. But I think at least 21 the child, who may now be an adult, has the right to know 22 that this has happened and that they have -- there is 23 information there. 24 And the priority to me would be -- again, 25 there's probably a case where there's going to be some
2671 balancing -- is on the right of the child, not the right 2 of either the adopted or the biological parents. 3 MS. SUZAN FRASER: Okay. And just one (1) 4 last area, if I might, Mr. Commissioner? 5 COMMISSIONER STEPHEN GOUDGE: How about 6 one last question, Ms. Fraser? 7 MS. SUZAN FRASER: Okay. Professor Bala, 8 you, in your paper, talked about the Paediatric Death 9 Review Committee as being a way to sort of track some of 10 those additional statistics as to whether there were 11 surviving siblings. 12 And, Ms. Samler, I just wanted to ask you 13 a little bit about your view of the functioning of the 14 Paediatric Death Review Committee as a body that can 15 track abuse and those forms of statistics. 16 MS. AGNES SAMLER: I didn't know a lot 17 about the Paediatric Death Review Committee, but I did 18 ask that it go in our booklet of information and -- 19 because I think it's important to review the deaths of 20 children, and particularly children in care. 21 When I did read the report, I thought it 22 was good in terms of having factual material. What I 23 found lacking, though, was that there was no -- there 24 didn't seem to be any process from where the report -- 25 the report gathered the factual information. There
2681 didn't seem to be any way to take that to meaningful 2 recommendations, to get those recommendations 3 implemented, and then to review to see how they were 4 implemented. 5 So what I -- I guess I thought it was a 6 potentially a stronger instrument and -- but just didn't 7 see how it unfolded out to actual change in the 8 community. 9 And the second thing was the -- trying to 10 look at the membership because it's -- for me, it had 11 Coroner's Office, CAS, physicians, police, all of whom 12 seemed to be stakeholders in that a bit. I didn't see 13 anywhere the voice of children. And I -- and there may 14 need to be some process to, if it's going to be used in a 15 more substantive way, to look at its independence in some 16 way, and to look at membership, independence, how the 17 report could be used. 18 So -- so those are things that struck me. 19 And, again, it was a fair -- I had heard of it before but 20 had not looked at it in detail until -- trying to see how 21 it might fit in this context and for this Inquiry. 22 COMMISSIONER STEPHEN GOUDGE: Thanks. 23 MS. SUZAN FRASER: Thank you. 24 COMMISSIONER STEPHEN GOUDGE: Thanks, Ms. 25 Fraser.
2691 Ms. Rothstein...? 2 MS. LINDA ROTHSTEIN: Well, Commissioner, 3 I just want to thank all of our panellists so very much 4 for their very helpful and constructive advice as to how 5 you can deal with some of the thornier issues that have 6 arisen in this Inquiry. Thank you very much for coming. 7 Commissioner...? 8 COMMISSIONER STEPHEN GOUDGE: Yes, and on 9 behalf of all of us, let me express our thanks, as well. 10 It's been extremely helpful. It's an important area. 11 We've got a lot on our plate. This adds to it but it's 12 been very useful. So thank you all for coming. 13 We'll rise now until 9:30 tomorrow 14 morning. 15 16 --- Upon adjourning at 4:17 p.m. 17 18 19 Certified Correct, 20 21 ____________________ 22 Rolanda Lokey, Ms. 23 24 25