11 2 3 THE INQUIRY INTO PEDIATRIC FORENSIC 4 PATHOLOGY IN ONTARIO 5 6 7 8 ******************** 9 10 11 BEFORE: THE HONOURABLE JUSTICE STEPHEN GOUDGE, 12 COMMISSIONER 13 14 15 16 Held at: 17 Offices of the Inquiry 18 180 Dundas Street West, 22nd Floor 19 Toronto, Ontario 20 21 22 ******************** 23 24 January 8th, 2008 25
21 Appearances 2 Linda Rothstein (np) ) Commission Counsel 3 Mark Sandler (np) ) 4 Robert Centa ) 5 Jennifer McAleer (np) ) 6 Johnathan Shime (np) ) 7 Ava Arbuck (np) ) 8 Tina Lie (np) ) 9 Maryth Yachnin (np) ) 10 Robyn Trask (np) ) 11 Sara Westreich ) 12 13 Brian Gover (np) ) Office of the Chief Coroner 14 Luisa Ritacca ) for Ontario 15 Teja Rachamalla ) 16 17 Jane Langford (np) ) Dr. Charles Smith 18 Niels Ortved (np) ) 19 Erica Baron ) 20 Grant Hoole (np) ) 21 22 William Carter ) Hospital for Sick Children 23 Barbara Walker-Renshaw (np)) 24 Kate Crawford ) 25
31 APPEARANCES (CONT'D) 2 Paul Cavalluzzo (np) ) Ontario Crown Attorneys' 3 Association 4 5 Mara Greene (np) ) Criminal Lawyers' 6 Breese Davies ) Association 7 Joseph Di Luca (np) ) 8 Jeffery Manishen (np) ) 9 10 James Lockyer (np) ) William Mullins-Johnson, 11 Alison Craig ) Sherry Sherret-Robinson and 12 Phillip Campbell (np) ) seven unnamed persons 13 Peter Wardle (np) ) Affected Families Group 14 Julie Kirkpatrick (np) ) 15 Daniel Bernstein ) 16 17 Louis Sokolov (np) ) Association in Defence of 18 Vanora Simpson ) the Wrongly Convicted 19 Elizabeth Widner (np) ) 20 Paul Copeland (np) ) 21 22 Jackie Esmonde ) Aboriginal Legal Services 23 Kimberly Murray (np) ) of Toronto and Nishnawbe 24 Sheila Cuthbertson (np) ) Aski-Nation 25 Julian Falconer (np) )
41 APPEARANCES (cont'd) 2 Suzan Fraser ) Defence for Children 3 ) International - Canada 4 5 William Manuel (np) ) Ministry of the Attorney 6 Heather Mackay (np) ) General for Ontario 7 Erin Rizok ) 8 Kim Twohig (np) ) 9 10 Natasha Egan (np) ) College of Physicians and 11 Carolyn Silver (np) ) Surgeons 12 13 Michael Lomer (np) ) For Marco Trotta 14 Jaki Freeman (np) ) 15 16 Emily R. McKernan (np) ) Glenn Paul Taylor 17 18 19 20 21 22 23 24 25
51 TABLE OF CONTENTS Page No. 2 3 WILLIAM JOHN LUCAS, Resumed 4 ALBERT EDWARD LAUWERS, Resumed 5 JAMES NORMAN EDWARDS, Resumed 6 7 Cross-Examination by Ms. Luisa Ritacca 6 8 Cross-Examination by Ms. Alison Craig 64 9 Cross-Examination by Mr. Daniel Bernstein 87 10 Cross-Examination by Ms. Breese Davies 119 11 Cross-Examination by Ms. Vanora Simpson 144 12 Cross-Examination by Ms. Jackie Esmonde 156 13 Cross-Examination by Ms. Suzan Fraser 181 14 Re-Cross-Examination by Ms. Luisa Ritacca 204 15 Re-Direct Examination by Mr. Robert Centa 207 16 17 18 Certificate of transcript 209 19 20 21 22 23 24 25
61 --- Upon commencing at 9:31 a.m. 2 3 THE REGISTRAR: All rise. Please be 4 seated. 5 COMMISSIONER STEPHEN GOUDGE: Good 6 morning. 7 Mr. Centa...? 8 MR. ROBERT CENTA: Good morning, 9 Commissioner. Having reviewed the documents last night, 10 I have no further questions for the members of the panel. 11 COMMISSIONER STEPHEN GOUDGE: Okay. 12 Thank you. That takes us to you, I guess, Ms. Ritacca. 13 14 WILLIAM JOHN LUCAS, Resumed 15 ALBERT EDWARD LAUWERS, Resumed 16 JAMES NORMAN EDWARDS, Resumed 17 18 CROSS-EXAMINATION BY MS. LUISA RITACCA: 19 MS. LUISA RITACCA: Good morning, 20 Commissioner. Good morning, Doctors. 21 DR. ALBERT LAUWERS: Good morning. 22 MS. LUISA RITACCA: Doctors, during your 23 testimony yesterday, each of you spoke about the 24 important role, the daily rounds that take place at the 25 Provincial Forensic Unit, have. And you spoke about the
71 rounds as a quality assurance mechanism and as one (1) 2 means of ensuring that the pathologist gets the necessary 3 information from a coroner, prior to the commencement of 4 the autopsy. 5 My question for you this morning is: Can 6 you describe with greater specificity the value of the 7 presence of the coroners at these rounds? And maybe I'll 8 start with you, Dr. Lucas. 9 DR. WILLIAM LUCAS: I certainly can give 10 you a -- a perception on that. My colleagues to my left 11 have a -- a more acute awareness of that because they're 12 involved with it on a daily basis. 13 But I can tell you that from my experience 14 from a few years ago when I was in Toronto, it was an 15 invaluable opportunity for a team to meet and discuss the 16 pros and cons and the issues of any particular case to 17 help us determine what the issues were, what the best 18 approach to the autopsy would be, and -- and what the 19 best resolution would be. 20 And I think that the -- the benefit of 21 having a variety of people from different areas of 22 expertise, forensic pathologists, coroners, all with 23 medical backgrounds, I think was what gave that process 24 strength, but again, my colleagues are sort of more aware 25 of what's been going on recently.
81 MS. LUISA RITACCA: Dr. Lauwers...? 2 DR. ALBERTA LAUWERS: Not covering the 3 same ground that was just tracked by Dr. Lucas, I think 4 in addition to what he mentioned, having been in clinical 5 medicine for a couple of decades, one (1) of the great 6 aspects is that we actually provide that for the forensic 7 pathologist and in the consideration of the -- of the 8 post-mortem examination and its approach. 9 There may be issues that are not germane 10 to a life as a forensic pathologist that would be very -- 11 that a clinical physician would be very aware of. And so 12 where possible and if necessary we would impart that on 13 the decision-making processes as they move forward. 14 MS. LUISA RITACCA: Can you give an 15 example of where the clinical-based experience might add 16 value to the process at rounds? 17 DR. ALBERTA LAUWERS: I can give an 18 example, certainly. I recall the incident of a young 19 man, for instance, who -- who died as a result of -- or 20 in a hospital at 35 years of age, having had a post- 21 operative complication, and it was recognized that this 22 man had surgery on his hand and subsequently had a 23 fracture in his neck with no neurological sequelae. 24 And we were discussing the possible causes 25 of his death, completely unexpected at 35 years of age in
91 a hospital and the discussion came about with regard to 2 the nature of the cardiac arrhythmia that was documented 3 at the time of his death. And putting the entire picture 4 together, it was my appreciation that he died of a 5 cardiac arrhythmia, a nature of which would suggest that 6 the man likely had a pulmonary embolism. And we were in 7 agreement that this particular individual probably should 8 have been treated with some prophylactic medications to 9 prevent him developing a blood clot as he was laying in 10 bed over the days of his recovery, and we anticipated 11 that -- or the anticipation was he likely should have had 12 that. 13 Upon review of the medical records which 14 we subsequently obtained, we found that there was a 15 systemic issue with regard to the writing of an order in 16 the chart that said, you know, a specific service 17 suggests that the medication should be added in and in 18 fact the -- without writing it specifically as an order 19 but just as a suggestion, it wasn't picked up by the 20 nursing staff, so indeed the man did die of a pulmonary 21 embolism. 22 But that's the type of information that 23 the clinical physician who is the coroner imparts on the 24 system. 25 MS. LUISA RITACCA: And Dr. Edwards, can
101 -- do you have anything to add with regard to the value 2 added where there's the presence of a medically-trained 3 coroner at the rounds? 4 DR. JAMES EDWARDS: We bring to bear our 5 clinical knowledge. We've been in -- I was in practice 6 for over twenty (20) years as was Dr. Lauwers, and Dr. 7 Lucas also practised for some years, so we bring our 8 clinical knowledge and also our investigative knowledge. 9 If I can just give you an example of if that would be of 10 assistance. 11 I can think of cases where people are sent 12 in for autopsies from a hospital and there's great talk 13 about -- in the warrant about the history and so on, the 14 course in the hospital, and it becomes apparent to us 15 that really the key piece here is the results of the 16 blood culture and that really will sort of tie everything 17 together. And we bring that -- we can bring that 18 perspective to bear and we can follow up with that and 19 give assistance with the autopsy. 20 So it's really the clinical knowledge and 21 the investigative experience that we have. 22 MS. LUISA RITACCA: Thank you. And, Dr. 23 Lauwers, yesterday Mr. Centa asked all of you about the 24 various documents that you as regional supervising 25 coroners expect to receive from your investigating
111 coroners during the course of a particular case and you 2 indicated that you receive in some instances a 3 preliminary and ultimately a final Coroner Investigation 4 Statement or Form 3. Is that -- 5 DR. ALBERTA LAUWERS: Yes. 6 MS. LUISA RITACCA: -- fair? 7 Under what circumstances is a coroner 8 expected to file a preliminary Form 3? 9 DR. ALBERTA LAUWERS: The coroner is 10 required to file their -- the deadline or the benchmark 11 for coroners filing reports is that they -- we receive 12 them within thirty (30) days. And so there may be a 13 circumstance where the coroner cannot properly assign the 14 manner of cause of death in the absence of an autopsy 15 report. 16 So typically what will happen is the 17 coroner will file a preliminary report within the thirty 18 (30) days and then upon receipt of the final autopsy 19 report we'll incorporate the autopsy findings into the 20 final Form 3. 21 MS. LUISA RITACCA: And -- 22 COMMISSIONER STEPHEN GOUDGE: Which 23 guideline is the thirty (30) days in? 24 DR. ALBERTA LAUWERS: It's the Guidelines 25 for Death Investigation 2007, the most recent edition.
121 COMMISSIONER STEPHEN GOUDGE: And what 2 would they have been normatively? I recognize there were 3 not any guidelines back in the '90's. 4 I mean, what would the Regional 5 Supervising Coroner have expected, if anything? 6 DR. ALBERT LAUWERS: I could probably 7 defer that question to Dr. Lucas. 8 COMMISSIONER STEPHEN GOUDGE: Yes. 9 DR. WILLIAM LUCAS: I think the answer in 10 reality was, that it -- it was variable depending on the 11 individual coroner. So that we had some coroners that 12 would routinely get us reports well within that thirty 13 (30) day limit, and others that we would be chasing after 14 a report after six (6), eight (8), nine (9) months, 15 sometimes even a year. 16 COMMISSIONER STEPHEN GOUDGE: But was 17 there any oral expectation back then, Dr. Lucas, of 18 thirty (30) days or anything like that? Or was it ASAP, 19 or...? 20 DR. WILLIAM LUCAS: It was ASAP, yes. 21 And -- but -- but with a tremendous degree of flexibility 22 thrown into that, with -- with other than sort of moral 23 suasion, coercion, that sort of effort -- 24 COMMISSIONER STEPHEN GOUDGE: Yes, we 25 talked about the tools yesterday.
131 DR. WILLIAM LUCAS: Exactly. 2 COMMISSIONER STEPHEN GOUDGE: But I was - 3 - this is sort of what was the expectation and how fuzzy 4 was it? And ASAP, I take it, is what would have been in 5 place prior to the guidelines? 6 DR. WILLIAM LUCAS: I would agree, yes. 7 I agree with that. 8 COMMISSIONER STEPHEN GOUDGE: Okay. 9 Thanks, Ms. Ritacca. 10 MS. LUISA RITACCA: Thank you. 11 Commissioner Goudge, Mr. Centa kindly handed up the OCCO 12 Institutional Report. At page 180 -- the PFP page 187, 13 and it's 4.4 -- Section 4.4 of the Coroner's 14 Investigation Manual which has the thirty (30) day 15 limits. 16 COMMISSIONER STEPHEN GOUDGE: Right, 17 thanks. 18 19 CONTINUED BY MS. LUISA RITACCA: 20 MS. LUISA RITACCA: And, Dr. Lauwers, who 21 receives the preliminary Form 3? 22 DR. ALBERT LAUWERS: Just the Regional 23 Supervising Coroner. 24 MS. LUISA RITACCA: And, Dr. Lucas, what 25 is the purpose of the Coroner's Investigation Statement?
141 DR. WILLIAM LUCAS: Basically it's a 2 summary of the coroner's investigation that includes all 3 the information that he has gleaned from that 4 investigation, including some statistical information 5 that we -- we try to track, relevant to the cases that 6 include such things as what was the location or the 7 environment that the -- the incident occurred, where did 8 the person die, were there any factors that were 9 associated with the death that -- that we might want to 10 track for statistical purposes, or that other individuals 11 or organizations would want to know about. 12 For example, if someone's involved in a 13 motor vehicle crash, we want to know things like: were 14 there seat belts present, were they worn, did the air bag 15 deploy and did that contribute to injuries, and was 16 alcohol a factor? So all of these things the coroners 17 record in their report, and then they include a 18 narrative, which is a synopsis of the circumstances as 19 they understand them, the issues that arose, whether 20 there were family concerns about medical care or that 21 sort of thing, how those issues were resolved, and 22 ultimately how the coroner concluded the investigation, 23 in terms of the cause and manner of death. 24 If there are any substantive issues that 25 require further follow up, that should be documented in
151 there. And if they've done that on their own initiative 2 and concluded them, we want to know what those 3 conclusions are. 4 MS. LUISA RITACCA: Okay. And what use 5 is made of that information that's contained in the 6 Coroner's Investigation Statement? 7 DR. WILLIAM LUCAS: Basically it goes 8 into our head office file as part of our database on all 9 the cases we review. But also, probably as importantly, 10 that's a document that's available to the families should 11 they require or request information about the coroner's 12 investigation, which can be used just to satisfy their 13 own needs and curiosity about what the coroner's 14 conclusions were, or to assist them with life insurance 15 policy conclusions and that sort of thing. 16 MS. LUISA RITACCA: And from a public 17 safety perspective, what use, if any, is made of the 18 information that's contained in a Coroner's Investigation 19 Statement? 20 DR. WILLIAM LUCAS: Again, because of the 21 kind of information that we tend to track, and we call 22 them codes, we have certain things that we'll identify 23 from the -- the body of the narrative, or that the 24 coroner identifies from their investigation that we've 25 asked them to highlight.
161 That allows us to do some tracking of 2 trends and issues that might be out there. 3 DR. JAMES EDWARDS: If I could just -- 4 just add to that? 5 MS. LUISA RITACCA: Sure, Dr. Edwards. 6 DR. JAMES EDWARDS: It can also be used 7 for research purposes. There's a number of agencies that 8 come into our office to do research and they gather the 9 cases they need, in regard to the particular research 10 they're doing, from -- from information that's gleaned 11 from that -- reports. 12 MS. LUISA RITACCA: Thank you. And does 13 -- Dr. Lucas, I'll direct this question to you again -- 14 does the Coroner's Investigation Statement have any role 15 in the criminal justice process? 16 DR. WILLIAM LUCAS: Generally, my 17 impression is no. That -- that's a document that's for 18 our purposes. It is by no means anywhere near as 19 inclusive as the amount of detail that would be required 20 for the criminal justice process and for forwarding 21 issues to court, so it would not normally be used in 22 those circumstances. 23 MS. LUISA RITACCA: And, Dr. Lucas, we 24 know that the coroner's investigation statement contains 25 a determination, both as to cause of death and manner of
171 death, and we've heard and -- and we've all come to 2 understand that it's within the coroner's jurisdiction to 3 make these determinations. And there's been some 4 discussion here at this Inquiry with regard to the role 5 of the forensic pathologist in opining as to the manner 6 of death. 7 And so starting with you, Dr. Lucas, 8 what's your view as to the role of the forensic 9 pathologists in opining as to manner of death? 10 DR. WILLIAM LUCAS: I think particularly 11 in cases that need some degree of interpretation to make 12 that conclusion, we often adopt, once again, the team 13 approach where the coroner should or the regional 14 supervising coroner should have some discussion with the 15 pa -- pathologist as to what their sense or their opinion 16 might be, in terms of -- of the manner of death; 17 recognising again that formerly in legislation they're 18 not given the jurisdiction to make that ultimate 19 conclusion. But certainly their ca -- their ideas, their 20 thoughts are taken into our consideration before we make 21 that final determination. 22 The other important thing, I think, 23 particularly in the criminal justice context, we're -- 24 we're usually dealing with, or invariably dealing with a 25 situation where a homicide has occurred.
181 Our definition of homicide is a simple 2 dictionary definition: it is the action of one (1) human 3 being killing another. There is no culpability, no 4 liability assigned to that; it's -- it's purely a -- a 5 definition. And therefor the standard that we apply in 6 terms of determining that conclusion is much, much lower 7 than the Courts would require to find a hom -- a 8 conclusion of murder, homicide, manslaughter, which 9 would, of course, be beyond a reasonable doubt. So that 10 we may have circumstances where we conclude that an 11 action of a human being has led to the death of another, 12 and therefore, for our purposes, it's a homicide, but the 13 police and/or the Crown may perceive that there is, based 14 on the -- the totality of circumstances, there are not 15 sufficient grounds to either lay a charge or that there 16 is a reasonable prospect of conviction. 17 For example, we, not uncommonly, encounter 18 a situation where in a nursing home an elderly resident 19 who has Alzheimer dementia, as a symptom of their 20 dementia is aggressive and they may, for no apparent 21 motivation or reason, push another resident who falls and 22 strikes their head. That resident ends up dying of the 23 consequences of their head trauma; in our view, the 24 action of a human being has led to the death of another, 25 so it's a homicide.
191 In most of those circumstances, even 2 though we will discuss the matter with the police to 3 advise them that there is the potential for them to 4 investigate, either the investigation is relatively short 5 and they determine that there's no reasonable crime 6 that's been committed there or the Crown attorney will 7 intervene and say there's not a prospect of conviction, 8 so that will go no further. 9 MS. LUISA RITACCA: Thank you. And, Dr. 10 Lauwers? 11 DR. ALBERT LAUWERS: Just so supplement 12 just in a small way what Dr. Lucas said. The coroner's 13 definition, we find that on the balance of probability, 14 which is very different than the criminal justice system, 15 which, of course, finds homicide beyond a reasonable 16 doubt. The -- and the post-mortem examination report 17 becomes important to the two (2) systems; we need to see 18 the post-mortem examination report to make our 19 determination of homicide, the criminal justice system 20 has its needs. 21 Just in speaking and supplementing what my 22 friend said, I think it's -- I think the -- I've noticed 23 the words "mechanism mode manner" had been used 24 interchangeably and we actually don't use them 25 interchangeably. For us, manner of death has only five
201 (5) -- there are only five (5) manners of death: they're 2 natural, accident, homicide, suicide, or undetermined. 3 Those are the only five manners of death that the 4 coroner's system embraces. 5 However, with regard to -- and so to 6 answer your question, it's my view that -- that the 7 provisions of the Coroners Act in section 18(2) specify 8 that the duty is the coroner's to find manner of death, 9 and our system has developed in respect of that, as well. 10 However, speaking about the mechanism of 11 death, I think the important thing here is with regard to 12 the pathology report. And it's important, I think, for 13 the pathologist to give an opinion as to what he believes 14 to be the mechanism of the death, including the preferred 15 opinion as to what actually happened. 16 By way of example, if one were to consider 17 a four (4) year old child that had -- that came to its 18 death as a result of a head injury, and here are the two 19 (2) scenar -- or here is a scenario: a hammer is found at 20 the scene and the hammer has a -- a bloody end on it. 21 And it's reported by caregivers that this child had 22 stumbled down a set of steps. 23 The pathologist by -- on the basis of the 24 pathology examination determines that it -- there's a 25 linear skull fracture with a subdural hematoma. In other
211 words, there appears to be pathological evidence to 2 support the -- the fall down the step mechanism versus 3 the bloody hammer mechanism. 4 And it turns out, in the course of events, 5 that the police find out the hammer is bloody because the 6 -- the father hit his thumb with the hammer. 7 Alternatively, the same scenario, except 8 the pathological findings are suggestive of several 9 punched out, depressed skull fractures on the skull of 10 the child. Well, clearly in that case the -- the 11 pathological evidence would support a finding more 12 consistent with a blunt force injury to the head. 13 So what I'm trying to suggest to do is 14 without going into the manner of death, which is the 15 finding of the coroner -- the so-called five (5) -- five 16 (5) proba -- possibilities -- there can be a fulsome 17 discussion of the -- of the mechanism, including the 18 preferred mechanism, based on the -- the pathological 19 discussion. 20 COMMISSIONER STEPHEN GOUDGE: A full 21 discussion in the post-mortem report? 22 DR. ALBERT LAUWERS: Yes, exactly. 23 COMMISSIONER STEPHEN GOUDGE: All right, 24 right. Can I go back, Dr. Lucas? 25 When you began answering Ms. Ritacca's
221 question you talked about cases in which there was 2 opinion or interpretation where it might be appropriate 3 for the coroner to discuss with the pathologist the 4 manner of death. 5 DR. WILLIAM LUCAS: Mm-hm. 6 COMMISSIONER STEPHEN GOUDGE: Give me an 7 example. 8 DR. WILLIAM LUCAS: It wouldn't be un -- 9 COMMISSIONER STEPHEN GOUDGE: I was not 10 quite sure what you meant by -- 11 DR. WILLIAM LUCAS: Sure. It wouldn't be 12 uncommon for us to have a situation where an elderly 13 person is found deceased in a bathtub. And they may, in 14 fact, be found submerged under water. 15 So the issue that we would want to discuss 16 in a case like that with the pathologist is whether, 17 based on their pathological findings, the -- it's -- it's 18 most -- more consistent with a natural death. 19 They had a heart attack and unfortunately 20 happened to be in water, and there's no signs that 21 there's any drowning. Is there any evidence of -- of 22 injury, say blunt force trauma to the back of their head 23 that implied they slipped and fell and whacked their head 24 in the tub before they -- they went under the water? 25 Or is this something that would be more
231 consistent with even a self-inflicted injury, that they 2 intentionally submerged themselves in water? 3 We can have those types of discussions, 4 where it isn't clear from the pathological findings alone 5 what conclusion the coroner may have to draw. 6 COMMISSIONER STEPHEN GOUDGE: But the 7 pathologist might have some hints for the coroner as to 8 which of the five (5) manners you ultimately land on? 9 DR. WILLIAM LUCAS: Based on the kind of 10 the thing that Dr. Lauwers has elucidated, in terms of 11 trying to explain what mechanism perhaps fits best with 12 that. 13 COMMISSIONER STEPHEN GOUDGE: Okay. And, 14 Dr. Lauwers -- sorry, Ms. Ritacca. 15 MS. LUISA RITACCA: That's all right. 16 COMMISSIONER STEPHEN GOUDGE: When you 17 talk about the distinction between describing in the 18 post-mortem report the mechanism -- which in some cases 19 you think it quite appropriate for the pathologist to do 20 -- and the role of the coroner in determining manner of 21 death, would you say it is always inappropriate for the 22 pathologist to include one (1) of the five (5) labels in 23 the post-mortem report? 24 DR. ALBERT LAUWERS: I would say, based 25 on the current structure of our system, indeed it is. I
241 know they use language such as "non-accidental," and 2 that's troublesome language. There's other ways to -- to 3 describe that, such as "inflicted." 4 There's always other pseudonyms and 5 language that one can use. And we're -- we're -- our 6 purview is those five (5) words. 7 COMMISSIONER STEPHEN GOUDGE: And so you 8 would see a post-mortem report that had cause of death 9 "blunt force trauma, non-accidental" as being troublesome 10 language? 11 DR. JAMES EDWARDS: Very troublesome. 12 DR. ALBERT LAUWERS: Yes, I would agree 13 with that. 14 COMMISSIONER STEPHEN GOUDGE: Dr. Edwards 15 ratcheted it up to very troublesome. 16 You would want to have a discussion with 17 the pathologist about that language in the -- 18 DR. JAMES EDWARDS: And if the 19 pathologist didn't address the issue, we would be 20 speaking with the chief forensic pathologist. 21 COMMISSIONER STEPHEN GOUDGE: Right. 22 Thanks. Ms. Ritacca...? 23 24 CONTINUED BY MS. LUISA RITACCA: 25 MS. LUISA RITACCA: Thank you. Dr.
251 Lucas, we heard from Dr. Cutz of the Hospital for Sick 2 Children in December about his concern that the Coroner's 3 Office hampered his ability to do the research that he 4 wanted to do using tissues retrieved in under -- from 5 coroners' cases. 6 Can you briefly describe the Coroner's 7 Office position with respect to research with particular 8 reference to your legislation? 9 DR. WILLIAM LUCAS: Yeah, I certainly can 10 start that discussion. I'm sure my colleagues will have 11 some comments as well. We, in the Coroner's Office, 12 certainly are not opposed to research. And, as I think 13 you heard from Dr. Edwards yesterday, a fair amount of 14 research does actually go on in our office. A lot of 15 that is along the lines of reviewing statistical 16 databases and sort of cumulative information that's been 17 gleaned from our investigations over a period of time. 18 There is in the Coroners Act a provision 19 for a coroner or the pathologist who is assisting the 20 coroner to obtain or retain whatever samples from the 21 body are required to assist with advancing the coroner's 22 investigation, i.e., to come to the conclusion as to 23 cause and manner of death. So routinely, samples of 24 tissues from the various organs within the body are 25 retained and on occasion, based on the nature of the case
261 and the particular nuances of forensic pathology, a whole 2 organ such as a heart or a brain will actually be 3 retained because that's the more definitive way to 4 analyse that structure and come to a reasonable 5 conclusion. 6 There is nothing in the Coroners Act, as 7 we read it, that gives us the authority to take and 8 retain tissues for purposes of research specifically. 9 And one (1) of the reasons that in recent 10 years we've been much more transparent and open in our 11 discussions with families when particularly organs are 12 retained, flows from the fact that world-wide there have 13 been circumstances where this type of activity has gone 14 on unbeknownst to families, and then when it becomes 15 apparent that tissues have been retained for purposes 16 that they did not understand or accede to, there's been 17 major, major concerns raised. 18 So our concern is that if we were going to 19 go down that road, which we wouldn't be adverse to, there 20 needs to be either a provision in the Coroners' Act to 21 support it or there would need to be some kind of process 22 put in place that we were very clear what the purposes of 23 that research was and that there was some effort to 24 obtain consent from the families to retain those tissues. 25 MS. LUISA RITACCA: And practically,
271 today, without the suggest -- the legislative change that 2 you just suggested, how does a pathologist go about 3 getting permission to -- to do research on tissues 4 retrieved from coroners' cases? 5 DR. WILLIAM LUCAS: We have a committee 6 that basically reviews any request for research on 7 information or -- or material that is available from our 8 office, and that they need to submit a proposal to that 9 committee for review. 10 In most circumstances it usually would 11 involve a university teaching centre so that we would 12 expect that they would apply similarly to their own 13 institution and have that reviewed by their ethics board 14 and so on, and then ultimately, if the project is 15 approved, it would then go ahead. 16 My colleagues have sort of -- especially 17 Dr. Edwards, has more direct involvement in that in -- 18 MS. LUISA RITACCA: Yes, I was -- 19 DR. WILLIAM LUCAS: -- Toronto. 20 MS. LUISA RITACCA: -- I was just about 21 to turn to Dr. Edwards. 22 And can you, Dr. Edwards, briefly describe 23 some of the research endeavours that you're aware of that 24 have gone on in -- at the Office of the Chief Coroner in 25 recent years?
281 DR. JAMES EDWARDS: We have -- each year 2 we have from the University of Toronto we have at least 3 two (2) medical students and one (1) forensic science 4 student do placements in our office for the academic 5 year. And their placements involve doing a research 6 project and that project and that project has to be 7 vetted by the Ethics Board of the University. 8 And our students have done actually some 9 very interesting research over the years. One (1) a 10 couple of years ago did some research on the Bloor Street 11 Viaduct; the Luminous Veil, does it -- does it prevent 12 overall suicides in the City of Toronto. And that 13 student is now a psychiatry resident and is coming back 14 to look at the issue again. 15 So when we identify issues in our office 16 that we think would be worthy of research, we generally 17 have one (1) of our students do research into that 18 matter. 19 In addition, there's a number of agencies 20 that come into our office that use our statistical bases 21 to do research. The -- there's -- Traffic Injury 22 Research Foundation comes in annually. There's a 23 criminology professor from the University of Toronto who 24 does research. Lifesaving Society that looks at 25 drownings. There's Electrical Safety Association that
291 looks at electrical deaths. There's a whole host of 2 agencies that come into our office to do research. 3 MS. LUISA RITACCA: And are you aware -- 4 COMMISSIONER STEPHEN GOUDGE: Sorry, Ms. 5 Ritacca. 6 MS. LUISA RITACCA: Sure. 7 COMMISSIONER STEPHEN GOUDGE: Can you 8 tell me a little more about the placements from the 9 University? That's new to me. 10 DR. JAMES EDWARDS: We have -- each year 11 we have -- we have at least two (2) medical students and 12 they do the -- 13 COMMISSIONER STEPHEN GOUDGE: These are 14 undergraduate medical students? 15 DR. JAMES EDWARDS: Yeah, yeah. 16 COMMISSIONER STEPHEN GOUDGE: What year 17 would they be in? 18 DR. JAMES EDWARDS: Second. Second year. 19 COMMISSIONER STEPHEN GOUDGE: And is this 20 part of their curriculum? 21 DR. JAMES EDWARDS: Yeah, actually it's a 22 very interesting placement for them. So they -- we 23 generally have a number -- a number of applicants and we 24 interview the students. Our office is very popular with 25 the students.
301 And they spend a year, as I say, in our 2 office. They have to do a research project as part of 3 their -- as part of their placement. 4 COMMISSIONER STEPHEN GOUDGE: So it's 5 directed research? 6 DR. JAMES EDWARDS: Yeah, it has to be. 7 And -- 8 COMMISSIONER STEPHEN GOUDGE: And is 9 there a faculty member that supervises it? 10 DR. JAMES EDWARDS: Yeah, there is. 11 Yeah. 12 COMMISSIONER STEPHEN GOUDGE: Okay. And 13 this would be in place of a course that they would take? 14 Or does everybody in second year have that kind of 15 placement in the -- 16 DR. JAMES EDWARDS: Well, the -- the 17 students have to do -- each second-year student, medical 18 student at the University of Toronto needs to do a 19 placement at some community agency. Some do it at -- at 20 OPP and some medical facilities and so on. 21 But it's meant to be -- it's called DOCH, 22 D-O-C-H, Determinants of Community Health. So they have 23 to research into some determinant of community health. 24 COMMISSIONER STEPHEN GOUDGE: Right. 25 DR. JAMES EDWARDS: And in -- in our case
311 we have to design or help them come up with a research 2 project that -- that addresses their -- their academic 3 needs. 4 COMMISSIONER STEPHEN GOUDGE: Okay. And 5 you have two (2) each year? 6 DR. JAMES EDWARDS: Two (2) each year. 7 COMMISSIONER STEPHEN GOUDGE: And you 8 described a third person? 9 DR. JAMES EDWARDS: And we also have a -- 10 a forensic sciences student that comes into our office to 11 do research, at least one (1) forensic sciences student. 12 COMMISSIONER STEPHEN GOUDGE: Is that at 13 the graduate level or the undergraduate level? 14 DR. JAMES EDWARDS: Undergraduate, the 15 fourth year. 16 COMMISSIONER STEPHEN GOUDGE: Okay. And 17 it would be the same kind of thing? It would be a 18 placement for a term and doing a directed research 19 project? 20 DR. JAMES EDWARDS: Exactly. And in 21 addition these students -- actually the student this year 22 we have, our forensic science student, is doing the 23 research component of their study at Hospital for Sick 24 Children. The -- this is the first year we've had that. 25 But the Hospital for Sick Children -- one
321 of the pathologists was interested in doing research on 2 bath -- bathtub drownings. 3 COMMISSIONER STEPHEN GOUDGE: Mm-hm. 4 DR. JAMES EDWARDS: Dr. Summers. So this 5 student is working with Dr. Summers to do that. In 6 addition the students participate in other activities at 7 our office. 8 They attended -- attended morning rounds. 9 They often go to inquests. They will spend time going 10 out with our coroners to -- to do investigations. We 11 teach them how to do enucleations. So we try to make it 12 a really well-rounded experience for the -- for the 13 student. And it's of assistance to them in the -- 14 COMMISSIONER STEPHEN GOUDGE: Right. 15 DR. JAMES EDWARDS: -- in their future 16 career. And then we're -- 17 COMMISSIONER STEPHEN GOUDGE: Right. 18 DR. JAMES EDWARDS: -- sort of hoping 19 that maybe they'll consider a career as a coroner as 20 well. 21 COMMISSIONER STEPHEN GOUDGE: Or I take 22 it as a pathologist? I assume you could do directed 23 research in the pathology side of the operation? 24 DR. JAMES EDWARDS: Exactly. And, you 25 know, we cooperate. And -- and the example I gave you --
331 COMMISSIONER STEPHEN GOUDGE: The example 2 you gave me is one? 3 DR. JAMES EDWARDS: Yeah, yeah. 4 COMMISSIONER STEPHEN GOUDGE: Yes. 5 DR. JAMES EDWARDS: Exactly. 6 COMMISSIONER STEPHEN GOUDGE: Okay. 7 Thanks, Ms. Ritacca. 8 9 CONTINUED BY MS. LUISA RITACCA: 10 MS. LUISA RITACCA: Mm-hm, no trouble. 11 Dr. Lauwers, if I could ask you turn up Tab 6 of Volume 12 II of your materials. And, Mr. Registrar, if I could 13 have PFP032477. 14 15 (BRIEF PAUSE) 16 17 MS. LUISA RITACCA: 032477. 18 19 (BRIEF PAUSE) 20 21 MS. LUISA RITACCA: Dr. Lauwers, if I 22 could ask you go to the investigation questionnaire 23 that's at -- 24 DR. ALBERT LAUWERS: Thank you. 25 MS. LUISA RITACCA: -- the tab. It's the
341 -- actually the third document in the tab. Mr. Centa has 2 spoken to you about this document at some length. I had 3 some followup questions arising. 4 First, Dr. Lauwers, can you clarify 5 exactly under what circumstances the office expects this 6 document to be completed? 7 DR. ALBERT LAUWERS: Certainly. We don't 8 expect this to be completed in the event of a homicide. 9 We do expect it to be completed in a circumstance where a 10 child is found deceased at home in a crib in whatever 11 condition and the -- the manner of death is clearly 12 unknown at the time that the coroner is investigating the 13 death. 14 So that would fit into the so-called 15 Sudden Infant Death Syndrome category. 16 MS. LUISA RITACCA: Yes. Oh, and -- and 17 is that also true of the predecessor questionnaire that 18 was in relation to -- 19 DR. ALBERT LAUWERS: Yes. 20 MS. LUISA RITACCA: -- death of children 21 under two (2)? 22 DR. ALBERT LAUWERS: Yes. 23 MS. LUISA RITACCA: Okay. And -- and so 24 is it fair to say, if I understand your evidence, that 25 the questionnaire is most specifically addressed for
351 sudden and unexpected deaths of very young children? 2 DR. ALBERT LAUWERS: Yes, it's designed 3 for -- principally designed for those under two (2). 4 It's been extended to those under five (5). 5 MS. LUISA RITACCA: Would you agree that 6 there's some confusion in -- in calling it a 7 questionnaire for under five (5) if it's really meant to 8 be directed to deaths of possible SIDS/SUDS? 9 DR. ALBERT LAUWERS: I would agree with 10 that. I think that properly one of the functions of our 11 committee in the next year will be to redevelop the form, 12 that they'll have a section specific to deaths under two 13 (2) and a section specific to death between two (2) and 14 five (5) years of age. 15 MS. LUISA RITACCA: Thank you. And, Dr. 16 Lauwers, during his evidence Dr. Cutz also expressed some 17 concern that the -- there was a movement away from 18 designating deaths as SIDS and instead classifying them 19 as, for example, SUDS, with a reference to an unsafe 20 sleep environment. And -- and he was concerned that 21 this was detrimental to ongoing study and statistical 22 analysis of SIDS as a -- as a disease. 23 Are you aware of that? 24 DR. ALBERT LAUWERS: I am. 25 MS. LUISA RITACCA: Okay. And I'd ask
361 you to turn in the same volume to Tab 44. Mr. Registrar, 2 that's PFP057188, and this is the report of the Pae -- 3 Paediatric Death Review Committee and Deaths Under Five 4 Committee. 5 And, Dr. Lauwers -- if you can go to page 6 12, I believe, Mr. Registrar. 7 DR. ALBERT LAUWERS: Thank you. 8 MS. LUISA RITACCA: And at page 12 we see 9 there's the discussion in the box of the National 10 Association of Medical Examiner's guidelines for 11 classifying deaths. 12 Could you describe what these guidelines 13 are, Dr. Lauwers? 14 DR. ALBERT LAUWERS: These guidelines 15 were developed by, again, the National Association of 16 Medical Examiners. And the discussion that Dr. Cutz 17 expressed, or the concerns that he expressed, are 18 actually relevant to these types of classifications. 19 It's widely acknowledged that there's been 20 a movement away from the SIDS type death to sudden 21 unexpected death as a death classification. Our -- our 22 committee follows this particular classification which 23 has been prepared by the National Association of Medical 24 Examiners in consideration of the deaths that are 25 reviewed under the Death Under Five Committee.
371 MS. LUISA RITACCA: And -- and why does 2 the committee choose to follow the name guidelines? 3 DR. ALBERT LAUWERS: It al -- it allows 4 for standardisation. 5 MS. LUISA RITACCA: And other than 6 allowing for standardisation, is there any other 7 advantage to using this type of classification for these 8 types of deaths? 9 DR. ALBERT LAUWERS: Well, it allows the 10 -- the world community to be speaking the same language 11 with regard to these types of death, so it really is all 12 about the standardisation and recognise -- recognition 13 that's in place. 14 COMMISSIONER STEPHEN GOUDGE: 15 Standardisation across the global community of death 16 investigation? 17 DR. ALBERT LAUWERS: Exactly. The 18 National Association of Medical Examiners would be 19 probably the largest body of medical examiners operating 20 in the United States. 21 22 CONTINUED BY MS. LUISA RITACCA: 23 MS. LUISA RITACCA: And is there any 24 public safety advantage to having this type of 25 classification, as opposed to a SIDS classification?
381 DR. ALBERT LAUWERS: There is. It allows 2 for the identification of certain aspects of the death 3 which have great public significance -- public safety 4 significance. 5 For instance, you know, the -- the issue 6 of whether a child was co-sleeping with an adult, whether 7 a child was in a, what we terminate -- we -- we call an 8 unsafe sleeping environment; such items as sleeping a 9 child on a couch, in an adult bed between adults on a 10 futon. In -- in other words, in environments which are 11 un -- inherently unsafe for the child. 12 And this particular classification system 13 actually makes a recognition of that issue and that's why 14 I -- the -- there has been a trend towards us not having 15 so many SIDS classified, but rather SUDS. 16 And indeed it's the Death Under Five form 17 in its completion that allows for the recognition of 18 these various unsafe sleep environments. 19 MS. LUISA RITACCA: Thank you. 20 DR. WILLIAM LUCAS: I wonder if I could 21 jump in and make -- 22 MS. LUISA RITACCA: Sure. 23 DR. WILLIAM LUCAS: -- two (2) other 24 brief comments. It's -- it's important to recognise that 25 a document that -- like we're looking at from name is a
391 consensus document, so that there has been a broad 2 exploration of the topic amongst a huge number of people 3 that are -- are dealing with this on a day-to-day basis 4 and -- and analysing and trying to come to terms with how 5 to best make that kind of a classification. So that's 6 the one (1) comment. 7 The other comment, historically, coming 8 back to the definition of SIDS, a universal definition of 9 SIDS was only adopted, and I can't remember the exact 10 dates, about 1995 or thereabouts, and -- and up until 11 that time the -- the definition was much, much broader. 12 And part of the reason for the death 13 investigation questionnaire, under the age of two (2), 14 was that the time that -- that that was being formulated 15 SIDS was a definition that was accepted up until the age 16 of two (2). And it was only with critical analysis 17 similar to the consensus document that we're looking at 18 here that experts determined that it was much more 19 appropriate to refine the limits up until the age of 20 twelve (12). 21 So I think what we're in fact -- 22 MS. LUISA RITACCA: Twelve (12) months. 23 DR. WILLIAM LUCAS: Twelve (12) months, 24 sorry. Twelve (12) months. 25 What we're seeing is just a further
401 refinement of -- of that process as we gain more and more 2 understanding of -- of the kinds of factors that come to 3 play in causing these tragic deaths of children. 4 DR. ALBERT LAUWERS: So the -- just to 5 supplement what Dr. Lucas has said, there became a 6 stricter use of the definition of SIDS. And since -- in 7 1991, there were approximately a hundred and forty (140) 8 deaths that were classified in Ontario as SIDS, and this 9 is down to about ten (10) per year. 10 And it's felt to be due to three (3) 11 factors, primarily. One (1) is education, which was 12 putting babies to bed on their back. The second was the 13 stricter definition of SIDS evolved through the National 14 Association of Medical Examiners. And the third was, in 15 fact, we think for us, the implementation of the Death 16 Under Five form, which allowed us to identify all these 17 various cofactors which may have contributed to deaths. 18 COMMISSIONER STEPHEN GOUDGE: If you 19 applied the 1990s definition of SIDS to today, what would 20 the number ten (10) rise to? Do -- 21 DR. ALBERT LAUWERS: It probably -- a 22 hundred (100) -- a hundred and forty (140) -- 23 DR. WILLIAM LUCAS: Yeah, yeah. It would 24 probably include -- 25 DR. ALBERT LAUWERS: -- because that's
411 what he number was in 1991. 2 COMMISSIONER STEPHEN GOUDGE: Yes, right. 3 Well, viewed optimistically, Dr. Lauwers, one might say 4 that the public education of sleeping environments might 5 have reduced that one forty (140) somewhat? 6 DR. ALBERT LAUWERS: It's -- it's felt to 7 be one (1) of the contributing factors, Mr. Commissioner. 8 COMMISSIONER STEPHEN GOUDGE: Yes. So 9 insofar that prevented some infant deaths that would 10 otherwise have occurred, but even with the 1990s 11 definition that number might be lower than one forty 12 (140), hey? 13 DR. ALBERT LAUWERS: Yes. 14 COMMISSIONER STEPHEN GOUDGE: Because it 15 would take that component out of it. Although, it would 16 continue to include what are now classified otherwise, as 17 a result of a somewhat more detailed classification 18 system the name has put in place. 19 DR. ALBERT LAUWERS: Exactly. 20 COMMISSIONER STEPHEN GOUDGE: Okay. 21 Thanks, Ms. Ritacca. 22 23 CONTINUED BY MS. LUISA RITACCA: 24 MS. LUISA RITACCA: No trouble. Dr. 25 Lucas, if I could have you turn to Tab 7 of Volume II,
421 and that's PFP116877. This is a memo of June 28th, 1996 2 from Dr. David Chiasson, then Chief Forensic Pathologist, 3 with regard to his efforts to create Regional Coroners 4 Pathologists. 5 And we've -- we've heard about these 6 efforts to some extent. Can you describe what the 7 Regional Coroners Pathologist -- who a Regional Coroners 8 Pathologist is? 9 DR. WILLIAM LUCAS: Okay. This was part 10 of out continuing effort to improve quality in forensic 11 pathology and forensic pathology autopsy reports across 12 the Province. Prior to this designation, virtually any 13 pathologist in the Province who was qualified and 14 recognized by the College of Physicians and Surgeons and 15 the Royal College as a pathologist was deemed competent 16 to do an autopsy for our purposes. 17 And our experience was that pathologists - 18 - there's a spectrum of knowledge, skill, and expertise 19 just as there is with physicians, or lawyers, or any 20 other professional group. And we were finding that there 21 were some pathologists that were clearly much better, 22 much more skilled at doing the more complicated cases 23 than others. 24 So we determined in the mid '90s that it 25 was an important exercise for us to go through to
431 credential the pathologists that were doing autopsies 2 across the Province for us, so that we had some mechanism 3 that we could demonstrate that we had reviewed their 4 training, their experience, and their skill and felt that 5 they were qualified to do procedures for us, but at the 6 same time, to differentiate between those who had a 7 lesser skill level versus those that had a greater skill 8 level. 9 And it even went beyond that to include 10 those that had demonstrated an interest and a proficiency 11 at doing the more complicated cases or even going to 12 court and -- and serving as expert witnesses in -- in 13 criminal cases. 14 So the Regional Coroners Pathologist's des 15 -- designation was our first attempt at differentiating 16 those people who had not only the skill level, but the 17 experience under their belt of doing these kind of 18 complex cases like homicides and going to court as -- as 19 expert witnesses. 20 We've progressed beyond that point and we 21 recognize now that although that was a first attempt at 22 trying to differentiate in making sure that the autopsy 23 went to the appropriately skilled person, we -- we now 24 believe that, as we've heard in -- in the evidence that 25 we presented yesterday, the Centres of Excellence where
441 you further define or -- or increase the level of -- of 2 skill required to do the -- the job appropriately, and 3 thoroughly, and competently is recognized and so that the 4 homicides now bypass even the reg -- regional forensic 5 pathologist descriptions. 6 And although it still exists in our 7 lexicon of terminology, it's not something that we on a 8 daily basis routinely use anymore. 9 MS. LUISA RITACCA: And is there a way 10 that a pathologist can be removed as a coroner -- a 11 regional coroner's pathologist? 12 DR. WILLIAM LUCAS: I don't know whether 13 we've ever had to do that. Generally speaking, 14 pathologists recognize their strengths, their weaknesses, 15 and their skill levels. 16 And if they feel that they're in an arena 17 that they're uncomfortable with or that they're -- 18 they're dealing with cases that exceed their -- their 19 comfort level in terms of managing, they usually 20 voluntarily with -- withdraw from dealing with those 21 types of cases. 22 MS. LUISA RITACCA: And in a go-forward 23 basis, do you think that there's anything that the office 24 can do to improve this credentialing system that you've - 25 - you've described?
451 DR. WILLIAM LUCAS: Absolutely. I -- I 2 think the -- the process that we have is evolving. And I 3 think it's important that, with the guidance of someone 4 like the chief forensic pathologist, we move that forward 5 in -- into a process that would not be dissimilar to the 6 kind of quality assurance issues that we're talking about 7 with coroners, that there be some kind of an annual or 8 periodic assessment of their ongoing competence and 9 skill; an opportunity to provide them with educational 10 enhancement if they're deficient in some areas; and/or at 11 some point a recognition that they're not meeting the 12 current standards that we would require of them or that 13 the chief forensic pathologist would require of them, and 14 perhaps it's time for either them to withdraw or for us 15 to not utilize their services any longer. 16 MS. LUISA RITACCA: And -- and who should 17 oversee this group of pathologists or this list? 18 DR. WILLIAM LUCAS: My sense would be, 19 because we're talking about professional competence, that 20 would be something that should be assessed by a forensic 21 pathologist, and more particularly the chief forensic 22 pathologist. I think he should be setting the -- the 23 standards or the guidelines for us to follow in that way. 24 COMMISSIONER STEPHEN GOUDGE: Do you need 25 regional supervising pathologists? I mean the
461 counterpart to the structure -- 2 DR. WILLIAM LUCAS: Yeah, sure. 3 COMMISSIONER STEPHEN GOUDGE: -- the 4 three (3) of you described yesterday. 5 DR. WILLIAM LUCAS: I think the short 6 answer to that is yes. And we already have our 7 designated Centres of Excellence in, you know, Hamilton, 8 London -- 9 COMMISSIONER STEPHEN GOUDGE: Yeah -- 10 DR. WILLIAM LUCAS: -- and so on. 11 COMMISSIONER STEPHEN GOUDGE: -- I mean 12 that is a natural evolution -- 13 DR. WILLIAM LUCAS: It would be. 14 COMMISSIONER STEPHEN GOUDGE: -- Centres 15 of Excellence, isn't it? 16 DR. ALBERT LAUWERS: Absolutely. I 17 completely support that notion. I think one of the 18 things that this whole Inquiry has told us is that there 19 is a significant need for enhancement to the forensic 20 pathology side of death investigation and that it needs a 21 structure. 22 And the best structure, we have -- we have 23 that structure in place for the coroners arm, and we need 24 the same sort of structure in place for the forensic 25 pathology arm.
471 So I would support the notion that there 2 needs to be regional forensic pathologists that have 3 jurisdiction over geographical -- geographical arers -- 4 areas. 5 COMMISSIONER STEPHEN GOUDGE: Dr. 6 Edwards, you -- 7 DR. JAMES EDWARDS: Yeah, exactly. 8 COMMISSIONER STEPHEN GOUDGE: -- concur I 9 take it? 10 11 CONTINUED BY MS. LUISA RITACCA: 12 MS. LUISA RITACCA: And Dr. Lauwers, how 13 do you see that happening? 14 DR. ALBERT LAUWERS: Just -- could I just 15 -- wanted one supplementary comment -- 16 MS. LUISA RITACCA: Sure. 17 DR. ALBERT LAUWERS: -- with regard to My 18 Friend's comment, which is the chief forensic pathologist 19 clearly should be responsible for credentialing forensic 20 pathologists. 21 However, to have -- he needs a support 22 group to do that. It should be with appropriate 23 committee or steering committee or something that has a 24 jurisdictional ability to deal with disciplinary matters. 25 It shouldn't be just he and he alone. And I think Dr.
481 Pollanen would probably recognize that. 2 I'm sorry, what was your question? 3 COMMISSIONER STEPHEN GOUDGE: Expand that 4 a little bit. I don't... 5 DR. ALBERT LAUWERS: Well, for instance, 6 in the coroner's system what we have is we have a new 7 tool called the Chief Coroner's Council, which in fact -- 8 where there's a disciplinary matter, the chief coroner 9 has the ability to strike a committee for the purposes of 10 looking into disciplinary issues with regard to a 11 coroner. 12 COMMISSIONER STEPHEN GOUDGE: When you 13 talk of discipline, Dr. Lauwers, you talk of a coroner 14 that has not complied with one of your guidelines, for 15 example? 16 DR. ALBERT LAUWERS: Yes. I'm talking 17 about professional competence in the execution of their 18 duties as well. 19 So what I'm saying is the chief forensic 20 pathologist should have a similar tool in place so that 21 the entire burden of having to make decisions about that 22 should -- should be in place so that he can share that 23 responsibility with duly qualified individuals. 24 COMMISSIONER STEPHEN GOUDGE: Okay. How 25 does that relate to the regulatory obligations of the
491 College of Physicians and Surgeons? 2 DR. ALBERT LAUWERS: Yeah, we've been 3 over that several times and had the discussion many 4 times. Issues of professional competence are clearly 5 within the purview of the College of Physicians and 6 Surgeons -- 7 COMMISSIONER STEPHEN GOUDGE: Right. 8 DR. ALBERT LAUWERS: -- pursuant to the 9 Regulated Health Professions Act. 10 COMMISSIONER STEPHEN GOUDGE: Right. But 11 you used the language of "professional competence" when 12 you were describing the coroner -- the Chief Coroner's 13 Committee? 14 DR. ALBERT LAUWERS: Mr. Commissioner, 15 the best way I can describe it is by relating it to a 16 hospital-type situation. In a hospital a physician 17 applies for privileges to do a certain service. 18 COMMISSIONER STEPHEN GOUDGE: Right. 19 DR. ALBERT LAUWERS: And they are 20 permitted to do so. And they provide their credentials, 21 and the credentials committee of the hospital provides 22 the services to -- or allows that physician to provide 23 the services to the public. 24 COMMISSIONER STEPHEN GOUDGE: Right. 25 DR. ALBERT LAUWERS: Now that physician
501 has represented that he has a certain skillset. 2 COMMISSIONER STEPHEN GOUDGE: Right. 3 DR. ALBERT LAUWERS: If indeed the 4 physician does not have the skillset and patients come to 5 harm as a result of insufficient skillset, it's incumbent 6 on the hospital to take sufficient actions to ensure that 7 the public doesn't have harm again. 8 And so on the one hand, they -- they must 9 take that physician off the roster of physicians who are 10 performing tasks on behalf of that organization. 11 On -- however, the professional aspect of 12 that still is relevant to the College. And currently 13 when a physician is removed from a hospital staff based 14 on performance issues, the hospital must notify the 15 College -- 16 COMMISSIONER STEPHEN GOUDGE: Right. 17 DR. ALBERT LAUWERS: -- of Physicians and 18 Surgeons. 19 COMMISSIONER STEPHEN GOUDGE: And would 20 you see the Chief Coroner's Committee working the same 21 way? 22 DR. ALBERT LAUWERS: Well it's -- it 23 would only be a vision at this point, because I -- I 24 don't -- I'm not aware of any particular instance in 25 which it's been struck. But I would think that would be
511 the appropriate way to go. 2 COMMISSIONER STEPHEN GOUDGE: Okay. And 3 give me the title of the Chief Coroner's Committee again? 4 DR. WILLIAM LUCAS: I think it's the 5 Chief Coroner's Committee. 6 DR. ALBERT LAUWERS: The Chief Coroner's 7 Committee. 8 COMMISSIONER STEPHEN GOUDGE: I got it 9 right, okay. And is it actually up and running? 10 DR. ALBERT LAUWERS: Well it's -- the -- 11 the principles under which it operates have been 12 formalized and completed. 13 COMMISSIONER STEPHEN GOUDGE: Okay. And 14 can you give me an outline of its composition? What kind 15 of people or constituencies are going to be on it? 16 DR. ALBERT LAUWERS: I can't. I'm going 17 from memory, and the memory is long, but I -- 18 COMMISSIONER STEPHEN GOUDGE: Maybe the 19 simple thing, Ms. Ritacca, I'm sure it's in our documents 20 someplace. 21 MS. LUISA RITACCA: It is in the 22 Institutional Report, and Dr. McLellan did talk about it 23 briefly -- 24 COMMISSIONER STEPHEN GOUDGE: Okay. 25 MS. LUISA RITACCA: -- during his
521 evidence. 2 COMMISSIONER STEPHEN GOUDGE: Okay, 3 thanks. Okay, and you would see the same kind of 4 counterpart committee being of assistance to the chief 5 forensic pathologist? 6 DR. ALBERT LAUWERS: Absolutely. 7 COMMISSIONER STEPHEN GOUDGE: Okay. 8 Thanks, Ms. Ritacca. 9 10 CONTINUED BY MS. LUISA RITACCA: 11 MS. LUISA RITACCA: Dr. Lauwers, I -- 12 what was it? I had asked you a question about how you 13 thought the implementation of Regional Forensic 14 Pathologists could occur. 15 And that was the question that I had asked 16 you to -- as a followup to what Commissioner Goudge had - 17 - had asked. 18 DR. ALBERT LAUWERS: And I think the 19 answer, the short answer is it should mirror, in my view, 20 what we currently do with our -- our regional supervising 21 coroners. In that sense there should be -- and they 22 should be coupled with the current structure of our -- 23 our Forensic Pathology Units. 24 MS. LUISA RITACCA: And -- and how do you 25 implement that?
531 DR. ALBERT LAUWERS: Well, one of the -- 2 one of the challenges is, Dr. Pollanen -- or whoever the 3 Chief Forensic Pathologist is in the future moving 4 forward -- needs to have a structure in place where at 5 least part of the time of these -- the individuals who 6 are responsible -- and they should be forensic 7 pathologists in charge of the Regional Forensic Pathology 8 Units. 9 Part of their time should be devoted to 10 administrative -- administrative medicine with regard to 11 pathology. And that might include in the future a 12 structure to review post-mortem reports. 13 So what I'm suggesting is is not currently 14 the process. There -- they should be -- there should be 15 -- they should be retained on contract in part to be able 16 to provide these services. 17 That doesn't currently exist. In other 18 words, we don't pay them to be administrators in our 19 system. And it's something we need to explore so that 20 Dr. Pollanen can have the possibilities of expanding and 21 having more control over forensic pathology services in 22 Ontario. 23 COMMISSIONER STEPHEN GOUDGE: At the 24 moment, I take it, it's just fee-for-service? 25 DR. ALBERT LAUWERS: Exactly. Exactly.
541 2 CONTINUED BY MS. LUISA RITACCA: 3 MS. LUISA RITACCA: And when you say 4 "they," I assume you're talking about the directors of 5 each of the regional units? 6 DR. ALBERT LAUWERS: I'm talking about 7 the directors. 8 COMMISSIONER STEPHEN GOUDGE: Right. 9 DR. ALBERT LAUWERS: So you pay them a 10 stipend so that at least one (1) day a week, perhaps, 11 they dedicate their time entirely to administrative 12 matters on behalf of the Chief Forensic Pathologist. 13 14 CONTINUED BY MS. LUISA RITACCA: 15 MS. LUISA RITACCA: And do you see, in 16 your vision of implementing this kind of structure, do 17 you see a need for more forensic pathologists that are 18 full-time employees of the Office of the Chief Coroner? 19 DR. ALBERT LAUWERS: Clearly I do. I -- 20 I know that Dr. Pollanen is in dire need of some deputies 21 to assist him, and they should be also full-time 22 physicians as well with a huge administrative component 23 to their activities. 24 MS. LUISA RITACCA: And, Dr. Lauwers, 25 we've heard from some others here at this Inquiry that
551 there may be some advantage to in fact separat -- 2 separating out forensic services rather than enhancing 3 it, and separating it out from the Office of the Chief 4 Coroner. 5 What are your views of that? 6 DR. ALBERT LAUWERS: I think that that 7 particular opinion is not informed. I'm not aware of any 8 situation in health care where the -- there are 9 advantages to separating components of a team which much 10 -- must function in the interests of the patient. 11 Similarly, we have a death investigation 12 team and that team has to function in the interests of 13 death investigation. To actually take the forensic 14 pathology arm of death investigation and move it 15 somewhere else would -- would not be beneficial. In 16 fact, it would have the effect of creating silos. 17 I just -- I'll just briefly state, there 18 are certain principles of quality that are well 19 recognised worldwide, and the second principle of quality 20 is teamwork and participation. 21 The teamwork aspect talks about things 22 such as a hierarchical structure, but also cross- 23 functional structure. In other words, for our coroner 24 system there's inquests, there's death investigation, and 25 there's a forensic pathology wing.
561 Those three (3) elements have to be 2 integrated continuously, and I can't see that taking 3 pathology out of that and moving it somewhere else would 4 be at all beneficial. 5 MS. LUISA RITACCA: And Dr. Edwards, 6 you're shaking your head. What's your views? 7 DR. JAMES EDWARDS: Yeah, I -- I 8 completely agree. Death investigation is best 9 accomplished in a team setting. And having the various 10 parties in -- involved in the same -- in the same -- the 11 same physical locality is a tremendous benefit. 12 MS. LUISA RITACCA: Dr. Lucas...? 13 DR. WILLIAM LUCAS: I would concur. And 14 the only other thing that I would add is that I think 15 this Commission has heard some evidence that prior to 16 1994 there was that distinction or separation between the 17 two (2) areas within the -- the medicolegal death 18 investigation system in the Province. 19 And -- and although I wasn't a part of the 20 senior management team at the time, my understanding is 21 that there was a -- a great deal of dysfunction in -- in 22 that setup. 23 MS. LUISA RITACCA: And finally, Doctors, 24 you've -- you've spent the last day and the last hour 25 this morning providing a great many of your views on
571 death investigation in Ontario, and -- and you have a 2 great deal of experience that you're -- you're able to 3 offer. 4 Do you have any other suggestions that you 5 would like the Commissioner to hear about improving or 6 enhancing the system, and with a particular reference to 7 forensic pathology services? Dr. Lauwers will start. 8 DR. ALBERT LAUWERS: Well, firstly, the 9 forensic pathology arm of death investigation needs 10 significant restructuring enhancement. 11 The -- secondly, that forensic pathology 12 services for the entire province should be collectively 13 developed and managed under, perhaps, something called 14 Ontario Forensic Pathology Services. 15 Thirdly, the Chief Forensic Pathologist 16 should have oversight for all of Ontario Forensic 17 Pathology Service, including quality, quality assurance 18 resource development, allocation -- that means the budget 19 -- service provision and policy development and 20 implementation. 21 The Chief Forensic Pathology (sic) should 22 have a degree of professional autonomy, and this should 23 recognise the independence of forensic pathology in 24 providing objective, unbiased opinions on the cause of 25 death.
581 Next, the -- to ensure an appropriate 2 system integration of death investigation, the Chief 3 Forensic Pathologist would report administratively to the 4 Chief Coroner. And this recognises the interdependence 5 of pathologists and coroners to facilitate high death 6 investigations. 7 Another example would be all pathologists 8 conducting post-mortem examination under a coroner's 9 warrant should be professionally responsible to the Chief 10 Forensic Pathology for the quality of their work. 11 I have a few others, if you're interested. 12 COMMISSIONER STEPHEN GOUDGE: By all 13 means. 14 DR. ALBERT LAUWERS: With regard to 15 pediatric forensic pathology -- and I can say that I have 16 a number of ideas about this -- but I -- I would -- I 17 think it's important to state that the Pediatric Forensic 18 Pathology Unit at the Hospital For Sick Children should 19 consider -- continue as a centre of excellence in the 20 provision of Pediatric Forensic Pathology Services. 21 I -- I -- again, I have a number of 22 other recommendations, but I -- I understand I'm going to 23 have the opportunity to come back at a later time. 24 COMMISSIONER STEPHEN GOUDGE: Yes, we are 25 going to have you back. Let me just ask a couple of
591 questions about those helpful suggestions, Dr. Lauwers. 2 A number of the suggestions at the 3 beginning of the answer you just gave deal with forensic 4 pathology as a whole as opposed to pediatric forensic 5 pathology. 6 I take it your view would be that the 7 kinds of changes you were referring to at the beginning, 8 in effect, have to made across the whole front of 9 forensic pathology. 10 Not just the pediatric sub-component of 11 forensic pathology, but that it would be when we come to 12 the specifics of delivering the service of pediatric 13 forensic pathology that the expertise of the specialised 14 service at Sick Kids becomes important. 15 Is that a fair summary? 16 DR. ALBERT LAUWERS: That's exactly 17 correct, Mr. Commissioner. 18 COMMISSIONER STEPHEN GOUDGE: I mean, it 19 seems to me your proposition would be you cannot kind of 20 give the Chief Forensic Pathologist responsibility in a 21 very small area without doing the whole of forensic 22 pathology. 23 DR. ALBERT LAUWERS: I agree. I did have 24 a couple of other suggestions but -- 25 COMMISSIONER STEPHEN GOUDGE: By all
601 means. I mean, give them now and later if you want. 2 DR. ALBERT LAUWERS: Well, one (1) of the 3 things that has come up is the fact that the word 4 "pathologist" doesn't actually even appear in the 5 Coroners Act and -- 6 COMMISSIONER STEPHEN GOUDGE: Right. 7 DR. ALBERT LAUWERS: -- if you look at 8 Section 28(2) of the Coroners Act it says "the person 9 performing the autopsy." Well clearly -- 10 COMMISSIONER STEPHEN GOUDGE: I think 11 every -- 12 DR. ALBERT LAUWERS: -- the "person" is 13 the pathologist. 14 COMMISSIONER STEPHEN GOUDGE: -- 15 everybody recognizes that that is something we are going 16 to have to pay careful attention to. 17 DR. ALBERT LAUWERS: And a further one 18 (1) is that the Chief Forensic Pathologist isn't actually 19 codified by the Coroners Act. And we thought that there 20 -- it would be reasonable that that Chief Forensic 21 Pathologist should appear in the Coroners Act and should 22 be -- should be the recipient of an Order-in-Council. 23 There's another issue as well. It has to 24 do with the issue of the funding of pediatric foren -- or 25 not pediatric forensic pathology but forensic pathology
611 in general. And it was this discussion we had yesterday, 2 Mr. Commissioner, about the -- the dichotomy of thinking 3 with regard to the Ministry of Health and Long-Term Care 4 competing for pathologists against the Ministry of 5 Community Safety and Correctional Service. 6 We -- people who do forensic pathology as 7 a professional career should not be doing it at their 8 financial peril. The government has to understand that 9 these people have to be paid or we're never going to have 10 enough of them. 11 COMMISSIONER STEPHEN GOUDGE: I guess one 12 (1) of the realities is that laboratory medicine 13 generally is one (1) of the critically under-serviced 14 areas of medicine in the Province. And within that 15 forensic pathology, we have heard, and the supply problem 16 is acute. 17 DR. ALBERT LAUWERS: That's right. 18 COMMISSIONER STEPHEN GOUDGE: So. 19 DR. ALBERT LAUWERS: And I hope to be 20 able to speak more at a later time about a number of 21 issues that our office is being -- is being paid -- 22 pardon me, our office has paid attention to and would 23 like the opportunity to speak to in terms of 24 recommendations in the future. 25 COMMISSIONER STEPHEN GOUDGE: Okay.
621 Thanks. 2 3 CONTINUED BY MS. LUISA RITACCA: 4 MS. LUISA RITACCA: And Dr. Lucas, Dr. 5 Edwards, do you have anything to add at this time on what 6 Dr. Lauwers has just expressed? 7 DR. JAMES EDWARDS: No, just to reiterate 8 that criminally suspicious autopsy -- pediatric autopsies 9 -- should be done in a -- in a setting that allows them 10 to utilize expertise in the same manner as is done at the 11 Hospital for Sick Children. And that should be the case 12 across -- across the Province. 13 MS. LUISA RITACCA: Dr. Lucas...? 14 DR. WILLIAM LUCAS: As you are well 15 aware, we've had some very lengthy discussions on these 16 types of issues, and I think I can't add anything to what 17 Dr. Lauwers has expressed in terms of our collective 18 views. 19 MS. LUISA RITACCA: Thank you. 20 Commissioner, those are my questions but I 21 just -- again from Mr. Centa, I have a couple of document 22 numbers that deal with the Chief Coroner's review 23 process. I don't know if you want those. 24 COMMISSIONER STEPHEN GOUDGE: Yes, that 25 would be helpful.
631 MS. LUISA RITACCA: Okay. It's 2 PFP032462, 463, 464 and 468. And I can tell you from Dr. 3 McLellan's evidence, this is a process that was put in 4 place in 2006. 5 COMMISSIONER STEPHEN GOUDGE: Right. 6 MS. LUISA RITACCA: And as Dr. Lauwers 7 indicated, hasn't had to have been used to date. 8 COMMISSIONER STEPHEN GOUDGE: Right. 9 Would you see -- just one (1) follow-up question, Dr. 10 Lauwers, on the review process. 11 Would you see that process being engaged 12 where there is a complaint from the public or are these 13 complaints that arise internally only? 14 DR. ALBERT LAUWERS: I think either/or 15 because of the nature of the complaint, but I can tell 16 you that there are lots of complaints that do come from 17 the public from time-to-time, of a minor nature, that 18 just need communication to sort them out. 19 So with clear specification it should be 20 able to deal with complaints from the public as well. 21 COMMISSIONER STEPHEN GOUDGE: Okay. 22 Thanks. 23 MS. LUISA RITACCA: Thank you. 24 COMMISSIONER STEPHEN GOUDGE: Thanks, Ms. 25 Ritacca. That is helpful, gentlemen.
641 Okay. Ms. Craig...? 2 3 CROSS-EXAMINATION BY MS. ALISON CRAIG: 4 MS. ALISON CRAIG: Thank you, Mr. 5 Commissioner. 6 Good morning Doctors. My name is Alison 7 Craig, and I'm one (1) of the lawyers that represents 8 nine (9) individuals who were convicted of crimes 9 relating to the death of children in which Dr. Smith was 10 involved in one (1) form or another. 11 And I really just have one (1) main area I 12 want to address although perhaps in a somewhat drawn out 13 manner. 14 Mr. Registrar, if you could pull up 15 057584, please, and then go to page 349. This is a 16 document that the Commissioner is well familiar with by 17 now. It's become known as the "think dirty" memo. And 18 this is a protocol that was issued in 1995 to all 19 pathologists and it's my understanding, to all coroners 20 as well. 21 Are you all familiar with that memo? 22 DR. ALBERT LAUWERS: Yes. 23 DR. WILLIAM LUCAS: Yes. 24 MS. ALISON CRAIG: And then I -- we can 25 just flip to page 340 -- 352, pardon me -- quickly. And
651 we see the instruction there near the bottom: 2 "That it's important for all members of 3 the investigation team to think dirty." 4 So that's something that all coroners 5 would have been familiar with as well -- 6 DR. JAMES EDWARDS: Yes. 7 MS. ALISON CRAIG: -- at the time it was 8 issued? Okay. And I believe, Dr. Edwards, you agreed 9 that post-mortem reports, at least in the quality 10 assurance perspective, are best reviewed by a forensic 11 pathologist? 12 DR. JAMES EDWARDS: Yes. 13 MS. ALISON CRAIG: As opposed to a 14 coroner. And I think you all agreed that forensic 15 patholo -- or that coroners, pardon me, have very little, 16 if any, training generally in the area of forensic 17 pathology? 18 DR. WILLIAM LUCAS: Yes. 19 MS. ALISON CRAIG: That's correct? And 20 how many investigations would each of you estimate -- 21 that's probably a hard question, but approximately how 22 many investigations would you all have conducted in your 23 careers as coroners? 24 DR. JAMES EDWARDS: As Supervising 25 Coroner, or as Investigating --
661 MS. ALISON CRAIG: As Investigating 2 Coroners. 3 DR. JAMES EDWARDS: Well, I would have 4 investigated four/five thousand (4,000/5,000) deaths 5 somewhere in that range. 6 MS. ALISON CRAIG: And that -- I think 7 it's fair to say is that most coroners investigate in the 8 hundreds or thousands of -- 9 DR. WILLIAM LUCAS: No, that's not 10 correct. I can say that from my perspective, I was an 11 active Investigating Coroner for five (5) years before I 12 became a Regional Supervisor, and I think my total was 13 about seven hundred and fifty (750). 14 When I was the Regional Supervisor 15 appointed to Toronto in 1997, I had coroners that were 16 reporting to me that had been coroners for their career 17 and had investigated in excess of twenty thousand 18 (20,000) deaths. 19 I can tell you that a lot of those twenty 20 thousand (20,000) were not what we would regard as 21 quality investigations today so I think numbers can be 22 somewhat misleading. 23 And then to add to -- to the mix of -- I 24 think probably -- when I look at my total experience, 25 you'll level -- or to -- to date, I've probably gained
671 far more knowledge and understanding as a supervisor 2 having overview of anywhere from twenty-five hundred 3 (2,500) to, at times, as many as five thousand (5,000) 4 investigations annually, than the actual hands on field 5 work of -- of being an Investigative Coroner. 6 MS. ALISON CRAIG: Okay. And on how many 7 occasions have you as Investigating or Regional 8 Supervising Coroners certified a cause of death different 9 from that opined by the pathologist? 10 DR. JAMES EDWARDS: Well, there are 11 certainly occasions that we might add to the cause of 12 death that the pathologist comes to. So it's not really 13 that we're in a disagreement with the pathologist, but 14 we're just -- may add on additional information that 15 we're aware of. 16 For example, we might be -- we might get 17 cause of death from the pathologist -- he says the cause 18 of death is an upper gastrointestinal hemorrhage from 19 gastritis, and -- and that's what the autopsy findings 20 are. 21 And we may review the medical records and 22 determine that the person was on an anti-inflammatory 23 medication that we believe likely caused his hemorrhage. 24 So we would add on -- we would keep on the top part of 25 the death certificate the same as the pathologist, and
681 then under contributory factors, or underlying 2 conditions, we might add treatment with whatever the non 3 -- non-inflammatory agent is for the treatment of 4 osteoarthritis. 5 So it's quite common that we -- or not 6 quite common, but that would be the most common way that 7 we would alter or add to the pathologist's cause of 8 death. So it's -- it's not -- it's not a conflict, it's 9 just an addition. 10 MS. ALISON CRAIG: It's not a matter of 11 changing the cause of death, but rather adding further 12 information in your narrative? 13 DR. JAMES EDWARDS: Exactly, and in -- 14 and in the death certificate as well. 15 MS. ALISON CRAIG: Right. And are you 16 all aware that for quite some time Dr. Chiasson was 17 reviewing post-mortem reports and providing essentially a 18 check mark, a review with a checkmark of -- of those 19 reports? 20 DR. ALBERT LAUWERS: Yes. 21 DR. WILLIAM LUCAS: Yes. 22 MS. ALISON CRAIG: Would you have 23 reviewed or received those as coroners? 24 DR. WILLIAM LUCAS: We would receive that 25 face sheet that indicated he had reviewed the case, yes.
691 MS. ALISON CRAIG: Okay. So coroners 2 were receiving not only a post-mortem report from a 3 forensic pathologist, but also a checkmark, or a vote of 4 confidence from the Chief Forensic Pathologist at the 5 same time? 6 DR. WILLIAM LUCAS: For cases that were 7 deemed criminally suspicious or homicides, yes. 8 MS. ALISON CRAIG: Okay. 9 DR. ALBERT LAUWERS: Just to be clear, 10 are we talking about Investigating Coroners or Regional 11 Coroners here? 12 MS. ALISON CRAIG: I think I'm talking 13 about Regional Supervising Coroners. 14 DR. WILLIAM LUCAS: Okay. 15 MS. ALISON CRAIG: And next I'm just 16 going to address the area of Shaken Baby Syndrome and 17 infant head injury, particularly closed infant head 18 injury which we've heard a lot about as well at this 19 Commission. 20 And presumably you're all aware of the 21 debate that surrounds, particularly, Shaken Baby 22 Syndrome? 23 DR. WILLIAM LUCAS: Yes. 24 DR. ALBERT LAUWERS: Yes. 25 MS. ALISON CRAIG: If we could turn up,
701 please, PFP032488. That can be found at Volume IV, Tab 2 31. I don't know that you need to turn to it. You can 3 probably just follow here. 032488. It looks like I have 4 -- I'm looking for the memo that was issued to Dr. 5 McLellan by Dr. Pollanen in January of this year. 6 I think I have the wrong PFP number. Tab 7 55. Thank you. 8 COMMISSIONER STEPHEN GOUDGE: Tab 55 of 9 volume...? 10 MS. ALISON CRAIG: Volume IV. 032588. I 11 was off by one (1) digit. Thank you, Mr. Centa. 12 COMMISSIONER STEPHEN GOUDGE: What volume 13 is that, Mr. Centa? 14 MR. ROBERT CENTA: It's Volume II, Tab 15 56. 16 COMMISSIONER STEPHEN GOUDGE: Thank you. 17 18 CONTINUED BY MS. ALISON CRAIG: 19 MS. ALISON CRAIG: I was close. And this 20 is a memo that, as I said, the Commissioner is well 21 familiar with, written by Dr. Pollanen in January of this 22 year. And I'm going to refer to a couple passages from 23 it and get your thoughts, if I may? 24 First, at page 6, paragraph 27 -- thank 25 you. And starting at line 2, it says:
711 "Specifically, based on the knowledge 2 that we now have from the Smith Review 3 in Ontario and the Goldsmith Review in 4 the United Kingdom, there is good 5 reason to believe that any 6 retrospective review of infant head 7 injury cases from the 1990s would like 8 -- would identify problematic cases." 9 Would you all agree that's a fair 10 statement? 11 DR. ALBERT LAUWERS: Yes. 12 DR. WILLIAM LUCAS: Yes. 13 MS. ALISON CRAIG: Okay. And it's a safe 14 assumption, is it, that there were pathologists other 15 than Dr. Smith in the '80s and '90s specifically, that 16 were making diagnoses of Shaken Baby Syndrome? It was 17 not just exclusive to Dr. Smith? 18 DR. ALBERT LAUWERS: Yes. 19 DR. WILLIAM LUCAS: That's correct.. 20 MS. ALISON CRAIG: Okay. And given the 21 state of knowledge in the '80s and '90s surrounding 22 infant head injury and Shaken Baby Syndrome, certainly 23 the coroners with carriage of these investigations would 24 not have been either likely to pick up any problems. 25 They would have been quite accepting of
721 findings of Shaken Baby Syndrome? 2 DR. ALBERT LAUWERS: Yes. 3 DR. WILLIAM LUCAS: Correct. 4 MS. ALISON CRAIG: I'm moving to 5 paragraph 29: 6 "The Smith Review did not include an 7 analysis of the coroner's role in Dr. 8 Smith's cases. An autopsy is one (1) 9 component of the death investigation. 10 In the Coroner System, the pathologist 11 performs the autopsy, but the coroner 12 is responsible for the entire 13 investigation and its conclusions, 14 cause and manner of death." 15 You'd all agree that's a fair statement? 16 DR. ALBERT LAUWERS: Yes. 17 DR. WILLIAM LUCAS: Yes. 18 DR. JAMES EDWARDS: Yes. 19 MS. ALISON CRAIG: And about two-thirds 20 (2/3s) of the way through the paragraph: 21 "A balanced view of Dr. Smith's 22 deficiencies should include the context 23 of the entire death investigation. 24 Similarly, pediatricians or child abuse 25 physicians often gave decisive opinions
731 on Dr. Smith's cases, no doubt 2 influencing the outcome of the death 3 investigation. However, the quality of 4 the pediatricians or child abuse 5 physicians was not assessed in the 6 Smith review." 7 And I have a few questions arising out of 8 that. First, Dr. Pollanen makes reference to child abuse 9 experts providing decisive opinions. You're all 10 familiar, I imagine, with the SCAN Team -- 11 DR. ALBERT LAUWERS: Yes. 12 DR. WILLIAM LUCAS: Yes. 13 MS. ALISON CRAIG: -- at the Hospital for 14 Sick Children? And you've no doubt encountered their 15 involvement in many of your cases, providing reports or 16 opinions in some manner? 17 DR. WILLIAM LUCAS: Aware of their 18 involvement, yes, not necessarily that we would receive 19 their reports. 20 MS. ALISON CRAIG: Okay. Dr. Lauwers, 21 perhaps I'll ask you. And I think we've already 22 established, and all three (3) of you testified 23 yesterday, as I mentioned, that in the vast majority of 24 cases, a coroner will defer to a pathologist's cause of 25 death, finding of cause of death?
741 DR. ALBERT LAUWERS: Yes. 2 MS. ALISON CRAIG: And would it be fair 3 to say that a coroner is even less likely to challenge 4 that pathologist's finding if they're also presented with 5 -- to use Dr. Pollanen's language -- a decisive opinion 6 from a child abuse expert? 7 DR. ALBERT LAUWERS: That's fair to say, 8 mm-hm. 9 MS. ALISON CRAIG: In the eyes of a 10 coroner, I think it's fair to say, that that report would 11 lend credence to a pathologist's finding? 12 DR. ALBERT LAUWERS: That I agree. 13 MS. ALISON CRAIG: All right. And then 14 in combination with an instruction from the Chief 15 Coroner's Office to "think dirty", as I brought up 16 earlier, faced with a pathologist's report and a SCAN 17 Team report, the likelihood, I would suggest, of a 18 coroner making a cause of death finding different from 19 that of a pathologist is extremely small. 20 Is that fair? 21 DR. ALBERT LAUWERS: Well, I -- I -- 22 you're linking the "think dirty" notion with something 23 that is a little different than that. So I'm not sure 24 that I'm prepared to say that. 25 MS. ALISON CRAIG: Okay. Paragraph 51,
751 page 10. Thank you. 2 And at the start of the paragraph it 3 begins: 4 "In the wake of two (2) wrongful 5 conviction cases, Sally Clark and 6 Angela Canning, Lord Goldsmith, UK 7 Attorney General, undertook a review of 8 two hundred and ninety-seven (297) 9 infant death cases, which raised 10 concerns about the convictions. This 11 review found twenty-eight (28) cases 12 which -- which raised concerns about 13 the convictions. In addition, at the - 14 - around the same time the Court of 15 Appeal quashed two (2) convictions, 16 reduced one (1) case of murder to 17 manslaughter, and upheld one (1) 18 conviction." 19 And over to the next page at paragraph 52, 20 Dr. Pollanen concludes: 21 "Thus, in 2006 cases of infant head 22 injury are viewed by many pathologists 23 somewhat differently than in the recent 24 past." 25 Are you all aware of the Goldsmith review
761 from -- 2 DR. WILLIAM LUCAS: Yes. 3 DR. ALBERT LAUWERS: Yes. 4 MS. ALISON CRAIG: -- the United Kingdom? 5 And you would all agree, again, on the 6 same theme as I brought up earlier, that it's fair to 7 suggest a coroner was unlikely, particularly in the '80s 8 and '90s, to have challenged, and now I'm talking 9 specifically about a finding of the Shaken Baby Syndrome 10 or infant head injury? 11 DR. ALBERT LAUWERS: Yes. 12 DR. WILLIAM LUCAS: Right. 13 DR. JAMES EDWARDS: That's correct. 14 MS. ALISON CRAIG: It's a determination, 15 I think it's fair to say, that's based completely on 16 pathology, unlike some investigations, when you have a 17 case of an infant head injury, Shaken Baby Syndrome, 18 you're confronted with the pathologist's report and 19 there's really no circumstantial evidence elsewhere in 20 the investigation to change that opinion. 21 DR. WILLIAM LUCAS: Correct. 22 DR. JAMES EDWARDS: That's correct. 23 MS. ALISON CRAIG: Okay. 24 DR. ALBERT LAUWERS: I'm going to -- I 25 don't have that degree of comfort with that question and
771 saying yes to it, because I -- I do think that there are 2 circumstances surrounding a death in which a child can 3 present with a shaken-like syndrome, and it -- it can 4 result from some other affliction. So it really -- you 5 have to marry-up the clinical with the pathological, in 6 my view. 7 MS. ALISON CRAIG: Oh, absolutely, and 8 that's my point. My -- my question is, say, for example, 9 you're presented with the pathologist's opinion who says 10 this child died of Shaken Baby Syndrome, the only 11 evidence they rely on is perhaps the triad, the coroner 12 has no other information from the police or witnesses to 13 counter that, and that's really what they're left with in 14 order to make their final conclusion? 15 DR. ALBERT LAUWERS: I would agree with 16 that. 17 DR. WILLIAM LUCAS: Yeah. 18 MS. ALISON CRAIG: Okay. Finally, if I 19 could just turn to page -- oh, first I'll ask, actually, 20 are you aware of any case in which a pathologist 21 attributed the cause of death to Shaken Baby Syndrome, 22 for example, and the coroner said, No, I'm not 23 comfortable with that finding, and perhaps made a cause 24 of death as undetermined or elsewise? 25 DR. JAMES EDWARDS: I'm not aware of any
781 such cases. 2 MS. ALISON CRAIG: Okay. So finally, at 3 paragraph 73 of Dr. Pollanen's memo, page 14. Thank you. 4 "There's a reasonable basis to believe 5 that problems might exist with Dr. 6 Smith's cases prior to 1991. In 7 addition, a propo of the results the -- 8 of the Smith and Goldsmith reviews, 9 there is a reasonable basis to believe 10 that problems could exist with other 11 fatal head injury cases, including a 12 certified -- cases certified as Shaken 13 Baby Syndrome. A search of the 14 Coroners' Information System Database 15 indicates that the interval between 16 1986 and 2000 there were more than 17 fifty (50) cases of infant or child 18 head injuries that could have been 19 coded as homicide -- [or] that have 20 been [pardon me] coded as homicide." 21 Would you all agree with Dr. Pollanen's 22 view that there is a reasonable basis to believe problems 23 might exist in these other cases? 24 DR. ALBERT LAUWERS: Yes. 25 DR. WILLIAM LUCAS: Yes.
791 COMMISSIONER STEPHEN GOUDGE: What do you 2 -- when you agree, what do you take by the word 3 "problems"? What -- 4 DR. WILLIAM LUCAS: I -- I would 5 interpret that as with the vision of hindsight and our 6 current state of knowledge applying current day 7 approaches, standards, and expectations for how the 8 conclusion would be drawn in these cases to those cases 9 in -- in retrospect, that the conclusions would be 10 different -- or may be different. 11 DR. JAMES EDWARDS: And I guess we're -- 12 COMMISSIONER STEPHEN GOUDGE: Sorry, the 13 conclusions in the criminal justice process? 14 DR. WILLIAM LUCAS: Con -- conclusions of 15 the pathologist may be different, and as a consequence 16 the conclusions in the criminal justice system may in 17 fact be different. 18 DR. JAMES EDWARDS: And, I guess, while 19 we're not pathologists, we are aware that the -- the 20 science underlying Shaken Baby Syndrome has -- has 21 changed; that the -- the thinking about that has changed. 22 And, you know, it just follows logically 23 from that -- from that knowledge that there could have 24 been problems. 25 DR. WILLIAM LUCAS: Just supplement --
801 COMMISSIONER STEPHEN GOUDGE: Describe 2 how you would see the change, Dr. Edwards. 3 DR. JAMES EDWARDS: Well, I seem to -- I 4 mean I'm -- I'm not a pathologist -- 5 COMMISSIONER STEPHEN GOUDGE: I know, I 6 know. 7 DR. JAMES EDWARDS: -- but just -- just 8 sort of -- 9 COMMISSIONER STEPHEN GOUDGE: But you're 10 very knowledgeable and experienced medical doctor in this 11 area. 12 DR. JAMES EDWARDS: When I -- I began -- 13 began as a coroner, when a pathologist would give a -- 14 when we would hear about Shaken Baby Syndrome, it -- it 15 appeared to me that there was more certainty in the 16 conclusion. And recently there's more doubt. 17 There's more controversy in the 18 pathological community about what constitutes Shaken Baby 19 Syndrome, and what pathological findings would indicate 20 that there definitely was a Shaken Baby Syndrome present. 21 COMMISSIONER STEPHEN GOUDGE: The 22 accepted wisdom might have been back then the triad was 23 sufficient for virtually all pathologists -- 24 DR. JAMES EDWARDS: Mm-hm. 25 COMMISSIONER STEPHEN GOUDGE: -- to
811 conclude the cause of death? 2 DR. JAMES EDWARDS: That -- that was -- 3 that was my -- my impression. It's -- 4 COMMISSIONER STEPHEN GOUDGE: And now 5 some might and some might not? 6 DR. JAMES EDWARDS: That's exactly 7 correct. 8 COMMISSIONER STEPHEN GOUDGE: What does 9 the system do with that? 10 DR. JAMES EDWARDS: Well, it becomes -- 11 it becomes an ethical issue, I guess, really. You know, 12 when you have -- and it's -- it's a problem that's not 13 just going to exist in Ontario, it's going to exist 14 across -- across the world. 15 COMMISSIONER STEPHEN GOUDGE: Right. 16 DR. JAMES EDWARDS: But -- you know, how 17 -- how can you -- I mean, how can -- how can we as -- as 18 a province -- 19 COMMISSIONER STEPHEN GOUDGE: Yes. It is 20 probably unfair of me to ask you that -- 21 DR. JAMES EDWARDS: Well, just as a -- I 22 guess as a citi -- as a citizen -- I mean, how -- how can 23 we as a province deal -- deal with that. And it seems to 24 me that we would have to -- to look into it. Now, who 25 would be -- how we would go about examining these cases
821 would be -- would be another matter. 2 I don't think -- just beyond Shaken Baby 3 Syndrome -- Syndrome, head injuries in general -- and 4 again, I'm not a lawyer, I'm not a judge, but I'm aware 5 that these convictions rely on -- on more than just 6 coroner's investigations and -- and autopsy findings. 7 They -- multiple factors go into our 8 convictions. So I don't think a review could be -- the 9 lead agency for any review that would occur would be the 10 Coroner's Office. It would have to be some -- some 11 agency that can consider all of the -- all of the -- the 12 factors that are involved in these -- these convictions. 13 But I just -- I don't see how you can't 14 look at them. 15 COMMISSIONER STEPHEN GOUDGE: All right. 16 Dr. Lauwers...? 17 DR. ALBERT LAUWERS: Well, my own view, 18 Mr. Commissioner, is that a moral and ethical and just 19 society would take a look at these cases to ensure that 20 there isn't some family that's come to some significant 21 harm as a result of information which has changed over a 22 period of time. 23 My own view is that they need to be looked 24 at. I don't actually see our agency as the appropriate 25 agency to do it. I think we've -- we've been involved in
831 this, and, in fact, it's the reason we're sitting here 2 today. I think an external agency to the Office of the 3 Chief Coroner. 4 But our data systems can be used to draw 5 upon those cases so that they can be identified. And we 6 would be assistive in that process should it evolve in 7 the future. I've heard various language about it, 8 something to the nature of extra -- extra -- pardon me -- 9 what is the language I'm looking for. 10 I've lost it, but some agency that -- 11 extra-governmental agency to actually be setup to take a 12 look at these specific cases. And to be frank with you, 13 I mean, if it's happening in Ontario, it certainly has 14 happened in every province and territory in Canada, and 15 probably vast jurisdictions of the United States and the 16 rest of the world as well. 17 But I -- I just go back to this -- and 18 it's just my sensibility that, you know, there is a moral 19 and ethical issue that families have come to harm as a 20 result of this need to have this addressed. 21 COMMISSIONER STEPHEN GOUDGE: Let me pose 22 -- I mean, obviously this is an issue that I am going to 23 be hearing a lot more about both in terms of further 24 evidence, and then the round tables, and then submissions 25 from the parties. It is not easy.
841 Part of any process like the one the three 2 (3) of you might envisage would include the usage of some 3 forensic pathology resources? 4 DR. JAMES EDWARDS: It would -- it would 5 have to include that. 6 COMMISSIONER STEPHEN GOUDGE: They are in 7 such short supply now. What do you do? 8 DR. ALBERT LAUWERS: Well, here's a -- 9 here's a proposition -- 10 COMMISSIONER STEPHEN GOUDGE: In other 11 words, going forward they are going to be badly needed. 12 DR. ALBERT LAUWERS: Mm-hm. There are 13 individuals such as Dr. Butt who is partly retired and 14 available to do work on a consultative basis. I know and 15 I -- I understand the nature of your question, Mr. 16 Commissioner. Our organization needs to have the 17 opportunity to move forward from this inquiry and get on 18 with the business of death investigation. 19 And we cherish the notion of getting there 20 at some point in the future, but we also recognize the 21 importance of -- of this particular initiative and the 22 thoughts that are being put forward here today. 23 DR. JAMES EDWARDS: And you know for -- 24 for practical purposes, if these cases were -- were 25 screened, not every case would need to go to a -- a
851 forensic pathologist. For example, if there was -- if 2 there's an acquittal, or no charges were brought. 3 COMMISSIONER STEPHEN GOUDGE: Right. 4 DR. JAMES EDWARDS: If, you know, if -- 5 not necessarily Shaken Baby Syndrome, but if you had 6 other -- other really strong evidence that contributed -- 7 COMMISSIONER STEPHEN GOUDGE: Is there 8 additional evidence, for example? 9 DR. JAMES EDWARDS: Yeah. So -- so the 10 forensic pathologist wouldn't have to screen all of the 11 cases, they could screen a -- a select subset of the 12 cases. 13 COMMISSIONER STEPHEN GOUDGE: Okay. 14 DR. WILLIAM LUCAS: I guess my question, 15 Mr. Commissioner, to you is -- I don't envy the chal -- 16 the challenge that you have here in terms of suggesting a 17 recommendation. 18 COMMISSIONER STEPHEN GOUDGE: These 19 questions are asked with a sense of desperation -- 20 DR. WILLIAM LUCAS: Because my question 21 is: Where do we stop? You know, I think historically if 22 we looked at cases over the last fifty (50) where 23 forensic pathology or pathology has had a significant 24 component to the case that's been brought against an 25 individual.
861 For example, the case of Steven Truscott. 2 I mean, the -- the fundamental basis of that conviction, 3 as I understand it, was based on forensic pathology that 4 we all know was flawed. 5 It was the current thinking of the day, 6 but at the time it was -- it was controversial. It's 7 clearly been refuted. And as we look at those types of 8 cases historically, I think all of us when we apply 9 today's standards in terms of how the coroner was 10 involved, how the police were involved, there have been 11 tremendous advances in -- in how we deal with those 12 cases. 13 COMMISSIONER STEPHEN GOUDGE: Right. 14 DR. WILLIAM LUCAS: But that isn't to say 15 that -- that any one (1) of them couldn't be looked at 16 with some degree of injustice. 17 COMMISSIONER STEPHEN GOUDGE: Yes. The 18 issue that -- I think Ms. Craig is focussing on, it's 19 quite proper, and it's a troubling issue for all the 20 reasons we've discussed, has to do with this evolution in 21 the centre of gravity of Shaken Baby Syndrome. 22 DR. WILLIAM LUCAS: Yeah. 23 COMMISSIONER STEPHEN GOUDGE: You know, 24 and that's something I'll have to grapple with, but I'm 25 grateful for your assistance.
871 Ms. Craig...? 2 3 CONTINUED BY MS. ALISON CRAIG: 4 MS. ALISON CRAIG: Thank you, Mr. 5 Commissioner, you kindly answered my question without me 6 having to ask it, so those are all my questions, Mr. 7 Commissioner. 8 DR. WILLIAM LUCAS: Thanks. 9 DR. ALBERT LAUWERS: Thank you. 10 MS. ALISON CRAIG: Thank you. 11 COMMISSIONER STEPHEN GOUDGE: Thank you. 12 Okay. 13 Mr. Bernstein...? 14 MR. DANIEL BERNSTEIN: Good morning, 15 doctors. 16 DR. ALBERT LAUWERS: Good morning. 17 DR. WILLIAM LUCAS: Good morning. 18 MR. DANIEL BERNSTEIN: Good morning, Mr. 19 Commissioner. 20 COMMISSIONER STEPHEN GOUDGE: Morning. 21 22 CROSS-EXAMINATION BY MR. DANIEL BERNSTEIN: 23 MR. DANIEL BERNSTEIN: My name is Daniel 24 Bernstein and I act for a number of families who have 25 been affected by some of Dr. Smith's findings. And I
881 want to go back to Sharon's case, and Dr. Lauwers, I'd 2 like to start with you. 3 You testified yesterday that you followed- 4 up with the Investigating Coroner in that case after you 5 heard some of the testimony in this -- 6 DR. ALBERT LAUWERS: Yes, Mr. Bernstein. 7 MR. DANIEL BERNSTEIN: -- Inquiry? And 8 you said that you asked the coroner two (2) questions. 9 First question: 10 "Did you examine the body?" 11 And his answer was: 12 "No, he was lead to the doorway of the 13 basement and didn't go further." 14 And that this was due to a concern about 15 contaminating the scene in a criminally suspicious case. 16 Is that right? 17 DR. ALBERT LAUWERS: That's correct. 18 MR. DANIEL BERNSTEIN: Okay. And the 19 second question you asked was: When did he learn about 20 the dog? And his answer was: 21 "Sometime after the warrant for the 22 post-mortem exam was issued." 23 But there was no greater clarity than 24 that. 25 DR. ALBERT LAUWERS: That's correct.
891 MR. DANIEL BERNSTEIN: Okay. And I have 2 some follow-up questions for you arising from both of 3 those answers. 4 And lets start with the examination of the 5 body first. In -- in taking a step back, I understood 6 the panels evidence from yesterday to be that the 7 Investigating Coroner by virtue of his or her medical 8 training, has a potentially very significant role to play 9 in the death investigation. 10 Is that fair? 11 DR. ALBERT LAUWERS: That's fair. 12 MR. DANIEL BERNSTEIN: Okay. And, I 13 think, Dr. Edwards, that you said that physicians are 14 able to pick up on some issues more quickly than say a 15 non-physician might in that role? 16 DR. JAMES EDWARDS: Definitely. 17 MR. DANIEL BERNSTEIN: And this morning 18 in the context of coroner's participating in rounds, Dr. 19 Lauwers, you -- you said something to the effect of 20 they're able to help put the entire picture together? 21 DR. ALBERT LAUWERS: Yes. 22 MR. DANIEL BERNSTEIN: And, Dr. Edwards, 23 you mentioned that they were able to bring to bear their 24 clinical knowledge? 25 DR. JAMES EDWARDS: That's correct.
901 MR. DANIEL BERNSTEIN: And that really is 2 all the same theme, is it not? 3 DR. JAMES EDWARDS: That's correct, it 4 is, yeah. 5 MR. DANIEL BERNSTEIN: And, Dr. Edwards, 6 you gave yesterday the compelling example of a case where 7 a baby who died was found to have a high level of 8 morphine, and because of your medical training, you had 9 the wherewithal to initiate a line of inquiry that 10 ultimately led to the conclusion that the breast feeding 11 mother had been taking Tylenol 3s. 12 DR. JAMES EDWARDS: Yeah, the only -- 13 that -- that wasn't just me, that was -- a whole team of 14 people were involved in that, but I was -- I was a part 15 of that process, that's right. 16 MR. DANIEL BERNSTEIN: And it was the 17 medical knowledge that was helpful for bringing forward 18 that line of inquiry. 19 Is that right? 20 DR. JAMES EDWARDS: That's correct. 21 MR. DANIEL BERNSTEIN: Okay. And would 22 you agree with me, Dr. Lauwers, that the Investigating 23 Coroner's medical training is of no less potential 24 importance in criminally suspicious cases? 25 DR. ALBERT LAUWERS: It is less
911 important. And the reason is because it's non- 2 contributory. It's taken out of the equation in 3 criminally suspicious cases and homicides. 4 MR. DANIEL BERNSTEIN: Well, let me bring 5 you back to this example that Dr. Edwards was involved 6 in. 7 If there were -- if there weren't medical 8 -- medically trained professionals involved in that case 9 and no one was able to connect the dots and pursue a line 10 of inquiry about the Tylenol 3s leading to the morphine 11 in the baby, it's quite possible, is it not, that that 12 case could have ended up being a criminally suspicious 13 case, right? 14 DR. ALBERT LAUWERS: I agree. 15 MR. DANIEL BERNSTEIN: Okay. And it's 16 quite possible in that case that the parents or some 17 other caregiver would have been viewed as a suspect? 18 DR. ALBERT LAUWERS: I agree with that. 19 MR. DANIEL BERNSTEIN: Okay. So it is 20 potentially very relevant still in criminally suspicious 21 cases to have a coroner with medical training who is 22 quarterbacking the investigation? 23 DR. ALBERT LAUWERS: If you're calling 24 that specific case a criminally suspicious case, the 25 criminality to it began with the discovery of the
921 toxicology morphine level. Other than that, at the time 2 of the post-mortem examination there was noth -- there 3 were no specific findings. And so at that point the 4 manner of death was largely undetermined. 5 I can't -- what I'm not prepared to do is 6 go down the path that suggests that this is similar or 7 like the Sharon case, because they're not. 8 MR. DANIEL BERNSTEIN: Well, I'm not 9 there yet, Dr. Lauwers. But if you just stay with my 10 questions, I'm just trying to put it together one piece 11 at a time. 12 One of the opportunities for the 13 investigating coroner to make use of his or her medical 14 training is from the examination of the scene. 15 Is that correct? 16 DR. ALBERT LAUWERS: That's correct. 17 MR. DANIEL BERNSTEIN: And if I can just 18 ask the Registrar to turn up PFP032495, that is the 19 Guidelines for Death Investigation from April of 1997. 20 And I'm not sure if you have that before you as a tab. 21 But if you look at the screen, and in 22 particular if you go to page 8 of that document, which I 23 believe is PFP032503. 24 25 (BRIEF PAUSE)
931 2 MR. DANIEL BERNSTEIN: If you like, 3 there's also a copy of it in the Institutional Report 4 from November 2007, if you have that handy. 5 DR. ALBERT LAUWERS: Thank you. 6 7 (BRIEF PAUSE) 8 9 MR. DANIEL BERNSTEIN: And page 8 of that 10 document, do you have that? 11 DR. ALBERT LAUWERS: I don't -- I have it 12 neither before me in either -- either way. 13 COMMISSIONER STEPHEN GOUDGE: I am still 14 looking for it. 15 16 CONTINUED BY MR. DANIEL BERNSTEIN: 17 MR. DANIEL BERNSTEIN: PFP149173, Mr. 18 Registrar. 19 20 (BRIEF PAUSE) 21 22 MR. DANIEL BERNSTEIN: PFP149431. 23 24 (BRIEF PAUSE) 25
941 MR. DANIEL BERNSTEIN: And are you able 2 to turn, Mr. Registrar, to page 173 of that document? 3 There you go. 4 Doctors, if you look up on the screen, 5 it's just the preamble that I'd like to take you to. 6 That preamble reads: 7 "That investigative coroners should 8 attend at the death scene wherever 9 possible and view the body because of 10 the value added by investigative 11 coroner's active participation in death 12 scene investigation. The investigative 13 coroner's presence at a death scene is 14 critical when the apparent means of 15 death is homicide or suicide but is 16 always extremely important for the 17 investigation of an apparent suicide or 18 a natural death." 19 So I appreciate that this document was 20 created in '07, and I believe it's a revision to an '03 21 document. 22 But was that generally the thinking in the 23 -- of -- in the 1990s? Dr. Lauwers...? 24 DR. ALBERT LAUWERS: It was generally the 25 thinking in the 1990s. I can tell you, though, for
951 specific types of deaths there probably wasn't the 2 necessity or the feeling that there was a necessity to go 3 to that scene. 4 In other words, a natural death didn't 5 necessarily, in the early years, invoke the presence of a 6 coroner. 7 MR. DANIEL BERNSTEIN: Mr. Registrar, if 8 you can turn to page 176 of this document. And you'll 9 see, Doctors, at paragraph 5 there's the reference to: 10 "In each case, depending on the 11 circumstances, the investati -- 12 investigating coroner's activity at the 13 scene may include..." 14 And there's a list, and the second one is 15 "examination of the body," correct? 16 DR. ALBERT LAUWERS: Yes. 17 MR. DANIEL BERNSTEIN: And that would 18 have been the case in the 1990s as well? 19 DR. ALBERT LAUWERS: It would have been. 20 MR. DANIEL BERNSTEIN: Okay. And we 21 heard yesterday, Doctors, that in criminally suspicious 22 cases there's a concern about the investigating coroner 23 examining the body, because there's a concern about 24 contaminating a police scene, correct? 25 DR. ALBERT LAUWERS: Yes.
961 MR. DANIEL BERNSTEIN: And, Dr. Lauwers, 2 I suggest to you that in those circumstances perhaps the 3 -- the next best thing a coroner can do is review 4 photographs of the body taken at the scene. 5 Do you agree with that? 6 DR. ALBERT LAUWERS: I think that would 7 be a benefit. 8 MR. DANIEL BERNSTEIN: And, as well, 9 photographs, at least external photographs, from the 10 post-mortem examination? 11 DR. ALBERT LAUWERS: That would be 12 helpful as well. 13 MR. DANIEL BERNSTEIN: Okay. And, Dr. 14 Lauwers, you conducted the coroner's review for Sharon's 15 case. Is that right? 16 DR. ALBERT LAUWERS: I did. 17 MR. DANIEL BERNSTEIN: And were you able 18 to determine from your review whether the investigating 19 coroner in that case had reviewed any photographs? 20 DR. ALBERT LAUWERS: I wasn't able to 21 discern that, no. 22 MR. DANIEL BERNSTEIN: I understand that 23 you, in fact, have recently had an opportunity to review 24 the photographs in Sharon's case. Is that right? 25 DR. ALBERT LAUWERS: It was a year ago.
971 MR. DANIEL BERNSTEIN: Okay. And did Dr. 2 McLellan ask you to review those? 3 DR. ALBERT LAUWERS: He did. 4 MR. DANIEL BERNSTEIN: And it was your 5 impression when you reviewed those photographs that the 6 wounds were clearly dog bites? 7 DR. ALBERT LAUWERS: It was my impression 8 that they were clearly dog bites. 9 MR. DANIEL BERNSTEIN: And Dr. McLellan 10 agreed with your view? 11 DR. ALBERT LAUWERS: He asked me to look 12 at the wounds. He asked me to look at the pictures, 13 pardon me, specifically because we both had a similar 14 background in emergency medicine, and we would have been 15 familiar with dog bites. 16 MR. DANIEL BERNSTEIN: And you've 17 anticipated my next question, which is: Because of your 18 background and because of Dr. McLellan's background in 19 emergency medicine, you were able to assess Sharon's 20 wounds and determine that they were, in fact, dog bites; 21 correct? 22 DR. ALBERT LAUWERS: Well, I -- I 23 assessed the photographs, which suggested to me they 24 looked like dog bites. 25 MR. DANIEL BERNSTEIN: Fair enough. And
981 am I right to assume that the typical pathologist working 2 for the Office of the Chief Coroner, whether now or back 3 in 1997, would likely not have had the same level of 4 experience in emergency medicine that you have? 5 DR. ALBERT LAUWERS: That's correct. 6 MR. DANIEL BERNSTEIN: And they probably 7 would not be in a position to have added the value that 8 you were able to add in that situation or would have been 9 able to add? 10 DR. ALBERT LAUWERS: From the clinical 11 situation, that's correct. 12 MR. DANIEL BERNSTEIN: And, Dr. Lauwers, 13 if you were the investigating coroner in Sharon's case 14 and you had reviewed those photographs, I take it you 15 would not have permitted the cause of death to be listed 16 as stab wounds. 17 Is that right? 18 DR. ALBERT LAUWERS: Can you ask that 19 question again, please? 20 MR. DANIEL BERNSTEIN: Sure. If you were 21 the investigating coroner in Sharon's case in '97, you 22 have would had an opportunity to review the photographs 23 which you had reviewed last year. 24 I take it you would not have permitted the 25 cause of death to be listed as stab wounds. Is that
991 correct? 2 DR. ALBERT LAUWERS: I -- I'm not 3 prepared to answer the question in that way. I think if 4 I had seen that photograph, those photographs, and come 5 to the conclusion that they were the result of dog bites, 6 I would have facilitated or done everything I could to 7 engender a meeting in which we could get together and 8 talk about the potential causes of death. 9 MR. DANIEL BERNSTEIN: But ultimately, as 10 the investigating coroner -- the cause of death 11 determination was your responsibility, correct? 12 DR. ALBERT LAUWERS: According to the 13 Coroner's Act, indeed it is. 14 MR. DANIEL BERNSTEIN: So this could have 15 been one of those cases where you would have had a direct 16 conflict with what the pathologist was telling you, 17 correct? 18 DR. ALBERT LAUWERS: That's potentially 19 the case. 20 MR. DANIEL BERNSTEIN: And so if in fact 21 you were involved in Sharon's case, or someone with your 22 depth of training in emergency medicine, if they were 23 involved as the investigating coroner in that case, or 24 perhaps as the regional supervising coroner, it's likely 25 that that case could have taken a very different course.
1001 And I don't want you to speculate in any 2 detail, but things probably would have been different to 3 a large extent. 4 Would you agree with that, Dr. Lauwers? 5 DR. ALBERT LAUWERS: It's difficult for 6 me to answer that question. It's -- it's very 7 speculative. 8 MR. DANIEL BERNSTEIN: So this brings us 9 back to the topic which the Commissioner raised a couple 10 of times yesterday, and that's the matching of coroners 11 to death investigations. 12 And I know that Dr. Lucas said yesterday 13 that he felt it was unfeasible to have coroners with 14 particular expertise -- expertise in pediatric deaths, 15 for example, handle all of these types of cases, really 16 because of two (2) factors: one (1), the relatively small 17 number of these kinds of cases, and two (2), the large 18 geographic scope in which these cases might occur. 19 Is -- is that a fair summary, Dr. Lucas? 20 DR. WILLIAM LUCAS: I believe that's what 21 I said, yes. 22 MR. DANIEL BERNSTEIN: But what about the 23 prospect of matching coroners to cases on a more general 24 level? 25 For example, as I've just taken you
1011 through with the Sharon's case, what about matching 2 coroners with emergency experience to deaths and not just 3 necessarily in pediatric cases but to deaths that involve 4 multiple traumatic injuries. 5 Would that be a helpful thing to do? 6 DR. ALBERT LAUWERS: It's an interesting 7 suggestion. And as it turns out many of the physicians 8 we're currently recruiting are physicians, as it turns 9 out, who have emergency room experience because of the 10 breadth of their knowledge and experience, however, 11 there's -- there are a few coroners. 12 Outside of the City of Toronto, there is 13 such a dearth of coroners and their availability that to 14 further specify certain types of coroners for certain 15 types of cases would make the system untenable to 16 administer. 17 MR. DANIEL BERNSTEIN: Is it poss -- 18 DR. JAMES EDWARDS: If I could just add. 19 I don't think it's practical to match coroners to 20 specific cases in the vast majority of deaths that we 21 investigate. 22 MR. DANIEL BERNSTEIN: How about in 23 larger urban centres or in cases where deaths have 24 occurred in proximity to large urban centres? 25 And I'll just add one (1) more component
1021 to that question, Doctors. I believe you testified 2 yesterday that it makes sense to have the -- the coroner, 3 perhaps, in the same location generally as the 4 pathologist who is doing the case. So if some of these 5 suspicious cases are being taken to Regional Centres that 6 have expertise might there not be a larger availability 7 of doctors with emergency -- or coroners with emergency 8 medicine training in those -- in those regions? 9 MR. JAMES EDWARDS: I think the most 10 likely way that coroners would be able to interact around 11 examination of the body and those scenes would be the 12 Regional Coroner at -- when the body is examined at 13 morning rounds. 14 These cases -- we don't want our coroners 15 examining criminally suspicious cases in any kind of 16 depth at the scene because it has the potentially to -- 17 the potential of -- of introducing contamination. 18 MR. DANIEL BERNSTEIN: Thank you, Dr. 19 Edwards. 20 I want to turn to the second component to 21 what you asked the investigating coroner about in 22 Sharon's case, Dr. Lauwers, and that's the question of 23 when he learned about the dog. And I think that some 24 issues are raised from this that I want to explore with 25 you.
1031 Again, you said that you were told that he 2 had learned about the dog some point after he issued the 3 warrant but you don't know when. Correct? 4 DR. ALBERT LAUWERS: That's correct. 5 MR. DANIEL BERNSTEIN: And Mr. Centa took 6 you through a number of documents yesterday that I don't 7 intend to pull up now. He took you to the Coroner's 8 Investigation Statement for Sharon's case, and just to 9 refresh your memory that was dated March 17th, 1999. 10 DR. ALBERT LAUWERS: Yes. 11 MR. DANIEL BERNSTEIN: And he also took 12 you to the Sharon overview report and he took you to 13 paragraph 109 of that report and he -- he showed you that 14 the Regional Supervising Coroner in that case, in fact, 15 knew of the presence of the dog well before the 16 Investigation Statement was completed; I believe it was 17 in December of '97. 18 Do you recall that? 19 DR. ALBERT LAUWERS: I do recall that. 20 MR. DANIEL BERNSTEIN: And you also 21 recall that Dr. Wood prepared a consulting report 22 regarding whether, in his view, the injuries were dog 23 bites? 24 DR. ALBERT LAUWERS: I'm aware of that 25 report.
1041 MR. DANIEL BERNSTEIN: And just to 2 refresh your memory -- I don't intend to take you to it - 3 - that report is dated February 22nd, 1998, and that 4 report then is also well before the Coroner's 5 Investigation Statement was authored, correct? 6 DR. ALBERT LAUWERS: Yes. 7 MR. DANIEL BERNSTEIN: Assuming what I'm 8 telling you about the dates is correct. 9 DR. ALBERT LAUWERS: Yes. 10 MR. DANIEL BERNSTEIN: And there's no 11 mention in the Coroner's Investigation Statement that a 12 dog may have been involved. And as you testified 13 yesterday, that should have been in the report ideally, 14 right? 15 DR. ALBERT LAUWERS: It should have been 16 in the report. 17 MR. DANIEL BERNSTEIN: And if the coroner 18 was aware of it, it was his responsibility to put it in 19 the report, correct? 20 DR. ALBERT LAUWERS: Yes. 21 MR. DANIEL BERNSTEIN: And you also said 22 yesterday that the Regional Coroner should have made sure 23 that the investigating coroner was aware of the issue of 24 the dog, correct? 25 DR. ALBERT LAUWERS: Correct.
1051 MR. DANIEL BERNSTEIN: And based on the 2 evidence I heard from all three (3) of you yesterday, I 3 surmise that there are at least two (2) reasons for this 4 and I want to put them to you and you can tell me whether 5 I'm correct or not. 6 One (1) is that it's the coroner's 7 responsibility to make sure that the pathologist is aware 8 of all information which may assist him in the analysis. 9 Isn't that right? 10 DR. ALBERT LAUWERS: Yes. 11 MR. DANIEL BERNSTEIN: And this would 12 have included the potential involvement of a dog, 13 correct? 14 DR. ALBERT LAUWERS: Yes. 15 MR. DANIEL BERNSTEIN: Okay. And am I 16 right that a second reason why the supervising coroner 17 should have made the coroner aware of this was so that 18 the coroner himself could be in a better situation or 19 better equipped to arrive at a cause and manner of death 20 when he was required to do so. 21 Is that fair? 22 DR. ALBERT LAUWERS: That's fair. 23 MR. DANIEL BERNSTEIN: Okay. And so for 24 example in Sharon's case, if the coroner knew -- assuming 25 he didn't know -- if the coroner did know that there was
1061 an issue of a dog being involved that might have 2 triggered a more in-depth review on his part of the scene 3 photographs, for example? 4 DR. ALBERT LAUWERS: So Mr. Bernstein, 5 one (1) of the issues that we've gone beyond here is the 6 fact that for all parties right from the inception of the 7 death of Sharon, it was a homicide. And that really 8 takes the coroner largely out of the picture because the 9 jur -- the -- the agency that has the jurisdiction over 10 the death investigation is the police service. 11 MR. DANIEL BERNSTEIN: Well, it's still 12 ultimately the coroner's responsibility to conclude the 13 manner and cause of death, correct? 14 DR. ALBERT LAUWERS: That's correct. 15 MR. DANIEL BERNSTEIN: And as you've 16 testified or -- or your colleagues have testified this 17 morning, there might be different standards that apply to 18 how that's filled out versus in -- in the context of a 19 criminal investigation, correct? 20 DR. ALBERT LAUWERS: Yes. 21 MR. DANIEL BERNSTEIN: Okay. So going 22 back to Dr. Wood's consulting report regarding Sharon's 23 injuries, Dr. Lauwers, you testified yesterday that, in 24 your experience, this report might not necessarily be 25 provided to the investigating coroner, but would for sure
1071 have been provided or should have been provided to the 2 Regional Coroner. 3 Do you recall that? 4 DR. ALBERT LAUWERS: I do. 5 MR. DANIEL BERNSTEIN: But isn't it the 6 case, Dr. Lauwers, that under the Coroners Act, the 7 investigating coroner should have received a copy of this 8 report directly from Dr. Wood? 9 And -- and I can turn up the section. 10 It's Section 28(2) of the Coroners Act, and Mr. Centa has 11 advised me that it's in the Coroner's Institutional 12 Report. 13 It's the first appendix. And, Mr. 14 Registrar, it's PFP149431. Oh, I think we're still 15 there. Page 85. And you see at the bottom of the page 16 there, Dr. Lauwers, 28(2). And if you read the second 17 part of that clause, it says: 18 "That the person who performs any other 19 examination or analysis shall forthwith 20 report his or her findings in writing 21 only to the coroner who issued the 22 warrant, the person who performed the 23 post-mortem examination, the Crown 24 attorney, et cetera." 25 Do you see that?
1081 DR. ALBERT LAUWERS: I'm just reviewing 2 it, Mr. Bernstein. 3 MR. DANIEL BERNSTEIN: Sure. 4 5 (BRIEF PAUSE) 6 7 DR. ALBERT LAUWERS: Yes, I see that. 8 Yeah. 9 MR. DANIEL BERNSTEIN: So in fact, it was 10 the responsibility of Dr. Wood to forward that report 11 directly to the investigating coroner, correct? 12 DR. ALBERT LAUWERS: Yes, according to 13 that section of the Act it is. In practicality, he may 14 well have sent it to the Regional Coroner and relied upon 15 him to forward it, but it does say -- I -- I agree with 16 you, the language suggested it should have gone directly 17 to him. 18 MR. DANIEL BERNSTEIN: As well as to the 19 Supervising Coroner. That's what the language says? 20 DR. ALBERT LAUWERS: It does. 21 MR. DANIEL BERNSTEIN: And that makes a 22 good deal of sense, doesn't it, because it helps prevent 23 miscues in communication, doesn't it? 24 DR. ALBERT LAUWERS: Yes. 25 MR. DANIEL BERNSTEIN: Okay. So if, in
1091 fact, the coroner in Sharon's case was not made aware of 2 the issue of the dog prior to the release of his 3 coroner's investigation statement, there were really two 4 (2) failures to communicate in this case. One (1), on 5 the part of the Regional Coroner, correct? 6 DR. ALBERT LAUWERS: Yes. 7 MR. DANIEL BERNSTEIN: And the other from 8 Dr. Wood, right? 9 DR. ALBERT LAUWERS: Yes. 10 MR. DANIEL BERNSTEIN: From a -- 11 COMMISSIONER STEPHEN GOUDGE: How are you 12 doing for time, Mr. Bernstein? 13 MR. DANIEL BERNSTEIN: I have about one 14 (1) small -- 15 COMMISSIONER STEPHEN GOUDGE: You would-- 16 MR. DANIEL BERNSTEIN: -- question left, 17 and then I'm finished this area. 18 COMMISSIONER STEPHEN GOUDGE: Okay. So 19 let's go until you finish then we will take our break. 20 21 CONTINUED BY MR. DANIEL BERNSTEIN: 22 MR. DANIEL BERNSTEIN: Okay. And my last 23 question is this: From a systemic prospective, Dr. 24 Lauwers or Dr. Edwards, Dr. Lucas, what mechanisms are 25 currently in place or should be in place to ensure that a
1101 coroner has forwarded a copy of all reports? 2 I mean, I assume that it's possible that 3 maybe people forget about supplementary reports, 4 consulting reports. Is there any process in place now? 5 DR. WILLIAM LUCAS: Yes. The current 6 process is that the conduit for that type of information 7 is now exclusively with the Regional Coroner's Office. 8 And that includes not only information pertaining to an 9 investigation that might be directed to the coroner, but 10 it also includes information that might be gleaned from 11 the coroner's investigation that other agencies, such as 12 the Fire Marshall's Office and so on, may require for 13 their purposes as well. 14 We're -- we're the conduit. We receive 15 the reports. It's -- it's the expectation of our office 16 to forward them to the appropriate person that should be 17 in receipt of it. 18 MR. DANIEL BERNSTEIN: Anything else to 19 add, Dr. Lauwers or Dr. Lucas (sic)? 20 DR. ALBERT LAUWERS: I completely agree. 21 DR. JAMES EDWARDS: Yeah. Forwarding 22 documents is to -- is to the Regional Coroner's Office. 23 MR. DANIEL BERNSTEIN: Take a break now? 24 COMMISSIONER STEPHEN GOUDGE: Sure. And 25 that -- you are finished?
1111 MR. DANIEL BERNSTEIN: I'm finished that 2 area. I have probably another ten (10) minutes left. 3 COMMISSIONER STEPHEN GOUDGE: Okay. 4 MR. DANIEL BERNSTEIN: I believe I have 5 that -- 6 COMMISSIONER STEPHEN GOUDGE: Eight (10) 7 minutes or so. 8 MR. DANIEL BERNSTEIN: Okay. 9 COMMISSIONER STEPHEN GOUDGE: Ten (10) 10 minutes. 11 MR. DANIEL BERNSTEIN: I'll keep it to 12 eight (8). Thank you. 13 COMMISSIONER STEPHEN GOUDGE: We'll come 14 back at 11:35. 15 16 --- Upon recessing at 11:18 a.m. 17 --- Upon resuming at 11:53 a.m. 18 19 THE REGISTRAR: All rise. Please be 20 seated. 21 COMMISSIONER STEPHEN GOUDGE: Mr. 22 Bernstein...? 23 24 CONTINUED BY MR. DANIEL BERNSTEIN: 25 MR. DANIEL BERNSTEIN: Mr. Commissioner,
1121 I have just one (1) brief area left to cover, and that is 2 the issue of disclosure by the Office of the Chief 3 Coroner to the families of the deceased, and, Dr. Lucas, 4 I'd like to direct my questions to you. 5 You testified yesterday, and I'm 6 summarizing, so let me know if I am correct, that the 7 coroner is concerned about not hindering an ongoing 8 police investigation, is that right? 9 DR. WILLIAM LUCAS: I think that's fair. 10 MR. DANIEL BERNSTEIN: And on the flip 11 side, you also testified that the Office of the Chief 12 Coroner is not an agent of the police, and it would not 13 be appropriate for OCCO to take steps to actively further 14 a police investigation either, is that fair? 15 DR. WILLIAM LUCAS: I think that's fair 16 with the proviso that there are many circumstances where, 17 if there's an issue of interpretation of the science as 18 it pertains to forensic issues relating to the body, 19 interpretation of the results of toxicology, 20 interpretation of results pertaining to samples that 21 we've -- we've had removed and -- and tested, we will do 22 everything we can to have them understand that science so 23 that their -- what they do with it and how they react to 24 it in terms of furthering their investigation is 25 hopefully appropriate.
1131 MR. DANIEL BERNSTEIN: Thank you. You 2 also testified yesterday about -- it was either your or 3 the Office of the Chief Coroner's interpretation of 4 Section 18(2) of the Coroner's Act, and you should have 5 that on the screen in front of you. 6 DR. WILLIAM LUCAS: Yes. 7 MR. DANIEL BERNSTEIN: And, if I 8 understand your evidence correctly, your interpretation 9 was that while the family of the deceased is entitled to 10 the coroner's findings, which would include a post-mortem 11 report, that right only kicks in after a decision is made 12 that an inquest was unnecessary, is that fair? 13 DR. WILLIAM LUCAS: That's what the 14 section of the Act says, yes. 15 MR. DANIEL BERNSTEIN: Okay. And the 16 flip side to this interpretation is that where no 17 decision regarding an inquest has been made, the 18 coroner's entitled to refuse to disclose a post-mortem 19 report to a family, is that right? 20 DR. WILLIAM LUCAS: I don't know whether 21 we would be that strict in our interpretation of the flip 22 side of the Act. I think what -- what we would interpret 23 from that is that if a decision has not yet been made 24 that an inquest is unnecessary, we would have some degree 25 of discretion or flexibility in terms of when we release
1141 that report, and there may be mitigating factors that 2 would determine that it should be de -- delayed, rather 3 than expedited. 4 I can also tell you that in -- obviously, 5 when you look at our statistics -- the vast majority of 6 circumstances -- a decision is made that an inquest is 7 unnecessary, so in those circumstances, we're releasing 8 reports to families as quickly as they are available to 9 us. 10 MR. DANIEL BERNSTEIN: Okay, but -- but 11 coming back to the language of the section, it's -- if a 12 decision is made not to disclose a post-mortem report to 13 a family, I take it what you're relying on in this 14 provision would be the fact that a decision regarding an 15 inquest has not yet been made, is that fair? 16 DR. WILLIAM LUCAS: That's -- that's part 17 of the process, yes. 18 MR. DANIEL BERNSTEIN: But that would be 19 the mechanism in the legislation that you would be 20 relying upon in order to delay providing the report? 21 DR. WILLIAM LUCAS: Yes, because -- 22 MR. DANIEL BERNSTEIN: Okay. 23 DR. WILLIAM LUCAS: -- to sort of go 24 further with an answer to your question, there -- there 25 certainly is nothing in the -- in the Act that directs us
1151 not to disclose a report on the basis of -- of a criminal 2 investigation. 3 MR. DANIEL BERNSTEIN: And -- and in 4 fact, that's what happened in Athena's case, you -- 5 that's the case you were taken to yesterday -- 6 DR. WILLIAM LUCAS: Yes. 7 MR. DANIEL BERNSTEIN: -- where there was 8 re -- a request from the police not to disclose the 9 report because a wiretap was going to be put in place, 10 correct? 11 DR. WILLIAM LUCAS: Yes, that was the 12 information that I was given, but more specifically, my 13 interpretation was that the -- the police had concerns 14 for release because of the broader context of their 15 ongoing investigation. 16 MR. DANIEL BERNSTEIN: Okay. Now, how is 17 it that you arrived at your interpretation of Section 18 18(2)? To your knowledge, and without getting into any 19 specifics, was legal advice obtained by yourself or by 20 anyone else at the Office of the Chief Coroner about this 21 issue? 22 DR. WILLIAM LUCAS: Yes, we have had over 23 the years legal opinions on when it's appropriate for us 24 to release information. And I think the general 25 consensus of opinion within the Office to this day is
1161 that reports do not get released until that decision has 2 been made and in essence that the investigation has been 3 concluded and closed, because that's the point when -- 4 when we're prepared to do an analysis of the case and 5 close it and it -- and make a decision about an inquest 6 at that time that the reports will commonly be released. 7 MR. DANIEL BERNSTEIN: I don't want to 8 get in a debate with you -- 9 DR. WILLIAM LUCAS: Yeah. 10 MR. DANIEL BERNSTEIN: -- about the 11 meaning of this section -- 12 DR. WILLIAM LUCAS: Sure. 13 MR. DANIEL BERNSTEIN: -- but I'll just 14 add that my interpretation of it is different, and I 15 think there's an alternate reading of this. And I just 16 want to get your views on that. 17 DR. WILLIAM LUCAS: Okay. 18 MR. DANIEL BERNSTEIN: The way I read 19 this section -- 20 COMMISSIONER STEPHEN GOUDGE: It sounds 21 like getting into a debate with him about the law, Mr. 22 Bernstein. I mean -- 23 MR. DANIEL BERNSTEIN: Well -- 24 COMMISSIONER STEPHEN GOUDGE: -- put the 25 question to him.
1171 MR. DANIEL BERNSTEIN: Okay. I'll put it 2 differently. 3 4 CONTINUED BY MR. DANIEL BERNSTEIN: 5 MR. DANIEL BERNSTEIN: Is -- is there a 6 concern -- do you think it's -- is there a concern that 7 members of the public who might review some of these 8 cases or know what's happening might be of the opinion 9 that the coroner's office is perhaps unfairly withholding 10 reports in order to assist in police investigations? 11 Is that a concern that has been raised, to 12 your knowledge? 13 DR. WILLIAM LUCAS: It hasn't been raised 14 to my knowledge. But I should be clear that the only 15 types of circumstances that I'm aware of, certainly from 16 my own personal experience, where we would withhold a 17 report such as this from the family would be in those few 18 and unique circumstances where there is an ongoing 19 police/criminal investigation and also very specifically 20 where a family member may be one of the suspects in the 21 investigation. 22 I can think of examples, numerous 23 examples, where despite the fact that Section 18(2) says 24 that we do not release information to a family until a 25 decision about an inquest has been made, we will -- to
1181 facilitate settling of -- of estates, settling of 2 insurance claims -- release that type of documentation 3 very early in our process. 4 And we have examples of cases where the 5 suspect may be somebody who is totally unrelated to the 6 family, and for exactly those same reasons, the document 7 will be released to them for those types of purposes. 8 But again, with the understanding that it's acceptable to 9 the Crown Attorney's Office that we do that. 10 MR. DANIEL BERNSTEIN: Thank you, Dr. 11 Lucas. Doctors, those are my questions. 12 DR. WILLIAM LUCAS: Thank you. 13 COMMISSIONER STEPHEN GOUDGE: Thanks, Mr. 14 Bernstein. 15 Mr. Simpson...? Or Ms. Davies...? 16 Yes, that is right. It's you. Sorry, Ms. 17 Davies, it's you. 18 MS. BREESE DAVIES: No, that's fine. We 19 actually asked to switch so -- 20 COMMISSIONER STEPHEN GOUDGE: Yeah. 21 MS. BREESE DAVIES: -- you might have 22 seen an earlier draft when -- 23 COMMISSIONER STEPHEN GOUDGE: Yeah. No, 24 I was just -- okay, away you go. 25
1191 CROSS-EXAMINATION BY MS. BREESE DAVIES: 2 MS. BREESE DAVIES: Good morning. I'm 3 counsel for the Criminal Lawyers' Association. My name 4 is Breese Davies. And I'm going to try and focus my 5 questions on those small number of cases which are 6 criminally suspicious or homicides, so that's my 7 interest. 8 I'm going to start general and then get 9 into some specifics. And I invite any of you to answer 10 the questions if you have views on it. 11 I take it from all of your testimony 12 yesterday that you would all support a recommendation 13 that coroners keep written records of information that 14 they provide to the pathologist during their course of 15 their investigation. 16 Is that correct? 17 DR. WILLIAM LUCAS: Yes, that's correct. 18 MS. BREESE DAVIES: And you would agree 19 with me that that's not only a matter of a good way to do 20 business, but also it allows for independent review of 21 the files after the fact, correct? 22 DR. ALBERT LAUWERS: That's correct. 23 MS. BREESE DAVIES: And certainly your 24 review in 2007, Drs. Lucas and Edwards, would have been 25 easier or more thorough had there been a written record
1201 of verbal communications between the coroners and the 2 pathologists in those files. 3 Is that correct? 4 DR. WILLIAM LUCAS: Yes. 5 DR. ALBERT LAUWERS: Yeah. 6 MS. BREESE DAVIES: Would you also 7 support a recommendation that coroners keep a written 8 record of information they receive from the police during 9 the course of their investigations? 10 DR. ALBERT LAUWERS: I think generally 11 speaking, all of those types of communicative principles 12 are at stake here, and, yeah, if they can be more 13 memorialized, that's a better way to go. 14 MS. BREESE DAVIES: Okay. So in fact a 15 recommendation that all information received from all 16 sources and all information provided to all sources be 17 kept in a written record, you would support that 18 recommendation? 19 DR. ALBERT LAUWERS: I would support 20 that. I -- I would like to point out to you though that 21 for physicians, probably 10 percent of the total 22 interaction that they have with people actually appear on 23 file. So you can expect -- ask for everything, and you 24 can get your 10 percent. 25 MS. BREESE DAVIES: Well --
1211 DR. JAMES EDWARDS: I guess it might be 2 more -- more -- sorry. It might be more practical -- 3 "all the information" is a pretty broad statement. Maybe 4 "a summary of relevant information" might be a better way 5 to put it. 6 MS. BREESE DAVIES: Okay. 7 DR. ALBERT LAUWERS: I'd agree with that. 8 DR. JOHN EDWARDS: Yeah. 9 MS. BREESE DAVIES: And that's sort of a 10 workload issue, about keeping track of what you consider 11 to be relevant. Is that -- 12 DR. ALBERT LAUWERS: Exactly. 13 MS. BREESE DAVIES: Okay. And am I 14 correct that as a matter of practice the mechanism for 15 disclosure of materials to Crown Attorneys from your 16 office -- and again, I'm only interested in the homicide 17 and criminally suspicious cases -- goes through the 18 regional supervising coroner? 19 DR. WILLIAM LUCAS: Correct. 20 DR. ALBERT LAUWERS: That's correct. 21 MS. BREESE DAVIES: In all cases, as a 22 matter of practice, that's how it happens? 23 DR. ALBERT LAUWERS: Yes. 24 MS. BREESE DAVIES: Is that also a matter 25 of policy within your office, that that's how it happens?
1221 DR. ALBERT LAUWERS: Yes, I believe it 2 is. 3 MS. BREESE DAVIES: So despite the 4 broader language of the Coroner's Act, which might allow 5 a pathologist to communicate directly with the Crown 6 Attorney, as a matter of policy it should all come 7 through a regional supervising coroner? 8 DR. JAMES EDWARDS: There's a distinction 9 between verbal communication and written communication. 10 Autopsy reports go out through the Regional Coroner's 11 Office. There's nothing to say that pathologists can't 12 communicate verbally with -- with Crowns. 13 MS. BREESE DAVIES: Sorry, my question 14 may not have been clear enough. I was focussed on 15 disclosure of written materials from your office. 16 DR. JAMES EDWARDS: Yeah. 17 MS. BREESE DAVIES: As a matter of 18 policy, it goes through the regional supervising coroner? 19 DR. WILLIAM LUCAS: Correct. 20 MS. BREESE DAVIES: And you -- would you 21 all envision that process continuing as a matter of 22 policy and practice, despite the broader language of the 23 Coroner's Act going forward? 24 DR. JAMES EDWARDS: Yes. 25 MS. BREESE DAVIES: So I guess my
1231 question is: You all think that works -- 2 DR. WILLIAM LUCAS: Yes. 3 MS. BREESE DAVIES: -- in terms of 4 keeping track of what information is provided and who 5 it's provided to and when? 6 DR. JAMES EDWARDS: We found that 7 centralizing release of reports through the Regional 8 Coroner's Office allows us to do it more efficiently and 9 -- and more consistently. 10 MS. BREESE DAVIES: Okay. 11 DR. WILLIAM LUCAS: There's another 12 component to that that I think is important. And that is 13 although we've been talking at great length about quality 14 assurance of autopsy reports and who should be 15 responsible for those, I don't think any of us would want 16 to sort of get rid of our responsibility or -- or pass 17 our responsibility for having some oversight on that as 18 well, so that it may be in many of these cases that this 19 is our first opportunity to see that finalized report 20 after it's gone through the quality assurance checks by 21 the Chief Forensic Pathologist and so on. 22 So if we have any issues or concerns that 23 might arise that may have been overlooked by another 24 individual or whatever... 25 I've had experiences in the past where it
1241 has been quality assurance checked. The focus has been 2 maybe on sort of the bottom line, the conclusions and the 3 validity of that conclusion. But there may be 4 typographical errors and that sort of thing. 5 So it's an opportunity to make sure that 6 the document is -- is polished and correct before it goes 7 out. 8 MS. BREESE DAVIES: So one more look at 9 the document? 10 DR. WILLIAM LUCAS: Yes. 11 MS. BREESE DAVIES: Okay. Let me turn 12 then to the case conference that you talked about. Dr. 13 Lucas, I think you described the case conference 14 yesterday as a process where -- where you in fact pro -- 15 can provide and sometimes do provide guidance to the 16 police officers about how to conduct their investigations 17 moving forward after the case conference. 18 Is that fair? 19 DR. WILLIAM LUCAS: In a context, yes. I 20 mean, we're not in the business of telling them what to 21 do. We're there to try and facilitate to them what 22 avenues of -- of investigation may potentially be -- be 23 fruitful for them, because the science will be there to 24 support it, versus other avenues that -- that no matter 25 how they hope to come to a conclusion, the science will
1251 not be able to support it. 2 MS. BREESE DAVIES: Right. So on a 3 limited level in terms of forensic issues -- 4 DR. WILLIAM LUCAS: Yes. 5 MS. BREESE DAVIES: -- and sort of your 6 specific purview of death investigation, you do provide 7 guidance on how they might pursue their investigation? 8 DR. WILLIAM LUCAS: Yes. 9 MS. BREESE DAVIES: And they may accept 10 it or not -- 11 DR. WILLIAM LUCAS: Exactly. 12 MS. BREESE DAVIES: -- but you give the 13 advice? 14 DR. WILLIAM LUCAS: Mm-hm. 15 MS. BREESE DAVIES: Yes? 16 DR. WILLIAM LUCAS: With -- in 17 collaboration, usually, with the scientists, who are much 18 more knowledgeable in their own areas than I am, from the 19 Centre of Forensic Sciences. 20 MS. BREESE DAVIES: Sure. And when I say 21 "you" in respect of the case conference, I'm really 22 talking about the whole group who are -- 23 DR. WILLIAM LUCAS: Yes. 24 MS. BREESE DAVIES: -- who are present. 25 And it's my understanding from Dr.
1261 Pollanen's testimony earlier -- and Mr. Commissioner if 2 you're interested, it was in particular on November 15th 3 -- that notes are kept of the case conference 4 discussions. 5 Is that correct? 6 DR. WILLIAM LUCAS: To a limited degree, 7 yes. 8 MS. BREESE DAVIES: Okay. So Dr. 9 Pollanen described that notes are kept of who is present 10 at -- 11 DR. WILLIAM LUCAS: Correct. 12 MS. BREESE DAVIES: -- at the case 13 conference, what issues were discussed, and what the 14 outcome of the case conference is. 15 And my question is: Does that accord with 16 your experience, Dr. Lucas? 17 DR. WILLIAM LUCAS: Not entirely. I 18 think my understanding of -- of the consensus of opinion 19 with our group is that the -- the document will record 20 the participants in the meeting and then the decisions 21 that have arisen out of discussion at the meeting. 22 And that may include what items need to be 23 submitted for further analysis or who will be taking 24 action on a -- on a certain item. 25 DR. JAMES EDWARDS: I know the records
1271 that I keep are -- are just that, are the participants at 2 the meeting and the further action that's planned. 3 MS. BREESE DAVIES: Okay. And where are 4 those records kept, of those meetings? 5 DR. WILLIAM LUCAS: I dictate. My 6 practice is to dictate that in a summary document that 7 goes to the file in my office, because I have carriage of 8 that particular coroner's investigation, and ultimately 9 it will work its way to the head office file. And 10 invariably I copy, by email, every participant in the 11 meeting so that they have one for their file as well. 12 MS. BREESE DAVIES: Okay. So there is a 13 mechanism for circulating the notes of the meeting to 14 everybody involved, correct? 15 DR. WILLIAM LUCAS: Correct. 16 MS. BREESE DAVIES: And when you say that 17 they go into the file, does that mean they go into the 18 individual file of the particular death involved, or is 19 there a file about case conferences where they end up? 20 DR. WILLIAM LUCAS: Individual file for 21 the death involved. 22 MS. BREESE DAVIES: Okay. And are those 23 notes, however cryptic they are or however sort of 24 cursory they are, are they provided to the Crown as a 25 matter of practice as part of the disclosure material
1281 that go out in criminally suspicious cases or homicide 2 cases? 3 DR. WILLIAM LUCAS: I think I can 4 honestly say that in the past there was perhaps some 5 variance in that practice, but recently on discussing 6 that very issue, it's our -- been our consensus in the 7 advice of our legal counsel that they should form part of 8 that disclosure. 9 MS. BREESE DAVIES: And is there a policy 10 on that issue yet in place, or is it just a practice at 11 this point in time? 12 DR. WILLIAM LUCAS: I'm not aware that 13 there's a specific policy on that. But I should also 14 point out that as I've just indicated, and my colleagues 15 can perhaps speak to what their practices are, as I said, 16 the -- the homicide investigators or the identification 17 officers that are present at those meetings invariably 18 get a copy. 19 So that it is, in essence, in the 20 possession of the police and/or the Crown as well. 21 MS. BREESE DAVIES: Okay, fair enough. 22 Do either of, Dr. Lauwers, or Dr. Edwards, have anything 23 to add to that issue? 24 DR. JAMES EDWARDS: No. 25 DR. ALBERT LAUWERS: Nothing.
1291 MS. BREESE DAVIES: Okay. I'm then going 2 to turn to the Death Under Five Committee, and there's 3 going to be a theme to my questions. I understand that 4 the mandate is to determine the cause of death and the 5 manner of death in all deaths under the age of five (5), 6 is that correct? 7 DR. ALBERT LAUWERS: That's correct. 8 MS. BREESE DAVIES: And there's police 9 representation on the Committee, if I understood your 10 testimony yesterday -- 11 DR. ALBERT LAUWERS: There is. 12 MS. BREESE DAVIES: -- is that right? 13 And you attempt to achieve consensus, or you do achieve 14 consensus on the cause of death and manner of death in 15 each of those cases, is that right? 16 DR. ALBERT LAUWERS: That's right. 17 MS. BREESE DAVIES: Again, are notes kept 18 of those discussions? 19 DR. ALBERT LAUWERS: There is a set of 20 minutes that is kept of the meeting. 21 MS. BREESE DAVIES: And are the minutes 22 circulated amongst all the participants of the Committee? 23 DR. ALBERT LAUWERS: For review at the 24 next meeting. 25 MS. BREESE DAVIES: Okay. And again, are
1301 the minutes on a case-by-case basis or might they include 2 discussion about five (5) or ten (10) or fifteen (15) 3 cases at a time? 4 DR. ALBERT LAUWERS: On a -- we conduct 5 the meeting on a case-by-case basis. 6 MS. BREESE DAVIES: Okay. So there would 7 be separate minutes for each individual case or separate 8 notes for each individual case? 9 DR. ALBERT LAUWERS: There is, Ms. 10 Davies, but just to be clear, there are thirty (30) 11 cases, and we deal with them in two (2) hours. 12 MS. BREESE DAVIES: Fair enough. So 13 there -- 14 DR. ALBERT LAUWERS: They're very, very 15 short. 16 MS. BREESE DAVIES: Brief. 17 DR. ALBERT LAUWERS: Yes. 18 MS. BREESE DAVIES: Right. And they then 19 form a report that you sign that is then incorporated 20 into the Form 3 of the coroners, did I understand that 21 process right? 22 DR. ALBERT LAUWERS: That's correct. 23 MS. BREESE DAVIES: And again, are you 24 aware of whether or not either the notes from the meeting 25 or your report to the coroners form part of the package
1311 that goes to the Crown in terms of disclosure in 2 criminally suspicious and homicide cases? 3 DR. ALBERT LAUWERS: I can't answer that 4 question. 5 MS. BREESE DAVIES: And -- 6 DR. ALBERT LAUWERS: I'm not -- I'm not 7 entirely clear about that. 8 MS. BREESE DAVIES: Okay. And so I take 9 it from that there's no policy in place about whether or 10 not they ought to be disclosed or not at the present 11 time? 12 DR. ALBERT LAUWERS: If the policy 13 exists, I'm not aware of it. 14 MS. BREESE DAVIES: Okay. Then I have 15 two (2) other brief areas. I think I have five (5) 16 minutes left if my timing is correct? 17 COMMISSIONER STEPHEN GOUDGE: I think you 18 probably have ten (10) -- 19 MS. BREESE DAVIES: Oh. 20 COMMISSIONER STEPHEN GOUDGE: -- ten (10) 21 minutes left. 22 MS. BREESE DAVIES: Well, I might be 23 finished early then. 24 25 CONTINUED BY MS. BREESE DAVIES:
1321 MS. BREESE DAVIES: The Death Under Five 2 Investigation Questionnaire which you've been asked so 3 many questions about, I just, sort of, have a few follow- 4 up questions on it. 5 I take it it's designed to be filled out 6 at the beg -- very beginning of an investigation, is that 7 correct? 8 DR. ALBERT LAUWERS: It's designed to be 9 filled out at the scene basically, and around the scene. 10 MS. BREESE DAVIES: Okay. 11 DR. ALBERT LAUWERS: Be it the primary or 12 secondary scene. 13 MS. BREESE DAVIES: And so it's intended 14 -- and it's intended to go to the pathologist before the 15 post-mortem is conducted? 16 DR. ALBERT LAUWERS: That's correct. 17 MS. BREESE DAVIES: And so that would 18 generally be within twenty-four (24) hours after the 19 death. 20 Is that fair enough? 21 DR. ALBERT LAUWERS: Twenty-four (24) to 22 forty-eight (48) hours, yes. 23 MS. BREESE DAVIES: Okay. And that form, 24 if I understood it, was designed -- I think one (1) of 25 you described it as the "great equalizer" to ensure that
1331 coroners are asking the right questions and gathering the 2 right information to assist the pathologist, is that 3 correct? 4 DR. ALBERT LAUWERS: That's correct. 5 MS. BREESE DAVIES: And I take it in 6 designing the questionnaire, thought was given to what 7 information pathologists would need to conduct forensic 8 examinations or coroner's autopsies, is that fair? 9 DR. ALBERT LAUWERS: That's fair. 10 MS. BREESE DAVIES: And I know you've 11 described that it's -- it's sort of focussed on 12 particular types of deaths, but I'm going to again focus 13 on the criminally suspicious and homicide cases. 14 You've testified that they aren't expected 15 in those cases, correct? 16 DR. ALBERT LAUWERS: That's correct. 17 MS. BREESE DAVIES: Is that a matter of 18 practice or a matter of policy that -- 19 DR. ALBERT LAUWERS: It's a matter of 20 policy. 21 MS. BREESE DAVIES: Okay. 22 DR. ALBERT LAUWERS: The reason being 23 that if you look at the form itself, -- 24 MS. BREESE DAVIES: Right. 25 DR. ALBERT LAUWERS: -- many of the
1341 questions that are asked must be asked of specific people 2 who were at the scene at the time. In other words, the 3 parents or caregivers. And it can, on occasion, put the 4 coroner in the position where he's taking statements from 5 someone who is eventually charged with a homicide. 6 MS. BREESE DAVIES: Okay. So let me just 7 -- I want to try and understand when -- sort of what 8 triggers the coroner not filling out the form. Is it 9 strictly the presence of the police at the scene that 10 will trigger it? 11 DR. ALBERT LAUWERS: No, no. 12 MS. BREESE DAVIES: So how -- my concern 13 is the chicken and the egg problem because part of the 14 purpose of the investigation is to determine whether 15 something is criminally suspicious or homicide. 16 And if you're saying, well, you don't need 17 to fill it out in criminally suspicious and homicide 18 cases, aren't you putting the chicken before the egg? 19 DR. ALBERT LAUWERS: Well, there -- 20 clearly there are cases -- it's a good question. Clearly 21 there are cases going into them we know what we're 22 dealing with. There's a child that's been beaten, shot, 23 stabbed, or strangled. 24 MS. BREESE DAVIES: Sure. 25 DR. ALBERT LAUWERS: It's evident to
1351 everyone. 2 MS. BREESE DAVIES: Sure. 3 DR. ALBERT LAUWERS: Then there are those 4 cases that it doesn't make sense to complete the form. 5 Cases where a child incurs an injury in some remote area 6 and gets transferred for definitive care to a tertiary 7 care pediatric centre; children that die clearly by 8 accident in which the -- the majority of the form has no 9 merits whatsoever. 10 MS. BREESE DAVIES: Right. 11 DR. ALBERT LAUWERS: In those cases, it 12 doesn't make any sense to complete the form. The form 13 is, as I explained, designed so that in those cases where 14 you have a decedent, a child, and you have circumstances 15 which may have or may not have contributed to the death, 16 in aspects with regard to SIDS versus Sudden Unexpected 17 Death, that's when we use it. 18 And of course, what frequently happens and 19 coroners are required -- they're required to pick the 20 phone up, call the Regional Supervising Coroner in just 21 such a circumstance, and we will get a fulsome discussion 22 with the coroner about what they're viewing and what 23 their concerns are. And we can actually give them 24 direction about whether or not it would be appropriate to 25 complete the form.
1361 MS. BREESE DAVIES: Okay. And so in 2 those cases where it's not going to be clearly a homicide 3 -- and I understand those where, you know, if there's a 4 gunshot wound or something like that where you can sort 5 of make the determination upfront. 6 And it's not, sort of, one where it's an 7 accident in rema -- remote area, but the child is found 8 at home dead and might ultimately end up being criminally 9 suspicious or it might ultimately end up being a 10 homicide, the expectation would be that the form would be 11 completed? 12 DR. ALBERT LAUWERS: That's correct. 13 MS. BREESE DAVIES: Okay. And -- 14 DR. ALBERT LAUWERS: So -- just by way of 15 example. A child is found deceased at home, and there's 16 no -- no history to suggest a mechanism of the death. 17 You know, that type of a case we'd expect them to 18 complete the form. 19 It may be found, at the time of autopsy 20 that there are multiple areas of internal injury that 21 have lead to the death, but given the -- given the 22 circumstances, the coroner's at the scene and trying to - 23 - to assess the scene, they would use that form to assist 24 them. 25 MS. BREESE DAVIES: And -- and I think
1371 you might have just answered my question. I take it then 2 in cases where the coroner is of the view that some or 3 all of the questions or some or all of the information 4 that is contained in that form would be of assistance to 5 the pathologist, they're expected to gather it either 6 directly or through the police if they're in attendance 7 and provide it to the pathologist, is that right? 8 DR. ALBERT LAUWERS: That's right. I -- 9 a best-practice model though is for the coroner to do the 10 form. It's constructed like a medical history. 11 MS. BREESE DAVIES: Sure, but at some 12 point, they may need to ask the police officer for a 13 piece of information to complete the form, and that's 14 acceptable as well, correct? 15 DR. ALBERT LAUWERS: And it happens, yes. 16 MS. BREESE DAVIES: Okay. And so you 17 would agree that, in fact, that it's not a 18 predetermination of criminally suspicious or homicide, 19 but simply looking at the mechanism and then, sort of, 20 the circumstances to determine whether or not the form -- 21 the questions on the form are relevant in a particular 22 case, is that fair? 23 DR. ALBERT LAUWERS: I'm sorry, that was 24 a very long question -- 25 MS. BREESE DAVIES: Okay. I'm more
1381 concerned about your, sort of -- sort of, statement that 2 in criminally suspicious and homicide cases, we don't 3 expect them. And -- and I take it what you're saying is 4 that if that issue is clear upfront, you don't need them. 5 Otherwise, they should error on the 6 caution of filling them out and providing the information 7 to the pathologist? 8 DR. ALBERT LAUWERS: The more information 9 that goes to the pathologist, the better. 10 MS. BREESE DAVIES: Okay. 11 DR. ALBERT LAUWERS: If there's 12 indication on -- on the part of the coroner that it's 13 indicated then he should complete the form. 14 MS. BREESE DAVIES: Okay. Last area 15 which is the issue of delay. And, Dr. Lauwers, you were 16 asked questions about this, and you talked about, sort 17 of, a -- an -- a new dialogue that you're in with the 18 Centre of Forensic Science. And you -- and you gave some 19 answers, and I just want to try and flush them out. 20 You testified that there are efforts 21 underway between your office and the Centre of Forensic 22 Science to increase the turnaround time. And -- and in 23 response to one (1) of the questions, you indicated that 24 the turnaround time for simple tests, such as blood 25 alcohol level -- I think you said -- used the term
1391 "relatively good" or -- or something to that effect. 2 What -- what does that mean in terms of days or weeks or 3 months? 4 DR. ALBERT LAUWERS: I'm going from 5 memory, and I apologize from this, but I -- I did see 6 some data from the Centre of Forensic Science, and my 7 colleagues might be able to assist me, that suggested 8 that they were returning certain -- a certain percentage 9 of samples. I think it was 60 percent within ninety (90) 10 days, and as I mentioned, the commonest test that they 11 would perform for us would be a blood alcohol level. 12 MS. BREESE DAVIES: Okay, so -- so the -- 13 the shorter -- so relatively good in your sort of -- in - 14 - in your discussions at the moment, is ninety (90) days, 15 is that -- 16 DR. JAMES EDWARDS: My -- my 17 understanding is that the benchmark that the CFS wants us 18 to have reports returned to us within an average of 19 ninety (90) days -- 20 MS. BREESE DAVIES: And -- 21 DR. JAMES EDWARDS: -- back -- report 22 back -- testing that's relatively quick can be done -- 23 will be done in less than ninety (90) days, and then some 24 of the more complex testing will take longer than ninety 25 (90) days, but they're aiming for an average of ninety
1401 (90) days. 2 MS. BREESE DAVIES: So -- and is that a 3 benchmark that your office is satisfied with? You said 4 that's what the Centre of Forensic Science has suggested. 5 DR. JAMES EDWARDS: Certainly it was -- 6 that benchmark was reached after a lot of dialogue 7 between our office and the -- and the Centre. 8 MS. BREESE DAVIES: Okay, so that is a 9 joint benchmark at the moment that -- that you are trying 10 to hold them to and would accept as reasonable? 11 DR. ALBERT LAUWERS: Let's just say we're 12 exploring the benchmark and trying to improve turnaround 13 times. 14 MS. BREESE DAVIES: Sorry. Let me make 15 sure I understand. Trying to improve them beyond the -- 16 the ninety (90) days, as well? 17 DR. ALBERT LAUWERS: Yes. 18 MS. BREESE DAVIES: Okay. 19 DR. ALBERT LAUWERS: Yes. 20 DR. JAMES EDWARDS: I think it's very 21 clear -- 22 DR. ALBERT LAUWERS: Sorry, James. 23 DR. JAMES EDWARDS: No you -- if I could 24 just add, I think it's fair to say that we -- that we 25 have accepted that benchmark up until this time, not to
1411 say that we wouldn't want it to be improved in the 2 future, but... 3 MS. BREESE DAVIES: Okay. 4 DR. JAMES EDWARDS: And that -- that 5 wasn't just CFS that came up with that benchmark; we were 6 also involved with that process. 7 MS. BREESE DAVIES: Okay. And you also 8 indicated that in complex cases a turnaround time could 9 be substantial. And again, I -- I know on a moving- 10 forward basis, you're trying to improve that, but what 11 does that mean, what -- what's, sort of, the outside 12 limit of what you're seeing in terms of toxicology and -- 13 or CFS reports at the moment? 14 DR. ALBERT LAUWERS: I can't give you an 15 exact figure, I'm sorry. Dr. Lucas, do you have any 16 idea? 17 DR. WILLIAM LUCAS: I -- I think there 18 are cases, and there again, there are a number of factors 19 that come to play. It may be that because of the 20 complexity of the case, the actual request for a certain 21 type of analysis is delayed by ninety (90) days or more. 22 So we may get a preliminary -- or report 23 back from them that doesn't really satisfy our needs and 24 we have a case conference and review the circumstances 25 and say, Well, you know, there's another element here
1421 that -- that you haven't given us a report on, and it may 2 be that the methodology does not exist or they didn't 3 apply it in this particular case, so it's got to be 4 developed, and -- and sometimes the -- that will add 5 considerable delays to the process. 6 DR. ALBERT LAUWERS: I do understand, 7 though, that they triage criminally suspicious cases so 8 that they're done expeditiously. 9 MS. BREESE DAVIES: And -- and that's 10 your experience, that you are getting the homicide and 11 criminally suspicious results back faster than others? 12 DR. WILLIAM LUCAS: Not necessarily; we 13 just understand that they triage them better. 14 DR. JAMES EDWARDS: We have -- we have a 15 system, to be -- to be fair to CFS, where if at the -- at 16 the time of the autopsy, if it's felt that it would be 17 important for the -- for criminal proceedings. 18 So, for example, if people are going to be 19 held in -- in custody as a result of the -- of the 20 autopsy and to resolve that issue we need expedited 21 toxicology, they will do it on an expedited basis and 22 they'll do it within days for us in that kind of 23 circumstance, but we have to -- we -- we have to try -- 24 triage those -- those situations. 25 But, you know, and then when we ask them
1431 to do that, you know, it obviously delays their -- their 2 -- the other testings that they do, but they will do it - 3 - they -- it's -- it's a dot system and I -- I think red 4 dot is they'll do it within three (3) days and there's 5 another dot that they'll do it within two (2) weeks, and 6 then everything else is done on the -- in the standard 7 manner. 8 MS. BREESE DAVIES: Thank you. 9 DR. WILLIAM LUCAS: Another just 10 important element -- 11 MS. BREESE DAVIES: Yeah. 12 DR. WILLIAM LUCAS: -- to consider with 13 the workload that the Centre has. My understanding, and 14 I may be off a little bit, but approximately 40 percent 15 of the volume of the cases that they deal with come from 16 the Coroner's Office so that means a full 60 percent of 17 their workload is non-coroner material. 18 MS. BREESE DAVIES: Right. 19 DR. ALBERT LAUWERS: Just sorry -- 20 MS. BREESE DAVIES: So you're in the 21 queue with a lot of other people. 22 DR. WILLIAM LUCAS: Right. 23 DR. ALBERT LAUWERS: I'm just going to 24 state that my understanding with a recent meeting with 25 them, just to correct some information, is that they
1441 process about five thousand (5,000) cases a year and four 2 thousand (4,000) of them come from us. 3 DR. WILLIAM LUCAS: Oh, it's that high, 4 okay. I stand corrected. 5 MS. BREESE DAVIES: So you're at the 6 front of the queue where you should be, or you're, at 7 least, the loudest voice in -- in the line. Thank you. 8 Those are my questions. 9 COMMISSIONER STEPHEN GOUDGE: Thanks, Ms. 10 Davies. 11 Ms. Simpson...? 12 13 CROSS-EXAMINATION BY MS. VANORA SIMPSON: 14 MS. VANORA SIMPSON: Good morning, 15 doctors. DR. WILLIAM LUCAS: Good 16 morning. 17 MS. VANORA SIMPSON: My name is Vanora 18 Simpson and I am one (1) of the counsel that acts for the 19 Association Defence of the Wrongfully Convicted -- or 20 Wrongly Convicted. 21 My questions are going to focus on the 22 Form 3. In a number of the cases that we've examined, we 23 have seen a shifting mechanism of death in various Form 24 3s, even a shifting manner of death between those five 25 (5) basic categories, between preliminary, coroners'
1451 investigation statements, final Form 3s, final revised 2 Form 3s and then on occasion, a regional coroner coming 3 in and changing what the initial conclusions had been 4 from the local or investigating coroner. 5 Dr. Edwards, you referred earlier this 6 morning to the more usual case, where there's a different 7 between what you might get from the pathologist and the 8 autopsy report and what you decide ultimately when you 9 add in information. 10 I'm not talking about these cases -- 11 DR. JAMES EDWARDS: All right. 12 MS. VANORA SIMPSON: -- that sort of 13 external consistence or inconsistency. 14 DR. JAMES EDWARDS: Mm-hm. 15 MS. VANORA SIMPSON: What I'd like to 16 look at is this internal consistency between various 17 versions of these reports that come out. 18 Big lead up, but the question's here: In 19 no case that we have examined has a change found in 20 various versions of that Form 3 triggered any sort of 21 review or scrutiny. And it seemed to me that that's 22 something of a missed window of opportunity in these 23 cases. It could have, at least it appears to me, 24 arrested the problem as it was developing, caught it 25 fairly early on.
1461 The question is this: Is there any 2 problem with setting up some kind of structure that if 3 there are those changes between a preliminary, a final, a 4 revised final, or the regional report, that some kind of 5 review is triggered, that someone looks at it? 6 DR. JAMES EDWARDS: Now just to put that 7 in some kind of context, those changes usu -- always 8 follow a -- a review. I mean we would change the -- we 9 would change our findings based on additional information 10 that came -- came our way. 11 And if in the process of getting that 12 additional information we thought that another review 13 should take place, we would initiate that. I don't know 14 how that would be practical, how that -- how your 15 suggestion would -- would work in practice. 16 MS. VANORA SIMPSON: That was going to be 17 my question. If it makes sense, that if we have this 18 change that there be some review or some analysis, where 19 would it go? 20 And you can't think of anyplace that -- or 21 a forum where that discussion should happen? 22 DR. JAMES EDWARDS: No, I -- 23 DR. WILLIAM LUCAS: I wonder -- I wonder 24 if I could address your question this way, because it 25 might be helpful. What it highlights is that probably
1471 one of the most difficult questions that the coroner has 2 to grapple with and answer is the manner of death. 3 And clearly in probably the overwhelming 4 majority of cases, it's a slam dunk. I mean, if somebody 5 dies of a heart attack, clearly that's natural causes, 6 and there's no debate. 7 But we have a number of cases where there 8 are grey areas. And what -- what we've done to try and 9 address that, similar to the process that you've heard 10 addressed about how there's a categorization of pediatric 11 deaths that have come from NAME, the National Association 12 of Medical Examiners. 13 Well they've taken a similar sort of 14 consensus approach looking at this whole dilemma of how 15 to categorize deaths by manner. And they confront the 16 same dilemmas that -- that we do. 17 Let me give you an example. Somebody 18 plays Russian roulette, and they end up being the one 19 that pulls the trigger that -- that fires the bullet into 20 their head. Is that a suicide, or is that an accident? 21 NAME looked at these kind of situations 22 and found that if they went to different jurisdictions, 23 some would say, Well clearly in our view that's an 24 accident. And others would say, Clearly that's a 25 homicide.
1481 And then you'd have to look at the 2 consensus of opinion and try to come to a reasoned 3 approach that provides consistency not only across your 4 organization, but across different jurisdictions, so that 5 we're all generally trying to categorize the same things 6 the same way to -- so that comparators can be made and 7 that sort of thing. 8 So, as I say, it's always a challenge for 9 coroners to deal with this sort of situation. And -- and 10 part of our role as supervisors is hopefully to have a 11 more in-depth knowledge and understanding of how to apply 12 the principles that we've adopted to different 13 circumstances so that we're maintaining that consistency, 14 so that if someone presents with a particular set of 15 circumstances, a coroner may, based on their 16 reason/judgment conclude that the death is a suicide. 17 And we, as a regional coroner, review the 18 circumstances and say, Well, you know, we understand that 19 there is an element there that -- that leads you to that 20 conclusion. But there's also a reasoned argument that 21 suggests that this may be in fact an accident, that the 22 person didn't intend to take their life. 23 And on the basis of -- of the way we apply 24 these criteria, we will have a discussion with them but 25 ultimat --and ultimately, hopefully, try to convince them
1491 that their initial conclusion was inaccurate. 2 But ultimately, if they -- if they won't 3 concede to the logic that we bring to them, we may be in 4 a situation where we overrule them and say, Based on the 5 criteria that we apply, because there is a contest 6 between whether this is a suicide or an accident, we're 7 going to call it undetermined. 8 And we believe that at the end of the 9 process that's the best answer for the situation. It 10 doesn't necessarily mean that either of the others are 11 wrong, we just think that that's probably the preferred 12 route to go. 13 So when we're grappling with that dilemma 14 my question back to you is -- I'm not sure -- or in 15 response to your question, I'm not sure that there would 16 be a whole lot of value in a significant number of cases 17 to have some kind of a review of that process, because 18 all we would be doing is bringing other individuals in 19 and -- and putting their state of knowledge to the facts 20 of the case and coming up with yet another opinion that 21 they may be able to support with a reasonable and logical 22 argument. 23 It doesn't necessarily mean that -- that 24 the decision that was arrived at was right or wrong. 25 MS. VANORA SIMPSON: As I hear it from
1501 you, Dr. Edwards, one (1) reason for this shift may be 2 new information. 3 DR. JAMES EDWARDS: Mm-hm. 4 MS. VANORA SIMPSON: And Dr. Lucas, 5 you're introducing another reason for the shift which may 6 be same facts, different interpretations. 7 DR. WILLIAM LUCAS: Yes. 8 MS. VANORA SIMPSON: It may be that the 9 area that has caused more concern for -- from the 10 perspective of AIDWYC -- has been when new information 11 came in that led to a change, particularly from 12 "undetermined" to "homicide." And I guess those are the 13 cases that I was, sort of, thinking of as the core ones 14 for me in this area. 15 If it's a matter where you're debating how 16 certain things could be classified according to various 17 criteria, I see that issue. 18 When other information comes in that makes 19 an investigating coroner shift from "undetermined" or 20 "accidental" to "homicide", what happens at that 21 juncture? 22 Whoever wants to take it first. 23 DR. ALBERT LAUWERS: Well, there's a 24 problem because every preliminary report gives 25 "undetermined" as the manner of death so it may well be
1511 that an undetermined preliminary report becomes a 2 homicide at the final report. 3 It's a little bit prohibitive when you 4 think of trying to explore what you're suggesting in that 5 fashion. 6 MS. VANORA SIMPSON: What if it's not the 7 preliminary report, which I understand has to come in 8 within the thirty (30) days and so presumably would be 9 "undetermined" more often than not in the non-obvious, 10 non-gunshot, non-stabbing cases? 11 What if it's those cases that we've seen 12 where there is a final Form 3 then a revised final then a 13 Regional or Supervising Coroner coming in with another 14 revision? Is there any value that any of you see in 15 triggering any kind of review at that point? 16 DR. JAMES EDWARDS: I think it would be 17 of assistance. We want -- we want to answer the 18 question, maybe you could give us an example or some... 19 MS. VANORA SIMPSON: And unfortunately I 20 can't, I don't have my -- 21 DR. JAMES EDWARDS: Yeah. 22 MS. VANORA SIMPSON: -- documents up 23 and -- 24 DR. JAMES EDWARDS: Or even just like a-- 25 MS. VANORA SIMPSON: -- running.
1521 COMMISSIONER STEPHEN GOUDGE: 2 Hypothetical. 3 DR. JAMES EDWARDS: -- you know an 4 example that you -- pardon me? 5 COMMISSIONER STEPHEN GOUDGE: 6 Hypothetical. 7 DR. JAMES EDWARDS: Yeah, hypothetical 8 example. Yeah. 9 DR. WILLIAM LUCAS: My -- in response to 10 that, my sense would be that if -- if a case that 11 potentially has that kind of significance to it; in other 12 words we've gone from "undetermined", because the coroner 13 in the preliminary report didn't have enough information 14 to come to a valid conclusion now has come to a different 15 conclusion, the Regional Supervisor has overruled that, 16 and then there's a subsequent body such as one (1) of our 17 expert committees that may look at it and say, Well we 18 take a different view. 19 I think there probably is some merit in 20 doing some kind of a case conference review of that to 21 try and sort out which body has the best evidence to -- 22 like, which group has the best evidence or which 23 individual has the best evidence to come to the valid 24 conclusion. 25 But I would say that those would be very,
1531 very rare. 2 3 CONTINUED BY MS. VANORA SIMPSON: 4 MS. VANORA SIMPSON: Indeed, very rare. 5 DR. WILLIAM LUCAS: Yeah. 6 MS. VANORA SIMPSON: Happily. 7 DR. ALBERT LAUWERS: I'm not entirely -- 8 I'm not entirely convinced about that. I think in the 9 Death Under Five Committee, certain findings are made by 10 coroners, and they are reviewed by the Committee and 11 those findings are changed. 12 And I'm not talking necessarily about -- 13 about the homicide cases but I'm talking about the 14 activity that goes from "natural" to "undetermined" or 15 "accident" to "undetermined." We do see a number of 16 those, and I'm a little bit reticent to jump into that. 17 Usually by the time the case has been 18 bandied about and there have been several changes, it's 19 very clear to everyone there's major concerns with regard 20 to the proper assignation of the manner of death. And 21 it's probably been case conferenced once, perhaps twice 22 already. 23 And to answer your question. I think if 24 there have been significant changes, a case has been 25 recurrently opened and reexamined and there are -- are
1541 large issues at stake that -- that have to do with the 2 Criminal Justice System, such as undetermined homicide, 3 et cetera. There might be some form for holding a 4 conclusive meeting. 5 But I would limit it to that because what 6 you've suggested up till now, in my view, would be 7 largely unproductive for our office. 8 MS. VANORA SIMPSON: Do you think that 9 the expert committees and the Death Under Five Committee 10 that you have assembled now could do that work or is it 11 already -- is it already gone through that process? 12 DR. ALBERT LAUWERS: I do think there's 13 room for that as well. For instance, we've -- we've had 14 a recent death that was examined twice by the committee, 15 and there was a third request by the original forensic 16 pathologist to look at the death again. 17 And that was finally done and what's 18 happening is the two (2) pathologists are getting 19 together and discussing the case to give us some clearer 20 definition about where we're going with the manner of 21 death. 22 MS. VANORA SIMPSON: The final question 23 is this: I understand that the Form 3s don't go to the 24 Criminal Justice System? Did I hear that evidence -- I 25 believe --
1551 DR. ALBERT LAUWERS: They -- they go to 2 the Crown attorney. 3 MS. VANORA SIMPSON: They -- they do go 4 to the Crown attorney? 5 DR. ALBERT LAUWERS: Yes, they do. 6 MS. VANORA SIMPSON: Do they go to the 7 Crown attorney in all cases? 8 DR. ALBERT LAUWERS: All cases. 9 DR. JAMES EDWARDS: It's the requirement 10 of the Coroners Act. 11 DR. ALBERT LAUWERS: Yes. 12 MS. VANORA SIMPSON: Wonderful. I -- I 13 had mistaken understanding from a response to Ms. 14 Ritacca's question earlier that they weren't helpful to 15 the Criminal Justice System? 16 DR. WILLIAM LUCAS: That's -- that's an 17 opinion. That doesn't necessarily mean that they may not 18 go to it. 19 MS. VANORA SIMPSON: Okay. 20 DR. WILLIAM LUCAS: Yeah. 21 MS. VANORA SIMPSON: And I was -- my 22 question was going to be can they go there and -- and let 23 the Criminal Justice System sort it out. It seems that 24 happens already. Thank you very much, gentlemen. 25 COMMISSIONER STEPHEN GOUDGE: Thanks, Ms.
1561 Simpson. 2 Ms. Esmonde...? 3 4 CROSS-EXAMINATION BY MS. JACKIE ESMONDE: 5 MS. JACKIE ESMONDE: Good afternoon, 6 Mr. Commissioner. Good afternoon, Doctors. My name is 7 Jackie Esmonde. I'm one (1) of the lawyers representing 8 Aboriginal Legal Services of Toronto and Nishnawbe-Aski 9 Nation. In case you're not familiar with those 10 organizations, Aboriginal Legal Services of Toronto is a 11 multi-service Aboriginal legal service agency that 12 provides services to Aboriginal communities across the 13 Province. 14 The Nishnawbe-Aski Nation is a political 15 organization that represents forty-nine (49) First Nation 16 communities in northern Ontario, includes approximately 17 forty-five thousand (45,000) First Nation members, and 18 occupies approximately two-thirds (2/3s) of the Province 19 of Ontario. And I'd to begin with you, Dr. Lucas, if I 20 could. 21 DR. WILLIAM LUCAS: Okay. 22 MS. JACKIE ESMONDE: You told us this 23 morning that you were an investigating coroner for five 24 (5) years? 25 DR. WILLIAM LUCAS: Correct, from 1991 to
1571 '96. 2 MS. JACKIE ESMONDE: What region was that 3 in? 4 DR. WILLIAM LUCAS: In Peel region. 5 MS. JACKIE ESMONDE: Peel. And you've 6 been a Regional Supervising Coroner since 1996? 7 DR. WILLIAM LUCAS: Correct. 8 MS. JACKIE ESMONDE: And the regions that 9 you had responsibility for included York region -- 10 DR. WILLIAM LUCAS: Correct. 11 MS. JACKIE ESMONDE: -- and Niagara 12 between 1996 and 1998, I have that correct? 13 DR. WILLIAM LUCAS: Correct, correct. 14 MS. JACKIE ESMONDE: And both York and 15 Niagara regions have significant Aboriginal populations 16 located within them, is that right? 17 DR. WILLIAM LUCAS: That's my 18 understanding. 19 MS. JACKIE ESMONDE: For example, in York 20 region, you have the Georgina Island First Nation? 21 DR. WILLIAM LUCAS: Yes. 22 MS. JACKIE ESMONDE: In Niagara, you have 23 Six Nations of Grand River? 24 DR. WILLIAM LUCAS: Yes. 25 MS. JACKIE ESMONDE: And the Mississaugas
1581 of New Credit? 2 DR. WILLIAM LUCAS: I -- I would 3 understand that to be correct, yes. 4 MS. JACKIE ESMONDE: That's your 5 understanding? 6 DR. WILLIAM LUCAS: Yeah, yeah. 7 MS. JACKIE ESMONDE: Are there any others 8 that you're aware of? 9 DR. WILLIAM LUCAS: I don't know whether 10 I could recite them for you. 11 MS. JACKIE ESMONDE: Okay. I'm correct 12 in the ones I've cited though? 13 DR. WILLIAM LUCAS: As far as I 14 understand, yes. 15 MS. JACKIE ESMONDE: And you are -- are 16 aware, are you, that Six Nations of Grand River has the 17 largest population of all First Nations in Canada? 18 DR. WILLIAM LUCAS: I will take your word 19 for that? 20 MS. JACKIE ESMONDE: Okay. From -- 21 you've had experience in death investigations involving 22 Six Nations of Grand River, is that fair to say? 23 DR. WILLIAM LUCAS: There, to my 24 knowledge and recollection, have been some cases, yes. 25 MS. JACKIE ESMONDE: Have you had
1591 occasion to be involved with death investigations as an 2 investigating coroner on a First Nation? 3 DR. WILLIAM LUCAS: To my recollection, 4 no. 5 MS. JACKIE ESMONDE: And, Dr. Edwards, 6 you also have experience as an investigating coroner in a 7 rural area of Ontario; that would be Hastings County? 8 DR. JAMES EDWARDS: That -- that's 9 correct. 10 MS. JACKIE ESMONDE: That was in the 11 early '90s;'91 to '96? 12 DR. JAMES EDWARDS: That's correct. 13 MS. JACKIE ESMONDE: And am I correct, 14 the Mohawks of the Bay of Quinte fall within Hastings 15 County? 16 DR. JAMES EDWARDS: That -- that's 17 correct. 18 MS. JACKIE ESMONDE: And did you have 19 occasion as an investigating coroner to participate in 20 death investigations that occurred involving that First 21 Nation? 22 DR. JAMES EDWARDS: I can recall one (1) 23 case. It didn't occur on the -- in -- in the Aboriginal 24 community. It occurred outside the Aboriginal community, 25 in which two (2) -- two (2) people were killed when their
1601 train -- or their car went in front of a train. But 2 that's the only case I can recall. 3 MS. JACKIE ESMONDE: I see. And, Dr. 4 Lauwers, coming to you, are -- are you aware of any First 5 Nations within the regions that you have been 6 investigating or regional supervising coroner? 7 DR. ALBERT LAUWERS: I'm not aware of 8 any. I -- I can say that they're a community that's 9 remote. I think there's a community in Curve Lake, but - 10 - in the Peterborough area, which is -- butts against the 11 City of Kawartha Lakes. 12 MS. JACKIE ESMONDE: I see. Were you 13 involved in any death investigations involving that 14 community? 15 DR. ALBERT LAUWERS: I was not. 16 MS. JACKIE ESMONDE: And I take it all 17 three (3) of you would be aware of the unfortunate 18 reality that Aboriginal communities experience higher 19 death rates than other communities in Canada? 20 DR. ALBERT LAUWERS: Yes. 21 MS. JACKIE ESMONDE: Is that fair? 22 DR. JAMES EDWARDS: That's correct. 23 MS. JACKIE ESMONDE: And Dr. Lucas...? 24 DR. WILLIAM LUCAS: I wouldn't say that I 25 have personal, intimate knowledge of that statistic, but
1611 I -- I would accept that. 2 MS. JACKIE ESMONDE: But the Coroner's 3 Office in general is aware of very high suicide rates in 4 some Aboriginal communities, particularly in Northern 5 Ontario. 6 Is that fair to say? 7 DR. WILLIAM LUCAS: Yes. 8 DR. JAMES EDWARDS: That's correct. 9 MS. JACKIE ESMONDE: And I'm wondering as 10 well, Doctors, if you're aware of research that suggests 11 that Aboriginal children may be at risk for Sudden Infant 12 Death later in infancy or for a longer period than non- 13 Aboriginal children. 14 Is that research that any of you are aware 15 of? 16 DR. ALBERT LAUWERS: I'm not aware of 17 that. 18 DR. WILLIAM LUCAS: No. 19 DR. JAMES EDWARDS: Neither I. 20 MS. JACKIE ESMONDE: But given, 21 generally, the trends involving the higher death rates 22 and high suicide rates, I take it you would agree with 23 me, Doctors, that the Coroner's Office can play a very 24 important role in Aboriginal communities in terms of 25 death prevention?
1621 DR. JAMES EDWARDS: I would agree with 2 that. 3 DR. WILLIAM LUCAS: It's part of our 4 role. 5 MS. JACKIE ESMONDE: Yes. 6 DR. JAMES EDWARDS: In cer -- in certain 7 circumstances. 8 MS. JACKIE ESMONDE: And there are unique 9 issues that arise when you are involved in death 10 investigations involving Aboriginal -- Aboriginal 11 communities? 12 I'll start with you, Dr. Edwards, just for 13 ease of identifying per -- a person to answer the 14 question. 15 DR. JAMES EDWARDS: So what was your 16 question, I'm sorry? 17 MS. JACKIE ESMONDE: There are some 18 unique issues that arise when you are involved in death 19 investigations in Aboriginal communities? 20 DR. JAMES EDWARDS: Yeah, it's actually 21 interesting you address that. When -- when we were 22 talking about our students earlier on, we have two (2) -- 23 two (2) of our students, two (2) of our medical students, 24 we are applying for them to do research into suicides 25 among Aboriginal teenagers.
1631 So we are aware that there are specific 2 concerns in -- in Aboriginal communities and... 3 MS. JACKIE ESMONDE: But beyond that, 4 you'd agree with me -- I -- that you have to be sensitive 5 to cultural practices and beliefs that could impact on 6 the conduct of a death investigation in Aboriginal 7 communities? 8 DR. JAMES EDWARDS: Well, in an -- in any 9 -- dealing with an -- 10 MS. JACKIE ESMONDE: Any community. 11 DR. JAMES EDWARDS: Dealing with any 12 community you have to be aware of -- we deal with many 13 different ethnic communities and religious communities in 14 Toronto. And we're -- we have to be aware of their 15 concerns regarding, for example, whether they have 16 objections to autopsies, if they want the death to be -- 17 the body to be released in a short time because they want 18 the body buried within a specific period. 19 So there's -- we have to be aware of 20 ethnic concerns in many of the communities we deal with, 21 and Toronto is -- is so multi -- multicultural that -- 22 MS. JACKIE ESMONDE: Yes, and Aboriginal 23 communities are -- are extremely diverse, as well. 24 DR. JAMES EDWARDS: Yeah. 25 DR. WILLIAM LUCAS: I think it's
1641 important to emphasise, though, that as much as we have 2 to be aware of those issues and as sensitive to them as 3 we can be, we still have a statutory obligation to 4 investigate deaths in a manner that we feel is 5 appropriate and scientifically valid. 6 And -- and there numerous circumstances 7 where the need to advance a coroner's investigation by 8 taking certain steps, such as an autopsy examination, 9 comes in conflict with -- with those cultural or 10 religious values. 11 And we -- we have to sit down and take a 12 good, hard look at -- at what's the correct way to 13 approach that, the proper way to -- to conduct that 14 investigation so that it's -- it's completed 15 satisfactorily. 16 DR. JAMES EDWARDS: And just -- just to 17 add on to that, in cases where we have to -- we decide 18 that it's necessary to perform an autopsy against the 19 wishes of a -- of a particular community, we will make 20 every provision we can in -- in the conduct of that 21 autopsy -- and I don't really think I need to be too 22 explicit -- but to -- to be respectful of the -- of that 23 community's wishes. 24 And that's something that we actually are 25 very, very sensitive to.
1651 MS. JACKIE ESMONDE: Yes. So you 2 accommodate where you can? 3 DR. JAMES EDWARDS: Exactly. 4 MS. JACKIE ESMONDE: But over and above 5 unique issues that arise with respect to cultural 6 practices, would you agree with me -- I'll begin with 7 you, Dr. Edwards -- that Aboriginal communities have a 8 unique status in terms of the political realm, as well, 9 in Ontario? 10 DR. JAMES EDWARDS: I mean we're aware -- 11 MS. JACKIE ESMONDE: Yes. 12 DR. JAMES EDWARDS: As citizens, we're 13 aware that there are. 14 MS. JACKIE ESMONDE: As citizens. 15 DR. JAMES EDWARDS: Yeah. 16 MS. JACKIE ESMONDE: That there have been 17 moves toward recognising governments, moves towards self- 18 government in some areas involving Aboriginal communities 19 in Ontario, you're aware of that? 20 DR. JAMES EDWARDS: Yes. 21 MS. JACKIE ESMONDE: And, Dr. Lauwers and 22 Dr. Lucas, you're aware of that general political 23 context, as well, I take it? 24 DR. ALBERT LAUWERS: I'm sorry, I wasn't, 25 but...
1661 MS. JACKIE ESMONDE: You were not. Dr. 2 Lucas, you said yes, I believe? 3 DR. WILLIAM LUCAS: Yes, it's my 4 understanding in a general sense. 5 MS. JACKIE ESMONDE: Along that theme, 6 I'd like to ask you about a particular document that I 7 gave you notice on. I'm not sure if you had a chance to 8 review it. It's called Ontario's New Approach To 9 Aboriginal Affairs. It's in Tab 46 of Volume II, and 10 it's PFP number is 151273. 11 12 (BRIEF PAUSE) 13 14 MS. JACKIE ESMONDE: And I think you 15 should have the first page up there on the screen. 16 You'll see this is a spring 2005 Ontario document. 17 And I'd like to ask you first, Dr. 18 Edwards, have you -- have you seen this document before? 19 DR. JAMES EDWARDS: I saw it briefly 20 yesterday. I didn't read it in depth, but we -- the 21 three (3) of us discussed it briefly. 22 MS. JACKIE ESMONDE: Okay. And is this a 23 document that any of you have seen before I had it placed 24 before you? 25 DR. WILLIAM LUCAS: No.
1671 DR. ALBERT LAUWERS: No. 2 MS. JACKIE ESMONDE: No. You -- you did 3 have a chance to review it briefly, Dr. Edwards, you 4 said. You'd agree with me that just, in general, in 5 terms of the principles enunciated, the document speaks 6 to Ontario chartering a new course in terms of it's 7 relationships with Aboriginal communities in Ontario? 8 DR. JAMES EDWARDS: I believe that was 9 one (1) of the themes, yes. 10 MS. JACKIE ESMONDE: And it speaks to a 11 recognition that -- a recognition of Aboriginal 12 governments and the need to negotiate and build 13 relationships with Aboriginal governments in Ontario? 14 DR. JAMES EDWARDS: I wouldn't dispute 15 that. 16 MS. JACKIE ESMONDE: I see. 17 DR. JAMES EDWARDS: Yep. 18 MS. JACKIE ESMONDE: It also emphasizes 19 the importance of Aboriginal solutions to Aboriginal 20 issues? 21 DR. JAMES EDWARDS: I -- I accept that. 22 I accept that. 23 MS. JACKIE ESMONDE: You accept that? 24 DR. JAMES EDWARDS: Yeah. 25 MS. JACKIE ESMONDE: Now, I understand
1681 that none of you have seen this document before these 2 proceedings. 3 Can you help me, is this a document that 4 you have at least spoken about or had some awareness of 5 it's existence in terms of the work that you do in the 6 Coroner's Office? 7 DR. JAMES EDWARDS: I was not aware of 8 this document until yesterday. 9 MS. JACKIE ESMONDE: I see. 10 DR. WILLIAM LUCAS: And my answer would 11 be no. 12 DR. ALBERT LAUWERS: No. 13 MS. JACKIE ESMONDE: Okay. So it hasn't 14 been specifically brought to your attention, I can take 15 from that. 16 DR. WILLIAM LUCAS: No. 17 MS. JACKIE ESMONDE: What about some of 18 the principles that I summarized in terms of the need to 19 build relationships with Aboriginal governments and 20 finding Aboriginal solutions to Aboriginal issues? Is 21 this -- are these principles that are discussed in the 22 Coroner's Office? 23 DR. JAMES EDWARDS: Only as -- as they 24 would pertain to our death investigations. I mean, we're 25 -- we're -- our -- our -- we're involved in death
1691 investigations as opposed to those other matters that -- 2 that you're discussing. 3 MS. JACKIE ESMONDE: Yes. 4 DR. JAMES EDWARDS: And we're aware of 5 specific concerns in the Aboriginal community that 6 surround death investigations. But I don't know that 7 we're any more aware than any other member of the 8 community about the -- you know, self-government and 9 those types of issues that you're talking about. 10 MS. JACKIE ESMONDE: Well, I -- I put to 11 you, Doctors, that one (1) way -- well, let me back up. 12 This document, I would put to you, as a government office 13 that falls under the Ministry of Community Safety and 14 Correctional Services, this document applies to your 15 office as well? Do you dispute that? 16 DR. ALBERT LAUWERS: No, I wouldn't 17 dispute that. 18 MS. JACKIE ESMONDE: And one (1) way that 19 some of the principles that are laid out in this policy 20 document -- one (1) way that it may apply to you in the 21 work that you do is in terms of death investigations that 22 you conduct that involve Aboriginal communities, would 23 you agree with that? 24 DR. ALBERT LAUWERS: That's fair. 25 MS. JACKIE ESMONDE: Dr. Edwards...?
1701 DR. JAMES EDWARDS: I guess I'm not -- 2 the -- the things -- the issues that you've talked about, 3 I'm not -- I'm just not convinced that they really 4 pertain to specific death investigations. 5 MS. JACKIE ESMONDE: I see. Do you have 6 a -- you've spoken about your experience in terms of 7 death investigations in Aboriginal communities, and I 8 take it -- it's a fairly small -- 9 DR. JAMES EDWARDS: Mm-hm. 10 MS. JACKIE ESMONDE: -- small set of 11 cases? 12 DR. JAMES EDWARDS: Our -- I would say 13 it's fair to say that for the three (3) of us, our major 14 experience to -- or knowledge of particular Aboriginal 15 concerns as they surround death investigations, would 16 have been brought to our attention by the Regional 17 Coroner for Northern Ontario. 18 MS. JACKIE ESMONDE: Yes. 19 DR. JAMES EDWARDS: And that would be at 20 Regional Coroner's meetings that are held monthly. 21 MS. JACKIE ESMONDE: Okay. But I'm 22 trying to build on the experience that you have, as 23 limited as it -- 24 DR. JAMES EDWARDS: Sure, yeah. 25 MS. JACKIE ESMONDE: -- as it is, and --
1711 and we hope to be able to put some of these questions to 2 the Regional Coroners -- 3 DR. JAMES EDWARDS: Mm-hm. 4 MS. JACKIE ESMONDE: -- responsible for 5 Northern Ontario -- 6 DR. JAMES EDWARDS: Mm-hm. 7 MS. JACKIE ESMONDE: -- should they come. 8 But taking the investigations you have been involved in, 9 do you have -- did you have a practice then, or are you 10 aware of a practice now which involves contacting, for 11 example, the -- the Chief and Band Council of the First 12 Nation at which a death investigation is taking place? 13 Is that something that is regularly done? 14 DR. WILLIAM LUCAS: I'm not aware that 15 that's a practice that's regularly done. And I guess my 16 question to you would be: For what purpose? 17 MS. JACKIE ESMONDE: The reason I raise 18 that as an issue is the document speaks to the need to 19 build relationships -- 20 DR. WILLIAM LUCAS: Mm-hm. 21 MS. JACKIE ESMONDE: -- with Aboriginal 22 governments and recognize that they have a unique 23 position in the political realm. 24 DR. WILLIAM LUCAS: Mm-hm. Okay. 25 MS. JACKIE ESMONDE: And in terms of
1721 going on to First Nation territories, there are some 2 sensitivities there in relationship building that can 3 take place there. 4 DR. WILLIAM LUCAS: Mm-hm. 5 MS. JACKIE ESMONDE: And also with 6 respect to issues or recommendations to prevent deaths in 7 the future. 8 With that broad context in mind, it could 9 be useful, would you agree, to liaise with Chief and Band 10 Council of First Nations at which death investigations 11 are taking place? 12 DR. WILLIAM LUCAS: Now that I understand 13 the context that you put it in, I -- I don't think we 14 would have a problem with that. 15 And I -- I would suggest that that would 16 be a fairly normal or standard practice of our office, 17 particularly for those circumstances that we've 18 identified either require a discretionary or a mandatory 19 inquest, so that when we're advancing our investigation 20 in that type of direction, that that would be a critical 21 piece of -- of just establishing what the issues were -- 22 MS. JACKIE ESMONDE: Mm-hm. 23 DR. WILLIAM LUCAS: -- and how best to 24 resolve them, yes. I guess my only earlier comment was 25 there may not be a need or a context for a -- what I
1731 would call a fairly routine death investigation for that 2 kind of liaison to take place. 3 MS. JACKIE ESMONDE: Does it seem, Dr. 4 Edwards -- 5 DR. JAMES EDWARDS: Certainly, we -- we 6 do meet with vari -- various communities. If they -- if 7 any community every wants to meet with us and -- and 8 bring forward their concerns, we're -- we're open to 9 doing that. 10 And I guess, you know, also in regard to 11 Aboriginals in particular, we don't really investigate a 12 whole lot of deaths of Aboriginals in Toronto. 13 But when the issues have been raised and 14 you and I were involved in an inquest, it really didn't 15 directly -- the death didn't involve the death of an 16 Aboriginal person, but we thought that the issues may 17 also apply to Aboriginals. We gave Aboriginal -- gave 18 your group standing at the inquest. 19 So we do -- we -- we try to be sensitive 20 to these issues. And certainly if people want to meet 21 with us, we're always -- always -- we always want to meet 22 with them. But it needs to be done in the context of 23 either death investigation or potentially in the -- in 24 the context of a -- of an inquest, where the jury may -- 25 may make recommendations that would bear on -- on
1741 Aboriginal communities. 2 COMMISSIONER STEPHEN GOUDGE: Would the 3 office meet with leaders of cultural communities about 4 their views about how death investigations in their 5 community ought best to be conducted or ought to be 6 conducted in a way that observes those communities' 7 cultural priorities? 8 DR. WILLIAM LUCAS: I know we've met in - 9 - in Toronto we've met with members of -- of the some of 10 the -- some members of the Jewish community have concerns 11 about autopsies. And -- 12 COMMISSIONER STEPHEN GOUDGE: Or the 13 Muslim community or a variety of -- 14 DR. WILLIAM LUCAS: Yeah. Or -- or 15 whatever. 16 COMMISSIONER STEPHEN GOUDGE: Yes. 17 DR. WILLIAM LUCAS: And, yeah, the Muslim 18 community as well. And they -- they have views as to 19 when autopsies should be done, whether -- whether imaging 20 could replace autopsies, and so on and so forth. And 21 we've met with them and -- and -- 22 COMMISSIONER STEPHEN GOUDGE: In a city 23 like Toronto and a province like Ontario, I would have 24 thought that is a critical dimension -- 25 DR. JAMES EDWARDS: Oh, we --
1751 COMMISSIONER STEPHEN GOUDGE: -- of your 2 death investigation practice. 3 DR. JAMES EDWARDS: And I know in this -- 4 in this -- you know, just the Jewish community in 5 particular is one that sort of we met with not -- leaders 6 not too long ago. They were -- they had views that 7 perhaps autopsies could be, in some cases, supplanted by 8 imaging, by doing CAT scans or MRIs or -- or whatever. 9 COMMISSIONER STEPHEN GOUDGE: So that the 10 body would not have to be cut? 11 DR. WILLIAM LUCAS: Exactly. And, you 12 know, we're not -- we're not there now, but we're 13 certainly interested in -- in their views. 14 And -- and as I say, you know, if -- if 15 members of religious communities get in touch with us, if 16 somebody -- say somebody dies tomorrow morning, and they 17 have concerns about whether an autopsy should be done. 18 We'll certainly address the issue of whether an autopsy 19 will -- would be done. And we're not going to do one 20 unless -- 21 COMMISSIONER STEPHEN GOUDGE: Yes. 22 DR. WILLIAM LUCAS: -- unless we really 23 feel it's necessary. 24 COMMISSIONER STEPHEN GOUDGE: Right. 25 DR. WILLIAM LUCAS: And if we feel it's
1761 necessary, we would -- as I said, we would incorporate 2 their concerns into the autopsy itself, try to have a 3 done in as expeditious manner as possible. 4 We -- we -- I -- I haven't had in Toronto, 5 with the exception of that -- the inquest I'm talking 6 about, I haven't had Aboriginal community leaders 7 approach me. But if they were to approach me, they had 8 concerns about deaths of people in Toronto or -- or 9 whatever and they wanted to bring issues to my attention, 10 I'd be -- as a public official I'd be happy to -- 11 COMMISSIONER STEPHEN GOUDGE: This may be 12 too general a question for you to be able to answer. 13 But in a case that is criminally 14 suspicious, is the capacity to adapt a cultural norms 15 constrained? 16 DR. WILLIAM LUCAS: Greatly. In terms of 17 autopsies, in terms of releasing information, at least, 18 in the initial phases of that investigation. When the 19 investigation is completed, you know, we would be able to 20 -- to meet with them and discuss things with them more 21 freely. 22 DR. ALBERT LAUWERS: Mr. Commissioner, I 23 can advise that I was -- I met with Dr. Porter, with 24 Members of the Orthodox Jewish community in the last 25 couple of months. I'm also aware that Dr. Bonita Porter
1771 met with Chief Alvin Fiddler in June of 2006 for the 2 purposes of developing a -- or addressing a death 3 investigation scenario which would -- would speak to the 4 very issues you're raising; the cultural necessities and 5 needs of Aboriginal communities. 6 I understand further that that process was 7 suspended, pursuant to this particular proceeding. 8 COMMISSIONER STEPHEN GOUDGE: Would you 9 see those kinds of -- let me use the word, "protocol," I 10 am not sure that is a correct word, Dr. Lauwers -- how 11 would they accommodate the needs of the forensic 12 dimension of a criminally suspicious death investigation? 13 DR. ALBERT LAUWERS: The answer is, 14 without knowing specifically what they are I couldn't 15 answer -- 16 COMMISSIONER STEPHEN GOUDGE: I guess 17 that is too general a question. 18 DR. ALBERT LAUWERS: Yeah. 19 COMMISSIONER STEPHEN GOUDGE: Fair 20 enough. Sorry, Ms. Esmonde. 21 22 CONTINUED BY MS. JACKIE ESMONDE: 23 MS. JACKIE ESMONDE: Yes. Well, I 24 take what -- going back to where we were when I last 25 asked you some questions -- that you -- I take what you
1781 are saying about liaising with Aboriginal communities and 2 leaders in terms of recommendations in the inquest 3 process and so on, but I'd like to take a step back. 4 And recognizing the new direction that the 5 Ontario Government has said it's going in, in terms of 6 recognizing Aboriginal governments and building 7 relationships, has there been discussion in the office, 8 that you are aware of, in terms of the sensitivities of 9 entering First Nation territories for the purpose of 10 conducting death investigations and the need to liaise 11 with Aboriginal leaders in that sense? 12 DR. JAMES EDWARDS: I know that Regional 13 Coroner's meet -- as I mentioned, we've discussed, you 14 know, concerns. The Regional Coroner for Toro -- for 15 northern Ontario has brought to us concerns raised by 16 Aboriginal communities in northern Ontario. I don't 17 recall that specific concern being -- 18 MS. JACKIE ESMONDE: I see. 19 DR. JAMES EDWARDS: -- being brought to 20 us. 21 DR. ALBERT LAUWERS: Nor do I. 22 MS. JACKIE ESMONDE: And I take from your 23 answer then you're not aware of any discussion about a 24 protocol being developed or discussed in terms of 25 entering a First Nation territory for the purposes of
1791 death investigation? That's not something that's on the 2 table at this point? 3 DR. ALBERT LAUWERS: I -- I'm going back 4 to that meeting of June 2006; that was -- I understand 5 the very nature of that meeting and why that meeting took 6 place. 7 MS. JACKIE ESMONDE: Okay. Sorry, I 8 understood your answer earlier with respect to the 9 meeting with Dr. Porter and Chief Alvin Fiddler to relate 10 to that particular death investigation -- 11 DR. ALBERT LAUWERS: Well -- 12 MS. JACKIE ESMONDE: -- and some concerns 13 that -- 14 DR. ALBERT LAUWERS: -- that's exactly 15 what you're -- 16 MS. JACKIE ESMONDE: -- arose from that. 17 DR. ALBERT LAUWERS: -- talking about. 18 It's entering an Aboriginal community -- 19 MS. JACKIE ESMONDE: I see. 20 DR. ALBERT LAUWERS: -- where a death has 21 occurred. 22 MS. JACKIE ESMONDE: Okay. And that was 23 the beginning of some discussions -- 24 DR. ALBERT LAUWERS: There was a -- 25 MS. JACKIE ESMONDE: -- with respect --
1801 DR. ALBERT LAUWERS: -- I understand an 2 initial -- 3 MS. JACKIE ESMONDE: -- to the 4 development of a protocol? 5 DR. ALBERT LAUWERS: -- meeting took 6 place and the purpose -- the nature of the meeting was to 7 try to develop some understanding and a protocol with 8 regard to death investigations in Aboriginal communities. 9 MS. JACKIE ESMONDE: I see. Okay. 10 Perhaps I'll follow-up with Dr. Porter then should she 11 testify here. 12 Thank you very much, Doctors. 13 DR. ALBERT LAUWERS: Thank you. 14 COMMISSIONER STEPHEN GOUDGE: Thanks, Ms. 15 Esmonde. 16 Okay, the schedule calls for us to break 17 for lunch now and we will commence -- now it says two 18 o'clock here. I would like to prevail on you to come 19 back at 2:10 because I have a meeting at Osgoode Hall I 20 have to go to. 21 So 2:10 and we will start with you Ms. 22 Fraser, okay. And I do not think we should take the 23 whole afternoon so that will give people a chance to plan 24 their lives. 2:10 then. 25
1811 --- Upon recessing at 10:47 a.m. 2 --- Upon resuming at 2:10 p.m. 3 4 THE REGISTRAR: All rise. Please be 5 seated. 6 COMMISSIONER STEPHEN GOUDGE: Ms. 7 Fraser...? 8 9 CROSS-EXAMINATION BY MS. SUZAN FRASER: 10 MS. SUZAN FRASER: Thank you, Mr. 11 Commissioner. 12 Dr. Lucas, Dr. Lauwers, and Dr. Edwards, 13 my name is Sue Fraser and I'm here on behalf of an 14 organisation called Defence for Children International, 15 which Dr. Lucas knows from in inquest that we were 16 involved, but -- which is children's rights organisation 17 and it's goal is to promote and protect the rights of the 18 child as set out in the UN convention on the rights of 19 the child. 20 So I wanted to pick up on Ms. Craig's 21 questions earlier, before the lunch break, and those 22 questions relating to the need for there to review -- of 23 your review of other cases. 24 And I think you'll all agree that where 25 evidence, pathology evidence, is used in criminal justice
1821 proceedings, it's also used in child protection 2 proceedings. 3 Correct, Dr. Lucas? 4 DR. WILLIAM LUCAS: That would make 5 sense. 6 MS. SUZAN FRASER: All right. And are 7 you aware of any cases where pathology evidence -- we've 8 heard pathologists give evidence that they do also give 9 evidence in child protection proceedings. 10 Are you aware where some of the pathology 11 evidence is -- in question in these cases, has also been 12 used in child protection matters? 13 DR. WILLIAM LUCAS: From my own personal 14 experience, I can't say that I am. 15 MS. SUZAN FRASER: All right. 16 DR. WILLIAM LUCAS: Because that's not 17 something that I would routinely be involved in. 18 MS. SUZAN FRASER: All right. But I 19 think that if you -- you can agree with me that if the 20 same pathology evidence was used in another matter, that 21 there may be a similar moral, ethical, and legal 22 obligation to children who might have been separated from 23 their families, their parents, their grandparents as a 24 result of -- result of flawed pathology evidence, for us 25 as a society to review those child protection
1831 proceedings. 2 Would you agree with that point, Dr. 3 Lucas? 4 DR. WILLIAM LUCAS: I would agree with 5 that in principle, yes. 6 MS. SUZAN FRASER: And Dr. Lauwers...? 7 DR. ALBERT LAUWERS: I would agree with 8 that in principle. 9 MS. SUZAN FRASER: Dr. Edwards...? 10 DR. JAMES EDWARDS: Yeah, likewise. 11 MS. SUZAN FRASER: All right. There's no 12 real reason to say that they should be reviewed in the 13 one (1) case, rather than the other. And obviously these 14 are difficult rema -- cases to review. 15 Would you agree with me that it may be 16 that the Minister of Children and Youth Services might be 17 in the best position to review child welfare files where 18 pathology evidence has to determine where and when 19 pathology evidence has been used? 20 Dr. Lucas...? 21 DR. WILLIAM LUCAS: In terms of who would 22 have jurisdiction over that, it -- it -- that makes 23 sense. 24 MS. SUZAN FRASER: All right. 25 DR. WILLIAM LUCAS: Whether that minister
1841 would have the expertise to assess that -- 2 MS. SUZAN FRASER: I'm just talking -- 3 DR. WILLIAM LUCAS: -- but -- okay. 4 MS. SUZAN FRASER: Sorry. I'm just 5 talking about actually trying to identify where the 6 evidence -- the first question being, where was the 7 evidence used, because we've heard that there's no way of 8 tracking that. 9 And I take it you'll agree with me that 10 there's no way, with -- at least within the Coroner's 11 Office, that information is tracked? 12 DR. WILLIAM LUCAS: Correct. 13 MS. SUZAN FRASER: All right. And so, 14 just in terms of identifying where and when that evidence 15 is used, it -- it may be that the Minister or an 16 organisation that's not the Coroner's Office is in the 17 best -- best position to do that. 18 DR. WILLIAM LUCAS: I -- I wouldn't 19 refute that. 20 MS. SUZAN FRASER: All right. 21 DR. WILLIAM LUCAS: I mean that sounds 22 reasonable. 23 MS. SUZAN FRASER: All right. And, Dr. 24 Edwards, you look -- 25 DR. JAMES EDWARDS: I -- I just -- I mean
1851 I would agree with your general proposition that the best 2 organisation to deal with any legal proceedings that 3 arose that included in -- information that was -- that 4 came from the Coroner's Office would not be the Coroner's 5 Office. But I'm not really clear on where you -- what 6 you're -- if you're talking about going -- going forward 7 or looking back or... 8 MS. SUZAN FRASER: All right, I'll back 9 up a bit. Working from the hypothetical that there may 10 be some flawed path -- patha -- pathological evidence, 11 we're all working from that assumption, is that fair? 12 DR. JAMES EDWARDS: Okay. 13 MS. SUZAN FRASER: All right. And it's 14 fair to say that we may have a fairly good understanding 15 based on research that the Commission has done that 16 pathology evidence is used in child protection 17 proceedings. 18 All right. And you're all nodding your 19 heads, so -- that's good. 20 So then the question for us is that -- is 21 then that, how do we identify where and when that 22 evidence was used? And I understand that the Coroner's 23 Office doesn't currently track where pathology evidence 24 is given in child protection proceedings, fair? 25 DR. WILLIAM LUCAS: And -- and that's
1861 correct, yeah. 2 MS. SUZAN FRASER: All right. So one (1) 3 of the challenges in terms of identifying whether pathol 4 -- whether flawed pathology may have resulted in a 5 wrongful separation of a child from a parent or a child 6 from a caregiver is first to identify where and when that 7 evidence has been used, fair? 8 DR. WILLIAM LUCAS: Sure. 9 MS. SUZAN FRASER: And then it may be 10 that we have to engage other people like a Dr. Butt or 11 somebody else to review whether that had an impact, 12 whether there were other factors that lead to the 13 apprehension. 14 Fair enough? 15 DR. WILLIAM LUCAS: That's fair. 16 MS. SUZAN FRASER: Dr. -- Dr. Lauwers, 17 did you want to...? 18 DR. ALBERT LAUWERS: I'm just listening 19 carefully. 20 MS. SUZAN FRASER: Okay, okay. And then 21 society as a whole, and this doesn't really depend on 22 your expertise, has to think about a way that what you do 23 if you come to the conclusion that somebody may have been 24 wrongfully separated from a parent? 25 DR. WILLIAM LUCAS: Mm-hm.
1871 MS. SUZAN FRASER: And that's a -- a 2 different and very difficult question to answer as to 3 what comes next. 4 Fair enough? 5 DR. WILLIAM LUCAS: Mm-hm. 6 MS. SUZAN FRASER: All right. And do you 7 understand that the public in terms of the way that 8 medical evidence, pathology evidence, other evidence is 9 used that the public looks to the coroners to be their 10 guardians in a certain -- to -- to sort of identify where 11 there's problematic evidence and that -- that there's a 12 certain amount of public confidence or trust that the -- 13 the public has given to coroners to help prevent flawed 14 pathology evidence being used in criminal proceedings? 15 DR. JAMES EDWARDS: I think we have a -- 16 a definite concern about the quality of the product that 17 comes out of our office. I mean, there's no question 18 about that. Now, what -- what people do with that 19 product is another matter all together. 20 MS. SUZAN FRASER: All right. 21 DR. JAMES EDWARDS: And there's -- 22 there's -- those are sort of two (2) distinct -- 23 distinctly -- 24 MS. SUZAN FRASER: You've put it a much 25 better way than I did, Dr. Edwards. What I'm talking
1881 about is that the public trusts the medical person to say 2 -- to -- to review that product and to say, what's coming 3 out my office is good product. 4 DR. ALBERT LAUWERS: Oh, yeah, that's 5 right. 6 MS. SUZAN FRASER: And you understand -- 7 DR. ALBERT LAUWERS: No question. 8 MS. SUZAN FRASER: -- you understand that 9 you hold that public trust? 10 DR. ALBERT LAUWERS: Yes. 11 DR. JAMES EDWARDS: Yes. 12 MS. SUZAN FRASER: All right. 13 DR. WILLIAM LUCAS: I agree with that. 14 MS. SUZAN FRASER: And you also 15 understand as three (3) men who are sort of going forward 16 in a time that that public confidence is -- is low, at 17 the moment? 18 DR. ALBERT LAUWERS: We understand that, 19 yeah. 20 MS. SUZAN FRASER: All right. I want to 21 turn then to one (1) of the other components of the death 22 investigation, which is the inquest system. And I'm -- 23 I'm going to just put some questions for no particular 24 reasons to Dr. Lucas. 25 But, Dr. Lucas, the Law Reform Commission
1891 and the Court have identified three (3) general purposes 2 of an inquest, and those being the -- a means of a public 3 ascertainment of the death, a means of formally focussing 4 community attention, and on initiating community 5 attention and community response to preventable deaths, 6 and a means of satisfying the community that no death 7 have been overlooked, concealed, or ignored. 8 Is that -- 9 DR. WILLIAM LUCAS: That's correct. 10 MS. SUZAN FRASER: All right. And you've 11 uttered those words many times at many inquests, as that 12 being why a jury is there before you hearing evidence. 13 Fair enough? 14 DR. WILLIAM LUCAS: Correct. 15 MS. SUZAN FRASER: All right. And it -- 16 other words that you have uttered from people first is 17 that it must never be forgotten that the inquest is being 18 held because a member of the community has died under 19 circumstances where the public interest requires 20 examination from the point of view of the deceased 21 persons, their families, and those associated or involved 22 in their death. 23 Fair enough? 24 DR. WILLIAM LUCAS: Correct. 25 MS. SUZAN FRASER: And the jury's role is
1901 to answer five (5) questions and to make recommendations? 2 DR. WILLIAM LUCAS: Yes. 3 MS. SUZAN FRASER: And in many 4 circumstances, the answers to the five (5) questions are 5 known, and the jury will do its work, harder work, in 6 making recommendations. 7 DR. WILLIAM LUCAS: That is -- that's 8 fair. 9 MS. SUZAN FRASER: And in some cases they 10 make no -- make no recommendations? 11 DR. WILLIAM LUCAS: Correct. 12 MS. SUZAN FRASER: And something that 13 sometimes your office or the Office of the Chief Coroner 14 or regional supervising coroner might do is to announce 15 that there will be an inquest into a death early where 16 there's a death of significant public concern, in order 17 to ease concerns about that death. 18 Is that fair? 19 DR. WILLIAM LUCAS: That happens on 20 occasion, that's correct. 21 MS. SUZAN FRASER: All right. And 22 sometimes inquests are very adversarial, as you've 23 mentioned, -- 24 DR. WILLIAM LUCAS: Mm-hm. 25 MS. SUZAN FRASER: -- and sometimes
1911 they're processes of reconciliation and healing? 2 DR. WILLIAM LUCAS: It's not their 3 primary function, but I understand that they can be, yes. 4 MS. SUZAN FRASER: All right. And one 5 (1) of the areas in which the Office of the Chief Coroner 6 excels is in storing, recording, and following-up on its 7 verdicts. 8 And I don't know if the Commissioner knows 9 this, but you have a verdict secretary, correct? 10 DR. WILLIAM LUCAS: Correct. 11 MS. SUZAN FRASER: All right. And I can 12 call her and say, I would like to have all of your 13 verdicts on females who have died in custody by hanging, 14 and I will get those verdicts free of charge? 15 DR. WILLIAM LUCAS: Yes. 16 MS. SUZAN FRASER: All right. And that's 17 a function of the office because that's one (1) of the -- 18 the public safety components; we learn from what happened 19 in the past? 20 DR. WILLIAM LUCAS: Correct. 21 MS. SUZAN FRASER: All right. And I 22 expect that you've all experienced at inquests, 23 institutions come and they come with their houses in 24 order. They've had time to reflect since the death, 25 they've reviewed their policy and revisited their
1921 policies and in most circumstances, an institution 2 arrives at an inquest saying, This is what we've done to 3 change, if there's an issue, and this is how we hope that 4 things can be different the next time around. 5 Is that fair, Dr. Lucas? 6 DR. WILLIAM LUCAS: It wasn't always the 7 case in the past, but I think I would agree with you that 8 we've seen that increasingly in recent years. Yes. 9 MS. SUZAN FRASER: All right. And so -- 10 when we contrast the inquest process with the expert 11 committee process or a process by which the Regional 12 Coroner might make recommendations to an institution, 13 there's some obvious differences that I want to review 14 with you. 15 DR. WILLIAM LUCAS: Mm-hm. 16 MS. SUZAN FRASER: One (1) is, Dr. Lucas, 17 except by consultation with the coroner, the families are 18 not generally involved in the review committees or 19 process of making recommendations. 20 Is that fair? 21 DR. WILLIAM LUCAS: That's fair. 22 MS. SUZAN FRASER: All right. And while 23 the professionals involved in the death may be involved 24 in the committee process or in the drafting of 25 recommendations; you talked yesterday about, sort of,
1931 negotiating with the hospital like -- I, sort of, took it 2 as: We can do this the easy way or the hard way, and the 3 hard way being to go to Inquest, the easy way being, 4 Let's agree on a way to prevent this death and make some 5 recommendations. 6 Is that sort of a fair -- 7 DR. WILLIAM LUCAS: That's probably a 8 reasonable way to categorize it, yes. 9 MS. SUZAN FRASER: All right. The only 10 problem with that is that those recommendations don't get 11 made publicly in many cases and stored on the -- in the 12 way that -- that verdicts are. 13 Is that fair? 14 DR. WILLIAM LUCAS: We have a process 15 whereby recommendations from Regional Coroners' reviews 16 theoretically are tracked by the Office of the Chief 17 Coroner. I can't speak to -- because that's not an area 18 that I'm involved with on a day-to-day basis -- I can't 19 speak to how reliably that's done. 20 I know, speaking for myself, that on 21 occasion, I've been guilty of conducting a Regional 22 Coroner's review and crafting recommendations and dealing 23 with an institution and maybe for a variety of reasons 24 have forgotten to transmit that information down to Head 25 Office so that they may not have access to it.
1941 But I think, you know, in that context 2 that's probably a fair comment that they're not tracked 3 as rigorously -- 4 MS. SUZAN FRASER: All right. 5 DR. WILLIAM LUCAS: -- as inquest 6 recommendations. 7 MS. SUZAN FRASER: Right. And they're 8 not generally publically available? 9 DR. WILLIAM LUCAS: Now that, 10 unfortunately, I can't speak to. Maybe my colleagues 11 would have -- 12 MS. SUZAN FRASER: All right. Dr. 13 Lauwers -- 14 DR. WILLIAM LUCAS: -- information. 15 MS. SUZAN FRASER: -- Dr. Edwards, do you 16 know? 17 DR. JAMES EDWARDS: I know the 18 recommendations will be shared with family. 19 MS. SUZAN FRASER: Yes. 20 DR. JAMES EDWARDS: And they will be 21 shared beyond the institution if it's felt that there 22 would be a public safety reason to do so. 23 So in other words, if we went to a 24 hospital and we saw a problem with a piece of equipment 25 in the hospital and we had concerns that, perhaps, that
1951 was a more widespread problem in the Province, we would 2 spread -- disseminate that information to the hospitals 3 or the manufacturers of the equipment or whatever. 4 But it's -- you're correct that we don't 5 routinely make our -- those recommendations available to 6 members of the public at large. 7 MS. SUZAN FRASER: Right. So just using 8 the sort of -- the codeine metabolizer issue and that the 9 doctors are aware of it, the patient's probably not 10 generally aware of it, so that -- 11 DR. JAMES EDWARDS: That's actually not a 12 good example -- 13 MS. SUZAN FRASER: Okay. 14 DR. JAMES EDWARDS: -- because that -- 15 that information actually was shared. That information 16 was published in The Lancet, which is a very reputable 17 organization. Physicians in Ontario will be aware of 18 that case. 19 MS. SUZAN FRASER: Right. But I'm 20 talking -- I'm thinking about the patient who might be 21 reading, you know, Jack Newman's guide on breastfeeding 22 rather than The Lancet and is not aware that this might 23 be a risk. 24 So when it comes to an informed consent 25 issue she might not be able to raise that issue with her
1961 physician. Whereas if it was the subject of, you know, 2 greater public debate that might... 3 DR. JAMES EDWARDS: That's probably not 4 the best example -- 5 MS. SUZAN FRASER: Okay. 6 DR. JAMES EDWARDS: -- because that -- in 7 that case, the College would -- the Tylenol 3s are 8 prescribed by physicians. 9 MS. SUZAN FRASER: Right. 10 DR. JAMES EDWARDS: And, you know, unless 11 people were getting Tylenol 3s in other ways, and I think 12 most new mothers would be getting their medications from 13 the doctors, their doctors would be aware of it. 14 And I think -- I mean, well, obviously 15 it's -- it's most advisable that, you know, everybody in 16 the public is aware of all of these type of issues; in 17 that case physicians are aware of that. 18 MS. SUZAN FRASER: All right. 19 DR. JAMES EDWARDS: And that actually is 20 an example really of where our office has not only 21 identified a problem -- and again, it's not really our -- 22 our office per se is more the -- the people who assist us 23 with the research of the Hospital for Sick Children 24 really took great efforts to disseminate that information 25 both to regulatory bodies and by getting the -- the --
1971 the case published in -- in one (1) of the most 2 reputable, if not the most reputable organizations in the 3 world. 4 So, you know, that's not really a good 5 example of, I think, what you're trying to illustrate. 6 MS. SUZAN FRASER: Okay. So -- but I 7 think you agree with me, Dr. Edwards, not withstanding 8 your concern about the example, that generally the 9 recommendations that are made either from a Regional 10 Coroner's Review, or within one (1) of the expert 11 committees, are private recommendations? 12 DR. JAMES EDWARDS: That's correct, 13 unless there's a need to make them public. 14 MS. SUZAN FRASER: All right. And in 15 terms of whether there's a need to make that public, the 16 public has to trust you that -- and I mean you in terms 17 of the Office of the Chief Coroner, has to trust you that 18 that is going to be done, fair enough? 19 DR. WILLIAM LUCAS: That's fair. 20 DR. ALBERT LAUWERS: That's fair, yeah. 21 DR. JAMES EDWARDS: Yeah. 22 MS. SUZAN FRASER: And so in terms of 23 your Committee, and I'm going to turn -- I just have a 24 few minutes left, Dr. Lauwers, to talk about the PDRC, 25 Pediatric Death Review Committee which my client has been
1981 critical of in that when a death in -- an open CAS file 2 is investigated, that the CAS continues to be on the 3 membership without, sort of, an external review. 4 Is it fair, from what I understood from 5 your evidence is that when the CAS file case is reviewed 6 before the Pediatric Death Review Committee, that the 7 Pediatric Death Review Committee relies on the internal 8 investigation completed by the CAS? 9 DR. ALBERT LAUWERS: That's correct, it 10 reviews our child welfare export -- expert reviews, the 11 CAS review of their -- their own internal review of their 12 actions. 13 But in addition to that, it doesn't rely 14 solely on that. 15 MS. SUZAN FRASER: All right. And can 16 you understand that at this time when public confidence 17 is low, that there is a need, -- or there's, at least 18 from my client's perspective, a perceived need to have 19 people involved in the review of pediatric deaths beyond 20 the professionals involved in the case, or professionals 21 that they're -- for example, the child advocate might be 22 a good member of the Pediatric Death Review Committee? 23 DR. ALBERT LAUWERS: Oh, I couldn't 24 support that. 25 MS. SUZAN FRASER: All right. And do --
1991 are -- do you understand what the role is of the 2 Provincial Advocate for Children -- 3 DR. ALBERT LAUWERS: Perhaps you'd like 4 to explain it? 5 MS. SUZAN FRASER: All right. Well, one 6 of her primary functions is to promote and bring forward 7 the concerns of children and youth. So what -- in terms 8 of what possible role she might have on that Committee, 9 would be to bring forward the concerns of children and 10 youth who are in the care of the state, which might be 11 relevant to a case where -- where there's an open CAS 12 file. 13 DR. ALBERT LAUWERS: You know, Ms. 14 Fraser, in reference to this particular Inquiry, I think 15 one (1) of the lessons that needs to be learned is that 16 experts should not be advocates. And that's why I would 17 suggest to you that anyone coming on the Pediatric Death 18 Review Committee needs to be completely unbiased, 19 independent, and should not have an advocacy role at all. 20 MS. SUZAN FRASER: All right. So from 21 that point, do you see then -- putting the question the 22 child advocate -- the need for the voices of children and 23 youth who are in the care of the state to be heard by the 24 Pediatric Death Review Committee? 25 DR. ALBERT LAUWERS: If it's a function
2001 of -- the functions of -- the normal functions and 2 activities of the Committee, then that certainly is 3 something we'd be alive to. 4 MS. SUZAN FRASER: All right. 5 DR. JAMES EDWARDS: If I could just -- if 6 I could just add one (1) -- one (1) comment there. If 7 people bring forward to us information about a case that 8 we're going to be referring as Regional Supervising 9 Coroners to an expert committee, fam -- and it would 10 usually be family, we -- we make sure that we get -- list 11 all of the family members -- usually family members -- 12 concerns, and forward that information to the Committee. 13 So the Committee does get information from 14 -- from the public, at least from involved members of the 15 public. And certainly if there was a case that was going 16 to be reviewed by an expert committee, and -- and your 17 organization or any other organization had concerns about 18 that particular case, if they were to get in touch with 19 the Regional Supervising Coroner, the Regional 20 Supervising Coroner would forward information about your 21 -- your concerns about that case to the -- to the 22 relevant committee, whatever committee it happened to be. 23 MS. SUZAN FRASER: All right. But you 24 can understand where there are deaths that are reviewed 25 public -- or reviewed privately, that people may not
2011 always know the circumstances that are being reviewed by 2 the committee, so there's a bit of a chicken and egg 3 problem there. 4 But, Dr. Crane, who was here from Northern 5 Ireland, talked about families being involved in a death 6 review process, do you see there being a place for that, 7 Dr. Lauwers, for families to actually come to the 8 committee when a death is being reviewed? 9 DR. ALBERT LAUWERS: The normal practice 10 is for the committee to render its opinion and -- and 11 provide that opinion to the Supervising Regional Coroner, 12 who can then meet with the family and discuss any issues 13 that arise. 14 MS. SUZAN FRASER: All right. And you 15 have the ability, taking on this position, to say, Are we 16 going to conduct business as usual or are we going to 17 take a new approach with respect to this committee -- the 18 committee not being governed by legislation, in terms of 19 its constitution. That's what done. 20 Do you see that there might be a benefit 21 to families to actually be able to participate in the 22 death review process outside of a formal inquest process? 23 DR. ALBERT LAUWERS: I think there are a 24 number of reasons why that wouldn't be practical with the 25 Paediatric Death Review Committee.
2021 MS. SUZAN FRASER: All right, and can you 2 tell me what those reasons are? 3 DR. ALBERT LAUWERS: Well, some would be 4 privacy issues, at the least. The other issues is -- is 5 we -- we do actually, respecting the fact that some of 6 these children are in care, at the time, of their 7 families, it may well be that the family have some 8 complicity with regard to the -- the care or lack there 9 of in the death of the child. 10 The next issue might be, we would -- may 11 have it -- we may have a challenge to actually having 12 experts agree to a process such as that, so I -- I think 13 there are -- are a lot of, in my view, reasons not to go 14 that way. 15 I think the current process in which the 16 committee issues its opinion -- you know, and the 17 prevalent issue is to the family factor into the opinion 18 that it's issued by the -- the Paediatric Death Review 19 Committee. 20 Sometimes there are insurance claims, for 21 instance, that hinge on such things as whether the death 22 is accidental or natural. And, you know, I -- also there 23 is those other issues which can be influenced by the 24 Criminal Justice System, as well. 25 I -- I cannot see the committee actually
2031 functioning in a meaningful way with the presence of 2 family and trying to mitigate the various circumstances 3 we discuss at the committee with family physically 4 present during the process. 5 MS. SUZAN FRASER: All right. 6 DR. ALBERT LAUWERS: I do think, however, 7 family has a voice as the process sets out, as in the -- 8 what Dr. Edwards has suggested, and I do think that the 9 termination of our particular activity, the family can be 10 involved, and they do, by the way, they do provide 11 feedback to us when we -- they think or take exception 12 to, or are pleased with the various things we've said, 13 they will write back to us, communicate with us. 14 And we're, in fact, available to meet with 15 them, and we have done that in the past. 16 DR. JAMES EDWARDS: And I think just from 17 a broader -- a broader perspective, if I may interject, 18 that our death investigation system, we take into account 19 ev -- all information that is brought forward to us by 20 families, by -- by whatever -- whatever agency, by -- or 21 -- or group, but that -- that death investigation 22 process, in terms of death investigation by individual 23 coroners or by committees, needs to be done by people who 24 do not have an interest in the outcome of that 25 investigation.
2041 And I think that's really fundamental; if 2 we can't -- that -- that's -- we have to have a 3 dispassionate, neutral, unbiased review of the death, and 4 every -- and every member who is -- every person who is 5 participating in that investigation has to be neutral and 6 -- and unbiased. 7 MS. SUZAN FRASER: All right. I -- I'm 8 getting the look that I think is the hook, so I have some 9 followup questions, but I -- I think I'm at the end of my 10 rope, so I got to go. 11 Thank you very much, gentlemen. 12 COMMISSIONER STEPHEN GOUDGE: Thank you 13 very much. 14 Ms. Crawford, any questions? 15 MS. KATE CRAWFORD: No. 16 COMMISSIONER STEPHEN GOUDGE: That takes 17 us, then, back I think to you, Ms. Ritacca. 18 19 RE-CROSS-EXAMINATION BY MS. LUISA RITACCA: 20 MS. LUISA RITACCA: Thank you, 21 Commissioner. I just have one (1) question for you, Dr. 22 Lauwers, arising out of Ms. Fraser's examination, and 23 this is with respect to the PDRC and the role of the 24 Children's Aid Society and her position that there should 25 be a role for the child advocate.
2051 And my question, Doctor, is: Does the 2 committee, the PDR -- Paediatric Death Review Committee, 3 review deaths of children in the care of the state? 4 DR. ALBERT LAUWERS: In the care of the 5 state, can you be more specific? 6 MS. LUISA RITACCA: Well, that's the 7 language Ms. Fraser used, and so I just wanted -- if you 8 could help us understand what cases go before the PDRC, 9 and of those cases, if -- if -- and if any of those cases 10 are with children that are in the care of the state. 11 DR. ALBERT LAUWERS: So there -- there 12 are cases of children that are under the care of the CAS 13 and most of those families will in fact -- pardon me, 14 most of those children will be with their families with 15 CAS actively involved in the family setting. 16 Occasionally there will be children that are no longer 17 with their families because they've been removed and are 18 in foster care, again as part of the CAS function. 19 Those are cases we review. We don't 20 review the deaths of children that are in custody because 21 of course they are the subject of an inquest. 22 MS. LUISA RITACCA: And what's your 23 understanding of a death in custody? What do you mean by 24 that with regard to children? 25 DR. ALBERT LAUWERS: Well "in custody"
2061 means to me people who are properly incarcerated under 2 the -- 3 COMMISSIONER STEPHEN GOUDGE: Serving a 4 sentence of some kind. 5 DR. ALBERT LAUWERS: Yes, thank you. 6 7 CONTINUED BY MS. LUISA RITACCA: 8 MS. LUISA RITACCA: And those deaths 9 would be subject to review of a mand -- under a mandatory 10 inquest? 11 DR. ALBERT LAUWERS: A mandatory inquest. 12 MS. LUISA RITACCA: Thank you, those are 13 my questions. 14 COMMISSIONER STEPHEN GOUDGE: Dr. 15 Lauwers, do you have any sense of the children who die in 16 care, whether in the home under supervision or in foster 17 care? What is the split between those two? 18 Do you have any sense of whether it's two- 19 thirds (2/3s) with the family under supervision of the 20 CAS; one-third (1/3) foster care or...? I mean, I'm just 21 pulling that out of the air. 22 DR. ALBERT LAUWERS: Yes, and it's a 23 valid question. I can't give you the exact figures, I 24 can say that there's a greater -- a far greater 25 disposition towards families that are -- have their child
2071 and they're being supervised by the CAS. 2 COMMISSIONER STEPHEN GOUDGE: Three (3) 3 to one (1)? 4 DR. ALBERT LAUWERS: Probably close to 5 that ratio. It may even be more. 6 COMMISSIONER STEPHEN GOUDGE: Okay, 7 thanks. Thank you. 8 Mr. Centa, we will finish with you. 9 10 RE-DIRECT EXAMINATION BY MR. ROBERT CENTA: 11 MR. ROBERT CENTA: Very, very -- thank 12 you, Commissioner -- very briefly, Dr. Lauwers. 13 Ms. Simpson asked you some questions about 14 the circumstances under which a Form 3 might be amended 15 or revised, as new information was developed. If I could 16 ask you just to turn in Volume II of your -- sorry, 17 Volume I of your binders, Tab 6, PFP055753. This is the 18 Form 3 in Sharon's case. It's in Tab 6. 19 DR. ALBERT LAUWERS: Thank you. 20 MR. ROBERT CENTA: And this Form 3 was 21 dated March 17th, 1999, and it lists the medical cause of 22 death as multiple stab wounds. And in the narrative 23 statement it says, "This death is a result of homicide." 24 This -- I can tell you, we've searched our 25 database and we couldn't find -- find an amended or
2081 revised Form 3. Do you know if one has been completed? 2 DR. ALBERT LAUWERS: I don't have any 3 independent knowledge of that but I would assume that if 4 you had requested this information from the Office of the 5 Chief Coroner and this is what you received then there 6 isn't an amended form. 7 MR. ROBERT CENTA: To be fair, we didn't 8 make a specific request to the Office of the Chief 9 Coroner but we did look at the same review panel files 10 that you looked at. And -- and in terms of the other 11 documents we've collected we haven't been able to locate 12 one. 13 Is this -- given what we now know about 14 Sharon's case and the fact that there is -- subsequent to 15 this report being completed there's been an exhumation 16 and a second autopsy and a fairly dramatic shift in the 17 consensus around -- around the cause of Sharon's death, 18 would -- is the type of circumstances where it might be 19 appropriate to consider revising or amending a Form 3? 20 DR. ALBERT LAUWERS: It certainly is. 21 MR. ROBERT CENTA: Okay. Thank you. 22 Those are my questions. 23 COMMISSIONER STEPHEN GOUDGE: Thanks, Mr. 24 Centa. 25 Well, gentlemen, that concludes your
2091 evidence. It is left to me to thank you very much for 2 coming. Your information has been very helpful to me and 3 we have challenges ahead of us as you know, but the input 4 we get from you is extraordinarily helpful. 5 So thank you for the time and the effort 6 you put into it. 7 DR. WILLIAM LUCAS: Thank you, Mr. 8 Commissioner. 9 DR. ALBERT LAUWERS: Thank you. 10 DR. JAMES EDWARDS: Thank you. 11 COMMISSIONER STEPHEN GOUDGE: And Dr. 12 Lauwers, I think you will be back. 13 DR. ALBERT LAUWERS: Okay. 14 15 (WITNESSES STAND DOWN) 16 17 COMMISSIONER STEPHEN GOUDGE: We will 18 rise then until 9:30 tomorrow morning. 19 20 --- Upon adjourning at 2:40 p.m. 21 22 Certified correct, 23 24 ______________________ 25 Rolanda Lokey, Ms.