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

2
  1                        Appearances
  2  Linda Rothstein           )     Commission Counsel
  3  Mark Sandler        (np)  )
  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              )
 20  Erica Baron         (np)  )
 21  Grant Hoole         (np)  )
 22   
 23  William Carter      (np)  )     Hospital for Sick Children
 24  Barbara Walker-Renshaw (np))
 25  Kate Crawford             )

3
  1                   APPEARANCES (CONT'D)
  2  Paul Cavalluzzo      (np) )     Ontario Crown Attorneys'
  3                                   Association
  4  
  5  Mara Greene          (np) )     Criminal Lawyers'
  6  Breese Davies        (np)  )    Association
  7  Joseph Di Luca       (np) )
  8  Jeffery Manishen           )
  9  
 10  James Lockyer        (np) )     William Mullins-Johnson, 
 11  Alison Craig               )    Sherry Sherret-Robinson and
 12  Phillip Campbell     (np) )     seven unnamed persons
 13  
 14  Peter Wardle              )     Affected Families Group
 15  Julie Kirkpatrick          )
 16  Daniel Bernstein     (np) )
 17  
 18  Louis Sokolov        (np) )     Association in Defence of
 19  Vanora Simpson            )     the Wrongly Convicted
 20  Elizabeth Widner      (np) )
 21  Paul Copeland         (np) )
 22  
 23  
 24  
 25

4
  1                 APPEARANCES (cont'd)
  2  Jackie Esmonde      (np)   )     Aboriginal Legal Services 
  3  Kimberly Murray    (np)   )     of Toronto and Nishnawbe-
  4  Sheila Cuthbertson  (np)   )     Aski Nation
  5  Julian Falconer    (np)   )
  6  
  7  Suzan Fraser              )     Defence for Children 
  8                             )     International - Canada
  9  
 10  William Manuel            )     Ministry of the Attorney
 11  Heather Mackay     (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

1 TABLE OF CONTENTS Page No. 2 3 THE JUDICIAL SYSTEM AND EXPERT SCIENTIFIC EVIDENCE PANEL 1: 4 PATRICK LESAGE 5 MARC ROSENBERG 6 GARY EDMOND 7 ERICA BEECHER-MONAS 8 Questioned by Ms. Linda Rothstein 9 9 Questioned by Mr. Brian Gover 109 10 Questioned by Mr. Jeffrey Manishen 116 11 12 THE JUDICIAL SYSTEM AND EXPERT SCIENTIFIC EVIDENCE PANEL 2: 13 ALASTAIR MACGREGOR 14 ANDREW ROBERTSON 15 16 Questioned by Ms. Linda Rothstein 129 17 Questioned by Mr. Jeffrey Manishen 186 18 19 20 21 Certificate of transcript 195 22 23 24 25

6
  1  --- Upon commencing at 9:31 a.m.
  2  
  3                 THE REGISTRAR:   All rise.
  4                 COMMISSIONER STEPHEN GOUDGE:   Please sit
  5  down.  Good morning.   
  6                 Ms. Rothstein...?
  7                 MS. LINDA ROTHSTEIN:   Well, Commissioner,
  8  I have the great please this morning of welcoming our
  9  last group of panellists, well known to you, of course,
 10  but it's still bearing some ti -- some time for
 11  introduction.
 12                 On the far left we welcome the Honourable
 13  Patrick LeSage, our former Chief Justice of the Superior
 14  Court of Justice of Ontario, retiring from the Court in
 15  2004.  Since retiring from the bench doesn't mean
 16  retirement, as I understand it, Mr. LeSage joined
 17  Gellings, Lafleur, and Henderson LLP.  He provides
 18  advice, acts as a mediator and arbitrator, fact finder in
 19  significant private and public sector matters.  
 20                 He was appointed by the Government of
 21  Ontario to conduct an extensive review of Ontario's
 22  police complaint system, and his final report in that
 23  matter was recently appoint -- presented to the Attorney
 24  General.
 25                 He was appointed a Commissioner of the

1 Ontario Securities Commission and a particular interest 2 to our work, Commissioner, he was appointed in December 3 2005 by the Attorney General of Manitoba to conduct and 4 inquiry into the first degree murder conviction of James 5 Driskell. 6 I also want to belatedly congratulate Mr. 7 LeSage for his December 2007 appointment as a member of 8 the Order of Canada for his contributions to the Ontario 9 judiciary notably as Chief Justice of the Superior Court 10 and for his ongoing dedication to public service. 11 I really want to extend a warm welcome to 12 you, Mr. LeSage, and just say many people in this room 13 remember fondly their trials in front of you. 14 MR. PATRICK LESAGE: Thank you. Thank 15 you. 16 MS. LINDA ROTHSTEIN: I also want to 17 welcome the Honourable Justice Marc Rosenberg, a Judge of 18 the Ontario Court of Appeal. Justice Rosenberg is 19 presently an Associate Director of the National Judicial 20 Institute, and as such been very engaged in developing 21 education for the judiciary, including in the areas of 22 evidence, advanced evidence, administration of the 23 criminal justice system, the role of the Attorney 24 General, and so on. 25 Before becoming a Judge he had a long

1 history not only as an illustrious member of the Criminal 2 Bar, but also very engaged in the education of the 3 profession both at the Law Society of Upper Canada bar 4 admission course and elsewhere. 5 He has provided consultation and advice to 6 the Law Reform Commission over the years, to the Attorney 7 General, and to many other leading law reform 8 institutions and we're very grateful for your attendance, 9 you're -- Justice Rosenberg. 10 Seated beside Justice Rosenberg, we have 11 again to welcome Professor Erica Beecher-Monas, who most 12 people in the room will now recognize as someone who 13 comes to us, again, one (1) plane away, as a Professor of 14 Law at Wayne State University, and properly clothed for 15 our winter, unlike some of her colleagues. 16 She teaches in the areas of evidence, and 17 corporate law, and received, as you will recall, her 18 Masters of Science in anatomy cell biology from the 19 University of Miami, and a JD from the University of 20 Miami Law School. As we've come to know, she has a very 21 keen interest in the intersection between science and 22 law, and how they talk to each other. 23 And finally, I again want to welcome 24 Professor Gary Edmond, who has been perhaps one (1) of 25 our most avid

1 spectators over the week, and I think from my visits to 2 Starbucks, one (1) of our best note takers. 3 Professor Edmond is a member of the 4 Faculty of Law at the University of New South Wales in 5 Sydney and Australia. His research, like that of 6 Professor Beecher-Monas, focuses on expert evidence, the 7 public understanding of law, and the relationships 8 between law and science. 9 And thank you very much, Professor Edmond, 10 for staying through this miserable Toronto week of 11 weather. We're very grateful that you have done so. 12 13 THE JUDICIAL SYSTEM AND EXPERT SCIENTIFIC EVIDENCE PANEL 14 1: 15 16 PATRICK LESAGE 17 MARC ROSENBERG 18 GARY EDMOND 19 ERICA BEECHER-MONAS 20 21 QUESTIONED BY MS. LINDA ROTHSTEIN: 22 MS. LINDA ROTHSTEIN: Commissioner, as 23 you know, previous roundtables have discussed ways to 24 improve the quality of the science provided to the 25 justice system by forensic pathologists, and ways to

1 improve the abilities of Crown and defence to insist us - 2 - to assist in that task. 3 This roundtable addresses the role the 4 Court can play in that respect. And, so I want to start 5 with hopefully some of the simpler issues, which is 6 whether and how to provide specialized education to the 7 judiciary who are going to be involved in trying these 8 very hard cases. 9 I'll start with you, Professor Beecher- 10 Monas. Do you have a view on whether there is any need 11 for specialization in the judiciary, and if so and even 12 if not, what form education should take of the judiciary 13 in this important area? 14 DR. ERICA BEECHER-MONAS: I do not think 15 that judges should be specialized. I think that there is 16 a huge value in having generalist judges, judges who have 17 experience with regular trials, and who bring that 18 experience to trials that involve scientific evidence. 19 At the same time, I think that education 20 of the judiciary is a wonderful thing. I think that 21 continuing legal education is something to be encouraged 22 among the bar, and among the judiciary. 23 And I think that it's important to bring 24 up issues to the judiciary in terms of contrasting 25 viewpoints about science. For example, a -- a panel

1 educating judges on some of the controversies about 2 Sudden Infant Death Syndrome, or Shaken Baby Syndrome, 3 would be very helpful. They probably won't take back 4 from the education all the details of -- of the 5 controversy, but what they will remember is that there is 6 a controversy, and if they have a case involving Sudden 7 Infant Death Syndrome, or Shaken Baby, they will worry 8 about the evidence. 9 And I think that's very important. I 10 think that judges should be encouraged in their 11 gatekeeping duties, and education is one of the ways to 12 do it. But I am a firm believer in generalists judges. 13 MS. LINDA ROTHSTEIN: Okay. I'm going to 14 turn it to you, Mr. Lesage, and ask you, based on your 15 many years in -- in deciding what judges should do what 16 cases, or at least having a role in that, what your views 17 are of whether there should be some more specialization 18 in these tricky cases. 19 MR. PATRICK LESAGE: I had dinner last 20 evening with Professor Monas, and I said this is not 21 going to be a very exciting, or interesting panel because 22 I think I agree with almost everything that she says. 23 And this -- and what she has just said, I wholeheartedly 24 adopt, or as the Court of Appeal would say, I concur. 25 I -- I really have always advocated the

1 generalist judge. I think they -- it is a -- a 2 fundamental aspect of our justice system. 3 Although we may have specialized Courts 4 from an administrative point of view, and when dealing 5 with motions, and perhaps applications, a degree of 6 expertise and experience in a particular field is -- is 7 exceedingly helpful, and sometimes necessary. 8 For a trial, a judge -- from my 9 perspective, a judge is a judge is a judge. And as far 10 as education, I again agree with Professor Monas that you 11 cannot dictate what judges will be educated about, but 12 you can certainly encourage more education in the field, 13 the scientific field. 14 And -- and if I might just reflect, when 15 you referred to the Inquiry I did in Manitoba, into the 16 wrongful conviction of James Driskell, and we -- we had a 17 roundtable such as this on scientific evidence. And I 18 must say it came as somewhat a shock to me, having spent 19 forty (40) years plus in the justice system, to hear some 20 of the scientific experts speaking about the uncertainty 21 and the lack of clarity in areas of science which I had 22 always thought were far more certain than they really 23 are. And I -- I felt very guilty that I had not better 24 educated myself on these areas long before. 25 So I obviously am a very strong supporter

1 of education in this field, but not to make the judge an 2 expert, that's for others. 3 MS. LINDA ROTHSTEIN: Okay. Well, 4 Justice Rosenberg, many of us in this room are accustomed 5 to the Court of Appeal disagreeing, so please feel free. 6 But do you share the view that there's no need for 7 specialization, and would you also comment on what one 8 would do educationally then to address the deficit which 9 Mr. LeSage has perhaps with a little too much humility, 10 but then nevertheless, identified as a real problem for 11 the trial bench? 12 JUSTICE MARC ROSENBERG: Sure. Before I 13 start, can I just put my disclaimer on the record? Okay. 14 I -- I'm sort of in this unique position, that I am a 15 sitting judge, and I might hear issues that deal with 16 some of the issues that we may talk about this morning. 17 And I want to be as helpful and candid as I can, so I 18 guess just so everyone understands that what I say here, 19 I'm not necessarily going to be bound by some case where 20 this very issue may arise, and of course it depends on 21 the submissions and the -- you know, the issues in that 22 case, so. 23 COMMISSIONER STEPHEN GOUDGE: He reserves 24 the right to change his mind. 25 JUSTICE MARC ROSENBERG: And of course

1 I'm bound by the Supreme Court of Canada. So, having 2 said that, I -- I tend to agree more or less with what -- 3 with what Pat and Erica have said. 4 I think we found that in some areas 5 perhaps there is a value in some specialization. I 6 think, for example, of family law. I think we've seen 7 the advantage of that, but I can't see how you would ever 8 determine the specialization for a particular judge. 9 Like, you know, what would be the judge that would 10 specialize in pediatric forensic pathology: you know, 11 we'll give him all those cases, or him or her. So I -- I 12 don't think it's feasible. 13 And when we were discussing this before, I 14 think what judges, generalist judges, bring to the table 15 hopefully, is a healthy degree of skepticism and critical 16 thinking. And if they do that, then they're doing their 17 -- their job. And then hopefully the will be there, will 18 be able to challenge the -- the assumptions that are 19 being made. 20 Obviously I'm very interested in 21 education, because of my work with the National Judicial 22 Institute. And we have done some work, some courses on 23 science and the judges role, and -- but I think, 24 obviously, there's a huge role for the National Judicial 25 Institute in particular, to develop courses that raise

1 these issues about the controversies that are out there. 2 One (1) of the -- the challenges we have 3 when we present a program like that, that's -- along the 4 lines that -- that Eric mentioned is we give the judges 5 this information and then they always -- the question 6 they always ask is, Well when I have a case like that 7 tomorrow, am I allowed to rely on the -- what, you know, 8 Dr. Pollanen said to me, you know, in my little seminar. 9 And this is a real challenge for us, 10 because we have these strict rules about judicial notice 11 and -- and so on. But in terms of making people aware of 12 the controversies, of making them more scientifically 13 literate, I think we've done some of that work; I think 14 we can do a lot more to help judges so that anyone who is 15 faced with one (1) of these cases can handle it and be 16 more comfortable with it and with the science. 17 MS. LINDA ROTHSTEIN: And is it your 18 impression from reading the many transcripts that you do, 19 that there's something to the proposition that in general 20 the legal system is too vulnerable to inaccurate or 21 unrial -- unreliable scientific expert opinions, that 22 they place too much weight on style, reputation? Or can 23 you comment? 24 JUSTICE MARC ROSENBERG: No, no, that's - 25 - it's not an unfair question. I'm just not sure how

1 much help I can be. We've seen some -- some real 2 tragedies in -- in the sense that we've allowed evidence 3 in, not just in -- in this particular area that you're 4 looking at. But I'm sure that you've had people mention 5 before, problems with psychological evidence in child 6 sexual abuse cases, and a lot of evidence that got in 7 that in hindsight looks pretty frail, and it was very 8 helpful in -- in helping treat people, but wasn't very 9 helpful in diagnosing whether X was a pedophile and so 10 on. 11 So yes, I think we've been vulnerable to 12 that. Can we do the -- implement tests and frameworks to 13 help us do better, I think sure we can, but I -- I think 14 you'd really have to look at each case and decide, you 15 know, what went wrong there, why was it that we were so 16 trusting or uncritical of the evidence in this case. And 17 a lot of it I think flows out of simply the -- the common 18 law. 19 The -- we're so bound up by precedent and 20 we say, Well, this evidence was admitted ten (10) years 21 ago, so obviously it's okay. And maybe we have to 22 challenge those -- some of those assumptions, and it 23 think the Supreme Court of Canada has actually pointed 24 the way in how we might do that, and I'm sure we'll get 25 into that later.

1 MS. LINDA ROTHSTEIN: Professor Edmond, I 2 know you -- you do start from the proposition that the 3 legal system is too vulnerable to inaccurate, or 4 unreliable, or unrepresentative expert opinions. 5 Apart from knowing that there are cases of 6 miscarriage of justice or cases where the Courts are 7 getting it wrong, what's the basis of that -- that 8 argument? 9 DR. GARY EDMOND: Some of the judgments 10 themselves. I think one (1) of the things that tends to 11 happen with -- when it comes to assessing evidence is 12 that considerations often just -- are often introduced 13 which displace what might be considered the real issues 14 in relation to the reliability or validity of the 15 evidence. 16 So sometimes the status of a person plays 17 a great deal, their qualifications, the confidence in 18 which they express an opinion, but in reality all of 19 those things are far less important than whe -- than the 20 reasoning process or the basis upon which the opinion or 21 techniques are derived. 22 And so to the extent that decision makers, 23 and we're talking primarily about judges, aren't taking 24 the more fundamental or foundational issue into 25 consideration, then there's much more scope for evidence

1 which probably isn't reliable or has -- or is unknown 2 reliability entering into the system and being relied 3 upon. So these are often used as surrogates or 4 heuristics in -- in allowing evidence in, but they're not 5 necessarily providing any kind of useful or reliable 6 guides to the value of the evidence. 7 MS. LINDA ROTHSTEIN: Your comments, 8 Professor Beecher-Monas, on whether judges and lawyers 9 accord more sort of superficial credibility to scientific 10 opinion than other kinds of evidence that we have also 11 seen as fraught with dangers in retrospect, whether it's 12 eyewitness test, evidence, or -- or jail house 13 informants, is it all the same or is there something 14 unique about the justice system's reliance on scientific 15 evidence that should put us particularly on gore -- on 16 guard? 17 DR. ERICA BEECHER-MONAS: That's a good 18 question, because basically I think that scientific 19 evidence, like many of these other forms of evidence that 20 you're talking about, is an exer -- whether it's 21 admissible or not is an exercise in logic. And I think 22 the same is true with, for example, eyewitness experts 23 who would like to testify about the unreliability of 24 eyewitness testimony; one needs to look at the empirical 25 basis for what they're saying.

1 And so I -- I think that there is a great 2 difference between expert testimony and lay testimony, 3 and the scrutiny that the Judges need to give to expert 4 testimony is far -- far greater. 5 I think the gate keeping responsibilities 6 when you're coming to expert testimony, and -- and by 7 expert testimony I include not only the forensic 8 pathologists, and the expert eyewitness testimony 9 experts, and the psychological experts. 10 But I also include things that are -- like 11 for example, the police experts who would like to testify 12 about the signifiers of what belongs in a gang, right, 13 the -- the indicia of being gang -- gang members. 14 I think the Judge has a responsibility to 15 look very carefully at the empirical basis for all of the 16 expert testimony, because experts come in there with a -- 17 come into Court with a special imprimatur: they are 18 experts, right. 19 They're there to assist the jury. They're 20 different from lay witnesses. They don't rely on their 21 personal perceptions of what happened. They rely on 22 their experience, and one needs to know whether that 23 experience is based on empirical data or not. And that's 24 why I think the judge has an increased responsibility for 25 gatekeeping when it comes to expert testimony.

20
  1                 MS. LINDA ROTHSTEIN:   All right.  Before
  2  we  -- we perhaps get into the thorny issue of how one
  3  might perform that gatekeeping function, and whether the
  4  other members of the panel agree with you about it, Mr.
  5  Lesage, if you were mentoring a newish judge, and that
  6  judge were concerned -- was concerned because she was
  7  confronted with a trial where she knew it was going to go
  8  on for months, and there was the prospect of many, many
  9  expert witness on both sides -- assume a criminal trial -
 10  - how does that judge, she asks you, ensure clarity about
 11  the range of expertise, and require that the opinions
 12  stay within it?  
 13                 What, if any, role does she play?  Or does
 14  she just allow the lawyers to take hold of that process?
 15                 MR. PATRICK LESAGE:   That question is too
 16  difficult and I don't think I want to -- let -- let me
 17  just go back, a little pet theory that I've had for a few
 18  years, and you know, we've had the great benefit in
 19  Canada of never really truly having a revolution.  We
 20  have always based our society, as to a very great extend,
 21  based on a hierarchal structure.  We have a Queen as the
 22  head of our country.
 23                 Unlike the United States, who I think does
 24  perhaps a better job than -- than we do on -- on experts,
 25  and particularly scientific experts we -- we have never

1 challenged authority. It's not sort of in our makeup to 2 have chal -- to challenge authority the way other 3 countries who've had revolutions do challenge authority. 4 I think we're -- and I -- and I have been one, of course, 5 who's been a beneficiary of that acceptance, you know, as 6 a judge, and wearing the black robe, and the rest. 7 But we -- we tend to not question, not 8 necessarily even challenge. We don't question authority 9 enough in some occasions. So somebody comes in as an 10 expert, and I'm going to say that's a word I always 11 avoided with a -- with a jury. I didn't refer to them as 12 experts. I referred to them -- to people who, because of 13 their training and experience, were permitted to give an 14 opinion, because I think even using the word expert is -- 15 is already cloaking them with -- with a great authority, 16 which maybe they ought not have. 17 Did I -- did I, or -- question the 18 expertise sufficiently? Did defence counsel, or Crown 19 counsel as the case might be, question the expertise, the 20 basis, the underpinnings of it as much as we ought to 21 have? In many cases, no, we didn't. 22 The question you ask is in part who's 23 response -- who is responsible to see that the expertise 24 is questioned, challenged, assessed -- accurately and 25 throughly assessed, before the evidence is -- is

1 permitted to be -- to be given. And it -- that -- that's 2 -- I've always found that a difficult issue, because we 3 have an adversary system, and we believe quite strongly 4 in our adversary system, maybe too strongly, I'm not 5 sure. And as such, I tended as a judge to more like a 6 sphinx than a -- than an activist, and I tended to sit 7 back and allow the responsibility for the determination 8 of the question which I'm going to have to determine, but 9 the -- the -- providing the -- the information upon which 10 I was to make that decision, I really left to counsel. 11 And if counsel didn't raise it, I probably 12 said well it's the adversary system, I'm not the advocate 13 for either the Crown or the defence, the plaintiff or 14 defendant, and, so to what extent do I become the 15 advocate, or the defender, of the qualifications of this 16 particular witness. 17 I think it's fair to say, however, that 18 there is a -- well, it's already been said, that there's 19 a great responsibility on the adjudicator to make an 20 informed decision, and how do you make an informed 21 decision if the evidence has not been adduced before you? 22 I find that a bit of a conundrum. Should 23 I launch into my own questioning and inquiry? I don't 24 know that answer to that question. I -- my -- by nature, 25 because of I always believed in -- more in the passivity

1 of a judge, I probably often didn't inquire deeply enough 2 into the expertise. 3 But unquestionably, we do cloak the 4 expert, the opinion giver, with an authority that is very 5 often not justified. 6 COMMISSIONER STEPHEN GOUDGE: One (1) of 7 the issues we've had Pat, that's been really front and 8 centre in what we've heard in the fact part of the 9 evidence, is experts who stray beyond their expertise. 10 And does the trial judge have an 11 obligation to be somewhat proactive first in defining the 12 permitted areas of expertise, and then ensuring that the 13 opinions stay within it, that goes beyond whatever 14 counsel raise? 15 MR. PATRICK LESAGE: I'm obliged to the 16 Commissioner for refreshing my memory as to what the 17 question was. Short answer is absolutely. I -- I 18 believe that the judge must be absolutely clear, 19 satisfied, the area of -- the specific narrow area about 20 which this person is going to be permitted to give an 21 opinion. 22 And I think that counsel, when they call 23 the expert, and as they are introducing the expert, say 24 in clear unequivocal language, exactly what it is -- and 25 I can tell you that when they do it -- I always took a

1 lot of notes anyways, but I write it down, and I make 2 sure I clearly understand what is the specific area. 3 And it should be concise and precise as to 4 -- I mean, not just that this person is going to testify 5 about medical issues. That is a -- not at all helpful. 6 And that is not a specific area. 7 So -- and I think there should be 8 probably, my -- from my own experience, perhaps, you 9 know, one (1) or two (2) or I don't think I've ever seen 10 three (3) descript -- or more than three (3) descriptors 11 as to the area. 12 But you want to be very, very precise as 13 to exactly what it is that you're ask -- that counsel is 14 asking the judge to permit this person to give an opinion 15 on. And so that is absolutely essential that it be 16 clear. 17 I think it should -- the introducer of the 18 opinion-giver should open the -- their comments by 19 setting that out unequivocally, and make very -- make it 20 very clear that you understand it. 21 And as will on occasion happen, when you 22 have someone who you know is going to be a roamer, in the 23 sense of going all over the field, is you make sure that 24 they're there and you look at them, the -- the opinion- 25 giver, and you look at them as you are giving your ruling

1 as to exactly what it is that they're going to be 2 permitted to testify on, and the opinion upon which they 3 are going to be able to comment, and nothing else. And 4 you glare at them a bit as well. 5 And -- and if they stray, I think you, as 6 the judge, even a non-interventionist judge, you have an 7 absolute obligation to step in and stop the person 8 immediately in their tracks. 9 Whether it's -- be it in front of the 10 jury, all the better. It's a more telling admonition 11 when the judge gives it to the witness in front of the 12 jury. But you have an obligation to do that, and ensure 13 that they stay within those bounds. 14 And in some -- in -- with some 15 professional witnesses, it's not so much the fault of 16 counsel, it's the fault of the professional witness who 17 wants to roam -- roam into areas in which they have no 18 business commenting on. 19 20 CONTINUED BY MS. LINDA ROTHSTEIN: 21 MS. LINDA ROTHSTEIN: Justice Rosenberg, 22 any comment? 23 JUSTICE MARC ROSENBERG: Not very much to 24 add to what Pat says. I mean, part of the -- what we 25 want to try to do is give the trial judges as many tools

1 as possible to -- to work their way through this, and the 2 -- the critical one (1) is as Pat said, to require the 3 counsel and the expert to know exactly what it is they're 4 going to be talking about, and to define with clarity. 5 And I must say sometimes you see 6 transcripts where it's very vague as to what the -- the 7 experts there -- I -- I don't know that you notice it so 8 much in the medical field as -- or this kind of field so 9 much as, for example, psychology, where they -- they're 10 all kind of fumbling around, trying to figure out what 11 exactly the reason is that they called this expert. They 12 just know they wanted them there to -- to help out. 13 MS. LINDA ROTHSTEIN: That would be me. 14 JUSTICE MARC ROSENBERG: But the other 15 point that Pat makes, and I think it's very important, is 16 -- is the -- the judge at the end of the day is going to 17 have make a ruling as to whether it's admissible. And if 18 the judge can be as clear as possible in the ruling, to 19 say, Okay this is what -- this is the area of expertise - 20 - this is the scope of the opinion, then I think everyone 21 understands what the rules of the game are and, so if 22 they start to stray off, yes, the judge has. 23 Now I say that in a criminal trial, and 24 that's I guess what we're here for. I don't -- I 25 wouldn't want to say what -- whether it's less strict in

1 a civil case, but there's a greater obligation, I think, 2 in a criminal trial because the -- the higher interest in 3 protecting the liberty of the subject, that the judge 4 does has a more interventionist role. 5 MS. LINDA ROTHSTEIN: Okay. Okay, 6 Professor Edmond, it gets harder. 7 You've argued that reliability should be - 8 - I -- as I understand it, a formal conditional of 9 admissibility, certainly in criminal trials, but as I 10 understand your paper, really in all trials: reliability 11 of all science, of all expert opinion, and even if no 12 objection is raised. 13 What do you say? 14 DR. GARY EDMOND: Yes, would be my short 15 answer. And in part, just drawing upon what often 16 happens, especially in the wake of -- of the lead -- the 17 Supreme Court decision in Mohan, often consideration of 18 the admissibility of evidence in voir dires is quite 19 cursory, and often perfunctory. So it's just a matter of 20 someone having formal qualifications, and being kind of 21 relevant to the issues in the case, and they'll come in. 22 And I think that's not enough. And it's 23 not enough just because people may roam, and it's not 24 enough because people may give opinions that don't have a 25 foundation in a kind of -- in scientific studies, in kind

1 of a empirical domain. 2 So there's -- there's an imposition -- I 3 think ultimately the buck stops with the -- the judges, 4 the trial judges in Courts of Appeal. And I think there 5 should be an expectation that the defence will -- and 6 we've seen in lots of cases, the defence has allowed the 7 evidence to go through, the defence should challenge lots 8 of this evidence. 9 It's hard to understand, apart from the 10 resource issues for the defence, why they don't challenge 11 the evidence, but often -- often they don't. I guess it 12 demonstrates some of the weakness in the system that if 13 you don't have the kind of standard of reliability for -- 14 or some kind of genuine admissibility threshold, or 15 hurdle, unreliable evidence will come into the trial, and 16 it contami -- contaminate it in ways it's going to be 17 very hard to repair. 18 So if the defence for whatever reason 19 refuses to get their own expert, or is unwilling or 20 unable to get their own expert, it must come to the 21 judge. 22 I accept what Mr. Lesage said in relation 23 to it's very difficult for a judge faced with trying to 24 work out whether evidence, where there's very limited 25 evidence presented to them, to decide whether this is

1 reliable or not. Obviously they just have to use their 2 own kind of critical faculties. 3 I'm not a proponent of this like Court 4 appointed experts in trials, but maybe to the extent that 5 these things may take place, it may be the judges in 6 certain circumstances on a voir dire should be more 7 willing to ask a panel of experts to come in and help 8 them at that stage, so it's not contaminating the trial 9 with these issues, but -- or even a Court of Appeal. 10 I've argued that I think Courts of Appeal 11 should be more proactive in relation to admissibility 12 decisions on the merits. They should have -- they should 13 actually look at the evidence itself. Maybe they're the 14 kinds of panels -- or maybe their the kinds of panels 15 that should get their own panel to give them assistance 16 in relation to evidence, if they think they need it. So 17 they might conduct -- they might generate the kinds of 18 panels that we've seen here: quite eminent people in a 19 range of fields to talk about those kind of things. 20 But ultimately I think it's important to 21 have demonstrable reliability so that for the evidence, 22 in all of these criminal cases where the evidence is 23 produced by the Crown, I think that's just a burden that 24 the Crown should wear in a rational system of justice. 25 And I think it's so difficult to repair

1 the effect of unreliable evidence once it comes into the 2 trial. It's very difficult once someone started roaming 3 to stop the jury getting a sense of -- even if they're 4 disciplined by the judge, stop the jury of getting a 5 sense of this is nonetheless what the expert believes: 6 We're told not to rely upon it, but we -- we know. It's 7 out of the closet. 8 How do you repair that, especially when 9 that's just part of a Crown case against somebody? 10 MS. LINDA ROTHSTEIN: Professor Beecher- 11 Monas, I think you share most of those views, but is 12 there anything else you want to add? 13 DR. ERICA BEECHER-MONAS: I do. I -- I 14 do share those ideas, because I think it's very important 15 for the judge to act early in exercising the gatekeeping 16 responsibilities. 17 And so in my ideal world, the judge would 18 call the trial judge, sees that there are going to be 19 experts, because you're required to disclose your expert 20 list at least, if not the report early on. 21 And -- or ask the counsel, Are there going 22 to be experts? And then call a hearing. Say, I'd like 23 to know what the basis of the expert testimony is, and 24 remember that it's the proponent of the exp -- of the 25 expertise, right, the proponent of the evidence, that

1 there's the burden for admissibility. 2 And -- and this is an important -- this 3 needs to happen in the preliminary hearings, because once 4 you get into the hurly burly of the trial, I -- I think 5 it's very difficult for the judge, and I'm sure that some 6 judges are better at it than others, and more experienced 7 at stopping the expert than others. 8 But I think this preliminary hearing in 9 which the judge hears the basis for the expert testimony, 10 decides whether there is enough basis to let it in at 11 all, and decides what the boundaries of that expertise 12 are going to be, what the expert is going to be allowed 13 to testify to. 14 I think that's an extremely important 15 hearing, and -- and that without that, you know, you 16 can't -- for -- for reasons that Professor Edmond 17 mentioned, you can't really rely on the defence to raise 18 all the objections, and you have to remember that the 19 burden is really on the proponent of the evidence to get 20 it in. 21 COMMISSIONER STEPHEN GOUDGE: Can I just 22 ask both of you, I mean, implicit, Gary, in the way you 23 set it up, is that scientific evidence is either reliable 24 or unreliable. If one assumed that the correct approach 25 was there's a gradation of reliability, where on that

1 spectrum does the needle have to get to in order for the 2 evidence to be admissible? 3 In other words, how reliable is reliable? 4 DR. GARY EDMOND: You know, that's the 5 difficult question, and that's for the legal system to 6 decide. I guess for me, I accept that there's a 7 gradation as well. It's just that you have to set a 8 standard, and that standard's going to be some kind of 9 bright line. 10 And what I put forward in the paper that 11 I've written is, of course, demonstrable reliability. I 12 think what the proponent needs to be able to do is to 13 refer back or to have an index back to whatever the 14 foundation is, so it just needs to be -- you have to look 15 at the foundation and whether that can support the kinds 16 of claims that are being made. 17 I don't know if we can say much more. 18 It's up for the judge to actually be satisfied. And I'm 19 just using kind of terms which aren't going to kind of 20 help you very much in some ways, to be satisfied that the 21 -- the underlying studies can support the kinds of claims 22 being made to the extent that it becomes more 23 speculative, that it's moving away from the underlying 24 studies, that other people in the field wouldn't be happy 25 with it, or a ran -- a whole range of considerations will

1 start to tear that away and make it so that it's not 2 sufficiently reliable to get into evidence. 3 COMMISSIONER STEPHEN GOUDGE: Okay. So 4 it's really a matter of judicial judgment that -- 5 DR. GARY EDMOND: Yep. 6 COMMISSIONER STEPHEN GOUDGE: -- at the 7 end of day, as to whether there is enough reliability to 8 warrant the fact finder, the jury -- 9 DR. GARY EDMOND: And I -- 10 COMMISSIONER STEPHEN GOUDGE: -- to 11 consider this? 12 DR. GARY EDMOND: That's right. And I'd 13 just be cautious, because one of the things we see, in my 14 jurisdiction, is that often judges will make an 15 assessment in relation to expert evidence as part of a 16 circumstantial case, and they will allow other pieces of 17 the case to support the evidence so we can have less 18 reliable expert evidence, because there's other evidence 19 against the accused. 20 And I think that's not the proper way to 21 approach it. I think the way to approach it is look at 22 the expert evidence independently. It kind of stands or 23 falls by itself based on whether it could sustain the 24 kinds of claims being made, because often what happens -- 25 and these things don't come out clearly at trial -- is

34
  1  that the -- the evidence is intimately related or the
  2  expert knew parts of the circumstantial case, and that
  3  background influenced their decision as well so they
  4  weren't really ever independent or corroborative in that
  5  independent way. 
  6                 COMMISSIONER STEPHEN GOUDGE:   It's a bit
  7  tricky though, isn't it, because if the threshold is set
  8  too high, doesn't that usurp the fact finders function to
  9  some degree?
 10                 DR. GARY EDMOND:   I think that's true,
 11  and that's the balance that needs to be made.  But the
 12  alternative is whether it's constitutionally appropriate
 13  to just expose to the fact finder, or expect lay juries
 14  to be able to decide between potentially unreliable
 15  evidence or evidence that you just don't know what the
 16  reliability is like at all.
 17                 So the alternative is, is it better to
 18  actually have a prophylactic and exclude evidence,
 19  especially when it has important systemic effects where
 20  the def -- the defence might not be well-resourced, where
 21  they might not have their own expert, where -- if you
 22  have a slightly higher standard than you have now, or an
 23  explicit liability standard, it may have -- it may impact
 24  upstream on the forensic science practitioner so that
 25  they know that they have to lift their game, otherwise

1 judges are going to kind of exclude their evidence. 2 It will have systemic effects which will 3 change the -- the balance -- the present I think, that's 4 right, but I think they're genuinely good and -- and they 5 don't make the juror, especially -- and if you value 6 juries, they don't make the jurors have to do incredible 7 or very, very difficult things. 8 COMMISSIONER STEPHEN GOUDGE: All right. 9 Erica B... 10 DR. ERICA BEECHER-MONAS: Yeah, I -- I -- 11 let -- let's focus on one (1) of what, I think, is the 12 troubling issues; for example, Shaken Baby Syndrome, 13 which to me is one (1) of these quintessential grey 14 areas. You have forensic pathologists who can identify, 15 for example, this triad that they've been talking about, 16 but the problem is that they then are permitted to -- to 17 give testimony about whether or not the baby was shaken, 18 or fell, or whatever the alternative is, which is beyond 19 the scope of their expertise. 20 So could a forensic pathologist say, Yes, 21 there are these three (3) things that I saw in the baby? 22 Sure, right, there's a basis for that. They saw it, they 23 -- they saw it and they can say that, you know, what -- 24 what they think this means. 25 But I -- I think the problem is that they

1 come -- what -- what's not happening is the forensic 2 pathologist is not explaining that there is an 3 alternative explanation that would account for all these 4 symptoms. Also, that, for example, many newborns have at 5 least one (1) of those and grow up to be quite healthy 6 children. 7 So, you know, that's one (1) of the grey 8 areas that's very difficult. And I think the important 9 thing for the judge is to have one (1) of these 10 evidentiary hearings and to hear the -- you're going to - 11 - probably going to have battling experts in that case, 12 right? One (1) is going to say, Well, there's this triad 13 and the other expert is going to say, Yes, but there 14 isn't enough basis for that triad to say that there is 15 shaken baby because there's all this other evidence out 16 there. 17 Now, do you let it in or out? I don't 18 know in the shaken baby cases. I sort of lean down -- 19 lean towards keeping it out. 20 COMMISSIONER STEPHEN GOUDGE: Yes, 21 implicit in the first part of your answer was the expert 22 that said triad is enough wouldn't get over the 23 reliability threshold -- 24 DR. ERICA BEECHER-MONAS: That's right. 25 COMMISSIONER STEPHEN GOUDGE: -- so there

1 wouldn't be contesting experts in that paradigm. 2 DR. ERICA BEECHER-MONAS: That's right. 3 COMMISSIONER STEPHEN GOUDGE: Does that 4 usurp the trier's function to some degree? 5 DR. ERICA BEECHER-MONAS: No, because 6 what -- what the expert is actually saying is 7 disingenuous because there is all this other evidence out 8 there that it's -- that triad is not necessarily a 9 symptom of the baby having been shaken. 10 11 CONTINUED BY MS. LINDA ROTHSTEIN: 12 MS. LINDA ROTHSTEIN: Justice Rosenberg, 13 your comments, reflections on the proposition of our 14 legal scholars that reliability should be used as a 15 admissibility condition for all forms of expert 16 scientific evidence, probably all expert evidence, but... 17 JUSTICE MARC ROSENBERG: Okay. Well, 18 this a really easy question. I mean obviously, we don't 19 want unreliable evidence in our Courts, whether it's 20 expert evidence or any other kind of evidence, but I 21 think there's a very profound problem or question imp -- 22 implicit in that, which is, well, and we sort of touched 23 on it, and which is how -- how reliable is reliable? 24 What's the test? 25 Do -- does the Supreme Court of Canada,

1 the US Supreme Court, or the other -- how the Courts give 2 us enough guidance to make that preliminary determination 3 about how much reli -- you know, how reliable? 4 So that's one (1) issue that I think we 5 need to explore, and maybe we can talk about that. There 6 are other competing policy considerations. It's -- court 7 time is precious and it's not trivial to talk about, you 8 know, how much time are we going to actually spend on a 9 voir dire at the beginning of a trial for no good reason, 10 so that's another reason. 11 And -- and so, you know, and the question 12 is, Well, what is no good reason, you know? When is it a 13 good reason to -- to hold it, and how do you deti -- 14 determine that ahead of time? 15 Thirdly, the question of resources; I 16 think it -- ideally, yes, the -- the prosecution should 17 be required to demonstrate the reliability of its 18 evidence, just as if it's trying to get in hearsay, it 19 has to demonstrate that it's reliable hearsay. 20 But if -- if you don't have an active 21 defence involved in that process, how are you actually 22 going to uncover that what appears to be quite reliable, 23 is not? And so there -- yes, there's a -- there's an 24 imbalance and you had a panel of defence counsel -- 25 including defence counsel and Crown that talked about

1 this problem, but more fundamentally, in this voir dire 2 do you -- does the defence have to have its own experts 3 so that they can, you know, listen to the Crown expert, 4 challenge him in -- so that -- to tell the defence 5 counsel what questions to ask, and then do they call 6 their own expert, and what are the resource implications 7 of all of that? 8 Now these are important questions, but I 9 guess what I'm saying is you -- you want to reserve it 10 for the right -- right case, and I'm not sure every case. 11 And, you know, we've all had lots of cases 12 where the forensic evidence actually didn't matter very 13 much in the case. You know, the issue was who did it, 14 not how was it done. And, so I -- even I'm sure Gary 15 wouldn't say well yes, we have to have a full blown voir 16 dire on that. I don't think, but -- 17 DR. GARY EDMOND: No, I -- I wouldn't. 18 And I think in practice, there won't be full blown voir 19 dires all the time, and in lots of -- lots of areas, 20 existing techniques will come through. But the -- one 21 (1) of the issues for this Inquiry is that where these 22 things weren't novel, and that have kind of been going 23 for a long time, there are still problems. And, so I 24 except all the kind of issues you raise as being 25 difficult, but I just think it should be there...

1 And I think the judges should be at least 2 willing, and I understand it's a very difficult thing, 3 but at times, upfront, as Erica said, be willing to 4 exclude things, even at times where they're not 5 satisfied, and the defence hasn't produced evidence at 6 all. 7 JUSTICE MARC ROSENBERG: Well I mean, I 8 think we -- we learn all the time. I mean, when the 9 Mohan test was first formulated, reliability was very 10 much in the background. 11 DR. GARY EDMOND: Yeah. 12 JUSTICE MARC ROSENBERG: But it didn't 13 take long for it to -- to come up and to its importance 14 to be elevated. So I think we're -- we're learning, 15 we're understanding, and we're seeing, and we're also 16 challenging even established areas of -- of science. I 17 just think it's a -- it's a huge problem in terms of, as 18 I said, trying to decide what's reliable enough. 19 DR. GARY EDMOND: Yeah. 20 JUSTICE MARC ROSENBERG: And what are the 21 framework, what are the guidelines we're going to give 22 judges to help them, because as I was saying yesterday 23 when we had our informal chat, the more I read, the more 24 concerned I get because all the things we were relying on 25 turns out well they're not very reliable either.

1 So, you know, the Daubert test looks great 2 on paper, but it turns out peer review isn't all that 3 it's cracked out to be, and so on, you know. So those 4 are my concerns. 5 MS. LINDA ROTHSTEIN: Mr. Lesage, how 6 realistic is it to expect a trial judge to per -- perform 7 a gatekeeping function on reliability without some 8 assistance from defence counsel, assuming it's the 9 Crown's scientific evidence that's at issue? 10 MR. PATRICK LESAGE: Well, I have a great 11 difficulty comprehending this issue, partly because, as 12 pointed out by the Commissioner, you know, reliability 13 really is the weighing of evidence that is for the fact 14 finder. And I'm assuming that these are jury trials, 15 and, so I'm not the fact finder. Somebody else is. 16 So I guess I would probably look at it, 17 and I -- I've no idea whether this is -- is the approach 18 or not, and I -- I try to look back and think what I did, 19 and -- and what rationale I may have been using 20 unknowingly. But I think that I look at -- I looked at 21 it this way: that the onus is on the person presenting 22 the opinion giver to satisfy, probably on balance, that 23 the area -- this -- the -- the field of science is a 24 reliable field. 25 And that's what the onus is -- is on the

1 presenter of the opinion giver; that the field is one (1) 2 that is reliable, that is subject to the giving of an 3 opinion on that, but not the opinion itself. The opinion 4 itself, I -- I do not want to then get into the issue of 5 reliability of the opinion. That is for the fact finder. 6 7 And, so it's a bit unlike the situation 8 with this -- when we started into this field of the 9 exceptions to hearsay. I liked it in the good old days 10 when hearsay was hearsay, and we didn't have to get into 11 all of the exceptions. But interestingly enough, I think 12 in the hearsay one, you're really questioning the weight 13 to be given to the evidence, as opposed to whether the 14 person should be permitted in the external circumstances 15 to -- the external circumstances such that it could be 16 reliable. 17 So I -- I think we have to separate 18 between the reliability -- going back to the science -- 19 the reliability of the field of science as opposed to the 20 reliability of the opinion that is going to be given by 21 the expert in that field. 22 And the latter, I would leave for the 23 jury; the former I would feel I had an obligation, as the 24 judge, to determine, and I think I would -- probably what 25 I did when I had those questions was probably apply a

1 balance of probabilities, but I'd never ever turn my mind 2 to it, as to what test scores. 3 COMMISSIONER STEPHEN GOUDGE: One (1) of 4 the things that has been a repeated refrain in -- in the 5 actual cases we've examined really speaks to what you've 6 commented on and it leaves a question for me, and that's 7 this: We heard a lot of evidence about errors being made 8 within the field called forensic pathology. Now at that 9 time, I suspect most people, most judges, would have 10 accepted almost without question that forensic pathology 11 was a legitimate science. 12 MR. PATRICK LESAGE: Mm-hm. 13 COMMISSIONER STEPHEN GOUDGE: It may be 14 that now that forensic pathology is moving towards a more 15 expressly evidence-based approach, questions could have 16 been raised back then about whether even the field was 17 one (1) worthy of scientific qualification, but let's 18 take as a given, that just because it was labelled 19 "forensic pathology", the field itself would have been 20 accepted. Within it, the opinions offered that 21 we've had to examine in the course of this Inquiry were 22 flawed, so that the distinction between accepting the 23 field as one (1) that had scientific validity and then 24 leaving to the fact finder the work done within it, in 25 the particular case, would not have worked to catch the

1 mistakes that we've had to look at. 2 MR. PATRICK LESAGE: Well -- 3 COMMISSIONER STEPHEN GOUDGE: Do you have 4 any comment on that because it's troubling for me? 5 MR. PATRICK LESAGE: Well, I think you -- 6 you have expressed what -- what I have done and what 7 other trial judges have done for years and years. I 8 think that we -- yeah, we get drawn into it and we say, 9 Oh, well, of course, he's a -- she is a medical doctor, 10 they're a pathologist, and oh, oh, they're a pediatric 11 forensic -- not that forensic really adds anything to it 12 -- but they're a pediatric pathologist, so they're -- of 13 course, we'll receive their opinion. 14 But maybe what it does is come back to the 15 earlier question that was asked of me that I didn't 16 answer until you refresh -- refreshed me on the -- of 17 what the question is, what exactly is the person going to 18 be testifying within the field of pathology. 19 And then you go back to Erica's comment 20 and you say, you know, is there a field, a recognized 21 field of science of Shaken Baby Syndrome, and you may be 22 a pathologist, but are you -- are you or -- or is anyone 23 else able to testify in -- 24 COMMISSIONER STEPHEN GOUDGE: Right. 25 MR. PATRICK LESAGE: -- that narrow field

1 within pathology. 2 COMMISSIONER STEPHEN GOUDGE: Right. 3 MR. PATRICK LESAGE: And so it goes back, 4 I think, to having a very clear -- very clear -- and -- 5 and don't think that I always -- that I always, or 6 probably very often, demanded this because particularly, 7 in medical fields, I accept, Well, you're a doctor, so of 8 course you can testify. 9 But if -- if you -- if I had applied the 10 rigged test of exactly what within the field, not only of 11 medicine, but within the field of pathology, it is that 12 you're going to be testifying about, and is this -- it's 13 the Shaken Baby Syndrome. 14 Well, you satisfy me that there is a field 15 of science that is the Shaken Baby Syndrome. So, again, 16 it -- the -- identifying the area, it's being very 17 specific and then satisfying yourself. 18 COMMISSIONER STEPHEN GOUDGE: Right. 19 MR. PATRICK LESAGE: I would say on 20 balance -- 21 COMMISSIONER STEPHEN GOUDGE: That's 22 helpful. 23 MR. PATRICK LESAGE: -- that it is 24 reliable. 25

1 CONTINUED BY MS. LINDA ROTHSTEIN: 2 MS. LINDA ROTHSTEIN: Professor Beecher- 3 Monas and then Professor Edmond. 4 DR. ERICA BEECHER-MONAS: Yeah, I -- I 5 think that it's important to draw a distinction between 6 the conclusion that the expert is drawing and the basis 7 for the conclusion. 8 I think the judge's gatekeeping 9 responsibilities are definitely involving probing the 10 basis for the conclusion. But you can have two (2) 11 experts who will both have firm basis for their opinion 12 and yet disagree. 13 So -- and -- and I agree with Patrick that 14 you know, at -- at the point, if you are -- if you, the 15 gatekeeper, are satisfied that there is a strong basis 16 for the conclusion, it then goes to the jury to decide 17 which of those two (2) conclusions is correct. That part 18 I agree with, but I think you need to make a distinction 19 between the conclusion and the basis for the conclusion. 20 If the basis is strong, if there is 21 empirical support for the -- not just -- for the Shaken 22 Baby Syndrome, for example, if you can demonstrate that 23 this -- this confluence of symptoms is indeed, you know, 24 indicative of a shaken baby which I don't think you can 25 but if you could, then it should come in. And you could

1 have another expert say, Yes but this one's -- this -- 2 this wasn't a shaken baby because, whatever their reason 3 is, as long as their reasoning is sound. 4 Also, you could have two (2) different 5 conclusions and those two (2) conclusions ought to go to 6 the jury. But the real question for the judge is, is 7 there a sound basis for the conclusion? 8 MR. GARRY EDMOND: You know -- 9 MS. LINDA ROTHSTEIN: Professor Edmond? 10 MR. GARRY EDMOND: -- in Australia, the 11 common law was -- one of the tests was the field. You 12 had to be an expert and you had to be an expert in a 13 field that was kind of recognized. 14 And I think one of the issues we feel just 15 in the way it's maybe been deployed -- I wouldn't 16 necessarily agree with -- disagree with everything you 17 said -- is that it moves around so it has -- so, 18 basically, often people will allow a -- a doctor to 19 testify because they're from a recognized field. And 20 then it's very hard to restrict in terms of the roamer 21 because they've got that imprimatur to come in and 22 testify about medicine. 23 You then narrowed it down that what is the 24 field -- there's a danger, too, in kind of what are the 25 parameters of particular fields. Is it medicine? Is it

1 forensic pathology? Is it forensic pediatric pathology? 2 What is it? 3 And there's been a danger in our 4 jurisdictions toward -- a tendency in our jurisdictions 5 to just allow someone in and then they can go once 6 they're in, but then it's very hard to manage that. 7 The other thing I think with fields which 8 is a problem in terms of getting away from whether the 9 evidence is reliable is what is the field and what 10 happens if there are people outside the field who 11 disagree with the validity or reliability of whole 12 fields? 13 Can you only get people that are inside 14 the field to come in and talk about it? Facial mapping, 15 voice identification mapping, maybe Erica's experience 16 with mode odontology; it's -- you can get people 17 disagreeing in a field that other people think is just 18 completely unreliable and can produce no reliable 19 evidence. 20 So they might disagree internally about 21 methods, interpretations, and then someone from a field - 22 - like an experimental psychologist might come in and 23 say, Well, you can't actually make identifications from 24 closed circuit television cameras in a reliable fashion. 25 Who's going to know about those? Who's going to even

1 allow them or think for those people to come in? 2 And so if you just limit on the -- 3 yourself to the field, you might blind yourself to the 4 more important and primary consideration which is always 5 going to be what's grounding or supporting. 6 MS. LINDA ROTHSTEIN: So if I hear you 7 correctly, Professor Edmond, you share Mr. Lesage's 8 concern that experts like to roam the fields? 9 MR. GARRY EDMOND: Well, I think -- I 10 think that that can be true. It's not true of all 11 experts. Some are -- 12 MS. LINDA ROTHSTEIN: Yes. 13 MR. GARRY EDMOND: -- very disciplined 14 and they may be more disciplined over time, as well. 15 MS. LINDA ROTHSTEIN: Yeah. So but -- 16 but seriously, Justice Rosenberg has asked an important 17 question, I think, of our legal scholars which is how one 18 goes about applying a liability criterion in a real case. 19 I am going to start with you, Professor 20 Edmond, because you've heard a lot of our evidence and 21 you know that one of our paradigmatic examples is, 22 indeed, the shaken baby controversy. And I'm -- I've 23 seen paragraph or page 43 of your paper and I see there 24 listed a lot of questions that I, as counsel, could use 25 in a voir dire setting, to challenge the expertise of the

1 proponent for the -- or the expert for the Crown who 2 argues that shaken baby syndrome is properly diagnosed on 3 the basis of the triad and nothing more. 4 And I get a number of answers from the 5 Crown expert along the lines of saying that, indeed, the 6 theory has been described and endorsed in the literature, 7 and that it has included consideration of -- of various 8 people with appropriate qualifications across a wide 9 range of countries in a variety of medical disciplines, 10 that there is a lot of substantial reference in the 11 literature to that theory, and it is not simply that 12 author's opinion, and that the publications have been in 13 peer reviewed journals and, indeed, there's a wealth of 14 them this high and we -- we have some publications about 15 that -- and that the theory has, indeed, been accepted 16 for a large number of years and, indeed, is only being 17 challenged at the edges of the theory and very belatedly. 18 It is not simply the expert's personal opinion, and it is 19 part of that expert's field of specialization; they've 20 studied it, they've, in fact, spent a lot of their 21 research hours trying to determine exactly the way one 22 would improve the diagnosis of retinal hemorrhages, for 23 example. 24 And I go through that list and at the end 25 of it, from my perspective as defence counsel, I've got

1 an awful lot of yeses to the questions that you ask and 2 I'm wondering if I have any chance at all of persuading 3 the trier of fact that this evidence doesn't meet the 4 reliability criterion. 5 MR. GARRY EDMOND: The trier or the 6 adjudicator of -- 7 MS. LINDA ROTHSTEIN: Or the adjudicator 8 on the voir dire, sorry. The trial judge on the voir 9 dire. 10 DR. GARY EDMOND: Yeah, I should just 11 premisses by saying that I don't think I'm familiar 12 enough with the medical evidence -- 13 MS. LINDA ROTHSTEIN: Yes. 14 DR. GARY EDMOND: -- to make a 15 substantial comment in that area. Yeah, maybe -- and -- 16 and I'm not suggesting that no expert evidence should 17 come in. I mean, once it starts to -- once you start to 18 be satisfied of having a basis and the kinds of 19 considerations you were suggesting, that, you know, it's 20 been published, and published in substantial ways, it's 21 been discussed at meetings, and it seems like, if you use 22 this as a heuristic that -- and this wouldn't be my 23 determining heuristic -- but there are also things like 24 there's wide spread acceptance amongst the kind of 25 professional trained group of individuals, then maybe

1 you're going to let it in. 2 And maybe that -- they're the kinds of 3 cases that do go to the fact finder to resolve. I'm not 4 suggesting that scientific disagreement should be taken 5 from the fact finder completely. I think often 6 scientific disagreement should be resolved by the fact 7 finder, but it just has to meet the threshold, which is 8 difficult to identify where that should be placed. 9 And those kinds of considerations which 10 are in my report are the kinds of considerations which 11 might be helpful to decide whether this would meet that 12 threshold. I -- apart from particular cases it's very 13 hard to describe what that's going to be in the abstract. 14 I don't know if I can be more helpful than 15 that. And maybe judges will need to, and appellate 16 courts will need to be more prescriptive and try and 17 refine that in some ways, so it's maybe the case. 18 COMMISSIONER STEPHEN GOUDGE: It's hard 19 to get a more precise handle on it though, Gary. I mean 20 the -- 21 DR. GARY EDMOND: Yeah. 22 COMMISSIONER STEPHEN GOUDGE: -- great 23 temptation, I suspect, of all of us judges faced with a 24 list like that is to say, Well, there are twenty (20) 25 criteria, if you get eleven (11) out of twenty (20)

1 you're there, if you get nine (9) out of twenty (20) 2 you're not there. 3 And that's not, I take it, why you prepare 4 the list nor how you would see it being applied? 5 DR. GARY EDMOND: That's right. I think 6 -- well in the report I definitely put down as the -- and 7 I reiterate this several times, that the most important 8 of those is some kind of empirical validation, some kind 9 of studies that have actually come -- suggested that 10 there's support for the kinds of claims being made, or 11 for the tech -- the reliability of the techniques being 12 used. 13 That's more important than whether there 14 was peer review by -- by someone, or a range of other 15 considerations. I think -- or whether it's accepted. I 16 mean, if there been a -- a series of studies, which seem 17 to be kind of sound, and this may be kind of ret -- 18 generate room for controversy even if it goes against the 19 majority position in a field, then that may be enough to 20 get in, and maybe that's the kind of debate you want to 21 have in court. 22 COMMISSIONER STEPHEN GOUDGE: Not a 23 prerequisite that there be studies I take it though, but 24 simply a preferred validator -- 25 DR. GARY EDMOND: I would like to see

1 that there's a -- 2 COMMISSIONER STEPHEN GOUDGE: -- in 3 forensic pathology. I mean, getting control groups for 4 these kinds of things is not easy. 5 DR. GARY EDMOND: That's right, but I 6 guess in -- in some areas, and I guess my report is not 7 just limited to forensic pathology -- 8 COMMISSIONER STEPHEN GOUDGE: No, no. 9 DR. GARY EDMOND: -- it's -- I'm talking 10 a little bit more widely, that the alternative is you're 11 bringing in an expert who is from a field that's 12 recognized or -- by the court, and they're able to just 13 give their opinion, their specu -- and maybe speculation 14 and maybe that opinion has no foundation at all. That's 15 the alternative. 16 And so I'm kind of always coming back to, 17 what are -- and Erica does this as well, I think, what 18 are some of the considerations that you might make so 19 that someone's not just giving their bare opinion as 20 evidence. I mean, part of it will -- part of any opinion 21 will undoubtedly be interpretive, but it's what's that 22 founded upon? 23 That -- I think that's the primary 24 consideration all the time: going back to the foundation 25 or the basis of this opinion.

1 CONTINUED BY MS. LINDA ROTHSTEIN: 2 MS. LINDA ROTHSTEIN: Professor Beecher- 3 Monas, I don't know if it's the same in the States, but 4 lawyers in Canada like three (3) part and five (5) part 5 tests. Can you assist us along those lines? 6 DR. ERICA BEECHER-MONAS: Yeah, I -- 7 MS. LINDA ROTHSTEIN: Three (3) 8 preferably, but five (5) is fine -- 9 DR. ERICA BEECHER-MONAS: I actually have 10 a five (5) part -- a five (5) part heuristic. And I -- I 11 think Gary's questions are helpful and thought provoking 12 and I think they should be asked, and I think it's 13 helpful to have them out there, to think about the area. 14 But basically the question of 15 admissibility is a question of logic. And so how does 16 one apply logic to this question of scientific evidence, 17 or expert evidence in general, not just what we call, you 18 know, scientific? I'm including things like engineering 19 and even the -- the gang expert testimony. What is it 20 that we need to be thinking about? 21 And I say there are five (5) things. 22 First of all you need to think about what's the 23 underlying theory. What is the theory that the expert is 24 propounding? 25 For example, in bite mark evidence, the

1 underlying theory is that people have unique dentition, 2 and that marks -- that people can use that unique 3 dentition to make marks on human skin that will later be 4 identifiable and can be traced back to the person that 5 made them. That's the theory. 6 The next question is: Okay, if that's the 7 theory, what's the empirical data that support that 8 theory? 9 Well, for the bite mark evidence, it's 10 pretty poor, right, that we don't have much because there 11 hasn't been testing. So, okay, well, what do you do with 12 that fact? There hasn't been testing of this particular 13 field. Why is that? That has to raise questions in your 14 mind. What are the assumptions that this theory is 15 employing? 16 Right. Are we, you know -- can -- can we 17 -- can -- what's the basis for assuming that each person 18 has unique dentition? Well, one (1) of the assumptions 19 is nature never repeats. Well, what -- what empirical 20 basis do we have for that? In fact, we have a lot of 21 empirical basis for the fact that that's not true. 22 There are often things that are very 23 similar among people. And -- and so one questions the 24 theory. You have to look at the data that supports the 25 theory. Then you have to look at the assumptions that go

1 behind the way the theory approaches the data and think 2 about the methodology. 3 In the bite mark cases, for example, where 4 are the possibilities of distortion? Well, you make a 5 mould of the -- of the suspect's teeth and you see 6 whether they match up to the marks on the victim. Where 7 in the process are distortions possible? 8 What's the methodology? What are the 9 controls that -- that are -- that -- that make this 10 reliable evidence? And then it's up to the judge to put 11 all these things together in what I call a probabilistic 12 assessment. That is, you have to actually think about 13 them and decide whether there is enough of a basis for 14 this expert to testify about this -- about this 15 particular conclusion. 16 MS. LINDA ROTHSTEIN: And you determine 17 that on the balance of probabilities at the voir dire? 18 DR. ERICA BEECHER-MONAS: Yeah, at the 19 preliminary, right. 20 MS. LINDA ROTHSTEIN: Yeah. 21 DR. ERICA BEECHER-MONAS: I would say at 22 the preliminary hearing, preferably. 23 MS. LINDA ROTHSTEIN: Okay. 24 DR. ERICA BEECHER-MONAS: And -- and it 25 is an exercise in judgment. And the judge, I think, is

1 well-qualified because they are trained in critical 2 thinking. And maybe they're not trained in critical 3 thinking about scientific evidence, but they certainly 4 are well-trained in being sceptics. 5 MS. LINDA ROTHSTEIN: Okay. 6 COMMISSIONER STEPHEN GOUDGE: How is the 7 judge to know when there is enough reliability? 8 DR. ERICA BEECHER-MONAS: That's an 9 excellent question. And it depends, of course, upon the 10 field. Let's talk about bite mark evidence, right. Just 11 because I'm -- I -- I'm writing about that right now and 12 I'm appalled at -- at -- at what comes in as science, but 13 -- but you could use it for -- for many of these subjects 14 that we're -- that we're talking about. 15 You know, what -- what is -- what -- how - 16 - how do you decide whether there is enough for the 17 proponent of the evidence to -- to get it in? Well, I 18 think you have to look at all of these five (5) factors. 19 In my opinion, bite mark evidence should not be coming 20 in. Now, are there cases in which it might be useful? 21 Yes, but I am not -- but -- but not in the 22 way that it's generally used. So certainly if you have a 23 mark that can exclude somebody, for example, maybe that - 24 - maybe that would be helpful. But to say that you could 25 use it as identification, I think is troubling.

1 COMMISSIONER STEPHEN GOUDGE: Thank you. 2 3 CONTINUED BY MS. LINDA ROTHSTEIN: 4 MS. LINDA ROTHSTEIN: Justice Rosenberg, 5 any comments now that are legal scholars have fleshed out 6 their proposition? 7 JUSTICE MARC ROSENBERG: Well, I mean, I 8 think we've all learned a lot about the importance of 9 some kind of empirical validation of the -- the opinions, 10 and I guess we -- in the past, maybe we haven't been 11 rigorous enough in -- in looking for that empirical 12 validation. 13 I think what we always -- the response 14 that we used to get, and maybe we will still get, is, 15 Well, ethical considerations prevent us from doing the 16 kind of experiments you want us to do. We can't just 17 drop people off buildings and see what happens. 18 And -- you know, so what -- so what's the 19 -- what's the science or what -- what is the area of 20 science that will help us figure that out? And so that's 21 -- that's a hard question. Let me just make a comment, 22 though, something that Erica said about, well, you know 23 you rely on logic, and sort of in behind that, is common 24 sense. 25 But the trouble in -- in the field of

1 expert evidence is the very reason that we look to expert 2 evidence is because we think our common sense is going to 3 betray us, that we may not actually understand the way 4 the world works. And that's why we want the experts in. 5 And so that's why it's so hard for judges, 6 or for anybody, because we're being asked to look at an 7 entirely different field where our ordinary views of what 8 is common sense and what is logic may not help us as much 9 as we hope. 10 So what we do need to do is know what the 11 questions are to ask, and if the lawyers aren't asking 12 them, to prod them to ensure that they do ask those 13 questions so that we do get underneath some of these. 14 So obviously nobody's going to be able to 15 come up with a four (4), five (5), twenty (20) part test 16 and say, If you check off ten (10), you've got it, but -- 17 but I think if we develop, at least, the -- the proper 18 approach to expert evidence and the approach to, you 19 know, what are the kinds of questions we should be 20 asking, then I think, at least, even if we don't get it 21 out at the gatekeeper stage, we may at least expose the 22 frailties or the concerns about the -- the science. 23 You know, until recently we wouldn't have 24 known to ask some of these questions about SIDS or bite 25 mark evidence. They're -- one (1) of our most famous

1 cases in Canada, a big charter case, Stillman, as I 2 recall, bite mark evidence was the hallmark of the case 3 and I don't recall anyone saying, Well, jeez, how did 4 that get in, you know. It was all about, you know, the 5 charter issues, not what is the science there, so we're 6 learning all the time. 7 I guess I keep saying that, don't I? 8 MS. LINDA ROTHSTEIN: And -- and Mr. 9 LeSage, do you have any comments at this stage about what 10 our legal scholars have suggested is the way of dealing 11 with the reliability of -- of expert evidence that goes 12 beyond the pure novel science evidence? 13 MR. PATRICK LESAGE: I'm not sure I do. 14 I -- I do, however, want to comment on -- on Erica's 15 comments about, you know, let's not make it a ritualistic 16 test, you know, of going through step 1, 2, 3, 4. I -- I 17 find that is so unhelpful because what it does is, is 18 force us, as trial judges, to make sure we go through 19 this game of snakes and ladders, you know, over here to 20 the left and then two (2) to the right, and have I 21 covered this step and have I covered this step? 22 And we forget about what we're supposed to 23 be doing, which is exactly what Erica said, and that is 24 applying fundamental principles of relevance; probity 25 versus prejudice; is -- is it -- is it logic?

1 Now, I realize, and I, like Erica, always 2 use that expression that evidence is a -- is an exercise 3 in logic, and -- and it is. But I also then recall a 4 judgment of Justice L'Heureux-Dube and she -- she said, 5 Yeah, that's -- that's right, but remember that logic is 6 based on experience and so our experiences are different, 7 and that's why our logic is somewhat different, and then 8 particularly, when we're dealing with expertise. 9 But all I would say to Justice Rosenberg 10 and his colleagues on the Court of Appeal, don't give us 11 some ritualistic steps to go through. You know, tell us 12 the logic -- te -- tell us what we should be looking at. 13 And I say "we", I'm using that in the term as a former 14 trial judge. 15 MS. LINDA ROTHSTEIN: Yeah. 16 MR. PATRICK LESAGE: Thank you. 17 COMMISSIONER STEPHEN GOUDGE: Can I just 18 ask the two (2) academics to comment on Marc's point 19 which for me resonates, and that is the very reason we're 20 into expert evidence is that this a realm that ordinary 21 common sense doesn't reach, and part of both your 22 prescriptions for this involves, in a sense, the 23 application of judicial common sense to the assessment of 24 reliability where it's, you know, in the areas where 25 they're there because common sense doesn't speak the

1 truth to us. 2 DR. ERICA BEECHER-MONAS: But I disagree 3 with that. I think that science is common sense, just 4 more careful; that -- that, you know, science isn't 5 magic. Science is logic just as law is logic. 6 Now, is logic about different things? 7 Scientists look for explanations about how the world 8 works, and in a trial we're looking for what happened, 9 right? They're -- they're sort of different inquiries. 10 But I don't think -- I think part of the problem is a 11 lack of familiarity with what it is that scientists are 12 trying to do and the sort of reification of science. 13 Science -- scientific logic is logic. And 14 yes, maybe sometimes they use statistics, and numbers, 15 and product rules, but, you know, it doesn't take a lot 16 of familiarity with, for example, the product rule, to 17 realize that in order -- the product rule is where, you 18 know, you get this bite mark testimony, and the -- the 19 expert testifies that there's a 1 in 4 billion chance 20 that these two (2) would match if it was just 21 coincidence. 22 Where does that product rule come in? 23 Well, it -- it relies on certain assumptions, right? It 24 assumes that, you know, each person has thirty-two (32) 25 teeth, each tooth has five (5) facets, therefore you

1 multiply this out, like you put in some number of 2 different possibilities for arches. You're assuming that 3 they're all independent. You multiply them together, and 4 you come out with 1 in 4 billion, right? 5 That's -- it -- it doesn't take much to 6 understand the fallacy of that reasoning. It's common 7 sense. But does it require some familiarity to know what 8 the heck the product rule is? Sure. Right. And what 9 it's based on? Yes. 10 It does require familiarity with some 11 basic concepts, but I don't think the reasoning is 12 different in science and law. 13 COMMISSIONER STEPHEN GOUDGE: Well, let 14 me give an example from many of the cases we have heard, 15 Erica. 16 There was in the '90s considerable debate 17 about whether short household falls could cause disparate 18 injury in infants, okay, and the conventional wisdom was 19 no, it could not. 20 An expert who comes along to try to cut 21 that apart, and to say yes, indeed, household -- small 22 household falls can cause lethal injury, might be met 23 with a judge applying his or her own commonsense to say 24 well I have had kids, they fall all the time, and nobody 25 ever -- in the house -- and nobody ever had a lethal

1 injury. 2 So, you know, the very reason for the 3 expert is to provide a window on a world that ordinary 4 commonsense doesn't reach. And the judge applying 5 commonsense to the reasoning process might well find the 6 evidence which we now know to be valid, based on testing 7 and so on, to be unreliable? 8 DR. ERICA BEECHER-MONAS: Yeah. You make 9 a couple of very important points. One (1) of them is 10 that science changes, and what we know about how the 11 world works changes over time and yes, judges have to 12 adapt to that. And that's difficult because that means 13 that those cases like twenty (20) years ago, where you 14 found that there was, you know, very little possibility 15 that this -- that this baby just fell off the table, that 16 it had to be shaken, right? We now have data that show 17 well it could have just fallen off the table, right. 18 That's difficult for judges. I understand 19 that, because it means that information you thought was 20 accurate is no longer accurate. 21 COMMISSIONER STEPHEN GOUDGE: And it is 22 contrary to your own commonsense of having had children. 23 DR. ERICA BEECHER-MONAS: That's right, 24 but that's why we -- I keep emphasizing the empirical 25 studies are very important. Evidence based medicine is

1 the wave of the future and I think that includes 2 pathology. I think we know now that there are -- maybe 3 not -- maybe it's only ten (10) out of -- out of a 4 hundred (100) cases in which a -- a baby has fallen, and 5 -- and shown the same kinds of syn -- of symptoms as 6 Shaken Baby Syndrome once was thought to have. 7 You know, but -- but evidence accumulates. 8 For example, we know find, as -- as we were talking about 9 earlier -- that -- that one (1) of the symptoms of Shaken 10 Baby Syndrome is fairly common in neonates: the -- the 11 retinal hemorrhaging. So -- and that grow up to be 12 healthy, right. 13 So -- so science -- the way science works 14 is it continually adds information, and I think that's 15 hard for judges to accept, but I think it's important to 16 understand that. 17 DR. GARY EDMOND: This is a -- a place 18 where Monica (sic) and I may disagree a little bit. 19 I -- I agree with Justice Rosenberg in the 20 sense that I -- I think that often, or -- and I think it 21 may -- maybe this is semantic at some level. I think 22 it's because of commonsense assumptions that often you 23 want experts to come in and challenge them, or reinforce 24 them, or do whatever they're going to do. 25 Identification evidence is probably a good

1 one (1) there, where people think that if they're 2 violently assaulted, they'll remember the person. It'll 3 be imprinted upon them. The identification evidence 4 seems to be that that's less likely to happen and that's 5 probably counterintuitive to lots of people. 6 In terms of asking judges to think more 7 critically, or be more sceptical, or think harder, I 8 think is the terminology that's gone on in this Inquiry, 9 I'll just put that forward as a prescription, I'm 10 sceptical about judicial scepticism. And most of the 11 studies -- most of the studies I've seen, whether they're 12 scientists who reportedly have norms of scepticism, or 13 whether they're journalists, or whether they're judges, 14 they're not particularly sceptical about a whole range of 15 things at all. 16 They take lots of things for granted. 17 They're more likely to be sceptical of other people's 18 opinions than their own. Like they have all the same 19 sort of traits that most people have. 20 And so I guess I'm encouraging judges to 21 look at things more critically and look for the certain 22 things when they're looking at evidence, and I think they 23 need experts to help them in a whole range of areas, as 24 well. 25 So -- and I agree -- I don't know if kind

1 of recourse to things like logic are -- are going to be 2 too helpful, although I understand you've got, you know, 3 a certain sype -- type of format which is okay, and I 4 agree with Mr. LeSage on that level, that people have 5 different kinds of logics and will approach things in 6 different ways. And I'm not sure they'll all come to same 7 way and I'm not sure that scientific logic is in any way 8 kind of unified, although maybe the consensus is achieved 9 in the long run. 10 MS. LINDA ROTHSTEIN: Yes? 11 JUSTICE MARC ROSENBERG: Can I just come 12 to Erica's defence a little bit, because I -- I think 13 I've kind of started this. I'm feeling guilty. 14 And I -- I mean I think there -- there's 15 kind of two (2) things that experts can do, they can not 16 only, you know, show us the empirical research that 17 validates the -- the proposition, but if they can go 18 behind that and explain why the proposition, even though 19 it's counterintuitive, makes sense, then that's the kind 20 of logic I think you're talking about. 21 And -- and maybe we're not demanding 22 enough of experts to make them explain to us why is it 23 that should -- to give the trivial example, that a victim 24 of -- of an assault will have trouble remembering the 25 face of the intruder because they're looking at the gun.

1 Well, once you explain it everybody understands, you 2 know. 3 And so if you can do that in the easy 4 cases, if you can do it in the hard cases, then I guess 5 the logic starts to -- to work and the commonsense starts 6 to kick in, but maybe we just haven't been demanding 7 enough of our experts in making sure that they do 8 explain. 9 It's one (1) thing to say it should be 10 evidence based, but, you know, how does the evidence 11 explain the way the world is working in this particular 12 case. 13 MS. LINDA ROTHSTEIN: Commissioner, is 14 that right time for our morning break? 15 COMMISSIONER STEPHEN GOUDGE: Sure, why 16 don't we adjourn then for fifteen (15) minutes. 17 18 --- Upon recessing at 10:50 a.m. 19 --- Upon resuming at 11:07 a.m. 20 21 COMMISSIONER STEPHEN GOUDGE: Please sit 22 down. 23 Ms. Rothstein...? 24 25 CONTINUED BY MS. LINDA ROTHSTEIN:

1 MS. LINDA ROTHSTEIN: Thank you, 2 Commissioner. Just before we leave the reliability 3 criterion and the way it might be used to perform a gate 4 keeping function may I start with you, Professor Edmond, 5 and ask for your views on whether it could be used after 6 the evidence is heard so that there is no voir dire, such 7 that the trial Judge really directs the trier of fact, 8 assume the jury, that they cannot use this evidence 9 because it is inherently unreliable. 10 DR. GARY EDMOND: Perhaps in the absence 11 of other types of protections that's desirable, and maybe 12 even if -- if it gets in that's desirable. But I must 13 say I think most of the emphasis should be placed 14 upfront. 15 I think there so many kind of systemic 16 problems with allowing the evidence in and then trying to 17 correct it by allowing rebuttal experts, cross- 18 examination, directions, and warnings, it seems that they 19 either don't work at all or work in a very inconsistent 20 way, even in -- when combined, so that although appellate 21 courts often rely upon these and trial Judges rely upon 22 these, I mean, a reason for allowing evidence in, I don't 23 they're a good reason for doing it and I think once it's 24 in, the genie's out of the bottle. 25 It well be that a Judge can actually kind

1 of impose their will upon the fact finder in that way, 2 but most of the studies that I've seen on the impact of 3 directions suggest that they have very little effect or 4 an inconsistent effect. 5 MS. LINDA ROTHSTEIN: And, Mr. LeSage, do 6 you care to comment on that? 7 MR. PATRICK LESAGE: Well, I'm not sure I 8 agree about the cautions that you give to jurors. When I 9 practised many decades ago we were permitted -- it was 10 tolerated for counsel to speak to jurors, and I have 11 always been very impressed with the manner in which 12 jurors did follow the instructions of the -- of the 13 Judge. 14 Having said that, is it there in your 15 subconscious, even if you -- if you have the very strong 16 direction? 17 I -- the second part of it I really -- I 18 will be totally inconsistent in -- in what I'm going to 19 say now, and that is that -- that I have slavishly tried 20 never to allow my view to be known by the jury. In fact 21 I always said if you think I am giving you some 22 suggestion or hint in a certain area, I'm not. You've 23 misunderstood me because I will not give you any 24 direction. 25 Having said that, I really think that

1 judges should be permitted, if you determine having heard 2 all the evidence that it is so unreliable, that you 3 should be able to simply say, I -- I'm withdrawing it 4 from your consideration. 5 And that's something we can't do. At 6 least as far as I know we -- we can't do in -- in Canada. 7 But I -- I think we probably should be allowed. 8 COMMISSIONER STEPHEN GOUDGE: It would be 9 acceptable to tell the jury that they ought to treat it 10 very carefully because in the judge's view it was 11 unreliable? 12 MR. PATRICK LESAGE: Well, you see, I 13 think then you're falling into the trap that I don't want 14 to fall into, and that is to give them my -- my view. I 15 would rather say in a legal sense, you cannot -- 16 COMMISSIONER STEPHEN GOUDGE: Okay. 17 MR. PATRICK LESAGE: -- consider this 18 because I don't like the idea, even though it is still 19 permissible in Canada, except maybe in Quebec, for a 20 judge to express their view to the jury. And I -- I 21 disagree with that. But I think if you just say it, As a 22 legal proposition, you may not consider it. 23 Now, maybe I'm saying the same thing in a 24 different way, but -- but I don't like trying to be 25 subtle. The rolling of the eyes is not something I do

1 well. 2 DR. GARY EDMOND: There is, I guess -- 3 this is why I think it's so important, this prophylactic 4 -- I mean, there is also discretion for a judge to 5 exclude evidence on the basis of pro -- probity value, 6 prejudicial effect. And that may, I assume, happen 7 retrospectively as well, if the unfortunate cause of 8 events turns out -- that evidence has been admitted turns 9 out to not have the kind of basis that you might expect, 10 a judge might ask the jury to disregard it. 11 It's just -- my understanding from -- from 12 studies is that it's -- it's -- well, it's impossible for 13 -- for fact finders to eradicate that in a meaningful 14 way. And often it just means that they know more about 15 people's opinions, maybe the kind of prosecution approach 16 to this evidence, or what -- what the expert just 17 personally believes having seen things which they may not 18 be exposed to. 19 And so it just informs them, even in what 20 -- even if they've been told not to be informed by it. 21 And I don't think they can help but be informed by it, so 22 that's the danger. 23 24 CONTINUED BY MS. LINDA ROTHSTEIN: 25 MS. LINDA ROTHSTEIN: Justice Rosenberg,

1 you care to weigh in on this issue? 2 JUSTICE MARC ROSENBERG: Well, yeah -- 3 no, I -- just very briefly. I'm actually, you know, a 4 little sceptical of some of those studies that you rely 5 on because, you know, what is the methodology. Is -- is 6 there a difference between, you know, these mock juries 7 as opposed to real juries, and of course, in Canada 8 unfortunately we can't do that. 9 We're not -- we can't ask real juries what 10 they -- what they did. So, you know, if it -- if the 11 stakes aren't high enough, how -- do we know how -- 12 whether they do it. But the other thing, I -- I think, 13 is that it's -- just saying to a jury, ignore that 14 evidence, I've decided it is inadmissible, is not very 15 helpful. 16 It goes back to what I've said earlier in 17 a different context. And if you explain to the jury, 18 Well, the reason why you have to ignore that evidence is 19 "X", and if you give them a very good reason for it and 20 you give them the logic and the common sense as to why 21 it's not reliable, then I think you may be -- in those 22 circumstances, we can have a little bit more faith in -- 23 in that they will follow it. 24 Obviously, as Gary says, let's just do it 25 at the front-end.

1 MS. LINDA ROTHSTEIN: Right. 2 JUSTICE MARC ROSENBERG: And in -- in the 3 most egregious cases, there may have to be a mistrial, 4 which is always one (1) of the tools that's there for a 5 judge. But after you've gone through a six (6) month 6 trial, that's a hard step to take. 7 COMMISSIONER STEPHEN GOUDGE: Yes, right. 8 9 JUSTICE MARC ROSENBERG: It's a fact well 10 known. 11 12 CONTINUED BY MS. LINDA ROTHSTEIN: 13 MS. LINDA ROTHSTEIN: Okay. So related 14 issue for you, Mr. LeSage, which is -- really follows 15 from again some of the evidence we've heard which shows a 16 lot of dogmatism by expert witnesses, a lot of 17 overstatement of opinion that hasn't necessarily been 18 caught entirely by cross-examination. 19 And it's time to sum up for the jury, and 20 you do have this very, very -- let's call him -- iconic 21 witness who's testified for the Crown and whose evidence 22 is critical to the Crown's case. What is the role of the 23 trial judge in relation to that evidence? 24 MR. PATRICK LESAGE: Well, I -- I think I 25 go back to my earlier comment that I -- I really -- I'm

1 really troubled about commenting on the veracity of a 2 witness. You know, and I -- it -- I harken back a bit to 3 a -- to the Sophonow case. 4 And in the second Sophonow trial -- 5 perhaps the third, I've forgotten -- the trial judge made 6 comments that I thought were exceedingly unfortunate. 7 And in referring to the witness, who really said that 8 Sophonow wasn't there, and the witness, when pressed, 9 said that she was dead sure that the witness wasn't there 10 -- that, I'm sorry, that Sophonow wasn't there or that 11 the person who committed the crime was not Sophonow. 12 And -- and which we, of course, know now, 13 it was not Sophonow. But the trial judge really didn't 14 like her evidence; it's very apparent. And he kept 15 referring to her -- kept referring to her -- he referred 16 to her, on more than one (1) occasion, in his jury charge 17 as the "dead sure" witness. 18 Well, he was reflecting his view of her 19 veracity. Turned out she was correct. But he -- he was 20 indirectly, you know, disparaging -- maybe not even 21 indirectly -- her -- her evidence. And it's an example 22 of why judges have to be very, very careful and should 23 keep their nose out of the weighing process. 24 And -- and perhaps it's because of that, 25 that I would feel more comfortable in saying, It's a

1 matter of law. I mean, we do it in -- when we say there 2 is no evidence upon -- on count number 2 or whatever, 3 there's no evidence of first degree murder so I'm taking 4 that from you. 5 I -- I sort of think that maybe we should 6 be permitted, in a -- in a situation, to be able to say, 7 this evidence is so coldly unreliable that I'm taking it 8 from you and you may not consider it. 9 And I -- I think, and it might even be 10 said that even after the section came into the Criminal 11 Code prohibiting dialogue with jurors, that my ears have 12 heard things that jurors have said to me that caused me 13 to think that jurors really abide by admonitions and 14 abide by -- and particularly by an instruction that 15 evidence is removed. 16 MS. LINDA ROTHSTEIN: Professor Beecher- 17 Monas, any comments on these issues? 18 DR. ERICA BEECHER-MONAS: Yeah, I think 19 it's kind of interesting, the Capital Juror Project in 20 the United States, where you're permitted to -- 21 researchers have been permitted to interview capital 22 jurors after -- after they've come to a decision. 23 There have been a number of studies that 24 show that they would like clearer instructions, that they 25 find judge's instructions often very confusing. And so

1 they -- they -- they would appreciate clearer 2 instructions. So I -- I don't know how much they would 3 pay attention to them. 4 I -- I do think there's a problem of 5 unringing the bell once people have heard information. 6 It's hard to disregard it, even subconsciously. But, 7 certainly, judges feel free to tell if a witness, you 8 know, over objection answers a question that the judge 9 then sustains the objection to, the -- the jury certainly 10 is instructed to disregard that answer. Whether they do 11 or not is another question, but -- but I think it's 12 certainly within the judge's province. 13 But I would have to say, I think it should 14 be an extremely rare occasion where the judge takes the 15 expert evidence completely out. Now maybe it would -- 16 you could say, Well, I will -- you can only consider 17 manslaughter because the evidence isn't there for first 18 degree murder. That -- that makes more sense to me. And 19 I think they would be more capable of doing that. 20 But if you had evidence about Shaken Baby 21 Syndrome, it's going to be very hard for them to 22 disregard that, I think. 23 MS. LINDA ROTHSTEIN: Over to you, 24 Professor Edmond. You know that we've heard from many of 25 the experts who have testified here, the forensic

1 experts, if not all of them, that they would welcome an 2 opportunity to remove a little bit of the adversarial 3 nature of the adversarial proceedings and welcome 4 opportunities to meet with opposing experts, to exchange 5 views with opposing experts, to have that kind of 6 presumably more candid exchange of views. 7 What has Australia done in this area, if 8 you could sketch out the kind of steps it's taken to 9 develop this notion of concurrent evidence and so on, and 10 what are your views about those steps? 11 DR. GARY EDMOND: Okay, I'll just give a 12 brief account of what's taken place in Australia. And 13 some of this has been drawn -- drawn -- or some of it's 14 drawn on English developments, and I think the English 15 have drawn on some of our developments subsequently, as 16 well, particularly in relation to concurrent evidence. 17 So in civil litigation, in Australia, now 18 judges encourage, and some of it is stipulated so it's 19 become mandatory, for experts to meet prior to litigation 20 to try and produce a joint report where they narrow the 21 points of disagreement and explain the points -- explain 22 the points where they remain at loggerheads or in 23 disagreement. 24 That meeting will usually be in the 25 absence of counsel. So the experts will just get

1 together and meet. That joint report will then 2 potentially go in as evidence and be relied upon in the 3 trial, or in the hearing, or tribunal. This happens in 4 civil Courts, land and environment Courts, tribunals, and 5 to some extent the Australian Federal Court. 6 At trial, what often happens is that the 7 experts also give testimony concurrently, so in -- in a 8 panel not unlike this kind situation or setup you see 9 here today. 10 And that can happen in a range of ways. 11 Sometimes because there's no juries in these cases, it's 12 driven very conspicuously by the judge, or the tribunal 13 member, and at other times, counsel dominate. So it 14 depends a lot on the -- the personalities of the 15 individuals involved. 16 Usually what will happen is that people 17 will introduce themselves, the experts will introduce 18 themselves, and they'll give their kind of opinions on 19 the matters at issue, and then they'll be asked questions 20 by the judge usually. They'll be able to comment on each 21 other in real time and then counsel will be given 22 opportunities to cross-examine. 23 And I think it's fair to say that that 24 seems to work quite well in the setting. It seems to 25 potentially save some time, although some of this is yet

1 to be developed through empirical work on the -- on the 2 matter. And lots of experts like that particular 3 procedure and they like giving evidence together, but not 4 everyone. 5 And I think -- so I think there's a kind 6 of communication, or a way of presenting evidence, and 7 seeing the interaction between experts. It's not a bad 8 process for civil trials. Whether you'd want to allow it 9 in a criminal trial this kind of thing to go on, and 10 whether you could manage it effectively, are issues that 11 would have to be considered. 12 I think it would be very difficult maybe 13 to stop experts, especially if you're concerned about the 14 roamers, or the scope of their -- their comments, because 15 they are usually just talking freely. It's not question 16 and answer, or not all of it's question and answer. 17 MS. LINDA ROTHSTEIN: So it'd be even 18 harder potentially to reign in the legitimate scope of 19 their expertise? 20 DR. GARY EDMOND: Yeah. I mean, the -- 21 the counter to that -- to that might be that the 22 disciplinary potential of having their peers right there. 23 But I'm not sure that works quite as well as people might 24 -- might think. 25 I think the -- it's been oversold by

1 judges in Australia. Like I think it has some value, but 2 I think the judges who have lead this law reform are 3 getting efficient -- system efficiencies for themselves, 4 and shortening proceedings, and not having to be with 5 experts as much, and I think that's driving the reform, 6 rather than producing necessarily more reliable evidence, 7 or better evidence. 8 Senior experts seem to like it, and I 9 think you've probably heard from very eminent, and very 10 competent experts in this Inquiry. Whether some of the 11 more inexperienced, or junior experts would like to be on 12 these kinds of panels, especially once the numbers are 13 not symmetrical, so that maybe one (1) party only has one 14 (1) expert, and another party has three (3), four (4), 15 five (5) experts, there are complications in how that 16 gets managed, and the extent to which maybe the -- the 17 trier of fact, if it's -- especially if it's a judge, has 18 to -- or the adjudicator has to intervene to manage and - 19 - and loses some degree of impartiality by managing what 20 goes on in the interactions between them. 21 Well, their counsel shouldn't really be 22 doing that. 23 MS. LINDA ROTHSTEIN: Is there any step 24 in this direction in criminal proceedings in Australia? 25 DR. GARY EDMOND: It's been mooted, but

1 we really haven't gone very far in that direction. I 2 think people would like it. I think a lot of the judges 3 would like it, because they're searching for ways to deal 4 with the complexities of expert evidence. 5 And to the extent that maybe it's clearer, 6 or that people can offer explanations together and 7 comment in real time, I think that actually probably is 8 helpful to a judge, and a jury for that matter. 9 But as I say, where that sits into a range 10 of considerations in a trial, how it affects the defence 11 if they have to -- and this might be an issue for the 12 Canadians -- if they have to bring their -- or feel 13 obliged to bring their expert up -- upfront before, if 14 the concurrent evidence session was held before the Crown 15 had closed its case, those kinds of things would have to 16 be considered here, I would imagine. 17 MS. LINDA ROTHSTEIN: Ms. Beecher-Monas, 18 what can you tell us about the US experience with these 19 techniques, and your views of whether they bare any -- 20 whether they'll help at all in the criminal process? 21 DR. ERICA BEECHER-MONAS: Well, to my 22 knowledge, the US has not experimented with concurrent 23 evidence, and I think the Defence Bar would be extremely 24 antagonistic to it. I think the fear would be that the 25 experts, not being trained lawyers -- the defence experts

1 not being trained lawyers, would reveal things about the 2 defence case that the defence would not want revealed, 3 and I think there would be a lot of concern about that. 4 However, what I do think is within the 5 judges' realm is to call a preliminary hearing of all the 6 experts that are going to be in the case. You're not 7 limited to examining one (1) expert at a time. You can 8 have a hearing in which you have the expert testimony 9 presented, and that sort of does something similar, which 10 is it -- it outlines what the -- what the basis of the 11 expert opinion is going to be. 12 And -- and I think that is a tool that is 13 used, not -- not uniformly, but should probably be used 14 more. And does that also reveal the basis of the exp -- 15 defence experts case? Yes, it does, but I think they 16 have to do that at some point anyway. 17 And so it's -- it's -- it's an important 18 step for the judge to hear if they're going to be 19 battling experts, if there's a basis for each of the 20 conclusions of the expert. 21 MS. LINDA ROTHSTEIN: Justice Rosenberg, 22 should courts be able to encourage or even compel 23 competing experts to exchange reports, to meet pre-trial, 24 to testify concurrently in criminal trials? 25 Any views on that that you're prepared to

1 share, or am I being a little enthusiastic in my role 2 reversal here -- 3 JUSTICE MARC ROSENBERG: Yeah -- 4 MS. LINDA ROTHSTEIN: -- of questioning 5 a -- 6 JUSTICE MARC ROSENBERG: -- a little bit. 7 MS. LINDA ROTHSTEIN: -- Court of Appeal 8 judge? 9 JUSTICE MARC ROSENBERG: Well, lets -- 10 lets put to one side the -- the constitutional issues, 11 because I think there are probably some constitutional 12 issues out there that would have to be explored. 13 In just talking about, you know, would it 14 be good policy, it strikes me that in many cases it would 15 be good policy. And I think as you heard from your panel 16 of defence counsel and Crown counsel, the good lawyers 17 often do do that sort of informally. They will ask their 18 experts to get together to try and to narrow the issues; 19 not necessarily a joint report, but trying to narrow 20 their issues. 21 So obviously if people are doing that then 22 it sounds like it's a good thing and so I -- I wouldn't - 23 - I would certainly encourage it. 24 Can we get there? Probably if we're going 25 to get there it would have to be in baby steps. It would

1 probably have to start in the civil litigation field. I 2 mean, we now go the model, because this Inquiry isn't the 3 only one that's done that, have brought experts together, 4 had them, quote "testify" all at the same time and 5 challenge each other. 6 I think that one (1) of the ways that we 7 often fall down in the criminal system with experts is we 8 don't always understand what they're telling us. And I 9 would have thought that if you have a group of experts 10 all testifying at the same time, they can probably 11 clarify and help us understand better, well you know, 12 what expert A is saying, is really -- really this. 13 And so if you have them all there in the 14 same spot, it -- it strikes me as another -- again, it's 15 a good thing. I think it would be difficult to impose in 16 -- in the criminal context, very much for what Erica 17 said: We're so entrenched with the adversary system. 18 But I do think that we have to look at innovative 19 solutions. We -- we have to -- I think we have to get a 20 little bit more humility about the adv -- adversary 21 system. 22 And when you start to look around the 23 world and look at what other systems do, gee, it turns 24 out that civ -- civilians actually do get the -- the 25 answers sometimes, and they do it differently then us, so

1 we can learn from their -- from their systems, learn what 2 they do. 3 So I don't think we should be adverse to 4 innovation if there's a good policy basis for it. And if 5 you become convinced, then I would think that would be a 6 very helpful recommendation. 7 In the criminal field it's going to be a 8 tough one because of the constitutional issues. It may 9 be that to implement it you probably would need a 10 statutory base, but, you know, it's something to think 11 about. 12 MS. LINDA ROTHSTEIN: Mr. LeSage, what 13 are your views on these innov -- innovative ways of 14 approaching the complex world of competing expert 15 evidence? 16 MR. PATRICK LESAGE: Well let me tell you 17 about these new innovative ways. You know, about 18 1966/'67 through to the -- about 1970 I had a significant 19 number of trials with the late and great Arthur Maloney. 20 One of his students who is in the back of the court here, 21 Mr. Ortved. 22 He was defence, I was the prosecutor. He 23 is the one that made that recommendation to me on a 24 number of occasions. And I recall the first time he made 25 it to me I thought, you know, what's he up to? You know,

1 why does he want to do this? 2 He wanted to do it because he was a very, 3 very good lawyer. And he wanted that our experts get 4 together and -- get together informally without 5 prejudice, and to discuss the issues so that at least 6 they each knew what the other was talking about. 7 And I, as I said, or as I've expressed, I 8 -- I had some reluctance. I don't know why I had 9 reluctance, I did. And -- but because I had such great 10 respect for Mr. Maloney, and he was such a smooth talker, 11 that I -- I agreed to it, you know. And I mean, years 12 later I shake my head and say, Of course it was a good 13 idea. Why would I not have agreed to it? 14 And thereafter I think probably in 15 innumerable trials I had with Mr. Maloney, we almost 16 always did that. We had an informal meeting of the 17 experts and in a country as small as Canada, the experts 18 to begin with, know one another and probably socialize 19 with one another, probably went to school together, and 20 so it's not as if it's a group of strangers getting into 21 a room, but even if it was, it would make no difference. 22 And the effect of it was that by the time 23 they came to testify, they were all speaking generally 24 the same language and knew what the issue was. And -- 25 and one (1) particular case, in 1967, the issue was

1 whether psychopathy was a disease of the mind. 2 And the -- what's -- what's the medical -- 3 well, anyways, the -- the descriptive journal about what 4 is -- 5 MS. LINDA ROTHSTEIN: DSM 4? 6 MR. PATRICK LESAGE: DMS -- or DSM. It 7 was probably 3 at that time. 8 MS. LINDA ROTHSTEIN: Probably 2. 9 MR. PATRICK LESAGE: Probably 1. You 10 know, did not recognize psychopathy as a disease of the 11 mind. And so anyways, I mean something like that. So 12 the experts all got together and by the time they came in 13 to testify before a jury, they were all speaking from the 14 same hymn book, as it were. They explained why they 15 thought it was or wasn't, and that is how it went, and 16 thereafter, in very, very many cases, we did exactly 17 that. 18 So, am I a fan of it? Absolutely, 19 absolutely. And if I might just roll a bit. Going back 20 to Erica's comment about jury instructions, I think we 21 are very fortunate, in this country, that we have the 22 tremendous work done by Justice David Watt in our 23 standard criminal jury charges. 24 I think it -- yes, probably it could be 25 enhanced when it comes to scientific evidence, there

1 isn't a lot of dea -- dealing with that, but let me then 2 go back one (1) more -- and -- and I think our -- our 3 jury charges are very comprehensible and comprehensive. 4 But that leads me to the fact that I think 5 experts could maybe learn a little bit about 6 communicating or be forced into a form of communication. 7 And I know you've dealt with this earlier, but in a word, 8 I mean, should the word "consistent with" even be 9 permitted to be used because it doesn't mean anything in 10 the sense that it means everything; it can mean from A to 11 Z. 12 And so I think language needs to be 13 tightened up and that's one (1) of the advantages of a -- 14 of a common meeting of the experts is they can perhaps 15 agree on -- on what terminology they're going to use. 16 So I would have no hesitation as a -- if I 17 were a judge in -- at a pretrial say, I want your experts 18 to get together and discuss the issues so that when it 19 comes to trial, everyone can be speaking the same 20 language about the same issue. 21 And it -- after all, the expert is there, 22 and -- and our concept is there to assist the Court, not 23 to be an advocate, so I don't see great danger in having 24 the experts together. 25 Would I force them? I would if I could,

1 but I know that I couldn't, so I would strongly encourage 2 it, and a judge at a pretrial has very free rein in 3 recommendations, and so I think judges should encourage 4 it. 5 I think, and you've probably heard this 6 from the experts, that they would probably -- the -- the 7 good experts would welcome it, and it -- it would greatly 8 facilitate the -- the trial. 9 And I realize there's a risk at exposing, 10 to some extent, your defence, but I am virtually certain 11 that if Mr. Sandler had a scientific defence and he had 12 an expert, that he would agree, and I'm not going to ask 13 him to respond, but that he would -- that he would agree 14 that the Crown and defence expert get together and so 15 they could see what they agreed upon and see what they 16 didn't agree upon. 17 MS. LINDA ROTHSTEIN: And would you -- 18 COMMISSIONER STEPHEN GOUDGE: Should the 19 lawyers be present at that kind of meeting -- 20 MR. PATRICK LESAGE: My -- 21 COMMISSIONER STEPHEN GOUDGE: -- and were 22 they -- would you -- 23 MR. PATRICK LESAGE: No. 24 COMMISSIONER STEPHEN GOUDGE: -- and Mr. 25 Maloney be there?

1 MR. PATRICK LESAGE: No, we weren't, and 2 these were purely without prejudice meetings. You know, 3 whether or not you could -- I -- I wouldn't -- certainly 4 if I were recommending it at this stage, if I were a 5 trial judge and I was doing it as a pretrial judge, I 6 wouldn't say, And I want a report from you or anything 7 like that. 8 COMMISSIONER STEPHEN GOUDGE: Right. 9 MR. PATRICK LESAGE: I would -- I would 10 encourage the meeting, try to get them together. I'm -- 11 I'm sure they would -- they would come back or, at least, 12 the lawyers would say, Well, okay, this -- they having 13 been together, this is what we -- we see the issues or 14 you would -- you would say that in your -- your opening 15 or -- I wouldn't say that they -- the experts had gotten 16 together. 17 But I -- I don't think it needs to be 18 formalized. And I -- I'd prefer that it wasn't 19 formalized and that -- but I -- I would like to see 20 judges encouraged to encouraging, guiding, directing, 21 cajoling, a little bit of threat but not too much threat, 22 to have the -- have the parties do it. And -- 23 COMMISSIONER STEPHEN GOUDGE: What kind 24 of guidelines would a pre-trial judge be best to think 25 about, Pat? I mean, one (1) of the concerns we have had

1 articulated from nervous counsel is, well, if they are -- 2 this kind of meeting occurs and there is not a pretty 3 tight bubble around it, the first question asked by the 4 instructing counsel when the meeting ends and experts go 5 back to their corners, so to speak, is how should I 6 cross-examine the other guy most effectively? 7 I mean, do you set -- is it possible to 8 set guidelines about how tight the confidentiality of the 9 meeting is or do you simply rely on the integrity of the 10 participants? 11 MR. PATRICK LESAGE: I -- I'd rely on the 12 integrity of the participants becau -- because to begin 13 with, I don't have no idea what the -- what the 14 guidelines should be. And so other than that -- you know 15 that it -- that it be without prejudice meeting. 16 COMMISSIONER STEPHEN GOUDGE: Right. 17 MR. PATRICK LESAGE: And that I -- you 18 know, I -- I wou -- I wouldn't -- I'd be very -- very 19 careful about -- about attempting to formalize it at -- 20 at this stage, if -- if ever. I mean, formalization if 21 necessary, but not necessarily formalization, you know, 22 to use an old Canadian expression about conscription. 23 COMMISSIONER STEPHEN GOUDGE: Right. 24 MR. PATRICK LESAGE: I -- anyways, I 25 don't have any concern or fear about it on a -- on any

1 principle basis. And I think it -- it does nothing but 2 enhance our system. We -- we -- it's -- it's not ambush 3 anymore, and good defence counsel don't ambush. 4 And those that do, well, then I don't care 5 if they're concerned about it. 6 COMMISSIONER STEPHEN GOUDGE: Right. Ms. 7 Rothstein...? 8 9 CONTINUED BY MS. LINDA ROTHSTEIN: 10 MS. LINDA ROTHSTEIN: Any comments from 11 any of other panellists? Any reaction? 12 DR. GARY EDMOND: I'd just like to say 13 one (1) thing. I think it's fine to have pre-trial 14 meetings. I can't see any problem with it really. The 15 only thing is -- I'd say is that you might not expect too 16 much from it a lot of the time, whether it would resolve 17 the kinds of issues that you're confronted with here if 18 they met together. 19 It -- it's not clear if there were other 20 experts. And where there are experts from different 21 perspectives in relation to Shaken Baby Syndrome, whether 22 pre-trial meetings can resolve that again -- 23 COMMISSIONER STEPHEN GOUDGE: There is 24 one (1) interesting example, Gary, in the cases we have 25 looked it where while there was not a meeting, there was

1 a virtual meeting through a sequence of exchanged 2 affidavits. 3 DR. GARY EDMOND: Yeah. 4 COMMISSIONER STEPHEN GOUDGE: And it 5 resulted in the modification of views on both sides. It 6 was quite interesting, you know, and one could easily 7 transpose that virtual meeting into an actual meeting. 8 Not that it will happen every time, but -- 9 DR. GARY EDMOND: Well, let's hope -- 10 that's what -- I'd say -- 11 COMMISSIONER STEPHEN GOUDGE: Yes, I just 12 have no sense, but we have had certainly one (1) little 13 example in the cases we have looked at where, at least on 14 that virtual basis, it seems to have produced some sense 15 of moving towards a shared truth. 16 It did not get all the way, but you know, 17 it did -- at least, demonstrated that there is that kind 18 of scientific interchange that seems to be from both 19 sides of the scientific communication profitable, and 20 certainly we have had a virtually uniform request that it 21 happen as a way of corresponding to the world of 22 scientific discussion from which the experts come and 23 making, therefore, the adversarial context in which they 24 have to appear a little more friendly. 25

1 CONTINUED BY MS. LINDA ROTHSTEIN: 2 MS. LINDA ROTHSTEIN: And finally, Mr. 3 LeSage, did I understand you to suggest that you see some 4 potential for guideline charges on difficult scientific 5 issues, perhaps even about how the jury should approach 6 complex scientific evidence? 7 MR. PATRICK LESAGE: Well, it -- it may 8 well be. It -- it -- this was a very difficult task 9 creating those standard criminal jury charges. And we - 10 and we received a lot of guidance, I might tell you, from 11 the United States; I think particularly Arizona. But it 12 -- it may be that it's worth, and I -- I should have 13 looked at what standard criminal jury instructions in the 14 last couple of days when I didn't, because I -- I'm just 15 not sure what he has about the expert. 16 I know there's certain standard 17 commentary, but may -- maybe Justice Watt could be asked 18 if -- if there are -- if there is some area where it 19 could be in his -- 20 COMMISSIONER STEPHEN GOUDGE: Where -- I 21 mean, clearly it's an important area for us to look at, 22 and we have not yet. 23 What do you say though, Pat, to the -- I 24 mean we have -- in the area that we have been examining, 25 there were some hallmark -- one (1,) in particular,

1 followed by another, English Court of Appeal cases that, 2 as we were talking informally last night, read like 3 inquiry reports. 4 That is, they seem to have been set-up 5 true on the basis of appeals in specific cases, but with 6 the objective being far more than a resolution of the 7 particular case. 8 Rather the objective being the enunciation 9 of, at least in one (1) example, pure black letter law. 10 Well, there are now two (2) of them, you know. 11 One (1) about whether you can proceed with 12 SIDS cases where you have got competing experts, and the 13 other in the shaken baby area as to how much the triad 14 can count for getting over the hurdle of proof beyond a 15 reasonable doubt. 16 So two (2) sort of black letter questions 17 that arise in areas of difficult science. Should the 18 Courts be in the business of this kind of, in effect, 19 black letter pronouncement that goes considerably beyond 20 what would be necessary to decide the specific case in 21 front of them? 22 MR. PATRICK LESAGE: And I mean no 23 disrespect to your proposition, but my response is an 24 unequivocal, no. 25 I -- I have a very conservative, some

1 might say, traditional view of role of Courts. When I 2 hear people speaking about the fact that the Court should 3 -- need to be developing jurisprudence, I don't -- I've 4 never subscribed to that. 5 I believe Courts are there to decide the 6 issue between the parties, and if in deciding them, the 7 ancillary effect is that the law is developed, 8 jurisprudence is developed, well, that's fine. 9 But that should be, in my view, as a very 10 conservative, some would say reactionary, person in -- as 11 to their approach of the -- as to what the role of the 12 Court is. 13 Their first role, and really their only 14 role, is to decide the issue between the parties that are 15 before them, and nothing more. 16 And it is for the legislators, it is for 17 inquiries -- you have every right as a Commissioner to 18 make recommendations, and -- and suggestions, but I -- I 19 don't think Courts are the forum best suited for 20 developing policy. 21 COMMISSIONER STEPHEN GOUDGE: Okay. All 22 right. Any of the rest of you have comments on that? 23 DR. ERICA BEECHER-MONAS: Yeah. I -- I 24 actually agree with that. I think that it's very 25 dangerous.

1 I frankly disagree with the idea that, you 2 know, it's okay to let SIDS, or -- or Shaken Baby 3 Syndrome -- the triad in. 4 And -- but -- but there has to be other 5 evidence. Because the fact is, if there's not -- if it's 6 not reliable to begin with, it shouldn't come in. 7 COMMISSIONER STEPHEN GOUDGE: Right. 8 That's the disagree with the black letter pronouncement-- 9 DR. ERICA BEECHER-MONAS: Yeah. So I -- 10 COMMISSIONER STEPHEN GOUDGE: -- that was 11 made in the English case. 12 DR. ERICA BEECHER-MONAS: -- so -- so 13 there's -- so there's a problem with that to begin with. 14 COMMISSIONER STEPHEN GOUDGE: Right. 15 DR. ERICA BEECHER-MONAS: But secondly, I 16 agree that, you know, evidence isn't just evidence. It's 17 evidence about something. 18 And -- and therefore, I -- I think the 19 judge needs to be sensitive about a number of different 20 issues. 21 First of all, whether there is fit between 22 what is -- what the expert is saying, and -- and the case 23 itself; an issue in the case itself. 24 And only the judge -- the individual judge 25 can decide that.

100

1 2 CONTINUED BY MS. LINDA ROTHSTEIN: 3 MS. LINDA ROTHSTEIN: Go ahead. 4 DR. GARY EDMOND: Just in relation to the 5 English cases, it's important to note in those cases that 6 they heard evidence in the Court of Appeal, so lots of 7 the expert -- 8 COMMISSIONER STEPHEN GOUDGE: Yes, I 9 should have explained that. 10 DR. GARY EDMOND: -- so lots of experts 11 came in, and that to some extent may overcome, to a 12 degree, Justice Rosenberg's issue about what do you do if 13 you don't have more evidence, or if you don't have any 14 evidence. 15 So that's a special set of circumstances 16 which I guess -- I -- I'm not sure how I'd go on this -- 17 on this issue, which side I'd fall on. 18 But maybe if there were lots of cases that 19 have similarities, so that similar types of evidence are 20 coming in, especially if they're very controversial, or 21 it's a kind of high profile issue, maybe the Court, in 22 terms of managing its own kind of public confidence and 23 credibility, might need, at times, to allow these kinds 24 of cases to come in as a -- as a ins -- as an instructive 25 type of activity.

101

1 But the trouble is, as soon as the science 2 changes a bit, the standing of that becomes problematic. 3 JUSTICE MARC ROSENBERG: And could I just 4 add to that, because there's actually been some, I think, 5 valid criticism of some of the decisions from my Court 6 and from the Supreme Court of Canada. 7 When they do start to roam outside the 8 record and start reading the social science literature, 9 for example, on their own and trying to figure out, well, 10 what does is all mean, and then make a pronouncement -- 11 you have some kind of general pronouncement that then 12 haunts the -- the legal system for another ten (10) years 13 until they -- they get different factual basis and un -- 14 and unwind it, so I think it is very troubling. 15 That said, there's nothing wrong, I think, 16 with what we do. As you know, in the Court, is we try 17 sometimes -- if we've got a similar issue in a number of 18 cases, we try to group the cases hear -- so the same 19 panel hears the same group of cases. That makes sense, 20 but I think that's different than start to roam around 21 and see what we can -- 22 COMMISSIONER STEPHEN GOUDGE: Right. 23 JUSTICE MARC ROSENBERG: -- find out on 24 our own and make these black letter pronouncements on 25 what essentially are factual issues.

102

1 COMMISSIONER STEPHEN GOUDGE: Right, 2 based on a whole lot of evidence heard for the first time 3 by the Court that says it's charged itself with issuing a 4 guideline judgment. 5 JUSTICE MARC ROSENBERG: Yeah. 6 COMMISSIONER STEPHEN GOUDGE: Yes. 7 MS. LINDA ROTHSTEIN: Although it is 8 great to hear evidence in the Court of Appeal -- 9 COMMISSIONER STEPHEN GOUDGE: Yes. 10 MS. LINDA ROTHSTEIN: -- is it not, Your 11 Honour? 12 JUSTICE MARC ROSENBERG: No, it was fun. 13 14 CONTINUED BY MS. LINDA ROTHSTEIN: 15 MS. LINDA ROTHSTEIN: I was just going 16 to -- 17 MR. PATRICK LESAGE: I recall one time in 18 the Supreme Court of Canada I was the respondent and I 19 say one time -- I was only there once, well, actually 20 twice, but on the same case, and the -- the respond -- or 21 the appellant -- I'm sorry, I was the respondent Crown -- 22 the appellant wanted to have new evidence called and -- 23 and I was opposing it, but I was supporting his -- that 24 this was the correct place to bring that up occasion, 25 because this was evidence that came about, well, the --

103

1 the -- his position was, it came about after the appeal. 2 And I recall Justice Richard Spence saying 3 -- and rejecting it, and I -- he said, This is not the 4 place to -- to hear evidence. 5 And I said, Well, the -- the statute 6 provides that. And he said, There are only nine (9) of 7 us; it takes twelve (12) to hear this evidence -- so get 8 out. 9 MS. LINDA ROTHSTEIN: Well, I thought I 10 would give each of you an opportunity to give us any of 11 your parting comments before I turn it over to some of my 12 colleagues who have some questions for you. 13 Professor Edmond, any...? 14 DR. GARY EDMOND: I don't think I need to 15 say anything more about reliability. One (1) thing I 16 would say is that I think it's important here to 17 encourage empirical research by social scientists and 18 legal scholars into how these -- any proposals or changes 19 actually work in practice, but if in the trial and the 20 pretrial process because often this kind of discussion 21 takes place in a -- in a vacuum. 22 There's lots of opinions about things, 23 people have experience, but it's not systematically 24 developed, and so to the extent that there's not an 25 encouragement or a facilitation in -- in allowing

104

1 scholars to have access to Courts and legal offices and 2 departments to undertake research, I think it makes 3 reform and analysis of what actually goes on more 4 difficult. 5 MS. LINDA ROTHSTEIN: Professor Beecher- 6 Monas...? 7 DR. ERICA BEECHER-MONAS: Just to sum up, 8 I would have to say that I would exhort trial judges to 9 use their sceptical powers of analysis, their critical 10 thinking, to think carefully about science and to do it 11 early on at -- at the preliminary stages and to require a 12 firm foundation for scientific evidence to be admitted in 13 the Courts. 14 MS. LINDA ROTHSTEIN: Justice 15 Rosenberg...? 16 JUSTICE MARC ROSENBERG: I guess I'd go 17 back to almost the very first thing that we talked about. 18 And that is how important continuing 19 education for judges is; that I think that if we give 20 judges the tools whether it's through the National 21 Judicial Institute -- and I mean they have lots of 22 resources, they have senior advisors, they have experts, 23 they have people they can call upon, and they can put 24 together, as Pat knows, some very good programs that can 25 assist -- so I think if we give the judges the

105

1 opportunity, they will take it. 2 We don't have to impose upon them. They 3 are eager to -- to understand this area and to do better. 4 MS. LINDA ROTHSTEIN: Mr. LeSage...? 5 MR. PATRICK LESAGE: I -- I con -- 6 concur. 7 MS. LINDA ROTHSTEIN: Commiss -- 8 COMMISSIONER STEPHEN GOUDGE: Before 9 turning it over, I mean, Ms. Rothstein, one (1) little 10 area of detail that I'd be grateful for the views of the 11 four (4) of you on is the notion of some kind of code of 12 conduct for experts that they are required to certify 13 they are adhering to primarily, that they acknowledge 14 their duty to the court as opposed to being adversaries 15 and so on. 16 As my two colleagues on the left know, we 17 have had a civil justice review process underway in 18 Ontario, and one of the recommendations there was that 19 expert reports be required to A) comply with that kind of 20 obligation, and B) authors of those reports are required 21 to certify that they acknowledge the obligation and have 22 adhered to it. 23 Do any of you see any utility in that kind 24 of approach to assisting to ensure that, so far as we 25 can, advocacy is excluded from expert opinion-giving and

106

1 so on? Is that a useful or just a cosmetic approach to 2 this whole problem? 3 What do you think? Yes. 4 MR. PATRICK LESAGE: I -- I -- I really 5 don't have any firm view on it. I'm -- I'm always 6 concerned about form over substance but maybe the form at 7 least reminds them. But I think maybe what we -- if you 8 were to be making recommendations, is that we recommend 9 that the schools of engineering, the schools of medicine, 10 that the -- just as law schools have courses on ethics 11 and professionalism, that maybe they could be encouraged 12 to teach their students -- obviously, this is a long term 13 process, but it wouldn't be a long process -- but to 14 instruct their students as to what the role of a prof -- 15 of a -- of an expert is. 16 And, you know, I guess I can't see much 17 harm in -- in the form. In fact, I don't think I can see 18 any harm. But I -- I'd be a little concerned that it 19 becomes form over substance. 20 But -- but I -- I think it's -- it's high 21 time that -- that we -- and when we are speaking to the 22 various professions, as we're often invited to do, is to 23 reiterate what the role of the expert is. 24 And -- because there's no question that 25 many of the experts in the fields of -- in the scientific

107

1 fields, be it medicine or whatever, really don't 2 understand that their role is to be there to assist the 3 court, and they see themselves as advocates. 4 And, you know, places like the Centre of 5 Forensic Science, I mean, should they be more 6 cooperative? My own experience with them has always been 7 very good. And I can remember, as a Crown attorney years 8 ago, asking one (1) of their experts, you know, Well, how 9 does -- how do I fit this in to my theory? He said, I'm 10 not here to be your -- to assist you in the prosecution. 11 And it was the perfect answer. 12 But they -- that sort of thing should be 13 drilled into them, and I think it is at the Centre of 14 Forensic Science, but in -- in other areas of expertise. 15 And perhaps the Centre should strive to be -- to be -- to 16 be and to be seen to be more open to the defence. 17 COMMISSIONER STEPHEN GOUDGE: Do you have 18 any comment, Marc, on the notion of some kind of 19 certification attached to expert reports? 20 JUSTICE MARC ROSENBERG: Well, I guess, 21 like Pat, I don't see the harm in it. I'm -- I'm not 22 sure how effective it would be. I mean, this idea that 23 experts should be independent, should be neutral. Judges 24 have been saying that for a long time. There's -- okay, 25 I'm going to pronounce it wrong -- Icarian Reefer. Is

108

1 that the -- 2 DR. GARY EDMOND: Icarian Reefer. 3 JUSTICE MARC ROSENBERG: -- Icarian Reefer 4 where I think it was the English Court of Appeal said, 5 you know, this is the role of the experts and we're 6 actually going to exclude some experts if they don't get 7 it but -- so that's been around. Why it hasn't 8 percolated through to some experts, I don't know. 9 So I don't know, would it -- I can't see 10 the harm in it but I -- I guess I'd be concerned that it 11 was nothing but form. And -- 12 COMMISSIONER STEPHEN GOUDGE: Right. 13 JUSTICE MARC ROSENBERG: -- when you ask 14 the expert, you know, Why did you put that certification? 15 Well, they made me do it. 16 COMMISSIONER STEPHEN GOUDGE: Erica? 17 DR. ERICA BEECHER-MONAS: I -- I think 18 the role -- the -- the only real benefit that I can see 19 to having a certification is it gives the expert a little 20 bit of a push back against a perhaps overzealous advocate 21 who is pushing the expert to say things the expert's not 22 comfortable with. So it sort of reminds the expert that 23 they have a tool and that's their certification. I don't 24 think you can rely on it. 25 But I think it has an educative function

109

1 in that it reminds the expert that they actually need to 2 be adhering to their own standards. 3 COMMISSIONER STEPHEN GOUDGE: Gary? 4 DR. GARY EDMOND: Yeah, I think it has a 5 -- kind of it reinforces their kind of duties, or their 6 role. And I think that's important, but I guess, is it 7 useful as a cosmetic -- I guess it's just a useful 8 cosmetic. That's what I'd say. 9 COMMISSIONER STEPHEN GOUDGE: Okay. 10 Thanks, Ms. Rothstein. 11 12 CONTINUED BY MS. LINDA ROTHSTEIN: 13 MS. LINDA ROTHSTEIN: Commissioner, three 14 (3) of the parties have questions. The OCCO, AIDWYC and 15 the Criminal Lawyers Association -- 16 COMMISSIONER STEPHEN GOUDGE: Okay, 17 thanks. 18 Mr. Gover...? 19 20 QUESTIONED BY MR. BRIAN GOVER: 21 MR. BRIAN GOVER: Thank you, and I'll be 22 very brief. We have a unique opportunity here to discuss 23 best practices of counsel leading expert opinion 24 evidence. And I've heard suggestions such as 25 facilitating meetings among experts and having a clear

110

1 qualification statement. 2 And I'd like to explore with each of you 3 whether other items come to mind that would constitute 4 best practices if we accept that there are special 5 responsibilities on counsel leading evidence of this 6 type. 7 And first of all, in terms of the 8 qualification statement, and it's clarity, I take it that 9 if it were put in writing, that might assist everyone in 10 understanding what it is that counsel was seeking to have 11 the witness qualified to testify about. 12 I'll turn first to Mr. LeSage. 13 MR. PATRICK LESAGE: I wholeheartedly 14 agree, because whenever we reduce anything to writing, it 15 forces us to focus. And so I -- I -- I think that's an 16 excellent suggestion. 17 MR. BRIAN GOVER: And, Justice Rosenberg, 18 I take it you don't disagree with that, sir? 19 JUSTICE MARC ROSENBERG: No, not at all. 20 I mean, one (1) of the things that we -- when we talk 21 about expert evidence with judges in these educational 22 forums, the point we make is make sure you understand 23 exactly what it is, and if you can get them to put it in 24 writing, so much the -- the better. 25 You know, should we be requiring them to

111

1 exchange reports and this kind of thing, that -- you 2 know, that again is something that we need to look at as 3 well. 4 MR. BRIAN GOVER: Right. We've heard 5 some discussion earlier in the week about preventing and 6 -- and it's a useful phrase, preventing a race to the 7 bottomline. Is there anything that comes to mind in 8 terms of practices on the part of counsel that can assist 9 in ensuring that a trier of fact doesn't race to the 10 bottomline and perhaps lose the analysis -- forget about 11 factual underpinnings of an expert opinion that comes to 12 mind in terms of a best practice on the part of counsel? 13 Perhaps I'll ask Professor Beecher-Monas? 14 Do you have any suggestions in that respect? 15 DR. ERICA BEECHER-MONAS: It's -- it's 16 kind of a broad question. I'm not sure where to start 17 because there's so much that counsel can be responsible 18 for. One (1) of the things I would say, is we have, you 19 know, in -- in cases, for example, where the prosecution 20 is pushing, or it could be the defence is pushing the 21 expert to come up with a decision that -- that the expert 22 isn't comfortable with. 23 Perhaps more transparency of preliminary 24 reports, for example. There's one (1) case in our 25 materials where the time of death was an issue. And the

112

1 expert had written preliminary reports in which the 2 expert said, Well I can't really tell you what the time 3 of death was. It's somewhere between two (2) hours and 4 three (3) or four (4) days. 5 And that didn't please the prosecution 6 very much, so they said, Well that's not a really good 7 answer, come up with a different report. And -- and the 8 next report said, Well, they narrowed it down a little 9 bit more, but not enough. 10 And then the third report said, Okay, 11 forty-five (45) minutes. It happened within these forty- 12 five (45) minutes. Well to me, that prosecutorial 13 misconduct. We have a rem -- we have a remedy for that, 14 because those earlier reports were never -- were never 15 disclosed to the defence. 16 So I do think that -- that advocates have 17 a responsibility, and judges have the tools to fight 18 those kinds of abuses already. Whether they're willing 19 to use them or not, I'm not so sure, but -- but they 20 certainly have those tools. 21 MR. BRIAN GOVER: Professor Edmond...? 22 DR. GARY EDMOND: Yeah, I think I'd go 23 back to the -- to the extent that there's an emphasis or 24 a focus on an articulated basis to the opinion that 25 should qualify the bottomline.

113

1 So the bottomline should always be 2 contingent or constrained by whatever's come before it, 3 and there should be attention to what comes before it, 4 and there should be discussion of what comes before it in 5 the context of both the preparation for trial, and the 6 trial. 7 MR. BRIAN GOVER: And, Justice Rosenberg, 8 I saw you writing, so -- 9 JUSTICE MARC ROSENBERG: Yeah. Actually 10 I'm really glad you asked that question, because I think 11 that one (1) of our problems -- I mean, I take it by your 12 question what you're saying is -- what you're worried 13 about is that the jury just hears the last thing. 14 MR. BRIAN GOVER: That's right. 15 JUSTICE MARC ROSENBERG: They hear, okay, 16 the cause of death was "X", and they haven't gone through 17 or been forced to go through the analytical framework or 18 challenge any of those propositions. And the reason I 19 think it's a really good question is because we know a 20 lot more about the way adults learn than we used to. 21 And I must say, the way that we do jury 22 trials is -- you'd have to say it's pretty primitive, 23 right? We say, Okay, we want you to sit there for two 24 (2) hours and -- until recently that we wouldn't even 25 allow them to take notes, but we won't allow them to ask

114
  1  questions.  
  2                 We certainly don't allow them to talk
  3  about it at -- you know, as things are going along and
  4  God forbid they should get, you know, some preliminary
  5  idea.  Maybe -- maybe in the area of expert evidence, we
  6  have to look a little bit harder about how -- look in
  7  some of the literature about how adults learn.  
  8                 What are there things we can do, for
  9  example  -- PowerPoint, for example, that actually helps
 10  the -- the jury go through the steps so they just aren't
 11  driven to the bottomline.  I'd like to see us do some of
 12  that.  But, you know, to take a jury system that was
 13  developed in the eighteenth century and bring it in the
 14  twenty-first century is going to take some work.  
 15                 But maybe we can with small steps -- take
 16  some small steps towards modernizing things a little bit. 
 17  Just a thought.
 18                 MR. BRIAN GOVER:   Mr. LeSage...?
 19                 MR. PATRICK LESAGE:   As -- as Justice
 20  Rosenberg said, it's a very good question.  And I -- I've
 21  been trying to think of some brilliant answer, and I
 22  can't even think of an answer, let alone a brilliant one. 
 23  But let me try a little analogy, and I don't know if this
 24  has any application or not.  
 25                 But I know there is a -- certainly a -- a

115

1 view, and I think a very good view, that -- at a -- at a 2 place such as the Centre of Forensic Science -- we'll 3 just use that -- a science lab -- that the person who 4 does the examination and the analysis should be separated 5 from the party who is requesting it. 6 So in other words, when the police come to 7 the -- the lab with the specimens, whatever they might be 8 or the body, as the case might be, that they not be -- 9 they not communicate with the person who is going to do 10 the examination. 11 Well, you might say, Well, that's putting 12 a blindfold on. But one (1) of the things it does, at 13 least in some cases, is it does not allow the person 14 who's doing the analysis to ,either consciously or 15 subconsciously, fit their findings to the theory of the 16 prosecutor or the defence or, more often, the police. 17 And so that there should be an 18 intermediary that when the article is brought to the lab, 19 it's turned over to a scientist who can -- the police can 20 tell them whatever they want, but then the -- they then 21 go to the person who's going to perform the investigation 22 without giving them the background because in a lot of 23 cases, the background is really should be irrelevant. 24 And then get the analysis done. They -- 25 they can say, Here are the questions that I want you to

116

1 answer. Now, I don't know how that would translate into 2 -- into your question, but to -- anything we can do to 3 deter the person who is doing the analysis from, either 4 consciously or more likely subconsciously, coming up to 5 an answer that fits somebody's theory. 6 That's -- I guess, is what we would hope. 7 But when you, as a lawyer, retain somebody, you're 8 obviously going to say, You know, I'm acting for Joe who 9 says he didn't do it, and here is what the evidence is. 10 Give me your opinion. I'm not sure how you separate it. 11 So I'm sorry I -- I -- it's not really 12 answering your question, but it's a very good question. 13 MR. BRIAN GOVER: Thank you. 14 COMMISSIONER STEPHEN GOUDGE: Thanks, Mr. 15 Gover. Ms. Simpson on behalf of AIDWYC. 16 MS. VANORA SIMPSON: My questions have 17 been asked, Commissioner. Thank you. 18 COMMISSIONER STEPHEN GOUDGE: Then Mr. 19 Manishen on behalf of the Criminal Lawyers Association. 20 21 QUESTIONED BY MR. JEFFREY MANISHEN: 22 MR. JEFFREY MANISHEN: I've -- I've 23 racked my brain, Mr. LeSage, to have the opportunity to 24 ask you a question. I couldn't pass on that. And the 25 question in part will derive from your experience as a

117

1 trial judge. In my experience as counsel, I think I've 2 only had one (1) case where a person called to testify as 3 an expert was not qualified. 4 MR. PATRICK LESAGE: Yes. 5 MR. JEFFREY MANISHEN: And the focus will 6 be on the standard for qualifying someone to give -- 7 MR. PATRICK LESAGE: Yeah. 8 MR. JEFFREY MANISHEN: -- expert 9 evidence. In this case, we've learned about the very 10 limited qualifications of Dr. Smith in the field 11 specifically of forensic pathology, notwithstanding he 12 had qualification as a pediatric pathologist. 13 My question is, in your experience, how 14 common has it happened that someone proffered as an 15 expert was not found to be qualified, and then the second 16 part of that is should we review and perhaps tighten up 17 the standard for an expert to be -- or an individual to 18 be qualified sufficiently in the particular area -- on 19 the particular issue to give opinion evidence? 20 MR. PATRICK LESAGE: The answer to the 21 second part is yes. The answer to the first part, that 22 is that we should tighten up, the answer to the first 23 part is that, you know, I -- I regret to say that I have 24 probably have only rejected maybe a half a dozen 25 proffered experts.

118

1 And -- and what test did I use? You know, 2 I'm not even sure what test I used. But I -- I probably 3 -- I probably determined they didn't have a clue about 4 what it is that they were supposed to be testifying 5 about. 6 Or they had -- I mean they had no basis. 7 I shouldn't say they didn't have a -- they had no basis 8 upon which to come to their conclusion. And it's -- it's 9 -- you often see it in the -- I won't say often, you 10 sometimes see it in the role of reconstruction, highway 11 reconstruction issues. 12 You know, it's just -- it's just -- 13 somebody's pet theory -- that's nothing more. But I've 14 also rejected it in matters of art experts, and I can't 15 remember what -- what else. 16 But not very often when you consider I was 17 a judge for twenty-nine (29) years. 18 MR. JEFFREY MANISCHEN: Would you say 19 that that, in part, is because there's a tendency to say, 20 Well even if I'm not sure, it will be a matter for 21 weight, and counsel can cross-examine sufficiently done 22 to undermine the qualification once the evidence is 23 heard? 24 MR. PATRICK LESAGE: I never went through 25 that process, because I'm not one who believes in that.

119
  1  But I -- although I probably fell into it.
  2                 MR. JEFFREY MANISCHEN:   Certainly.
  3                 MR. PATRICK LESAGE:   But I never believed
  4  that -- in fact, I've strongly tried never to fall into
  5  the -- the situation of, Well it may be, it may not be,
  6  but it'll go to weight, because that is so unfair to the
  7  other side.
  8                 You know, what do they do then?  Do they
  9  call evidence to refute it, or do they not?  And so
 10  you've either got a -- let it in or not let it in.  And I
 11  don't think you should ever sort of have that strong
 12  enough reservation where you're going to say, Well I
 13  don't think it will, but it'll go to rate -- weight.
 14                 If that's your -- your view, then do not
 15  accept it, reject it.
 16                 MR. JEFFREY MANISCHEN:   So where we've
 17  been focussing substantially on the -- the evidence with
 18  respect to the field of expertise, there may be a place
 19  for a tightened up review of the level of quali -- the
 20  level needed for an individual to be qualified, or we
 21  might say permitted to give opinion evidence with a tight
 22  focus on what the issue is and what the specific
 23  qualification is?
 24                 MR. PATRICK LESAGE:   Well, there are
 25  about five (5) questions there.

120

1 MR. JEFFREY MANISCHEN: It's really just 2 basic -- 3 MR. PATRICK LESAGE: Yeah, classic 4 Manishen question. 5 MR. JEFFREY MANISCHEN: You know me too 6 well. I've been found out. 7 MR. PATRICK LESAGE: I've listened to 8 those so often. 9 MR. JEFFREY MANISCHEN: So yes or no -- 10 MR. PATRICK LESAGE: Exactly. And then 11 he'll say, Let the witness answer, and you wouldn't. 12 MR. JEFFREY MANISCHEN: No, I think we're 13 dealing with a stamp of a recommendation and that the -- 14 MR. PATRICK LESAGE: I'll -- I'll do it 15 in the response to Justice Rosenberg. 16 MR. JEFFREY MANISCHEN: Sure. And I have 17 other questions for him too. Short ones, long ones. 18 JUSTICE MARC ROSENBERG: Well, I guess I 19 would just caution you, Jeff, to be careful what you wish 20 for. It's all very well to say, Let's tighten up the 21 requirements for x and y and z. 22 But our system tends to work 23 symmetrically. It's very rare for us to have a nice 24 symmetrical system where the standard for the Crown is -- 25 is going to be this, and it's to the admissibility of

121

1 evidence, but for defence evidence, Well we'll just let 2 it all in. 3 And when you look at the run of cases like 4 Mohan and JLJ, what was the evidence that was being 5 excluded? It was defence evidence that was being 6 excluded. The difficulty the defence has had in trying 7 to get evidence like that from Dr. Lof -- Loftus on 8 eyewitness identification, they keep making -- running up 9 against barriers that have been erected purportedly to 10 keep out relia -- unreliable prosecution evidence. 11 But -- so, yes obviously we do want to 12 tighten up, and we want to make sure that we only get the 13 most -- the best and most reliable and most qualified, 14 but we want to make sure that we don't unfairly deprive 15 the defence, for example, of what could be very important 16 evidence. 17 MR. JEFFREY MANISCHEN: Sure. Except I 18 would say this, and it does lead then to the questions I 19 was going to ask you, Justice Rosenberg, because we have 20 -- I think I've seen more cases where potential defence 21 expert evidence has been excluded than prosecution. 22 You've raised issues about resource 23 implications and indicated that many of the cases are 24 fact-based. In shaken baby, there are a variety of 25 discreet issues apart from the Shaken Baby Syndrome

122

1 generally. 2 Such as the lucid interval that may occur 3 between a particular event and ultimate death by the 4 child, and who's going to be responsible, and it's used 5 as a basis for evidence of timing. 6 And frequently, the all important issue of 7 opportunity. Issues of degree of force and short 8 distance fall. Issues of the relevance that a historical 9 event. If there was an indication of a prior brain 10 injury, prior subdural hemorrhage, for example, and what 11 kind of force is needed then the lead to a rebleed. 12 Those are all areas that I -- I would 13 suggest to you require specific voir dires, 14 notwithstanding resources, to determine whether we have a 15 sufficient evidentiary body and the research to permit an 16 expert to give an opinion on that. 17 Can you not foresee that we could wind up 18 with several voir dires that are specific issue-based? 19 JUSTICE MARC ROSENBERG: You know, Jeff, 20 you're not going to like this, but I'm not going to 21 answer that question. 22 Only because -- and I have a -- I think 23 some of those cases are coming to our Court, and it's 24 probably better that I not comment on it. 25 MR. JEFFREY MANISHEN: Perhaps if we --

123

1 if we phrase it, just generally, as appreciating that 2 there is a need for the resources, certainly our system 3 should permit it. 4 But within the criminal justice system, we 5 have to realize that those resources have to be allocated 6 for potential defence experts, for the time you spent on 7 the voir dires. 8 If you don't exp -- express that 9 restriction before it comes in, frequently, it's too 10 late. So the general proposition is that the resources 11 should be allocated where issues will require it. 12 Would you agree with that? 13 JUSTICE MARC ROSENBERG: Jeff, that's a 14 great speech you should make to the Commissioner when you 15 want that research. 16 MR. JEFFREY MANISHEN: I take the answer 17 is yes? 18 JUSTICE MARC ROSENBERG: I'm just going 19 to ask, has the witness been sworn? 20 MR. JEFFREY MANISHEN: Yeah. 21 JUSTICE MARC ROSENBERG: I have this 22 advantage. Jeff was our student, you know. He articled 23 for us. I know all his tricks, so. 24 COMMISSIONER STEPHEN GOUDGE: You have 25 been through this before.

124
  1                 MR. JEFFREY MANISHEN:   Very true except -
  2  - back then I -- I think we -- we were dealing with one
  3  another in a different way.  I would buy you coffee,
  4  dinner.  I can't do that anymore.
  5                 Here's the other question, and it's one
  6  (1) that I did raise with you before.
  7                 We have -- we've been focussing on
  8  standards to determine evidence getting in -- not in, but
  9  you raised, Justice Rosenberg, the problem that can occur
 10  when you have evidence such as Child Abuse Accommodation
 11  Syndrome, which is introduced regularly over the course
 12  of years until the social science indicates it may be
 13  unreliable, and what it takes to have it then ruled
 14  inadmissible.
 15                 And the question of what kind of legal
 16  standard -- and it's really one (1) to just explore,
 17  because we don't really have it.
 18                 What kind of legal standards should be set
 19  to basically allow for a change in common law principle,
 20  to recognize change in science, to say what we used to
 21  let in, we aren't going to let in anymore?
 22                 Because then that would let defence
 23  counsel say, I'm not bound by precedent.  We've got to
 24  change the social science.  Here's what I have to do to
 25  have evidence previlly -- previously ruled admissible,

125

1 now inadmissible. 2 What do you think in terms of just general 3 concept of a standard? How would we posit such a 4 standard? 5 JUSTICE MARC ROSENBERG: Well I don't 6 think you -- you could ever come up with a standard, or 7 that you need a standard. 8 So let me just say two (2) things. First 9 of all, I think Gary, in his paper, has made a very 10 convincing argument, that the Supreme Court of Canada has 11 left it open to challenge established fields of science. 12 Notwithstanding that they've been 13 established, and we all know the cases, and you know, 14 when the issue comes before the Courts, we'll deal with 15 it. 16 So, you know, there -- the mechanism is 17 there, and you can probably ask Gary some more about it. 18 I do worry about fact-based determinations 19 masquerading as legal propositions, and we kind of 20 touched on this. 21 And that somehow evidence that was heard 22 in particular context finds its way to, for example, in 23 the worse case scenario, it's the Supreme Court of 24 Canada, and they simply endorse it, and -- and people 25 take that as having, Well the Supreme Court of Canada has

126

1 now said that that fact is a legal proposition. 2 So I think we have to be careful about 3 that. The caution I guess is just to judges -- appellate 4 judges of all, you know, levels, that we should be 5 conscious of that -- that we have to be careful that what 6 we are -- as Pat says, we are essentially determining 7 cases based on the dispute between the parties, and we -- 8 we try, I think, not to stray too far. "Not to roam", as 9 has become the phrase here today. 10 Not to roam outside too much, especially 11 in areas that we're not -- that we're not -- we don't 12 have the expertise. 13 The law, yes, we can do. Facts, I think 14 we have to be very careful. 15 MR. JEFFREY MANISHEN: And, Professor 16 Edmond, in terms of your comment on that, because it 17 would seem clear from your paper that we've identified it 18 as a problem. 19 How do you perceive the way in which our 20 law should perhaps evolve to provide a basis for counsel 21 to challenge existing scientific beliefs by new science 22 and new evidence? 23 DR. GARY EDMOND: I -- I think it should 24 just be left out, and I think that once something is past 25 the novel stage, it doesn't preclude the fact, or the

127

1 ability to challenge that evidence and have a review. 2 I think the proponent of evidence should 3 be expected to demonstrate the reliability of that 4 evidence subject to ongoing criticisms, studies, and so 5 forth. 6 MR. JEFFREY MANISHEN: And new science 7 can provide the basis to challenge the previously held 8 beliefs. 9 DR. GARY EDMOND: Often it can, yes. 10 MR. JEFFREY MANISHEN: Thank you. 11 COMMISSIONER STEPHEN GOUDGE: Thanks, Mr. 12 Manishen. 13 Ms. Rothstein...? 14 MS. LINDA ROTHSTEIN: Well Commissioner, 15 it would have been awkward if, today of all days, we'd 16 gone over your time limits. 17 COMMISSIONER STEPHEN GOUDGE: Yes. 18 MS. LINDA ROTHSTEIN: So I want to thank 19 all of our panellists very, very much for their enormous 20 contribution to the work of our Inquiry. 21 I'm sure the Commissioner has some words 22 as well. 23 COMMISSIONER STEPHEN GOUDGE: Yes. Let 24 me just say on behalf of all of us how grateful we are 25 for this morning.

128

1 It is a unique opportunity, and the wisdom 2 that we have received is really -- we are very grateful 3 for it. So thank you all. 4 We will adjourn then until 1:30. 5 6 --- Upon recessing at 12:15 p.m. 7 --- Upon resuming at 1:34 p.m. 8 9 THE REGISTRAR: All rise. 10 COMMISSIONER STEPHEN GOUDGE: Please sit 11 down. 12 Ms. Rothstein...? 13 14 CONTINUED BY MS. LINDA ROTHSTEIN: 15 MS. LINDA ROTHSTEIN: Thank you very 16 much, Commissioner. To -- to wrap up this afternoon, we 17 have called back Mr. Alastair MacGregor, QC As you know, 18 he was introduced to us yesterday, the Deputy Chair of 19 the Criminal Cases Review Commission of England, and 20 prior to that, a very active member of the English bar, 21 becoming a QC in 1994. 22 And I'm also delighted to welcome Andrew 23 Robertson, QC, who is the head of chambers at KBW which 24 was formerly located in -- in London but recently 25 relocated to Leeds.

129

1 Mr. Robertson is a senior barrister, 2 prosecuting and defending criminal cases, including 3 homicide cases, many of which involve pathological 4 issues. Also a civil lawyer, so suggesting that the -- 5 our English colleagues are a little more versatile 6 perhaps in their approach. 7 Mr. Robertson has also been involved in 8 cases referred to the Court of Appeal by the CCRC, making 9 that an interesting relationship. And he is presently 10 involved, as we'll hear, in some of the SBS cases; has 11 some involvement in those and can offer -- shed some 12 light on how one develops those cases for prosecution in 13 light of the English Court of Appeal's decision in 14 Harris. 15 So very pleased to welcome both of you. 16 Thank you very much. 17 18 THE JUDICIAL SYSTEM AND EXPERT SCIENTIFIC EVIDENCE PANEL 19 2: 20 21 ALASTAIR MACGREGOR 22 ANDREW ROBERTSON 23 24 QUESTIONED BY MS. LINDA ROTHSTEIN: 25 MS. LINDA ROTHSTEIN: I would like to

130

1 start with you, Mr. Robertson, with perhaps what may be a 2 point that -- that Canadians don't think very much about 3 but what the potential impact is of both being a silk on 4 the prosecution side and a silk for the defence. 5 What can you tell us about that? 6 MR. ANDREW ROBERTSON: Well, I regard it 7 is a very important factor. I regard it as an important 8 constitutional factor. It means that when you prosecute, 9 you do see things from the defence point of view. I've 10 heard the expression "tunnel vision" used in this 11 Inquiry. Hopefully, as a result of representing both 12 defendants and the Crown, you avoid falling into that 13 trap. 14 And in -- in addition to that, I mean, we 15 might be accused of, as it were, not being particularly 16 vigorous when we prosecute because we defend, as well. 17 That's untrue. We will be vigorous prosecutors, despite 18 having defence experience. 19 But at the same time, I'd like to think 20 that we're also conscious that we've got to be fair 21 throughout. And one (1) of the ironies is that I found 22 that if you are fair when you prosecute, first of all, 23 you're more likely to avoid a miscarriage of justice 24 situation, but also you're more likely to get a 25 conviction in the right case, whereas a jury might take

131

1 against you if they get the impression that you're being 2 vindictive throughout. 3 MS. LINDA ROTHSTEIN: It's an interesting 4 perspective. We have lots of questions for you about 5 your experience. 6 But I do want to come back to you, Mr. 7 MacGregor, because some questions arose yesterday evening 8 about some of the statistics of the CCRC. And you've had 9 a moment to reflect on that, I gather, and give us a 10 little bit more information about how many cases you 11 process in a year, how many of them are sentence only, 12 and what the outcome of those cases have been. 13 Have you got your handwritten aide- 14 memoire? 15 MR. ALASTAIR MACGREGOR: No, you now have 16 the information -- 17 MS. LINDA ROTHSTEIN: Okay. 18 MR. ALASTAIR MACGREGOR: -- and I don't. 19 MS. LINDA ROTHSTEIN: Okay. So I'm going 20 to give it to you and you can tell us... 21 22 (BRIEF PAUSE) 23 24 MR. ALASTAIR MACGREGOR: I was able to 25 get the figures since 2002 when we've had eight hundred

132

1 and eight (808) sentence only cases. So that's been 2 about 14 percent of the total. 3 Since 2002, I was asked about serious 4 homicide cases and so on, we've had seven hundred and 5 seventy-two (772) applications to do with murder, 6 covering eight hundred and sixty-seven (867) deaths, 7 seventy-two (72) applications for convictions for 8 manslaughter covering seventy-four (74) deaths, and nine 9 hundred and twenty-one (921) applications for violence to 10 the person covering twelve hundred and nineteen (1,219) 11 offences, so it's been about 31 percent of the 12 applications we've received since 2002 have been of those 13 serious... 14 MS. LINDA ROTHSTEIN: Good. So, Mr. 15 Robertson, what I thought we would do was sort of walk 16 through the process of being engaged as a silk on an 17 important child homicide case and use that as the vehicle 18 to ask you some of the questions that you've seen 19 discussed in our previous panels. 20 So, the first question that comes to mind 21 is, is it indeed the case that in complex homicide cases 22 in England a silk is retained, not -- notwithstanding the 23 means of the accused? 24 MR. ANDREW ROBERTSON: Yeah, usually. In 25 the sort of cases that you have been talking about in

133

1 this Inquiry it would be very unusual for anyone other 2 than a silk with the assistance of the junior counsel to 3 represent the defendant. 4 Although there have been limitat -- 5 financial limitations put from the use of silks, in those 6 particular type of sensitive cases a defendant would also 7 all -- always get legal aid for QC and the junior. 8 MS. LINDA ROTHSTEIN: Okay. And I think 9 you've told us that that doesn't mean that the legal aid 10 system is one that hasn't caused a lot of concern amongst 11 the members of the Bar in terms of the funding levels, 12 but at least for the complex cases you feel comfortable 13 that very senior members of the Bar indeed retain to do 14 them. 15 MR. ANDREW ROBERTSON: In -- in a case 16 where a mother or a carer is charged with killing a child 17 and where there are pathological issues there will -- 18 there will always be made available a silk and a junior-- 19 MS. LINDA ROTHSTEIN: Okay. 20 MR. ANDREW ROBERTSON: -- I'm satisfied 21 with that. 22 MS. LINDA ROTHSTEIN: Okay. And it -- 23 that's on both sides, prosecution and defence? 24 MR. ANDREW ROBERTSON: The -- the 25 prosecution are not limited by the demands of the legal

134

1 system, they have their own budget, but they would als -- 2 always ensure that in such a sensitive case they also had 3 a QC, so there would be equality of arms, as it were, as 4 regards to the legal representatives. 5 Moving on from that, there would also be a 6 quality of arms as rega -- as regards expert evidence. 7 The prosecution may have a number of experts, say a 8 pathologist, a pediatrician, a neuropathologist, means 9 would be made available to ensure that the defence also 10 were able to instruct persons in those disciplines. 11 COMMISSIONER STEPHEN GOUDGE: What sort 12 of tariff is available from -- 13 MR. ANDREW ROBERTSON: Sorry, what sorts 14 of -- 15 COMMISSIONER STEPHEN GOUDGE: Tariff -- 16 funding levels are available for both silks and experts, 17 Mr. Robertson? I mean one (1) of the concerns we've had 18 some evidence about is the level of legal aid for that 19 purpose in Ontario. 20 MR. ANDREW ROBERTSON: I can't give you a 21 figure. What I can say is that the sort of pathologist 22 that you've heard from in this Inquiry, such as Professor 23 Milroy and Professor Whitwell, are more than happy to 24 work at that rate -- they don't turn their backs on these 25 sort of cases --

135

1 COMMISSIONER STEPHEN GOUDGE: Right. 2 MR. ANDREW ROBERTSON: -- so the defence 3 are able to get the very best in the country. 4 COMMISSIONER STEPHEN GOUDGE: Right. 5 MR. ANDREW ROBERTSON: And sufficient 6 funds are made available. 7 COMMISSIONER STEPHEN GOUDGE: Right. 8 MR. ANDREW ROBERTSON: But I can't give 9 you -- I don't know what they get paid. 10 COMMISSIONER STEPHEN GOUDGE: And what 11 about the lawyers? 12 MR. ANDREW ROBERTSON: The lawyers don't 13 get paid enough. 14 MS. LINDA ROTHSTEIN: So as you -- 15 COMMISSIONER STEPHEN GOUDGE: Well, now 16 I've heard that before. 17 MR. ANDREW ROBERTSON: I mean I think you 18 could work basically on a publically funded defence case 19 for a silk, that he'd be getting probably between fifteen 20 (15) and twenty thousand (20,000) for each week of the 21 trial. So if it was -- if it was a two (2) week case he 22 would probably get about forty thousand ($40,000) 23 Canadian dollars for the whole case; that would include 24 all the preparation, all the interlocutory hearings and 25 anything else that had to be done.

136

1 2 CONTINUED BY MS. LINDA ROTHSTEIN: 3 MS. LINDA ROTHSTEIN: Mr. MacGregor, are 4 you able to comment at all on whether the funding of 5 counsel and perhaps the insufficient funding of counsel 6 plays a role at any of the cases that come before the 7 CCRC? 8 MR. ALASTAIR MACGREGOR: I'm -- I'm 9 certainly not conscious of that having been a complaint. 10 MS. LINDA ROTHSTEIN: Okay, that's 11 interesting. So, you've been retained, there's a silk on 12 each side, you're in a complex case, and you're trying to 13 determine what experts you need, what if any impact has 14 the Harris case and the legacy of some of the concerns 15 raised by Dr. Meadow's conduct had on the willingness of 16 the medical profession to assist you in these cases? 17 MR. ANDREW ROBERTSON: I found, and I 18 found it from my personal experience, but also talking to 19 potential experts, is that there's but -- what might be 20 described as a chill factor. 21 One has to remember that a lot of these 22 experts are also clinicians, they've got other jobs. And 23 there is a reluctance because of what they've seen happen 24 to particular experts for them to get involved in 25 controversial cases.

137

1 You may have read in the Kennedy report 2 that Baroness Kennedy advocated that if in a particular 3 case one (1) of the experts was the treating clinician, 4 say in a shaken baby case, she would recommend that the 5 Crown should find an independent objective expert who 6 would -- who would not be tainted by his proximity to the 7 family and the like. 8 It's my experience that it can take a very 9 long time; one can ring up ten/fifteen (10)/(15) experts 10 before one actually gets hold of one who's prepared to do 11 the case. And that is becoming a problem. 12 MS. LINDA ROTHSTEIN: Do you ever reach 13 outside of England for experts? 14 MR. ANDREW ROBERTSON: If necessary, but 15 I'd -- I'd be reluctant to do that. There would be a 16 funding issue then. 17 MS. LINDA ROTHSTEIN: Okay. 18 MR. ANDREW ROBERTSON: There would be a 19 real funding issue then. 20 MS. LINDA ROTHSTEIN: Okay. 21 MR. ANDREW ROBERTSON: If you are 22 defending, you may have to go outside England in order to 23 find a person who advocates a particular theory. I don't 24 want to go into too much detail, but as regards to Shaken 25 Baby Syndrome, although there are still people in England

138

1 who -- as it were, adopt a sort of quasi-Geddes 3 2 approach to the problem, really you've got to go outside 3 the jurisdiction in order to get someone who will advance 4 that theory forcefully. 5 MS. LINDA ROTHSTEIN: Okay. Now we've 6 heard from Dr. Milroy, Dr. Whitwell, and -- and indeed 7 others, Dr. Crane, who you may also know -- 8 MR. ANDREW ROBERTSON: Dr. Crane, yes. 9 MS. LINDA ROTHSTEIN: -- about what the 10 expectations are for expert reports in your country. And 11 we understand that they're considerably more detailed and 12 precise than ours are. 13 Tell us about the importance of that from 14 the perspective of the litigating Barrister. How much 15 you'd indeed rely in the expert chronicling and 16 memorializing his or her opinion, and the full limits of 17 it? 18 MR. ANDREW ROBERTSON: It's absolutely 19 crucial. There's a -- a manual in your compendium that 20 was drawn up by the Crown prosecution service and the 21 director of public prosecutions, advising experts 22 themselves and how they should approach the job. 23 And there's a -- there effectively a mant 24 -- mantra, I think it's: rec -- rec -- record, reveal, 25 retain, something like that. So they have to retain,

139

1 record and let the other side know what all the material 2 is that's in their hands and have open access to it. 3 When they come to do their reports -- 4 we're talking about prosecution experts now -- they have 5 to be detailed reports. There are rules of procedure 6 layed down by statute setting out exactly the format of 7 those reports. 8 One (1) of those matters is the 9 declaration that the expert is being objective and 10 realized that his dut -- first duty is to the court, not 11 to a party. And contrary to some of the things that were 12 said this morning, my experience has been that that is 13 not, certainly in the criminal jurisdiction, purely 14 cosmetic. It has an educative effect, because they 15 realize it is the first part of that addendum. They 16 realize how important it is. 17 Although I mentioned the chill factor, one 18 (1) of their facts of the experiences of the Sally Clark 19 and Canning's cases, is that pathologists are very 20 conscious of what their role really should be, and that 21 re-enforces it. 22 MS. LINDA ROTHSTEIN: And that's a 23 positive for sure? 24 MR. ANDREW ROBERTSON: Absolutely. 25 Absolutely.

140

1 MR. ALASTAIR MACGREGOR: Can I just -- 2 MS. LINDA ROTHSTEIN: Yes, by all means. 3 MR. ALASTAIR MACGREGOR: My experience of 4 using such experts was as a civil litigator, but again, 5 there's a similar certification and it -- I -- I believe 6 it was not merely cosmetic. I think it had a serious 7 impact upon the way in which experts approached the task, 8 because after all if they got, as it were, found out, it 9 seriously affected their reputations. 10 So I -- I -- it's much more than cosmetic. 11 MR. ANDREW ROBERTSON: Yes. And one (1) 12 matter that I've been acutely conscious of as in regards 13 to the difference between our jurisdiction and yours is 14 is regards to the duties of disclosure. 15 You may have similar rules for the 16 prosecution, I don't know, but the prosecution 17 pathologist must disclose his detailed report setting out 18 all the things that are set out in the rules of 19 procedure. The defence also has -- 20 MS. LINDA ROTHSTEIN: Stopping there for 21 a moment. That includes a literature list, if I 22 understand -- 23 MR. ANDREW ROBERTSON: Yeah, yeah. 24 MS. LINDA ROTHSTEIN: -- what you've told 25 me.

141

1 MR. ANDREW ROBERTSON: Yeah. 2 MS. LINDA ROTHSTEIN: In other words, the 3 expert has to detail all of the scholarly research upon 4 which he or she relies. 5 MR. ANDREW ROBERTSON: That's right. So 6 going back to what we heard this morning from the 7 professors, effectively the empirical research that 8 supports the view that they're expanding in their report, 9 has to be set out in a bibliography at the end. 10 MS. LINDA ROTHSTEIN: And do you hear 11 grumbling from your experts about the sort of onerous -- 12 onerous nature -- 13 MR. ANDREW ROBERTSON: No, no. 14 MS. LINDA ROTHSTEIN: -- of that? 15 MR. ANDREW ROBERTSON: No, they tend to 16 do it automatically. 17 MS. LINDA ROTHSTEIN: Okay. 18 MR. ANDREW ROBERTSON: In the same way 19 that an academic would automatically list their 20 references at the end, they do it in their reports. 21 Some of them actually disclose, or attach 22 to their reports, photocopies of the literature itself. 23 If they haven't done that, then a time will come in the 24 proceedings when there may be a direction from the judge, 25 or if not, it would be done exchange of correspondence,

142

1 that all the literature be exchanged. 2 So that you can see precisely the basis -- 3 the scientific basis -- upon which they've come to their 4 conclusion. 5 Also, of course, whether you're 6 prosecuting or defending, you need that literature in 7 order to cross-examine, to see whether, in fact, it 8 supports their view to the extent that they say. 9 MS. LINDA ROTHSTEIN: Mm-hm. 10 MR. ANDREW ROBERTSON: And it may well be 11 one (1) of your main sources of cross-examination in 12 trying to discredit them. 13 MS. LINDA ROTHSTEIN: And to what -- 14 COMMISSIONER STEPHEN GOUDGE: What is the 15 genesis of those requirements, Mr. Robertson? 16 MR. ANDREW ROBERTSON: Right. 17 COMMISSIONER STEPHEN GOUDGE: Are they of 18 longstanding, and how did they come about? 19 MR. ANDREW ROBERTSON: Evolution. As we 20 heard was the experience in Australia this morning, it 21 started off in the Civil Courts, where experts have been 22 used in personal injury litigation the whole time. 23 And the -- the judges were getting tired 24 of listening to experts going on for days, and then 25 realizing there's only one (1) single issue right at the

143

1 end of it all. 2 And, so there were various judicial 3 pronounces about the exchanging of literature, reports, 4 the experts getting together to reduce the issues to a 5 minimum so that the -- the trial could move smoothly. 6 When we come to Harris, you will see that, 7 in fact, the Court there adopted those recommendations 8 from the civil jurisdiction. 9 That was rammed home in another case 10 called Bowman, and thereafter, the judges having said it 11 so many times, it was eventually put into a statutory 12 instrument, and it's part of our rules and procedure. 13 COMMISSIONER STEPHEN GOUDGE: Right, but 14 it -- the judicial pronouncement obviously, or 15 pronouncements, had a significant impact on creating the 16 statutory instrument. 17 MR. ANDREW ROBERTSON: Absolutely. 18 COMMISSIONER STEPHEN GOUDGE: Right. 19 MR. ANDREW ROBERTSON: I mean, one (1) 20 might say that we should have been doing it without a 21 statutory instrument, seeing what the judges have been 22 saying. 23 But once it's put into a statutory 24 instrument, everybody's got to take full note of it. 25 COMMISSIONER STEPHEN GOUDGE: Right.

144

1 CONTINUED BY MS. LINDA ROTHSTEIN: 2 MS. LINDA ROTHSTEIN: To what extent, if 3 at all, do those expert reports clearly frame the extent 4 of the expertise of that expert and the limits of his or 5 her opinion? 6 MR. ANDREW ROBERTSON: They are supposed 7 -- they are supposed to set out, in full, the person's 8 expertise. The expert is supposed to set out all the 9 various options -- his regards, conclusions -- that might 10 be drawn from the factual evidence, and explain why he 11 comes to a particular conclusion. And also to explain 12 why he rejects other conclusions. 13 Now as you go on to the "roaming" that we 14 heard about this morning, an expert shouldn't even be 15 putting anything in his report which is outside his 16 expertise. 17 You may, however, if we're talking about 18 pathologists, and it might be regarded as a very broad 19 subject, matters will creep into that report. 20 For instance, just as by way of an 21 example, you may get a pathologist talking about 22 statistics. He ought to know better since the Meadows 23 experience. 24 He might be talking about blood clotting 25 when he's not a hematologist. And it may be that me,

145

1 whether I'm prosecuting or defending, would not pick it 2 up as being outside his expertise. 3 I mean, I might take the general approach, 4 Well, he's a pathologist. He knows a lot more about than 5 me. Maybe he does feel he can talk about it. 6 I would then be dependent upon my own 7 expert to point out to me that that is outside the ambit 8 of the other expert's experience and expertise. 9 And the way that we would deal with it, in 10 practical terms, is that I would approach the other side, 11 and say Okay, when you come to leave this evidence in 12 Court I don't want you leading anything about statistics, 13 I don't want you leading anything about blot clotting. 14 The other side's counsel will go and speak 15 to his experts and he may say, Yeah, actually it is 16 outside my field, leave it alone, or he may say, Look, 17 although I'm a pathologist I'm still competent to make 18 these sorts of pronouncements, in which case you would be 19 able to have an argument on that issue, basically a short 20 voir dire in front of the Judge to decide whether or not 21 it should be admitted. 22 My experience generally of the Judge's 23 attitude to that sort of thing where the pathologist is 24 obviously very well qualified, but might be straying 25 slightly out of his field, is that he'd be likely to say,

146

1 Well, he is an expert; he might not be the best expert in 2 the field, he might not be as -- as experienced as a 3 hematologist, but he's still capable of giving that 4 evidence. 5 And that's why the disclosure of the 6 reports is so important because whichever side I'm -- I'm 7 on, if I see a report from a thol -- pathologist and it 8 includes evidence that relates really to a hematology 9 say, I'll discuss it with my own pathologist. And if 10 he's -- if he says, Well, actually, it is not a 11 pathological issue, you need a hematologist, then I would 12 go and get a hematologist and that report would then have 13 to be served on the other side, whether I'm prosecuting 14 or defending. And that's how they -- the system 15 operates. 16 MS. LINDA ROTHSTEIN: Apart from those 17 cases that you've identified where the expert is roaming 18 or straying outside his expertise, how frequently is it 19 the case in your criminal cases that one side or the 20 other actually challenges the ability of a purported 21 expert to give expert evidence? 22 MR. ANDREW ROBERTSON: Well, I'm very 23 conscious that this an inquiry into forensic pathology. 24 In the UK, although criticisms have made of various 25 pathologists in the last ten (10) years, they're all

147

1 extremely highly trained. Those who carry out the post- 2 mortems are home office listed and they're the forensic 3 pathologists who will give evidence for the Crown. The 4 defence will also have a forensic home office pathologist 5 so there's equality of arms there. And there -- it will 6 be pointless trying to challenge that sort of evidence, 7 to suggest that home office qualified listed pathologist 8 isn't competent to give that sa -- this sort of evidence. 9 My experience and one (1) of the 10 representatives this morning was -- it was pointed out to 11 him how the defence may suffer if the rules are, as it 12 were, tightened. My experience is that quack science or 13 that sort of thing is very, very rare in our 14 jurisdiction, but if you do get it you tend to get it 15 from the defence. 16 The Crown prosecution service, despite 17 their -- their failings and their problems, are very 18 conscious that they have to use reputable experts. And 19 I've never came across a case where a prosecution expert 20 has been successfully challenged on his competence to 21 give expert evidence. Occasionally, very occasionally, 22 but usually minor cases on some obscure sub-discipline, 23 it's been done where the -- the defence have found 24 someone. 25 I can give you one (1) example, actually,

148

1 and it's quite an amusing example, and one (1) of the 2 cases in the compendium refers to this. One (1) way of 3 determining time of death where a chi -- where a body is 4 discom -- decomposing, it's just look at the insect life 5 and find out whether eggs have been laid in the body. 6 I remember having a case where we called - 7 - we have this preeminent zoologist from oxford. The 8 defence decided to instruct the local maggot farmer and 9 we got -- we got his report on a piece of paper and 10 there's this little man on the top trying to catch fish. 11 Unfortunately we never got a ruling on that. The 12 defendant decides to plead guilty. Now that's probably 13 an extreme example. 14 MS. LINDA ROTHSTEIN: That's fantastic. 15 I was hoping, Commissioner, we could entice Mr. Robertson 16 to tell a few stories and I take it won't be difficult. 17 Mr. Robertson, so the -- this thorny area 18 that you heard the four (4) panellists this morning 19 grappling with: how, if at all, ought the system to -- to 20 calibrate the reliability of proposed expert evidence; 21 how do you -- how does one do that, how do judges perform 22 the gatekeeper function. 23 What's your experience in England? How 24 would you deal with an issue about potentially frail 25 scientific evidence that you thought perhaps unreliable?

149

1 Leave aside junk science or truly novel -- 2 MR. ANDREW ROBERTSON: We -- we -- 3 MS. LINDA ROTHSTEIN: Leave aside junk 4 science or -- or the stuff that you and I would agree you 5 just take a big whack at. But how would one deal and how 6 frequently is that one would challenge the reliability of 7 -- leave it this way -- medical scientific evidence? 8 MR. ANDREW ROBERTSON: Right. Or -- or 9 forensic science. 10 MS. LINDA ROTHSTEIN: Forensic science -- 11 MR. ANDREW ROBERTSON: Yeah. I think we 12 live in a real world and we have to accept that there are 13 lots and lots of cases where there is no medical issue to 14 all that was said this -- this morning. And as you -- as 15 you go I'll tell you possible of -- they -- professors 16 advocating any system where automatically you have to 17 evaluate any expert evidence would -- that would bring 18 the courts to a halt and -- to a halt unnecessarily. 19 In the right case in England, you could 20 challenge the admissibility of that frail evidence on the 21 basis of lack of reliability. We have such a -- a 22 provision called Section 78 of the Police and Criminal 23 Evidence Act. And basically there, the judge has to 24 decide whether the admission of that evidence would have 25 an adverse effect on the fairness of the proceeding.

150

1 It's a very broad general statute 2 provision that really follows our common law, and another 3 way of looking at is from the common law principle of 4 weighing up probative value as against prejudices. 5 Basically the same thing. 6 MS. LINDA ROTHSTEIN: Same here. Mm-hm. 7 MR. ANDREW ROBERTSON: And in -- and in 8 my book, that in many instances can come down putting it 9 -- using another term -- to reliability. You have the 10 option of having a voir dire, but you don't have to have 11 a voir dire. You could run that evidence in front of the 12 jury and the judge and then make a submission to the 13 judge about it at a later stage. 14 Now, I heard this morning of objections 15 being taken to that sort of cause. It -- it's my 16 experience -- and this may go back to judicial training - 17 - that often you realize that on a voir dire, in front of 18 judge, you may well lose. However, if you take the whole 19 of the prosecution case when you're defending to explore 20 this issue and highlight, as you go along, how unreliable 21 this evidence is, by the time you get to the end of the 22 prosecution case, the message has got well and truly 23 through to the judge. 24 You have in your compendium the recent 25 Northern Irish case of Hoi about particular types of DNA

151

1 evidence. It was a sligh -- there was no jury there 2 because of the Northern Irish situation is -- is slightly 3 different certainly in terrorist type trials, but the 4 situation, at the end of the prosecution case, is this. 5 1. You could make a submission on 6 admissibility, but -- and this would be the master of 7 tactics and you thinking the case through, if as in many 8 of these child homicide cases the substantial evidence is 9 expert evidence, the probability is that if you can make 10 a submission at the end of the prosecution case that that 11 evidence is inadmissible. 12 You are effectively making a submission 13 that there's no case to answer. And so effectively, you 14 couple the two (2). And in my judgment, you're more 15 likely to succeed if you let it run the whole time and 16 bring out all the defects in the evidence as happened in 17 Hoi. 18 COMMISSIONER STEPHEN GOUDGE: And the 19 judge would feel at that point, Mr. Robertson, no 20 constraint in coming to a conclusion that the evidence in 21 light of the entirety of the prosecution's case, the 22 expert evidence, was unreliable and should be removed 23 from the jury? 24 MR. ANDREW ROBERTSON: Yes. And what -- 25 what I'm saying is -- if it be a case that, by in large,

152

1 turns on that expert evidence, -- 2 COMMISSIONER STEPHEN GOUDGE: Right. 3 MR. ANDREW ROBERTSON: -- you've 4 obviously got a submission anyway. 5 COMMISSIONER STEPHEN GOUDGE: Right. 6 MR. ANDREW ROBERTSON: And what may 7 influence you in deciding whether to have a voir dire or 8 not is this, if you realize that by running the case till 9 half time, you've got a good chance of getting the judge 10 on your side, you're going to get rid of the whole case 11 as a result of getting rid of that evidence. 12 And this morning, sir, you were asking 13 about what test of reliability should be used, and I've 14 been thinking about it. The -- our -- our general rule 15 for making a submission is that the -- obviously, if 16 there -- if there is no evidence to support the 17 particular charge, that's the end of the matter. 18 But we have a case called Galbraith, I 19 don't know if you've heard of -- of it, and it's the 20 second limb where the judge can enter into the fact- 21 finding fray, as it were. And hit -- if his view is that 22 the evidence is so unreliable that a jury, properly 23 directed, could not reasonably convict, then he should 24 withdraw it from the jury. 25 And I was thinking that if a test had to

153

1 be applied at the voir dire stage, it should be a very 2 similar type of test. 3 COMMISSIONER STEPHEN GOUDGE: That no 4 reasonable jury could use that evidence -- 5 MR. ANDREW ROBERTSON: Absolutely. 6 COMMISSIONER STEPHEN GOUDGE: -- to 7 convict? 8 MR. ANDREW ROBERTSON: That's how I put 9 it. But then, as regards ticking boxes, as was -- as was 10 being discussed this morning, I don't think you can 11 legislate for it. It's a matter of your judgment, sir, 12 as the judge. I mean, I'd like to say that's what judges 13 are paid for -- 14 COMMISSIONER STEPHEN GOUDGE: Right. 15 MR. ANDREW ROBERTSON: -- to use -- 16 COMMISSIONER STEPHEN GOUDGE: Right. 17 MR. ANDREW ROBERTSON: -- that sort of -- 18 COMMISSIONER STEPHEN GOUDGE: Right. And 19 -- and -- 20 MR. ANDREW ROBERTSON: -- judgment. 21 COMMISSIONER STEPHEN GOUDGE: -- 22 Professor Edmond made clear that the list is not to be 23 used as a series of boxes to be ticked but as a series of 24 considerations that a judge might use in the overall 25 application of a test like -- could a jury, reasonably

154

1 instructed, convict on the basis of this evidence. 2 MR. ANDREW ROBERTSON: Yes, but at the 3 end of the day, it's really, I wouldn't say an intuitive 4 reaction but it's your personal reaction into -- 5 COMMISSIONER STEPHEN GOUDGE: It's an 6 informed judgment, how about that? 7 MR. ANDREW ROBERTSON: Yes, yes, that's a 8 way of putting it. But if you -- if you, for instance, 9 thought to yourself, I would feel very uneasy about a 10 jury convicting on this evidence no matter what 11 principles you apply, if that's your gut feeling at the 12 end of the day, it's my opinion you shouldn't be letting 13 that evidence in and you shouldn't be letting that case 14 go any further forward. 15 COMMISSIONER STEPHEN GOUDGE: Right. 16 Right. But the judicial disposition of the evidence 17 would be with reasons that would then be open to 18 appellate review? 19 MR. ANDREW ROBERTSON: Well, it would be 20 with reasons. We've got -- the judges have to give full 21 reasons now for any decision. 22 COMMISSIONER STEPHEN GOUDGE: Right. And 23 if it effectively disposes of the case, I can't imagine 24 there couldn't be appellate scrutiny. 25 MR. ANDREW ROBERTSON: You'll have to

155

1 forgive me, I haven't brought my Bible with me which is 2 called Archibald. There are various -- there are various 3 provisions for the -- the prosecution very recently to 4 make applications to the Court of Appeal in certain 5 cases, and -- but by -- and by and large, if -- if the 6 judge throws the case out at the end of the prosecution 7 case, that's the end of the -- 8 COMMISSIONER STEPHEN GOUDGE: Right. 9 MR. ANDREW ROBERTSON: -- end of the 10 matter in -- 11 COMMISSIONER STEPHEN GOUDGE: Right. 12 MR. ANDREW ROBERTSON: -- the vast 13 majority of cases. Obviously, if he's against you, if 14 you're defending, he has to give full reasons and you 15 will at a later stage be able to appeal if you're 16 eventually convicted -- 17 COMMISSIONER STEPHEN GOUDGE: Right. 18 MR. ANDREW ROBERTSON: -- by the jury. 19 COMMISSIONER STEPHEN GOUDGE: Would you 20 apply the same standard to the defence evidence or how 21 would you articulate it for the defence? 22 MR. ANDREW ROBERTSON: How would I... 23 COMMISSIONER STEPHEN GOUDGE: Because, 24 presumably, the -- there would be a reliability test -- 25 MR. ANDREW ROBERTSON: Yeah, how would

156

1 I -- 2 COMMISSIONER STEPHEN GOUDGE: -- 3 available to defence. 4 MR. ANDREW ROBERTSON: -- how would I 5 test the reliability -- 6 COMMISSIONER STEPHEN GOUDGE: Yes. 7 MR. ANDREW ROBERTSON: -- test? Well, I 8 put it this way, could -- could the jury properly and 9 reasonably take this evidence into account -- 10 COMMISSIONER STEPHEN GOUDGE: In finding 11 a -- 12 MR. ANDREW ROBERTSON: -- in coming to a 13 proper -- 14 COMMISSIONER STEPHEN GOUDGE: -- a 15 reasonable doubt or something? 16 MR. ANDREW ROBERTSON: -- in coming to a 17 proper decision in this case? 18 COMMISSIONER STEPHEN GOUDGE: Right. 19 Right. 20 MR. ANDREW ROBERTSON: Yes, I think I'd 21 put it similar -- 22 COMMISSIONER STEPHEN GOUDGE: Right. 23 MR. ANDREW ROBERTSON: -- somehow like 24 that, yeah. 25

157

1 CONTINUED BY MS. LINDA ROTHSTEIN: 2 MS. LINDA ROTHSTEIN: I want to go back 3 to a few things that we've touched on but perhaps not 4 developed enough, which is the regime that you've -- 5 you've described as being one in which there's reciprocal 6 disclosure of very detailed expert reports. 7 Couple of things: First of all, is it a 8 regime in which the defence is, indeed, obliged to 9 produce not only an expert report that they seek to rely 10 on but also all those others that may have come into 11 their domain in the course of preparing the defence? 12 MR. ANDREW ROBERTSON: No, no. Your only 13 obligation on behalf of the defence is to disclose the 14 reports from those expert witnesses whom you intend to 15 rely upon and that decision can be made at an early 16 stage. 17 Because the reports have to be so 18 detailed, there is no argument in our jurisdiction of 19 saying, I've got to wait and see what the prosecution 20 expert says in the witness box before I can decide 21 whether I want to rely upon my defence expert. 22 MS. LINDA ROTHSTEIN: And stopping you 23 there, Mr. Robertson, so everyone understands, that's 24 because you live in a case management regime, both for 25 your criminal cases and your civil --

158

1 MR. ANDREW ROBERTSON: Yes. 2 MS. LINDA ROTHSTEIN: -- as I understand 3 it? 4 MR. ANDREW ROBERTSON: Yeah. Case 5 management, particularly in the serious cases, is very 6 strong in the UK. A timetable will be set down by the 7 judge for disclosure of the prosecution reports, 8 disclosure for the defence reports, and if necessary, as 9 it were, a response by the prosecution to those defence 10 reports, all within a reasonable time, before the date 11 set down for trial. 12 And obviously the trial date becomes 13 almost sacrosanct. And, so that time table has to be 14 adhered to, otherwise the trial date becomes at risk. 15 And contrary to what might be thought in - 16 - in Canada, when I've been defending, it has never been 17 a problem deciding whether to rely upon an expert's 18 report. 19 MS. LINDA ROTHSTEIN: When you're acting 20 for the defence? 21 MR. ANDREW ROBERTSON: When I'm acting 22 for the defence, yeah. I don't -- yes. 23 I know exactly what he's going to say. 24 I'll have a consultation with him as well, to see how 25 strongly he -- he's going to express those views. If

159

1 he's effectively going to agree with the prosecution, the 2 report will go straight into the waste paper bin. 3 If, however -- if, however, there are 4 strong points there which I feel that he will be able to 5 support in the witness box, I will serve it, unless 6 there's a sting in the tail. 7 It's always possible that the defence 8 expert will make a number of good points on behalf of 9 your client that, at the end of day, form a very 10 unfavourable conclusion. 11 Well, you know you're not going to call 12 him in those circumstances, so you can make a decision, 13 serve it on -- on the prosecution. 14 They -- they can then decide -- well, 15 first of all, they will have to respond to those new -- 16 any new points raised. 17 So you, the defence, by the time you get 18 to trial know what the prosecution is going to say about 19 your expert's special points, but also the -- the 20 prosecution may feel if he's -- if he's raised an issue 21 that re -- applies to another discipline, say 22 neuropathology, that they ought to instruct a 23 neuropathologist. 24 They will let you know that they're 25 instructing a neuropathologist. The defence will then

160

1 speak to their pathologist, and say, Do you feel that 2 this point you've made should have the support of a 3 neuropathologist? 4 If he says yes, then you will go and get a 5 neuropathologist. 6 MS. LINDA ROTHSTEIN: Is there any room 7 for the prosecution to abuse their rights? To -- 8 MR. ANDREW ROBERTSON: Yeah, yeah. 9 MS. LINDA ROTHSTEIN: -- to take 10 advantage of what you say is an important principle of a 11 quality of arms -- love that phrase -- and just go get 12 two (2) more pathologists? 13 So three (3) pathologists is better than 14 one (1) defence pathologist? 15 MR. ANDREW ROBERTSON: Right. Well, I 16 think we come back to an issue of ethos here. I think we 17 come back to what I was saying about -- about prosecuting 18 and defending. 19 Any decent leading prosecuting counsel 20 would not simply go out and get another report. He'd get 21 his expert to deal with the defence report, and if his -- 22 his, originally instructed, expert couldn't deal with it 23 properly, then he'd have to say, Well I'm sorry, we can't 24 carry on with this prosecution. 25 And there are means. Say for instance,

161

1 the prosecution did decide to play dirty, and go off and 2 get a completely different expert to try and build up 3 their case. 4 Then there are arguments that you could 5 advance to try and exclude that evidence, but it's my 6 experience that no -- no one does that. I've never come 7 across anybody doing that. There is a scope of people to 8 do it. 9 COMMISSIONER STEPHEN GOUDGE: Part of 10 what you are describing, Mr. Robertson, seems to go with 11 the culture of the way these cases are both prosecuted 12 and defended, and part of that is leading counsel act on 13 either side from time-to-time. 14 MR. ANDREW ROBERTSON: Yeah. 15 COMMISSIONER STEPHEN GOUDGE: How did 16 that develop? How did that tradition develop? 17 MR. ANDREW ROBERTSON: The tradition of 18 leading counsel? 19 COMMISSIONER STEPHEN GOUDGE: Leading 20 counsel. Being prepared to both prosecute and defend. 21 That is, why is not the public -- why does not the State 22 hire salaried prosecutors who do the most difficult 23 cases, as well as all the other cases -- what we do here. 24 MR. ANDREW ROBERTSON: Right. 25 COMMISSIONER STEPHEN GOUDGE: And then

162

1 the defence bar is left to only defend? 2 MR. ANDREW ROBERTSON: It is purely 3 historical. What -- what -- the bar was always 4 independent, largely in London, but travelling around the 5 provinces, going right back to the 17th Century. 6 If you wanted an advocate either in -- in 7 your civil claim for one (1) side or the other, or you 8 wanted an advocate to prosecute a police case in the 19th 9 Century, or you were a defence solicitor in London 10 wanting an advocate, you would go to any of the number of 11 sets of chambers. And it may be just sheer chance 12 whether you're chosen to prosecute from those chambers, 13 or you're pre -- chosen to defend. 14 The Bar is independent. We're all self- 15 employed. We've got no bosses, and so -- and basically, 16 we want to earn a living, and so if -- if I get offered 17 the defence brief, I'll take it. If I'm offered a 18 prosecution brief, I'll take it. And we also have a 19 thing called a Cab-Rank principle whereby you're not 20 allowed to turn down a case. 21 In the 1970's, there was a problem because 22 London counsel were refusing to defend IRA terrorists, so 23 the Bar counsel came back really hard and said -- 24 reinforced the Cab-Rank principle, Look if you're 25 available and you've offered a brief, you have to take it

163

1 and whatever your feelings about that case, and you to 2 defend that person to the utmost of your ability. 3 So it's purely historical, but I have to 4 say that the system is changing. It is becoming more 5 polarized. Obviously certain counsel get a reputation 6 for prosecuting well, or they'll make a name with a 7 particular prosecuting case, or other counsel only like 8 to defend, in any event, so there is some polarization. 9 Also, until twenty (20) years ago, we 10 didn't really have an independent prosecution service. 11 The police farmed it out to local solicitors, but since 12 the establishment of the CPS, they have tried to train 13 in-house advocates and that has just got going so that 14 you do now have persons who are employed full-time 15 effectively by the state prosecuting and -- 16 MS. LINDA ROTHSTEIN: Do they bring to it 17 different attitudes, do you think? 18 MR. ANDREW ROBERTSON: Well, listen, 19 you're -- you're moving into an area which is where I 20 might show a little prejudice now. I take -- I object to 21 it on constitutional grounds first and foremost. 22 I also see it as undermining the -- the 23 Bar and the future of the Bar because what is happening 24 is that these higher Court advocates are dealing with the 25 -- the smaller cases. There is, therefore, no work for

164

1 the young barristers, and therefore, we ask ourselves 2 what's the situation going to be in ten (10) or fifteen 3 (15) years time. 4 The young barristers wouldn't have been 5 able to hang around because they have effectively been 6 starved out of existence by the HCA's, but that is 7 perhaps, being a bit dramatic because at the moment we're 8 managing to run a system whereby the Bar are able to 9 operate and accommodate these higher Court advocates, as 10 well. 11 But -- but, by in large, this is a novel 12 move in the UK whereas, it's been your system throughout. 13 COMMISSIONER STEPHEN GOUDGE: Right. 14 Right, that's helpful. 15 16 CONTINUED BY MS. LINDA ROTHSTEIN: 17 MS. LINDA ROTHSTEIN: That's interesting. 18 And -- and to what extent does polarization afflict the - 19 - the forensic professions. 20 MR. ANDREW ROBERTSON: Right, well, I 21 think that -- one (1) thing that I'm conscious of is how 22 in our jurisdiction we -- we tend to prosecute and 23 defend. I've got to emphasize that the Home Office 24 pathologists act for both the prosecution and the -- and 25 the defence.

165

1 That's not to say again that some 2 pathologists won't have a particular reputation for 3 assisting in a prosecution, but the -- the pathologist 4 that you've seen are -- in this Inquiry, are, to use a 5 vernacular, "straight down the middle". They will give - 6 - you know, they will give exactly the same opinion 7 whichever side they're on, and you know that it will be a 8 reliable opinion. 9 Obviously, there are some pathologists who 10 survive largely dependent upon prose -- prosecution 11 police work, and I have come across instances where I -- 12 I'm sure the pathologist has, unfortunately, been 13 influenced by that factor. 14 We're not going to get a perfect world. 15 I'm afraid these sort of factors are always going to come 16 into effect. 17 COMMISSIONER STEPHEN GOUDGE: Can I ask 18 you, Mr. Robertson, the Home Office Registry is something 19 that we've heard a good deal about and a question that 20 I'm sure we're going to have to address is whether, and 21 if so, how, that can be modified and used in Ontario. 22 The pathologists on the Home Office 23 Register are all essentially in private practice. 24 MR. ANDREW ROBERTSON: As I understand 25 it --

166

1 COMMISSIONER STEPHEN GOUDGE: Yes. 2 MR. ANDREW ROBERTSON: -- I think these 3 sort of questions about that profession are probably 4 better addressed to the pathologists -- 5 COMMISSIONER STEPHEN GOUDGE: Yes. 6 MR. ANDREW ROBERTSON: -- themselves. 7 COMMISSIONER STEPHEN GOUDGE: Yes, I 8 guess the question I have arising out of that is, what 9 would your sense be of the ability to act both for the 10 defence and the prosecution if the pathologists on the 11 Registry were all employed by, in effect, the Coronial 12 System? 13 In other words, they're employees of the 14 state, and the question is, how, if they've got full-time 15 jobs, do they find time to do the kind of detailed work 16 that would be necessary to provide service for the 17 defence when they're full-time employed, doing work for 18 the state? 19 MR. ANDREW ROBERTSON: Well, it's not 20 going to work, is it? 21 COMMISSIONER STEPHEN GOUDGE: Yes, it's 22 very difficult isn't it? I mean that's part of the 23 beauty of having a large private sector, or privately 24 employed cadre of skilled pathologists? 25 MR. ANDREW ROBERTSON: Are your

167

1 pathologists all employed by the state then -- 2 COMMISSIONER STEPHEN GOUDGE: Well, they 3 -- 4 MR. ANDREW ROBERTSON: -- forensic 5 evidence? 6 COMMISSIONER STEPHEN GOUDGE: One (1) way 7 or another. They either work -- 8 MR. ANDREW ROBERTSON: Right. 9 COMMISSIONER STEPHEN GOUDGE: -- for the 10 Coroner's Office or work for hospitals, okay. 11 MR. ANDREW ROBERTSON: Yes, there's a 12 difference between work -- working for the hospital and 13 actually working say, for the police department, though. 14 COMMISSIONER STEPHEN GOUDGE: Right. 15 MR. ANDREW ROBERTSON: Some of our -- 16 some of our pathologists have University posts, and I 17 suppose a lot of the funding comes from the state, but I 18 still regard them as being completely independent. 19 COMMISSIONER STEPHEN GOUDGE: And they 20 find the time to spend the necessary working time doing 21 defence work? 22 MR. ANDREW ROBERTSON: If they're -- if 23 they're Home Office Forensic Pathologists, they 24 effectively have to find the time. They are the people 25 who carry out the post-mortems on the suspicious deaths.

168

1 COMMISSIONER STEPHEN GOUDGE: Right. 2 MR. ANDREW ROBERTSON: And if the case is 3 going to go to criminal trial, they will automatically be 4 involved. There's one (1) thing I haven't mentioned 5 about how the system works with the pathologist, and 6 that's this: You get a -- a suspicious death, a Home 7 Office pathologist will immediately be called in by the 8 coroner to carry out the first post-mortem. 9 COMMISSIONER STEPHEN GOUDGE: Right. 10 MR. ANDREW ROBERTSON: If no one has been 11 arrested, then the coroner will appoint another Home 12 Office pathologist to carry out a second post-mortem at 13 an early stage in case someone is arrested at a later 14 time, so that that person will have the benefit of a 15 second person who's carried out the post-mortem. 16 But what usually happens is that round 17 about the time of the first post-mortem, obviously with 18 child/infant death, this is the most likely scenario, 19 someone will be arrested, and what happens with me is 20 that the solicitors ring me up and ask me to recommend 21 someone to carry out the second post-mortem on behalf of 22 their client. 23 COMMISSIONER STEPHEN GOUDGE: Right. 24 Right. 25 MR. ANDREW ROBERTSON: So that means that

169

1 at a very, very early stage, you have a pathologist who 2 effectively is instructed by the Crown and by the 3 defence, and they are committed to any criminal trial 4 that may follow. 5 COMMISSIONER STEPHEN GOUDGE: Right. 6 MR. ANDREW ROBERTSON: And they have to 7 fit it in. Whether, in fact, the number of experts 8 expands thereafter depends on the case -- 9 COMMISSIONER STEPHEN GOUDGE: Right. 10 MR. ANDREW ROBERTSON: -- and what sort 11 of advice you get -- 12 COMMISSIONER STEPHEN GOUDGE: Right. 13 MR. ANDREW ROBERTSON: -- from your own 14 pathologist. 15 COMMISSIONER STEPHEN GOUDGE: That's 16 helpful. 17 18 CONTINUED BY MS. LINDA ROTHSTEIN: 19 MS. LINDA ROTHSTEIN: Mr. MacGregor, what 20 experience has your CCRC had in retaining experts and 21 pathologists in particular? And how do -- how do your 22 staff find the means to identify the appropriate people? 23 Are those challenges? 24 MR. ALASTAIR MACGREGOR: We've had no 25 trouble at all in obtaining experts and independent

170

1 expert support in some of the sudden infant death or 2 shaken baby cases. We've gone -- indeed Professor Geddes 3 at one (1) stage came to talk to us. 4 We've used Professor Whitwell. We've had 5 no difficulty at all. And indeed, coming back to 6 something you mentioned earlier on, we have, on occasion, 7 gone to an Australian pathologist, Professor Cordner, I 8 think it was -- Corby (phonetic), in a case where -- 9 MS. LINDA ROTHSTEIN: We've heard of him. 10 MR. ALASTAIR MACGREGOR: You have, right? 11 COMMISSIONER STEPHEN GOUDGE: Yes. 12 MR. ALASTAIR MACGREGOR: In a case where 13 the original pathologist -- I'm sorry -- the original 14 pathologist had been subject to disciplinary proceedings 15 after the conviction. 16 And we, therefore, felt we needed a second 17 view, but we wanted a view from outside the British 18 pathological community, because they had already begun to 19 form views as to whether or not this chap had been 20 behaving properly or otherwise. 21 So it's not been a problem. You know, 22 sometimes it's rather slow to get the reports. But we 23 have not had a difficulty in finding expert advice from 24 outside. 25 MS. LINDA ROTHSTEIN: Interesting. So,

171

1 Mr. Robertson, one (1) of the other things you sort of 2 touched on in -- in telling us about how one might deal 3 with reliability issues is -- is the fact that it might 4 actually be done not up front in the course of a voir 5 dire, but after the Crown's evidence is in. 6 You also heard the discussion this morning 7 about what was described as concurrent evidence, and if I 8 understand you correctly, there's actually a process that 9 is employed sometimes in trials -- I don't know how 10 common it is, help us out -- where you call the Crown and 11 the defence experts on the particular issue back-to-back, 12 I think were your words. 13 MR. ANDREW ROBERTSON: That's the 14 expression we use. We don't use hot tubs or anything 15 like that I guess. 16 MS. LINDA ROTHSTEIN: Okay. So back-to- 17 back and -- 18 MR. ANDREW ROBERTSON: Back-to-back -- 19 MS. LINDA ROTHSTEIN: Okay, so first of 20 all this is in criminal trials? 21 MR. ANDREW ROBERTSON: Yeah. It start -- 22 it started off in civil trial -- in civil cases -- 23 MS. LINDA ROTHSTEIN: Okay. 24 MR. ANDREW ROBERTSON: -- and then it was 25 appreciated that it was appropriate in some criminal

172

1 cases as well. At -- 2 MS. LINDA ROTHSTEIN: Can you give us an 3 example and walk us through it? 4 MR. ANDREW ROBERTSON: Yeah. This wasn't 5 a child homicide case, but it was where police officers 6 were charged with the manslaughter of a man in police 7 custody. And the issue was effectively whether he'd had 8 a spontaneous heart attack. There were vast -- it was 9 politically charged, this case. 10 The deceased was black. The defendants 11 were white police officers. And we had a vast array of 12 cardiologists and pathologists, and those people who 13 particularly specialize in pathology where the heart was 14 involved. And the only rea -- real -- really sensibly 15 way of managing it was to have all this evidence at the 16 same time not being split up with days in between 17 listening to other types of evidence. 18 For our own benefit, but also particularly 19 for the -- for the benefit of the jury, they had to 20 listen to all this evidence as a whole, so that it could 21 follow through the threads of the different arguments. I 22 say it's back-to-back. I mean, in -- in theory, what you 23 would do is call the prosecuting pathologist and the 24 defence pathologist and the prosecution neurologist and 25 the defence neurologist.

173

1 In real life, it doesn't work like that 2 because you find out these people aren't available 3 exactly when you -- you want them to give evidence. But 4 -- but by in large, by accommodating them, you hear the 5 prosecution version of the evidence on the scientific 6 issues at the same time, not concurrently, but during the 7 same period as the -- as the defence evidence. 8 And I think that, from a point of view of 9 managing the trial and the jury understanding the issues, 10 it's a very, very good system. Now -- 11 MS. LINDA ROTHSTEIN: Does the defence 12 give up any rights in terms of aruging -- 13 MR. ANDREW ROBERTSON: No, no. 14 MS. LINDA ROTHSTEIN: -- that the Crown 15 hasn't got a case that should -- 16 MR. ANDREW ROBERTSON: No. 17 MS. LINDA ROTHSTEIN: -- go to the jury? 18 MR. ANDREW ROBERTSON: No, we got off at 19 half time. 20 MS. LINDA ROTHSTEIN: You got off? 21 MR. ANDREW ROBERTSON: We got off at half 22 time, so it shows we weren't prejudiced. 23 MS. LINDA ROTHSTEIN: So tell us how that 24 worked? 25 MR. ANDREW ROBERTSON: Right. You don't

174

1 know that expression? 2 MS. LINDA ROTHSTEIN: No. 3 COMMISSIONER STEPHEN GOUDGE: No -- 4 MS. LINDA ROTHSTEIN: We're taking out 5 all the expressions -- 6 MR. ANDREW ROBERTSON: Right. 7 COMMISSIONER STEPHEN GOUDGE: We have 8 much to learn -- 9 MR. ANDREW ROBERTSON: At the end of the 10 prosecution case, we were asked if submissions succeeded. 11 I suppose if you're being very, very theoretical, you 12 would say that the judge should only consider the 13 prosecution expert evidence at the end of the prosecution 14 case and not take into account the defence evidence on 15 the basis that he is having to see whether the Crown have 16 established a prima facie case. 17 But the judge would have a power, in any 18 event, halfway through the defence case, if you'd call 19 the defence evidence during the defence case, to withdraw 20 the case from the jury. He could come to the conclusion 21 that having heard all the expert evidence, this jury 22 properly directed could not convict. 23 And therefore, we were able to do it 24 without prejudicing ourselves at all by having -- hearing 25 all expert evidence before the close of the prosecution

175

1 case and making a submission at that time. There were no 2 procedural impediments to us doing that and it didn't 3 prejudice us at all. 4 MS. LINDA ROTHSTEIN: Mr. -- 5 COMMISSIONER STEPHEN GOUDGE: On the 6 reliability question, Mr. Robertson, I meant to ask you 7 earlier when you were speaking about it, implicit in your 8 discussion of the reliability vetting of evidence that 9 was worthy of vetting, was the proposition that this 10 would be at the instance of a vigilant defence. 11 Would it ever be something that the judge, 12 on the judge's own initiative, would undertake? 13 MR. ANDREW ROBERTSON: Right. When I was 14 a junior -- junior and inexperienced, a judge might 15 helpfully intervene in any sort of case feeling that the 16 -- the defence was very green behind the ears, and that 17 they needed some assistance, and he would intervene. In 18 the sort of cases that you are having to consider, I 19 would like to think that those representing both the 20 Crown and the defence, in the trial, are highly 21 competent. 22 Certainly, the nature of the case demands 23 that sort of representation. And you would not expect 24 the judge to intervene himself. He should be able to 25 rely upon counsel being vigilant, particularly as that

176

1 they have the benefit of some of the best experts 2 available in order to help them in determining what 3 points they should take. 4 And one (1) of the matters that I draw 5 issue with as regard to what we have from the professors 6 this morning is that I think it's totally unfair to try 7 and push that burden upon the judge. 8 Counsel involved know precisely what the 9 issues are. They have consultations with the experts. 10 They are the ones who can decide whether a proper point 11 can be taken at a proper stage, and it shouldn't be left 12 for the judge. 13 The judge doesn't have the benefit of an 14 expert sitting on his wing, as it were, up on the bench 15 with him. He's at a disadvantage. 16 And, so I -- first of all, I don't think 17 it's practical, and -- and secondly, I don't think it's 18 fair, and thirdly, providing you have conscientious 19 counsel and conscientious experts, and that's a big if, 20 but providing you have, then the system of deciding when 21 to take a point, whether there should be a voir dire, and 22 how to argue it, should be left to counsel. 23 COMMISSIONER STEPHEN GOUDGE: That is 24 helpful. Thanks. 25

177

1 CONTINUED BY MS. LINDA ROTHSTEIN: 2 MS. LINDA ROTHSTEIN: Mr. MacGregor, I 3 realize you don't have statistics on this, and you get a 4 thousand (1,000) cases a year, but with that sort of 5 experience in mind, how frequently is it the case where 6 the science, or the expertise, or the opinions of the 7 scientific experts are at the heart of what your 8 Commission thinks may be a potential miscarriage of 9 justice? 10 MR. ALASTAIR MACGREGOR: Oh, quite often, 11 but sometimes in the pathological field, and obviously in 12 the infant death cases, that's been of some importance, 13 but quite frequently in areas like facial mapping, or 14 whatever, where there is highly questioned expert 15 evidence. 16 And -- and it is a matter -- one always 17 has to bear in mind, science moves on. And, so there are 18 frequently cases where at the date of the trial, and at 19 the date of the appeal, the science was one (1) way, and 20 it's only later -- where the one -- one thinks of the 21 sort of developments in DNA, but a whole host of other 22 things, where suddenly it is possible to go back, and -- 23 and get a different view. 24 MS. LINDA ROTHSTEIN: And how many of the 25 applicants who come before your Commission realize the

178

1 science has moved on, and how much of it is as a result 2 of the investigations that your staff do that that is 3 determined? 4 MR. ALASTAIR MACGREGOR: I would have -- 5 it slightly depends whether they're represented. A lot 6 of our applicants are not represented. 7 But -- and -- and relatively few of them 8 actually know what the -- the key issues are likely to 9 be. Indeed, I think you -- perhaps Andrew can tell you a 10 case that he was involved in, which dealt with just this 11 matter. 12 MR. ANDREW ROBERTSON: Yes. I hadn't 13 been instructed at first instance, but once Alastair's 14 department had referred it to the Court of Appeal, the 15 Crown realized they were on a -- a tricky wicket, and 16 asked us to have a look at it. 17 And it was -- it wasn't a homicide. It 18 was a child sex abuse case. And the evidence against the 19 defendants had been the step-daughter, and there was a 20 hint that mum might have put her up to making the 21 complaint. 22 But central to it was evidence from two 23 (2) -- two (2) doctors for the prosecution, who said that 24 there were certain findings that indicated that she'd 25 been sexually abused.

179

1 The -- the judge was very careful to point 2 out that they should be wary about just convicting on the 3 child's evidence, and he was also very careful to point 4 out that even if the doctors were right, it didn't mean 5 the defendant was guilty. 6 Well, the fact of the matter is, he was 7 the only possible candidate, so the -- the expert 8 evidence went right to the crux of the case. 9 It was quite clear looking through the 10 papers that the defendant had protested his innocence 11 right from the day of conviction, on all sorts of basis, 12 spurious stuff. Letters written off to the Court of 13 Appeal saying, She said my pajamas were green when 14 they're -- in fact, they were blue. 15 You know, absolute rubbish. But it gets 16 referred to the CCRC. They get a report from a new 17 expert who says these findings could -- would -- could 18 not now be relied upon. 19 They're totally equivocal. It doesn't 20 mean abuse has taken place at all. I showed it to our 21 original experts, and they said, We agree. 22 The science has moved on in the last five 23 (5) years. So this guy had -- and so when we got to the 24 Court of Appeal, obviously I didn't resist the appeal. 25 And, so it was a case, as Alastair said,

180

1 of the defendant protesting his innocence, but not 2 knowing what line to take. 3 And in the end, it was his department that 4 took the right line, and he was acquitted, you know, 5 seven (7) years after the event. 6 COMMISSIONER STEPHEN GOUDGE: That's an 7 interesting story. 8 9 CONTINUED BY MS. LINDA ROTHSTEIN: 10 MS. LINDA ROTHSTEIN: So, Mr. Robertson, 11 we've read carefully, but not as carefully as you, your 12 Court of Appeal in Harris, and Kai-Whitehead (sic), and 13 so on, and we've been grappling with their determinations 14 about the importance of the triad in diagnosing Shaken 15 Baby Syndrome. 16 And -- and first of all, I'm right in 17 thinking that you've spent some time reading those cases, 18 and mulling them over, am I? 19 MR. ANDREW ROBERTSON: Yes. In an 20 abstract way, yes. 21 MS. LINDA ROTHSTEIN: So, in an abstract 22 way, you understand that one (1) of the things the Court 23 of Appeal has said is that -- is that the triad is a 24 strong pointer, but is not pathopneumonic of -- 25 pathopneumonic of Shaken Baby Syndrome.

181

1 In light of that determination, in an 2 abstract way, would you say that it's possible to 3 prosecute based only on the triad, and if so, how would 4 you go about it? 5 MR. ANDREW ROBERTSON: Right. Well, 6 let's start off by saying you've got to be very careful 7 if all you have is the triad -- very careful indeed -- 8 and it's always very worrying if all you've got is the 9 triad, and you must review it constantly if you are 10 prosecuting and decide as you go along whether you're 11 sure you're making the right decision. 12 On my analysis, however, of Harris -- and 13 it may be wrong, but I don't believe it is -- on my 14 analysis of Harris the Court of Appeal were not saying 15 you cannot prosecute if there's only the triad there, and 16 they're still saying it's a strong indicator, and what 17 you have to look at is the total clinical picture. 18 You know that the Harris case was four (4) 19 appeals. Harris itself was a case effectively where 20 there was only the triad. The Court said that, in that 21 sort of instance, it's for the jury to decide between the 22 experts. 23 They also said in the case of Harris that 24 infection had been ruled out completely and Michael 25 Mansfield, whom you may have heard of, had to concede

182

1 that that was the case. 2 However, the appeal was allowed because 3 when looking at the whole of that clinical picture, there 4 was some doubt as to whether the subdural hematoma was 5 the classic subdural hematoma that appears in a trauma 6 case, and so the appeal was allowed. 7 I take -- sorry. 8 COMMISSIONER STEPHEN GOUDGE: That's 9 okay. 10 MR. ANDREW ROBERTSON: Was it -- was it 11 the -- echo? 12 COMMISSIONER STEPHEN GOUDGE: That was 13 the mic. 14 MR. ANDREW ROBERTSON: Right. I take the 15 view that if you have the triad alone, and you have 16 account by the person who had the care of the child at 17 the time that it collapsed, and that account does not, 18 for a moment, suggest anything happened that could have 19 caused the triad, even from the Geddes 3 point of view; 20 if the prosecution have ruled out ev -- every single 21 possible infection by doing all the appropriate blood 22 tests and lumbar punctures and the like and you have a 23 classic -- classical subdural hemorrhage; then the whole 24 clinical picture is still one (1) of Shaken Baby 25 Syndrome, and it was for the jury to decide whether

183

1 anything -- any other theories postulated by the defence 2 may be true. 3 Now, I have to say that, in a case such as 4 that, I would not prosecute unless each of my experts, 5 having considered the defence reports and their various 6 theories, were able to say to me, We can rule out 7 everything they have to say. It is inconceivable that it 8 could be anything other than shaken baby trauma. 9 To that extent, I'm dependent upon them, 10 that if I do have four (4) reputable experts telling me 11 that, then I don't feel I have any -- I would have any al 12 -- alternative but to prosecute. 13 We have to look at these cases from two 14 (2) points of view, you know. I prosecute and defend. A 15 miscarriage of justice is a horrendous thing, as you've 16 experienced in this case, but we can't stop prosecuting 17 people who really are guilty of these horren -- horrific 18 offences if we do have the evidence. We can't just hold 19 off. 20 And I feel that, in that sort of case, if 21 you -- if you were not to prosecute, you're effectively 22 saying, despite the criticism that the Court of Appeal 23 made of Geddes 3, we're caving into Geddes 3. We will 24 not prosecute any cases, even though we've got the 25 classic call -- classic triad, and we've ruled out every

184

1 other possible cause. 2 So, whether the professors disagree with 3 me or not, I take the view that, in that sort of 4 situation, it is right and proper to continue 5 prosecuting. 6 MS. LINDA ROTHSTEIN: Very interesting. 7 MR. ANDREW ROBERTSON: Sorry, without the 8 risk of boring you. 9 MS. LINDA ROTHSTEIN: No. 10 COMMISSIONER STEPHEN GOUDGE: There's no 11 chance of that. 12 MR. ANDREW ROBERTSON: The other thing 13 that might worry you about such a case is this: You'll 14 end up having one (1) team for the pro -- one (1) team of 15 scientists for the pros and one (1) for the defence. And 16 you might look back at Cannings and say, all right, in 17 that sort of situation you can't -- you can't carry on. 18 That is saying that Cannings is -- it's 19 supportive of this principle where you have conflicting 20 expert evidence no one could ask a jury to be sure 21 because if there's a body of respectable medical opinion 22 saying the contrary, how can anybody be sure? 23 And obviously in the situation that I 24 postulated, if Cannings applied in that way, then we 25 wouldn't be able to continue in any case where there's a

185

1 conflict of expert evidence. You wouldn't be able to ask 2 the jury to try and choose between the different experts. 3 You'd have to cave in right at the start. 4 And the Court of Appeal, as I think you 5 know, in lighter cases, carry right on. I mean, Harris 6 itself has said that that is not the ratio of Cannings. 7 Having said that, I can tell you that some judges would 8 interpret it that way. 9 Some judges in the UK would be worried 10 about any case where they have that sort of conflict 11 between the experts. And that's probably, in a way, a 12 good thing because it goes back to show that, at least, 13 at home the judges are becoming conscious of these 14 worrying issues -- 15 COMMISSIONER STEPHEN GOUDGE: Right. 16 MR. ANDREW ROBERTSON: -- and taking a 17 very conscientious -- 18 COMMISSIONER STEPHEN GOUDGE: Right. 19 MR. ANDREW ROBERTSON: -- approach to it. 20 21 COMMISSIONER STEPHEN GOUDGE: That was 22 very helpful. 23 MS. LINDA ROTHSTEIN: Very helpful. 24 25 CONTINUED BY MS. LINDA ROTHSTEIN:

186

1 MS. LINDA ROTHSTEIN: Thank you very 2 much, Mr. Robertson. I believe some of my colleagues 3 have some questions. 4 MR. MARK SANDLER: Just one (1). 5 MS. LINDA ROTHSTEIN: Just one (1). 6 Mr. Manishen...? 7 He only acts for the defence, I should 8 tell you. That's not true, that's not true. I'm sorry, 9 sorry. 10 11 QUESTIONED BY MR. JEFFREY MANISHEN: 12 MR. JEFFREY MANISHEN: I -- I actually 13 have done prosecution work as well. I'm currently 14 engaged in that. 15 But this question, Mr. Robertson, is for 16 you. A concern from the defence bar standpoint, with 17 respect to required reciprocal disclosure, is that a 18 report from an expert may encompass part of the position 19 taken by the defence -- the accused's version of events - 20 - which the prosecution might not otherwise be aware of 21 until the end of their case. 22 And mandated reciprocal disclosure could 23 essentially put the defence in a position where they'd be 24 required to disclose the full defence position -- not 25 simply the expert position -- but the accused's story in

187

1 advance. In your jurisdiction, what do you do with 2 respect to that issue from the standpoint of the report 3 that the defence is required to provide? 4 MR. ANDREW ROBERTSON: It's no problem. 5 MR. JEFFREY MANISHEN: How do you deal 6 with it? 7 MR. ANDREW ROBERTSON: We're under an 8 obligation to disclose our defence in advance. 9 MR. JEFFREY MANISHEN: The full defence 10 in terms of what -- what the evidence would be 11 potentially? What the accused's version of events is? 12 MR. ANDREW ROBERTSON: You don't disclose 13 his proof. You certainly would have to disclose 14 sufficient for an expert to have the basic facts upon 15 which to express an opinion. So we don't have the 16 problem. And I don't see why you should have, really. 17 MR. JEFFREY MANISHEN: Well, the concern 18 we have is potentially how the prosecution is thereafter 19 conducted; what aspect they may do, even from the 20 standpoint of elements of investigation, if it's done in 21 advance of trial. Information that the prosecution might 22 not otherwise seek. 23 And as they present their case, they 24 present their case without the benefit of knowing the 25 specific factual features they need to --

188

1 MR. ANDREW ROBERTSON: Well, what are you 2 frightened of? 3 MR. JEFFREY MANISHEN: Well, it's not a 4 matter of fear, it's a question of a right to silence. 5 It's a question of an obligation to put the crow -- the 6 Crown's obligation to prove the case without the benefit 7 of assistance from the defence on what the issues are. 8 MR. ANDREW ROBERTSON: Why -- why are you 9 assisting the defence in -- sorry, why are you assisting 10 the prosecution when all you are doing is giving a very 11 basic outline of what is the truth, namely your 12 instructions from your client? 13 MR. JEFFREY MANISHEN: Sir, the issue is, 14 when you say very basic outline that's really what's not 15 clear to us; the content of the report that's disclosed. 16 If, for example, there's an issue in relation to a 17 contentious mature such as Shaken Baby Syndrome, and you 18 have defence expert evidence that could qualify or 19 otherwise challenge it, so it's relatively fact -- I say 20 relatively fact neutral, you could disclose it without 21 affecting how the prosecution conducts the case. 22 Our concern is there may aspects of expert 23 evidence that might be more fact driven. There may be 24 information the accused would know of, and he may be the 25 only one who will know of it. And there may be a desire

189

1 to have the prosecution proceed with their case without 2 having the knowledge of what the defence would testify. 3 MR. ANDREW ROBERTSON: Right. Well, if 4 you deal with it just in practical terms, you would be 5 able to get an expert report dealing with the issues, as 6 you know them to be, without reciting your client's 7 version of events, wouldn't you? 8 However, if it be an important part of 9 your client's case, say for instance -- and the 10 prosecution didn't know this -- that the child -- because 11 he kept silent during interview. The child had suddenly 12 fallen over, and he'd been worried because he -- the 13 child didn't seem to be responding. And he picked the 14 child up, and he shook it vigorously. 15 You might want your expert to know that 16 because that might be the whole basis for him saying, 17 Well actually in those circumstances, you could get the 18 triad. 19 Now what harm is you serving -- involved 20 in you serving reports with that limited ba -- version of 21 events in it. What are the prosecution going to do about 22 it? 23 MR. JEFFREY MANISHEN: Sure. 24 MR. ANDREW ROBERTSON: And you do -- 25 obviously you're not going to get -- you don't want to

190

1 get in this situation, do you, that you want to hold back 2 your client's version of events so that he could know 3 that it's the expert's evidence. 4 You'd never want to do that, would you? 5 MR. JEFFREY MANISHEN: Absolutely not. 6 MR. ANDREW ROBERTSON: Absolutely, right. 7 MR. JEFFREY MANISHEN: And I'm thinking 8 of it a little bit differently. We actually had, in one 9 (1) of the cases that was under review by -- that is 10 being considered by the Commissioner, at an early stage - 11 - actually at the preliminary inquiry, the defence did 12 something exceptional; called their client. He called 13 his client to testify -- 14 MR. ANDREW ROBERTSON: Right. 15 MR. JEFFREY MANISHEN: -- at the 16 preliminary inquiry. And on the strength of the client's 17 version, which was then put, as it turned out, to Dr. 18 Smith, it ultimately lead to a discharge. 19 The concern I have is -- is your -- the 20 defence counsel's input as it were, or capacity to 21 determine the content -- the degree of content, and 22 detail that goes into the report that's disclosed. Do 23 you have that opportunity? 24 MR. ANDREW ROBERTSON: Well, the -- the - 25 - there are two (2) answers to that. I do have the

191

1 opportunity, but I would never try and influence what my 2 expert was trying to say. 3 He would be -- he'd be sent -- he'd be 4 sent off the papers -- he'd be sent off the other side -- 5 say it was a pathologist, right. 6 You send off the prosecution papers, 7 including the prop -- prosecution pathologist report. 8 You ask him to comment. And basically, his -- he will be 9 comment -- commenting upon the prosecuting pathologist's 10 conclusion. 11 And he may say, for instance, the 12 prosecution pathologist may be right, however, he has 13 ignored these possibilities. And he would be able to 14 express a report in that way without him in any way 15 referring to the instructions that you've got from your 16 client. 17 He can deal with it as -- as it were, 18 almost on an academic basis, and you'd get the report 19 that you wanted. 20 You'd disclose it to the prosecution 21 without any fear that you had, in any way, assisted the 22 prosecution in demolishing your case, factually. 23 MR. JEFFREY MANISHEN: Sure. And that's 24 one (1) you could -- to what extent do you discuss with 25 the expert what he contemplates putting in the report

192

1 before he -- 2 MR. ANDREW ROBERTSON: Not at all. I -- 3 that -- that would be totally wrong. I think in civil 4 cases, people perhaps still do it, but in -- in criminal 5 cases, it shouldn't be done. 6 You leave -- you leave the expert to apply 7 his science without any in -- input from you, the lawyer. 8 When you've got his input, you then have a 9 consultation with him. And it may be that he'd make a 10 supplementary report as a result of his discussions with 11 you. 12 MR. JEFFREY MANISHEN: And that -- that's 13 good. That answers the next question then is, that 14 process can occur. Get the report, have the 15 consultation, and seek a supplementary report. 16 MR. ANDREW ROBERTSON: Yes, that's right. 17 MR. JEFFREY MANISHEN: Good. Thank you 18 very much. 19 MR. ANDREW ROBERTSON: Thank you. 20 COMMISSIONER STEPHEN GOUDGE: Thanks, Mr. 21 Manishen. Ms. Rothstein...? 22 MS. LINDA ROTHSTEIN: Thank you very 23 much, gentlemen. Really appreciate hearing how things 24 are done in England. We're very grateful to you for 25 coming.

193

1 Commissioner, I have a few final words. 2 COMMISSIONER STEPHEN GOUDGE: Okay. Let 3 me, on behalf of all of us, both Mr. MacGregor and Mr. 4 Robertson, thank you so much. It has provided a 5 wonderfully useful insight for us. 6 There is a lot we can learn from across 7 the ocean, although as you can see, there are 8 metaphorical oceans between the positions on some of 9 these issues. So thank you once again. 10 I am going to resume where I sit during 11 the fact finding portion, just so we can close the 12 hearings, but I will take this opportunity to thank you 13 both, and wish you a good trip home. 14 MR. ANDREW ROBERTSON: Thanks. 15 MR. ALASTAIR MACGREGOR: Thank you, sir. 16 COMMISSIONER STEPHEN GOUDGE: Thanks. 17 18 (BRIEF PAUSE) 19 20 COMMISSIONER STEPHEN GOUDGE: Ms. 21 Rothstein...? 22 MS. LINDA ROTHSTEIN: Thank you, 23 Commissioner. As you know, this is our last roundtable 24 in Toronto. We adjourn for two days of roundtables next 25 week in Thunder Bay, which we very much look forward to.

194
  1                 But because this is the last time that we
  2  will be having oral hearings in Toronto -- I'm not
  3  including submissions -- some of our staff may not find
  4  their way back here when we reconvene at the end of next
  5  month.
  6                 So I did want to use today to very much
  7  thank and recognize the efforts of Matt Klopot, Rolanda
  8  Lokey, and our Registrar, Christopher Riley, for making
  9  this hearing run so smoothly, and helping us all to
 10  ensure that we have a -- a great transcript, incredible
 11  document production and the best help with all the other
 12  technical matters that Matt has supplied.  I just wanted
 13  to do that, Commissioner.  Thank you.
 14                 COMMISSIONER STEPHEN GOUDGE:   Thanks. 
 15  And let me, on my own behalf, thank the three (3) of you. 
 16  You've been very loyal and enormously important to what
 17  we've been able to do.
 18                 And let me, on my own behalf, say that, as
 19  Linda has said, this is the last Toronto roundtable.  We
 20  have two (2) roundtables in Thunder Bay next week.  They
 21  will be webcast for those of you that can't make your way
 22  to Northern Ontario.  
 23                 But for the last three and a half (3 1/2)
 24  months we've had a very full but very expeditious process
 25  here in Toronto and for me, this demonstrates what skill

195

1 and cooperation of counsel can do. And I simply -- for 2 those of you who will not be in Thunder Bay, I want to 3 express my thanks and the thanks of all of us at the 4 Commission for that cooperation and what it has meant. 5 For those of you we will not see (sic) in 6 Thunder Bay, next on the agenda is written submissions 7 and I simply want to underline how important they will be 8 to our work. I know you'll all bring the same level of 9 professionalism to the issues that matter to you that 10 we've benefited from to-date. But I can't emphasize 11 enough how much I am looking forward to your submissions 12 and how important I see them to be. 13 And for those who are not coming, we'll 14 see you next at the oral submissions at the end of March. 15 And let me say simply that I look forward to the dialogue 16 we'll be able to have then about these important matters. 17 So we'll adjourn now until 10:30 a.m., 18 February the 28th, in Thunder Bay. 19 20 --- Upon adjourning at 2:50 p.m. 21 22 Certified Correct, 23 24 ____________________ 25 Rolanda Lokey, Ms.